MacDonald v. MacAulay, 2019 NSSM 9

SMall Claims COURT OF Nova Scotia Citation: MacDonald v. MacAulay , 2019 NSSM 9 Date: 20190320 Docket: SCCS 481714 Registry: Sydney Between: Thomas Edward MacDonald Claimant v. Margaret Rose MacAulay Defendant Adjudicator: Tuma T.W. Young Heard: January 30, 2019, in Sydney, Nova Scotia Appearances: For the Claimant, Self-represented For the Defendant, Self-represented By the Court: Background [ 1 ] The Claimant and the Defendant have been roommates for a significant number of years.

Both parties testified that this was the nature of the relationship and it was not an intimate or personal or otherwise a domestic partnership. There was no lease or roommate agreement as between the parties and it appears that any roommate agreement was a verbal arrangement between the parties. The residence where the parties lived was rented by the defendant from a local not-for-profit housing authority. [ 2 ] At some point in the fall of 2017, it appears that the roommate agreement had broken down.

The claimant testified that he had been previously charged with assaulting the defendant and there was a peace bond entered into. The claimant was unable to access, obtain, or remove his personal property from the house for a period of one year while the peace bond was in place. [ 3 ] The claimant claims against the defendant the return of the personal property or the amount of two thousand dollars ($2,000.00) for the value of the personal property.

In addition, the claimant also claims from the defendant half of everything in the house and a monetary claim of two thousand five hundred dollars ($2,500). [ 4 ] The defendant has filed a defence stating that she does not have any personal property belonging to the claimant. Facts [ 5 ] The claimant testified that the following items constituted the personal items that he wished to have given back to him: (

a) Pictures of a dog (

b) Television (

c) Suitcase with personal belongings (

d) Lights (

e) Bag with tent (

f) Electrolux vacuum cleaner (

g) Cups (

h) Barbeque (

i) Personal belongings

(

j) Ring with a initial on it (

k) Phone (

l) Drill in a case [ 6 ] The claimant tendered a receipt for the Electrolux Vacuum that shows purchase price of nine hundred twenty five dollars ($925.00). The date of purchase was March 05, 2009. The claimant was unable to provide any identifying features about the rest of the items. [ 7 ] The defendant testified that none of the claimant’s items is in her possession, or in the residence. The defendant testified that the claimant had already picked up his personal items and that this happened while she was in the hospital for an extended time.

The defendant further testified that the claimant had rendered the vacuum unworkable due to the vacuuming of drywall dust. The claimant did not challenge this testimony by the defendant even when given an opportunity to do so. [ 8 ] The claimant did not deny picking up the personal items but asserted that there was still some of his personal property in the house or in the possession of the defendant. Upon further questioning by myself, the claimant could not identify what personal property may still be in the residence. [ 9 ] I questioned the claimant about specific identification of the items claimed.

The claimant testified that the ring had an initial but no other identifying features such as the type of metal, size, or other unique features that can distinguish it from other rings. The claimant could not positively identify or provide me with any serial numbers or any unique characteristics about the personal property claimed, other than the vacuum. Claim for the Return of the Property [ 10 ] The difficulty I have with this claim is the lack of identification or specificity of the items claimed. There are no serial numbers provided (other than for the vacuum) for the television or for the drill.

There are no unique characteristics identified by the claimant for the cups, the lamp, the tent, or the ring. [ 11 ] There was no evidence provided as to what was in the bags, what some of the personal items were or the pictures of the dog during his testimony. I note that the defendant testified that the claimant had taken or had custody of the dog and the claimant did not challenge this. [ 12 ] There just is not enough specificity about the items claimed to ensure that a Sherriff can go and retrieve the items without guessing as to what is the subject of a recovery order.

The only item identified is the Electrolux vacuum and the testimony given is that this is no longer working. [ 13 ] Which brings us to the monetary claims of the claimant. Monetary Claim [ 14 ] The claimant makes two claims for monetary claims: the notice of claim states that the claimant is seeking two thousand dollars ($2,000.00) for the value of the personal belongings. In the list tendered as an exhibit, the claim is for two thousand, five hundred dollars ($2,500.00).

My questioning of the claimant of this $500 difference led the claimant to correct the claim to two thousand dollars ($2,000.00). [ 15 ] The only evidence of monetary value established was the Electrolux vacuum (purchase price in 2009 was $975) but the current value of it was not established. Given the fact that the vacuum is ten (10) years old and is no longer in a working condition, I find that the vacuum cleaner has no monetary value. [ 16 ] The claimant was unable to provide to me the value of the items in question or to establish the monetary value for the claim.

Claim for Half the Property in the Residence [ 17 ] The last item, I will now turn my attention to is the claim for half the property in the house. [ 18 ] This struck me as a bit unusual as you would normally see this type of claim advanced in a domestic partnership or matrimonial breakdown situation. This was a roommate relationship and both the claimant and the defendant confirmed this in their testimony. [ 19 ] In addition, there was no listing of what items were in question under this claim. The claim was a blanket claim for half the items in the residence.

There was no evidence about who purchased what, when was it purchased, for what purpose or the current listing or value of the items claimed by the defendant. Decision [ 20 ] Given the problems in ascertaining the identification and specificity of the personal items claimed, I am unable to order a return of the items to the claimant. [ 21 ] The claimant did not or was unable to establish the nominal value of the personal items and I am unable to award the claimant any monetary award in relation to his claim. [ 22 ] In addition, I cannot find a basis on which to award half the items in the residence as claimed.

There was no evidence given for establishing the foundation of this claim.

[ 23 ] I find for the defendant and the claim is dismissed. Tuma T.W. Young, Adjudicator