Churchbridge Cooperative Association Limited - v. -, 2014 SKPC 96

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2014 SKPC 096 Date: May 1, 2014 File: 110/13 Location: Yorkton _____________________________________________________________________________ Between: Churchbridge Cooperative Association Limited - and - Richard Geres Jamie Pierce For the Plaintiff Jens Peterson For the Defendant _____________________________________________________________________________ JUDGMENT R. GREEN , J _____________________________________________________________________________ I. INTRODUCTION [ 1 ] The Churchbridge Cooperative claims against Mr.

Geres for $20,000.00, as a result of an unpaid account for goods and services. The sole issue in this case is whether, by virtue of The Limitations Act , this claim is statute barred.

Section 5 of that Act provides that, unless otherwise provided in the Act , no action shall be commenced for a claim after two years from the day the claim was discovered.

II. BACKGROUND [ 2 ] Jamie Pierce represented the plaintiff and was the only witness to testify, with the defendant not calling evidence at the trial. Although employed by a cooperative in Weyburn, Ms. Pierce began doing contract work for the Churchbridge Cooperative, collecting unpaid accounts, in May of 2013. After she began her work for Churchbridge Cooperative, she discovered that Mr. Geres had a significant amount owing on his account and she wrote to him. On July 29, 2013, she spoke to Mr. Geres by telephone.

While he did not deny owing an amount in excess of $20,000.00 to the Churchbridge Cooperative, he said he had nothing to give to the Cooperative and refused to discuss making arrangements for payment of the account. At this point, Ms. Pierce indicated to him that the Cooperative would be proceeding with a civil action. As a result, this action was commenced on August 6, 2013. [ 3 ] The account in question was a so-called card lock account in the name of Mr. Geres. The terms of that account were that the money owing was due 30 days after the statement was rendered at the end of the month.

As a result, if he did not pay within 30 days of the statement, he was in default. [ 4 ] The plaintiff filed a

summary of all purchases and payments on this account beginning in August of 2006 and ending in October 2013 (Exhibit P-2). Although some payments were received from Mr. Geres over the years, by January of 2010 the closing balance on his account, including interest, was $20,375.38. The last payment made by Mr. Geres was in November of 2010, and, after that date, the last purchases made by him on this account were for $100.00 in July 2013 and $10.08 in August 2013.

Regarding the latter purchase, there is not proof on a balance of probabilities it occurred before this claim was commenced on August 6, 2013. [ 5 ] The Churchbridge Cooperative sent Mr. Geres an account statement each month from August 2006 until March 2012. Copies of those statements were filed with the Court (as part of Exhibit P-2). [ 6 ] Section 6(1) of The Limitations Act reads as follows: 6

(1) Unless otherwise provided in this Act and subject to subsection (2), a claim is discovered on the day on which the claimant first knew or in the circumstances ought to have known: (

a) that the injury, loss or damage had occurred; (

b) that the injury, loss or damage appeared to have been caused by or contributed to by

an act or omission that is the subject of the claim; (

c) that the act or omission that is the subject of the claim appeared to be that of the person against whom the claim is made; and (

d) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it.

(2) A claimant is presumed to have known of the matters mentioned in clauses (1)(

a) to (

d) on the day on which the act or omission on which the claim is based took place, unless the contrary is proved. [ 7 ] Section 11(1) of The Limitations Act reads: 11

(1) If a person acknowledges the existence of a claim for payment of a debt, for the recovery of property, for the enforcement of a charge on property or for relief from enforcement of a charge on property, the act or omission on which the claim is based is deemed to have taken place on the day on which the acknowledgment was made.

(2) For the purposes of subsection (1), an acknowledgment: (

a) subject to subsections (3), (7) and (8), must be in writing and must be signed by the person making it or the person’s agent; and (

b) must be made, before the expiry of the limitation period applicable to the claim, to the claimant, the claimant’s agent, a receiver, a receiver-manager or an official receiver or trustee acting pursuant to the Bankruptcy and Insolvency Act (Canada).

(3) In the case of a claim for payment of a debt, part payment of the debt by the person against whom the claim is made or by the person’s agent is deemed for the purposes of subsection (1) to be an acknowledgment. III. ANALYSIS [ 8 ] Ms. Pierce argued that the plaintiff Cooperative is not barred from bringing this claim for $20,000.00 under The Limitations Act because she, in effect, discovered this claim on July 29, 2013, when she spoke with Mr. Geres.

With the exception of his purchase for $100.00 in July 2013, and for the reasons that follow, I disagree. [ 9 ] Given that the money on this account was due 30 days after each month’s statement, I am satisfied that the plaintiff knew, or ought to have known, that Mr. Geres was in default on this account from September 2006 onwards. Given this history, with exception of the July 2013 purchase, the two ways this claim, as commenced on August 6, 2013, would not be statute barred are if, within two years of the commencement date:

(1) Mr. Geres acknowledged this debt under ss. 11(1) and 11(2) of the Act ; or

(2) Mr. Geres made a part payment of the debt which served as an acknowledgment under s. 11(3) and 11(1) of the Act . [ 10 ] While Ms. Pierce submitted that her discussion with Mr. Geres on July 29, 2013 was an acknowledgment, it is clear under s. 11(2) of the Act that this was not an acknowledgment. That is because it was not in writing and it was not signed by Mr. Geres. [ 11 ] Regarding whether a part payment made by Mr. Geres served as an acknowledgment which allowed this entire claim not to be statute barred, the most recent partial payment by him came in November 2010.

As a result, 30 days after that payment, in December 2010, the Cooperative, through its representatives clearly knew that Mr. Geres owed the Cooperative $23,976.24 (the amount stated in the Cooperative’s account

summary for December 2010 in Exhibit P-2). [ 12 ] With the exception of Mr. Geres’ purchase of $100.00 in July 2013, I find that the remainder of this claim, commenced on August 6, 2013, was commenced more than two years after those acting on behalf of the Comparative knew that the loss had occurred (as per the wording in s. 6(1)(

a) of the Act ), or put another way, that the debt owed by Mr. Geres to the Churchbridge Cooperative existed. Using either phrase, I am satisfied that, except for the purchase in July 2013, this action was commenced more than two years after the Churchbridge Cooperative discovered the claim against Mr. Geres. [ 13 ] There will be judgement for the plaintiff in the amount of $100.00, together with interest on that amount under the Prejudgment Interest Act from August 31, 2013. The plaintiff will as well receive this cost of issuing this claim ($100.00). R. Green, J