Dana Anhorn, Operating as Anhorn Enterprise Sales v. Service, 2011 SKPC 33

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2011 SKPC 033 Date: February 4, 2011 Information: 84/09 Location: Leader ______________________________________________________________________________ Between: Dana Anhorn, Operating as Anhorn Enterprise Sales and Service - and - Garry Erker Mr. Monte Sheppard For the Plaintiff Mr. Calvin Ursaki For the Defendant JUDGMENT L.A. MATSALLA, J ______________________________________________________________________________ [ 1 ] The plaintiff sold a used truck to the defendant. The defendant rejected the truck and stopped payment of the purchase price.

Therefore, the plaintiff seeks a judgment for the amount of the purchase price and the damages that he incurred arising from the defendant’s refusal to pay the purchase price. The defendant alleges a breach of a statutory warranty under The Consumer Protection Act , S.S. 1996, c. C-30-1, as amended (“the Act ”) and he seeks the dismissal of the plaintiff’s claim and judgment against the plaintiff for the cost of maintaining insurance on the truck and for storage costs. The Facts

[ 2 ] Mr. Anhorn is in the business of selling new and used vehicles in Leader, Saskatchewan. He had acquired a 2006 G.M.C. 2500 truck (“the truck”) at a dealer auction in Edmonton, Alberta. Apparently there are some assurances that are given to the purchasers of vehicles at such auctions including commitments that the frame of the vehicle is properly aligned and that, if any repairs are necessary, the cost of such repairs would be no more than $500.00. [ 3 ] Mr. Erker is a farmer who resides with his family in the Leader District where he operates a cow and calf operation.

Since 2002 he had employment as a gas field operator. His job required that he use his own truck to attend at and return from a gas field in the area. He typically drove 120 kilometres a day as part of his employment. There is no evidence that the plaintiff was aware that the defendant conducted such work, nor is there any evidence that the defendant advised the plaintiff that he needed a truck for his employment. [ 4 ] On Tuesday, August 4, 2009, Mr. Anhorn received a visit from Mr. Erker who was interested in test driving the truck. Mr.

Erker drove the vehicle for a distance of a few miles without experiencing any difficulties with the vehicle. Thereafter, it appears that Mr. Anhorn and Mr. Erker had some further discussions about the vehicle during which Mr. Anhorn testified that he told the defendant that the vehicle was from Alberta and that it required an inspection in Saskatchewan. Mr. Erker claims that he refused Mr. Anhorn’s offer to sell him an extended warranty for the vehicle. Mr. Erker went on to say that he told Mr. Anhorn that he needed the vehicle the following Monday (August 10) while Mr.

Anhorn told the Court that he agreed to supply the vehicle by Friday (August 7). No agreement was concluded at that time nor was a deposit paid, although Mr. Erker did suggest to Mr. Anhorn that the vehicle could be inspected because he was going to buy it. [ 5 ] The next day (August 5), Mr. Erker called Mr. Anhorn to ask him whether the vehicle had a skid plate. After confirming that it did have a skid plate, Mr. Anhorn took the vehicle to a local dealership that was designated to conduct motor vehicle inspections for SGI.

A qualified mechanic completed an inspection and, as it turned out, the vehicle (which had 125,237 kilometres on it) failed the inspection because the rear right axle seal was leaking and the park brake shoes were saturated with axle fluid. It was also noted that the front alignment did not meet specifications. According to the mechanic, there were no other problems with the vehicle. The mechanic went on to say that the cost to replace the seal would be about $175.00 and that there would be additional costs to repair the parking brake. He also said that the repairs were minor in nature. Mr.

Anhorn advised the defendant of the results of the inspection and told him that he, Mr. Anhorn, needed to obtain parts from Medicine Hat, Alberta in order to have the vehicle fixed. Mr. Anhorn was acquainted with the father and the son who own Abel’s Autobody (“Abel’s”), in Medicine Hat and so, on August 6, he drove the truck to that location to have them install the parts. Unfortunately they were unable to do so that day and Mr. Anhorn returned to his farm near Leader where he installed the parts himself. On the return trip to the farm, Mr.

Anhorn noted that a front wheel required balancing. [ 6 ] At about 8:00 a.m., the next day (August 7), the plaintiff called the defendant to tell him that the vehicle had been repaired. A follow up inspection was then completed successfully and Mr. Anhorn advised the defendant of the results. A front wheel balance was completed on a front wheel. The parties then met and Mr. Anhorn testified that Mr. Erker, once again, took the vehicle for a test drive. Mr. Erker did not confirm that he did so but given the recent repair work that was done, it would seem likely that Mr.

Erker would have done so. [ 7 ] It appears that Mr. Anhorn had started to prepare the sales contract on August 6. The mileage on the document is noted to be 125,594 kilometres – 367 kilometres more than the mileage that was recorded at the commencement of the light vehicle inspection on August 5. On August 7, the paper work for the sale was completed. The purchase price was $17,884.00 and taxes, for a total of $19,672.40. Certain conditions are set out on the reverse side of the contract and the purchaser acknowledged that those conditions formed part of the agreement.

The agreement does not set out any other terms or conditions. Upon receipt of the purchase price by cheque, Mr. Anhorn delivered the vehicle to Mr. Erker and gave him the Certificate. Once again, Mr. Anhorn unsuccessfully tried to sell Mr. Erker an extended warranty for the truck and it was during this conversation that he advised Mr. Erker that he had driven the truck to Medicine Hat to pick up the parts that had been installed on the vehicle. Despite being aware of the difference in the mileage and despite being aware that the truck had been taken to Medicine Hat, Mr. Erker did not express any concern. Mr.

Erker drove the truck home with dealer plates. [ 8 ] The next day (August 8), Mr. Erker drove the vehicle to Medicine Hat for a family function. He testified that he noted that the truck pulled to the right and at speeds in excess of 80 kilometres per hour a pronounced whistle could be detected in the cab. Mr. Erker’s wife spoke to Mr. Anhorn on the phone to complain that the truck had left oil “all over Medicine Hat”. Mr. Erker advised Mr. Anhorn that during the time that he and his family were in Medicine Hat, he noticed that the right rear wheel, the rim, the wheel well and the tailpipe were covered in oil.

Mr. Erker told Mr. Anhorn that the oil was not transmission fluid and that the differential oil was adequate. I believe Mr. Anhorn when he testified that Mr. Erker was not happy and he threatened to stop payment of the cheque if the repairs were not completed. Mr. Anhorn responded by asking Mr. Erker to take the truck to Abel’s and, according to Mr. Erker, Mr. Anhorn said that “they would take care of it”. Mr. Anhorn admitted that the defendant repeatedly requested another vehicle to drive while the repairs were being done and that he, Mr. Anhorn, had offered to act as a chauffeur until the vehicle was fixed.

I accept Mr. Erker’s evidence that the plaintiff repeatedly offered to sell him an extended warranty in an apparent effort to retroactively cover the repair costs. Mr. Erker declined the offers. Mr. Erker returned the vehicle to Medicine Hat. He admitted that he drove the vehicle at

highway speed and that he did not encounter any problems with the vehicle. At no time did he complain to Mr. Anhorn about the whistling sound that he had heard or the tendency of the truck to pull to the right. [ 9 ] Mr. Anhorn contacted Abel’s on August 10, in order to make arrangements to repair the vehicle. The firm was prepared to do the repair work the next day (August 11), however it does not appear that Mr. Anhorn promptly advised Mr. Erker about the arrangement. At about nine o’clock in the morning, Mr.

Erker called the financial institution with whom he had financed the purchase of the truck and he stopped payment of the cheque. Later in the day, Mr. Anhorn, who was unaware of this development, spoke to Mr. Erker to ask him to contact Abel’s to tell them where the keys were so that the truck could be repaired. Mr. Erker did not tell him that he had stopped payment of the cheque. Mr. Erker’s son attended at Abel’s and removed the plates from the vehicle. [ 10 ] The plaintiff told the Court that on August 11 the defendant called him to inquire about the gas mileage for the truck. He told Mr.

Anhorn that the gas mileage was terrible and it was only then that he said that he had stopped payment on the cheque. Mr. Erker recalls that Mr. Anhorn threatened to speak to a lawyer about the matter. Unfortunately the parties did not speak to one another in a civil manner and Mr. Erker turned the keys over to the local detachment of the R.C.M.P. A member attempted to deliver the keys, but Mr. Anhorn refused to accept them. [ 11 ] The plaintiff testified that he had borrowed the sum of $15,415.99 from a financial institution (commercial loan #041 recorded on P11) to purchase the truck at the auction.

The loan was to be repaid from the proceeds of sale. As a result of Mr. Erker’s request that the cheque be stopped, the loan was called in and Mr. Anhorn was required to pay interest on the amount of the loan outstanding at the rate of 28 percent per annum until he arranged to refinance his loans. It is the position of the plaintiff in his brief that the defendant owes him a further sum of $1,679.28 which constitutes the interest that he paid to December 31, 2009. The evidence at trial, however, is that he arranged the refinancing on October 15. Furthermore, Mr.

Anhorn claims interest under The Pre-judgment Interest Act , S.S. c. P-22.2 on the amount owing to him calculated from January 1, 2010. The plaintiff also claims costs including fees and travel costs for the witnesses at the trial, service of the summons and subpoena and the issuance of the summons. Analysis [ 12 ] The first question that must be resolved is whether the dispute is to be determined by reference to The Consumer Protection Act , S.S.1996, c.C-30-1, as amended (“the Act ”).

The Act deems that certain warranties shall be imposed in the case of the sale of a consumer product and it prescribes remedies for any breach of the warranties. An overview of the provisions of the Act is in order.

Section 39 sets out certain

definitions that govern the application of the legislation. The terms that are relevant in this case are the following: (d) “consumer ” means a person who buys a consumer product from a retail seller and includes a non-profit organization, whether incorporated or not, that has objects of a benevolent, charitable, educational, cultural or recreational nature and that acquires a consumer product from a retail seller, but no person who: (

i) acquires a consumer product for the purpose of resale shall be a consumer respecting that product; (ii) intends to use a consumer product in a business or who intends to use the product predominantly for business purposes but also for personal, family or household purposes is a consumer respecting that product, except that where goods are consumer products within the meaning of subclause (e)(ii) the individual or the corporation is a consumer for the purposes of this Part; (e) “ consumer product ” : (

i) means any goods ordinarily used for personal, family or household purposes and, without restricting the generality of the foregoing, includes any goods ordinarily used for personal, family or household purposes that are designed to be attached to or installed in any real or personal property, whether or not they are so attached or installed; and (ii) includes any goods bought for agricultural or fishing purposes by an individual or by a family farming corporation but does not include any implement the sale of which is governed by the provisions of The Agricultural Implements Act ; (j) “product ” means a consumer product; (l) “retail seller ” means a person who sells consumer products to consumers in the ordinary course of his or her business but, subject to subsection 50(1), does not include a trustee in bankruptcy, receiver, liquidator, sheriff, auctioneer or person acting under an order of a court; (m) “sale ” means a transaction in which the retail seller transfers or agrees to transfer the general property in a consumer product

to a consumer for a valuable consideration and includes but is not restricted to: (

i) a conditional sale; (ii) a contract of lease or hire; (iii) a transaction under which a consumer product is supplied to a consumer along with services; and any reference in this Part to “buy”. “buying”, “bought”, “sell”, “sold” or “selling” is to be construed accordingly; (o) “second-hand dealer ” means a retail seller whose sales of second-hand consumer products constitute at least 85% of the retail seller’s total number of sales of consumer products, but does not include a retail seller who carries on, in whole or in part, the business of selling motor vehicles; (r) “warrantor ” means a manufacturer, retail seller or other person who offers an additional written warranty to a consumer. [ 13 ] Applying the

definitions to the case before me, I am satisfied that the plaintiff was engaged primarily in the sale of used vehicles. He gave evidence in which he described his business as such. I accept that the vehicle in question was indeed purchased by him at one of the dealer auctions. While it may be said that in common parlance Mr. Anhorn is a second-hand dealer, the Act specifically excludes persons who sell motor vehicles from the provisions that apply to “second-hand dealers”.

Therefore, the Act does not apply to him as a “second-hand dealer” however he is subject to the remaining provisions of the Act . [ 14 ] The defendant is a farmer who lives and farms in the Leader District as a cow and calf operator and who is also employed as a gas field operator in the oil and gas industry. There is no evidence that he worked as an independent contractor or that he was employed on a part-time or full- time basis, however it is clear that travel was a part of his work.

There is no indication in the evidence that the defendant told the plaintiff that he was purchasing the truck primarily, or in part, to complete his duties. In fact, the first opportunity he had to drive the truck, he took it to Medicine Hat so that he could attend a family function. His wife was interested in the vehicle because she expressed concerns to the plaintiff about the oil leak. I have no doubt that the plaintiff likely intended to use the truck incidentally for his work but there is no evidence that the vehicle was purchased so that it could be used in a business or predominantly for business purposes.

Rather, there is evidence that the vehicle was ordinarily used for personal use the day after its purchase. In any event, Mr. Erker is a farmer. It is not unreasonable to conclude that a cattle farmer would use a truck on the farm. The definition of “consumer product” also includes goods purchased for agricultural purposes unless the product is an “implement” as defined by The Agricultural Implements Act and the Regulations . An “implement” is defined in The Agricultural Implements Regulations , 1992, c. A-10 Reg 1 enacted pursuant to The Agricultural Implements Act R.S.S. 1978, c. A-10 and amendments thereto.

A “motor truck” is excluded from the definition of “implement” and so Mr. Erker’s truck is a “consumer product”. I must conclude that he is a “consumer” within the meaning of the Act. I am satisfied that a “sale” was conducted in this case and that the sale was evidenced in writing. Therefore, the Act governs the relationship between the parties.

Before further applying the legislation, I must determine the precise nature of the agreement. [ 15 ] There can be no doubt that the agreement for the sale of the vehicle took place on August 7, even though the plaintiff asked the defendant to date the cheque for the day prior. The defendant took possession of the truck on August 7. He did not commit himself in any way to the sale before that date. [ 16 ] Much was made by the defendant about discussions that had taken place between the parties prior to the execution of the agreement.

It was suggested that the parties agreed to the delivery of an operable vehicle on August 10, as a condition of the agreement and that it was a condition that the plaintiff agreed to provide a “loaner” if a vehicle was not in working order. Furthermore, the defendant suggests that since the odometer reading as shown in the contract and the reading as shown in the inspection certificate are not the same, the plaintiff breached the agreement. I believe that the conversations between the parties that took place before the contract was signed were intended to be simply that – discussions about the sale.

It must be remembered that the vehicle was a used vehicle. It was three years old and it had over 125,000 kilometres on it. If the defendant had wished to make the sale conditional on the delivery of a vehicle that was guaranteed to be in working condition on a certain date or that a loaner was to be provided or that the vehicle was to have a certain odometer reading, he could have specified those conditions in the agreement. No such terms were included in the contract. In any event, Mr.

Erker was aware of mechanical problems with the vehicle on August 6 – before the agreement was signed and yet he did not see fit to include any provisions in the agreement. After the agreement was signed he even agreed to deliver the truck to Abel’s to have it fixed. The matter of a loaner arose on August 8 and Mr. Anhorn agreed to provide Mr. Erker with transportation. Furthermore, Mr. Erker testified that on August 10 he was prepared to proceed with the sale if the vehicle was fixed. The odometer reading on the truck was never an issue between the parties and only arose at trial.

No additional terms were agreed to between the parties before the agreement or at the time of the agreement. The agreement between the parties is as it appears in Exhibit P1.

[ 17 ] Dealing firstly with the defendant’s claim, I note that Mr. Erker test drove the truck on August 4, then he drove the truck to his farm on August 7 (a distance of 15 miles), then from his farm to Medicine Hat on August 8 (320 to 340 kilometres round trip), then to Abel’s in Medicine Hat on August 9 (160 to170 kilometres), where he left the vehicle. In chief, Mr.

Erker said that he heard the whistle at speeds over 80 kilometres per hour when he drove the truck to Medicine Hat on August 8, but he did not refer to any whistling sound when he test drove the vehicle or when he drove it to his farm after purchasing it or when he returned it to Medicine Hat. In cross- examination he said that he drove to Medicine Hat at speeds of 90-100 kilometres per hour without any problem. In any event he did not, at any time, complain to the plaintiff about any sound problems. Mr. Anhorn had a wheel balance done to a front wheel because he thought that balance was necessary, however Mr.

Erker testified that he subsequently experienced a pull to the right on his trip to Medicine Hat. He did not raise the matter with Mr. Anhorn. Mr. Erker complained about poor gas mileage after he stopped payment on the cheque and he had purported to reject the vehicle. I am not satisfied that any of the complaints (other than the oil leak and the concern about a front wheel alignment) have any substance. In any event I have no evidence that any of those complaints, even if they were legitimate, are issues that one would not otherwise expect would arise with such a vehicle.

Section 48 describes the warranties that a retail seller is deemed to provide to a consumer and include the following; (

g) that the product and all its components are to be durable for a reasonable period, having regard to all the relevant circumstances of the sale, including: (

i) the description and nature of the product; (ii) the purchase price; (iii) the express warranties of the retail seller or manufacturer; and (iv) the necessary maintenance the product normally requires and the manner in which it has been used; It is clear that the oil leak and the need for a front wheel alignment a day after the purchase of the truck, given the age of the vehicle, its mileage and the price paid for the vehicle, indicate a lack of durability for a reasonable period. [ 18 ] The Act sets out the rights of the consumer and the duties and obligations of the retail seller in the event of a breach of a statutory warranty.

Section 57 reads as follows: s. 57 (1) Where there is a breach by a manufacturer or retail seller of a statutory warranty mentioned in

section 48 or of an express warranty mentioned in

section 45: (

a) and where the breach is remediable and not of a substantial character: (

i) the party in breach shall, within a reasonable period, make good the breach free of charge to the consumer but, where the breach has not been remedied within a reasonable period, the consumer shall be entitled to have the breach remedied elsewhere and to recover from the party in breach all reasonable costs incurred in having the breach remedied: (

b) and where the breach is of a substantial character or is not remediable, the consumer, at his or her option, may exercise the remedies pursuant to clause (

a) or, subject to subsections (2) and (3), the consumer may: (

i) reject the consumer product; and (ii) if he or she exercises his or her right to reject, he or she is entitled to recover the purchase price from the party in breach and to recover damages for any other losses that he or she has suffered and that were reasonably foreseeable as liable to result from the breach.

(2) The consumer shall exercise his or her right to reject the consumer product pursuant to clause (1)(

b) within a reasonable period pursuant to subsection (3), except where the consumer delays the exercise of his or her right to reject because he or she has relied on assurances made by the party in breach or the party’s agent that the breach would be remedied and the breach was not remedied.

(3) For the purposes of subsection (2), regardless of whether the right to reject is being exercised by the consumer or a person mentioned in subsection 41(1), a reasonable period: (

a) runs from the time of delivery of the product to the consumer; and (

b) consists of a period sufficient to permit any testing, trial or examination of the consumer product that may be normally required by consumers of that product and as may be appropriate considering the nature of the product, for the purpose of determining the conformity of the product to the obligations imposed pursuant to this Part on the party in breach. The phrase “breach of a substantial character” is defined in

section 39(

c) as follows: (c) “breach of a substantial character ” means:

(

i) that a consumer product, or the level of performance of the retail seller or manufacturer of a consumer product, departssubstantially from what consumers can reasonably expect, having regard to all the relevant circumstances of the sale of the product,including: (

A) the description of the product; (

B) its purchase price; (

C) the statutory warranties and express warranties of the retail seller or the manufacturer of the product; or (ii) that a consumer product is totally or substantially unfit for all the usual purposes of such product or for any particular purposefor which, to the knowledge of the retail seller, the product is being bought; [19] On balance, on the evidence before me I hold that the likely source of the oil leak that arose in Medicine Hat came from the rightaxle seal and that the necessary repairs will include labour and material to replace the seal and the parking brake shoes and I alsoconclude that the front alignment of the vehicle was out of specification at the time it was sold.

I have found a breach of a statutorywarranty. The leaking rear seal can be a concern if not repaired within a reasonable time, however Mr. Anhorn and Mr. Erker agreed tohave the repair work done in Medicine Hat, Alberta – some distance from Leader and so the vehicle was driven to that location by Mr.Erker. The performance of the vehicle was not otherwise adversely affected and the cost of repair was thought to be insignificant giventhe total value of the vehicle. Even if the calculation of damages is difficult to assess, the party in breach has an obligation to compensatethe innocent party, see W. B.

Wood and Others v. The Grand Valley Railway Company and A. J. Pattison (1915), (SCC), 51 S.C.R. 283. There is uncontradicted evidence from a mechanic that the cost to replace the seal would be about $175.00exclusive of repairs to the parking brake. Another mechanic estimated that the cost of repair would be $250.00, however it is uncertainwhether the cost includes repairs to the parking brake. I fix the cost of repair to be $400.00 for labour and materials. I also find that thetruck required a wheel alignment not a wheel balance. I fix the cost of labour and materials for a wheel alignment to be $100.00.

It isplainly evident that the repair work is remediable. [20] It has been held that a breach can be determined to be of a substantial character if a product is itself defective and not ofacceptable quality or reasonably fit for the purpose for which it was intended to the knowledge of the retail seller and if the installation ofthe product is faulty as well. The consumer in such a case may have no feasible alternative than to reject the product, see Digness v. PaulLalonde Enterprises Ltd., [2005] S.J. No. 127 (Baynton J, Sask. Q.B.) p. 35.

The defendant’s counsel has referred to Garthson v.National Marine Ltd., [2000] S.J. No. 656, in which the Court found a breach of a substantial nature. However, the consumer product inthat case was a boat with a rebuilt motor that did not work properly shortly after its first use and that was found to be in extremely poorcondition. The motor subsequently required significant repair. It cannot be said that the repairs that are necessary to the truck in this caseare of a similar nature.

Since the cost of repair is insignificant and since I have no evidence that the performance of the vehicle was notlikely to be substantially affected by the axle leak or by the alignment problem, and the vehicle was not totally or substantially unfit forthe purpose for which it was purchased to the knowledge of the retail seller, I must conclude that the breach is not of a substantialcharacter. I must also conclude that Mr.

Erker did not have the right to reject the truck. [21] Section 57(1) requires that a retail seller, in the case of a breach that is remediable and not of a substantial character, undertakethe repairs free of charge to the consumer within a reasonable time.

Section 59 provides remedies to the consumer. The

section reads asfollows: 59(1) Where the provisions of subsection 57(1) apply so that the party in breach is required to repair the consumer product, theconsumer shall return the product to the place of business of, or to any repair facility or service outlet operated by: (

a) the retail seller, where the retail seller is the party in breach; (

b) the manufacturer, where the manufacturer is the party in breach; or (

c) either of them, where both are in breach.

(2) No consumer is obliged to return the consumer product pursuant to subsection (1) to the party in breach if, by reason of thenature of the breach or the size, weight or method of attachment or installation of the product, it cannot be removed or transportedwithout significant cost to the consumer.

(3) In the circumstances mentioned in subsection (2) the party in breach shall collect and arrange for the transportation and return ofthe product at his or her own expense or shall cause the repair to be made at the site where the product is located.

(4) For the purposes of subclause 57(1)(a)(i), the reasonable period runs from the time when the party in breach receives theconsumer product but, where subsection (2) applies, the reasonable period runs from the time when the consumer advises the party in

breach of the defect in the consumer product. I am satisfied that Mr. Anhorn did advise Mr. Erker that he should take the vehicle at his own expense to Medicine Hat where Abel’s would “take care of it” and that Mr. Erker made it clear that he would not pay for the repairs. I have no difficulty concluding that Mr. Erker was aware that Mr. Anhorn was prepared to see to the repairs at his cost. Unfortunately it appears that after taking the truck to Medicine Hat, Mr.

Erker decided that he did not want the truck despite the apparent minor problems with it and so he stopped payment early the next day without even advising Mr. Anhorn. The repairs were not done because Mr. Erker did not provide Abel’s with the keys to do so. I believe that the repair work could have been completed the next day. There was no reason for Mr. Erker to withhold payment of the purchase price. His remedy was to have the repairs done elsewhere if it was evident that Mr. Anhorn was not prepared to fix the vehicle within a reasonable time.

However, he is entitled to compensation for the cost to take the vehicle to Medicine Hat, Alberta at the plaintiff’s request and I calculate that cost as $125.29 (340 kilometres x 0.3685 per kilometre). As a result of instructing the financial institution to refrain from processing the cheque, Mr. Anhorn was required to pay interest costs. At trial, Mr. Anhorn testified that on October 15, he arranged to refinance and that he paid out the loans that he had taken out. Therefore Mr. Anhorn is also entitled to be compensated for the interest that he was required to pay unnecessarily.

I calculate his loss as follows; $15,415.99 x 28% per annum x 70 days (August 7 to October 15) for a total $827.40. [ 22 ]

Section 31 of the The Small Claims Act , 1997 S.S.1997, c. P-30.11 reads as follows: s 31 – A judge may at any time, in any proceeding before the court, award costs, other than lawyer-related costs, on such terms and conditions the judge considers appropriate, including: (

a) the prescribed fee for issuing a summons or a third-party claim; (

b) costs incurred to effect service; (

c) fees paid to a witness pursuant to

section 20; (

d) telephone charges incurred pursuant to

section 28. Counsel for the plaintiff set out numerous costs in a brief filed after the close of the case. Unfortunately no evidence was tendered nor any accounts or invoices filed to indicate that witness fees were paid or other expenses incurred. He shall be entitled to the cost of the summons in the amount of $100.00. The plaintiff seeks travel expenses to attend the Case Management Conference in Swift Current. There was some divided success in this case.

I decline to award either party any costs to attend the conference because it would not be appropriate to do so since both parties were required, by law, to attend. [ 23 ] Both of the parties have an obligation to take reasonable steps to mitigate the loss arising from the breach, see British Westinghouse Electric & Manufacturing Co. Ltd. v. Underground Electric Rys. Co. of London Ltd. (1912), A.C. 673 (H.L.) . I cannot say that the plaintiff failed to mitigate his loss.

I must hold that the defendant’s claim for storage fees and the cost of insurance are costs that he incurred unnecessarily. [ 24 ] The plaintiff seeks pre-judgment interest and the defendant is entitled to be paid pre-judgment interest. The defendant is entitled to recover from the plaintiff the sum of $625.29. The pre-judgment interest on the amount owing from August 7, 2009 is the sum of $4.00. [ 25 ] Pursuant to

section 32 of The Small Claims Act, 1997, S.S. 1997, c. P-30.11, I am required to apply any claim established by the defendant against the claim of the plaintiff. Mr. Anhorn’s claim ($19,672.40 + $827.40 = $20,499.80) less the defendant’s claim ($625.29 + $4.02) amounts to $19,870.51. The plaintiff shall be entitled to pre-judgment interest on the net amount calculated from August 7, 2009. Conclusion

[ 26 ] The plaintiff is entitled to judgment as follows:

a) Claim $19,870.49

b) Pre-judgment interest $ 127.69

c) Costs $ 100.00 TOTAL $20,098.18 ___________________________ L.A.Matsalla, J