Eddy v. Pero, 2017 NSSC 342

Supreme Court of Nova Scotia Citation: Eddy v. Pero, 2017 NSSC 342 Date: 20170411 Docket: Syd. No. 459914 Registry: Sydney Between: James Eddy Appellant v. Nicole Pero Respondent Library Heading Judge: The Honourable Justice Patrick J. MurrayHeard: April 3, 2017, in Sydney, Nova ScotiaWritten Decision: April 11, 2017Subject: Appeal of Small Claims Court DecisionSummary: Grounds of Appeal alleged by the Appellant were: 1. That the Adjudicator committed an error of law; and 2. That the Adjudicator failed to follow the requirements of natural justice.Issues:

(1) Did the Adjudicator commit an error of law?

(2) Did the Adjudicator fail to follow the requirements of natural justice?Result: Appeal was dismissed. Cases sited: Brett Motors Leasing Ltd. v. Welsford, (NS SC); Villeneuve v. Sypher, (2014)N.S.J. No. 686; Robinson v. Atkinson,

(2004) N.S.J. No. 593; Lohnes v. Levy,

(2010) N.S.J. No. 396;Keefer v. Fort, (NS CA), [1978] 27 N.S.R. (2d) 353. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THEDECISION, NOT THIS LIBRARY SHEET. SUPREME COURT OF Nova Scotia Citation: Eddy v. Pero, 2017 NSSC 342 Date: 20170411 Docket: Syd. No. 459914 Registry: Sydney Between: James Eddy Appellant

v. Nicole Pero Respondent Judge: The Honourable Justice Patrick J. MurrayHeard: April 3, 2017, in Sydney, Nova ScotiaWritten Release: April 11, 2017 Counsel: James Eddy, self-represented Appellant Nicole Pero, self-represented Respondent By the Court (Orally): Introduction [1] This is an appeal from a decision of the Small Claims Court dated January 25, 2017. [2] In the decision appealed from the Adjudicator, Ray E. O’Blenis, ordered the Appellant, James Eddy to return the sum of$5,400.00 to the Respondent, Nicole Lynn Pero. [3] The Adjudicator found that the Appellant, Mr.

Eddy, sold a vehicle to the Respondent knowing it was not roadworthy andfound further that had Ms. Pero known the conditions of the vehicle, she would not have purchased it. [4] The vehicle in question was a 2005 GMS Sierra ½ ton truck. The Adjudicator found as a fact, that at the time of the sale, ithas a rusted frame, one that holes could be poked into with a screwdriver. [5] On the facts there were other problems, as found by the Adjudicator. The vehicle had been registered to a WilliamVanechuck. Mr. Vanechuck’s name was on the Certificate of Sale, as the Seller. [6] The Adjudicator found that it was Mr.

Eddy who signed Mr. Vanechuck’s name on the receipt given to the Respondent. [7] Mr. Eddy further claimed it was his son, age 17, who sold the vehicle to the purchaser, Ms. Pero. The Adjudicator clearlyrejected this stating there was no evidence before the Court from the Defendant’s son. [8] The Appellant, Mr. Eddy, submits the Adjudicator erred, stating this is a buyer beware situation and no conditions orwarranty’s were in place for the sale of the vehicle, which the Appellant says was in good working condition prior to and during thesale.

No concerns he says were mentioned by the buyer nor did she ask for the vehicle to be inspected before the purchase. [9] The Appellant has submitted a number of cases in support of its position. The Appellant says different laws apply to a privatesale and that this was not a sale between limited companies. [10] The Grounds of Appeal as alleged by the Appellant are: 3. That the Adjudicator committed an error of law; and 4. That the Adjudicator failed to follow the requirements of natural justice.

Second Ground of Appeal – Error of Law [11] The crux of this appeal is whether the learned Adjudicator committed an error of law. [12] In Brett Motors Leasing Ltd. v. Welsford, (NS SC), Saunders, J., as he then was, stated with respect toSmall Claims Court Appeals: One should bear in mind that the jurisdiction of this Court is confirmed to questions of law which must rest upon findings of fact asfound by the Adjudicator. I do not have the authority to go outside the facts as found by the Adjudicator and determine from the evidence, my on findings of fact.

[13] An error of law, as alleged here is reviewed for correctness.

Findings of fact and credibility are reviewed for palpable andoverriding error. [14] The error of law alleged here relates to the Adjudicator’s key legal finding that the sale of the vehicle by the Appellant to theRespondent, in the condition it was in, resulted in a fundamental breach of the contract, and that the principle of “caveat emptor” orbuyer beware did not apply to the sale. [15] The Appellant argues in his brief that the legal error made by the Adjudicator was that this was not a fundamental breach, asthere was no written contract or conditions placed on the Bill of Sale and the vehicle was in good working order. [16] The Adjudicator made a number of key findings that must be assessed in determining whether an error of law was made byhim.

Based on the evidence he heard, Adjudicator O’Blenis found: 1. That the Appellant received a deposit of $1,400.00 on July 7, and the balance of $4,000.00 on the following day for a total of$5,400.00 (paragraph 12); 2. That the Respondent’s first opportunity to take the vehicle out of her yard after paying the balance of $5,400.00 on July 8, 2016 wason July 13, 2016; 3. That the Respondent was not allowed to take the vehicle on the highway for the test drive but instead only allowed to drive thevehicle around the block; 4.

That the Appellant wrote out a receipt for $5,400.00 and the receipt had the signature of William Vanechuck on it; 5. That Ron MacDonald, was with the Respondent, Ms. Pero, when he saw Shaun Cox, who carried out an inspection, poke holes inthe A-frame of the vehicle to show how rotten the frame was; 6. That Shawn Cox Auto Sales inspected the vehicle a week after the Respondent purchased it and put a rejection sticker on it marked– unroadworthy, bad frame; 7. There was no evidence before the Court that the vehicle was being sold “as is, where is”; 8.

That the Appellant misrepresented the status of the motor vehicle’s condition. [17] It is well settled that the findings of fact by an Adjudicator in Small Claims Court should not be disturbed on Appeal and thatthis Appeal Court is bound by those findings. (Brett Motors Leasing Ltd.) [18] In the stated case (paragraph 24) the Adjudicator found that the vehicle Ms. Pero received was something entirely differentfrom what she bargained for.

As a result, the Adjudicator rescinded the contract and ordered the return of the full purchase price. [19] Based on the findings of fact made by him, there was support in law for this conclusion. [20] I have reviewed the cases provided by the Appellant in support of his position that caveat emptor applies. In two of thosecases, it was found on the facts that the vehicles were in fact sold on an “as is where is” basis. Such is not the case here. (SeeVilleneuve v. Sypher,

(2014) N.S.J. No. 686; Robinson v. Atkinson,

(2004) N.S.J. No. 593, see page 2 of Appellant’s brief) [21] In the case of Lohnes v. Levy,

(2010) N.S.J. No. 396, the adjudicator found the buyer was given every opportunity to have thecar checked before buying it, but instead agreed to buy it and have it checked later. [22] Finally, I have considered the case of Keefer v. Fort, (NS CA), [1978] 27 N.S.R. (2d) 353, referred to by theAdjudicator. I find this case fully supports the Adjudicator’s decision. [23] I find therefore the Adjudicator made no error of law.

Second Ground of Appeal – Breach of Natural Justice [24] I have considered the Appellant’s submission that the Adjudicator erred by not allowing him an adjournment, despite all effortsthat were taken to seek one, as a result of his father being ill in the hospital. [25] I have reviewed the Stated Case with respect to this submission, and I am satisfied based on the Adjudicator’s findings inparagraphs 1 – 10, that the Adjudicator made every reasonable effort to accommodate Mr. Eddy.

This include the Court informing theAppellant that he could keep his cell phone on and if he needed to eave the Court would adjourn the matter at that time. [26] Once again, the facts contained in the stated case indicate that the Appellant stated he was ready to proceed on that basis. TheDefendant did not indicate or state to the Court he could not remain during the continuation of the hearing. [27] This Court, for the record, did extend its respects to the Appellant and his family. [28] In the result, this Court is satisfied the appeal should be dismissed on all grounds. Murray, J.