Ashley. v. Salomonie, 2017 NUCJ 14

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: Ashley. v. Salomonie, 2017 NUCJ 14 Date: 20170816 Docket: 08-16-773 Registry: Iqaluit Plaintiff: Joanne Ashley -and- Defendants: Michael Salomonie & Ian Salomonie ________________________________________________________________________ Before: The Honourable Madam Justice Virginia Schuler Counsel (Plaintiff): Self-Represented Counsel (Defendants): Self-Represented Location Heard: Iqaluit, Nunavut Date Heard: July 27, 2017 Matters: Trial of Small Claims action REASONS FOR JUDGMENT

(NOTE: This document may have been edited for publication) I. INTRODUCTION [ 1 ] This is a small claims action in which Joanne Ashley claims damages against Michael Salomonie and Ian Salomonie for damage caused to a laptop and headset. All parties were self-represented. II. EVIDENCE [ 2 ] Michael Salomonie is the father of Ian Salomonie. Ian is 17 years old. [ 3 ] Ms. Ashley is the mother of Brandon Ashley, who was, at the time of the events in question, a friend of Ian. Brandon was not called as a witness at the trial. [ 4 ] Ms.

Ashley testified that on February 25 th , 2016, while she was at work, she received an email message from the principal of Brandon’s high school, telling her that Brandon had been assaulted by another student, leading to the suspension of that student. She could not recall exactly when she saw the message. On arrival at home sometime after 5 p.m., she observed Brandon to be lying on the couch. She testified that he was distraught and had a swollen face, bruises all over his body, scrapes and a hole in his pants. [ 5 ] Ms. Ashley wanted to call the police, however Brandon objected and so she did not.

At some point Ms. Ashley looked into Brandon’s backpack and observed his headset to be snapped in half and the screen of the laptop to be damaged. She testified that the laptop never worked again and that her attempt to have it repaired was unsuccessful. She also testified that Brandon always carried the laptop with him in his backpack and that he took it everywhere. She had purchased the laptop and headset for him in 2014. [ 6 ] Based on what she learned from the school principal and from Brandon, Ms. Ashley confronted both Ian and his father Michael.

She testified that Ian apologized for having assaulted Brandon and said that he would replace the laptop and headset. She testified that Michael Salomonie also said that he would deal with it. However, it appears that there was no follow up and despite efforts at mediation, the parties were unable to come to an agreement. [ 7 ] Ms. Ashley called a witness who testified about the cost of the laptop and headset. I will refer to that evidence further on. [ 8 ] Ian Salomonie testified that on February 24 th , 2016, he overheard Brandon telling some of his friends that Ian was stupid and acting like a gangster.

Ian was upset by this and the next day he arranged to meet Brandon outside the school at the morning recess. He confronted Brandon and asked why he had said the things Ian had overheard. Brandon repeatedly denied having said those things, which led to Ian becoming upset and angry and losing his temper. Ian punched Brandon in the face three times and then tripped him, causing Brandon to fall back into the snow, at which point Ian walked away. [ 9 ] Ian testified that Brandon was wearing his backpack at the time and fell back on it when Ian tripped him.

Ian described the ground where Brandon fell as being hard ground, covered by ankle-deep snow, covered by a very thin layer of ice. He testified that he did not observe Brandon to hit the ground hard. [ 10 ] Ian testified that he was not aware whether Brandon had his laptop and earphones in his backpack when Ian hit and tripped him.

[11] The main issue raised at trial was whether Ms. Ashley has proven that the laptop and headset were in the backpack when Ian hitand tripped Brandon and whether the fall backwards caused the damage to them. Since Brandon was not called as a witness by Ms.Ashley, there is no direct evidence in that regard. The only evidence on that point is that of Ms. Ashley. She testified that Brandon wasthe only person in the family who used the laptop, that it was always in his backpack and that he took it everywhere. [12] It falls on Ms. Ashley as the plaintiff in this case to prove her claim on a balance of probabilities.

She has to prove that it is morelikely than not that the laptop and headset was damaged in Brandon’s fall when he was tripped by Ian. [13] Ms. Ashley testified that Brandon always carried the laptop with him in his backpack. At the time of the incident with Ian, he wasat school, where he would likely want access to it, so it is reasonable to infer that he had it and the headset with him in his backpack atthat time. It is clear from Ian’s testimony that Brandon had the backpack on his back during the confrontation.

When Ian tripped him,Brandon fell on his back onto the ground, with the backpack also hitting the ground. After that, the laptop did not work and the headsetwas snapped in half. In my view, it is a reasonable inference that the fall caused the damage to the laptop and headset. I am satisfied thatIan’s actions in tripping Brandon more likely than not caused the damage. [14] Even assuming that Ian was not aware of what was in the backpack, he is responsible for the reasonably foreseeable consequencesof his intentional tortious, i.e. wrongful, actions.

Ian intentionally hit and tripped Brandon and he was old enough at the time tounderstand what he was doing and what the consequences might be. It was reasonably foreseeable that when he tripped Brandon,Brandon would fall and either he, or anything on his person, such as a backpack and its contents, or both, would be injured or damaged. [15] As to the amount claimed, the only evidence at trial was that of Mr. Bens, who manages the store where Ms. Ashley bought thelaptop and headset in 2014. Because of a change in the way the store keeps its records, Mr.

Bens was not able to produce originalreceipts or documents from Ms. Ashley’s purchase, but instead testified as to what the laptop and headset would have cost in 2014. Healso acknowledged that products like the laptop depreciate in value and said the laptop would be worth probably a couple of hundreddollars less at this time. [16] Mr. Bens testified that the cost of the laptop in 2014 was $692.99 plus tax of $34.64. Taking into account depreciation, in my viewthe amount of $500.00 inclusive of tax is appropriate as damages. [17] For the headset, Mr.

Bens was not able to give a precise cost, rather only a range, so in my view it is appropriate to take the lowend of the range which is $179.99 plus tax of $8.99 for a total of $188.98. [18] As to the claim for software, the evidence of Mr. Bens was that the laptop would have had factory-installed 30 day trial software. His store did not install any software and it would have been up to the user to activate the license for the same type of software as thefactory-installed version or some other type.

However, no evidence was presented at trial as to exactly what software was installed, fromwhom, or when, so that aspect of the claim has not been proven. [19] I find therefore that Ms. Ashley is entitled to the total amount of $688.98 in damages. She will have judgment in that amountagainst Ian Salomonie. [20] Ms. Ashley also sought judgment against Michael Salomonie, Ian’s father. This raises the issue whether a parent is liable fordamage caused by his or her minor child, simply as a result of the parent-child relationship.

Unlike some provinces, for example,Ontario (Parental Responsibility Act, S.O. 2000, c. 4, as amended), Nunavut does not have legislation governing a parent’s responsibilityor liability for the tortious actions of his or her child. The common law therefore applies and it requires that a claimant seeking torecover against a parent prove that (

i) the parent knew of the child’s propensity to engage in certain behaviour; and (ii) that the parentfailed to take reasonable steps to restrain that propensity or habit (Lelarge v. Blakney (1978), (NB CA), NBJ No.267). In this case, that would require proof that Michael Salomonie knew that his son had a propensity to assault others and failed to takereasonable steps to stop him from doing so. There is no evidence on either of those points and so I cannot find Michael Salomonie liablefor the damage caused by his son. [21] Accordingly, Ms.

Ashley will have judgment only against Ian Salomonie in the amount of $688.98. As she was successful withonly part of her claim, no costs are awarded. Dated at the City of Iqaluit this 16th day of August, 2017