Losier v. Gen. Electrical Capital (1989), 102 N.B.R.(2d) 63 (TD);
102 R.N.-B.(2e) 63; 256 A.P.R. 63
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[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
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Donat Losier (plaintiff) v. General Electrical Capital Equipment Finance Inc. (defendant) (B/C/350/88)
Indexed As: Losier v. Financement d’équipement capital Générale Electrique Inc.
New Brunswick Court of Queen’s Bench
Trial Division
Judicial District of Bathurst
Jean, J.
December 12, 1989.
Summary:
Losier brought an action for damages against Financement d’équipement capital Générale Electrique Inc. (Financement) for wrongful repossession of a truck subject to a chattel mortgage.
The New Brunswick Court of Queen’s Bench, Trial Division, allowed the action.
Damages – Topic 1413
Special damages – Loss of wages by self-employed person – Losier, a truck driver working under contract, owned a truck subject to a chattel mortgage – The mortgagee, contrary to representations made to Losier, repossessed the truck without prior notice – Losier sued claiming, inter alia, compensation for loss of wages – The New Brunswick Court of Queen’s Bench, Trial Division, awarded compensation corresponding to six months’ salary, in the sum of $13,000 – See paragraphs 66 to 69.
Chattel Mortgages and Bills of Sale – Topic 5912
Seizure and sale – Wrongful seizure – Measure of damages – Losier, a truck driver working under contract, owned a truck subject to a chattel mortgage – The mortgagee, contrary to representations made to Losier, repossessed the truck without prior notice – The truck was sold at a price which covered the debt owed by Losier, but it was worth more – The New Brunswick Court of Queen’s Bench, Trial Division, awarded Losier the difference between the sale price and the truck’s true value – See paragraphs 60 to 65.
Estoppel – Topic 1103
Estoppel by conduct – Representation by statement – Representations which found estoppel – Losier owned a truck subject to a chattel mortgage – However, the mortgagee tolerated breaches in the terms of his contract with Losier – Among other things, he led Losier to believe that he would be given prior notice in case the truck were to be repossessed, a requirement not contained in the contract – However, when the mortgagee repossessed the truck, he gave no notice – The New Brunswick Court of Queen’s Bench, Trial Division, held that in this case the mortgagee could not enforce the original terms of the contract because of the representations he had made to Losier – See paragraphs 1 to 59.
Cases Noticed:
John Burrows Ltd. v. Subsurface Surveys Ltd. et al., [1968] S.C.R. 607, consd. [paras. 39, 40, 43, 44].
Re Westmorland Home Insulators Ltd. et al. v. Bank of Montreal (1982), 35 N.B.R.(2d) 386; 88 A.P.R. 386, consd. [paras. 39, 45].
Hughes v. Metropolitan Railway (1877), 2 A.C. 439, consd. [para. 42].
Statutes Noticed:
Rules of Court (N.B.), rule 59.08 [para. 71].
Authors and Works Noticed:
Snell’s Principles of Equity (27th Ed. 1973), p. 563 [para. 45].
Counsel:
Cedric L. Haines, for the plaintiff;
Deno P. Pappas, for the defendant.
This action was heard on August 24 and 25, 1989, before Jean, J., of the New Brunswick Court of Queen’s Bench, Trial Division, Judicial District of Bathurst.
Jean, J., delivered the following decision on December 12, 1989.
