Nicole West Plaintiff Defendant by counterclaim - v. -, 2019 SKPC 28

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2019 SKPC 28 Date: April 29, 2019 File: SC# 508 [2018] Location: Saskatoon _____________________________________________________________________________ Between: Nicole West Plaintiff Defendant by counterclaim - and - Jeffrey Basko Defendant Plaintiff by counterclaim Self-represented For the Plaintiff Self-represented For the Defendant _____________________________________________________________________________ JUDGMENT B.G. MORGAN , J _____________________________________________________________________________ Introduction [ 1 ] Ms. West and Mr.

Basko dated from approximately February, 2015 until they separated on April 25, 2018, although they never actually cohabited. They had a close relationship, and in fact went on a couple of vacations together.

[ 2 ] During their relationship, Ms. West said that she lent $17,000.00 to Mr. Basko and there is still a partially outstanding debt that she is suing on. Mr. Basko has counterclaimed for a number of expenses he says he incurred that Ms. West said she would reimburse him for. [ 3 ] The counterclaim proceeded right after the claim and this case comes down to a factual determination. On each of the claim and counterclaim, of course, the plaintiff has to establish his or her claim on a balance of probabilities.

The sole question on each of these is whether or not that has occurred. [ 4 ] I will start with the claim, and then deal with the specific items claimed by Mr. Basko in the counterclaim. [ 5 ] Each of the parties represented themselves and was the only witness in each of his or her defence and/or claim. The Claim [ 6 ] The facts are fairly straightforward and are not in dispute. In the autumn of 2016, Mr. Basko wished to purchase a house, and around this time was also interested in opening a business. I am satisfied it was Ms. West who approached Mr.

Basko offering to see what she could do to help him out with his financing. Although she could not cover all of Mr. Basko’s shortfall, she offered, and he accepted, to loan him $17,000.00, which she did by cheque in his favour dated October 31, 2016. [ 7 ] The purpose of this loan was to allow Mr. Basko to pay down his credit card and perhaps repay part of the loan out of a line of credit he would get for his business. Although there was no firm repayment

schedule set out, the general agreement was that Mr. Basko would repay the loan as he could. [ 8 ] According to Ms. West, whose evidence I accept, Mr. Basko eventually got the house, but told her at some point he could not pay it back while dating, and she said that she has received no funds since they broke up. This was confirmed by her banking records, which show that Mr. Basko made various payments on an irregular basis, a final payment being April 21, 2018. As noted, they broke up five days later. [ 9 ] There is no dispute that Mr.

Basko received $17,000.00 and paid, by various payments up to and including April 21, 2018, $9,255.17. Thus, the outstanding principle balance is $7,744.83. [ 10 ] There was no discussion respecting interest on this money, and Ms. West is not claiming for it in any event. What she is claiming is the aforesaid principal amount owing. [ 11 ] Mr. Basko does not take issue with this. His view, however, is that in light of his counterclaim, there may actually be money coming to him that exceeds that amount, so that question has to be resolved. [ 12 ] Accordingly, Ms.

West shall have judgment in the amount of $7,744.83, interest from April 25, 2018 pursuant to The Pre- judgment Interest Act , SS 1984-85-86, c P-22.2 and cost of issuance of the Statement of Claim. Counterclaim [ 13 ] Mr. Basko’s counterclaim consists of a total $11,465.45, broken down as follows: 1) retention of a promise ring worth $6,600.00; 2) auto parts (repair work he did) $2,865.45; 3) silver from Mexico in the amount of $1,000.00; 4) trip to Las Vegas in the amount of $2,000.00; and 5) insurance benefits retained by Ms. West. I will deal with these issues separately. The Promise Ring [ 14 ] Mr.

Basko’s version is that he “pretty much paid for everything”, referring to expenses incurred during their relationship, and he was getting sick of this. He said he and Ms. West were walking around the mall just prior to Christmas, 2015, and that it was Ms. West who wanted to look at rings at the People’s diamond store. He says he agreed to buy a ring she saw, and admired, but that she was to give it back to him if their relationship did not work out. In his words, the conversation went like this: If we ever break up or this doesn’t go anywhere I want it back.

Response: Of course, I would never keep something like that. The actual cost of the ring was $5,944.01, and it was purchased on December 21, 2015.

[ 15 ] Ms. West states that they were in the mall, she asked to go and look in People’s, and she tried on that ring. She says it was not purchased the day they looked at it: she puts this time frame at approximately November, 2016. I am satisfied she is in error on the date by a full year but nothing turns on this. [ 16 ] Her evidence is that this was not just prior to Christmas. She said that she received that ring on Christmas morning and that Mr. Basko specifically said that this was not an engagement ring. Rather, it was a promise ring, and he wanted it back if they broke up. [ 17 ] Ms.

West indicated that the relationship was acrimonious, becoming more so near the end, and she would often be taking the ring off and on and giving it back to him, depending on how things were going. Specifically, she stated that in March 2018, she was sitting on his bed, and they were discussing a trip she was taking to Tijuana with friends. He was upset with her for going, told her to take the ring off, which she did, telling him it was cursed and throwing it at him. According to Ms.

West, he picked it up. [ 18 ] She says that when she got back from Mexico, she asked for the ring again; it appears the parties were on better footing at this time, and he said it was at the safety deposit box, he would need to get it but he never gave it back to her. The parties broke up 10 days later. [ 19 ] It is the plaintiff’s burden to establish his claim on a balance of probabilities. I am satisfied that there was no discussion at the time the ring was purchased, although as of December 25, 2015, when I find the ring was given, Ms. West and Mr.

Basko had an agreement that, if they broke up, she would return the ring. [ 20 ] I further find that Ms. West did precisely that and that she returned it to Mr. Basko in March, 2018. That being the case, payment for the ring, or return of it, is not something Ms. West is required or able to do: the ring has been returned. [ 21 ] I accept Ms. West’s version as it is coherent and logical, and she testified in a straightforward manner. The problem that Mr. Basko has with this claim is that, as stated earlier, it is his obligation to establish his claim on a balance of probabilities. He has simply failed to do this.

This portion of his counterclaim is dismissed. The Auto Parts [ 22 ] The total of this is $968.71, based on a bill created January 15, 2018. Mr. Basko, who owns or operates a filter service which has access to automotive parts, states that Ms. West had three different vehicles during the time they were dating, and he worked on them, the arrangement was that she would pay the costs and he would cover the labour. According to him, she said she would pay him when she got her income tax back. The claim was actually more on the documentation submitted but he reduced it once the evidence went in. [ 23 ] Ms.

West agreed that she may have purchased some windshield wipers, and she did have some oil changes, but that is it. She also said she did receive a fuel cap. Other than that she denied purchasing any of these items, and said none of this became an issue until such time as she summonsed Mr. Basko to court on her claim. On that last point, the Statement of the plaintiff’s claim was July 31, 2018, with the summons for same returnable December 12 of the same year. Mr. Basko’s counterclaim is dated November 30, and although the year is not filled in, it can only be 2018.

This was12 days before the case management date. [ 24 ] I am satisfied that this alleged arrangement between Ms. West and Mr. Basko did not come about until such time as Ms. West brought her claim. I am satisfied that Mr. Basko is advancing this claim after the fact, based on Ms. West’s commencing the Statement of Claim for which there is ample evidence was legitimate. What Ms. West has acknowledged she has responsibility for, which in my view simply enhances her credibility, is two windshield wipers and a fuel cap.

All other matters she said she paid cash for at the time, less of course the items she said she knows nothing about and I accept her evidence on that point. Thus, Mr. Basko shall have judgment for two wiper blades at $9.40 or $18.80 total, and one fuel tank cap for $16.80, for a total of $35.60. The rest of the claim under this category is dismissed. The Trip to Mexico [ 25 ] Ms. West’s version is that the two of them were in Mexico, they were shopping in a store that sold silver jewellery, and that Ms. West bought two rings and a bracelet, paid for with Mr. Basko’s Visa card.

She claims he did not ask her to pay, as at the time of the purchase he told her this would be a birthday present for her. [ 26 ] Mr. Basko’s view is different; he states he had purchased some jewellery for himself at the resort they were staying at, and that Ms. Basko wanted jewellery for herself and her children. He said that her debit card was not working at the time and that he loaned her the money on the basis that she had promised to pay him back once they got back to Saskatoon. The cost of that jewellery, converted to Canadian funds, was $1,056.35. [ 27 ] This claim fails for the reason that Mr.

Basko has simply not discharged the obligation upon him to prove this case on a balance of probabilities, the civil standard of proof. I cannot determine what the terms of this purchase are; I simply have two individuals with completely contrary stories, and I do not know who to believe. This portion of the claim is dismissed. Trip to Las Vegas [ 28 ] Mr. Basko’s version is that his brother was turning 40, and there was going to be a family celebration in Las Vegas. He was planning to go, and he says Ms. West wanted to come with him.

His evidence is that he told her that he would pay for her in the first instance, if she paid him back. He stated that she says she could not pay right away, but would pay it in installments. [ 29 ] Half of the air fare is $560.50, which is what Mr. Basko claims. Although there would of course be costs in Las Vegas, he is not claiming for that.

[ 30 ] Ms. West stated that when she was told about this trip, and said she could not afford to go; this was in July, and she is in the teaching and is paid on a ten month system. Therefore she had no income in July or August, as the schools were not in session. Ms. West says this trip, which was discussed around May, was to be a Mother’s Day gift for her, paid for by Mr. Basko. Specifically, Ms. West recalls running around to get her passport prior to departure in late June. [ 31 ] I accept Ms. West’s version of events here, that is, this trip was a gift. It does not become a non-gift after the parties separate.

This portion of the counterclaim is dismissed. Dental Work [ 32 ] The issue here is that Mr. Basko was apparently listed as a dependent of Ms. West on her group insurance, and he is claiming the total sum of $773.00 for dental work he had done. In support of his claim, he is showing bills from a Dr. Trudy Nwachukwu, in the amount of $547.00 and $226.00 respectively, both of which he paid in the first instance by Visa. [ 33 ] According to Mr. Basko, this money was reimbursed by the dental company to Ms. West who was going to pay it to Mr. Basko, but never did. [ 34 ] I do not accept Ms.

West’s evidence that an individual can be a dependent on a group insurance policy by virtue of the fact that they have been dating for more than two years. It would only make sense that this type of benefit could be extended to a dependent who has been cohabiting with the insured for two years; otherwise, costs to administer such a plan would get totally out of hand. However, I do accept Ms. West’s comment that she never did submit the claims; hence, there was no money paid to her that was actually to be sent on to Mr. Basko.

This claim as well must be dismissed for that reason alone. [ 35 ] In the end result, Mr. Basko shall be successful on his counterclaim in the limited amount of what I awarded him for the fuel cap and wiper blades. [ 36 ] In my view, Mr. Basko said it quite succinctly in argument: He did “never ever not expect to get paid for some of these expenditures of his”. However, his expectations do not substitute for the fact that these items were, at the time they were advanced, gifts; the fact that he “didn’t really have that money, but I still did it” does not really change the matter.

If it was a gift at the time that it was advanced, it remains a gift when the parties separate. [ 37 ] The difference with the claim of Ms. West is that there is no doubt that was not in any way a gift; it was a loan that has only been partially paid back. The fact that the parties broke up does not absolve Mr. Basko of his obligation to pay the loan. [ 38 ] I therefore make judgment accordingly. Offsetting the amounts, Ms. West will have judgment for $7,709.25 plus interest and costs as per paragraph 12. _________________________ B.G. Morgan, J