Simani Farms Inc. v. Mega Truck & Transportation Ltd., 2017 BCPC 464

Citation: Simani Farms Inc. v. Mega Truck & Transportation Ltd. 2017 BCPC 464 Date: 20171023 File No: C77810 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Small Claims Court BETWEEN: SIMANI FARMS INC. CLAIMANT AND: MEGA TRUCK & TRANSPORTATION LTD. and MEGA CRANES LTD. DEFENDANTS ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D. GAFFAR Counsel for the Claimant: J. Thind Appearing for the Defendants: Kelly Petersen Place of Hearing: Surrey , B.C. Dates of Hearing: October 6, 2016; February 15 and 16, 2017; March 7 and 8, 2017 March 15, 2017; May 26, 2017; June 20, 2017 Date of Judgment: October 23, 2017

A Corrigendum was released by the Court on March 3, 2021. The corrections have been made to the text and the Corrigendum isappended to this document. INTRODUCTION [1] Simani Farms Incorporated seeks compensation for damage to its tractor. The tractor entered a ditch while being operated by aprincipal of Simani Farms, Gary Sekhon. Mega Trucks & Transportation Limited and Mega Cranes Limited, the defendants, provided acrane and crane operator to remove the tractor. Simani Farms argues that the tractor was damaged due to the negligent actions of thedefendant's crane operator.

I will henceforth refer to the defendants collectively as Mega Cranes. [2] Simani Farms seeks tractor repairs of approximately $9,025, reimbursement for the tractor extraction of $1,093.84, plus variouscourt, service and filing-related fees. Simani Farms narrowed its claim after evidence was heard, reducing the amount sought at trial toreflect the actual costs of partial repairs. [3] The defendants deny that their crane operator was negligent when he lifted the tractor. The defence takes the position that anydamage was caused before Mega Cranes attended at the site.

In the alternative, the defendant submits that the paperwork signed by Mr.Sekhon contained clauses that exempted the defendants absolutely from any liability due to their own negligent actions. CENTRAL ISSUES [4] This trial involves the following central issue. First, the claimant must prove that the defendants were liable for the damage on abalance of probabilities. In other words, the claimant must establish that it is more likely than not that the defendant's negligent actionscaused or contributed to the damage on the tractor.

If I find that the defendant's actions caused or contributed to any alleged tractordamage, I must then determine whether the defendant has established, on a balance of probabilities, that the exemption of liabilityclauses were legally valid such that they excused the defendants from any and all liability. If I find that the defendants are not excusedfrom liability as a result of the waiver or liability clauses, I must then assess any quantum of damages based on the evidence before me.

NATURE OF EVIDENCE AT TRIAL [5] In total, this matter was heard over seven days; October 6, 2016, one day; February 15 and 16, 2017, one-and-a-half days; March7, 8, 15, 2017, three days; May 26, 2017, one day; June 20, 2017, one-half day. Only three witnesses were called. [6] Gary Sekhon, the owner and operator of Simani Farms on September 9 and 10, 2013, testified for the claimant.

At trial, Mr.Sekhon testified about how the tractor ended up in the ditch, the attendance of the crane operator the next day, the paperwork presentedby the crane operator, and the manner in which the crane operator lifted the tractor from the ditch and placed it on the ground. He alsoprovided photographs of the tractor depicting various areas of damage. Mr. Sekhon also submitted a written repair estimate for thetractor. Since the event, he has had some of the damage repaired so that he could continue to operate the tractor.

Much of the damage hasnot yet been repaired, four years later. [7] Mega Cranes introduced evidence from two witnesses: (

a) the testimony of one of the vice presidents and a principal of MegaCranes, Kelly Petersen; and (

b) the testimony of the crane operator on the 10th of September 2013, Karl Hoggatt. The defendants alsointroduced several documents that it stated were relevant to this matter. Some of these documents were in issue due to the manner inwhich they were obtained. After discussion and some partial agreement between the parties, some of the documents were entered asexhibits. [8] I have reviewed the case law and legal materials provided by both parties. I intend to refer only to those cases that I foundrelevant to and binding on my legal analysis, which will include some cases not provided by the parties.

Generally, the cases providedwere not factually similar. In the interests of time, I do not intend to address any distinctions between the cases provided and the specificfacts in this case. Also in the interests of time, I do not intend to list all of the legal materials provided to me. If a transcript is ordered ofthese reasons, I will provide a list of those cases at that point. [9] Cases provided by the Claimant: Crocker v. Sundance Northwest Resorts Ltd., (SCC), [1988] 1 S.C.R. 1186; Tilden Rent-A-Car Co. v. Chandra, [1983] B.C.J. No. 1233 (BC Co. Ct); Tilden Rent-A-Car Co. v.

Clendenning, (ON CA), [1978] O.J. No. 3260 (ONCA). [10] Cases provided by the Defendants: AC All Claims General Insurance Adjusters Inc. v. Provincial Club Towing, 2002 SKPC 72; Alpine Valley Disposal v. Harrison Bay Dairy Farm, 2012 BCPC 489 , 2012 BCPC 0489; Champoux v. Bakken Holdings Ltd., [2012] S.J. No. 347 (SKPC); Corsair Field Services Ltd. v. 078530 B.C. Ltd., 2016 BCPC 128; GFS British Columbia Inc. v. Olive U Foods, 2014 BCSC 113; Golden Capital Securities v. Holmes, 2002 BCSC 516; Goodspeed v. Tyax Mountain Lake Resort Ltd., 2005 BCSC 1577;

Karroll v. Silver Star Mountain Resorts Ltd., (BC SC), [1988] B.C.J. No. 2266 (BCSC); LaFontaine (Guardian ad litem of) v. Prince George Auto Racing Assn., [1994] B.C.J. No. 176 (BCSC); Ochoa v. Canadian Mountain Holidays Inc., [1996] B.C.J. No. 2026 (BCSC); The Owners, Strata Plan BCS 1389 v. McArthur, 2012 BCPC 548; Saskatchewan River Bungalows Ltd. v. Maritime Life Assurance co., (SCC), [1994] 2 S.C.R. 490. [11] Other Cases Considered or Applied by the Court: Athey v. Leonati, (SCC), [1996] 3 S.C.R. 458; Elite Builders Ltd. v. Maritime Life Assurance, [1984] B.C.J. No. 2896 (BCSC); Farrell Estates Ltd. v.

Win-Up Restaurant Ltd., 2010 BCSC 1752; Langley Lo-Cost Builders Limited v. 474835 B.C. Limited, 2000 BCCA 365; Mack v. Stuike, [1963] S.J. No. 205 (Q.L.) (SKQB); Maionneuve v. Burley, 2001 SKQB 407; Marvco Color Research Ltd. v. Harris, (SCC), [1982] 2 S.C.R. 774; R. v. Belcourt, 2012 BCSC 796; Saunders v. Anglia Building Society, [1971] A.C. 1004. RELIABILITY and CREDIBILITY – GENERALLY [12] I have considered the testimony, documents and photographs provided by the parties in making findings of fact and the relevantand required determinations.

Not all of the evidence elicited either through witnesses or documents was relevant or helpful in renderingthis decision. Consequently, I do not intend to refer to each and every piece of evidence. I have assessed the reliability and credibility ofthe relevant evidence. [13] I begin my analysis by commenting generally on the nature of this assessment.

I will then make general comments about thereliability and credibility of the witnesses, because these comments will impact my more specific findings later, as I render this decision. [14] When assessing reliability, I must consider whether the witness or other evidence is able to offer accurate information. Whenevaluating credibility I must determine whether and to what extent the witness or other evidence has provided truthful information.

Inmatters of credibility, reliability or conflicting evidence, I am required to assess the evidence in order to determine what weight, if any,can be attributed to that particular evidence. I am permitted to accept or reject some or all of any witness' evidence. [15] Factors for the assessment of witness evidence include but are not limited to: (

a) the quality of the witness' memory; (

b) his orher ability to perceive and recall; (

c) the ability of the witness to communicate his or her observations; (

d) motive or absence thereof tofabricate; (

e) the tendency to embellish or exaggerate; (

f) demeanour; and (

g) any internal or external inconsistencies in the witness'evidence. [16] I must keep in mind that even an honest witness may make errors in his or her evidence or recollection, or may appear nervous oruncertain due to reasons unrelated to their honesty while testifying. EVIDENCE OF GARY SEKHON [17] I begin by making general comments with regards to Gary Sekhon's evidence. I formed the impression that Mr. Sekhon haddifficulty remembering events from three to four years previously.

His lack of precise recollection regarding dates or times had aminimal effect on my reliability and credibility assessment, given the passage of time, his age, and the identified issues in this case. Mr.Sekhon appeared to be thoughtful and, for the most part, careful in giving his evidence. He showed signs of fatigue, confusion andfrustration as the cross-examination continued, which it did for an extended period of time. Mr. Sekhon was asked to recall dates thatwere simply not in his memory. [18] The defendants argue that if Mr.

Sekhon has inconsistencies and admitted memory issues, I should not believe his assertion thathe did not know he was entering into an agreement, or did not recall Mr. Hoggatt verbally advising him about the waiver, or that he didnot know what he signed. [19] However, I find that Mr. Sekhon did his best to recall despite memory deterioration. I also find that Mr. Sekhon did not try todeceive the court and attempted to provide truthful evidence. When he did not know something or could not recall, he generally said so.

Idid find he was possibly forgetful or, more possibly, less forthright when he was describing his previous business practices when he usedto run his auto body shop. What I took from his answers in the end is that he left the daily running of the business to his other employees,and relied on the advice of accountants and lawyers to consider the documents he was signing and advise him accordingly. Mr. Sekhonconsiders himself semi-retired and has not run the auto body shop for over a decade, 13 to 14 years. [20] Mr.

Sekhon does have a financial stake in the outcome of this matter, although I note that his counsel argued strenuously that hehas continued his claim as a matter of principle, especially after Mega Cranes made statements and allegations that impugned his

character. [21] Mr. Sekhon testified that his tractor entered the ditch at approximately 5:00 p.m. on the 9th of September 2013. In his testimony,he indicated that he contacted Mega Cranes on the morning of September the 10th, 2013 to retrieve the tractor. The defendants attemptedto contradict both assertions with evidence that is not before me. The defendants referred to an employee email with a time stamp ofapproximately 2:00 p.m. on the 9th of September. However, that email was not entered as an exhibit.

The only exhibit regarding the workorder was a handwritten dispatch slip, dated the 10th of September 2013 at 10:00 a.m., containing the address, instructions to enter theproperty, the Visa credit card information and the name of Mr. Sekhon. I do not consider that any time difference impacts my decisionregarding negligence. I acknowledge that certain details may be more difficult to recall after three years or four years have passed, andthe precise times are one such detail. EVIDENCE OF KELLY PETERSEN [22] I turn now to the evidence of Kelly Petersen. Both Mr.

Petersen's evidence and conduct of this case were impacted by thefinancial outcome and, similarly, the reputational considerations. However, Mr. Petersen clearly demonstrated significant credibilityissues. He was not a witness to the relevant events. [23] There were several aspects of Mr. Petersen's testimony that seriously damaged his credibility. In his letter of March 2014 to thelawyer, he made claims without substantive foundation.

In his testimony, he said that he would say whatever he needed to bolster hisposition. [24] He sought information from the John Deere repair facility that was not public, and declined to properly explain how he obtainedthat information. I consider his statement that he did not remember what he said to the repair facility to be incredible, and it was obviousfrom his demeanour in court that he was being untruthful to the court under oath.

I note that he had a personal relationship with thatrepair facility, and I am concerned that he used that personal relationship to his advantage in accessing documents that belonged to theclaimant and the repair facility. [25] I note that the defendants cannot use the Privacy Act provisions pertaining to obtaining documents in the course of a courtproceeding to excuse its behaviour. The proper course was to request disclosure of the documents. I note that some of the documentspredated the event. I queried their relevance.

He challenged the estimate provided by the claimant that emanated from the same facility,but acknowledged that he had bought his own tractor from that facility and used that same facility to repair it. Yet he claimed the repairestimate from the business to the claimant was untrustworthy. I will say more about Mr. Petersen's credibility later. EVIDENCE OF KARL HOGGATT [26] Generally speaking, I am extremely concerned that Mr. Hoggatt's evidence was tainted by Mr. Petersen's influence.

Mr.Hoggatt's evidence appeared rehearsed, but there is nothing inherently wrong with that, except for the concern about any influence Mr.Petersen might have had with his "say anything” approach. [27] The defendants argued that Mr. Hoggatt had no reason to misrepresent the facts, no financial stake, and was an hourly paidemployee at the time. However, I note that, if Mr. Hoggatt was found to be negligent, it would impact both the defendants and Mr.Hoggatt's reputation for customers and within the industry. Mr. Hoggatt has a vested interest in not being found negligent. [28] The defendants argued that Mr.

Hoggatt was independent from Mega Cranes and had to be subpoenaed – except that Mr.Hoggatt was not subpoenaed, he was summonsed to trial. Mr. Petersen later disclosed that Mr. Hoggatt needed that court document forcurrent work purposes. He did not require the court document to compel him to court due to his independence. [29] I generally note that the work document, as I will call it, that was presented to Mr. Sekhon on September the 10th, 2013contained the remark "no breaks", which Mr. Hoggatt generally testified meant that he did not cause any breaks.

But I asked that – if thetractor was already damaged before he started – I would have expected that he would have noted down such pre-existing damage on thatwork document to protect both himself and his employer. I also do not accept his evidence that he showed the claimant the back of thedocument and pointed out the waiver provisions. I am extremely concerned about Mr. Petersen's influence on Mr. Hoggatt's evidence onthat point as well. If there had been prior damage to the tractor and Mr. Hoggatt had pointed out the waiver provisions to Mr. Sekhon,again I would have expected Mr.

Hoggatt to note down the pre-existing damage on the work document, again to protect himself and thedefendants. CAUSATION and NEGLIGENCE [30] I must now consider the type of conduct that may result in liability for damages. THE LAW [31] The claimant must establish that it is more likely than not that the defendants caused or contributed to the damage on the tractor:Athey v. Leonati, (SCC), [1996] 3 S.C.R. 458, at paras. 13 to 15. In addition to causing the damage, the claimant mustdemonstrate that it was more likely than not that the defendants were negligent when removing his tractor from the ditch.

Therefore, theclaimant must show that the defendants owed the claimant a duty of care and that the defendants breached that duty of care, causingdamage to the tractor. [32] The defendants had a duty to perform the work on a reasonable standard of care. Negligence occurs if a person creates anunreasonable risk of harm by failing to do something, even unintentionally, that a prudent and reasonable person would do, or by doingsomething a reasonable and prudent person would not do: Maisonneuve v. Burley, 2001 SKQB 407, at para. 35, citing Blyth v.

TheCompany of Proprietors of the Birmingham Waterworks Company, (1856), 156 ER 1047 at 1049 (Exch.). [33] Generally, I must ask whether the damage would not have occurred but for the negligence of the defendant. In this particular

case, I must ask whether the defendant's alleged negligence contributed to the damage in a material way. In other words, the defendant'sactions had to be more than a trifling or minimal contribution to the damage: Athey, at paras. 13 to 15. [34] If I find that the defendants’ actions were negligent and contributed to the damage, it is not necessary that the defendants’ actionswere the sole cause of the damage.

Athey, at paras. 17 and 19 include the following statements of law: As long as a defendant is part of the cause of an injury, the defendant is liable, even though his act alone was not enough to create theinjury. There is no basis for a reduction of liability because of the existence of other preconditions: defendants remain liable for allinjuries caused or contributed by their negligence... The law does not excuse a defendant from liability merely because other causal factors for which he is not responsible also helpedproduce the harm...

It is sufficient if the defendant's negligence was a cause of the harm... [35] As a general principle, a contract to do work and supply materials implies that the work will be done in "a good and workmanlikemanner": Mack v. Stuike, [1963] S.J. No. 205 (SKQB), at para. 24. [36] In this case, the work required removal of a tractor from the ditch with a mobile crane and related equipment supplied by thedefendants. The worker employed for the task must exercise the ordinary amount of skill possessed by those engaged in that particulartrade: Mack, supra, at para. 24.

Although the Mack case involved construction, the general principles guide me when I assess, on anobjective basis, the nature of the reasonable expectations of the parties concerning the nature and manner of the work in the case beforeme. EVIDENCE ON CAUSATION and NEGLIGENCE [37] I turn now to the evidence on causation and negligence. The claimant and Mr. Hoggatt were the only two witnesses called on theissue of causation and negligence. The claimant did not call any expert evidence regarding the manner in which the tractor was preparedto be hoisted, lifted from the ditch or deposited on the ground.

Simani Farms relied primarily on the testimony of Mr. Sekhon and thephotographs. [38] The defendants seek to rebut any alleged causation or negligence with the testimony of Karl Hoggatt, the crane operator. Mr.Hoggatt was not qualified as an expert, but had experience lifting heavier machinery with a mobile crane. He had only lifted a tractoronce before the September 10th, 2013 event during his approximate five years of experience. [39] Mr. Petersen was not present on the 10th of September 2013.

He did not become involved in this matter until the spring of 2014.He testified generally about how a customer could hire the defendants and some industry practices.

He was not qualified as an expert inthe area of mobile crane operation and lifting. [40] I am cognizant that a claimant cannot simply allege negligence or show how the impugned act could have been done better.However, I may use my own judgment if the impugned act involved a non-technical matter within the knowledge of an ordinary person.In some cases, the claimant may need to provide evidence, including expert evidence, to support his claim: Maisonneuve, supra, at para.36, citing Kauffman v.

Toronto Transit Commission, (SCC), [1960] S.C.R. 251. [41] In this case, the failure to call an expert about mobile crane lifting is not fatal to the position of either party when I consider thewhole of the evidence. I do not have to find that the defendants caused or contributed to the damage with scientific precision. Rather, Imust approach this issue in a practical manner using my ordinary common sense. I am permitted to infer causation from the evidence attrial without positive scientific proof: Athey, at para. 16. Evidence of Gary Sekhon [42] At the time of this trial, Mr.

Sekhon was an older, semi-retired man with hearing issues. He had never dealt with the defendant orused a crane before this event in September of 2013. [43] On the 9th of September 2013, Mr. Sekhon was driving his John Deere tractor, which was approximately two years old. He hadbought it new and kept it in good shape with regular servicing from the dealership, PrairieCoast Equipment, an authorized John Deeredealer (according to his evidence). Mr. Sekhon had attached a sprayer to the tractor, which was following behind. He was spraying hisfields. The fields were very muddy.

As he was driving, the tractor accidentally and slowly slid into a ditch. The sprayer did not enter theditch, but remained on the edge of the embankment, still connected to the tractor. The tractor was positioned as if parked in the ditchresting on its four wheels. The bottom of the ditch was very muddy, but contained no water. [44] Mr. Sekhon testified that the ditch was approximately 10 feet wide and six feet high. Mr. Sekhon exited the tractor and the ditch.He believed that the tractor entered the ditch at approximately 5:00 p.m. on the 9th of September 2013. To him the tractor did not appeardamaged.

He initially contacted a tow truck company. After receiving information regarding the ability of a tow truck to retrieve thetractor, Mr. Sekhon contacted the defendants on the morning of September 10th, 2013. He provided the make and model information forthe tractor. Over the telephone, a staff member of the defendants informed him that they would send a big enough crane and that theywould take the tractor out of the ditch. The defendants issued a handwritten work order or dispatch ticket on the 10th of September 2013at approximately 10:00 a.m., which was entered as an exhibit. [45] The following is Mr.

Sekhon's testimony about how the tractor was retrieved from the ditch. When Mr. Hoggatt arrived on theproperty, Mr. Sekhon asked Mr. Hoggatt for his opinion about whether the crane was the right tool for the job. Mr. Hoggatt reassuredMr. Sekhon that there was "no problem" extracting the tractor. According to Mr. Sekhon, he did not assist Mr. Hoggatt in rigging thetractor. Mr. Sekhon indicated that he continued with his own work and then, when the hoisting began, he stood approximately 15 to 20feet away, watching. Mr.

Hoggatt did not tell him that he had to do anything, and he did not help because he had no experience withcranes.

[ 46 ] Mr. Sekhon observed that Mr. Hoggatt first unhooked the sprayer from the tractor and then hooked up the sprayer to his crane and hoisted it from the edge of the embankment up over the trees and onto the Simani Farms field, onto the same roadway in front of the crane. Then, he hooked up the tractor by attaching the rigging to the front and rear of the tractor. The splay lines angled upwards to one point, where they were then attached to one hook. From this description it appears that Mr. Sekhon did not see Mr.

Hoggatt use what he called a spreader, which is a horizontal bar that would have more evenly distributed the weight of the rigging lines and move the lines further away from the tractor. [ 47 ] Mr. Hoggatt lifted the tractor up approximately six feet off the ground. While the tractor was in the air, the tractor's windows and roof started breaking, as well as other parts such as the taillights and things at the rear of the tractor. Mr. Sekhon looked at Mr. Hoggatt, but Mr. Hoggatt was not looking at him. Mr.

Hoggatt lifted up the tractor another six to 10 feet, swung it over and deposited it on the road. [ 48 ] In his testimony, Mr. Sekhon stated that Mr. Hoggatt placed the tractor down near the sprayer, either in front, beside or behind the sprayer. Although I note that he indicated that the tractor and sprayer were set down near the crane, Mr. Hoggatt's diagram indicates that they were placed on the opposite side of the ditch from the crane. [ 49 ] According to the defendants, Mr.

Sekhon did not jump up and down, wave his arms or yell at the crane operator if and when he saw glass breaking and the roof cracking in mid-air to stop the hoist. I, too, would have expected Mr. Sekhon to complain immediately or soon after the tractor was placed on the ground. However, I cannot say that that is the only reasonable reaction. Someone may not yell and wave their arms in order to not distract the crane operator and cause more damage, or a person may refrain from such conduct if concerned that it may make the crane operator upset and, again, cause more damage.

I do accept that most people would have been in shock at seeing the damage. [ 50 ] Mr. Sekhon testified that after the tractor was lowered to the ground, Mr. Hoggatt approached Mr. Sekhon and handed him the work document. Mr. Sekhon testified that he told Mr. Hoggatt that there was damage to the tractor and what should he do about it. Mr. Hoggatt replied, if you have any questions, talk to my office. Mr. Hoggatt then prepared his crane for removal and left. [ 51 ] Mr. Sekhon photographed the tractor with his cell phone. While he was photographing the tractor, Mr.

Hoggatt was preparing the crane and leaving the field. Mr. Sekhon does not believe that the proper procedure for hoisting and depositing the tractor was followed. He believes that the defendants should have used a spreader to more evenly distribute the weight of the tractor and not put undue pressure on the roof or the top part of the tractor. But again, I note that no expert evidence was called on this point. Mr. Hoggatt was at the farm site for approximately three hours. [ 52 ] The next day Mr. Sekhon attempted to report the damage and seek compensation. He called the defendants on September 11th, he believes.

He subsequently tried many times to contact the defendants, but was not able to speak to the relevant person. He was told that someone named Larry or Barry would call him back and tried a few times to reach that person. Mr. Sekhon also went overseas in the fall of 2013, after the tractor was damaged. He believes he received the PrairieCoast Equipment estimate for the repairs upon his return from being overseas and subsequently faxed it to the defendants.

Later in his testimony, he stated that he may have received the estimate before he went overseas, and the fax that he received in November was upon his request for a second fax. [ 53 ] Eventually, in November of 2013, Mr. Sekhon spoke to Barry or Larry who refused to compensate Mr. Sekhon for the damage. I accept that the first time Mr. Sekhon was able to speak to this person named Larry or Barry and learned of the defendant's refusal to pay for the repairs was in mid-November 2013. [ 54 ] Mr.

Sekhon believes that the tractor was picked up by the PrairieCoast Equipment facility approximately a week or so after the incident in September. I accept that this date may not be accurate, given that PrairieCoast conducted a partial repair from November 18 to November 29, 2013. To me, it seems like a long period for them to retain the tractor before working on it. [ 55 ] Mr. Sekhon stated that if he had known that the defendants were going to damage the tractor in removing it from the ditch, he would have been willing to pay the crane operator for his travel time and send him away before any work was done.

Evidence of Kelly Petersen [ 56 ] I turn now to the evidence of Mr. Petersen. Mr. Petersen, as I have indicated, is the vice president of the defendants, which I believe he shares with other family members. He has experience in running a mobile crane company and experience in the industry. He was not qualified as an expert, and I do not consider his evidence in that fashion. Again, he did not personally witness any of the events.

Interestingly, he stated that the defendants were not "experts about tractors and a whole hoist," I believe that was a mispronunciation, "of things that we have to lift." He used that description to justify placing responsibility on the customer for how something is to be lifted. I noted that it is the defendants that are operating the equipment and calculating weight, height, angles and pressure. [ 57 ] Mr. Petersen did not become involved in this matter until February 2014, which he alleges is the first time that the defendants became aware of the claimant's allegations. Mr.

Petersen drafted a letter, dated March the 10th, 2014, which was signed by a person named Kelly Bridge, and Mr. Petersen represented the defendants at trial. [ 58 ] Mr. Petersen initially said that the office staff researched new materials he sought to file in the midst of the trial. However, he later disclosed that he personally attended at PrairieCoast, provided them with Simani Farms’ personal vehicle information number for the tractor, and sought information about the tractor from PrairieCoast.

He had been going there for 15 years, but when asked if he notified PrairieCoast that he was not the owner of the tractor he replied, "It never came up. They never asked." When asked if PrairieCoast pointed out that he was not the owner of the tractor Mr. Petersen replied, "I don't recall." I have some difficulty accepting that reply. [ 59 ] Mr. Petersen dealt directly with the witness, Karl Hoggatt, when he first spoke with him in February of 2014 about the incident, and instructed him to provide a handwritten statement of what occurred on the 10th of September 2013, which was later transcribed by someone.

This handwritten original statement was not disclosed to the claimant on the basis of it being "an internal document." Yet the

defendants disclosed the dispatch ticket to counsel and had it marked as an exhibit in court, which he also indicated was an internal document. [ 60 ] As I mentioned earlier, Mr. Petersen also prepared Mr. Hoggatt for his testimony, which is not unusual in itself. I note that on the day that Mr. Hoggatt's testimony began, Mr. Hoggatt drove to the courthouse with Mr. Petersen. Again, that is not unusual. During Mr. Hoggatt's evidence and, I believe, during his cross-examination, Mr. Petersen and Mr. Hoggatt lunched together. That causes me concern, given Mr.

Petersen's approach to litigation, which greatly diminished his credibility. I am also concerned that some of Mr. Hoggatt's answers gave me the impression that Mr. Hoggatt had been made privy to some of Mr. Sekhon's testimony during his witness preparation. [ 61 ] I would like to turn to the 10th of March 2014 legal letter written by Mr. Petersen to counsel for Simani Farms. This letter was written and drafted to contain allegations without any known foundations. The letter was signed by "Kelly Bridge, paralegal", when it was in fact drafted and written by Mr. Petersen. Kelly Bridge was identified by Mr.

Petersen as a "collections officer", yet signed the legal letter as a paralegal; despite Mr. Petersen not knowing what qualifications or certifications Kelly Bridge has to designate herself as a paralegal. [ 62 ] In his testimony, Mr. Petersen initially hedged about whether he saw Mr. Hoggatt before he drafted the letter. He replied he would not have necessarily seen Mr. Hoggatt. He later stated that he probably did not have Mr. Hoggatt's report before him when he drafted that letter. He later stated that he did not know the source of several other allegations in the letter. [ 63 ] I find that Mr.

Petersen, in accordance with his own words, deliberately drafted the legal letter reciting allegations that he knew did not accurately reflect the defendant's position regarding the claim. Mr. Petersen testified that the contents of the letter did not necessarily reflect a true reflection of the incident that occurred. Some of the contents had no true factual basis. He had written the letter in the hopes of avoiding litigation. [ 64 ] I find that Mr.

Petersen deliberately wrote a letter to a lawyer knowing that some of the contents had no true factual basis in order to "booster" a position to make the lawyer think that the claim would fail. Mr. Petersen did not appear to understand that this constituted lying. What it meant to me is that Mr. Petersen assumed the attitude that it was perfectly fine to make an allegation without foundation or a false allegation in documents to boost or bolster his position. Mr. Petersen thought at the time that this would be a non-issue and the claim would go away.

He later testified that he had not fully investigated the matter before he made statements in the letter that he knew were not true. My concern about this approach is with regards to the integrity in legal dealings and that it may extend into Mr. Petersen's business dealings, influence Mr. Hoggatt's evidence, and Mr. Petersen's preparation of this evidence. [ 65 ] Mr. Petersen was also evasive and non-responsive when answering questions about the following areas: 1. How many times he has appeared in court to represent the defendants. 2. He confirmed that he had discussed with Mr.

Hoggatt who had rigged the tractor with Mr. Hoggatt, yet he "couldn't recall" what Mr. Hoggatt had said about that. 3. Whether he would allow his employees to seek and obtain assistance from a customer who appeared to be intoxicated. 4. About who answers the telephones at the defendant's office and how many people work in the office. 5. Whether the defendants keep phone logs and whether he reviews them. 6. Whether Mr. Petersen is actually aware of how many times Mr. Sekhon contacted the defendants. 7. Whether he trusted the service he received at PrairieCoast, the same place used by Mr.

Sekhon, despite the fact that Mr. Petersen had bought his own tractor there and had been having them service his tractor for approximately 15 years. There are many more examples, but I do not intend to list them all. Evidence of Karl Hoggatt [ 66 ] I turn now to the evidence of Karl Hoggatt with regards to causation and negligence. I permitted the defendants to file a letter written by Mr. Hoggatt in February (presumably of 2014) but which was dated the 10th of September 2013, as it was used extensively in cross-examination regarding Mr. Hoggatt's credibility.

It does not constitute evidence of the events themselves, because such use is not permitted in law. Although the defendants referred to this document as an "Incident Report", I decline to use that title. There is no indication on the document that it is an "Incident Report." It was clearly written in letter form, not in statement form. It was backdated at the top, as if the letter was written on that date. It contained a letter salutation, "To Whom it May Concern." It is written on the defendant's letterhead.

Whether intentionally or not, this letter misleads the reader into thinking it was written on the same day as the event and is therefore worthy of substantial weight. In fact, it was written five to six months later, after Mr. Hoggatt was required to provide his account of the events on September 10th, 2013, given that his actions were now in issue. [ 67 ] I am aware that the defendants have testified through Mr. Petersen that that date was placed on the document because it would then be placed in an area of the office for September 10th, 2013. Regardless, the document is still misleading. I also note that Mr.

Hoggatt resiled from some of the contents of his letter during his testimony, which impacts the credibility of Mr. Hoggatt. [ 68 ] The defendants also attempted to file an affidavit sworn the 28th of April 2016 as an exhibit in the midst of these proceedings. Given that Mr. Hoggatt testified and was cross-examined, his affidavit was not entered as a trial exhibit. It was entered only for identification and I have not relied upon it in making this decision. [ 69 ] Mr. Hoggatt has a special licence to operate a crane, which he obtained by taking written and practical tests. He had only lifted

one other tractor, which was of similar size but was not in a ditch, in the course of his career. [ 70 ] I note that the defendants appear to claim that Mr. Sekhon had ingested alcohol or had alcohol in his body on September 10th. In Mr. Hoggatt's letter and in Mr. Petersen's letter, they claim that Mr. Sekhon smelled like beer, meaning that he had alcohol in his system or was intoxicated. More importantly, the defendants are now arguing that Mr. Sekhon had his complete senses and had no physical signs of intoxication.

I assume that this change of position better suits its purpose given the case law. [ 71 ] The claim that Mr. Sekhon may have ingested liquor is inconsistent and/or illogical with Mr. Hoggatt's evidence that Mr. Sekhon rigged the tractor. It would be unprofessional of any crane operator, in my view, to allow someone that he suspected had alcohol in his system or was intoxicated to rig a load. How can I accept Mr.

Hoggatt as professionally conducting his duties generally in lifting a tractor if he allowed someone smelling of beer to participate (in what he has called the dangerous work of lifting heavy machinery) by allowing such a person to conduct one of the most important aspects of a hoist, i.e., the rigging of the load? [ 72 ] Mr. Hoggatt testified that he consulted and obtained instructions from Mr. Sekhon and that Mr. Sekhon acted as a foreman for the actual rigging, loading, lifting and depositing of the tractor.

He said that it was the usual practice to have the customer assist with the rigging and provide information about the machine because they know their machine. [ 73 ] I approach that statement with some caution. In this particular field, I would assume that the crane operator is the person who is supposed to know how to lift the machinery; otherwise, why would certification be necessary? And Mr. Hoggatt is certified to operate heavy machine mobile cranes.

Anyone assisting him would not. [ 74 ] It is apparent to me that the rigging of the tractor to prepare it for being lifted is one of the most important tasks for a crane operator. It occurs at the stage of operations that poses significant risk if not done properly. Lifting machinery required experience and the ability to consider the multitude of factors that must be considered in loading, hoisting and depositing heavy machinery. Regardless of any consultation, the onus was on Mr. Hoggatt to ensure the rigging was done properly to protect the safety of both Mr. Hoggatt and Mr. Sekhon. [ 75 ] Although Mr.

Sekhon's previous business involved hoisting motor vehicles, road motor vehicles, that environment and the equipment would have been very different from that of the mobile crane used for heavy machinery in the middle of a farm field. I do not accept that Mr. Sekhon had the necessary experience to support the defendant's contention that he could consult and instruct Mr. Hoggatt. [ 76 ] Mr. Hoggatt had testified about how, on some occasions, he had lifted machinery around a corner blind, which was rigged by others.

Such a practice would concern me, but implicit in his regular work description is that he usually deals with construction site workers, who may well have much more experience with the use and rigging of extremely large objects and machinery. [ 77 ] I turn now to the issue of whether any damage occurred before Mr. Hoggatt began working on the tractor. I must confess that I am concerned about Mr. Hoggatt's credibility and the impact of Mr. Petersen on Mr. Hoggatt's evidence in this regard. If there had been prior damage, why would Mr. Hoggatt not have noted it down in the comments

section of the work document? In that way, he would have protected both himself and the defendants. If the tractor had truly fallen sideways as described by Mr. Hoggatt, Mr. Sekhon is sufficiently elderly that I would have expected him to have had greater difficulty extricating himself from the tractor and possibly injuring himself. If there was pre-existing damage, then I would have expected Mr. Hoggatt to have taken precautions or refused to lift the tractor. Mr. Hoggatt did neither. [ 78 ] I noted certain contradictions in the evidence with regards to the pre-existing damage. In Mr.

Hoggatt's letter, he testified [sic] that he could see the tractor in the drain turned on its side. In his testimony, Mr. Hoggatt indicated that the tractor was leaning slightly. In his letter, he indicated that the damage included the side windows, which were already broken, and other damage that was difficult to see because the tractor was submerged in the ditch, which was full of water.

In his testimony he retreated somewhat from that statement and indicated the tractor was not submerged in the ditch and was not "mostly" below water. [ 79 ] The contradiction about whether the tractor was on its side and submerged mostly below water is a big contradiction. If Mr. Hoggatt started with those observations in his letter after several months from the incident but is now retreating from that testimony, then how can I rely on his memory now? In Mr.

Hoggatt's testimony, he provided very precise details about the alleged pre-existing damage that he observed that were completely absent from the work document and not at all described in his letter of February or March of 2014, in which he said he had difficulty seeing the damage. I note that the description now provided by Mr. Hoggatt corresponds very closely to the damage reflected in the photographs and described by Mr. Sekhon: (

a) the light was already damaged; (

b) the front window completely gone; (

c) the rear window spider cracked; (

d) no possibility of making contact with the roof; and (

e) no door on the right side. [ 80 ] In Mr. Hoggatt's testimony, he indicated that he informed Mr. Sekhon that, generally in recovery jobs, more damage can occur to the vehicle in removing it from the ditch. He added that Mr. Sekhon told Mr. Hoggatt that Mr. Sekhon had no intention of reading the work document. Some of this evidence, if not most of it, appears to reflect Mr. Petersen's influence on Mr. Hoggatt's testimony and the very strong possibility again that Mr. Hoggatt was made privy to some of the court evidence prior to his testimony. [ 81 ] Mr. Hoggatt's task was to ensure that the following was done properly: (

a) rigging - calculating how and where the rigging would be placed using selected crane parts; Mr. Hoggatt had previously worked with a 40-ton crane and had been certified for working with an 80-ton crane, but still had not raised very many tractors; (

b) lifting - how the crane was operated, the degree of motion and force used to lift the tractor, swinging the tractor, how the crane was operated, the degree of motion and force used to swing the tractor over the location to where it would be placed, lowering the tractor, how the crane was operated, and again the degree of motion and force used to place it on the ground; and (

c) the landing - how the crane was operated, the degree of motion and force used in providing a damage-free landing.

[ 82 ] Mr. Hoggatt testified that he had previously hoisted [a] tractor only once. It is reasonable to infer that Mr. Hoggatt may have raised a large amount of much more heavy and industrial machinery on construction sites based on his evidence. My concern was whether he was experienced in lifting tractors, which may be heavy in some way but have fragile areas, such as the top part of the tractor with glass, roofs and doors. Mr.

Hoggatt's testimony, generally, about how he rigged, hoisted and deposited the tractor appeared to be based on what he "would" have done normally, rather than an actual memory of what he did at the work site. This does impact his reliability. [ 83 ] I note that the handwritten work dispatch order, dated the 10th of September 2013 at 10:00 a.m., remarked that the job entailed 4,000 pounds at 30 feet, while the work document written on by Mr. Hoggatt listed 5,000 pounds at 30 feet. That is a difference of a thousand pounds. I note that Mr.

Hoggatt denied lifting the sprayer in cross-examination, but testified in direct examination that after he deposited the tractor on the ground, Mr. Sekhon asked Mr. Hoggatt, "If we could unhook the sprayer from the tractor just to take the weight off the sprayer trailer, the hitch." [ 84 ] I note that Mr. Hoggatt did not think a spreader was necessary. He did not bring a spreader and he did not believe it would be useful in this situation, because the 20-foot slings were adequate to secure the load and prevent damage.

He believed that using the 20- foot slings meant that the slings would not come into contact with the tractor or cause the windows to break. He used an extended boom to six to nine feet with the 20-foot slings attached. [ 85 ] He testified that, when one used a spreader bar, it would be used to minimize the angle of the slings. He testified that the 20-foot slings were sufficient to raise the tractor. In my view, based on Mr. Hoggatt's diagram, the 20-foot slings angle up to a point where they are placed on one hook.

I do have concerns that if the tractor wobbled as it was being lifted, the slings would make contact with the tractor. [ 86 ] Mr. Hoggatt testified that he righted the tractor from an angle and then hoisted it up 10 feet into the air, clearing the top of the ditch. He then placed the tractor in the same location of orientation it had when it was being run by Mr. Sekhon, before it entered the ditch. He had the boom down as the boom was being lowered. [ 87 ] I cannot dismiss the possibility that Mr.

Hoggatt's limited experience lifting a tractor may have impacted his ability to assess whether the tractor was somewhat more fragile after it slid into the ditch. I had to ask myself, given his lack of experience with tractors, should he have taken precautions? Photograph Evidence [ 88 ] I turn now to the photographic evidence regarding causation and negligence. I have carefully scrutinized the testimony of the witnesses regarding the photographs. [ 89 ] The evidence that supports the claimant's description of the events in the photographs are as follows: (

a) The photographs focused on close-ups for damage, tight shots using the cell phone camera. They were intended to preserve evidence regarding the damage following extraction; (

b) The tractor does not appear to have been on its side or submerged in water in the ditch. I would have expected more dirt on either side of the tractor if it had landed on its side. There were no watermarks or mud consistent with that allegation. (

c) Broken glass remained on various flat surfaces of the tractor, including the fenders, interior floors, seats, hoods and console. All of this was consistent with damage sustained while in mid-air while compressing or flexing under pressure and shattering. [ 90 ] Mr. Sekhon testified that he does not remember how the mud in the photographs became attached to the tractor, but he noted there was mud all over in the fields and in the ditch, and there was mud all over the tractor. He spun the wheels of the tractor when he slid into the muddy ditch a couple of times, which he said would have raised more mud.

He cannot recall if that mud was on the tractor before it entered the ditch. He only knew that the mud was on the tractor after it was removed from the ditch. [ 91 ] A point of contention between the parties was whether there was mud and grass in the crack on the side of the roof. Mr. Sekhon initially disagreed that that crack contained mud and grass, but he eventually agreed after the question was repeated several times that there was grass and mud inside the crack.

I note, from my view of the photograph, the mud appeared to be cracked in the exact area where the roof was cracked, meaning that the mud attached before the roof was cracked. [ 92 ] The broken front window, back window and light are clearly visible. Mr. Hoggatt would have observed that. It was so very obvious, and I do not accept that the only thing he could see was a broken side window.

The damage was too extensive, and he would have had to be moving around the tractor when he was rigging the load and judging the weight and angles. [ 93 ] I will now list observations from the photographs that do not support the claimant's description of events: (

a) If the pictures were taken immediately after the tractor was placed on the ground, one would have expected to see the sprayer or the crane also visible in the photographs. However, according to Mr. Hoggatt's diagram, it seems to indicate that the tractor and the sprayer were placed on the opposite side of the ditch from the crane. This means that the crane may well not have been visible due to its placement. Also, it was being disassembled or reduced in size, packed up and moved while Mr. Sekhon took the photographs. I note that Mr. Sekhon's evidence is different from Mr.

Hoggatt's evidence with regard to the placement of the tractor, sprayer and the crane. He recalls the tractor and sprayer being placed in front of the crane, all on the same side on the same roadway. I note that Mr. Sekhon was not asked to draw the location of the crane on his two diagrams. Mr. Sekhon testified that the crane was on the property with Mr. Hoggatt for approximately 15 minutes before Mr. Hoggatt left. Mr. Hoggatt testified that he was on site for 45 minutes after the tractor was placed on the ground.

The implication being that the photographs may have been taken at a different time than that indicated by Mr. Sekhon. It certainlyindicates Mr. Sekhon's ability or inability to recall times and durations. (

b) The photographs show grass from the ditch. You can see that what appears to be pale grass but, at the end of the day, I am unableto say whether that grass came from the ditch or from the tractor's work in the fields that day. The mud and the grass attached to the sideof the roof could have occurred if the tractor ended up on its side when it was in the ditch, except that Mr. Hoggatt said it was not on itsside specifically, but that it was leaning slightly, though he did indicate that the side of the roof was touching the side of the ditch. I do not accept that Mr.

Sekhon washed his tractor after it was removed from the ditch and before he took the photographs, given theplacement of the glass. Document Evidence [94] I turn now to what I call the Mega Crane's Limited Operator Work Record. I am cautious about the evidence provided before me.The actual document is not a full-sized eight-and-a-half by 11 inches page. It is an invoice-sized page which is approximately one-halfthe size of an eight-and-a-half by 11 inches page. The face of the invoice makes it clear that the times the operator spent on the projectwas important. The comments

section indicates only "no breaks." The defendant's copy, but not Simani Farms’ copy, contains the words"foreman Gary" at the bottom of the page. The defendants rightly argue: “Why would Mr. Sekhon sign the document a second time andprovide payment if the defendants had damaged the tractor?” The defendants argued that Simani Farms paid the fees because it had noreason to dispute those services provided and because no damage was caused by the defendants. [95] The concern I have is: when was the document signed by Mr. Sekhon? Initially, Mr.

Sekhon testified that he believed he signedboth lines at the same time to start the work and authorized payment before the work started. Mr. Hoggatt indicated that Mr. Sekhonpaid the entire invoice prior to his exit from the property. However, I note that the evidence demonstrates that the payment was handledby the office and that the invoice indicates that it was paid on the 16th of September 2013. CONCLUSION ON CAUSATION and NEGLIGENCE [96] The defendants have argued (through the evidence of Mr. Hoggatt) that Mr. Sekhon rigged the load.

It appears to be arguingimplicitly that if any damage was done, the claimant did not conduct itself with reasonable care and thereby contributed to the damagethat occurred. If I find that to be the case, the damages awarded would be reduced proportionate to the claimant's degree of fault. [97] I make note of the frailties of Mr. Sekhon's memory on timing and positions of the machinery after they were removed from theditch. However, those frailties did not so impact his evidence to prevent me from placing substantial weight on it. The frailty of thedefendants' evidence goes right to the heart of credibility.

The defendants through their agent, Mr. Petersen, believed it was perfectly fineto make untrue allegations in documents to boost or bolster their position. Mr. Petersen thought by writing a legal letter that deliberatelycontained known falsehoods or unknown or unchecked information that this would be a non-issue and the claim would go away. Myconcern that this approach to integrity in legal dealings extends to business dealings and influenced Mr. Hoggatt's evidence and Mr.Petersen's preparation of this evidence. [98] Based on the concerns I have expressed above with Mr.

Hoggatt's evidence, including the contradictions and the baselineevidence of the photographic and documentary evidence, I find that Simani Farms has established that the defendants caused damage tothe tractor through its negligent actions. Despite the defendants attempts to place the responsibility for loading the tractor on a personwith no experience whatsoever with cranes, I find that the defendants at all times had care and control of the crane equipment, the tractorduring the retrieval process, and decision making about how the tractor would be removed.

If any consultation occurred with Mr.Sekhon, I find that it was brief and did not involve Mr. Sekhon actively participating in and making decisions about rigging. The use ofthe four straps on one hook impacted the stability of that tractor as it was lifted, such that the windows shattered, at a minimum. I amsatisfied that the other damage claimed for occurred during the hoisting process. [99] Mr. Hoggatt had limited experience lifting tractors. This tractor was obviously not as sturdy as the much heavier machinery thatMr. Hoggatt was accustomed to lifting and moving. In such a case, I find that Mr.

Hoggatt had a duty of care to consult with sourcesmore familiar with this type of tractor, such as a John Deere machinery dealer or any manuals for this make and model of tractor toensure that he had taken the necessary precautions. Although it is possible that the claimant caused some damage when he ended up inthe ditch, I do not find that to be the case. I find that it is more likely than not that the defendants caused material damage to the tractorduring the hoist which was more than a trifling or minimal contribution to the damage. WAIVER OF LIABILITY [100] I turn now to the issue of the waiver of liability.

THE LAW [101] In the usual course, a person who signs a document indicates that they are prepared to be bound by the terms of the document.There is a doctrine, however, in law called non est factum, which has been defined as the ability to enable a person who has in fact signeda document to say that it is not his deed: Saunders v. Anglia Building Society, [1971] AC 1004. In the Supreme Court of Canadadecision of Marvco Colour Research Limited v.

Harris, (SCC), [1982] 2 S.C.R. 774, the court indicated: “Englishcourts have considerably influenced Canadian courts regarding the law of non est factum.” [102] In Marvco, the court considered and applied the decision in Saunders referred to earlier and found that: ... the defendants-respondents are barred by reason of their carelessness from pleading that their minds did not follow their hands whenexecuting the mortgage so as to be able to plead that the mortgage is not binding upon them. Where there is negligence, meaning carelessness, a party cannot plead non est factum to avoid performing under the contract.

As the

Supreme Court of Canada wrote in Marvco: As between an innocent party (the appellant) and the respondents, the law must take into account the fact that the appellant wascompletely innocent of any negligence, carelessness or wrongdoing, whereas the respondents by their careless conduct have made itpossible for the wrongdoers to inflict a loss.

As between the appellant and the respondents, simple justice requires that the party, who bythe application of reasonable care was in a position to avoid a loss to any of the parties, should bear any loss that results when the onlyalternative available to the courts would be to place the loss upon the innocent appellant. [103] In the event of a misrepresentation or mistake, a party may set aside a contract claiming that "it is not my deed." However, thisdoctrine is very narrow and cannot be used when the party seeking it was negligent or careless.

In Marvco at page 787 the SupremeCourt of Canada indicated: I wish only to add that the application of the principle that carelessness will disentitle a party to the document of the right to disown thedocument in law must depend upon the circumstances of each case. This has been said throughout the judgments written on the principleof non est factum from the earliest times.

The magnitude and extent of the carelessness, the circumstances which may have contributedto such carelessness, and all other circumstances must be taken into account in each case before a court may determine whether estoppelshall arise in the defendant so as to prevent the raising of this defence. [104] Accordingly, the burden of proving non est factum lays with the party seeking to adduce that defence. A contractual waiver canserve as a full defence to a claim. A person is not entitled to damages if they sign a waiver in full knowledge of the contracting party'sintention to exempt itself from liability.

The courts have found, and in particular Crocker v. Sundance Northwest Resorts Limited, (SCC), [1988] 1 S.C.R. 1186, the courts have found, and I quote: As already mentioned, the trial judge found that the waiver provision in the entry form was not drawn to the plaintiff's attention, that hehad not read it, and, indeed, did not know of its existence. He thought he was simply signing an entry form. In these circumstancesSundance cannot rely upon the waiver clause in the entry form. [105] In the decision of Tilden Rent-A-Car Company v. Clendenning, (ON CA), [1978] O.J.

No. 3260 (ONCA), atpara. 20, the Court of Appeal wrote: [20] In ordinary commercial practice where there is frequently a sense of formality in the transaction, and where there is a fullopportunity for the parties to consider the terms of the proposed contract submitted for signature, it might well be safe to assume that theparty who attaches his signature to the contract intends by so doing to acknowledge his acquiescence to its terms, and that the other partyentered into the contract upon that belief.

This can hardly be said, however, where the contract is entered into in circumstances such aswere present in this case. [21] A transaction, such as this one, is invariably carried out in a hurried, informal manner. The speed with which the transaction iscompleted is said to be one of the attractive features of the services provided. [22] The clauses relied on in this case, as I have already stated, are inconsistent with the over-all purpose for which the contract isentered into by the hirer.

Under such circumstances, something more should be done by the party submitting the contract for signaturethan merely handing it over to be signed. … [32] In modern commercial practice, many standard form printed documents are signed without being read or understood. In manycases the parties seeking to rely on the terms of the contract know or ought to know that the signature of a party to the contract does notrepresent the true intention of the signer, and that the party signing is unaware of the stringent and onerous provisions which the standardform contains.

Under such circumstances, I am of the opinion that the party seeking to rely on such terms should not be able to do so inthe absence of first having taken reasonable measures to draw such terms to the attention of the other party, and, in the absence of suchreasonable measures, it is not necessary for the party denying knowledge of such terms to prove either fraud, misrepresentation or non estfactum. [106] This particular case was assessed by the B.C. Court of Appeal in Langley Lo-Cost Builders Limited v. 474835 B.C. Limited,2000 BCCA 365.

Chief Justice McEachern stated at paragraph 20: There is very little authority about the basis upon which intention to contract should be found. In Tilden Rent-A-Car Company v.Clendenning, (1978) ... (ON CA), 83 D.L.R. (3d) 400 (Ont.

C.A.), it was suggested at 405, that a person "whoattaches his signature to the contract intends by doing so to acknowledge his acquiescence to its terms, and that the other party enteredinto the contract upon that belief." At paragraph 21 the chief justice stated: Most authorities suggest that the Court is not confined to the four corners of the alleged agreement, but may look at all thecircumstances. In Osorio v. Cardona ... (BC SC), 1984 15 D.L.R. (4th) 619 ... McLachlin J. considered evidence ofpast agreements involving other parties ...

The one that I note particularly now, and I emphasize in our proceedings: ... the circumstances in which the alleged agreement was made, and future actions and representations by both parties. [107] The 2012 decision of our B.C. Supreme Court in R. v. Belcourt states at para. 40: Tilden imports the concept of reasonable expectations into such contracts and stands for the proposition that a party, that is obviously a

large corporation, seeking to rely on "stringent and onerous" provisions in a standard-form contract must take reasonable measures to bring the terms to the attention of the other party. Generally, such clauses relate to a limiting of liability. [ 108 ] I have reviewed three subsequent, higher level B.C. County Court and Supreme Court decisions on this particular topic. In the end result, it appears that the overriding principle is that I must consider all of the circumstances in which any document was signed to determine whether the signatory intended to be bound by the terms of waiver of liability.

EVIDENCE ON WAIVER OF LIABILITY Evidence of Gary Sekhon [ 109 ] I note that Mr. Sekhon was wearing his glasses on the day that he dealt with Mr. Hoggatt. When Mr. Hoggatt arrived in the farm field, he had a document on a clipboard, according to Mr. Sekhon. Mr. Hoggatt told Mr. Sekhon that Mr. Sekhon needed to sign on the first line of the document to give him permission to start work. Mr. Hoggatt told him that the other signature line was for payment. Mr. Sekhon initially said he signed in both places earlier in his testimony.

However, several months after his first testimony, he could not remember if he signed both lines at once or at two separate times. It was clear to me that, when he gave this latter evidence, he was showing signs of fatigue and some confusion. Mr. Hoggatt asked Mr. Sekhon for his credit card, which Mr. Hoggatt wrote down before returning the card to Mr. Sekhon. Mr. Hoggatt did not discuss the document with him any further and did not read the document to him, according to Mr. Sekhon. [ 110 ] Mr. Sekhon testified he was not aware that there was writing on the back of the document. Mr.

Hoggatt did not direct his attention to the back of the document. He did not know there were waiver of liability terms on the back of the document and that the terms were not brought to his attention. He testified that he signed without reading the work document. A copy of the work document was given to Mr. Sekhon after the work was done as he left the site. Early in Mr. Sekhon's direct examination by his own lawyer, Mr.

Sekhon testified that even if the defendants had shown him the flip side of the document, he never intended to read it. [ 111 ] I have carefully considered this evidence to determine whether it demonstrates the level of carelessness contemplated by the courts. In the result, I have considered this level of carelessness, as well as all the other evidence that applied to the signing of that work document. Evidence of Karl Hoggatt [ 112 ] When I assess the evidence of Mr. Hoggatt, I am concerned still about Mr. Petersen's influence on the preparation of his evidence. [ 113 ] Mr.

Hoggatt testified that when he arrived at the work site and observed the damage on the tractor, he explained to Mr. Sekhon that the defendants would not be responsible for any further damage. He referred Mr. Sekhon to paragraphs 2 and 8 of the work document and explained that it was a release of all claims that may arise from the recovery of the tractor. He testified -- [ 114 ] MR. THIND: Sorry, Your Honour, my client -- [ 115 ] THE COURT: Do we need a break? [ 116 ] MR. THIND: He needs to go [indiscernible - away from microphone]. He needs a break. [ 117 ] THE COURT: All right, certainly. We'll stand down.

I'll just wait in the hallway. [ 118 ] MR. THIND: Thank you, Your Honour. [ 119 ] THE COURT: Just so everyone's aware, I'm almost done. [ 120 ] MR. THIND: Thank you, Your Honour. (PROCEEDINGS ADJOURNED) (PROCEEDINGS RECONVENED) [ 121 ] THE COURT: I am not certain exactly where I was, so I may just repeat where I was previously. Mr. Hoggatt testified that he referred Mr. Sekhon to paragraph 2 and 8 of the work document and explained that it was a release of all claims that may arise from the recovery of the tractor. He testified that he routinely pointed out the two paragraphs concerning waiver of liability.

He testified that Mr. Sekhon took possession of the document, signed it, returned it to Mr. Hoggatt before any work was done. Mr. Sekhon signed the document a second time for payment in full. Document Evidence [ 122 ] I turn now to the actual document that I call the “Mega Cranes Limited Operator Work Record.” As I have indicated, the actual document is not a full-sized eight-and-a-half by 11 page. It is a smaller invoice-sized page.

Given that the terms and conditions were described to be on the "flip side" of the work document, the printing was accordingly and correspondingly smaller than regular printing on an eight-and-a-half by 11 page. I am cautious that the parties each provided a page of eight-and-a-half by 11 inches containing the terms and conditions with spaces between the paragraphs that contained the conditions and with margins on the side. The invoice-sized document - the original document - is much different.

The eight-and-a-half by 11 copies provided to the court permitted me to see the terms more clearly, but I must remember that the work document used at the work site was much smaller in size. It appeared that the work document contained an original and three copies below that were made when a person wrote on the original top document. [ 123 ] The original and first two copies were returned to the defendants. Mr. Sekhon was given the bottom last, and probably most faint,

copy. The comments

section indicates the words "foreman Gary" on the bottom of the page on the defendant's smaller invoice-sized original document.

This is not visible at all on the full-sized copy provided by the claimant. [ 124 ] Below the two signature lines, the employee is instructed to obtain the signature before beginning work and then the second signature at the end of work. [ 125 ] The front of the document does not direct the attention of the signatory in any meaningful way by emphasized lettering, bolding, underlining, print size or colour to the general conditions and terms of equipment rental and services on the back of the document – other than a tiny paragraph above the signature line.

Very small writing above and below the signature line as well. [ 126 ] The title "General Conditions and Terms of Equipment Rental and Services" may be misleading, given that the document does not contain anything in the title with regards to waiver of liability. [ 127 ] The general conditions and terms of equipment rental and services on the back of the document are written in extremely tiny, thin and faint grey lettering. The paragraphs are numbered, but with no spaces in between them and the line spacing is extremely small.

There is very little margin or space on each side of the paragraphs, with the terms and the writing taking up the entire page. [ 128 ] It would be very difficult to read the back of this document clearly, much less be able to consider the terms in a measured way, given both the content and manner in which the terms are presented on this document. The terms and conditions on the back of the work document have no space such that the signatory can sign at the bottom of the page or initial next to each term or condition after reading it. [ 129 ] There are three relevant release terms on the back of the page.

Term number 1 begins with the word "Waiver", so that draws the attention immediately to that topic, making it easily viewed. Term number 1 -- I'm sorry, Madam Registrar, I was going to bring down a folder, which I didn't. May I just have Exhibit I think it's 1? If I can just see it. Thank you. [ 130 ] Term 1 reads: Waiver.

No condoning, excusing or waiver by Mega of any default breach or non-observance of the terms hereof or by the customer at any time or times in respect of any covenant, proviso, or condition herein will operate as a waiver of Mega's rights in respect of any continuing or subsequent default breach or non-observance of the terms and conditions herein. I note that this particular term is written in the passive form and is extremely difficult to understand, even for a legally-trained mind. [ 131 ] Term number 2 is entitled "Release." Again, that does direct the reader's attention to the topic.

This particular paragraph reads: Release. Customer releases Mega of all claims wherever services are performed in respect to loss or damage direct or indirect as a result of the crane not being fit for the purpose intended by or for the customer under this agreement. Under no circumstances shall Mega be liable for any special, incidental or consequential damages arising out of the equipment supplied or any services performed hereunder, including damages to sidewalks, driveways, lawns, buildings, roofs and vehicles.

The customer shall take upon itself with a full release of Mega all responsibility for any damage or injury caused by any person or to any property belonging to the customer or any third party resulting from the use of the equipment, and shall take up the defence in all judicial proceedings that will be taken out against Mega in this regard, including claims relating to the release of contaminants into the atmosphere, water, grounds, sewage systems, and shall pay all legal fees and disbursements resulting thereof.

The customer agrees to indemnify and save Mega harmless from any claim in respect of any of the matters for which the customer is responsible in this agreement, including claims for damages against Mega arising out of the use and operation of the equipment. This term is in the active form and so, in that respect, is a bit easier to understand. But, regardless, it is still difficult to discern this particular term in the original work document on the back of that form from all of the other paragraphs.

I also note that this particular term seems to be attempting to contract out for the very services a customer would be seeking from the defendants. [ 132 ] Term number 8 is entitled "Personnel." I should not say entitled, it is "Personnel": All personnel, including the crane operator and helper shall be under the direct supervision, control and employment of the customer or the customer's agent, the signalman. Customer accepts complete and full responsibility for any damage or injury caused and Mega shall not be responsible for such damage occurring.

The customer agrees that they shall be responsible for the conduct of Mega employees and shall not hold Mega responsible for and damages resulting from their conduct, even if personnel is provided at the request of Mega. Customer is responsible for all traffic control. Again, this particular term is written in the active form, so it is more easily understood.

However, again, it appears to contract out of the very services that a customer would want and where a customer would rely on the expertise of Mega, but at the same time not be permitted to rely on the expertise of Mega. [ 133 ] I note that, on the back of this form, these terms are not capitalized, bolded, underlined or in any way emphasized. These three terms, or certainly terms 2 and 8, appear to be hidden amongst all the other terms. [ 134 ] In all of the circumstances, I find that the environment in which the customer is required to sign this document does not permit careful consideration.

It is in a farm field out of doors, no place to sit down and review the document with an expectation that the work will be performed efficiently and in a timely manner. Most tellingly, it is Mr. Hoggatt who testified that 99 percent of the time people grab the document and sign it. I infer he means that they do not read the terms and conditions. He later added that people are more worried about the time, because Mr.

Hoggatt is paid by the hour, and most people just sign the work document. [ 135 ] Given all of the descriptions that I have listed with regards to this particular work document, I find that the defendant has not proven on a balance of probabilities that it is entitled to rely on these waiver clauses, and therefore they are disentitled to rely upon them.

DAMAGES [ 136 ] I turn now to the damages. I have assessed the repair estimates. The November 2013 estimate deals with contemplated repairs to the tractor as a result of the damage caused. I assessed the reliability and credibility of the estimate. It is admittedly a very general document. It refers to the bottom right window requiring repair, but the later repair invoice referenced the lower left window. I do not find that this is fatal to the reliability of the estimate, because it is clear that Mr.

Sekhon wanted all the glass repaired for safety reasons, which included only one of the lower windows, whether it is on the right or the left side. The estimate correctly refers to the lower right side window as demonstrated in the photographs, as the photographs indicate that the lower left window appeared to be intact. The error appears to have occurred on the repair invoice, not in the estimate. [ 137 ] I am uncertain what the note with regards to 33 hours means for labour and whether it was written before or after the November 18 through 29 repairs occurred.

The basis for the estimate was not provided, i.e., the individualized costs for each item. This generalized type of estimate, however, is appropriate given that the repairs had not started yet and the actual costs of individual items were not yet known. [ 138 ] The claimant argues that the cost and labour for the glass is independent of the other estimates for labour and parts because it is sublet. Overall the costs appear to correspond with what some of the repairs reflected later on. [ 139 ] The PrairieCoast Equipment facility is an authorized John Deere farming equipment dealer and repair facility. Both Mr.

Sekhon and Mr. Petersen used PrairieCoast to buy their John Deere tractors and to repair them and service them. I accept that it would be therefore reasonable for Mr. Sekhon to obtain a repair estimate from a place they both used over such a long period of time. It was therefore reasonable that Mr. Sekhon had the tractor transported to PrairieCoast Equipment for repairs, rather than the other repair shop in Langley.

The freight costs and the estimate reflect costs if all the repairs were made, while the freight costs reflected in the November 18 through 29, 2013 repairs applies only to partial repairs. [ 140 ] The timing of the estimate is relevant only so far in that it was certainly disclosed to Mr. Sekhon by the 21st of November 2013. He believes that he may have received it before he went to India in the fall of 2013 and faxed it to the defendants.

He believed that the estimates were faxed a second time on the 21st of November 2013 to him. [ 141 ] The defendants claim it received nothing, including notice of the damages, until February of 2014. It appears that the estimate, whether it was faxed the first or the second time, was faxed in the midst of the repairs. Although the estimate indicates that it is an estimate for replacing all the damaged parts of the cab, I note that the roof panels are not yet repaired, the right side door was repaired, the windshield and lower right window were repaired.

The rear window was repaired with a new latch and the glass was cleaned up. [ 142 ] The subtotal for labour in the estimate was $3,795 for 33 hours, less the November 2013 partial repair, which I have estimated at $2,000. That leaves an amount of $1,795 remaining with regards to labour. The subtotal for the parts on the estimate was $4,400, less $1,934.64 in the November 2013 repair, which leaves a remainder of $2,465.36. The sublet repair was indicated $500, glass shop estimate; however, the cost in November of 2013 was $1,202.66, which increased the price.

The transportation costs of the tractor are the same, $325 on the estimate and $325 paid in November 2013. The inbound freight for the estimate indicated $500 for the parts. In the November 2013 work done, the cost was $5 because of the partial repairs. [ 143 ] The estimated total was $9,700. With the work that was actually done and certain reductions, the amount of damages should be more in the neighbourhood of $9,025, which incorporates the actual costs paid. [ 144 ] I will note that Mr.

Sekhon and the claimant did not disclose any of the repair invoices that the defendants sought to enter as exhibits, which includes the invoice pertaining to the November 2013 partial repairs. Those documents should have been disclosed to the defendant prior to trial. [ 145 ] I have assessed the invoice pertaining to the partial repairs in November 2013.

Although there was much testimony about the contents of the invoice and what various items meant, I again note that I will only be able to rely upon those items that are discernible on the face of the document, given the absence of any evidence directly from a representative of PrairieCoast Equipment. Neither party called any witnesses from PrairieCoast to interpret the notations on the invoices.

That means I can only consider what is on the face of the document and any reasonably apparent meaning. [ 146 ] I note that the invoice that is dated March 19th, 2014, but which covers work done between November 18 through 29 in 2013, indicates that there were repairs done to some of the alleged September 2013 damage. The invoice clearly sought to correct the original estimate of damage to the tractor. Notwithstanding the claimant's obligation to disclose various invoices pertaining to repairs relating to this incident, Mr.

Petersen's conduct in obtaining this document speaks to his close relationship with PrairieCoast and permitted him to obtain these documents with

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