Ken Van Beselaere - v. -, 2017 SKPC 93

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Date: November 21, 2017 2017 SKPC 093 File: SC 497/16 Location: Regina _____________________________________________________________________________ Between: Ken Van Beselaere - and - Greg Anderson Rick Van Beselaere Q.C. For the Plaintiff Self Represented For the Defendant JUDGMENT P. DEMONG, J [ 1 ] The plaintiff, ‘Ken’ alleges that he entered into a written agreement with the defendant, ‘Greg’ on November 18, 2014, in which he agreed to sell Greg his 1998 Dodge truck for the sum of $4,000.00.

He alleges that $900.00 was paid, and that the remainder was to be paid by February 14, 2015. He asserts that Greg failed to pay the remainder of the monies due and owing and he now brings this action to recover the sum of $3,100.00 together with prejudgment interest on that sum and his costs of this action. [ 2 ] The defendant acknowledges that he has not paid the remaining amount that is allegedly due and owing. He states that while the

written agreement stipulated payment in the sum of $4,000.00, there was a representation made by Ken that the vehicle was safety certified and that there was a collateral verbal side agreement made to the effect that if the vehicle was not safety certified or if repairs had to be made to the vehicle, an accommodation would be made in respect of the price. [ 3 ] The defendant alleges that after taking possession of the vehicle he concluded (because he is a red seal heavy duty vehicle mechanic, and because he has his Safety Certification Certificate from the Government of Saskatchewan), that the front end of the vehicle required repairs prior to being certified.

After taking possession of the truck he made the necessary repairs, which he says cost, in terms of parts and labour, the sum of $2,953.00.

He argues that this amount should be set-off against the purchase price and therefore there is a balance owing of only $147.00. [ 4 ] The defendant says, however, and to the surprise of the plaintiff at trial, that in fact, he made an additional payment of $900.00 on the date that the written agreement was executed by the parties, and therefore, and ostensibly, the plaintiff actually owes him $753.00. [ 5 ] I would note in passing that the defendant failed to appear at the case management conference originally set for January 6 th , 2017, and a default judgment was entered against him by Her Worship Justice Murchie.

On application, that default judgment was set aside by me, but on the understanding that Mr. Anderson pay into Court, to the credit of the successful party, a sum of money. That sum equates to $1,760.00, and it has been paid into Court. [ 6 ] There is no question that Greg feels that there was a power imbalance between the parties. Ken is represented by a family member who is partner of a large legal firm and who is a Queen’s Counsel. Greg is self-represented.

Much of Greg’s concerns related to what he felt to be a failure of the plaintiff and his counsel to entertain meaningful negotiations which, if conducted to the satisfaction of Greg, would have resolved this legal dispute.

This concern played a predominant role in Greg’s evidence throughout the trial. [ 7 ] During final argument, it became apparent that one of the central issues that the Court might have had to concern itself with would be a calculation of what sum, if any, that the parties would have agreed to offer, and accept, as a reasonable compromise regarding the amount to be paid under the contract if the Court concluded that money should be awarded in lieu of rescission of the contract.

Greg appeared to be amenable to a specific sum of money, and a short adjournment was offered in order for Ken and his counsel, to consider this so that the matter be concluded in its entirety.

While somewhat unusual, I invited the parties to have this discussion post-trial in full recognition that this Court is, foremost, concerned more with the resolution of disputes as opposed to the rendering of judgments. [ 8 ] I assisted the parties in those deliberations, and explained the benefits of resolution by consent, and the potential adverse implications of the delay that may befall the parties in the event of an appeal, and the consequential costs in terms of time and energy.

I also discussed the unfortunate possibility that judgment debtors may have their credit affected, and the further possibility that judgments, being public documents, may be read by business acquaintances, and that some may draw adverse inferences against the parties based on the findings of a Court. While the plaintiff was prepared to make some accommodation, in the spirit of compromise and finality, I was left with the very distinct feeling that Greg felt pressured and even threatened into the tentative settlement that was discussed.

Greg stated as much, and enquired as to his right to appeal a consent judgment. I felt that perhaps Greg felt he was leaving something ‘on the table’. On that basis, particularly because he lacked legal representation, I withdrew my offer to further mediate, and advised that I would render my judgment. [ 9 ] I fully recognize that it is unusual for a trier of fact to involve himself in settlement discussions and the potential apprehension of bias that may arise.

I am also cognisant of the fact that all triers of fact in Queen’s Bench are aware that good faith efforts to settle must be certified as having taken place prior to proceeding to trial in that Court. I do not believe that my knowledge of the fact that the plaintiff was prepared to compromise his claim, or that the defendant, was prepared to do likewise, in any way influences my perception of the evidence or its application to the law.

I am fully aware that settlement offers, whether they are made with or without the knowledge of the Court, are made for any number of reasons - including but not limited to - the value to the litigants for finality, and the corresponding comfort of knowing that a matter will not drag on endlessly through the Courts with the attendant headache, cost, and use of valuable time and energy that results therein.

Evidence, Analysis and Findings of Fact [ 10 ] Both Ken and Greg agree that their first meeting occurred when, at the suggestion of a mutual acquaintance, Ken sought out Greg to do some mechanical work on a vehicle owned by Ken’s wife. Ken indicated that he wanted to sell his vehicle because he wanted to buy a new vehicle and Greg was interested in purchasing that vehicle.

While Ken cannot recall the precise nature of the discussion leading up to the formation of the contract, Greg is adamant that he had asked Ken if the vehicle was safety certified - something which he says any heavy duty mechanic would inquire about prior to the purchase of a used vehicle - and Greg says that Ken indicated that it was. I believe that this conversation took place. [ 11 ] I do not know if in fact it was safety certified.

Ken has submitted an invoice from Crestview Chrysler indicating that the vehicle had been inspected approximately one month prior to the eventual sale but there is nothing on that invoice indicating whether that inspection was a safety inspection or if the vehicle passed or failed. Regardless, I am satisfied that Greg’s version of the conversation is the more accurate and that Ken did in fact assert that the vehicle was safety certified. [ 12 ] It is clear that on November 16, 2014, Greg gave Ken $600.00 in what is described as a down payment for the vehicle.

An invoice submitted into evidence confirms this payment. While there was some confusion as to when Ken parted with possession of the vehicle, I am satisfied that when the down payment was made on November 16 th , Ken invited Greg to test drive the vehicle, and Greg in turn indicated that he would need a couple of days to ensure the safety of the truck.

Ken gave him the keys on that date. [ 13 ] Greg says that when he drove the vehicle to his home, some seven blocks away, he noticed a tendency of the vehicle to ‘wander’ on the road, Greg says he took the vehicle to Crestview Chrysler on November 17 th , and was surprised to find out that the whole front end of the vehicle needed to be repaired at a cost of $2,515.15 before taxes. [ 14 ] The following day, November 18 th , Greg says that he returned to Ken’s home and expressed his concerns relating to the condition of the vehicle and that, contrary to Ken’s earlier representations, the vehicle would not likely pass a safety inspection.

Notwithstanding this, they prepared a Bill of Sale which was dictated by Greg and written by Ken. Both parties signed the Bill of Sale. It reads: I Ken Beselaere have sold to Gregory Anderson 1998 Dodge 1500 quad Cab Vin # 1B7HFI3XYWJ21823376 for the price of $4,000.00 on a payment plan to be paid in full by February14/2015 1 st payment $900.00 Nov 18/14. Seller Ken Van Beselaere (phone number) Buyer Greg Anderson (phone number) As of November 18/2014 [ 15 ] Both parties acknowledge that Greg paid a further $300.00 to Ken at this time.

Greg says, however, that not only did he pay $300.00, but he paid a further $900.00, and that it is this $900.00 that is reflected in the Bill of Sale. Ken specifically denies that Greg brought an additional payment of $900.00 on that date and maintains that only $300.00 was provided. He points to the original invoice that had indicated a $600.00 deposit, and the annotation to that invoice in Ken’s handwriting indicating that a further $300.00 was paid on November 18 th .

There is no written confirmation that Greg did in fact pay another $900.00 on the day in question. [ 16 ] I have a fundamental problem with Greg’s evidence. My concern is predicated on the letter that Greg had sent Ken’s counsel upon being presented a demand letter in early March of 2015. That letter was tendered into evidence by Greg as D-2, and while self- serving, its entry into evidence was not objected to. That letter constitutes the de facto dispute note that Greg filed.

In that letter, Greg relates his recollection as to the discussions and the steps that he says occurred leading up to his decision not to pay the remaining amount that was due and owing. It is significant that it does not mention payment of the additional $900.00. In identifying the breakdown of what had been paid and what was arguably then due, he refers to a first payment of $600.00 and a second payment of $300.00. He then identifies the amount of money that needed to be spent to repair the vehicle and concludes that his only obligation is to pay a remaining balance of $147.00.

Not only is the additional $900.00 payment not mentioned during Greg’s calculations, the letter ends with the following passage:

I will gladly pay Ken the $147.00 immediately, or, if he wishes, he can pay me for the cost of the parts and labour for the repairs and wheel alignment, by way of certified cheque, minus the down payment of $900.00 ... and I will be glad to end this very problematic, hostile situation, by signing my truck over to him. [ 17 ] I have no doubt that Greg’s recollection of events would have been much clearer in March of 2015, some three and one half months following the occurrence rather than three years later. Greg’s evidence is conflicting.

If he had paid the additional $900.00 surely he would have been aware of that when he sent that letter on March 8 th of 2015.

In light of that conflict, and in the absence of any other evidence tending to show payment, I simply cannot conclude, on a balance of probabilities, and more likely than not, that this further payment took place. [ 18 ] That said, the remaining issue can be framed as follows: does the Bill of Sale incorporate the entirety of the agreement between the parties, or was there, as Greg contends, a collateral oral agreement that notwithstanding that $3,100.00 was owing, the parties agreed that the debt would be reduced by some further amount to reflect the fact that front end work would be required to make the vehicle safety certified? [ 19 ] Ken denies that he ever agreed to this.

Greg says that he did. I have problems with Greg’s understanding of this presumed further oral agreement. There is no question that agreements can be partly written and partly oral, and counsel for the plaintiff concedes as much - subject to the parole evidence rule that where an oral agreement is asserted which directly conflicts with the written agreement, the written agreement governs.

If, in fact, Ken and Greg did agree to make a further accommodation on price to reflect the cost of additional repairs, than this would not, in my opinion, directly conflict with the written Bill of Sale. [ 20 ] The problem that the Court is presented with is simply this: by its nature, a contract is a bargain entered into by both parties based on an agreement by both parties as to those specific terms.

Has Greg put forward sufficient evidence to persuade the Court, on a balance of probabilities, that the parties agreed that Ken would make some kind of price accommodation to correct the problems with the vehicle? [ 21 ] First, Ken denies that he ever did so. Second, Greg carries the burden of proof to convince the Court that Ken did agree. Greg asserts that he made Ken aware of the type of problems that the vehicle had and the cost of those repairs on November 18 th when he and Ken executed the Bill of Sale.

Greg says, however, that Ken was not interested in discussing the issue at that time because ‘he was busy’ and that Greg should call him later and ‘we would talk’. Greg says that when he called a couple of hours later Ken was very hostile and expressed the view that the truck was sold ‘as is’ and hung up on Greg. Greg said that he decided to let Ken cool off for a few days and attempted to broach the subject again, some 18 days later, on December 6 th , but that Greg got angry and started cursing at him.

Greg maintains that at that point he invited Ken to take the vehicle back in exchange for a return of the monies that had been paid up to that time. [ 22 ] Greg says that he did not call Ken again, until February 14, 2015, which was the date that the balance of the money was due. In the interim, Greg says that he had decided that he would keep the truck and, having received tax monies back, decided to complete the repairs himself, which presumably occurred on January 11, 2015.

When he called Ken, he indicated that, to put it mildly, Ken had no interest whatsoever in making some kind of financial contribution and demanded to be paid. [ 23 ] On these facts, how can it be said that there was an agreement by Ken to make a financial contribution to the repair of the vehicle? I can find no such agreement. Certainly there was an erstwhile desire on the part of Greg to enter into that kind of agreement, but the desire of one person to a contract does not make a contract. There must be a meeting of minds and in this instance there is no evidence whatsoever of a meeting of the minds.

Once Ken put Greg on notice of the fact that he had no intention of making a contribution, Greg had a choice. He could have reneged on the deal and returned the vehicle and asked for his money back. If the return of the money was not forthcoming, he could have brought application to this Court seeking rescission of the agreement on the basis that there was no true meeting of the minds in relation to the terms of the agreement. Rescission is an equitable remedy that allows a Judge to conclude that there was no true agreement and direct that the parties be returned to their original positions.

However, Greg’s decision to keep the vehicle and then repair the vehicle was made of his own volition. In the intervening three years he has had the use of the vehicle and Ken has not been paid. Rescission is impossible because the vehicle cannot be returned to Ken in its original condition. Even if this Court could order that a certain amount of monies be set off against the debt, there is little evidence before the Court to determine what this amount would be. Certainly it would not be the whole of the amount sought by Greg, because by repairing the vehicle he is left in a position of betterment.

He would have essentially received a vehicle with a new front end for the sum of $4,000.00 rather than a vehicle with a front end that was sixteen years old.

[ 24 ] Unfortunately for Greg, while he may be frustrated by Ken’s unwillingness to negotiate some resolution to Greg’s satisfaction, there is not, in law, in the absence of an agreement, any obligation for Ken to do so. At best, there was some discussion of an agreement to agree. [ 25 ] Greg strikes me as an honourable man, and the kind of man who feels that every person who is a party to a contract should be able to walk away happy and satisfied with the result, regardless of the nature of the agreement that was struck.

That is an ambitious desire, and in a perfect world, perhaps that would always be the result. But on the facts before me, I can only conclude that Greg was aware of certain deficiencies in the truck and, operating on his personal assumption that some kind of accommodation would be made, he agreed to buy the truck for $4,000.00. His personal assumption is just that. It was an assumption but not an agreement shared by both parties. At the very best, it was an agreement to agree, but agreements to agree are ambiguous and uncertain, and they are not, at least in the circumstances before me, enforceable in law.

Greg’s decision to retain the truck and fix it, all the while aware that it had a specific type of deficiency, and all the while knowing full well that Ken did not share, or agree with Greg’s assumption, was his decision alone. [ 26 ] For these reasons, I must find in favour of the plaintiff. Greg was in breach of contract when he failed to pay the balance owing on the truck as at February 14 of 2015. The plaintiff is granted judgment in the principal sum of $3,100.00. The plaintiff’s claim for prejudgment interest on that amount, from February 14 of 2015 is granted in the further sum of $48.07.

The plaintiff is also entitled to his costs in the further sum of $81.00 for a total award of $3,229.0 [ 27 ] The defendant has paid $1,760.00 into Court. After passage of the appeal period the plaintiff may ask for payment out of that sum from the Court in partial satisfaction of this judgment and take whatever steps thereafter to collect on the remainder. P. Demong, J