Holowaychuk v. Makowichuk, 2015 ABQB 767

Court of Queen ’ s Bench of Alberta Citation: Holowaychuk v. Makowichuk, 2015 ABQB 767 Date: 20151203 Docket: 1203 05939 Registry: Edmonton Between: Steve Holowaychuk Plaintiff - and - Bobby Michael Makowichuk Defendant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice B.R. Burrows _______________________________________________________ [ 1 ] Steve Holowaychuk claims $32,710.00 plus interest as the unpaid price of 1210 round bales of hay he claims he sold to Bobby Michael Makowichuk in the fall of 2011. Mr.

Makowichuk acknowledges he received 203 bales of hay for which he paid Mr. Holowaychuk $5000, the full price. He denies that he received any bales beyond the 203. [ 2 ] The sworn testimony of the two parties is in very stark conflict. [ 3 ] Mr. Holowaychuk swears that he himself loaded 1210 bales onto Mr. Makowichuk’s truck and trailer unit, which Mr. Makowichuk himself brought onto Mr. Holowaychuk’s land, over the course of six days (September 25, and October 8, 9, 10, 11 and 12, 2011). There were 42 loads in total. He swears that Mr.

Makowichuk paid $5000 in advance of taking delivery of any hay but never paid the remainder of the price, $32,000, after delivery was complete. He swears that Mr. Makowichuk ignored his subsequent requests

for payment. [ 4 ] Mr. Makowichuk swears that he attended at Mr. Holowaychuk’s land and took delivery of seven loads of hay on two days, October 8 and 9, 2011. He swears that he did not attend at Mr. Holowaychuk’s farm on September 25, October 10, 11 or 12 and took no hay from Mr. Holowaychuk on those days. He swears he took delivery of only 203 bales and that he paid the agreed price, $5000, for those bales. [ 5 ] Counsel agree that the issue for the court is entirely one of credibility. Clearly only one of the parties has been truthful in his sworn testimony.

The other has not been. [ 6 ] I have concluded that Mr. Holowaychuk has been truthful and that Mr. Makowichuk has not been. I grant Mr. Holowaychuk judgment against Mr. Makowichuk. Mr. Holowaychuk’s Evidence [ 7 ] Steve Holowaychuk, the Plaintiff, has been farming hay on his farm in the Smoky Lake area for over 40 years. Prior to 2010 he had a maximum of about 215 acres in hay – less in years when it was necessary to renew the land with a year of summer fallow and a year of a grain crop. The hay was grown on two plots of land: a half

section referred to as the “Old Home Farm” and a quarter

section which Mr. Holowaychuk referred to as the “Cuba Farm” because it was bought from a Mr. Cuba many years ago. In the summer of 2010 he added about 225 acres for hay when he bought a ½

section from John Juspink (this was referred to as the Juspink Farm). In the summers of 2010 and 2011 he had, in total, 440 acres in hay. [ 8 ] Mr. Holowaychuk’s records show that in the summer of 2010 he made about 1120 round bales of hay. There is a confusion in his records which makes it unclear whether it was 1112 bales or 1129 bales. At the beginning of the 2011 growing season, he had 627 of the 2010 bales left in inventory. There were unsold bales because though he had doubled his production capacity in 2010, he had not acquired any new hay purchasers.

The 2010 bales were stored near the Old Home Farm yard and on the Cuba Farm. [ 9 ] Mr. Holowaychuk’s records show that he made 1082 bales in the summer of 2011. So in the fall of 2011 he had an inventory of 1709 bales. [ 10 ] Mr. Holowaychuk testified that in September 2011, Mr. Makowichuk called him to inquire about buying hay. Mr. Makowichuk had similarly inquired by telephone in 2010 but had not followed through. Mr. Holowaychuk had not dealt with Mr. Makowichuk before. In the evening of September 12, 2011, Mr. Makowichuk came to Mr. Holowaychuk’s farm to look at the hay. He asked how much hay Mr.

Holowaychuk had to sell. Mr. Holowaychuk said he had about 1000 bales. I infer that this took into account what he knew he would be selling to two historically regular customers. Mr. Makowichuk said he would buy all that Mr. Holowaychuk had to sell. He gave Mr. Holowaychuk a cheque for $5000. He wrote “200 bales” on the memo line of the cheque. A couple of days later he asked for an invoice for the $5000 and Mr. Holowaychuk wrote one which recorded a sale of 200 bales for $5000, and gave it to him. Mr. Holowaychuk understood the $5000 to be a deposit against the purchase of the approximately 1000 bales which Mr.

Makowichuk had spoken for. It was arranged that Mr. Makowichuk would call when he wanted to take delivery of the hay. Mr. Makowichuk told Mr. Holowaychuk that he would pay for the remainder of the hay not covered by the $5000 in November after he had sold his calves at the end of October. [ 11 ] On Sunday, September 25, 2011, Mr. Makowichuk called to say he wanted to haul hay that day. Mr. Holowaychuk agreed. That day Mr. Makowichuk hauled hay from the Cuba Farm. This was not the hay he had inspected on September 12. Mr. Holowaychuk loaded the bales on the hay trailer of Mr. Makowichuk’s truck and trailer rig.

The truck was a blue Peterbilt and the trailer was specially designed for hauling hay bales. The trailer would hold 29 bales in one load assuming that the hay was not strapped down. On September 25, Mr. Makowichuk made six trips from the Cuba farm to his own place, each of 29 bales, for a total of 174 bales. Mr. Holowaychuk waited in the field between trips for Mr. Makowichuk to return from unloading the bales at his own farm which was, according to Mr. Holowaychuk, 12 miles away. At the end of the day there were 18 bales left on the Cuba farm. [ 12 ] Mr. Makowichuk resumed hauling hay on Saturday, October 8.

He hauled the remaining 18 bales from the Cuba farm and then moved to the Juspink Farm and the Old Home Farm adjacent to it. He hauled all that day and all the following four days, for a total of six days counting September 25. In total, he hauled 42 loads for a total of 1210 bales. (Mr. Holowaychuk’s records indicate 41 loads of 29 bales and one load of 21 bales for a total of 1210 bales.) [ 13 ] Mr. Holowaychuk kept track of the loads of hay he loaded on Mr. Makowichuk’s hay trailer on the six days in a small notebook which he kept with him.

It shows the time that each of the 42 loads were finished loading on each of the six days on which Mr. Makowichuk hauled hay. There is a separate page for each of the six days in the note book. [ 14 ] When the last load had been loaded onto Mr. Makowichuk’s truck on October 12, 2011, he gave Mr. Makowichuk a handwritten statement setting out the number of bales of various qualities which had been loaded from each of the locations where hay had been loaded, along with the cost of the hay which varied according the quality of the hay loaded.

There were several categories of hay noted on the statement: - “old hay” which was priced at $20 a bale - “last year hay” which was priced at $25 a bale - “some rain” (hay on which some rain had fallen after it was cut and before it was baled) which was priced at $30 a bale - “new hay” which was priced at $35 a bale - “no rain” which was also priced at $35 a bale

- “second cut” which was also priced at $35 a bale [ 15 ] The total charge to Mr. Makowichuk after credit for the $5000 he had already paid, and after a “discount” of $710, was $32,000.00. [ 16 ] Mr. Holowaychuk testified that he prepared a second handwritten copy of the statement he presented to Mr. Makowichuk at the end of the hay hauling on October 12, to keep for his own records. A copy of that copy of the handwritten statement is Appendix A to these reasons. [ 17 ] Mr. Makowichuk told Mr.

Holowaychuk that he had 145 head of cattle and would be selling calves at the end of October and would pay for the hay in November. In November, Mr. Holowaychuk called him but could never get an answer. He left messages. [ 18 ] On November 16, 2011, Mr. Holowaychuk wrote and sent to Mr. Makowichuk by registered mail an invoice for $32,000 for 1018 bales of hay marked “To be paid by Nov. 30/2011”. He received no payment or response whatsoever. He received no explanation for Mr. Makowichuk’s failure to pay. This action was commenced on April 19, 2012. [ 19 ] Mr.

Holowaychuk’s records indicate that in 2011 he sold 200 bales to one long term customer and 251 bales to another long term customer. He had also sold 200 bales to Mr. Makowichuk not included on the November 16 invoice. The total bales sold in 2011 according to Mr. Holowaychuk’s records was 1669. The original inventory was 1709. 40 bales are unaccounted for. Mr. Holowaychuk indicated that he would give some poor quality bales without charge to his long term customers. He testified that at the end of 2011, he had no bales to carry over to 2012. Evidence Supporting Mr. Holowaychuk’s Evidence [ 20 ] Mr.

Holowaychuk called several witnesses to corroborate his evidence. Harry Holowaychuk [ 21 ] Harry Holowaychuk is Mr. Holowaychuk’s brother. He is a lab technologist with Imperial Oil and resides in Sherwood Park, Alberta. He co-owns the Juspink Farm with Mr. Holowaychuk. He also owns a quarter

section about 4.5 miles from the “Old Home Farm” on which there is a gravel operation. He travels to the area frequently to monitor the gravel operation. He often stays with Mr. Holowaychuk on such visits. He keeps a record of his trips for tax purposes. He sometimes helps Mr. Holowaychuk with his hay operation. [ 22 ] Harry Holowaychuk confirmed that he and Mr. Holowaychuk bought the Juspink Farm in 2010 and that there was no buyer for the hay that was produced on the newly acquired land in the 2010 season.

There were 500 to 700 bales held over. [ 23 ] Harry Holowaychuk testified that he saw Bob Makowichuk on September 25, 2011, on the Cuba Farm hay field. His records confirm that he travelled to the farm that day. Harry and his wife and dogs had come from Sherwood Park. They found Mr. Holowaychuk on the Cuba Farm in his tractor waiting to load hay. He chatted with Mr. Holowaychuk and towards the end of the half hour that he was there, Mr. Makowichuk arrived in his truck to take delivery of hay bales. It was a blue Freightliner truck. Mr.

Makowichuk, whom Harry Holowaychuk identified in the court room as he testified, was driving. He saw Mr. Makowichuk’s face from a distance of 3 or 4 meters or less. [ 24 ] Harry Holowaychuk was also at his brother’s farm on the October 8 weekend. He saw Mr. Holowaychuk loading hay on the same blue truck and trailer unit as he had seen on September 25 on the Old Home Farm both in the morning and in the afternoon on both October 8 and October 9. He returned to Sherwood Park on October 9. [ 25 ] The next time Harry Holowaychuk was at the farm was October 28, 2011.

He saw that all the hay bales were gone from the Old Home Farm and the Juspink Farm. John Holowaychuk [ 26 ] John Holowaychuk is another brother of Mr. Holowaychuk’s. He lives on a farm about 1½ miles from the Old Home Farm. His farm is on the route between Mr. Holowaychuk’s farm and Mr. Makowichuk’s farm. There is an intersection next to his farm where traffic coming from the Old Home Farm en route to Mr. Makowichuk’s farm must stop. [ 27 ] John Holowaychuk does not know Mr.

Makowichuk. [ 28 ] He saw a blue truck (he thinks it was a Peterbilt truck) loaded with hay passing his house and stopping at the intersection many times a day on October 8, 9, 10, 11 and 12, 2011. Monday, October 10 was Thanksgiving. [ 29 ] On October 11, 2011, John Holowaychuk was at Mr. Holowaychuk’s farm (Juspink Farm). He saw the same truck as he saw passing his own farm taking delivery of bales in the field. [ 30 ] Mr. Holowaychuk went to John Holowaychuk’s home for Thanksgiving dinner on the evening of October 11. There was discussion about the hay hauling. Mr.

Holowaychuk showed John Holowaychuk the record he was keeping of the loads that were hauled. He showed John Holowaychuk that record again several weeks later when he had not received payment for the hay from Mr. Makowichuk. Karen Holowaychuk [ 31 ] Karen Holowaychuk, an RCMP officer, is Mr. Holowaychuk’s niece. John Holowaychuk is her father. She visited her father on the Thanksgiving weekend of 2011. She was there on October 9 and 10. She recalled seeing a bale hauler passing her father’s farm from the west (the direction of the Old Home Farm). She does not remember if she saw it on October 9 or 10.

[ 32 ] She also recalls that her uncle consulted her about Mr. Makowichuk not paying for the hay and that she advised him that it was not a criminal matter. It was a civil matter and he should contact a lawyer. Shirley May Lamash [ 33 ] In the fall of 2011, Ms. Lamash was a neighbor of Mr. Holowaychuk’s. She lived ½ mile south of Mr. Holowaychuk’s farm. She testified that in the fall of 2011, she saw or heard a blue truck driving by her place many times on 3 or 4 days. It is a gravel road and the truck threw up dust which blew into her place. The 3 or 4 days were around Thanksgiving Day.

One of them, however, was not Thanksgiving Day. She did not see the truck on Thanksgiving Day because she was not home on Thanksgiving Day. Mr. Holowaychuk talked to her about what she had seen and the days that hay had been hauled from his farm when he asked her to be a witness at this trial. Linda Mica Brodyk [ 34 ] Ms. Brodyk testified that she and her father, who run a small cattle operation on a farm 10 or 12 miles from Mr. Holowaychuk’s farm, have bought hay from Mr. Holowaychuk for many years. She identified an invoice dated November 1, 2011, as relating to the purchase she made in 2011.

She bought 200 bales. She testified that Mr. Holowaychuk would call when the hay was ready and she would go and select the hay that she wanted to buy. She always had first pick. She had a third party haul the hay. [ 35 ] In 2011, the hay was delivered sometime in October; she was not precise as to when. At one point in her evidence, she said mid to late October but then settled on a less precise answer – sometime in October. The date of the invoice, November 1, was the date that she paid for the hay. Evidence of Bobby Michael Makowichuk [ 36 ] Mr.

Makowichuk, the Defendant, is a farmer and a construction worker. [ 37 ] He testified that he has 135 head of cattle now and had the same number in 2011. He buys hay for his cattle for the winter each September. He testified that he needs five round bales for each cow for the winter – so a total of about 675 bales. [ 38 ] In the fall of 2011, he had 300 bales left from the previous year. He bought 130 from his cousin and needed 200 more. He saw Mr. Holowaychuk’s ad advising that he had hay for sale and called him. On September 12, he went to Mr.

Holowaychuk’s farm, inspected the hay on the Old Home Farm and agreed to buy 200 bales at $25 a bale. He told Mr. Holowaychuk that he could not take delivery until Thanksgiving weekend because that is when he would next have time off from his construction job. Mr. Holowaychuk wanted him to pay for the hay then, and he gave Mr. Holowaychuk a cheque for $5000, the price of the 200 bales. [ 39 ] Mr. Makowichuk testified that he did not tell Mr. Holowaychuk that he would buy all the hay he had available. He agreed to purchase only $200 bales.

The $5000 was not a deposit – it was payment for 200 bales which he wrote on the “memo” line of the cheque. [ 40 ] Mr. Makowichuk attended at Mr. Holowaychuk’s farm, the Old Home Farm, on October 8 and 9 only, in his Peterbilt truck with a Trident High Board trailer to haul the hay. Mr. Holowaychuk loaded the hay bales on the trailer. He hauled four loads on October 8 and three loads on October 9. Each load consisted of 29 bales. He received a total of 203 bales. He did not haul hay on any other days. [ 41 ] Mr.

Makowichuk testified that 23 of the bales he received were 2011 hay and six bales were 2011 second cut hay – both higher quality than he had agreed to buy. Mr. Holowaychuk included those bales so that Mr. Makowichuk could test them to see if he wanted more. He was not asked either in examination in chief or in cross-examination as to the result of this testing or any further discussion with Mr. Holowaychuk on that point. [ 42 ] Mr. Makowichuk testified as well that his construction job was with In-Line Construction. He was equipment operator. He worked seasonally.

In the fall of 2011, he was working on a water pipe project in the Redwater area. He testified that he was at that job from 7 a.m. to 7 p.m. on September 25, October 11 and 12. He produced time sheets for the relevant weeks which show that he worked 12 hours on September 25, and October 11 and 12. He was off work on October 7, 8, 9 and 10. [ 43 ] Mr. Makowichuk denied that he requested or picked up an invoice for the 200 bales of hay on September 14, two days after he had given Mr. Holowaychuk the $5000 cheque. He denied ever having a copy of the September 14 invoice. As noted. Mr. Holowaychuk testified that Mr.

Makowichuk requested and he gave him an invoice to match the $5000 cheque. [ 44 ] Mr. Makowichuk also denied that Mr. Holowaychuk gave him the handwritten statement, Mr. Holowaychuk’s copy of which is Appendix A to these reasons. Rather, he testified, Mr. Holowaychuk gave him a small piece of paper which is about 15 cm long and 5 cm wide. It refers to a total of 192 bales for a total cost of $5720 and indicates that $5000 had been paid. A copy is attached as Appendix B to these reasons. [ 45 ] Mr. Makowichuk denied ever being at the Cuba Farm much less having loaded hay there on September 25.

He denied seeing Harry Holowaychuk or his dogs on September 25 or ever before the trial. [ 46 ] Mr. Makowichuk acknowledged that he received an invoice from Mr. Holowaychuk indicating that he had received 1210 bales and owed Mr. Holowaychuk $32,000. He testified that he ignored this document. He testified, “It was of no concern to me. I had paid for what I got.” He denied that Mr. Holowaychuk had called him or left messages for him to call. Evidence in Support of Mr. Makowichuk’s Evidence

Sandra McDonald [ 47 ] Mr. Makowichuk called one witness besides himself, Sandra McDonald. Ms. McDonald is the comptroller at In-Line Contracting for which, as noted, Mr. Makowichuk works seasonally as an equipment operator. Ms. McDonald did not work at In-Line in the fall of 2011. [ 48 ] Ms. McDonald confirmed that the time sheets which Mr. Makowichuk had identified were in In-Line’s records and that he had been paid for the hours he had claimed to work on those dates. Assessment of the Evidence [ 49 ] I do not accept Mr. Makowichuk’s evidence. I find it not credible.

I have reached that conclusion for several reasons. [ 50 ] First, I note Mr. Makowichuk’s evidence that in November 2011, he received an invoice from Mr. Holowaychuk which indicated that he had purchased 1018 round bales of hay and owed Mr. Holowaychuk $32,000 which was to be paid by November 30, 2011, but that he did not respond to this invoice at all. [ 51 ] One would expect that a reasonable person, on receipt of such an invoice would, if the invoice was false, immediately contact the seller and say that there must be some mistake.

Perhaps, if there was an outstanding dispute between the parties at the time the invoice was received, the party receiving it might not communicate with the sender – but there is no evidence whatsoever before me of any such dispute prior to the failure of Mr. Makowichuk to respond to the November invoice. Mr. Makowichuk’s conduct in not protesting the invoice when it was received significantly damages his credibility. [ 52 ] Second, I note that Mr. Makowichuk acknowledges receipt of a small piece of paper from Mr. Holowaychuk at the conclusion of the hauling of hay. He says this was on October 9, 2011.

The paper he says he got indicated that he had received 192 bales. One hundred bales were made of hay from 2010, and were priced at $25.00 each. Ninety-two bales were made of hay from 2011, and were priced were at $35 each. The total price indicated was $5720. Receipt of $5000 in payment was noted, leaving $720 owing. [ 53 ] By Mr. Makowichuk’s version of the facts, this document was not accurate. According to him, he had bought 200 bales at $25 for a total of $5000 which he had paid. Yet, he testified, he said nothing to Mr.

Holowaychuk about the inaccuracy of the statement he says he received. [ 54 ] Again, one would except a reasonable person who received an inaccurate statement indicating that he had received 92 bales of new hay when in fact it was old hay, indicating that the price of those bales was not the price that been agreed, and indicating that there was a balance of $720 owing when in fact there was no balance owing, to say something – to register a protest with the person he was dealing with. Mr. Makowichuk did not. [ 55 ] But more significant is the fact that physical examination of the statement document Mr.

Makowichuk testified he received from Mr. Holowaychuk on the last day of hauling supports the conclusion that the document has been altered – that it was originally a statement written on a full page, and that the top portion of the page has been cut off with scissors. [ 56 ] The information on the statement Mr. Makowichuk acknowledges receiving, copied in Appendix B, is in exactly the same format as the first

section of the statement which is Appendix A (save a reference to the price per bale which appears to have been added to the document). The left side of the page is tattered and the top edge shows signs of wear from handling. By contrast, the bottom edge is clean and straight, though not exactly perpendicular to the right edge of the paper. It appears to have been cut with scissors. There are some small blue marks along the cut edge which appear to be the tops of some of the letters which were on the part of the sheet which has been cut off.

It appears probable that the Appendix B is the top of the copy of Appendix A which Mr. Holowaychuk testified he presented to Mr. Makowichuk when the last load of hay bales had been loaded on October 12. [ 57 ] Mr. Makowichuk denied cutting the document with scissors. He denied being able to see the blue marks which appear to be the tops of the letters of the first line of writing on the part of the document which appears to have been cut off. Neither denial is credible. [ 58 ] I accept Mr. Holowaychuk’s evidence that he presented Mr. Makowichuk with a handwritten statement of which Appendix A is a copy.

I find that Mr. Makowichuk cut off the top

section of that document and testified that this was all he received. His apparent purpose in doing so was to support his denial that he received the full statement because if he had, it would be unbelievable that he would not have disputed its content with Mr. Holowaychuk when the document was presented, if it fact it was not accurate. I find that he in fact did receive the whole statement and did not dispute its contents because it was, in fact, accurate. [ 59 ] There was also a feature of Mr. Makowichuk’s demeanour when he testified that in my view damaged his credibility.

He answered many questions both in examination in chief and in cross examination with an offended tone. His tone communicated that he took personal affront at the suggestion, implicit in this contest of credibility, that it was he who was being untruthful. For him to take affront in his trial testimony when he had had no reaction whatsoever to what he says was a grossly inaccurate statement and invoice received from Mr. Holowaychuk was troublingly inconsistent. [ 60 ] Mr. Makowichuk offered no independent corroboration for aspects of his evidence for which it might have existed.

He testified that he had 135 head of cattle and needed 5 bales for each cow for the winter. No record that he owned 135 head was offered. He testified that he had 300 bales left over from 2010 and bought 150 from a cousin and therefore only needed 200 more. No record of his 2010 acquisition of hay or of his purchase from his cousin was offered. He testified that his practise was to buy only the hay he needed for one winter and did not buy hay to carry over to 2012. He said that one year’s supply of hay was plenty for him.

Yet, he testified that he did carry over 300 bales from 2010 to 2011. [ 61 ] I note the evidence that the records of In-Line Construction indicate that Mr. Makowichuk worked for that firm for 12 hours on each of September 25, October 11 and 12, 2011 and therefore could not have been at Mr. Holowaychuk’s farm on those days taking

delivery of hay bales. This evidence provided no independent corroboration for Mr. Makowichuk’s evidence whatsoever. The witness through whom this evidence was presented, Sandra McDonald, did not see Mr. Makowichuk working on the construction project on those or any other days – she did not work for In-Line at the time. No one who did see Mr. Makowichuk working on the construction project testified. The In-Line time sheets which set out Mr. Makowichuk’s work hours were prepared and signed by Mr. Makowichuk himself. Nothing on their face indicates that their accuracy was vouched for by anyone else. Ms.

McDomald’s evidence proved only that In-Line paid Mr. Makowichuk for September 25, October 11 and 12 – not that he actually worked on In-Line’s project on those days. [ 62 ] By contrast, I found Mr. Holowaychuk’s evidence and the evidence of the other witnesses called by him to be credible. Mr. Holowaychuk produced his records. There were some discrepancies in those records and their format was unsophisticated. These features did more to establish their authenticity than to detract from it. I accept that they were records made at the time that Mr.

Holowaychuk testified they were made and that they are credible evidence supporting his testimony as to the inventory of hay bales he had for sale in the fall of 2011, the sales he made, the number of loads of hay that Mr. Makowichuk took from his farm, and the debt that Mr. Makowichuk owes for the hay he purchased. [ 63 ] The evidence of those who witnessed some part of the loading and hauling of the hay on days besides October 8 and 9 is corroborative of Mr. Holowaychuk’s evidence. The suggestion that all of these witnesses have conspired to make up evidence to support Mr.

Holowaychuk’s version of the facts is unlikely in the extreme. [ 64 ] There were some inconsistencies within and among the testimony of some of the witnesses presented by the Plaintiff. For example Harry Holowaychuk testified that Mr. Makowichuk was operating a Freightliner truck when he came to the Cuba Farm on September 25 whereas Mr. Holowaychuk, John Holowaychuk and Mr. Makowichuk said it was a Peterbilt. This and other similar small inconsistencies served more to increase the credibility of the evidence in which they were found than to reduce it.

The evidence of witnesses who have organized themselves to falsely support one another can be expected to be consistent with respect to such details. [ 65 ] I decline to attach the significance Mr. Makowichuk invited me to attach to the fact that though Mr. Holowaychuk testified that he considered the $5000 a deposit, the cheque and the invoice he prepared did not refer to it as a deposit but suggested it was payment for 200 bales. By both versions of the facts the $5000 was paid several days before any hay was moved from Mr. Holowaychuk’s farm.

The payment in advance of delivery was therefore a form of security to Mr. Holowaychuk and in that sense a deposit. The fact of the payment or its characterization does not provide significant support to either version of the facts. [ 66 ] Mr. Makowichuk suggested that Mr. Holowaychuk’s record of the times when the loading of each truck load of hay was finished could not be accurate because the interval between entries is insufficient for him to have travelled to his farm, unloaded and travelled back.

No independent evidence of the distance involved, the time require to travel it, or the time required to unload, independent, that is, of the testimony of Mr. Makowichuk, was offered. In any event, the times are of little significance. It is the record of the number of loads each day which is significant. [ 67 ] For these reasons I conclude that Mr. Holowaychuk is entitled to judgement against Mr. Makowichuk for $32,000 (the amount of the invoice). He is also entitled to pre-judgment interest from December 1, 2011 and to costs, which, if counsel cannot agree, they may arrange to speak to.

Heard on November 23, 24 and 25, 2015. Dated at the City of Edmonton, Alberta this 3 rd day of December, 2015. B.R. Burrows J.C.Q.B.A. Appearances: Craig S. Lupul for the Plaintiff

Nestor Makuch for the Defendant APPENDIX A APPENDIX B