DONALD GALLANT ENTERPRISES Claimant - v. -, 2011 NSSM 9

Claim No: 338055 IN THE SMALL CLAIMS COURT OF NOVA SCOTIA Cite as: Donald Gallant Enterprises v. Mont, 2011 NSSM 9 BETWEEN: DONALD GALLANT ENTERPRISES Claimant - and - WILLIAM MONT Defendant REASONS FOR DECISION BEFORE Eric K. Slone, Adjudicator Hearing held at Dartmouth, Nova Scotia on November 30, 2010 and January 11, 2011 Decision rendered on January 13, 2011 APPEARANCES

For the Claimant Donald Gallant, owner For the Defendants self-represented BY THE COURT: 1 Donald Gallant and William (Bill) Mont have been friends and business associates for many years. Unfortunately, differences have arisen which give rise to this claim and counterclaim. 2 Mr. Mont (hereafter “Mont”) is well known locally as an entrepreneur and promoter of flea markets. Mr.

Gallant (hereafter “Gallant”) is an entrepreneur who has been renting trailers and other facilities for Mont to store his large cache of merchandise. 3 On the evidence, the arrangements have always been done on a handshake and with a minimum of paper. Many transactions have been done in cash. 4 The facts relevant to this claim concern several trailers which Mont rented from Gallant six or seven years ago.

These are mostly 48-foot trailers which, in theory, could be hauled behind a tractor-trailer rig, but they have been parked throughout all this time at a yard which Gallant owns. 5 Until about late 2009 or early 2010, Gallant had an employee named Warren Byrington who was in charge of the yard and who collected the rents. Mont’s daughter Janice worked in the business with him and was most often the one who looked after making the payments. Mr.

Byrington died in about early 2010, leaving behind very sketchy records. 6 According to Gallant, the deal was $250 per month per trailer, which he says was a special rate for Mont because of their friendship. In fact, he testified, there were four large trailers, two smaller trailers, and a shed, which altogether was treated as the equivalent of six large trailers. This adds up to $1,500.00 per month. 7 There is no dispute that Mont has not paid anything for these trailers since the beginning of 2010.

The claim filed by Gallant also includes claims that there were arrears of some $11,200, plus HST, dating back to 2009 and January 2010, which he bases on some “scribblers” left behind by Byrington. These scribblers were not placed in evidence, and Mr. Gallant conceded that, given their state, they probably would not stand up in court. Mont disputes that there were arrears for 2009. 8 In response to the Claim, Mont has essentially counterclaimed on two bases: a. He contends that he has been overcharged for six trailers, when in fact (he says) there were only five; b.

He blames Gallant for the loss of value of some 100 disassembled garden carts which, he says, had to be sold as scrap because all of the bearings which made the carts functional went missing while in Gallant’s shed. 9 These counterclaims, if accepted, would offset in whole or in part the claim for arrears of rent. 10 Before addressing the claim and counterclaim, it should be mentioned that the parties’ problems extend beyond the matters addressed here. Mont’s goods are still in Gallant’s trailers. Gallant either wants rent, or for the goods to be removed so he can rent the

trailers to someone else. Mont claims that he cannot move the goods elsewhere because he would need to have the trailers hauled to a new location, which Gallant claims is not possible because the trailers are not roadworthy. Mont also fears that some of his goods have deteriorated because Gallant’s trailers have not adequately protected them from the elements. 11 Because the real problems go well beyond the four corners of this claim, I had encouraged the parties after the first day of hearing on November 30, 2010 to try to meet and work out a comprehensive settlement.

Unfortunately, they were not able to do so, and the trial was continued on January 11, 2011. While I must do what the evidence compels me to do, I still encourage the parties to try to work something out, if for no other reason than to avoid further litigation which neither party wants or needs. 12 The evidence at the trial consisted of the testimony of Gallant and Mont, and neither of them was very strong on details.

The one document filed was an invoice that Gallant sent Mont on September 24, 2010, which formed the basis of the claim that he filed soon thereafter. 13 The claim essentially consists of: Rent for February through June of 2010, at the rate of $1,500 plus 13% HST $8,475.00 Rent for July and August of 2010, at the rate of $1,500 plus 15% HST $3,450.00 Balance from January 2010 and 2009, of $11,200.00, plus 13% HST $12,656.00 $24,581.00 14 I should add that, on the evidence, it is unclear whether there had been a practice to charge HST on the rentals, given that payments were most often in cash.

However, once the matter was reduced to an invoice and it appearing that the Claimant company has an HST number, it would be proper to allow HST on any amounts that I find to be owing. 15 The evidence of what may be owing for 2009 is virtually non-existent and I am unwilling to base a judgment on the scant evidence. There is no real dispute that Mont has not paid anything for 2010. However, the claim only seeks payment up to the end of August 2010, and I am not prepared to amend the claim to add rents that may be owing thereafter.

Accordingly, I would restrict the court’s order to eight months of rent plus the appropriate amount of HST. 16 I am not willing to accept Mont’s evidence that he was overcharged for six trailers. Gallant appeared to have a much clearer picture of what trailers and shed space Mont is using, and on that point I prefer Gallant’s evidence.

This disposes of any argument that the arrears should be based on something other than $1,500.00 per month, as well as the counterclaim item for overcharging. 17 I am also unwilling to give any consideration to the claim by Mont that Gallant should be responsible for any possible deterioration of goods in the trailers. First of all, there is no real evidence that this has occurred as it appears that Mont has not been into any of the trailers for some time. Furthermore, I have no evidence which would suggest that Gallant warranted any particular conditions for these trailers.

They are not heated nor air-conditioned, nor humidity-controlled.

18 The other counterclaim item concerns the garden carts. Mont testified that he had bought 100 of these items, disassembled, from the estate of the late Don Keddy. These were apparently made in China and would fetch $100 each at the retail level. The crates full of these cart parts were stored in the shed in Gallant’s yard. At one point Mont and Gallant agreed that Gallant could sell these carts at auction, to help to recover some of what Mont owed Gallant. When the crates were examined at the auction, it was revealed that there were no bearings for the wheels and, as such, the carts were basically useless.

They were sold for $200 as scrap. 19 Mont claims that the wheel bearings were lost or stolen while the crates were under Gallant’s care and custody, and that he should make good the loss. 20 I am unable to accept this claim. The evidence is extremely vague. There is no clear evidence that the bearings were there when the crates went into the shed, nor what happened to them. It is equally very unclear as to whether there was any expectation that Gallant would provide security over items stored in this shed. There is no evidence of where or when these bearings went missing.

In short, the claim fails for a lack of any evidence upon which I would feel comfortable holding Gallant responsible. 21 In the end, I allow the claim for eight months of rental to the end of August 2010, at the rate of $1,500.00 per month. I allow the claim of HST at the rate of 13% for six months, and at 15% for the months of July and August after the rate was increased by the Government of Nova Scotia. I allow nothing on the counterclaim.

The Claimant is entitled to the cost of filing this claim in the amount of $179.35. 22 To summarize, the Claimant is entitled to recover: Rent for January through June of 2010, at the rate of $1,500 $9,000.00 13% HST on $9,000.00 $1,170.00 Rent for July and August of 2010, at the rate of $1,500 $3,000.00 15% HST on $3,000.00 $450.00 Costs $179.35 TOTAL $13,799.35 23 There will be judgment for the Claimant in the amount of $13,799.35. Eric K. Slone, Adjudicator