BETWEEN: Claim No: SCCH - 472150 IN THE SMALL CLAIMS COURT OF NOVA SCOTIA Citation: Bourque Security Services NS v. Maroon Hill Properties Limited, 2018 NSSM 8 BOURQUE SECURITY SERVICES NS Claimant - and - MAROON HILL PROPERTIES LIMITED Defendant REASONS FOR DECISION BEFORE Eric K. Slone, Adjudicator Hearing held at Halifax, Nova Scotia on February 20, 2018 Decision rendered on February 26, 2018 APPEARANCES For the Claimant For the Defendant Timothy Farler, manager Robin Godfrey, owner
-1- BY THE COURT: [1] This is a claim and counterclaim arising out of a contract for security services. [2] The defendant is the owner of several properties on Sackville Drive in Middle Sackville, Nova Scotia. Among the tenants for those properties are a Tim Horton s restaurant and a Pharmasave drug store. There is a common parking lot, which is the source of the problems that led the Defendant hiring a security company. [3] The problem seems to be that this parking lot has become a magnet for people, many of whom are young, who arrive there in their vehicles and hang out without patronizing any of the stores. There have been problems with noise, trash, dope smoking plus the fact that legitimate patrons of Tim Horton's and other stores were intimidated from patronizing the legitimate businesses. The RCMP have been frequent visitors to this area, both on their own initiative as well as at the request of complaining people. [4] Mr. Robin Godfrey is the owner of the Defendant company. After having received many complaints, and realizing that this was a chronic problem, he contacted the Claimant company and sought their help. After a meeting with a representative of the Claimant, a contract dated July 14, 2017 was signed whereby the Claimant company agreed to provide a security guard to be posted at the property for five hours per evening, initially for four nights per week but later amended to five nights per week. This contract has a very specific description of the service, which is to "provide protection of property and physical security at locations owned by Maroon Hill Properties." Later in the document it
-2- states that the Claimant will "act as agents for enforcement of the Protection of Property Act at the sites identified." [5] The Claimant also agreed to "carry out security surveillance, enforcement and reasonable direction from the client " [6] The reference to the Protection of Property Act is critical. That reference is to a provincial statute that allows an owner of property to serve notice in writing that a person is prohibited from entering upon that owner's property for a set period of time. Such a notice (often referred to as a PPA) has the effect of making it a quasi-criminal offense to attend on that property. In other words, it provides a statutory remedy to prevent trespassing by unwanted persons. [7] I accept Mr. Godfrey's evidence that he hired the Claimant because the situation had become somewhat desperate, and he wished to break the cycle, as he put it, and that use of the Protection of Property Act was a significant tool to be utilized. He testified, which testimony I accept, that he expected the Claimant as represented by the on-site security guard, to serve notices under the Protection of Property Act on people who were found to be regularly abusing the privilege of parking in the parking lot. Mr. Godfrey believed that if enough people were barred from parking in the lot, that the situation might gradually improve. [8] The evidence from the Claimant's witnesses suggests that a much gentler and, unfortunately less effective, approach was utilized. The guards kept track of people, walked around the lot from time to time, and made approaches to
advise people that they should move on. This approach appears to have been -3- unsuccessful, as complaints continued to mount. [9] I found particularly telling the answer given by one of the guards, Donald Dugas, when asked by Mr. Godfrey as to whether or not he had issued any notices under the Protection of Property Act. His answer was that he "knew nothing about PPA s." He stated that he did not see this as part of his duty and that he understood his job was to try to break up the congregations of young people and explain to them that they were not welcome on the property. [10] Unfortunately, the individual representative of the Claimant who had negotiated the contract with the Defendant was not able to come to court to testify. I am left with the uncontradicted evidence of Mr. Godfrey to the effect that his instructions to issue PPA s were simply not followed. [11] There is no question that at some point, the Defendant stopped paying invoices coming from the Claimant, and at a later point the Defendant made it known that these services were no longer required. By the time such message was delivered, there were unpaid invoices in the amount of $3,984.75, which is the amount sought in this claim. The defendant has counterclaimed to have returned to it the sum of $1,449.00 representing invoices that it did pay. [12] On a balance of probabilities, I find that the Claimant did not carry out the instructions of its client, the Defendant. I do not think it was unreasonable for the Claimant to have had its guards become familiar with the location and the visitors thereto which were problematic, but at some point it should have become obvious to the guard on duty that his efforts to keep people from loitering in the
parking lot were ineffective. At that point, there ought to have been a resort to the more serious step of issuing PPA's. -4- [13] Under the circumstances, I find that the Claimant has not fulfilled its bargain and is not entitled to be paid its last invoices. I am not allowing the counterclaim, however, because I believe it was reasonable for the short period of time for the services to have been performed as they were. [14] In the result, both the action and counterclaim are dismissed, with no costs payable by or to any party. Eric K. Slone, Adjudicator