Wentzell v. Bedford Flooring

Wentzell v. Bedford Flooring Court Small Claims Court Date 2009-03-24 Citation 2009 NSSM 25 Docket 303965 Judge/Registrar/Adjudicator Casey, Patrick L. (Adjudicator) Document Type Decision Decision Content Claim No: 303965 Date:20090324 IN THE SMALL CLAIMS COURT OF NOVA SCOTIA Cite as: Wentzell v. Bedford Flooring, 2009 NSSM 25 BETWEEN: Name Justin Benaiah Wentzell Claimant Name Michael Gaudet, carrying on business as Bedford Flooring Defendant Revised Decision: The text of the original decision has been revised to remove addresses of the parties on July 3, 2009. DECISION BACKGROUND OF CLAIM (1) The Claimant, Justin Benaiah Wentzell, claims the sum of $4,300.00 plus interest and costs from the Defendant, Michael Gaudet, carrying on business as Bedford Flooring. (2) The claim relates to labour supplied by the Claimant for the benefit of various third parties. The Claimant states that he had a contractual relationship with the Defendant whereby the Defendant would reimburse him for his services. The Defendant denies any such arrangement. (3) The Defendant states that the Claimant’s contract was with NE Homes Limited, a contractor with whom the Defendant had dealings, and not with the Defendant. (4) The Defendant is in the flooring business. The Claimant began work as an installer for the Defendant in the summer months of 2008. During that time period, the arrangement between the parties was that the Defendant would hire the Claimant to go to the site for various customers of the Defendant, take measurements, and perform installation of flooring. The Claimant would invoice the Defendant directly, and the Defendant would invoice the customer. POSITION OF THE CLAIMANT (5) The parties had a discussion in late August 2008, at which time, the Defendant mentioned that he knew a contractor, NE Homes Limited (owned by Dennis Murphy), who had approached him for a hardwood flooring and ceramic tile job that needed to be done right away. (6) The Claimant’s evidence is that he subsequently did work on job sites at 116 Brooke Street, 2 Bright Court, 90 Hazelholme Drive, and a property on Calvin Grove. (7) He submitted invoices to the Defendant in the usual manner, however, those invoices have gone unpaid. POSITION OF THE DEFENDANT (8) The Defendant testified that he did have contact with Dennis Murphy of NE Homes Limited, however, they were not looking for flooring product, only an installer. His position is that he simply referred the Claimant to the Defendant but did not supply any product he was selling, at least initially. (9) He states that with the exception of the Hazelholme property, therefore, that the relationship in respect of the work completed for NE Homes Limited by the Claimant was that the Claimant was dealing directly with NE Homes Limited and contracted directly with them and that there was no contract between the Claimant and the Defendant. ANALYSIS (10) An issue of credibility is at the center of this dispute. (11) The evidence given by the Claimant and the Defendant differs fundamentally. (12) When reconciling this issue, I am mindful that at all times, the burden of proof is on the Claimant to prove the claim on a balance of probabilities. (13) I have carefully considered the evidence of the parties, both of whom testified in this proceeding at great length, as well as the evidence of the witness Tyler Montgomery. (14) The evidence of Tyler Montgomery was not particularly helpful in reconciling the evidence of the parties. Mr. Montgomery was not present when the Claimant and the Defendant had their discussions concerning the basis upon which the Defendant was being retained. While he was present on one occasion when the Defendant alleges that the Claimant called the Defendant to stop work on a particular project, once again, those discussions were between the Claimant and the Defendant and Mr. Montgomery was not a party to them. Any conclusions reached by Mr. Montgomery, therefore, were based solely on information received from third parties and not reliable to either prove or refute the respective positions of the parties. (15) The central issue is who is the more reliable witness, the Claimant or the Defendant. For the reasons expressed below, I prefer the evidence of the Claimant over the evidence of the Defendant where there is a difference. I summarize my reasons as follows: (a) The Defendant, in his Defence, stated that the Claimant’s contract was with NE Homes (Dennis Murphy) and not with the Defendant, however, in his evidence, the Defendant admitted that with respect to at least one of the contracts, namely, the Hazelholme job, he did contract the Claimant’s services and admits that he owes money to the Claimant for this particular job. When this contradiction was put to him on cross-examination, the Defendant could offer no clear reason why his evidence departed in this fundamental way from his Statement of Defence filed in the proceeding. (b) The Defendant admits that there was an arrangement with NE Homes (Dennis Murphy) that he would be paid a total sum of $17,000.00 for various jobs. He also admitted that he received a $2,000.00 deposit in respect of these jobs. Upon cross-examination, the Claimant attempted to establish what jobs this related to. The Defendant’s answers were incomplete and of little assistance to the Court. He stated that he did not bring any documents to the Court to prove the basis of the $17,000.00 contract, although those records were clearly within his control. The explanation provided for this was that he didn’t realize that this information was relevant. (c) The Defendant denied having received invoices from the Claimant, although the Claimant stated that he provided them and testified as to the dates that he provided them and stated that he provided the Defendant with a second copy when the Claimant appeared to have lost them or misplaced them. I conclude that the Defendant’s evidence is simply a rationalization to justify why he did not dispute the invoices until NE Homes defaulted on the payment to him. (d) The Defendant stated that there was no written contract between the parties, however, he did not produce any written contract between the parties for any previous dealings, although he stated there were such contracts. He could provide no reasonable explanation why he did not bring examples of such written contracts to the hearing. (e) The Claimant’s evidence was provided in a detailed and straightforward manner, however, the Defendant’s evidence was vague, self-serving, disjointed and incomplete in several material respects, and contradicted his own Statement of Defence. FINDINGS (16) I find that there was a verbal contract between the Claimant and the Defendant whereby the Defendant hired the Claimant as an installer to work on various projects on behalf of the Defendant’s contact, NE Homes. (17) I find that the Claimant invoiced the Defendant in accordance with past practices for each of the four jobs and that those invoices were received by the Defendant and remain unpaid. (18) There were contractual arrangements between the Defendant and NE Homes and pursuant to that contract, the Defendant received a deposit of $2,000.00 and the balance of $15,000.00 remains unpaid. (19) The basis of the contractual arrangements in this case were similar to previous arrangements between the parties. The Claimant had every reason to believe that he was dealing with the Defendant and not with NE Homes. The Claimant quite properly invoiced the Defendant, and those invoices have not been paid. (20) Even if the Defendant did not supply any material with respect to some of the jobs in question, the benefit or potential benefit to the Defendant arose from the nature of his contractual dealings with NE Homes, from which the Defendant had an expectation of profit. (21) The fact that the Defendant has not been paid by NE Homes is not a reason to justify the Defendant not paying the Claimant in this case. (22) The Defendant disputed the $100.00 sum on the Hazelholme invoice for labour and mileage for exchange and delivery of new hardwood, however, I accept the Claimant’s explanation as reasonable. The Claimant has proven the claim in every respect. (23) Since the amounts exceed the amount stated in the Notice of Claim, however, I will limit the claim to $4,300.00 plus interest and costs, and I award the Claimant this amount. (24) Interest is awarded to the Claimant at the rate of 4% per annum from the date of the claim to the date of the hearing, approximately three (3) months or $45.00. (25) The Claimant shall have his proven costs in the amount of $87.06. Dated at Dartmouth, Nova Scotia, on March 24, 2009. ______________________________ Patrick L. Casey, Q.C., Adjudicator OriginalCopyCopy Court FileClaimant(s)Defendant(s)