CHRISTOPHER BOYD AIMER ROOFING Claimant – v. –, 2017 NSSM 64

IN THE SMALL CLAIMS COURT OF NOVA SCOTIA Cite as: Christopher Boyd Aimer Roofing v. Churchill, 2017 NSSM 64 Claim: SCY No. 460946 Registry: Yarmouth Between: CHRISTOPHER BOYD AIMER ROOFING Claimant – and – STAN CHURCHILL and ALL-OUT-PROPERTY-SERVICES Defendant Adjudicator: Andrew S. Nickerson, QC Heard: May 4, 2017 Decision: May 12, 2017 Appearances: the Claimant, self-represented the Defendant, self-represented DECISION EVIDENCE [ 1 ] Christopher Boyd lives in Canning, Nova Scotia and is the owner of Aimer Roofing. He states that in late March 2016 he was called by the Defendant, Mr.

Stan Churchill and asked for a quote with respect to a roofing job at the Yarmouth Mall at Starrs Road, Yarmouth Nova Scotia. He says that based on the description he indicated that his best guess was something over $1000. On March 29, 2016 Mr. Churchill sent a short letter [Exhibit 1] stating that his business was authorized to “check out” a leak at the Source in the Yarmouth Mall, Starrs Road Yarmouth, on behalf of RCS construction [ 2 ] Mr. Boyd says that upon attending the site he realized that the work would involve more than his initial indication.

He refers the court to his telephone records [Exhibit 2] indicating that he telephoned Mr. Churchill on March 31 at 7:56 and again on April 1 at 11:16 and 11:32. He says that in these telephone calls he advised Mr. Churchill of the increased costs. He says that he was repeatedly told by Mr. Churchill to “go ahead” and that “they want it fixed”. Mr. Boyd understood that it was a company called RCS based in Halifax and the store known as “the Source” which was located in the mall which constituted the “they” referred to. [ 3 ] Mr. Boyd testified that it was clear between himself and Mr. Churchill that Mr.

Churchill would be paying his bill and that he was working for Mr. Churchill’s business. It was Mr. Churchill’s job and he was a subcontractor. He understood his invoice was to be sent to Mr. Churchill. He understood that Mr. Churchill would pass this on to RCS adding whatever markup, if any, that he chose.

[4] Mr. Churchill stated that he lives in Sandford Yarmouth County Nova Scotia and is the manager of the Defendant All-Out-Property-Services and he had the authority to appear and speak for them. He stated that he had done work for RCS in the past. He wascalled by Mr. Stan North of that company and says he was told that Mr. Churchill was being given a work order to assess the situationand the cost was not to exceed $500. [5] Mr. Churchill stressed that the letter to the Claimant was simply to “check out” the roofing problem.

He complained that noquotation was provided by the Claimant and that the Claimant simply went ahead and did the work without authority. [6] Mr. Churchill acknowledged that he did have telephone conferences on March 29 and April 1, 2016 with the Claimant but hedenied that he told the Claimant to proceed with the work. Under cross-examination Mr. Churchill said that he did not “recollect” sayingthat Mr. Boyd should proceed. He did admit that Mr. Boyd inquired about the probability of payment and that he did tell Mr. Boyd“RCS pays their bills”. [7] Mr.

Churchill produced an email between himself and RCS [Exhibit 5] asking for a quote. Also produced was a work orderissued by the Source to RCS having a maximum of $500 authorized without further prior approval [contained in Exhibit 6]. Mr.Churchill acknowledged in cross-examination that neither he nor the Claimant had seen this documentation prior to preparation for thistrial. [8] Mr. Churchill also produced emails dated May 18 and June 1, 2016 [Exhibit 4] where the Defendant attempted to persuade RCSto pay the Claimant’s invoice.

RCS and the Source declined because they had not received a quote and had not issued a purchase order.In this correspondence All Out referred to Mr. Boyd as “our subcontractor”. [9] These parties acknowledged that they knew each other and had done business together in the past without difficulty. [10] The parties agreed that the value of the initial invoice which is dated April 10, 2016 and bears the invoice number 008 is theamount of $3,471.13. Mr. Churchill took no issue with this amount as being an appropriate value for the work performed.

ISSUE [11] What was the contract between the parties and was the Claimant authorized by the Defendant to proceed with the work? [12] If the Defendant is liable what interest is the Claimant entitled to? ANALYSIS AND DECISION [13] I am obliged to make a credibility finding in this case. I have instructed myself as to the correct method of approaching andaccomplishing that task. In the cases of Nova Scotia Community College v. Nova Scotia Teachers Union, 2006 NSCA 22, SableMary Seismic Inc. v. Geophysical Services Inc., 2012 NSCA 33, and R. v.

D.D.S., 2006 NSCA 34 the Nova Scotia Court of Appealadopted as correct law in this province the approach set out in Faryna v. Chorny, (BC CA), [1952] 2 D.L.R. 354(B.C.C.A.). This case addressed the assessment of witnesses with an interest in the outcome and provides my fundamental andoverriding guide in approaching my task. [14] An excellent

summary of the Faryna case and other relevant jurisprudence is provided in the decision of Justice MargaretStewart in Goulden v. Nova Scotia (Attorney General), 2013 NSSC 253 as follows: [20] Credibility. This proceeding also raises questions of credibility. The Supreme Court of Canada considered the problemof credibility assessment in R. v. R.E.M., 2008 SCC 51.

McLachlin C.J.C. repeated the observation of Bastarache and Abella JJ. in R. v.Gagnon, 2006 SCC 17, that “[a]ssessing credibility is not a science” and that it may be difficult for a trial judge “to articulate withprecision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile thevarious versions of events” (Gagnon at para. 20, cited in R.E.M. at para. 28).

The Chief Justice went on to say, at para. 49: While it is useful for a judge to attempt to articulate the reasons for believing a witness and disbelieving another in general or on aparticular point, the fact remains that the exercise may not be purely intellectual and may involve factors that are difficult to verbalize.Furthermore, embellishing why a particular witness's evidence is rejected may involve the judge saying unflattering things about thewitness; judges may wish to spare the accused who takes the stand to deny the crime, for example, the indignity of not only rejecting hisevidence and convicting him, but adding negative comments about his demeanor.

In short, assessing credibility is a difficult and delicatematter that does not always lend itself to precise and complete verbalization. [21] The assessment of the evidence of an interested witness was considered in Faryna v. Chorny, (BC CA),[1952] 2 D.L.R. 354, [1951] B.C.J. No. 152 (B.C.C.A.), where O’Halloran J. said, for the majority, at para. 11: The credibility of interested witness, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether thepersonal demeanour of the particular witness carried conviction of the truth.

The test must reasonably subject his story to an examinationof its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of awitness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person wouldreadily recognize as reasonable in that place and in those conditions.

Only thus can a Court satisfactorily appraise the testimony ofquick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successfulexperience in combining skilful exaggeration with partial suppression of the truth. Again a witness may testify what he sincerely believesto be true, but he may be quite honestly mistaken. For a trial Judge to say "I believe him because I judge him to be telling the truth", is tocome to a conclusion on consideration of only half the problem. In truth it may easily be self-direction of a dangerous kind.

[22] Such factors as inconsistencies and weakness in the evidence, interest in the outcome, motive to concoct, internal consistency,and admissions against interest are objective considerations going to credibility assessment, along with the common sense of the trier offact: see, e.g. R. v. R.H., 2013 SCC 22. It is open to a trier of fact to “believe a witness's testimony in whole, in part, or not at all”: R. v.D.R., (SCC), [1996] 2 S.C.R. 291, [1996] S.C.J. No. 8, at para. 93.

I have taken these principles into account inreviewing the viva voce and documentary evidence in conjunction with counsel’s submissions and the relevant law. [15] I also take instruction from the words of Justice Stewart. [16] I start by saying that I found that both of the witnesses appeared to be credible on the surface of their evidence. They bothappeared to be experienced businessmen. Sitting from my perspective I can never be certain of exactly what transpired between theseparties or exactly what was said.

I have to make my best assessment of what is most likely keeping in mind the principles that the lawrequires of me. I have cautioned myself, as quoted above, that “the real test of the truth of the story of a witness in such a case must be itsharmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in thatplace and in those conditions.” [17] These parties knew each other and had done business amicably in the past.

These circumstances often have a tendency to createa sense of trust between parties and there was no allegation of prior bad relations between them. This leads me to conclude that it wouldnot have been unreasonable for Mr. Boyd to rely on Mr. Churchill’s word, or at least what he understood Mr. Churchill to be telling him. [18] I also note that when challenged by Mr. Boyd, Mr. Churchill stated that he did not “recollect” telling Mr. Boyd to proceed intheir telephone conferences, which is quite different than a complete denial. Mr.

Boyd was clearly concerned about payment, and Mr.Churchill did not deny that he told Mr. Boyd that RCS pays their bills. Logically this makes sense in a context where Mr. Churchill wasindeed telling Mr. Boyd to proceed with the work. [19] Another factor which favours Mr. Boyd is the fact that Mr. Churchill did indeed try to collect payment from RCS and appears tohave given up only after being told that RCS would not pay. [20] I am convinced that Mr. Boyd’s contract was directly with the Defendant since in Exhibit 4 the Defendant’s bookkeeperspecifically refers to Mr.

Boyd as “our subcontractor for the Source roof job.” [21] Considering all these factors, assessing the Claimant’s evidence in light of the whole of the evidence, and reviewing the whole ofthe evidence before me, I am unable to conclude that the Defendant’s evidence is sufficiently powerful to outweigh the Claimant’sevidence. This is not to say that the Claimant’s evidence could not be inaccurate. That is a real possibility, but I am required to decide ona balance of probabilities as to which is more likely. This is never an easy task. I have weighed the evidence and submissionsrepeatedly.

Ultimately my best considered judgment is that when I apply the balance of probabilities standard of proof, and consideringthe whole of the evidence, I am satisfied that the Claimant has tipped the scales slightly in his favour. I therefore hold that the Defendantis therefore liable to the Claimant. [22] The Supreme Court typically will allow prejudgment interest at a rate of 2.5%.

The Nova Scotia Court of Appeal has repeatedlystated that interest rates of 2% per month (and the like) are not to be awarded unless there is a specific agreement between the partiesagreeing to pay that rate or there is a course of dealings between the parties whereby that rate has been paid and accepted by the payingparty. Neither of those circumstances pertains here. I therefore can only allow 2.5% interest on the debt. I will allow 2.5% for one yearor $86.78. [23] I will allow the filing fee of $99.70. Mr. Boyd appears to have served the Defendant personally and therefore had no servicecost. Mr.

Boyd sought reimbursement for travel but did not provide any documentation to support that. I will therefore award judgmentin the amount of $3,557.91 plus costs of $99.70 for a total of $3,657.61. Dated at Yarmouth, NS this 12th day of May, 2017. Andrew S. Nickerson Q.C., Adjudicator