CLAIM NO. SCCH-04-216952
DATE: 20040506
DECISION AND ORDER
IN THE SMALL CLAIMS COURT OF NOVA SCOTIA
Cite as: Lorincz v. Ace Towing & Crane Ltd., 2004 NSSM 15
BETWEEN:
Name: Ben Lorincz
Address:
- CLAIMANT
Name: Ace Towing & Crane Limited
Address:
- DEFENDANT
Revised Decision: The text of the original decision has been revised to remove personal identifying information of the parties on August 7, 2007.
DATE OF HEARING: April 26, 2004
DECISION
[1] Ben Lorincz raises in his claim an interesting challenge to a practice of Halifax police. On February 17, 2003, the Defendant Ace Towing & Crane Ltd., at the request of a Halifax Regional Municipality police officer, towed the Claimant’s car away and impounded it because it was said that the car was parked in such a way that it interfered with snow removal contrary to s.139(1) of the Motor Vehicle Act. Mr. Lorincz, however, had to pay Ace Towing $120.75 for towing and storing in order to retrieve the car from them. Mr. Lorincz successfully challenged the parking ticket. The charge under s. 139(1) was dismissed after a trial on November 19, 2003. Mr. Lorincz claims payment of the $120.75 from Ace Towing.
[2] Mr. Daniel Yves St. Pierre appeared on behalf of Ace. He did not dispute the facts and indeed had a certain sympathy for Mr. Lorincz’s position. He said he had been called out of bed by the police, had arrived on Grafton St. with his truck and removed Mr. Lorincz’s vehicle at the direction of a police officer.
[3] Section 139 of the Motor Vehicle Act provides as follows:
139 (1) Notwithstanding Section 138, no person shall wilfully park or leave standing a vehicle whether attended or unattended, upon a highway or any part thereof in such manner that it might interfere with or obstruct snow removal or winter maintenance operations on the highway.
(2) Where a vehicle is parked or left standing on a highway in such manner that it interferes with or obstructs snow removal or winter maintenance operations, the Department of a peace officer many cause the vehicle to be moved or towed to some other place.
(3) Any cost incurred by the Department or a peace officer in moving or towing a vehicle under subsection (2) may be recovered from the owner of the vehicle and such debt shall constitute a lien against the vehicle. R.S., c. 293, s. 139.
[4] There are other sections of the Act, notably sections 273 and 275 , which provide for seizure and a lien on a car, but in my view Section 139 by itself states the law relating to seizures when the reason for the seizure is interference with snow removal. The dismissal of the charge under the Act, in my opinion, is conclusive evidence for present purposes that the car was not parked in such manner that it interfered with snow removal. The police officer must then be said to not have had justification to cause the car to be towed away. Thus, the vehicle cannot be said to have been towed away “under subsection (2)”. No right to payment for the cost of towing the vehicle existed and consequently neither did a lien. I am satisfied that there was no legal basis to exact the $120.75 from Mr. Lorincz.
[5] Ace Towing, of course, has no lien in any event. It is the Department or the peace officer who has the lien and the lien is to recover the cost of the Department or the peace officer incurred to Ace. The Department or the peace officer would, as I read the section, be expected to pay Ace and then could use its lien for recovery of the cost if necessary. Mr. Lorincz had no relationship with Ace. Ace held his car. He had to pay them if he wanted it back. I see no justification for Ace itself to claim and enforce the lien in order to collect the cost directly from the person whose vehicle had been seized.
[6] Ace Towing, in my view, has committed a “trespass” to, or a conversion of, Mr. Lorincz and is liable to him for damages. That Ace may be said to be “innocent” in the sense of having simply followed the police officer’s direction is not, in my opinion, a defence to the tort in this case. Ace may well have a legitimate argument to make a claim against the government, but I am satisfied that Ace must reimburse Mr. Lorincz for the towing and storage.
ORDER
[7] I order Ace Towing and Crane Ltd. to pay to Ben Lorincz the sum of $195.75 including the $75 filing fee.
Dated at Halifax, Nova Scotia
this 6th day of May, 2004.
__________________________________
J. WALTER THOMPSON, Q.C.
ADJUDICATOR
Original Court File
Copy Claimants(s)
Copy Defendant(s)