5020941 Ontario Inc. Claimant v. Croway Inc. v. Walmac Transportation Ltd., 2023 NSSM 83

Small Claims Court OF NOVA SCOTIA 5020941 Ontario Inc. v. Croway Inc. et al ., 2023 NSSM 83 Date: 202310 17 Docket: SCCH 523560 Registry: Halifax Between: 5020941 Ontario Inc. Claimant v. Croway Inc. and Walmac Transportation Ltd. Defendants Adjudicator: Eric K. Slone Heard: Via zoom on September 28, 2023, in Halifax, Nova Scotia Appearances: Ben Shehna, owner, for the Claimant Shanieka Wood, Counsel for the Defendant Croway Inc. No one for the Defendant Walmac Transporation Ltd.

By the Court: [ 1 ] The Claimant is a multi-faceted business based in Toronto, and was represented at the hearing by its owner, Ben Shenha. For purposes of the narrative, I will refer to Mr. Shenha and the Claimant interchangeably. [ 2 ] In the case before the court, the Claimant bought a large piece of equipment – a 24,000 kg. used mobile concrete mixer – which was to be shipped to Canada from Turkey by sea, landing at the port of Halifax after a torturous journey through multiple international ports of call. The Claimant needed it transported by road to Toronto.

After speaking to several other potential movers, none of whom had the ability or interest to perform the job, the Claimant contacted the Defendant who agreed to perform the job at a cost of $7,500.00. The contract was verbal, with little detail. [ 3 ] Mr. Shenha did not attend in Halifax until later when problems arose, and so he relied on a number of agents to communicate with the Defendant. As such a lot of his evidence was second or third hand and is less reliable. [ 4 ] In the end, the Defendant was unable to transport the equipment, for reasons which I will mention later.

It ended up in the Defendant’s own yard in Dartmouth, only a few kilometres from where it was picked up at the port. In order to secure the release of the mixer to enable it to be transported by a third party, the Claimant had to pay some charges imposed by the Defendant, which it did under protest. [ 5 ] The Claimant contends that the Defendant failed in its performance of the contract in several respects. He breaks it down as follows:

1. $2,050.00 for unnecessarily replacing two tires and repairing a broken stud. 2. $3,100.00 for moving charges locally. 3. $1,350.00 for storage fees. 4. $2,850.00 for travel costs and compensation for his time. 5. $7,550.00 to repair damage that the Claimant contends that the Defendant did to the mixer in the course of loading and transporting it. [ 6 ] These items total $16,900.00, which is the amount of the claim. [ 7 ] The Defendant denies any liability to the Claimant, and in fact counterclaims for $13,225.00 for damages done to metal barrier posts at the Defendant’s property.

That damage was done when the Claimant’s agent hired to transport the mixer failed to secure it properly causing it to slip off the truck and crash into these posts. [ 8 ] It should be mentioned that the Defendant Walmac Transportation Ltd. is also named, but it did not respond to the claim. Still, the Claimant did not present any evidence that might have implicated Walmac and as such I make no order against it. When I refer to the Defendant, unless otherwise indicated I am referring only to Croway.

The evidence [ 9 ] There is no question that the transportation of this mixer was fraught with many problems. [ 10 ] The evidence before me was often second or third hand. The most reliable account of what took place, at least in the early stages, was provided by one of Croway’s witnesses, its owner Neven Goricanec (“Neven”). He described being called around the end of March 2023 by a sometime client of his named Mohammed, who was acting as an agent for the Claimant. He was looking for someone to transport this mixer from the port at Halifax to Toronto.

He described the machine and said it needed unspecified repairs before it could be moved. A week later Neven received a call advising that the item was repaired and ready to be picked up. [ 11 ] Neven testified that he was told that his was the fourth company to try and pick up the mixer, a fact that the Claimant neglected to mention. This is some measure of the difficulty of transporting this item. [ 12 ] Croway arranged for one of its regular brokers, a New Brunwicker named Phillip, to pick up the mixer at the port.

According to what Neven was told by Phillip, when he finally got to access the mixer at the port after waiting in line for a whole day, he found that the legs were broken which created a problem hitching it to the truck. Normally, it could have been hooked and unhooked easily, but with the broken legs it needed to be lifted up, and once attached it could not be detached without special equipment. There were also loose parts of the body that had to be secured.

It was also noticed that at least two of the tires were in such bad condition that they could not withstand a long highway drive. [ 13 ] Lastly, the mixer dimensions were larger than expected and could not be transported without special permits from Transport Canada. [ 14 ] Phillip towed the mixer to Miller Tire in Dartmouth, to get their assessment of the tires. They recommended that two tires be replaced. Neven was in contact with Mr. Shenha as this was unfolding. There is a conflict in the evidence about whether or not the purchase was authorized. Mr.

Shenha was asked but declined to give a credit card authorization to Miller Tire. Clearly, he was not enthusiastic about paying for new tires. Mr. Shenha either believed he had authority or acted anyway with the understanding that he needed to get the item roadworthy for the journey ahead. [ 15 ] The mixer was then taken to the Defendant’s yard in Dartmouth. A trip to Ontario was out of the question until special permits were obtained, which was anticipated to take up to ten days. Also, Mr.

Shenha was still protesting the purchase of the tires and was trying to locate some used tires that could be installed at lesser expense. [ 16 ] Mr. Shenha was also protesting the extra costs that were being quoted. [ 17 ] Finally, after almost three weeks, Mr. Shenha refused to continue with the Defendant and hired another company, Battist Gerald Trucking Ltd. (“Battist”) to tow the mixer from Dartmouth to Ontario. When that company came to hitch it onto their truck, they lost control and the mixer fell backwards, smashing into the steel barrier posts that protect the Defendant’s building.

According to the Defendant, backed by a quote and photos of the damage, the cost of this repair will be $13,225.00. [ 18 ] The Defendant insists that the Claimant is responsible for this damage, as Battist was the Claimant’s agent. What was the contract, if any? [ 19 ] I only ask this question because there is some ambiguity in the Claimant’s position as contained in his documents.

[20] Clearly, there was some loose agreement based on the verbal exchanges between the parties. There is nothing in writing,although the text messages placed in evidence confirm that the Claimant hired the Defendant to transport the mixer at a quoted cost of$7,500.00. All other terms have to be implied. [21] I find that it was an implied term that the mixer was in good enough condition that it could simply be hitched to a truck andtowed to Toronto.

Once it became clear that the legs were broken, the tires were damaged and the mixer was oversized, the Defendantwas no longer bound to its initial price, but (assuming that the Claimant still wanted to go ahead) would have been entitled to suchadditional expenses as were necessary to carry out the job. [22] It is clear to me that Mr.

Shenha did not fully appreciate how damaged this mixer was, either from age, heavy use or from thesea voyage. [23] In the end the contract could not be performed by the Defendant, through no fault of its own. [24] Some of the charges issued to the Claimant by the Defendant were simply a recoupment of expenses it incurred. The $2,050.00for replacing the two tires and repairing the broken stud were expenses incurred in good faith on the Claimant’s behalf.

The $3,100.00(actually $3,195.00) for local moving charges was simply a recoupment of expenses incurred by the Defendant, which had to pay Phillipfor his time and services from the time he picked up the mixer to when he was able to detach once it became clear that someone elsewould be transporting it. [25] There is no principled basis to shield the Claimant from responsibility for these expenses. [26] The circumstances bear a striking resemblance to what occurred in Summers Transport Ltd. v.

Smith (G.M.) Ltd., (NL SC), where the court held that the impossibility of fulfilling the contract was a frustration of the contract, entitling theDefendant in that case to expenses incurred up to that point. [27] I take a different view of the $1,350.00 for storage fees. The Defendant did not provide any evidence that it cost them anythingto have the mixer parked in their yard. I am not prepared to allow this as a charge and a refund of this amount will be ordered.

Other claims by Claimant [28] The Claimant has asked for $2,850.00 for travel costs and compensation for his time, and $7,550.00 to repair damage that theClaimant contends that the Defendant did to the mixer in the course of loading and transporting it. [29] In my opinion, Mr. Shenha’s trip to Halifax was prudent, but not because of anything that the Defendant did improperly. Theproject of getting the mixer fixed up and ready for transport was not going well being handled on a remote basis. [30] The claim for damage to the mixer also fails for several reasons.

There is no evidence that the Defendant caused this damage.The Claimant provided a photo purporting to show the mixer in good condition, as compared to a photo showing the damage. Theproblem is that this proves nothing. The “before” photo is of unknown origin. There is no evidence of who took the photo, or when. Itcould have been taken years ago.

It does not on its face even purport to be a photo of the mixer just before it was loaded in Turkey. [31] Even if the mixer had been in good condition when loaded, it went through a lengthy sea voyage where it could have beensubjected to any amount of tossing and shaking, which could have caused components to come loose. [32] There was no evidence that the Defendant or its agent, Phillip, did anything to cause damage.

Such evidence as there is, whichis admittedly hearsay, is that the damage was present when Phillip came to load the mixer to his truck. [33] I also want to comment on the Claimant’s argument that the Defendant should have inspected the trailer before taking it fromthe port, and noting the problems, should have just left it there. I prefer the evidence from the Defendant’s witnesses to the effect that theport authorities were insisting that the mixer be taken away immediately, and that there was no real occasion to inspect it until it was offport property.

By then, the Defendant was stuck trying to get the mixer ready for transport, including replacing tires etc. The counterclaim [34] The counterclaim seeks damages against the Claimant for the damage done by Battist. [35] I accept that the damage was done, and that it was done by an agent of the Claimant. I find the Claimant vicariouslyresponsible. [36] I am not convinced, however, that the damages should be $13,225.00. This number is the amount of a single estimate. I wouldhave liked to see at least one competing estimate. [37] Also, there was no evidence concerning the age and useful life of the posts.

This would have allowed the court to assess a“betterment” component. The Defendant should not end up in a better position, at the expense of the Claimant. [38] In Byrne Architects Inc. v. A.J. Hustins Enterprises Ltd. 2003 CarswellNS 30, 2003 NSCA 21, 23 C.L.R. (3d) 217, the NovaScotia Court of Appeal described betterment thus: 98 ...

The authors of Damages for Breach of Contract, supra describe the situation at 2 3(c)(i): The issue of betterment arises in situations where the court adopts the "cost of performance" test and awards the cost of carrying out therepairs or, in the extreme, awards an amount sufficient to rebuild a defective structure.

As a result of the repair of (sic) replacement of the damaged product or building, the plaintiff will receive a new product or building which will have a greater value than that which existed prior to the damage being sustained. The court, therefore, must decide whether to factor the "betterment" into the calculation of damages and reduce the damage award accordingly. ... In the example provided earlier, it can readily be seen that unless betterment is taken into account, the plaintiff will end up with a new roof or rotor, all at the Defendants' expense.

This would conflict with the basic principle of contract and tort law that the plaintiff is entitled to the recovery only of his or her losses. [ 39 ] Under the circumstances, I am prepared to allow the Defendant one-third of what is claimed in the counterclaim, which I round off at $4,400.00.

Summary and Order [ 40 ] In the result, the Claimant is entitled to a refund of $1,350.00, but is liable on the counterclaim in the amount of $4,400.00. These amounts will be offset, with the result that the Claimant shall pay to the Defendant the sum of $3,050.00. [ 41 ] In light of mixed success, there will be no order for costs. Eric K. Slone, Small Claims Court Adjudicator