Highlands Fuel Delivery G.P. Irving Energy v. Young, 2018 NSSM 51

IN THE SMALL CLAIMS COURT OF NOVA SCOTIA Citation: Highlands Fuel Delivery G.P. Irving Energy v. Young, 2018 NSSM 51 SCC SN No. 470516 BETWEEN: Highlands Fuel Delivery G.P. Irving Energy CLAIMANT and Devin Young DEFENDANT Editorial Note: The electronic version of this judgment has been edited for grammar, punctuation and like errors, and addresses and phone numbers have been removed. REASONS FOR DECISION BEFORE: A.

Robert Sampson, Q.C., Adjudicator DATE OF HEARING: Hearing held at Sydney, Nova Scotia on March 21 st and May 23 rd , 2018 DECISION RENDERED: May 31, 2018 APPEARANCES: For the Claimant: Self-Represented – Paul Steele For the Defendant: Self Represented – Devin Young BY THE COURT: 1 . This is a claim arising out of an alleged contract between the parties relating to the “rental of a water heater, a water heater monthly service contract and unpaid invoices relating to the supply of furnace oil” by the Claimant to the Defendant’s residence situate on Lingan Road.

This matter was originally scheduled to be heard on March 21 st , 2018. No Defence had been filed, however, prior to the hearing date, the Court received a letter from the Defendant’s employer, Ajax Finishing Systems, confirming that Mr. Young was employed and working in Quebec with this company and would be required to remain there until sometime in May 2018. Based on this request, the Court issued a letter to the Defendant directing that a written Defence be filed within 10 days of notice and, if filed, the re- scheduled hearing date was to be May 23 rd , 2018. 2 .

The Defendant filed a Defence stating the hot water tank and furnace were approximately 20 years old and not worth the cost of the claim. 3 . At the outset, the Court reviewed the general procedure to be employed in hearing the claim, the role of each party and how evidence was to be received including the opportunity of both parties to provide their “side of the story”, that each would be afforded a chance to question the other and any witnesses and that at the end of the evidence each would be afforded a chance to sum up their positions based on all the evidence presented.

Both parties were placed under oath at the outset as is the practice of this Court when dealing with self-represented parties and each were advised that any comments made by them at any time throughout the proceeding would be considered information given “under oath”.

4 . From the Court’s introductory

summary of this matter, based on the pleadings of the Claimant and the evidence and exhibits received by the Court, this matter can be identified as both a claim for payment in accordance with a contract (rental agreement) as well as a claim for goods (oil) provided by the Claimant to the Defendant. The Defence filed appears to be somewhat unclear but can be characterized as responding to the claim on the basis that there was “no value”. I note that seldom in dealing with disputes of this nature is anything simply black or white.

While many aspects of the evidence of both sides remains undisputed and/or confirmed by a document exhibited to the Court, in the end the Court is called upon to review the evidence and to assess issues of credibility of each party, not only as related to the actual evidence that each has presented to the Court, but also regarding the documents on which they rely to advance their position.

SUMMARY OF EVIDENCE OF CLAIMANT 5 . The claim as set forth in the Notice of Claim is for $2814.34 plus costs for an unpaid account which the Claimant rendered to the Defendant arising from a certain contract(

s) between the parties and goods (oil) provided. Mr. Steele on behalf of the Claimant confirmed that Highland was a local subsidiary operation owned and operated by Irving Oil. He confirmed they were in the business of providing a variety of services including the supply of home oil, rental and installation of furnaces, water heaters and related equipment. 6 . The Claimant’s evidence was that they had been supplying oil for a number of years to the Defendant’s residence situate at [address removed], Lingan, Cape Breton.

The Claimant indicated they had previously entered into a rental agreement with the Defendant for an oil-fired hot water heater and that they claimed to have entered into a service plan-warm air contract to provide regular service to the Defendant’s oil burner equipment, although no formal contract was tendered to allow the Court to specifically determine the full scope of this service contract. 7 .

The Claimant tendered Exhibit 1, entitled a “transaction report” which was issued in the name of the Defendant and accounted for all of the various charges levied against the Defendant over the period from November 18, 2016 through to December 1, 2017. The report also included and accounted for payments made by the Defendant on account. The balance showing as at December 1, 2017 ($2997.99) mirrored the claim advanced to the Court, including both court costs and service fees.

It includes payments and/or monthly charges associated with the three principal items which form this claim -- oil, rental for hot water and service agreement in addition to NSF/returned cheque charges and interest charges. 8 . The transaction report identified several charges relating to the supply of oil to the Defendant’s residence. On this point the Defendant intervened and made clear to the Court that he did not have any dispute relating to any payments owing for oil deliveries. 9 . The transaction report further identified monthly charges relating to a “service plan - warm air ”.

The monthly charge which forms part of this claim and applied consistently throughout the transaction report confirmed a charge of $19.07 per month. The Claimant could not provide a copy of any agreement or written information between them and Defendant relating to this service plan other than the transaction report which showed the monthly charge was consistently applied to the Defendant’s account since November 2016. 10 . The third part of this claim related to outstanding payments pursuant to a rental agreement between the parties for a hot water tank.

In this regard, the Claimant tendered Exhibit 2 which represented several documents associated with the hot water heater installation and rental arrangement. Included was a service work order dated March 2013, for the replacement of a hot water tank, a single page entitled “additional terms of rental agreement” and a document entitled “installation and materials

summary report” dated March 1, 2013. The Claimant was not able to provide a clear explanation for the various monetary amounts set forth but concluded that in his opinion the monthly rental fee “quoted” to Mr. Young was $19.54 as set out in two separate places on this document. He was unable to say whether this amount included HST. The remaining two documents associated with Exhibit 2 were a page with “additional terms of rental agreement” and a page which appears to identify both an older piece of equipment (hot water heater) and a new replacement unit.

The Claimant acknowledged that in the pages describing “terms and conditions” it was very difficult if not impossible to make out the wording of many of the individual conditions. 11 . The Claimant presented Exhibit 3 which he stated was the actual rental agreement for the hot water heater. This document appears to have been signed by the Defendant and is dated March 31, 2012. The only dollar amount identified on this document was “installation cost @ $150.00”.

The Claimant explained, principally based on the date on this document as compared to the March 2013 date on Exhibit 2 documents, that this appeared to have been the original contract entered into, likely when the Defendant acquired the home. Based on this and the Exhibit 2 documents, he concluded that a new hot water heater was supplied in March 2013.Therefore, likely a new contract had been entered into, as evidenced by the Exhibit 2 documents.

He indicated that he believed the amounts set forth in those documents would be representative of the current contract arrangements with the Defendant for the rental of the hot water heater/tank.

12 . Exhibit 4 was tendered as evidence of a “customer log” which set forth abbreviated notes made by different Irving representatives who dealt with matters involving the Defendant’s account and matters leading up to initiating this Court action. Finally, the Claimant’s tendered Exhibit #5 which was a standard invoice that would have been sent to Mr. Young back in October 2017. The balance at that point in time was confirmed to be $1784.91. The charges included the continued balance along with monthly charges for the service plan ($19.07) and the oil hot water rental ($27.65). 13 .

The Claimant was asked by the Court to address the “contract payout” charge in the amount of $1029.43 which was included on the transaction report (Exhibit 1) and included in the amount claimed. The Claimant stated he believed this charge was associated with cancelling the contract early and having the equipment removed. He did acknowledge that the equipment as of the court date was not removed. When further questioned by the Court, the Claimant could not point to any provision in the contract document (Exhibit 2) which could allow the Court to understand how the Claimant would be entitled to this amount.

As previously noted, the “terms and conditions” of the contract as presented by the Claimant were in large measure unreadable. However, the Court was able to determine that the wording associated with

Article 1 of these terms and conditions of the rental agreement appeared to suggest that the Claimant or the renter, in this case the Defendant, could, after two years from the initial contract date and upon notice, cancel the contract. The Court requested the Claimant to provide evidence as to any penalty clause which related to a contract payout penalty and he could not. The Claimant did refer the Court to one of the articles which appears to confirm a “removal fee” of $200.00.

SUMMARY OF EVIDENCE BY THE DEFENDANT 14 . The Defendant re-confirmed his position that he did not dispute any of the oil delivery charges set forth in Exhibit 1. He confirmed that he had taken ownership of the home several years prior from his parent(

s) and resided there with his partner and children. He stated that he did not understand or agree with the other charges relating to the rental agreement for what he believed was “old” equipment as well as the monthly charge for a service fee. He was provided a copy of the rental agreement (Exhibit 2) but did not recall having ever signed it. As it related to the monthly charges for service, again he had no recollection of ever requesting or entering into a contract for these charges.

Finally, he confirmed to the Court that he had fallen behind in number of bills and simply was not able to continue to pay for these charges. REASONS FOR DECISION 15 . In most situations, claims of this nature are relatively straightforward. The onus of proof rests with the Claimant. Their right to advance the various charges against the Defendant and indeed the obligation of the Defendant to pay generally arise out of some form of contract. From the evidence presented by the Claimant, it appears that the Claimant’s total claim arises out of three separate contract arrangements.

One relates to the delivery of goods (oil) to the Defendant’s residence. The amount of the claim for the supply of oil is not disputed by the Defendant. From the transaction report (Exhibit 1), there appear to be several charges arising from the supply of oil which I find the Defendant is obligated to pay. I will refer to the overall calculation later in this decision. 16 . The second contract relates to a monthly service fee represented by the Claimant to have arisen as a result of a contract between them and the Defendant. The monthly fee charged and which forms part of this claim is $19.07 per month.

However, the fact that the Claimant has been charging this monthly fee as set forth on the transaction report does not in itself provide any basis for the terms of any actual contractual arrangement that may have been in place which obligates the Defendant to pay. The evidence of the Defendant was that he had taken over this home from his father several years prior. Further, the evidence of the Defendant was that he really did not know what this monthly charge had been for and did not believe he had ever entered into or assumed any type service contract relating to this charge.

The Court is mindful of the frankness of the Defendant in saying that in large measure this overall invoice remained unpaid simply because he fell into hard times and could not pay it. However, the Court finds that this acknowledgement is not an acceptance of these charges or an acknowledgement that there is any form of contract in place. The burden of proof remains with the Claimant to satisfy the Court of the existence of any such contract arrangement and its terms.

Having regard to the nature of the Claimant’s business together with the nature of this claim, one would think that if the Claimant is alleging a particular contract relationship then they would be in a position to provide the necessary evidence (including any contract document(s)) to satisfy this Court as to the basis for these continuing charges for a monthly service fee.

Finally, on this point, there was no evidence presented to the Court regarding specific services provided under any alleged service contract which would have assisted the Court in determining this issue and the issue of whether by the Defendant’s past actions he may have acknowledged and accepted these unwritten terms. Therefore, on this aspect of the Claimant’s claim, notably the $19.07 monthly charge, I find there to be no evidence of any contractual relationship with the Defendant confirming his obligation to pay these charges. 17 .

The third form of contract relating to this claim arises from an alleged “rental agreement”. I am satisfied that a form of contract had been entered into between the parties as evidenced by the documents tendered under Exhibit 2. Although the Defendant could not recall

with detail, it appears clear that either he or the previous owner of the home situate at [address removed] had a rental contract with the Claimant for a warm air-hot water heater. The documents executed in March 2013 confirm a new hot water heater had been installed and the Defendant had executed the documents which identified the anticipated monthly charge and terms and conditions of arrangement. However, with that said, upon review of the actual terms of the contract documents presented to the Court, the evidence of the Claimant showed a flaw in the monthly charge that was being applied.

In addition, again appreciating that the burden of proof rests with the Claimant, by Mr. Steele’s own acknowledgement it was near impossible to read the terms and conditions document presented to the Court. More specifically, as it relates to the charge associated with the “contract payout” as set forth on the transaction report (Exhibit 1), when asked, nowhere could the Claimant point to any term or condition that justified or explained the Claimant’s entitlement to levy this charge.

It may well be the case that there is some form of penalty cancellation based on certain terms and information about how it is to be calculated but I have not been provided any evidence supporting such. I say this even after the Court directly pointed out this concern and directed the Claimant to provide supporting evidence. 18 . As it relates to the third part of this claim (rental agreement), again having regard to the evidence presented it appears that the Claimant has been over-charging the Defendant on a monthly basis.

With reference to Exhibit 2 which the Claimant presented as the “contract document” and which evidences Mr. Young’s signature, it confirms the anticipated monthly charge to be $19.54 per month. The transaction report document (Exhibit 1) confirms that the monthly charge levied was $27.65. Neither indicates whether the amount includes HST. However, Exhibit 5, which is a copy of a past invoice, does assist in providing some guidance for determining this HST issue.

On that invoice, the monthly service fee is stated to be $16.58 plus $2.49 HST for a total of $19.07, which is the amount which appears on the transaction report. Therefore, accepting this as the normal method used by the Claimant to determine the charges that appear on the transaction report, I am satisfied that the aforesaid amount of $19.54 set out in the contract does not include HST. Adding the HST to this amount, I have determined that the correct monthly charge for the rental agreement and in accordance with the contract presented to me should have been $22.47 per month.

Based on the actual amount that was being charged this represents a monthly credit against the total claim of ($27.65 - $22.47) $5.18 per month. 19 . In conclusion, while the nature of these types of contracts with a company involved with supply of oil and related equipment are quite standard, so are the nature of the contract documents normally used to set forth the respective obligations.

For whatever reason, in this case the Claimant has fallen well short of providing sufficient evidence to this Court to support the existence of any contractual relationship with the Defendant so that the amounts claimed could be properly assessed against a clear contract relationship.

CALCULATION OF CLAIM Transaction Report (balance before cost and service charges)........................................................... $2814.34 Less: Contract payout amount (not proven) .................... $1029.43 Total charges for monthly Service Plan (not proven - 12 x $19.07).......................................... $228.84 Credit against rental agreement (Over-charge - 15 X $5.18).......................................... $77.70

Total Credit ............................................................................................................... $1335.97 Adjusted amount of Claim awarded....................................................................... $1478.37 Costs.............................................................................................................................. $99.70 Cost of service of claim ............................................................................................... $83.95 Total Award to Claimant....................................................................................... $1662.02 AWARD 20 .

The Court hereby accepts the Claim in part and hereby orders that the Defendant shall pay to the Claimant the amount of $1662.02. DATED at Sydney, Nova Scotia this 31 st day of May 2018. ______________________________ A. ROBERT SAMPSON, Q.C. Adjudicator