Jacks Expert Flush et al. v. Seagulf Marine, 2023 NSSM 71

SMALL CLAIMS COURT OF NOVA SCOTIA Citation: Jacks Expert Flush et al. v. Seagulf Marine , 2023 NSSM 71 Date: 202309 06 Docket: 523176 Registry: Halifax Between: Jack's Expert Flush & Toilet Rentals Inc. Claimant - and - Seagulf Marine Industries Inc. Defendant REASONS FOR DECISION AND ORDER Adjudicator : Eric K. Slone Heard : Via zoom on September 1, 2023 in Halifax, Nova Scotia Appearances : For the Claimant, Vince Neary For the Defendant, Austin Zeagman

BY THE COURT : [ 1 ] The Jack’s Expert Flush & Toilet Rentals Inc. supplies portable toilets for rent. [ 2 ] The Defendant Seagulf Marine Industries Inc. serves the marine industry with products and services. In the instance at hand, the Defendant acted as a broker or middleman for another company, Federal Fleet Services, which does procurement for the Canadian Navy. [ 3 ] In early January of 2023, a navy vessel was scheduled for repairs at the Naval Shipyards in Halifax.

Because the vessel’s electrical system was being disconnected during the work, it was necessary to supply the workers with access to toilets. [ 4 ] To make a long story short, the Defendant contracted with the Claimant to have two portable toilets delivered to the docks. There was no elaborate contract. It was all arranged through emails and phone calls. [ 5 ] There is no dispute about the rental itself, though the bill remains unpaid as a result of the subsequent dispute.

The issue is that sometime between the time that the toilets were no longer needed, and the time they were available to be picked up, they had apparently been blown or fell off the docks into the ocean and drifted away. I say “apparently” because no one witnessed them going into the water, though there was a report from a harbour pilot that one of them was tied to a buoy somewhere in the harbour. So, other possibilities exist to explain how they ended up in the water. Nevertheless, they have never been recovered.

The active question for the court is, who is responsible for the loss? [ 6 ] Jack Werry is the owner of the Claimant company, and he personally delivered the toilets on January 10, 2023. He testified that he did not know how the toilets were going to be positioned. When he arrived, he was asked if he had brought a crane lift, which he had not. He assumed from that question that the toilets might be lifted onboard the ship, assuming that a crane was available. He was told to position them on the dock as close as possible to the ship. He tied the two toilets together with rope, which gives them more stability.

He then left. [ 7 ] No one else was called as a witness to testify to the events and conversations that day, so Mr. Werry’s account is unchallenged. [ 8 ] Mr. Werry was not sure how long the toilets were needed for and waited to be informed by email or phone call. On January 22, the Claimant was told they were no longer needed.

It was two days before the Claimant had an available truck to transport them, and when he attended on January 24, the ship had sailed, and the toilets were gone. [ 9 ] There was no evidence before this court which specifically pinpoints when they went missing, but the logical inference was that they left the dock on January 23 rd or 24 th . [ 10 ] There was no evidence of high winds occurring at any relevant time.

In fact, historical weather data suggests otherwise. [ 11 ] The Defendant asserts that the Claimant itself ought to have secured the toilets better, such that they would not be blown off the dock (assuming they were). [ 12 ] The Claimant argues that it delivered the toilets as requested and left it to the customer how to place them. Mr. Werry says that he assumed that they might be hoisted onboard the ship or left as they were.

[ 13 ] As mentioned, there was no written contract that might have specified who was responsible for the toilets once they were dropped off. So, who bears the risk? [ 14 ] In my view, the question is best answered with reference to implied terms. What would a reasonable person observing the transaction assume to be the case? And is such a term necessary to give business efficacy to the transaction? [ 15 ] I believe that it would have been an implied term that, once the toilets were dropped off, they were at the Defendant’s risk - unless there was some carelessness on the part of the Claimant in placing them.

The facts here support a finding that Mr. Werry did not know the final resting spot for the toilets and had a reasonable basis to believe that they might be hoisted onto the ship. He did as instructed, which was to leave them on the dock as close to the ship as possible. There is no evidence of what was done with them after that. [ 16 ] I see no evidence that Mr. Werry was in any way careless.

On the other hand, there are almost endless possibilities for how the Navy and/or Federal Fleet Services might have done, or failed to do something, to safeguard the units. [ 17 ] Had the parties turned their attention to the question before entering into the contract, it defies belief to believe that the responsibility would have remained with the Claimant, given that the Defendant’s client had possession and control over the units at all times.

Business efficacy demands that someone be assigned responsibility, and that someone would be the renter - absent some evidence of a failure to follow specific instructions. [ 18 ] I find that the Defendant cannot escape responsibility for the loss of the toilets. I find it liable for the rental charge of $1,322.50 plus the reasonable replacement cost of the toilets in the amount of $2,760.00 ($2,400.00 plus HST) for a total of $4,082.50. The Claimant is also entitled to its costs of $208.95.

ORDER [ 19 ] The court orders that the Defendant pay to the Claimant the following: Debt $1,322.56 Damages $2,760.00 costs $298.95 Total $4,381.51 Eric K. Slone, Adjudicator