Cameron Cherkas - v. -, 2019 SKPC 008

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2019 SKPC 008 Date: January 30, 2019 File: 86/16 Location: Yorkton _____________________________________________________________________________ Between: Cameron Cherkas - and - Kelly Bielecki Kristen Martinuk for the Plaintiff David MacKay for the Defendant ______________________________________________________________________________ JU D GMENT R. GREEN , J ______________________________________________________________________________ I. INTRODUCTION [ 1 ] Cameron Cherkas agreed with Kelly Bielecki to buy the house of Mr.

Bielecki’s deceased father. Mr. Cherkas paid Mr. Bielecki a down payment, and only one of the required five monthly payments. When he did not make the remaining payments, Mr. Bielecki sold the house to another purchaser. Mr. Cherkas was not happy. He sues for the return of the money he paid to Mr. Bielecki

under the agreement ($3,000.00) and for improvements, he claims to have made to the property ($4,750.00). [ 2 ] Mr. Bielecki, as well, was not happy. He denies that he owes Mr. Cherkas anything, under the agreement or for any improvements, if these in fact were made. II. BACKGROUND [ 3 ] During the middle of August 2014, Mr. Cherkas signed an agreement with Mr. Bielecki to buy 423 East Avenue in Kamsack , which had been the home of Mr. Bielecki’ s deceased father.

That handwritten agreement (Exhibit P-1) is brief and reads: Sold to Cameron Cherkas one dwelling 423 East Avenue legal description 1306AA4509 as is where is, no warranties for $2,500.00 down payment $500.00 per month till paid on payments starting September till paid. To be paid in full January 2015. House free and clear of all liens 2014 taxes paid. Ernest Bielecki Estate per Kelly Bielecki Cameron Cherkas [ 4 ] Mr. Cherkas was not sure, when he signed the agreement, who the registered owner of the property was, but appeared to believe – I find reasonably - that Mr.

Bielecki would have the power to transfer the property to Mr. Cherkas once the required payments were made. Mr. Cherkas paid the down payment of $2,500.00 to Mr. Bielecki upon signing the agreement, and then made one further payment of $500.00, for September, to Mr. Bielecki on October 11, 2014 (the receipt for this payment is Exhibit P-2). [ 5 ] Mr. Cherkas discovered, later in October, that the title to this house was not in Mr. Bielecki’ s name, but instead it remained in the name of Mr. Bielecki’ s deceased father. As a result, Mr. Cherkas said to Mr.

Bielecki “no more money for you, as you don’t own the house”. Mr. Cherkas had no further discussions with Mr. Bielecki, and made no further payments to him, despite remaining in this house, where he continues to reside in 2019. [ 6 ] In January 2015, Mr. Bielecki and his brother became administrators of their father’s estate. Having received no further payments from Mr. Cherkas under the agreement, Mr. Bielecki sold this property to Sunset Housing Ltd., who then applied under The Residential Tenancies Act, 2006, SS 2006, c R-22.0001 , to the Office of Tenancies (the Rentalsman) for an order evicting Mr.

Cherkas. [ 7 ] In mid-February 2015, Mr. Cherkas received notice that this property had been sold and, as well, received a notice of eviction from the Office of Tenancies . Despite that notice, he remained in the residence, and ended up becoming a tenant of Sunset Housing Ltd., paying a rent of $500.00 per month. He continues to pay this amount in rent to Sunset Housing Ltd. as a tenant. [ 8 ] Regarding his claim against Mr. Bielecki for improvements, Mr.

Cherkas said he cut down spruce trees and dug weeds at the property, work he said was for his own purposes - to make it “look cleaner and nicer” - but work, he admits, which was not requested of him by Mr. Bielecki. This work was done in May 2015. Mr. Cherkas claimed that a reasonable rate for his work was $30.00 per hour, although he gave no mention of the number of the hours he worked, and as well admitted that, when he did the work, he knew that Sunset Housing Ltd. owned the house. [ 9 ] Mr. Bielecki testified that Mr.

Cherkas came to him in August of 2014, and claimed to have been removed from his residence by Kamsack Housing. As a result, Mr. Cherkas was desperate for a place to live, and asked Mr. Bielecki if he could buy this property and make payments on it. Mr. Bielecki phoned his brother, and his brother said that a down payment of $2,500.00 would be required. [ 10 ] Mr. Bielecki drew up the agreement and signed it on behalf of his father’s estate. Mr.

Bielecki said he thought he had the authority to sign the agreement on behalf of his father’s estate, based on his discussion with his brother, despite paragraph 2 of his Reply, which said, “The defendant was not authorized to make any agreement with the plaintiff”. [ 11 ] Mr. Bielecki received the $2,500.00 down payment from Mr. Cherkas, and a further $500.00 payment for September, on October 14, 2014. He, however, received no further payments from Mr. Cherkas. The parties then spoke a couple of times about further payments; on the first occasion, Mr.

Cherkas said he had bills to pay, and, on the second occasion, they met at the Painted Hand Casino in Yorkton and Mr. Cherkas refused to pay, saying he was not obligated to anything further to Mr. Bielecki. The two did not speak again. [ 12 ] Regarding the improvements claimed by Mr. Cherkas, Mr. Bielecki denied asking him to do work at the house, and was unaware of any changes in the condition of the property, He received no invoice or demand for payment from Mr.

Cherkas for this work. [ 13 ] Despite the statement in his Reply that “the plaintiff was permitted to remain in the property as a tenant for rent of $500.00 per month but the plaintiff refused to pay rent”, Mr. Bielecki testified that he did not have any discussion with Mr. Cherkas about renting the property. He as well admitted that he did not tell Mr. Cherkas he was selling the property to Sunset Housing Ltd. III. IS MR. CHERKAS’S CLAIM OUT OF TIME? [ 14 ] Mr. Bielecki argues that Mr. Cherkas’s claim against him is barred by virtue of The Limitations Act, SS 2004, c L-16.1 . I disagree.

[ 15 ] Mr. Cherkas’s lawyer, who paid the filing fee, filed this claim at the court on May 18, 2016. A judge signed a Summons the next day, with a first appearance date for the parties on August 2, 2016. By the first return date, Mr. Bielecki had not been served, and a judge signed another Summons, with another first appearance date. Mr. Cherkas’s lawyers continued to have difficulty serving Mr. Bielecki with a Summons, and over time, other Summonses were requested and signed. Finally, in response to a Summons signed June 11, 2018, with a first appearance date of September 4, 2018, Mr. Cherkas’s lawyer served Mr. Bielecki personally, and this action proceeded. [ 16 ]

Section 5 of The Limitations Act provides, in part, that no proceeding shall be commenced after two years from the day on which the claim is discovered. [ 17 ]

Section 8 of The Small Claims Act, 2016 , SS 2016, c S-50.12 , provides that: 8(1) The plaintiff must serve a copy of the summons on the defendant at least 30 days before the date of the first appearance, case management conference or trial stated in the summons.

(2) If a summons is not served within the period mentioned in subsection (1), a judge may set a new date for the first appearance, case management conference or trial.

(3) If a new date is set for the first appearance, case management conference or trial pursuant to subsection (2), the summons must be amended to reflect the new date. [ 18 ] I am satisfied that the point at which I am to determine whether this action is statutorily barred is the day the action was filed in this court and the fee was paid, and not on a subsequent date when a Summons was signed by a judge (see Bakaluk v McGregor , 2003 SKQB 386 , 239 Sask R 185 [ Bakaluk ]). Here, the date of filing and payment was May 18, 2016, which is clearly within two years of the date Mr.

Cherkas discovered he had a claim against Mr. Bielecki (when Mr. Bielecki sold the property to Sunset Holdings Ltd. in February 2015). [ 19 ] Mr. MacKay sought to distinguish Bakaluk , saying that case dealt with a limitation under The Highway Traffic Act , SS 1986, c H-3.1 , and not The Limitations Act .

While that was true, Justice McIntyre’s reasoning in Bakaluk has been applied in this court to the limitation period determined by The Limitations Act in Champoux v Bakken Holdings Ltd ., 2012 SKPC 14 , 395 Sask R 1 [ Champoux ] ; Keck v Balgonie Early Learning Centre Inc ., 2017 SKPC 39 [ Keck ] ; and Tsang v Realty Executives Saskatoon , 2018 SKPC 30 [ Tsang ] .

Recently, all of these cases - Bakaluk , Champoux, Keck and Tsang - were sited with apparent approval by the Saskatchewan Court of Appeal in Metcalfe v 101102382 Saskatchewan Ltd 2018 SKCA 84 (at para 40 – 58 ). [ 20 ] While it may be possible to withdraw a claim in this court, and then recommence a new claim later by paying the filing fee again, I am satisfied that this did not happen here. At one point, on September 20, 2017, the court was advised by a lawyer for Mr. Cherkas that his claim had been abandoned and that they would advise the court once Mr. Bielecki had been located.

While “abandoned” may have been a poor choice of words, it is clear to me from the court endorsements on this action that Mr. Cherkas, through his lawyer, intended to continue to proceed with this action, once Mr. Bielecki was located so he could be served with a Summons. [ 21 ] Taken together, I am not satisfied that this claim is barred by The Limitations Act . IV. DOES MR. CHERKAS HAVE A CAUSE OF ACTION AGAINST MR. BIELECKI? [ 22 ] Mr. Cherkas claims that he suffered damages because Mr. Bielecki breached their agreement. Despite the reality that Mr.

Bielecki was not appointed as an administrator of the estate until after he signed the agreement, I am satisfied, after hearing him testify and despite what is written in his Reply, that Mr. Bielecki thought he had the authority to bind his father’s estate and that Mr. Cherkas believed (correctly) that Mr. Bielecki would have had the ability to transfer this property once, and if, all the required payments were made.

Taken together, I am satisfied that a valid agreement was reached between the parties, even though it is not legally a “contract or agreement for the sale of land” within the meaning of The Agreements of Sale Cancellation Act, RSS 1978, c A-7 .

Section 1.1 of that Act says that a contract or agreement with the purchase price payable within six months of possession, as in this case, is not caught by the requirements for cancellation in that Act . [ 23 ] Setting aside the question of what damages Mr. Cherkas suffered, I am satisfied that Mr. Bielecki breached this agreement with Mr. Cherkas when, in February 2015, he, as an administrator of his father’s estate, sold this property to another buyer (Sunset Housing Ltd.). While Mr.

Cherkas was, as well, in breach of the agreement, by not making the $500.00 payments for October, November and December 2014 and January 2015, Mr. Bielecki’s sale to Sunset Housing Ltd. made it impossible for Mr. Cherkas to obtain title to the property, which of course was his main objective in entering into the agreement. [ 24 ] Regarding Mr. Cherkas’s claim to compensation from Mr. Bielecki for improvements he claimed to have made to the property, I can see no basis in law or fact for this. That is because:

(1) The Summons lists unjust enrichment as the basis of this claim, but Mr. Justice Zuk in Hope v. R.M. of Parkdale #498 , 2015 SKQB 194 , 437 Sask R 15 , held that t he remedy resulting from a finding of unjust enrichment is restitution, and that t his court does not have the jurisdiction to award this remedy (see para 92); and

(2) Even if this claim was considered under s. 3(1) (

c) of the Small Claims Act, 2016 - compensation for goods or services improperly transferred or provided to a party or transferred or provided in error to a party – the work Mr. Cherkas did was not done or provided to Mr. Bielecki, as Mr. Cherkas knew Mr. Bielecki was not the owner of the property when he did the work (even if Mr. Cherkas had provided the court with sufficient proof of his damages claimed on this, which is doubtful). V. WHAT ARE THE DAMAGES MR. CHERKAS IS ENTITLED TO? [ 25 ] That leads us to the question of what damages Mr. Cherkas is entitled to for Mr. Bielecki’s breach of the agreement.

Put another way, what did Mr. Cherkas actually lose because of Mr. Bielecki’s actions? [ 26 ] While there was no discussion between Mr. Cherkas and Mr. Bielecki, despite the assertion to the contrary in paragraph 2 of Mr. Bielecki’s Reply, I am satisfied, after hearing both parties testify, that they intended the $500.00 payments from September 2014 to January 2015 to be made by Mr. Cherkas in lieu (or instead) of him making separate rent payments for those months. When he failed to pay Mr.

Bielecki for the months of October to January, he, in effect, lived rent-free for four months, and could not be said to have suffered a loss of $500.00 for any of these months. As a result, I am satisfied that Mr. Cherkas’s actual loss, as a result of Mr. Bielecki’s breach, is the difference between what he paid to Mr. Bielecki in total ($3,000.00) and what he did not pay in breach of his obligations under the agreement ($500.00 x 4 = $2,000.00). That result is damages of $1,000.00. VI. CONCLUSION [ 27 ] For the reasons set out above, Mr. Cherkas shall have judgment against Mr.

Bielecki for $1,000.00, together with interest under The Pre-judgment Interest Act , SS 1984-85-86, c P-22.2 from February 1, 2015, and the cost of issuing this claim ($78.00). _____________________ R. Green, J