Dowell v. Harrison, 2022 NSSM 1

IN THE SMALL CLAIMS COURT OF NOVA SCOTIA Citation: Dowell v. Harrison , 2022 NSSM 1 SCCH 507462 BETWEEN EDGAR DOUGLAS DOWELL CLAIMANT AND CONNIE FRANCIS HARRISON DEFENDANT Heard: December 8 and 15, 2021 Final Submissions – December 23, 2021 For the Parties: Both parties appeared in person Decision – January 3, 2022 DECISION & ORDER [ 1 ] A contract is a legally recognized agreement made between two or more persons. Such agreement gives rise to obligations that may be enforced in the courts, the failure to observe which creates a liability to pay compensation in the form of damages. John A.

Yogis QC, Canadian Law Dictionary , 2d ed., 1990, p. 52 The Issue [ 2 ] The issue in this case is what are the terms of a contract for the sale of an abandoned Airstream Trailer sold by the Defendant to the Claimant. The purchaser asserts the contract was for the sale of a ‘vehicle’ that could be used on public highways.

The Defendant’s position is the sale was of an item to be transported to a stationary location to be used for living accommodations. [ 3 ] There has been extensive evidence about communications in the months after the contract was made – some to demonstrate what the contract terms were, some to evidence the extensive damage claim made by the Claimant. [ 4 ] The issue for this Court is to determine what the parties contracted for and then to assess what flows from that. The Facts [ 5 ] Both parties testified.

Except for a few direct conversations, most of the evidence of the exchanges between the parties are contained in written exchanged via text messages or through the sale platform Kijiji, used by the Defendant to list the Airstream for sale. Some of the Kijiji messages were copied into text messages and presented in that form.

Where convenient they are produced verbatim in these reasons. [ 6 ] The Defendant, as Power of Attorney, managed her ailing father’s affairs, which included cleaning up his property in Great Village Nova Scotia, in anticipation of selling it. [ 7 ] On the Great Village property were an abandoned Airstream trailer and a small travel trailer. Both had been deserted many years earlier. The Airstream had been owned by Eric Bolton, a friend of her father’s. Efforts to contact Mr.

Bolton about the trailer occurred between 2013 – 2018 but were unsuccessful. [ 8 ] In 2019, the Defendant’s father had an accident and was hospitalized. The Defendant realized her father would not be returning

to live by himself on the Great Village property. [ 9 ] She assumed responsibility for his home, which included trying to remove the Airstream. In 2020 she again was unsuccessful in contacting Mr. Bolton. [ 10 ] To determine what she could do with the trailers, she contacted Access Nova Scotia, the government department responsible for the Registry of Motor Vehicles. Because of the information she received, she understood she could not sell the trailer as a ‘motor vehicle’ because it did not belong to her.

She also spoke with county officials, who advised there were no specific requirements in place regarding abandoned vehicles. [ 11 ] She was satisfied she had the right to sell the Airstream as an abandoned chattel, that was derelict on her father’s property. [ 12 ] The Defendant found a brochure entitled ‘Vintage Airstream’ and learned she had a 27’ Overlander classified in the Airstream literature to be ‘as found’ and had a value of $1200 - $2300 USD.

She concluded she would seek to sell the vehicle for $1000 since it could not be put on the road as a vehicle. [ 13 ] The Claimant’s evidence is that when the COVID pandemic was declared he looked for a travel trailer that would serve as a safe haven for travel for his family. [ 14 ] On March 30, 2021, the Defendant placed an advertisement on Kijiji offering to sell a 1977 Airstream and the second travel trailer.

The Airstream was described as being ‘in very rough shape’. [ 15 ] On April 1 the Claimant sent a Kijiji message to the Defendant asking about the trailer. [ 16 ] The following exchange occurred via message on Kijiji: Dowell to Harrison 7:41 pm Hi. Any pics of interior? Heavy water damage? Thanks. Harrison to Dowell 7:53 pm Hi. The Trailer is at my dads. I’m in Halifax but going to great village on Friday. I can send pics then. I have been in the trailer and do not think there’s heavy water damage. It is open and you are welcome to go look for yourself. Dowell to Harrison 8:25 pm Hi. I’m in Halifax too.

Do you know ballpark how much your Dad is looking for? Know anything about what year/model. Is the interior intact or is it a total reno? It’s for my 18 year old son. Thanks Dowell to Harrison 8:25 pm What is the address in Great Village? Your dad’s contact info? Thanks

Harrison to Dowell 8:28 pm It’s a 1977 Outlander. Looking for $1000. Total Reno. Dowell to Harrison 8:28 pm Sorry. I just saw the y ear/model. Harrison to Dowell 8:33 pm 105 …..(redacted) Road. Dowell to Harrison 8:36 pm …. Your cell #? I may be able to swing down Friday as well. Dowell to Harrison 8:36 pm you can reach/text me at: 902.xxx-xxxx. Harrison to Dowell 8:40 pm I will be in Great Village around 2pm Friday and there Saturday as well. [ 17 ] On April 2, 2021, Mr. Dowell travelled to Great Village and engaged with the Defendant’s son.

He also spoke with a neighbour who told him the trailer had been on the land for decades. It was in poor condition. Mr. Dowell stated that if the trailer was not roadworthy, it could be used as a cottage. [ 18 ] At 5:01 pm he sent a text message to the Claimant: Hi Connie This is Ed from Kijiji. I drove out to your Dad's place with my son today to look at the old Airstream. I'm not sure if you've been out to see the rv lately.

Concerned about the black mold throughout, squirrel nests (wires we can't see), physical & water damage from the tree, and tires are all flat to the rims & it is sitting too low to see the frame/undercarriage. Going to have to gut the interior but my son is still gung ho as his summer job is on hold with Covid-19. What is the best price you would consider? Thanks [ 19 ] The parties then spoke on the phone. The Defendant says the Claimant advised her the trailer would be placed on a family property as a cottage for his son. She advised him the sale price was $1000. [ 20 ] Mr.

Dowell recalls this conversation slightly differently as he says the Defendant said she would do what was required to sell and transfer the trailer. [ 21 ] After that call she received the following message which was time stamped at 17:57. Hi Connie Nice to talk with you. We'll take it for $1,000. Please confirm it is sold pending payment tomorrow. Thanks Ed Ed 17:57 My son is hyper excited :-) [ 22 ] The Defendant then sent five hundred dollars to the Claimant.

[ 23 ] The Claimant returned to the property on April 3 and looked for ownership papers. The Defendant states that never did she indicate she had ‘papers’. [ 24 ] The following message was sent by the Claimant on April 3. Please confirm that you have the legal right to sell the 1977 27' Airstream Uplander serial # i27-27j-1356 and that you are selling and transfering ownership for the purchase price of $1,000. Vehicle is sold as is as seen on Friday, April 2nd $500 deposit by e-transfer today & $500 e-transfer upon pickup. [ 25 ] The Defendant has no recollection of receiving this message.

It was not in her documentary material but was produced by the Claimant. [ 26 ] There is no reply to this message and she states she made no commitments regarding Access Nova Scotia, because she thought the trailer was for a living arrangement, not a vehicle. [ 27 ] The parties did not meet until the 15 th of April when the Claimant came to pick-up the trailer. On that day there were no discussions about registration information.

If registration or ownership information was required, the Defendant stated in her evidence she would have returned the $500 deposit, paid by the Claimant, and have sold the trailer to others who were interested in it. [ 28 ] The next communication between the parties was on May 29 when the Claimant advised the Defendant of conversations he had with Access Nova Scotia and what he required to have the Airstream registered in his name as a vehicle, under the Motor Vehicle Act .

This was necessary for him to use it as a travel trailer. [ 29 ] The Defendant’s father was near the end of life, and she was spending all her time with him. [ 30 ] On May 31, the Claimant sent a text message to the Defendant which states in part: … I understand I purchased As Is Where Is. My son & I have spent 6 weeks working almost daily on the Airstrem sealing all the leaks, pulling up & replacing the carpet and subfloors, insulation, rodent & insect nests, updating plumbing & electrical, etc. We believe it will be roadworthy as I expresses we hoped it would be.

Just sitting on our land was a worst case scenario…. [ 31 ] There were numerous exchanges in the following months . The Claimant looked for the original owner but failed to locate him. He received legal advice and in December 2020 had his lawyer write to the Defendant. Involvement of the police was threatened. [ 32 ] The death of Ms Harrison’s father absorbed her time and energy. She offered to meet with the Claimant but there had been such a breakdown in the relationship he refused to meet her other than at Access Nova Scotia. He stated unequivocally he feared the Defendant, though he did not explain this.

He refused to provide his address to her, for he believed Mr. Bolton would come and take the trailer still registered in his name. [ 33 ] Ms. Harrison did not write to any government official. It was the defence she filed in this matter that was used by the Claimant to persuade officials at the Registry of Motor Vehicles to register the trailer in his name. [ 34 ] Ms. Harrison’s son, Ryan Falkenham, testified. He was with his mother when she spoke to the Claimant on April 2 nd . He heard only one part of the conversation and I do not rely on his recollection of it.

He did note there were other replies to the Kijiji ad. Most amounted to nothing because the potential purchasers wanted a roadworthy vehicle and once they learned that was not available, no further discussions took place.

Damage Claim [ 35 ] The Claim for damages is extensive and was particularized by the Claimant: • $1000 - a full refund of the purchase of the Airstream Trailer. • $315.59 - Legal Fees.

This includes the December 21, 2020 demand letter written to the Defendant on behalf of the Claimant • $9.44 - Land Registry Search Fees • $149 - Trailer Insurance Fees. • $275.88 - Mileage Costs - These are direct costs incurred to secure the transfer of ownership of the motor vehicle • $485.92 - 50% of Direct Costs for Accommodations in National Parks + Trailer Rental - damages of 50% of his costs of Parks Canada Fixed Roof Accommodations and a Travel Trailer rental between August 15, 2020 and November 19, 2021 • $100 - General damage [ 36 ] A contract for the sale of goods is governed by the Sale of Goods Act, R.S.N.S. 1989, c. 408 . [ 37 ] Provisions of that legislation applicable include: 2(h) "goods" includes all chattels personal ….. 4

(1) A contract of sale of goods is a contract whereby the seller transfers, or agrees to transfer, the property in goods to the buyer for a money consideration, called the "price", and there may be a contract of sale between one part owner and another.

(2) A contract of sale may be absolute or conditional.

(3) Where, under a contract of sale, the property in the goods is transferred from the seller to the buyer, the contract is called a "sale", but where the transfer of the property in the goods is to take place at a future time, or subject to some condition thereafter to be fulfilled, the contract is called an "agreement to sell". 6 Subject to this Act and to any statute in that behalf, a contract of sale may be made in writing, either with or without seal, by word of mouth, partly in writing and partly by word of mouth or may be implied from the conduct of the parties, provided that nothing in this

Section shall affect the law relating to corporations. 16 Where there is a contract for the sale of goods by description, there is an implied condition that the goods shall correspond with the description ….. 17 Subject to this Act and any statute in that behalf, there is no implied warranty or condition as to the quality or fitness, for any particular purpose, of goods supplied under a contract of sale, except as follows: (

a) where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, so as to show that the buyer relies on the sellers skill or judgement and the goods are of a description that it is in the course of the sellers business to supply, whether he be the manufacturer or not, there is an implied condition that the goods shall be reasonably fit for such purpose, provided that, in the case of a contract for the sale of a specified

article under its patent or other trade-name, there is no implied condition as to its fitness for any particular purpose. 21 Unless a different intention appears, the following are rules for ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer: Rule 1 .

W here there is an unconditional contract for the sale of specific goods in a deliverable state, the property in the goods passes to the buyer when the contract is made, and it is immaterial whether the time of payment or the time of delivery, or both, be postponed. [ 38 ] The Motor Vehicle Act, RSNS 1989, c. 293 imposes certain conditions on the seller of a vehicle, as defined by that legislation.

Section 23 states: 3

(1) Whenever a vehicle as registered under the foregoing provisions of this Act is sold or disposed of any permit issued respecting the vehicle shall thereupon terminate and the registration of the vehicle shall be deemed to be suspended from the date of the sale or disposal until the transferee has obtained a permit as provided by subsection (5).

(2) Notwithstanding subsection (1), whenever a vehicle is 2sold or disposed of the vehicle shall be deemed to be registered under the name of the new purchaser or transferee providing there is displayed valid plates assigned to that person for a period not exceeding thirty days from the time of the sale or the disposition.

(3) Notwithstanding any sale, disposal or transfer of a vehicle, the number plates originally assigned to the seller are to be removed by him and maintained until the expiry date of those number plates for re-assignment to a new vehicle he may purchase unless returned to or required to be returned by the Department.

(4) When a vehicle registered pursuant to this Act is sold, the seller shall complete the notice of sale portion of the certificate of registration and immediately forward it to the Department.

(5) In the event the Department does not receive the notice of sale portion of the certificate of registration properly endorsed, as provided in subsection (4), the Department may register the vehicle provided it is satisfied as to the genuineness and regularity of the transfer. Findings [ 39 ] Most the facts are agreed upon, with one notable exception – the content of the exchange between the parties preceding the sale of the trailer.

It is in that exchange one determines the intentions of the parties entering into a contact. [ 40 ] Throughout his evidence and presentation, the Claimant was adamant he had been significantly wronged by the Defendant. He demonstrated a zeal that was not commensurate with the issue before the Court. He argued with both the Adjudicator and the Defendant. He interrupted the Defendant when examining her. He initially asserted a claim for monetary compensation that was more akin to seeking to extract ‘a pound of flesh’ rather than fair compensation for breach of a simple contract.

He amended his claim at the Court’s urging when he was advised he was seeking recompense in areas not within our jurisdiction. He gave the impression of having lost perspective on the issue before the Court. [ 41 ] Where there is a disagreement between the testimony of the Claimant and the Defendant, I do not accept the Claimant’s evidence. The Claimant tailored his evidence to support his claim.

For example, his statement he looked for a recreation vehicle in the months after the COVID 19 pandemic is not supported by any objective evidence and it seems added to help his position he was seeking a vehicle he could use for his family. I do not accept that evidence. [ 42 ] I find in Mr. Dowell’s initial discussion with the Defendant he indicated the trailer was intended to be an abode for his son and was to be situated on a rural property. He did not tell Ms Harrison he intended to use the Airstream as a recreational vehicle. Had he done so, she would not have carried on discussions with him.

She had indicated to other inquiries the trailer was not capable of being used on the highway: she would have taken the same position with Mr. Dowell. [ 43 ] I accept the Defendant’s recollection of the exchange with the Claimant and find it was not until after the contract had been consummated, when the Defendant agreed to buy the trailer for $1000, that Mr. Dowell raised the registration papers. By the time he did so there was an agreement. Though it was open to the Defendant to negotiate a change to the deal, it was not open for him to unilaterally add a term not part of the contract that had been made.

Analysis [ 44 ] The aim of a court, in construing a written agreement, is to determine the intentions of the parties to the agreement. The cardinal presumption is that the parties have intended what they have said. Their words must be construed as they stand. See: Chitty on Contracts Volume 1, General Principles , 27th ed. (1994) at 580. [ 45 ] Where the agreement has been reduced to writing, the parol evidence rule operates to prohibit the introduction of extrinsic evidence to vary the written contract. This rule of

interpretation is enunciated in G.H.L. Fridman, The Law of Contract in Canada , 3rd ed. (Toronto: Carswell, 1994) at app. 455-456. [ 46 ] The fundamental rule is that if the language of the written contract is clear and unambiguous, then no extrinsic parol evidence may be admitted altering, varying, or interpreting the words used in the writing.

[ 47 ] These are the key principles. [ 48 ] To create a contract there must be: • an ‘offer’ - indication by one person (the offeror) to another (the offeree) that she is prepared to enter into a legally binding agreement (contract) with one or more persons upon terms that are certain or capable of being made certain, • an ‘acceptance’ - the assent to an offer by words or conduct by the person to whom the offer is made, and • ‘consideration’ - what one party to a contract gives, or promises, in exchange for what is being given or promised from the other side. [ 49 ] Ms Harrison posted an offer for the sale of an Airstream trailer described as ‘in rough shape’.

Her intentions were to have the trailer removed from her ailing father’s property. She did not have any evidence of ownership of the trailer as a vehicle, as defined by the Motor Vehicle Act . [ 50 ] The Claimant responded to the Kijiji advertisement, travelled to Great Village to see the trailer. His discussions with the Defendant lead her to believe his intentions were to locate the trailer on property he owned where it would be a cottage for his son.

This understanding was affirmed by the text message of April 2, 2020, where he said his son was ‘gung ho’ and ‘super excited’. [ 51 ] At 17:57 on April 2, 2020, the Claimant accepted the Defendant’s offer to sell the Airstream. [ 52 ] The written offer was contained in the Kijiji add, which was supplemented by her stating a sale price. [ 53 ] The acceptance was in the text message ‘we’ll take it for $1000’. [ 54 ] The consideration for the contract was the promise to pay. [ 55 ] At that moment the parties were bound by the terms they had agreed to. No subsequent evidence is required to understand the contract.

No parol evidence is admissible to explain what the contract was as it is evident from the written exchanges. The only role the oral conversations have is to explain the intentions of the parties when they entered the contract. Their subsequent assertions of what they intended or wanted are not useful here and cannot be accepted when the agreement the parties made is as clear as it was. [ 56 ]

Section 16 of the Sale of Goods Act applies as the sale was of ‘goods by description’, namely ‘Airstream Travel Trailer In rough condition’. That was all the Defendant offered or purported to sell. [ 57 ] When Mr. Dowell accepted the offer by text message on April 2, the property in the Airstream then transferred to the Claimant under Rule 1 of s. 21 of the Sale of Goods Act .

It was for him to pay for the goods and arrange for delivery, but at that moment the contract was consummated. [ 58 ] There were no terms in the contract relating to the Airstream being a ‘vehicle’ within the meaning of the Motor Vehicle Act . For that reason, s. 23 of the Act, relied on extensively by the Claimant are not relevant.

The evidence is clear, Ms Harrison, who had tried may times to locate the owner of the trailer, did not transfer it as a vehicle. [ 59 ] After the contract was made, the Claimant tried to add a requirement that the trailer was a ‘vehicle’ and thus the Defendant should or must provide him with information to allow the Airstream to be registered in his name. The Defendant’s claim is based exclusively on that erroneous assertion.

[ 60 ] The contract was for the sale of the trailer, acknowledged by Mr. Dowell to be’ as is where is’, not for the sale of a vehicle as defined in the Motor Vehicle Act . The Defendant knew she had no evidence of ownership of a vehicle, as the trailer had been abandoned for almost 2 decades and her efforts to locate the original owner were unsuccessful. She had made inquiries about what she could do and concluded that she could not sell the Airstream as a vehicle.

When the Claimant indicated his intended use of the trailer was for his son as a cottage, the Defendant had found a purchaser whose intentions squared with her ability to sell the goods on her father’s property. [ 61 ] I find the Claimant’s intended use of the Airstream changed after he took possession and worked on it with his son. He saw the possibilities of restoring it to a roadworthy condition. He then sought the Defendant’s assistance to register the trailer as a vehicle.

Though she could easily have provided the Claimant with what he needed, her personal circumstances, with the illness and death of her father, intervened and she did not co-operate. She did not have to assist Mr. Dowell as she had provided him with all that their contract required of her. [ 62 ] Though assisting the Claimant would have been a nice thing to do, the Defendant was not obligated by the contract of sale to do so. The contract was for the sale of an ‘Airstream in rough shape’. That is what the Defendant offered . That is what the Claimant bought, when he accepted the offer and agreed to pay $1000.

There were no terms in the contract that stated the Airstream was a vehicle that could be used as such. [ 63 ] The Claim is dismissed. Dated at Halifax, Nova Scotia, January 3, 2022. Darrel Pink Small Claims Court Adjudicator