I Heart Bikes Inc. v. Gonzalez, 2021 NSSM 20

IN THE SMALL CLAIMS COURT OF NOVA SCOTIA Citation: I Heart Bikes Inc. v. Gonzalez , 2021 NSSM 20 2021 Claim No. 500091 BETWEEN: I HEART BIKES INC. Claimant - and - LUIS ALBERTO GONZALEZ Defendant Hearing Date: March 3, 2021 Appearances: Claimant – Sarah Craig Defendant – Self-represented DECISION [ 1 ] This claim, in its amended form, is for $4,175.11, plus costs. This represents rental fees for a ten week period for a road bicycle and accessories, including panniers, and a handlebar bag. As well, it includes a claim for unreturned and damaged equipment.

I will outline the elements of the claim more fully in my reasons below. [ 2 ] For his part, the Defendant states that the representative of the Claimant has been dishonest, greedy and unreasonable since this incident occurred.

He states that the bicycle was in good working condition when returned and does not have damages and he has already sent her $500 which he alleges is fair. [ 3 ] He further counterclaims for general damages for pain and suffering based on what he refers to as serious allegations made to the Halifax Police Department without any real evidence that has caused harm to his reputation and has slandered his name. Facts and Background

[4] The basic facts of this are that Mr. Gonzalez rented a bicycle from the Claimant on July 30, 2020, for a three-day period. It was to be returned on Sunday, August 2nd. The rate for the bicycle in question as well as a pannier set and front handlebar bag was, includingHST, $186.30. This was paid and he took delivery of the bicycle on Thursday, July 30 at the Claimant’s shop on Lower Water Street,Halifax. [5] On Sunday, August 2, 2020, the Defendant called the shop to report that the bicycle had been stolen from outside his hostel inHalifax.

There then followed a series of communications between the parties for potential resolution for what would have been owed bythe Defendant for a stolen bicycle. No resolution was reached. As well, the Defendant reported the “theft” to the Halifax PoliceDepartment. [6] There not being any resolution, the Claimant filed a claim with this Court for the non-returned bicycle and other items.

This was filedon or before August 28, 2020. [7] At some point following that (it was not clear to me when), the Claimant representative, Sarah Craig, learned through social mediathat the Defendant had been on an extended bicycle road trip with the bicycle in question since the original weekend of July 30-Augst 2. In her evidence she indicated that the social media postings indicated that Mr. Gonzalez was in Pictou County on August 2nd which is theday that he reported the bicycle stolen.

Indeed, I note that one of the postings shows a photograph of what I understand to be the bicycleand is dated August 2, 2020, and it is stated on the posting (presumably by Mr. Gonzales) that he is “to get to the ferry in the morning toPEI.” [8] As well, and quite revealingly, the numerous social media postings that Mr.

Gonzalez made appear to indicate a bicycle road tripfrom Nova Scotia to Prince Edward Island, then to New Brunswick and to Saint John, New Brunswick, on the ferry to Digby, NovaScotia, and through Lunenburg County, then to Cape Breton and the Cabot Trail, then to the Newfoundland Ferry and ultimately to St.John’s, Newfoundland by September 17, 2020. [9] Mr. Gonzales does not dispute that he had this trip. [10] It would appear that it was around the end of September when communications between him and Ms. Craig resumed.

At thatpoint he sent her $500 by e-transfer and indicated that he would have the bicycle shipped to her. It arrived at the Claimant’s shop onOctober 13, 2020. [11] Mr. Gonzalez insists that the bike was initially stolen on August 2nd. Based on the evidence that I have, I would not so conclude. [12] Further, even if it was, which I do not accept, and if I were to believe him when he said it was returned, the question then is whywould he not have advised the Claimant of the return immediately. Clearly, he had the bicycle at some point in early August. [13] I note as well that Mr.

Gonzalez in at least one place in a text acknowledged that he had made a mistake. He acknowledged that atthe hearing as well. [14] His main defence and which I will make some reference to below is that he has PTSD and bipolar disorder and considerationshould be given to those conditions in deciding this case. [15] Apart from Mr. Gonzalez’s say so, I had no other evidence of these conditions.

That is not to say that I dispute his assertion butmerely to make the point that I do not have independent medical evidence of the severity thereof and therefore do know the degree towhich such might or would affect his legal ability to contract or potentially have liability in the law of tort. Analysis [16] I start with the issue of Mr. Gonzalez’s mental issue or capacity. In the Nova Scotia case of Parker v. Burridge Estate, 2019NSSC 171, the Court had the following to say about mental incompetence to contract: [36] This is the respondent’s primary submission: that at the relevant time, Mr.

Burridge was not mentally competent to enter into acontract of such a serious nature, that is, the sale of his fishing enterprise. The test for mental competence to tract was discussed in Bankof NS v. Kelly [1993] PEIJ No. 7: 4 The general rule, as I understand it, as to the contract of a mentally incompetent person, who by reason of his mental state is unable tounderstand its terms or of forming a rational judgement of its effect upon his interests is that such a contract is voidable at his option butonly if his defective mental state is known to the other party. [See: Kerr v.

Petrolia (1921) (ONSC), 51 O.L.R. 74;Hickman v. King (1986) 12 N.B.R. 336; Conrad v. Halifax Lumber Co. (1918) (NSCA), 52 N.S.R. 250] 5 The contract of a mentally incompetent person is not void per se, but only voidable on its being shown that the other party hadknowledge actual or constructive of such mental incompetency failing which such contract if fair and bona fide is binding [See: Fyckesv. Chisholm (1911) 3 O.W.N. 31; and Imperial Loan Co. v. Stone [1892] 1 Q.B. 599]. [37] And also in Fowler Estate v. Barnes [1996] N.J.

No. 206: 25 A contract or deed purportedly entered into by a mentally incompetent person is voidable at the option of that person or somebodyacting on his or her behalf, if the following conditions can be established:

(1) That at the time of execution, she was mentally incompetent;

(2) By reason of such mental incompetence, she was not capable of understanding the terms of the document and of forming a rational

judgement of its effect upon her interest; and

(3) The other party had knowledge, actual or constructive, of such mental incompetence. [38] As a first step, the person claiming incompetence of a party to a contract bears the burden of showing that such is the case. The respondent would need to establish that Stewart Burridge was mentally incompetent to enter into a binding agreement to sell his fishing enterprise in February 2014. [39] Furthermore, if this is made out, the Court must then consider whether that incompetence prevented Mr.

Burridge from understanding the agreement, and of forming a rational judgement about it. [40] Finally, I must question whether the applicant had knowledge of such incompetence, either actual or constructive. [ 17 ] As will be seen, the burden lies on the person asserting that they were mentally incompetent at the time in question. Further, assuming they can prove to the Court a sufficient level of mental incompetence to void a contract they entered into, then it must also be shown that the other party had knowledge, actual or constructive, of such mental incompetency. [ 18 ] On either test, Mr.

Gonzalez fails. [ 19 ] As to whether his issues would possibly be a defence to an intentional tort such as “conversion”, I have neither the facts nor a proper briefing on the law in this area. My own research disclosed no recent cases although I understand that the traditional rule was that diseases of the mind (one of the least objectionable terms used in the older common law) was not a defence to a tort.

So, while generally courts are sympathetic to individuals who present with symptoms of serious mental issues, I see no legal basis in this present case for it to be a factor in the legal consequences of what Mr.

Gonzalez has done here. [ 20 ] To put the salient facts here in plain language, by either falsifying a theft of the bicycle or, if indeed it was stolen, by failing to report its return to the Claimant, and then without the knowledge or consent of the Claimant, utilizing the bicycle for the next 8-10 weeks, the Defendant effectively converted those assets to his own use and benefit. “ Conversion ” is defined in Black’s Law Dictionary (5 th ) as: An unauthorized assumption and exercise of the right of the ownership over goods or personal channels belonging to another, to the alteration of their condition or the exclusion of the owner’s rights.

Any unauthorized act which deprives an owner of her property permanently or for an indefinite time… [ 21 ] It is clear that the Defendant bears civil liability to the Claimant. The issue is how to calculate the damages. [ 22 ] While the legal characterization would likely be conversion, the approach I have adopted is more in line with a breach of contract - I analyze this scenario from the perspective or assumption that Mr. Gonzalez did what he legally ought to have done.

That is, as if he had advised the Claimant that he wished to increasing his rental period for an extended tour of Atlantic Canada and the contract arrangement was extended, by agreement. As stated, this approach is consistent with the general approach to damages in breach of contract – to put the aggrieved party in the position they would have been in had the contract been properly performed. [ 23 ] Had he done so, he no doubt would have been advised of and charged on the basis of the three-week rental rates which are, effectively the lowest on a per-day basis.

I note the quoted rates on the Claimant’s website are, as follows (with the equivalent per day rate shown): Quoted rates Per day equivalent $129 – 3 day rental ($43 per day) $199 – one week rental ($28.43 per day) $349 – two week rental ($24.93 per day) $449 – three week rental ($21.38 per day) [ 24 ] The period in question is from August 3, being the first date after the original rental, up to October 13 th , the date the bicycle was returned to the Claimant. That period equals exactly 71 days which can be conveniently rounded to ten weeks.

The Claimant’s rental fees for the bicycle therefore is based on three times $449 plus $199, which equals $1,546 plus HST. This is a very reasonable approach to the calculation of the lost rental fees to the bicycle. It puts the parties in the exact same position they would have been in had Mr. Gonzalez done what he ought to have done to extend the rental period. [ 25 ] The same calculation is done for the handlebar bag and the panniers and that also is confirmed by the rates that are on the Claimant’s website. Each has a rate of $45 for a three-week period and $20 for a one week period.

The calculation yields an amount of $155 for the ten- week period for each item. The total amount for the three items exclusive of HST is is $1,856. With HST, it totals $2,134.40. [ 26 ] This is the amount sought by the Claimant and I will allow that amount. [ 27 ] I turn then to the damages to the bicycle and the non-returned items. The Claimant is seeking reimbursement for the following items Helmet 74.95

Handlebar bag 99.00 Panniers 70.69 Tube replacement kit case 39.95 Bungees 25.00 Tire levers 3.00 Multi tool 14.95 Tube 5.00 Lock 42.99 Bike 1399.00 [ 28 ] Of these the most significant amount is for the bike being $1,399. [ 29 ] The terms of the “rental contract” are that customers are responsible to cover the full cost of any damage that occurs to the bike while in their possession. [ 30 ] While not explicitly stated, it would seem that such would be subject to excluding reasonable wear and tear. I take notice that many items of rental apart from this instant case are subject to such understood terms.

It is a reasonable term. As well, “wear and tear” is arguably something less than “damage”, a position I would adopt. [ 31 ] If, again returning to the approach or scenario that I described above – that if Mr. Gonzalez had contacted the Claimant and extended the rental period for ten weeks then, I would consider the position of the Claimant with that assumption at the time of the return of the items.

I would expect that a person in the position of the Claimant would have applied a similar approach to what I referred to above with respect to normal wear and tear. [ 32 ] Recognizing that this is not an exact science, I would reduce the claim for the bicycle by 50% and the other items on the list by 25%. This yields an amount of $1,000, before tax ($1,399 x 50% = $699.50 + $375.53 x .75 = $281.65). [ 33 ] I will allow the costs amount shown in the submission from the Claimant which total $189.38. In

summary then, I allow the following: Loss of Rental Fees $2,134.40 Damaged and unreturned equipment $1,150.00 Less Payment -500 Subtotal 2784.40 Costs 189.38 $2,973.78 [ 34 ] As noted above, the Defendant counterclaimed for $4,000 for what, effectively is a claim in defamation. This Court has no jurisdiction to deal with a claim for defamation. This is made clear by

Section 10 (

c) of the Small Claims Court Act, R.S.N.S. 1989, c. 430 , which reads: “…no claim may be made under this Act (

c) for defamation or malicious prosecution. [ 35 ] In my view, this statutory provision is a full answer to the counterclaim made by the Defendant here. It is, therefore, dismissed. ORDER [ 36 ] It is hereby ordered that the Defendant pay to the Claimant: Debt $2,784.40 Costs 189.38 $2,973.78 [ 37 ] The counterclaim is hereby dismissed . DATED at Halifax, Nova Scotia, this 3rd day of May, 2021.

MICHAEL J. O’HARA ADJUDICATOR