2015 NSSM 21, 2015 NSSM 21

SCT 436623 SMALL CLAIMS COURT OF NOVA SCOTIA Cite as: Ross v. Vintage Stove & Fireplace Ltd. , 2015 NSSM 21 BETWEEN Bruce Ross CLAIMANT -and- Vintage Stove & Fireplace Ltd. DEFENDANT SCT 437264 SMALL CLAIMS COURT OF NOVA SCOTIA BETWEEN Vintage Stove & Fireplace Ltd. CLAIMANT -and-

Marguerite Ross DEFENDANT Adjudicator: David TR Parker QC Heard: June 22, 2015 Decision: June 29, 2015 Counsel: Bruce Ross was self-represented and agent for Marguerite Ross Vincent Neary was agent for Vintage Stove & Fireplace Ltd. DECISION and ORDER 1 . The parties were asked if there were any preliminary matters they wish to bring to the court’s attention and if either party wish to change any of their pleadings. There being none the matter preceded accordingly. 2 . The initial claim issued by the court was Bruce Ross, claimant, against the defendant Vintage Stove & Fireplace Ltd., claim SCT 436623.

The subsequent claim was filed by Vintage Stove & Fireplace Ltd. against Marguerite Ross, claim SCT 437264. 3 . Both these matters involved a pellet stove in particular a Quatra Fire CB 1200 and serial # 07C2000636. Both of these claims, SCT 436623 and SCT 437264 were heard at the same time as provided under the Small Claims Court Act R.S., c. 430 s.25. 4 . s.25 Where an adjudicator is satisfied that there are two or more claims before the adjudicator which would be best dealt with together, the adjudicator may in his discretion hear the claims at the same time. R.S., c. 430, s. 25.” 5 .

In the first claim Bruce Ross claimed $2700.00 plus costs of the action and cited the reasons for the claim as breach of Section 26(3) d of the Consumer Protection Act on the sale of a pellet stove. That particular

section under the heading, “Implied conditions or warranties” reads as follows: 6 . 26 (3) notwithstanding any agreement to the contrary, the following conditions or warranties on the part of the seller are implied in every consumer sale: (

d) where there is a contract for the sale of goods by description, there is a condition that the goods shall correspond with the description; and if the sale be by sample as well as by description, it is not sufficient that the bulk of the goods corresponds with the sample if the goods do not also correspond with the description;

7 . The defendant, Vintage Stove & Fireplace Ltd. [“Vintage Stove”] counterclaimed for $2934.33 being the balance due on invoice #4753 plus service charges and/or a Possession Order for the Quatra Fire CB 1200 and serial # 07C2000636. 8 . In the second action Vintage Stove claimed for $2934.33 against Marguerite Ross, representing the balance due on the pellet stove. Vincent Neary, agent for Vinyage Stove, told the court that the reason for claiming against Mrs. Ross was that the stove was located in her home. Facts and Analysis : 9 .

The stove in this claim was invoiced to Bruce Ross and the total cost of the stove was $4701.00 plus HST. The total cost also included installation and materials for installation. The installation component was $1970.00 plus HST. 10 . The exhibits and the testimony confirm that the stove purchased was in fact a Quatra Fire CB 1200 and serial # 07C2000636. Bruce Ross provided specifications on the stove that he purchased which indicated that the Hopper capacity was 80 pounds of pellets. The defendant confirmed that the Hopper capacity in the stove that Bruce Ross purchased was 80 pounds of pellets. 11 .

Bruce Ross’ main complaint was that the Hopper could only hold 40 pounds of pellets. He provided the court with photographs showing a 40 pound bag of pellets being loaded into the Hopper. Other photographs showed the Hopper to be full to capacity. Bruce Ross said in his closing that he wanted to have the defendant Vintage Stove pay him back $2700.00 which he had already paid or remove everything. That is, remove the stove and the installation materials and restore the logs damaged in his house for the stove vents, at an approximate cost of $3000.00. The $3000.00 was an estimate provided by Mr.

Ross for restoring the logs to the way they were before the installation. 12 . The defendant, Vintage Stove provided evidence of Keith Hunter who took delivery of the stove and installed the stove at the residence of Marguerite Ross. His testimony was that this stove, Quatra Fire CB 1200 and serial # 07C2000636 was a stove that he was very familiar. He said that stove; a Quatra Fire CB 1200 does hold 80 pounds of pellets in its Hopper. Vintage Stove provided video exhibit showing the loading of two 40 pound bags of pellets into the Hopper in a typical Quatra Fire CB 1200 pellet stove. 13 .

Bruce Ross complained to the defendant of the problem he was experiencing and requested that the defendant Vintage Stove attend his mother’s residence to confirm and see that the stove would only hold 40 pounds of pellets in its Hopper. Mr. Hunter stated that Bruce Ross only wanted a letter from Vintage Stove faxed to him showing that the Hopper was an 80 pound capacity Hopper and other particulars on the stove, so that he could obtain a grant. Mr.

Hunter said he complied with this request and with respect to going to the residence they did not do so as Bruce Ross’s behavior when he was complaining to the company was worrisome. 14 . While Bruce Ross’ vehemence in itself was strongly persuasive that the Hopper would only contain 40 pounds of pellets whereas it should have contained or held 80 pounds of pellets. However the testimony and exhibits of Vintage Stove was more substantial and convincing.

That is the stove that was purchased by Bruce Ross was a Quatra Fire CB 1200 and serial number 07C2000636 which could hold according to its specifications 80 pounds of pellets. Bruce Ross has not satisfied this court on the civil standard required to prove his point. 15 . With respect to the second action, Marguerite Ross was never invoiced by Vintage Stove nor was she the purchaser of the stove. I understand the pellet stove is in the home owned by Marguerite Ross Therefore in the second action the claimant Vintage Stove will not succeed. 16 . The pellet stove is in the home of Marguerite Ross. I asked Mr.

Hunter if the stove could be removed from the home and he confirmed it is not a fixture in that home. It is a chattel that can be removed. 17 . The defendant Vintage Stove requested payment of $2934.33 representing the outstanding amount in their invoice to the claimant Bruce Ross or in the alternative they wanted the ability to take possession of the stove. In the second action against Marguerite Ross, the Claimant in that case Vintage Stove was seeking a judgment against Marguerite Ross as the stove was in her residence and they were ultimately seeking a judgment in order to put the charge on the residence.

With respect to the action against Mrs. Ross I have determined that Vintage Stove will not succeed. I would point out in any event the stove is a chattel and not a fixture

in fact can be removed from the property. 18 . The jurisdictional authority of the Small Claims Court is captured in

section 9 of the Small Claims Court Act. In terms of what the claimant can seek

section 9 (

a) and 9 (

c) are applicable in this case and they are as follows: 9 A person may make a claim under this Act (

a) seeking a monetary award in respect of a matter or thing arising under a contract or a tort where the claim does not exceed twenty-five thousand dollars inclusive of any claim for general damages but exclusive of interest; (

c) requesting the delivery to the person of specific personal property where the personal property does not have a value in excess of twenty-five thousand dollars; 19 . I shall award Vintage Stove the amount owed to it which is $2934.33 or in the alternative the defendant by way of Counterclaim, Bruce Ross can deliver the pellet stove to the claimant by way of Counterclaim, Vintage Stove & Fireplace Ltd., however Bruce Ross will still be responsible for the material costs related to the installation which will remain in the property. The evidence of Mr.

Harper of Village Stove is that another stove could be hooked up to the installation already in place at the home. Those costs of materials and installation which would remain on-site if the stove were moved would be venting with outside air $966.00, floor pad $499.00 and miscellaneous supplies $55.00 which comes to $1520.00 plus HST of $228.00 for total of $1740.00 20 . . I shall allow costs to the Vintage Stove in the first action as they were successful however I will not allow costs in the second action against Marguerite Ross.

IT IS THEREFORE ORDERTHAT : 1 In Claim # SCT 436623, Bruce Ross, the claimant and the defendant by way of counterclaim within thirty days of the date of this Order, deliver up to the defendant and claimant by way of counterclaim, Vintage Stove & Fireplace Ltd., the Quatra Fire CB 1200 and serial # 07C200063.

In the event Bruce Ross delivers up to the defendant the said stove within that thirty day period, Bruce Ross shall also pay Vintage Stove & Fireplace Ltd., the installation costs of $1748.00 in the event Bruce Ross does not cause the delivery of the pellet stove to Vintage Stove & Fireplace Ltd. within thirty days of the date of this Order then in such an event Bruce Ross, claimant and defendant by way of counterclaim shall pay the defendant and claimant by way of counterclaim, Vintage Stove & Fireplace Ltd., the sum of $2934.33.In either case Vintage Stove & Fireplace Ltd. shall also be awarded costs in the first action IT IS FURTHER ORDERED THAT the claim SCT 437264 against Marguerite Ross is dismissed with no order as to costs.

IT IS FURTHER ORDERED That the claimant and defendant by way of counterclaim, Bruce Ross shall pay the following costs to the defendant and claimant by way of counterclaim Vintage Stove & Fireplace Ltd. the following costs: $112.70 Service costs $ 64.10 Court costs $176.80 Dated at Truro this 29 th day of June AD 2015