2015 NSSM 18, 2015 NSSM 18

Claim No: 424652 In the Small Claims Court of Nova Scotia Cite as: Stachowiak v. Abou-Khalil, 2015 NSSM 18 BETWEEN Michael Stachowiak Claimant c/o Jonathan Hooper Coady Filliter Medical Arts Bldg. 208-5880 Spring Garden Road Halifax, NS B3H 1Y1 -and- Name Elie Faouzi Abou-Khalil Defendant c/o Eugene Tan Walker, Dunlop 1477 South Park Street PO Box 36057 Halifax, NS B3J 3S9 Adjudicator: David TR Parker QC Heard: October 2, 2014 and October 8, 2014 Counsel: Jonathan Hooper represented the claimant Eugene Tan represented the defendant

ORDER 1 . This matter came before the Small Claims Court on October 7, 2014 and October 8, 2014. The Pleadings: a. The Claim: 2 . The claim was $8000.00. The claimant in his pleadings wanted the delivery of a Lincoln Town car signature addition and claimed that he bought the car with his own money and all expenses needed for the car to drive it as a limousine at Halifax airport. b. The Defence and Counterclaim: 3 . The defendant in his pleadings stated he was the registered owner of the Lincoln Town car. The claimant was employed by the defendant as a limousine driver pursuant to a contract of service.

The claimant was responsible for maintaining the Lincoln Town car and was also responsible for the use and maintenance of certain items of equipment owned by the defendant, including an electronic MacPass and a debit service transmitter. The claimant breached his contract for services with the defendant thereby causing the defendant lost revenue and sales. The claimant without color right wrongfully took the defendant’s MacPass and debit service transmitter further causing financial loss to the defendant.

The defendant denied the claimant is the owner of the Lincoln Town car and counterclaim for financial losses for the claimant’s breach of contract and wrongful detention of the defendant’s property. 4 . The defendant’s counsel advised the court that the amount of the counterclaim was approximately $5000 but would be quantified more exactly at the end of the evidence presented to the court. The Claimant, Michael Stachowiak’s Testimony: 5 . There was an oral agreement between the parties, the terms of that agreement were difficult to determine from the testimony of the claimant. The claimant in

summary fashion said he agreed to work under the airport limousine license held by the defendant and agreed to purchase a car with his own money from a seller in the United States of America. His evidence was that he would go down to the United States purchased a Lincoln automobile in the defendant’s name bring it back to Canada and work as a limousine driver, pay for everything and also pay the claimant $600.00 per month. The claimant then would keep all monies he obtained as a driver of that limousine. 6 . Claimant stated that he drove taxis for 4 years doing airport work only.

He tried to get a permit himself but he could not get one. On June 29, 2010 he said he talked to the defendant about driving taxis to the airport. He said I need to buy a car and I bought a car. He said he had to work under the defendant’s name but he paid for everything. He said he purchase a 2002 Lincoln Town car online, paid the deposit of $569.83 and purchase the car for $19,528.18. He then drove the car from Ohio to Halifax. He said the defendant registered the car at the registry of motor vehicles in Nova Scotia.

He said to drive to the airport the permit is in the defendant’s name and the agreement was he was to pay the defendant $600 per month. He said he was paid by the customers mostly in cash and the defendant gave him a visa machine and a MacPass for which he was responsible for paying. He said I paid for everything the defendant paid for nothing. He said I stopped driving the car in July 2013. The Claimant said he gave the machines back to the defendant through his Polish friend and the car currently is in his garage. He said the car currently has 234,480 km on the odometer and the car worth between $8000-$9000.

He provided the court with postings on Kijiji, one showing a 2007 Lincoln town car with 208,000 km for $8995.00 and a 2007 Lincoln Town Car with 285,000 km for $9700.00. He said it was normal for people to own permits and have vehicles in other people’s names. He said the defendant wants me to sell it to him for $4000.00. On cross examination he said the car is too old for airport runs today as a motor vehicle is to be only 5 years old. The claimant said he purchased the vehicle on behalf of the defendant and the defendant gave him his power of attorney to do so.

In cross examination he said he did sign the vehicle import form which listed the importer as the named defendant and he confirmed that the defendant is the registered owner of the vehicle. The claimant was shown a record of the MacPass transponder showing 202 transactions or 101 limousine fares between August 1, 2013

through to October 30, 2013 and the claimant’s response was it seemed like a lot but I do not know. He was also asked on cross examination if he paid the defendant any fee, that is, the $600 per month fee between August 1, 2013 and October 30, 2013 and the claimant said he paid no fees. The claimant did confirm that he was responsible for paying insurance. The Defendant Elie Faouzi Abou-Khabil . 7 . The defendant’s position was somewhat different. The defendant stated that the claimant came to him about working as a limousine driver as the defendant had been fired by the person he previously worked with or for.

The defendant stated that they met and they discussed 2 options: Option 1 : the defendant buy the car and pay the claimant $15.00 for each trip. Option 2 : the claimant gets the car and pays for the car. There would be no payment to the defendant for 8 months and the defendant pay for the motor vehicle tax. The claimant to take care of expenses and in 5 years the car becomes the defendant’s. 8 . The defendant said the claimant started working for him in 2010 and that they both worked on the airport license which the defendant paid. 9 .

The defendant said he paid for the out of province vehicle taxes on the Lincoln town car. 10 . The defendant said he gave the claimant the license and he gave him the business and the car was going to be his after 5 years and “if the claimant stops working the car is mine.” The defendant said that in 2010 this was the discussion he had with the claimant. 11 . The defendant said the claimant pays him $600.00 per month and the claimant keeps the rest of the money he received from customers. 12 .

The defendant says that 75% approximately come from credit cards mostly customers that are business people and the remaining 25% is cash. The credit card payments go to the company’s account and then the company pays the claimant. Sometimes this payment was in cash and sometimes it was in check form. 13 . The defendant said that the claimant would pay him the monthly $600.00 in cash and if he didn’t have the cash the defendant would pay himself out of the credit card charges. 14 . The defendant said the claimant did not pay him in September or October 2013. 15 .

He said in July the claimant told him he was sick and that he had cancer but he continued to work. 16 . The defendant said the claimant’s last day of work was in October 2013 and the claimant took the car and put it in his driveway. 17 . The defendant said that the claimant should have been paying insurance in October however he ended up paying it for the claimant in the amount of $290.26.

Facts and Analysis: 18 . The defendant and claimant entered into an agreement whereby the claimant would drive a limousine taxi service from and to the airport in Halifax Nova Scotia. 19 . The claimant was able to do this on an airport license agreement which was under the name of the defendant. The claimant was unable to obtain an airport license agreement to drive a taxi or a limousine from the airport authorities himself. 20 . The defendant did not have a car or purchase a car for the claimant to drive. 21 .

The claimant obtained a car in the United States which was imported into Canada by the claimant however the defendant was the named importer on this car. 22 . The car a Lincoln town car was registered in the name of the defendant and the defendant paid the taxes owing on the car which was registered in his name. 23 . The claimant paid for the car which was a 2007 Lincoln town car and as it was under 5 years old when the claimant started driving the car is a limousine service under the defendant’s name in 2010. 24 .

The motor vehicle insurance policy was in the name of the defendant however the payments under that policy were made by the claimant who was a named driver under the policy. 25 . Payments under the policy stopped in October 2013. 26 . The registration of the vehicle was in the name of the defendant. The defendant also paid for the taxes associated with registering the vehicle in Nova Scotia. The named driver on the insurance policy for the vehicle was the claimant. It was the claimant who purchased the vehicle with his own money.

The defendant has stated that he intended to have the claimant work as a limousine taxi driver from the Halifax airport for 5 years that is 2010 to 2015. However the defendant said that “ if the claimant stops working the car is mine. “ In the event the claimant stops working a few days after he started as a limousine driver under the defendant’s license then to accept the defendant’s version would fly in the face of reason. 27 . I can accept that the car at the time this case was heard would be on sale for approximately $8000.00. 28 .

I also accept the defendants claim for lost revenue while the claimant continue to work from June to October 2013 and that the defendant incurred expenses for insurance cost, cost of the credit machine cost of the credit machine and renewal of license which came to approximately $5500.00. 29 . Therefore the claimant can turn over the vehicle to the defendant in which case the defendant would pay the claimant $2500.00. In the event a formal order is required, the claimant can provide same for my review. In this case there will be no order as to costs. Dated at Halifax, Nova Scotia January 6, 2015 _______________

David T.R. Parker, QC Adjudicator Original Court File Copy Claimant Copy Defendant