2018 Claim No. 482544
IN THE SMALL CLAIMS COURT OF NOVA SCOTIA
Citation: Rideout v. Phillipo, 2019 NSSM 67
BETWEEN:
Neil Llewellyn Rideout
CLAIMANT
and
Denise Phillipo
DEFENDANT
REASONS FOR DECISION
BEFORE: A. Robert Sampson, Q.C., Adjudicator
DATE OF HEARING: Hearing held at Sydney, Nova Scotia March 6, 2019
DECISION RENDERED: March 12, 2019
APPEARANCES:
For the Claimant: Self-Represented - Mr. Rideout
For the Defendant: Representative - Mr. Allan Hill and Ms. Rideout
BY THE COURT:
1. This claim is stated to be for payment of $9105.00, such sum representing the replacement value of various goods which the Claimant claims were being held by the Defendant in a barn/garage at her residence for safekeeping and such goods have either been retained by the Defendant for her own use or otherwise disposed by the Defendant without permission or knowledge of the Claimant. At the outset, as is the practice of this court the procedure was explained to the parties. Further, the Court inquired as to whether it was Mr. Hill’s intention to provide any evidence in addition to his assistance provided to the Defendant. He acknowledged that he would and therefore, at the outset, all parties were placed under oath and advised that any comments or statements made would be considered to be evidence provided to the Court under oath. All acknowledged and agreed.
2. Before proceeding the Claimant raised a preliminary issue relating to a post that appears in google regarding his character and alleging that he was/is a scam artist. He noted to the Court that this was proven not to be true however noted, because the posts are so old he had made attempts but was advised that they cannot be removed. It appears that the Claimant advanced this preliminary objection as he believed that a copy of the google posting had been included with the Defendant’s Defence filed with the Court. That was not the case and the Court confirmed that there had been no evidence submitted to the Court relating to this allegation. The Claimant did not tender any document in connection with this specific concern or his exoneration of the same.
SUMMARY OF EVIDENCE
3. The Claimant confirmed that he and the Defendant had met in the Spring of 2018 as a result of the Defendant responding to an advertisement whereby the Claimant was selling his fridge in connection with selling his home situate in New Waterford. He confirmed that he and Defendant became friends and started dating. The Claimant confirmed that he had secured a storage unit to place his various household belongings in but it turned out there was insufficient room to place everything in this unit. He confirmed that this led to him asking the Defendant if she minded him storing the remainder of his personal property in a garage situate on the Defendant’s property to which she agreed. The Claimant stated it was his intention to secure another storage unit at some point.
4. The Claimant sold his home in June 2018. He confirmed that they continued dating until October 2018 at which time, for reasons unknown to this court, the relationship was broken off. At this time the Claimant stated his personal property still remained in the Defendant’s garage.
5. The Claimant tendered Exhibit 1 which represented pages A to H. There was a combination of pictures, text messages and emails purportedly exchanged between the parties commencing from September 26th through to December 2018. Each related in one way or another to the Claimant’s efforts to retrieve his personal belongings he alleged to be held at the Defendant’s home. Exhibit 2 tendered by the Claimant represented a copy of an email and/or letter sent to the Defendant principally in an effort to get his “stuff” back and not wanting the law suit to grow into something more.
6. Exhibit 3 tendered by the Defendant represented a copy of a police report, issued on October 27th, 2018 confirming that the CBRM Police attended at the Defendant’s residence and spoke directly to the Defendant on behalf of the Claimant requesting that she cooperate in making arrangements for the return of his personal property. The letter noted that the Defendant said she would do so in the coming days. The Claimant stated that he commenced this legal action approximately three weeks later (November 20, 2018). Before doing so the Claimant made reference to a series of text messages he sent to the Defendant as set forth in his Exhibit 1 (D & E) on October 19, 20 and 21st. He also noted that he attended at the Defendant’s property on October 13th (early morning) but did not get out of his car.
7. The Claimant tendered Exhibit 4 which provided a detailed list of what he believed to represent his personal property remaining at the Defendant’s home and the corresponding value of each item. There was no supporting evidence relating to any of the values presented. The Court on its own initiative reviewed each of the individual items and questioned the Claimant as to how or on what basis he determined the values presented. The Court will provide further comment on these items later in this decision.
8. The Claimant noted that he had received rumor that the Defendant may have had a yard sale and sold some of his belongings. The Claimant further testified that in early December Mr. Hill, the Defendant’s step-father, had attended at his residence yelling and threatening him. At that time three boxes were left at the back of Claimant’s car which were later confirmed by the Claimant to each contain some of his “stuff” but certainly not everything and specifically, except for the softener, not the remaining items set forth on Exhibit 4 (list). The Claimant also noted that the original packing tape had been cut open on each of the boxes. The Claimant confirmed the nature of the items that were included in the boxes.
9. The Defendant gave evidence. Exhibit #5 was tendered as representing two photos, one of the exterior of the garage in question on her property and a second showing the inside which appears to have multiple items stored including her son’s recent purchase of an off road side-by-side motor vehicle. She noted the purpose was to show that there was little storage room left in the garage and nothing appeared to represent the Claimant’s belongings including any additional packing boxes.
10. The Defendant did confirm that there was a box under her step which she believed to be the Claimant’s “stone outdoor speakers” but she confirmed there was only one box and she had no idea how many, if any, speakers would be in it. She said she was not aware of any other similar boxes or speakers in her garage or on her property. She also confirmed that the Claimant’s wheelbarrow was still on her property which the Defendant said he had given to her but she had no use for. The Claimant testified that the wheelbarrow had been modified by him and valued it at $320.00. She also testified that the blow torch referred to and valued at $39.00 may be still in the garage. She confirmed that there had been a deck broom as she recalled using it during the summer months but has no idea where it is now. She assumed the Claimant took it back and was certain it is not in her possession.
11. The Defendant commented on each of the remaining items on the Claimant’s list (Exhibit #4) and indicated that she did not have any of these items and as it related to most items she had no idea what they were or used for. This was specifically in relation to several tools that the Claimant said he uses in connection with his involvement in the distillery industry, notably an aaton paar snap, anvton paar (DMA) , bag of tools and Klein tool (see Exhibit 4 for full name and possibly correct spelling). She further noted that she had never seen the Claimant use any “tools” on her property. The Defendant testified that the horse barn on her property was in need of repair and she was aware that a local contractor had come to her property to assess the repairs. She testified that ultimately she had a local contractor carry out some of the repairs but the Claimant was not in any way involved.
12. In contrast, one of the items claimed by the Claimant was a set of engineer drawings, valued at $2500.00 that he says he ordered from a place in the United States specifically in relation to having the repairs completed to the side wall of an old barn. The Defendant testified that she has no knowledge of these plans, nor of the fact that the Claimant may have ordered them and had never seen any plans. She further testified that no repair work was carried out by the Claimant or under his supervision other than the removal of several strips of siding at the bottom of one side of the barn so an inspection could be carried out by a contractor to obtain a quote. Part of the repairs dealt with the roof and a side wall.
13. The Defendant testified that she was a single mother who resided alone with her son and that she never held any yard sale. She further testified that she ended up buying the Claimant’s washer and dryer and initially, when they first met, a fridge from the Claimant, all of which were paid for. In addition both she and Mr. Hill testified that the Claimant tried to sell her a used trailer for $2000 that he had re-built but she had no use for it. It was noted by Mr. Hill that it had not been inspected or licensed. As for the tool kit previously mentioned, the Claimant’s evidence was that he went to his storage container to specifically retrieve his tool kit as he needed some items associated with the anticipated start of work on the barn. He said he put it in the Defendant’s truck but the Defendant had no recollection of this nor was there any evidence that it was ever later removed from the truck or used by the Claimant. The Claimant further responded during the Defendant’s cross that she knew of the plans he was purchasing because he had to go back to the house three times for additional pictures. The Defendant denied knowing this.
ANALYSIS AND DECISION
14. Clearly there remains a great deal of mystery as it relates to the evidence presented to the Court. These events occurred in the fall of 2018, not that long ago and certainly within a reasonable range of time where one ought to be able to recall events with some level of certainty. Ironically the only extrinsic evidence referenced to me that brings into question either parties’ credibility was that referenced at the outset by the Claimant himself where he referred to google articles published online a number of years ago that suggest he was a scam artist. He raised this because he believed this information had been included with the defence filed by the Defendant. It was his position that it had been proven to be untrue but was too old to be removed. He offered no evidence to verify this or the manner in which it had been proven to be untrue which in itself leaves the Court with some suspicion.
15. Of the evidence presented by all parties, what appears to be consistent is the following:
➢ the parties did not know each other until a happen-by-chance meeting in the spring of 2018 when the Defendant responded to an ad to purchase a fridge from the Claimant;
➢ the parties began to date and continued dating through to on or about October 13, 2018 at which time they broke up;
➢ the Defendant acknowledges that there remains one box which she believes the Claimant’s rock speakers are in although has no idea of how many;
➢ the Defendant acknowledged that the blow torch and presumably any associated tank (assume this would be a small propane cylinder) may still be in her garage;
➢ the Defendant acknowledged the Claimant’s wheelbarrow is on the property and his for the taking although she believes it was a gift;
➢ the Defendant readily acknowledged that there had been a deck broom but has not seen it for many months and believed the Claimant had taken it. She noted this in the Facebook exchange that took place October 16th, only several days following their break-up. She acknowledged that if it is on her property or anywhere in her garage she will return it to the Claimant;
➢ the Claimant acknowledges having received his four fabric softeners which were included on Exhibit #4.
16. The Defendant acknowledges having received three of the eight boxes of household products as set forth on his list (Exhibit #4). Until the Court hearing there was never any list of the Claimant’s “stuff” formally sent to the Defendant other than what he set out in a Facebook message exchange on October 16th (Exhibit 1(f)), only several days after the break-up. I find this exchange to be credible and very helpful in determining, with some level of certainty, what the status was relative to what “stuff” of his the Claimant believed the Defendant had at this point in time. The Claimant states in his email response “…well the stuff in the car, my boxes in your garage, my broom, my outdoor speakers, my blow torch and tank. I think that is it”. In this same exchange reference is made to the wheelbarrow and fact that the Claimant would have to borrow a truck. Further reference is made by the Defendant suggesting she could leave his stuff by the Claimant’s front door, which suggests that it certainly would not be any volume in the range of 15 packing boxes as alluded to by the Claimant in his evidence. In the same exchange the Defendant offers to leave his stuff “on her yard and he can come and take it”, again clearly leaving the impression that we are not referencing a huge volume of items/boxes. The Claimant responds saying he will not come onto her yard unless she is there.
17. The Court notes that in the September 25th text message exchange (see exhibit 1 (G)), there is reference to a note from Ms. Phillipo which states “do we have to move your washer and dryer”? This suggests to the Court that at this point in time the Claimant still owned the washer and dryer. The evidence at the hearing confirmed that she had purchased these two items from the Claimant. In the October 16th exchange no mention is made by the Claimant that these items belong to him and therefore it appears reasonable to assume that sometime between September 25th and October 13th (date of break-up) the Defendant purchased these items.
18. The evidence of the Claimant (Exhibit 1 C) shows a picture taken in November 2016 which shows what the Claimant claims to be his wheelbarrow. What this picture also reveals is the fact that the wheelbarrow is clearly out in the open with no suggestion of any attempt by the Defendant to hide it. It may be the case that it was left where the Claimant had placed it.
19. What is clear to the Court is the fact that the Claimant asked a favour of the Defendant to store his property and she granted that favour. In doing this I find that there was no assumption of risk on the part of the Defendant. Further I find from the admission of the Defendant there does remain some miscellaneous items which belong to the Claimant on her property and he should be entitled to receive them back. As for what appears to be the loss of several other items of tools, possibly additional speakers, possibly engineering drawings, I have no reason to reject the Defendant’s evidence that she simply does not have these items nor does she know their whereabouts. I will say, specifically as it relates to the claim for $2500 for the cost of having engineering drawings prepared in the US, the onus to prove one’s claim and corresponding damages rests with the Claimant. In this regard, the Court is troubled why the Claimant could not have brought forth some extrinsic evidence such as an order form, email exchange, or receipt in an effort to provide some verification of this type of claim. As the Court questioned the Claimant on the suggested values being claimed, as noted earlier there was not one shred of supporting documentation to verify such values. It left the Court with the impression that at least some of the values being claimed were advanced on the basis of the Claimant’s “best guess”. That simply does not meet the threshold of the required proof. In noting this, the principal basis for the Court’s determination rests on credibility. I find the Defendant’s evidence to be credible in that she simply does not have the remaining items claimed by the Defendant other than that which she acknowledged having.
DECISION
20. Therefore it is the order of this Court as follows:
(1) The Claimant shall be entitled to his costs associated with filing this claim because he has had some partial success as it relates to the Defendant’s acknowledgement of still having some items of personal property belonging to the Claimant. Otherwise, the Claimant’s claim for any further monetary compensation is hereby dismissed subject to the following:
(a) that the Defendant shall immediately ready for return to the Claimant the following items:
(i) return one box believed to contain one or possibly two “rock speakers”;
(ii) return to the Claimant the blow torch and related cylinder; and
(iii) return to the Claimant his wheelbarrow.
(2) In addition the Defendant shall immediately undertake a thorough search of her garage in an effort to locate the deck broom and if found it shall be returned to the Claimant along with any other items that may be found in the garage belonging to the Claimant. The Defendant shall advise the Claimant by email within 10 days of receiving this decision that she has completed her search,that the items noted above are ready for pick-up and shall provide three different option times/dates (within the ensuing 10 days) in which they can be picked up by the Claimant or his representative at the Defendant’s home. In the interim the Defendant shall keep safe from the elements all such property so as to ensure no loss or damage is caused to such items while this decision is being carried out. The Court acknowledges that the wheelbarrow has been located outside and most likely remains there and can remain where it is for pick up. The Court also acknowledges the evidence surrounding the box containing the rock speaker was said to be located underneath a deck or step. Assuming it is still there then it can be retrieved by the Claimant from this location. Finally, after the 10 day notice period, should any items not be picked up by the Claimant than such property shall be deemed to have been surrendered to the Defendant.
DATED at Sydney, Nova Scotia this 12th day of March, 2019.
A. ROBERT SAMPSON, Q.C.
Adjudicator