Chebucto Ford Sales v. Burnett

Chebucto Ford Sales v. Burnett Court Small Claims Court Date 2009-07-29 Citation 2009 NSSM 36 Docket 304689 Judge/Registrar/Adjudicator Slone, Eric K. (Adjudicator) Document Type Decision Decision Content Claim No: 304689 IN THE SMALL CLAIMS COURT OF NOVA SCOTIA Cite as: Chebucto Ford Sales v. Burnett, 2009 NSSM 36 BETWEEN: CHEBUCTO FORD SALES Claimant - and - RICHARD BURNETT Defendant REASONS FOR DECISION BEFORE Eric K. Slone, Adjudicator Hearing held at Dartmouth, Nova Scotia on July 28, 2009 Decision rendered on July 29, 2009 APPEARANCES For the Claimant Valerie Brace - Fixed Operations Manager For the Defendant self-represented BY THE COURT: [1] The Claimant sues for the $1,372.89 balance said to be owing on a repair bill. The Defendant claims that the bill was paid. [2] The circumstances are that the Defendant had been in a minor accident, which was not his fault, and had taken the car in to the Claimant for repairs. The Defendant decided to upgrade a tire, which would be an extra charge over and above what the third party insurance would pay. He was also (for reasons not explained) paying the HST directly. [3] The practice of the Claimant is that when third party insurance payments are expected, they are willing to release the vehicle to the owner. Otherwise they would insist upon full payment before the car can be driven away. These expected payments are placed in a type of holding account. [4] In the circumstances here, the insurance settlement came in the form of a cheque payable directly to the Defendant, who admits that he cashed it. He says that when he came to pick up the car, he paid the entire bill in cash, which consisted of the $1,372.89 insurable repairs as well as the betterment and HST, for a total of $1,624.68. [5] The Claimant insists that the $1,372.89 was not paid at that time, and they were still waiting for the insurance payment. After months of waiting they attempted collection through a collection agency and eventually through this claim. [6] The Defendant produced the original invoice which has a “Paid” stamp on it, with the words “by cash” added by hand. The Claimant argued that this only applied to the portion paid by the Defendant. [7] The Claimant did not produce as a witness the actual person who took the Defendant’s money that day. The only evidence was from the operations manager who was going on what the internal records appear to show. [8] I have no doubt that the internal records show what the Claimant contends. However, the best evidence is the invoice with the indication that it was paid by cash. There is no qualification written there, such as “partly paid” or something like that. The Defendant is adamant that he paid and does not want to pay twice. [9] I allow for the possibility that the Defendant is lying and trying to take advantage of the situation, but I am unwilling to make such a finding based only on the evidence before me. It is at least equally possible that the full amount was paid and recorded incorrectly, because the expectation had been that an insurance cheque was to follow. This Defendant runs a large and busy operation, and mistakes have been known to happen in such situations. [10] As the onus of proof is on the Claimant, I find that the onus has not been met and the claim must be dismissed. Eric K. Slone, Adjudicator