Grant Weir Plaintiff - v. -, 2018 SKPC 72

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Date: November 13, 2018 2018 SKPC 72 File: NB 85-17 Location: North Battleford _____________________________________________________________________________ Between: Grant Weir Plaintiff - and - Neil Bendall Defendant Grant Weir For the Plaintiff Neil Bendall For the Defendant _____________________________________________________________________________ JUDGMENT L.

MATSALLA , J _____________________________________________________________________________ [ 1 ] The plaintiff’s claim is for the recovery of the deposit paid by him to the defendant respecting an agreement between them for the cost of moving a train station in the North Battleford area. By way of counter-claim the defendant is claiming damages in an amount equal to the remainder owing under the contract and for the use of his equipment as well as interest thereon. If successful, the amount of the counterclaim must be limited to the amount permitted under Provincial legislation. Position of the Plaintiff

[ 2 ] Mr. Weir resides on a farm that is located about five miles from North Battleford. He purchased an old train station from a farmer who lives near Hafford intending to use it as an office. He was required to move the station by a certain date. [ 3 ] He had earlier retained the defendant to move a cabin for him in what turned out to be a straightforward arrangement and did not include the payment of insurance. [ 4 ] During the spring of 2015, Mr. Weir approached the defendant in North Battleford. He knew that Mr. Bendall operated a moving business known as Ray’s Building Movers.

They discussed moving the station and he encouraged Mr. Bendall to attend at the farm to take a look at the building. About two weeks later, the defendant went to the farm and examined the structure. He then went to the plaintiff’s farm where it was agreed that the building would be moved for $15,000.00. The price was acceptable to the plaintiff and, by agreement, the plaintiff gave the defendant a cheque, dated May 29, 2015, for $7,500.00 – that is the sum of $2,500.00 to complete the earlier move of the cabin and a deposit of $5,000.00 to move the station.

According to the plaintiff, the agreement was straightforward and there was no discussion about insurance to cover any damage incurred during the move nor was it a term of the contract that the plaintiff was to arrange for liability insurance to cover the move. The plaintiff pointed out that insurance was not discussed when the defendant had moved the cabin. [ 5 ] On a day in early June, Mr. Weir and his son went to the defendant’s business location and helped him load and strap some beams together in preparation for the move.

The building was sitting on a concrete grade beam and so the defendant had difficulty getting the beams underneath the structure. He decided to dig a trench under the building and push the beams underneath. Mr. Weir’s hired hand provided a significant amount of assistance to the defendant to prepare the building for the move. He was involved in bracing the building, replacing floor joists and taking a jack hammer to the concrete grade beam in order to put the moving beam in place.

A backhoe was used to dig a trench along the side of the building and once a hole in the grade beam was completed, the beam was pushed under the building. Then work was halted. [ 6 ] Subsequently the owner of the land was concerned about the lack of progress and gave the plaintiff until October 1 st to remove the station. When the plaintiff spoke to the defendant to advise of the deadline, the defendant said that he needed $2,500.00 more to complete the job. On October 6 th , Mr. Weir provided Mr. Bendall with the sum of $2,500.00. The station was not moved and Mr.

Bendall then advised that he could not move the building unless the plaintiff purchased property and liability insurance to cover the move. Mr. Weir refused and Mr. Bendall refused to move the building. [ 7 ] The plaintiff is of the view that it was not a term of the contract that the plaintiff was to purchase insurance in respect of the move. [ 8 ] The plaintiff’s hired hand told the court that after the preparatory work had been done he recalled that the defendant was at the work site where Mr. Bendall told the plaintiff that he needed insurance in place before he could conduct the move.

At that time the defendant left the site with his jack hammer. He went on to say that he had accompanied the plaintiff to the defendant’s residence where the plaintiff gave the defendant a cheque to complete the work. [ 9 ] By mid-October the land owner demanded that the building be moved. During early November the plaintiff contacted a mover in Saskatoon and arranged to have the building moved as soon as possible for the same price that had been agreed upon with the defendant, that is $15,000.00.

On November 16 th , the plaintiff paid the business the sum of $7,500.00 as a deposit and the building was moved within two weeks. Thereafter the plaintiff demanded that the defendant return the sum of $7,500.00 that he had paid to him. The Position of the Defendant [ 10 ] The defendant, Mr. Bendall, testified. He said that he was approached by the plaintiff to move a train station and that he took a look at the building before the arrangement was made.

Subsequently, the parties discussed the job at his residence where he told the plaintiff that he did not have insurance and that while he would buy insurance to transport the building, the plaintiff would have to buy liability insurance. Mr. Weir advised that he did not want to get the insurance. Another discussion took place at the plaintiff’s workshop where he told the plaintiff that the plaintiff would have to get insurance. Nonetheless, they settled on a price of $15,000.00 to move the building. Mr.

Bendall told the court that he “suggested” that the plaintiff should have liability insurance. [ 11 ] The deposit was paid and some work was done with the plaintiff’s hired hand in preparation for the move. After the preparatory work was completed, he told the plaintiff to get the insurance. According to Mr.

Bendall, “he (the plaintiff) was backing out” and so he did not go back to complete the move. [ 12 ] At the trial the defendant made a counter-claim for expenses arising out of the plaintiff’s breach including the cost of labour to prepare the building ($4,000.00), equipment rental ($3,000.00), the cost of labour ($600.00), the cost to rent some moving equipment ($3,000.00) and he claimed the sum of $657.72 as the value of the equipment he left on site.

It therefore appears that after making it clear that he (the defendant) would not complete the contract he left his equipment in the farm yard of a person other than the plaintiff. Issue [ 13 ] Whether the contract between the parties included a term that provided for insurance to cover the move of the building and if there was a breach of the contract, what damages resulted. If there was a breach of contract, the extent of the damages arising therefrom must be determined.

The Law [ 14 ] For a contract to exist, it must be possible to determine whether there was an agreement between the parties on the essential terms. If there was no such agreement, then it cannot be said that a contract existed. [1] [ 15 ] It is a long standing principle that the court cannot make a contract for the parties if they have not agreed upon the basic

terms. [2] Furthermore, in order to determine the intention of the parties to contract and to determine the terms of that contract, the law requires that the court examine the circumstances and to apply a test, namely to find out whether a reasonable bystander aware of the circumstances would have believed and understood that the parties intended to contract and were consenting to the identical terms. [3] [ 16 ] In the event of a breach of a term of the contract, the extent of damages due to the innocent party must be calculated.

The law will endeavor to place that party, as far as it may be possible in the circumstances, in the position that that person would have been in had the contract been performed. [4] However, the party alleging the breach has a duty to take reasonable steps to mitigate or lessen the loss arising out of that breach. [5] Analysis [ 17 ] Clearly, in this case there was an understanding between the parties. Money was paid by one party and work was done by the other. Unfortunately, the parties did not reduce their understanding to writing.

Therefore, I must look at the circumstances to determine the terms of the agreement. [ 18 ] The plaintiff stated that the agreement was a simple one – the defendant, an experienced building mover, had agreed to move the station and the plaintiff agreed to pay a specific price. It is his position that they never talked about insurance until after the defendant had commenced work and that it was not a term of the agreement that he was to purchase insurance.

The defendant testified that when they first discussed the matter, he told the plaintiff that he would have to buy liability insurance and that he, the plaintiff, did not wish to pay for that insurance. Yet, nonetheless, a price was agreed upon and the defendant took steps to commence work. The defendant admitted that at one point after the preparatory work had been done, he told the plaintiff to purchase liability insurance. [ 19 ] I’m inclined to accept the evidence of the plaintiff on this point.

The matter of insurance had not been discussed when the previous arrangement for the relocation of the plaintiff’s cabin was made and, even if the need for insurance was discussed before the move of the station had taken place, it was not a term of the agreement because the defendant commenced work under the contract before any insurance was obtained. It appears that the need for insurance arose as an afterthought when the actual move was about to take place and the risk of a loss was more significant.

If insurance was such an essential requirement, the defendant could have clearly insisted on it when the other terms were discussed. [ 20 ] I must conclude that it was never a term of the contract that the plaintiff was to arrange for the insurance. The agreement was a simple one. I find that most of the preparatory work was done by Mr. Weir’s hired hand while he was working for Mr. Weir. Mr. Bendall decided he was not prepared to complete the contract. I am satisfied that Mr. Weir took reasonable steps as soon as it was clear that Mr.

Bendall was not prepared to complete the contract in order to complete the contract. [ 21 ] I have therefore concluded that Mr. Bendall did not complete the agreement and Mr. Weir is entitled to the return of his deposit in the amount of $7,500.00. He shall be entitled to pre-judgment interest calculated from November 16, 2015 and the costs of the action. I am satisfied that Mr. Weir took reasonable steps as soon as it was clear that Mr. Bendall was not prepared to complete the contract to arrange to have the building moved by another mover. ________________________ L. Matsalla, J