Dorey v. Rose, 2020 NSSM 14

SMALL CLAIMS COURT OF NOVA SCOTIA Citation: Dorey v. Rose , 2020 NSSM 14 Date: 2020-01-12 Docket: SCCH 493851 Registry: Halifax Between: Kevin Brian Dorey Claimant - and - Sarah Ann Rose Defendant Decision and Order Adjudicator : Eric K. Slone Heard : In Halifax, Nova Scotia on January 7, 2020 Appearances : For the Claimant, self-represented For the Defendant, self-represented BY THE COURT : [ 1 ] The Claimant resides in the Hammonds Plains area of Halifax.

The Defendant currently resides in Fredericton, New Brunswick. [ 2 ] For several years ending in late 2017, the parties were common law spouses living in a townhouse condominium on the Glen Arbour golf development owned by the Claimant. They each have children of varying ages from previous relationships, most (but not all) of whom resided in the common household for a period of time. The relationship ended badly on Boxing Day of 2017 when an incident occurred which the Claimant characterized as an assault on him by the Defendant.

The Defendant did not dispute the assault, though she alluded to the situation as being complicated. [ 3 ] In any event, what is not disputed is that she was arrested, but released into the custody of her friend Roberta Labrador, with whom she stayed for a day or two. Thereafter she was accepted into a woman’s and children’s shelter in the Kentville area. Legal

proceedings were then pursued in the Family Division of the Supreme Court in Halifax, which resulted in an order that gave the Defendant exclusive possession of the Claimant’s condominium, where her children would be able to complete their school year in the area schools they had been attending. The Claimant was ordered to surrender such possession on March 1, 2018, which necessitated him and his adult daughter finding other accommodations.

The Defendant was granted possession until June 30, 2018 when the Claimant would be able to move back in. [ 4 ] The claim before this court concerns many of the contents of the home that the Claimant contends were missing when he retook possession of the home at the end of June 2018. He supplied the court with a lengthy list of items and associated values which he appears to have meticulously researched online. He also claims that the home was damaged in several respects.

The total of his claim is $24,333.00, being very close to the upper limit of this court’s monetary jurisdiction. [ 5 ] Essentially, he says that the Defendant cleaned him out of most of his worldly possessions, or alternatively (perhaps) that she allowed the home to be looted during the time she had possession.

In either event, assuming the Claimant is correct in his assertion that the property went missing, the Defendant would be legally responsible for what the law calls the tort of “conversion.” [ 6 ] The Defendant did not file a written defence, and as such she placed herself in jeopardy of having the claim go against her by default.

Luckily for her, my review of the Claimant’s Quick Judgment application in advance convinced me that it was too complex and therefore not a proper case for a Quick Judgment and I allowed it to come up for trial. [ 7 ] The Defendant travelled from New Brunswick and was present in court on the trial date of January 7, 2020. When asked by the court why she had not defended, despite bold cautions on the documents that she ought to do so, she explained with something of a world-weary air that she did not look closely at the document that was served upon her, but just tucked it away.

When asked the nature of her defence, she stated that she did not take the Claimant’s possessions, and that they were not, in fact, in the home when she assumed possession on March 1, 2018. [ 8 ] It remains the practice of this court to allow parties to present their defences without having filed a formal defence, unless there is clear prejudice to the Claimant. In those cases where the Claimant appears to be prejudiced, the usual remedy is to adjourn the case to another date.

There was nothing here that suggested that the Claimant was prejudiced by not knowing in advance something about the nature of the defence. [ 9 ] On that basis, the case was allowed to proceed and evidence from both parties was heard. The court also heard testimony from one outside witness, the Defendant’s friend, Roberta Labrador.

Discussion of evidence [ 10 ] The evidence of the Claimant and the Defendant could not have been more diametrically opposed. [ 11 ] The Claimant produced some photos of items, taken in the home, as well as supporting values for the replacement of many of the items from companies such as Amazon. He testified (convincingly) that these items all disappeared during the Defendant’s time of exclusive possession.

However, none of this documentary evidence established conclusively when the items were last in the home, or even that the items were missing. [ 12 ] The Defendant also testified (convincingly) that when she took possession of the home on March 1, 2018, it had been stripped almost bare without most of the things she would need for the basic necessities of life, such as bedding, cooking utensils and furniture. She testified that she reported this to her lawyer, who advised her to “let it go” and find a way to make do.

Of course, assuming she is telling the truth, at the time the Defendant could not have known that the Claimant would be blaming her for removing all these items. Her complaint would have been that the home was not properly equipped for her to live. Credibility

[13] The Claimant and Defendant cannot both be telling the truth. There are no obvious shades of grey. One of them is telling thetruth, and the other is perpetrating an outright and somewhat outrageous lie. One of them knows what happened to all of the stuff. [14] With such a clear credibility issue involving “interested” witnesses, I have to consider not only whether I believe one of theparties is being truthful, but also the inherent probabilities of the situation. The test has been stated in many ways, but none better than byO'Halloran J.A., of the British Columbia Court of Appeal in the case of Faryna v.

Chorny (BC CA), [1952] 2 DLR 354at p.357: The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether thepersonal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examinationof its consistency with the probabilities that surround the currently existing conditions.

In short, the real test of the truth of the story of awitness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person wouldreadily recognize as reasonable in that place and in those conditions. Only thus can a Court satisfactorily appraise the testimony of quick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience incombining skilful exaggeration with partial suppression of the truth.

Again a witness may testify what he sincerely believes to be true,but he may be quite honestly mistaken. For a trial Judge to say "I believe him because I judge him to be telling the truth", is to come to aconclusion on consideration of only half the problem. In truth it may easily be self-direction of a dangerous kind. The trial Judge ought to go further and say that evidence of the witness he believes is in accordance with the preponderance ofprobabilities in the case and, if his view is to command confidence, also state his reasons for that conclusion.

The law does not clothe thetrial Judge with a divine insight into the hearts and minds of the witnesses. [15] Applying this test, I cannot say that one scenario is inherently more probable than the other. It is hard to see how either of theparties here would have a more obvious motive to do what the other is effectively accusing them of doing. What is clear is that there is,or was, a lot of bad blood between these parties. That animosity is clearly behind what actually happened, in some form or another. [16] In such cases, one hopes for corroboration.

This is where the evidence of Roberta Labrador takes on significance. She testifiedthat she accompanied the Defendant on March 1, 2018 when she took over the home. Ms. Labrador’s evidence was that they walked inand found the place almost empty. She said “there was almost nothing in the house - no toiletries or towels - nothing for us to take careof the children. There was rotten food in the fridge and one old couch saturated with dog pee. All of the TV’s and games were gone.” [17] Ms.

Labrador testified that they spent time cleaning the place up, and a neighbour came by with some food so the family couldeat that night. She says that when she visited the Defendant later in the month, she had acquired some basic furniture. She testified thatthe lengthy list of items claimed by the Claimant to be missing, simply were not there on March 1, 2018. [18] Ms. Labrador may not be entirely independent, but I find it hard to believe that she would have allowed herself to be enlisted asan accomplice in the Defendant’s false story, if it is false.

She has no obvious reason to damage the Claimant, for whom she onceworked (which is how she knew the Defendant.) Her evidence tips the scale, if only slightly. [19] In the final analysis, he who asserts has the onus of proof. [20] I make no specific finding that one version of events occurred and that the other did not. I honestly do not know what happened.All that I can say is that the Claimant has not succeeded in satisfying his onus to prove his case on a balance of probabilities, and for thatreason the claim must fail. Order [21] In the result, the claim is dismissed.

Eric K. Slone, Adjudicator