Popular Shoe Store Ltd. v. Simoni, (1998) 163 Nfld. & P.E.I.R. 100 (NFCA)

• Judge: Mahoney, Marshall and Green, JJ.A.
• Court: Court of Appeal (Newfoundland)
• Case Date: March 10, 1998
• Jurisdiction: Newfoundland and Labrador
• Citations: (1998), 163 Nfld. & P.E.I.R. 100 (NFCA)

Popular Shoe v. Simoni (1998), 163 Nfld. & P.E.I.R. 100 (NFCA);

    503 A.P.R. 100

MLB headnote and full text

Temp. Cite: [1998] Nfld. & P.E.I.R. TBEd. AP.024

Popular Shoe Store Ltd. (appellant) v. Andre Simoni (respondent)

(96/20)

Indexed As: Popular Shoe Store Ltd. v. Simoni

Newfoundland Supreme Court

Court of Appeal

Mahoney, Marshall and Green, JJ.A.

March 20, 1998.

Summary:

The plaintiff brought a small claims action against the defendant for the price of 42 pairs of shoes he removed from her store with the consent of a clerk. The defendant claimed that there was a deal for the sale of the shoes at a discounted price. The judge of the Small Claims Court concluded that there was no contract for the sale of the shoes and ordered the return of the shoes. The plaintiff appealed.

The Newfoundland Supreme Court, Trial Division, in a decision not reported in this series of reports, dismissed the appeal. The plaintiff appealed.

The Newfoundland Court of Appeal held that the shoes were wrongfully taken (con­version) and that the plaintiff was entitled to damages.

Courts - Topic 6476

Provincial courts - Newfoundland - Small Claims Court - General - The Newfound­land Court of Appeal stated that "[a] Small Claims Court judge has a duty, on being presented with facts that fall broadly with­in the umbrella of the circumstances described in the statement of claim, to determine whether those facts constitute a cause of action known to the law, regard­less of whether it can be said that the claimant, as a matter of pleading, has asserted that or any other particular cause of action. Subject to considerations of fairness and surprise to the other side, if a cause of action has been established, the appropriate remedy, within the subject-matter jurisdiction of the court, ought to be granted" - See paragraph 25.

Courts - Topic 6478

Provincial courts - Newfoundland - Small Claims Court - Jurisdiction - Civil debt or damages - The plaintiff brought a small claims action against the defendant for the price of 42 pairs of shoes that the defend­ant removed from her store with the con­sent of a clerk - The defendant submitted that he had made a deal to buy the shoes at a discounted price because they were old stock - The defendant stated that he had sold about ten pairs of shoes and offered to return the remaining shoes - The New­foundland Court of Appeal stated that the Small Claims Court had no juris­diction to order the return of the remaining shoes - See paragraphs 27 to 34.

Torts - Topic 3095

Trespass - Trespass to goods - Conver­sion - What constitutes wrongful seizure and conversion - The plaintiff alleged that the defendant wrongfully took 42 pairs of shoes at $136 per pair from her store with the consent of a clerk - The defendant claimed that he had a deal to purchase the shoes at a discounted price of $30 per pair because they were old stock - The New­foundland Court of Appeal held that the tort of conversion had been committed and the defendant was liable in damages to the plaintiff - The court awarded damages in the amount of $65 per pair - See para­graphs 20 to 50.

Torts - Topic 3107

Trespass - Trespass to goods - Conver­sion - Damages - General - [See Torts - Topic 3095 ].

Cases Noticed:

Peruvian Guano Co. v. Dreyfus Brothers, [1892] A.C. 166, refd to [para. 31].

Duryea v. Kaufman, [1912] 2 D.L.R. 468 (Ont. H.C.), refd to. [para. 32].

Harbour Equipment Ltd. et al. v. Canadian National Railway Co. et al. (1976), 25 N.S.R.(2d) 166: 36 A.P.R. 166 (T.D.), refd to. [para. 32].

Canadian Orchestraphone Ltd. v. British Canadian Trust Co., [1932] 4 D.L.R. 86 (Alta. C.A.), refd to. [para. 43].

Statutes Noticed:

Small Claims Court Act, R.S.N. 1990, c. S-16, sect. 3 [para. 29].

Authors and Works Noticed:

Fleming, Law of Torts (6th Ed.), p. 49 [para. 23].

Counsel:

J. Keir O'Flaherty, for the appellant;

Andre Simoni, on his own behalf.

This appeal was heard on March 10, 1998, before Mahoney,Marshall and Green, JJ.A., of the Newfoundland Court of Appeal. On March 20, 1998, Green, J.A., delivered the following judgment for the court.