Claim No: 385439
IN THE SMALL CLAIMS COURT OF NOVA SCOTIA
Cite as: Snairs White Eagle Bakery Inc. v. Crawford, 2014 NSSM 3
BETWEEN:
SNAIRS WHITE EAGLE BAKERY INC.
Claimant
- and -
KYLE CRAWFORD
Defendant
REASONS FOR DECISION
BEFORE
Eric K. Slone, Adjudicator
Hearing held at Halifax, Nova Scotia on November 14, 2013
Decision rendered on January 31, 2014
APPEARANCES
For the Claimant James Enman, counsel
For the Defendant Crystal Francis, agent
Kyle Crawford, self-represented
BY THE COURT:
1 This was the retrial of a matter initially heard by another Adjudicator on May 1, 2012. It was successfully appealed and returned to this court for a retrial which finally occurred on November 14, 2013.
2 The amount claimed in the Notice of Claim dated February 28, 2012 was $5,897.50, broken down into two items:
a. Purchase price of truck bought from Claimant, and
b. Damage to leased premises caused by Defendant.
3 I emphasize at the outset that at no time has the Claim been amended to seek a greater amount, and in accordance with the principles of natural justice I believe that this amount - $5,897.50 - must represent the high water mark of what the Claimant can obtain, although the court may award less.
4 The Claimant operates a commercial bakery business, currently in Prince Edward Island but formerly out of a building at 8317 St. Margaret’s Bay Rd. in Black Point, in the St. Margaret’s Bay area of Nova Scotia. In the mid-2000's the building was leased by the Claimant to a company (Cangra) that manufactured granite countertops and other such products. That company fell behind in its rent and was locked out by the Landlord. As part of that process, the Claimant retained possession of some large and expensive granite-cutting machinery, as well as some inventory of usable granite slabs and a lot of pieces of granite of dubious value.
5 The building stood empty for about two years. A former employee of Cangra suggested to the Defendant and his spouse, Crystal Francis, that there was a good business opportunity there for someone willing to buy the inventory and equipment, lease the premises, and learn the granite counter top business.
6 As a result of this introduction, the Defendant entered into a transaction with the Defendant to buy the equipment and inventory, and to lease the building. The basic uncontroversial terms of the deal were:
a. $75,000 for the purchase of materials and equipment, payable in four installments including one up front (August 1, 2010) and the others in thirty, sixty and ninety days.
b. A lease dated August 1, 2010 at a rental of $2,500 per month, for a term of four months. Although this was the stated term in the lease, I must conclude that it was contemplated that the lease would continue on a month to month basis thereafter.
c. The Claimant had an older model cube van that it was prepared to have repaired to working order and sell to the Defendant for a nominal price of $4,000. Some of the terms of this transaction were controversial. As I will explore more later, the payment was conceived as a kind of barter, with the Defendant working off the price by undertaking work on the building. The extent of that work, and whether or not it (or any of it) was done, are live issues.
7 There are several terms of the lease that are important to this case, as the Claimant is contending that the Defendant breached them. In particular, the following terms are referred to:
3.5 Repairs and Maintenance. The Tenant shall maintain the Leased Premises in the same state of repair and condition as at the commencement of the Term (reasonable wear and tear and damage by fire, lightening of other insured perils only excepted).
3.8 Heating and Air Conditioning. The Tenant shall at all times during the currency of this Lease, at its sole cost and expense, keep the Landlord’s Buildings heated in their entirety to a reasonable degree and to such a temperature as to prevent damage to any part of the Landlord’s Buildings......
3.17 Maintenance of Premises. The Tenant shall maintain the Leased Premises throughout the Term in a clean and sanitary condition and shall surrender the Leased Premises upon the termination of this Lease in a clean and sanitary condition and in substantially the same condition as at the commencement of this Lease, reasonable wear and tear and damage by fire, lightening or other insured peril or act of God only excepted.
8 The tenancy lasted about a year. As part of the deal, the Defendant was the owner of the machinery and he was able to sell it to an out of province buyer. Much of the original inventory of full slabs had been used, but a lot of smaller pieces had to be disposed of.
9 According to the Defendant, he worked for ten days straight along with seven other men to clean up the premises. He says they hauled away three trailer loads of sludge (the product of sawing granite) plus a large volume of other stuff - both dating from the Cangra tenancy and before. According to his evidence, he thought they had gotten it all (or substantially so) and that he had fulfilled his obligation.
10 According to the Claimant, the premises was a mess. The floors were full of sludge, built up in places to five or six inches. There was mildew on the inside, which he believes was a product of the Defendant not properly heating the space. He filed photos showing the dirty condition of the premises before he and some other men did a thorough clean up, and after when it was in a near-spotless condition.
11 Both parties agree that the machinery, which was still in the premises when the Defendant took it over, would have obscured a lot of dirt and mess.
12 The Defendant and Ms. Francis advised the court that they had filed a folder of photographs as evidence at the first trial, which is confirmed by the court exhibit log. These photographs included pictures of what the premises looked like when they first took it over. That folder has gone missing. It would appear that the court is at fault.
13 It would certainly have been helpful to have seen these photos. However, the point is clearly made that the condition of the premises when the Defendant took it over was far from spotless. Indeed, it is impossible to tell how much of the sludge or other debris was simply revealed when the large pieces of machinery were removed.
14 The responsibility of the Defendant was to return the premises to the condition that it was in when he took it over. The Claimant is attempting to hold him to a much higher standard. I am far from satisfied, on all of the evidence, that the Defendant breached this term of the lease.
15 I fully appreciate that it cost the Claimant time and money to clean up the building. This is not surprising. This is a large ramshackle building that is semi-open to the elements, and which for many years had been used for a dirt and sludge making operation. Based on the evidence, the volume of work done by Cangra in its years there dwarfed the small number of jobs that the Defendant did. I am convinced that the bulk of the dirt and debris left behind can be traced to Cangra, and cannot be held to be the Defendant’s responsibility.
The transaction for the van
16 Not only are documents unhelpful to sort out this part of the claim, but they are outright misleading.
17 There was an unsigned agreement which appears to have originated with the Defendant, which suggested that in exchange for the van the Defendant would do a number of tasks, namely:
1. Totally clean the inside plant of all dust and mold
2. Pressure wash siding on outside of plant
3. Repair leaks in the roof
4. Repair flashing on the front of the building
5. Other minor maintenance to be discussed
18 Sometimes a draft agreement, even where unsigned, may be evidence of a verbal agreement, where it appears that the parties have acted as if it were binding. I cannot say that this is the case here. It is more likely that these terms were never agreed to.
19 In a handwritten document dated August 27, 2010, which was filed with Service Nova Scotia as a means to avoid the payment of sales tax, the parties as represented by Mr. Snair and Ms. Francis, say that in exchange for the van the buyer has agreed to supply $4,000.00 worth of granite counter. All parties agree that this was never the real intention.
20 There are emails between the parties that suggest that Mr. Snair, at least, was still looking for the roof to be substantially repaired as payment, either in full or part, for the van. Those emails are erroneous in at least one respect, in that they refer to the sale price as $4,500.00 rather than the $4,000.00 that everyone seems to agree upon.
21 What is beyond doubt is that the van was transferred, and no money actually changed hands. It is also without doubt that the Claimant spent over $1,500.00 to get it in working order. It is also apparent that the Defendant was unhappy with the way the van was driving, and complained about it. However, when invited to bring the van back to the dealer to be examined (at the Claimant’s expense), he did not bother to do so.
22 The Defendant claims to have done various work on the building, sufficient to be credited against the purchase price of the van. He says that he did some minor roof repairs, some plumbing work, repairs to a bay door, and major cleaning of garbage out of the building. He testified that he assumed that this work was being credited against the price of the van. However, there is no evidence that anyone associated with the Claimant company considered that the work allegedly done by the Defendant amounted to full payment for the van.
23 This is a very murky situation. The facts are elusive. It is clear that the Claimant spent $1,561.48 to get the truck into driveable condition, and was willing to invest more, if need be, after being told that there was a problem. I find that the Claimant expected some real value in return for undertaking this work and transferring the van.
24 I believe the onus is on the Defendant to establish that he provided value, if he is to escape paying the $4,000.00 price. The evidence of work that he did is extremely sketchy. There is nothing passing between the parties, such as an email saying, in effect, “I’ve just done X amount of work, for which I should be entitled to $Y in credit towards the price of the van.”
25 I am willing to give some small amount of credit for work done, but no more than $500.00. This may seem a little arbitrary, but I have very little to go on. In the result, I find that the Claimant is entitled to $3,500.00 from the Defendant as owing on the van. I note that the van was ultimately disposed of by the Defendant, for which he received some money, and there is no basis for him to keep that money and, in effect, be enriched at the expense of the Claimant.
26 In all there will be a judgment against the Defendant for $3,500.00 plus costs of $182.94 which was the cost to issue the claim back in early 2012.
Eric K. Slone, Adjudicator