IN THE SMALL CLAIMS COURT OF NOVA SCOTIA

Citation: McDonnell v. 3290499 Nova Scotia Limited, 2023 NSSM 3

 

Claim: SCY No. 514624

Between:

Thomas Gerard McDonnell

— and —

3290499 Nova Scotia Limited (Known as Rhyno's Towing), Jeffery Lynn Rhyno, Matthew Charles Rhyno, Donald Rhyno, Dylan

Gray, Jason Shankle.

Defendant

ADJUDICATOR: Andrew S. Nickerson, K.C.

HEARD: December 8, 2022

DECISION: January 16, 2023

The Claimant - self represented

Julia Goodwin for the Defendants

DECISION

[1]              I wish the parties to know that I have carefully reviewed all of the written material supplied and my notes of the oral evidence. If I do not mention a particular piece of evidence in this decision it is not because I have not considered it but because I have found it does not directly bear on my decision.

[2]              I dismiss the Claim against Jeffery Lynn Rhyno, Matthew Charles Rhynot Donald Rhyno, Dylan Gray, Jason Shankle as there was no evidence that they at any time acted except as agents or employees of the Defendant 3290499 Nova Scotia Limited, which I will refer to as ^“ Rhyno's Towing".

EVIDENCE

[3]              The Claimant stated that on July 1, 2021 his 2005 Nissan was picked up and towed by Rhyno's Towing and taken to a salvage yard. He states that he did not authorize this or request it. He says that when he found the vehicle at the salvage yard there were a number of contents that were missing. He also says that the salvage yard had disassembled the vehicle and sold it to another gentleman by the name of Mr. Poole. He says that when he met with Mr. Poole to recover the vehicle, he found that there was extensive damage to the outside of the vehicle, the engine had been taken apart, the catalytic converter had been removed and he complains of various other damage.

[41 The Claimant requests that the Court award him the cost of a similar vehicle and provided advertisements showing a range of prices between $9988 and $3500. He also claims $875 for various contents of the vehicle which were missing.

[5]             Mr. Matthew Rhyno testified that he was an employee of Rhyno's Towing and did pick up the vehicle in Pembroke, Yarmouth County. He states he had towed it on the instructions of a certain Mr. Townsend. He stated that they had done a lot of work for Mr. Townsend and was familiar that Mr. Townsend had hired Rhyno's towing in the past. Matthew Rhyno testified that he was a licensed collision technician and held a red seal ticket with regard to that trade. Had a lot of experience towing and had taken many courses sponsored by the Canadian Automobile Association. He stated that he was not aware of anything from any of his training that required him to verify the ownership of the vehicle when towing it. He stated that it was never part of the process to confirm the registration and they don't have a database in order to determine ownership. He said that they never ask for confirmation of ownership.

[6]             Mr. Matthew Rhyno does not deny that the vehicle in fact was not owned by Mr. Townsend. He says he got a call from the salvage yard and from Townsend who asked him to pick up the vehicle which was allegedly broken down.

[7]     Mr. Dylan Gray testified on behalf of the Defendant. He said that he was tasked to pick up the vehicle from the salvage yard and was told by the salvage yard that they had put the vehicle back together. He did not look at the vehicle. He says he simply put the vehicle in neutral put his towing straps on and proceeded to retrieve the vehicle. He stated that he never noted anything hanging down from under the vehicle.

ISSUE AND POSITION OF THE PARTIES

[8]             Is Rhyno's towing libel negligence or conversion?

[9]             Ms. Goodwin puts forward an able argument urging that the Court to find no negligence. She says that Rhyno's followed their training and that the employees were experienced. She suggests that the Claimant has not established that Rhyno's is the cause of the loss. She further alleges that Rhyno's was not negligent. She argues that the "but for" test for negligence is not met. She also argues that the damages claimed are remote and not foreseeable.

[10] The Claimant being self represented did not make any sort of technical legal argument as can be expected.

ANALYSIS

[11] I reserved decision because I had doubts that the law would allow someone to simply take another person's property without the least effort to establish ownership. I must disagree with Ms. Goodwin and find that the "but for" test is met. Although I have carefully considered Ms.Goodwin's argument, I have found jurisprudence which states, on very similar facts, that the Defendant can be found liable both in negligence and conversion in the circumstances.

 

[12] I find persuasive Charbonneau v. Mundie's Towing 2008 BCPC 0239. The facts in that case were stated by Judge T.S. Woods succinctly as follows:

[l] In this proceeding the Claimants Rick and Jack Charbonneau (the "Charbonneaus") bring action in relation to the loss of a collector's car—that is, a restored 1969 Chevrolet Beaumont (the "Vehicle"). The Vehicle was towed by the defendant Mundie's Towing, Storage and Service (1976) htd. ("Mundie's") from the street outside the Charbonneaus' property in New Westminster to a location in Sprrey. It is not disputed that Mundie's did so on instructions given by a rogue posing as one of the Charbonneaus. The rogue's identity is not known and the Vehicle has never been recovered.

[13] Judge Woods was focused on the conversion, but also he, in effect, rules that negligence is a tort which is open to a Claimant in the circumstances. As he says:

[4] Mundie's contends that while the facts of this case could perhaps support a claim against it in negligence, they do not raise a cause of action against it in conversion. Mundie's argues, and the Charbonneaus accept, that the Charbonneaus commenced proceedings too late to pursue a claim in negligence (for which the two-year limitation period lapsed 051 March 29, 2006). Myndie's further submits that the Charbonneaus have presented their claim as one in conversion so as to overcome the problem caused for them by their failure to file a negligence claim within the two years stipulated by s. 3(2) of the Limitation Act. Mundies says, in effect, that the Charbonneaus' claim sounds only in negligence and that, on the law, it cannot be re-conceptualised and re-constituted as a claim in conversion in order to defeat a limitation defence.

[14] In addition, I cannot conceive of the situation whereby the facts which support a claim of conversion and yet not be able to support a claim in negligence.

[15] Judge Woods concludes that an intent to physically remove the vehicle is all that is required.

[29] Applying the analytical framework reflected in CIT Financial to the case at bar, the Charbonneaus need only establish that Mundie's intended to perform the physical act of moving the Vehicle from outside their residence to the location in Surrey (from where it was never recovered) in order fulfil the intention requirement of the tort of conversion. Contrary to what Mundie's have submitted, there is no requirement that the admitted facts reveal that Mundie's had an "intention to convert". It is enough, for the purposes of the intention requirement—that is, the mental element of the tort—if the facts reveal an intention to perform the physical act that relocated the Vehicle from A to B.

[16] The facts clearly establish that there was an admitted intent to physically move the vehicle in this case.

[17] He also addresses the possible defence of the Defendant being a "mere conduit"

[63] I have said above that, while I do not consider it necessary or appropriate for me to try to define the limits of the "mere conduit" exception, I consider Mundie's actions on the admitted facts here to lie well outside it. To track the language of Denning M.R. at page 443 in R.H. Willis (quoted above), Mundie's "intervention" in the case at bar "was an efficient cause" of the Charbonneaus' loss of the Vehicle to the rogue for all purposes

[18] This reasoning applies to the case before me, in my view.

[19] After a very careful, well-reasoned and thorough decision, Judge Woods states and answers the following questions:

(a)  Do the agreed facts of this case give rise to a cause of action for conversion by the

Charbonneaus against Mundie's?

Answer: Yes

(b) Can Mundie's on the agreed facts bring itself within the so-called "mere conduit" exception so as to shield itself from liability to the Charbonneaus for conversion of the Vehicle?

Answer: No

(c)  Does ignorance or mistake regarding the consequences of Mundie's acts unseat the prima facie claim against it for conversion?

Answer: No

[20] I agree with Judge Woods analysis. I therefore find the Defendant, Rhyno's Towing, liable to the Claimant. I would have also held that it was negligent of Rhyno's not to make some basic inquiry as to ownership in the circumstances of this case. This is not like a situation where the towing was done at the request of a police officer, where it would be reasonable to rely on the officer's authority.

[21] The matter does not end there. I must make an assessment of damages. I suspect that the vehicle in question, that was in fact recovered, would have some salvage value. I believe I must make some allowance for that.

[22] I am not satisfied that the evidence of the contents of vehicle was clear or the values were established.

[23] The Claimant does put in evidence a number of advertisements for Nissan vehicles of the same approximate age, however it is not clear to me what the mileage or the condition of the Claimant's vehicle at the time of its loss. The burden is on the Claimant to establish the loss by clear evidence on balance of probabilities. The best assessment I make on the material put before me is that the vehicle was not in particularly good shape before this incident (it was inoperable), and as a result I assign a value of $4000 to the vehicle.

 

[241 I then must make some estimate of the salvage value. It was sold to Mr. Poole for $300 which is the best evidence I have of it salvage value. As a result I will award the Claimant $3700. Since my award is below $5000 I will award $99.70 as costs.

Dated at Yarmouth this 16th day of January, 2023.

 

Andrew S. Nickerson K.C., Adjudicator