Lawrence Klimchuk - v. -, 2011 SKPC 171

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2011 SKPC 171 Date: November 29, 2011 File: 116/2010 Location: Kamsack _____________________________________________________________________________ Between: Lawrence Klimchuk - and - Leslie Englot and Cook Bros. Cartage Ltd. Wayne Rusnak, Q.C. For the Plaintiff Self For the Defendant Englot Rhodel Ferriss For the Defendant Cook Bros. _____________________________________________________________________________ JUDGMENT R. GREEN , J _____________________________________________________________________________ I.

OVERVIEW [ 1 ] The plaintiff, aged 89 years, has farmed in the Pelly area of Saskatchewan all his life. One of the quarter sections he farms - legally described as NW-10-34-30 - is owned by the Crown in right of Saskatchewan. Mr. Klimchuk and his son lease this quarter of farmland under a Crown lease with Saskatchewan Agriculture and Food (Exhibit P-1), and have done so for the last forty-four years.

[ 2 ] During the course of the lease, Mr. Klimchuk piled rocks on this quarter. These so-called rip-rap stones - which are commonly used to stabilize culverts and pipes during road construction - came from both the leased quarter and from adjoining land owned by Mr. Klimchuk. Over the years, three separate piles of rip-rap stones emerged on the leased quarter. [ 3 ] In the summer of 2008, a highway was being built between Benito, Manitoba and Madge Lake, Saskatchewan. The defendant Leslie Englot, a neighbour to Mr.

Klimchuk, has a gravel pit operation on his land, and contracted with the project general contractor Hugh Munroe Construction Ltd. (Hugh Munroe) to provide sand, gravel and clay for this highway project. A subcontractor, the defendant Cook Bros. Cartage Ltd. (Cook Bros.), was in charge of supplying the material used to build this highway, much of which came from Mr. Englot’s land. [ 4 ] Mr. Klimchuk claims, in his summons, that Mr. Englot removed his rip-rap stones, without his permission. He claims against Mr. Englot in the tort of conversion for removal of these stones, and, further, claims that Mr.

Englot was unjustly enriched by either Cook Bros. or Hugh Munroe in payment for these stones. Mr. Klimchuk as well claims against Cook Bros. in the tort of conversion for wrongfully taking and converting his stones. The total claim against both defendants is $20,000.00. A further claim against Hugh Munroe was withdrawn before trial. [ 5 ] Mr. Englot denies any involvement in removing rip-rap stones from the quarter leased by Mr. Klimchuk or that he was paid for any of these stones by Cook Bros. or Hugh Munroe. Mr. Englot counterclaims against Mr.

Klimchuk in the amount of: (1) $10,000.00, in the tort of slander for defaming his good name; (2) $2,500.00, in the tort of harassment over this dispute; and (3) $1,000.00, for time lost in attending Court over this action. At the trial, Mr. Englot accepted that s. 2(9) of The Small Claims Act, 1997 forbids an action for slander in this Court. As a result, his initial counterclaim is dismissed. Regarding his counterclaim for time lost, I am satisfied that what Mr. Englot is, in actuality, arguing for is an award of costs against Mr. Klimchuk.

That leaves the remaining counterclaim of harassment to be considered. [ 6 ] Ms. Ferriss, on behalf of Cook Bros., contends that Mr. Klimchuk does not have a legal basis to bring this action, as, in effect, the rip-rap stones in question did not belong to him. She argues that, as s. 3 of The Sand and Gravel Act of Saskatchewan deems the owner of the surface of any land to have always been the owner of, and entitled to, all sand and gravel on the surface of the land, these stones belonged to the Crown and not to Mr. Klimchuk. In the alternative, Ms.

Ferriss denies any liability by Cook Bros. for conversion of the rip-rap stones taken from the leased quarter. [ 7 ] The four issues to be determined are:

(1) Whether The Sand and Gravel Act determines the ownership of the rip-rap stones taken from the quarter leased by Mr. Klimchuk;

(2) Whether Mr. Klimchuk has established liability against the defendants in the tort of conversion for the wrongful taking of the rip-rap stones;

(3) Whether Mr. Klimchuk has established liability against Mr. Englot for unjust enrichment; and

(4) Whether Mr. Englot has established liability against Mr. Klimchuk in the tort of harassment. II. THE EFFECT OF THE SAND AND GRAVEL ACT IN THIS CASE [ 8 ] The rip-rap stones which were the subject of Mr. Klimchuk’s claim were on the quarter he leases from the Crown in right of Saskatchewan. The Crown lease (Exhibit P-1) contains, in an appended schedule, the obligations of Mr. Klimchuk and his son regarding management and use of this land, as it relates to farming and raising livestock. There is no reference to the use or management of the sand and gravel found upon this land. A further provision in the lease’s

schedule states that this lease is subject to a number of Acts and Regulations , which do not include The Sand and Gravel Act .

[9] Mr. Rusnak argued that The Sand and Gravel Act does not apply in this case because the rip-rap stones involved are notgravel within the meaning of this statute. There is no definition of gravel in the Act, and the only evidence on what rip-rap stones werecame from Mr. Cook who said these rocks - which in the case of those on the leased quarter were between 16 and 18 inches in diameter -are used in road construction to be packed up against culverts or pipes for the purpose of erosion control.

Given the use to be made ofthese stones, despite their size being larger than what is usually thought of as gravel, I am satisfied that the rip-rap stones on the leasedland in this case constitute gravel within the meaning of this statute. [10] Mr. Rusnak further argues that the Crown lease does not list The Sand and Gravel Act as a statute that the lease is subject to. The fact that the lease does not mention The Sand and Gravel Act is, however, to my mind of no consequence, as I can find no intentionin the lease to deal with the ownership or right to possess the sand and gravel on the leased land.

As a result, it would make no sense forthis Act to be listed. I find that this Act does apply to the sand and gravel on the leased land. [11] Finally, Mr. Rusnak submits that, even if that statute applies, the lease provides an exception to the Act as it allows Mr.Klimchuk to seek approval of the Crown to clear some of the leased land - an option which he acted on by getting approval to clear 80 to90 acres of the leased land. It is argued, that the effect of this provision in the lease would by implication mean that the rocks collectedoff the cleared land would fall to the ownership and control of Mr.

Klimchuk, and not the owner of the land as provided in the Act. [12] In support of that final argument, Mr. Rusnak cites Coward v. Genstar Corp. (1992), (SK KB), 103 Sask.R. 290 (Sask. Q.B.). In that case, Justice Barclay accepted the proposition that “the surface owner’s ownership and interest in the sandand gravel is subject to whatever rights may have been retained by the previous owner” and that there can be “a valid and enforceablecontract disposing of such an interest” notwithstanding The Sand and Gravel Act (at para. 8). [13] Ms.

Ferriss, however, in response submits that The Sand and Gravel Act does apply here and cites the case of Siewert v.Seward, (AB KB), [1974] 4 W.W.R. 211 (Alta. D.C.). This was a case where the Court considered similar provisionsin the Alberta Sand and Gravel Act, in the context of a caveat filed by a former owner of land who sought to protect an agreement withthe purchaser reserving a right to the sand and gravel on that land.

The Court stated that the “ownership of sand and gravel is at all timesin the person who owns the surface of the land” and that “(s)and and gravel cannot be reserved out of the title to the surface of the land”(at para. 13). Regarding the Coward case, Ms.

Ferriss notes that Justice Barclay found that sale of the land in that case was subject to aspecific agreement reserving rights in the sand and gravel to the seller, which is not the case here. [14] It is, indeed, difficult to reconcile the differences between the two cases cited about whether a previous owner of land canenter into a binding agreement to retain ownership in the sand and gravel on that land, despite The Sand and Gravel Act.

That said, if weaccept from Coward that in Saskatchewan the provisions of The Sand and Gravel Act can be usurped by an enforceable contractdisposing of an interest in the sand and gravel, I am not satisfied that in this case that there was any such agreement. There was noevidence that a provision of the lease, or any other collateral agreement with the government, gave Mr. Klimchuk ownership in, or a rightto dispose of, the sand and gravel on the leased land. [15] My reading of the lease is that it allows only for the cutting or clearing of trees from the land, with the government’s consent.

I find no provision or intent in that lease provision to transfer the ownership of rocks obtained in the clearing. In total, I am satisfied, andfind, that The Sand and Gravel Act does apply in this case, and that the Crown in right of Saskatchewan was the owner of these rip-rapstones at the time they were taken from the leased quarter. III. THE CLAIM IN THE TORT OF CONVERSION The elements of this tort [16] The elements of the tort of conversion are (

i) the property must be specific personal property; (ii) the plaintiff must have apossessory interest in the chattel; and (iii) the defendant must commit an intentional wrongful act in respect of the chattel (see Helland v.Caragata, 2009 SKQB 143, at paragraphs 83 and 84, where Mr. Justice Herauf cites this definition from Remedies in Tort (Volume

I) byLewis N. Klar et al at 4-14).

The evidence presented by Mr. Klimchuk [ 17 ] Mr. Klimchuk said Mr. Englot spoke to him during the winter of 2007/2008 and said he hoped to sell gravel to the Highways Department as it would be worth a lot of money. Mr. Klimchuk said he further had a discussion with Mr. Englot in August of 2008, once the highway project was in motion, at which time Mr. Englot told him that rocks like he had were worth $30.00 a yard, which he described as “big money”. As a result, Mr. Klimchuk said he spoke to a person at Cas Broda Construction in Kamsack, who told him that his rip-rap stones were worth $16.00 a yard.

When asked by Mr. Rusnak what his rip-rap stones were worth, Mr. Klimchuk said he did not know, other than what he had been told. [ 18 ] Mr. Klimchuk denied that he authorized anyone to remove his rip-rap stones from his leased land. He claimed that, around the time his stones were removed, he phoned Mr. Englot and told him not to hunt elk on his property. He claimed Mr. Englot agreed with him but further said that someone from the Highways Department was coming to look at his rocks the next day. He said Mr. Englot hung up on him, and that he phoned back to Mr. Englot three or four times but there was no answer.

Mr. Klimchuk said, two hours later, he received a telephone call from a councillor of his Rural Municipality asking how much he wanted for his stones. Mr. Klimchuk responded that he had not sold them, and that someone was coming the next day to look at them. The councillor then told him that someone had been hauling his stones all day. [ 19 ] Mr. Klimchuk said he went out to his leased land and discovered a Cook Bros. pay-loader loading the rip-rap stones onto a Cook Bros. truck. At the time of his attendance at his land, Mr. Klimchuk said that two of the three piles were gone.

He spoke to one of the drivers and asked where the stones were going. The driver told him the stones were going to Les Englot’s farm, and also told him that close to 50 loads had been taken. Mr. Klimchuk said, at that point, he told the men involved to get off his land and not to touch his third pile. He said the vehicles and equipment belonging to Cook Bros. were gone the next morning. However, a day or two later when he checked his field again he discovered that his third pile was gone. [ 20 ] In cross-examination by Ms. Ferriss, Mr.

Klimchuk said that the day of the trial (in Court) was the first time he had ever seen Blair Cook. He then said it might be the second time, as he had attended at the offices of Cook Bros. after his stones were taken. He then said that he had never met Mr. Cook, but said that, on the same day his stones were taken, two men from the Highways Department arrived at his property in a half-ton truck. He did not know their names, but was adamant that his stones were gone already when he spoke to these two men. [ 21 ] Mr.

Klimchuk admitted that he farmed around the stone piles, and that he did not pay Cook Bros. anything to remove the stones. He further could not say which of his three piles included stones from his own land, and which included stones from the Crown land. He further admitted that, after the rip-rap stones had been removed, he sent a bill to Cook Bros. for $6,400.00. When asked why he was now claiming $20,000.00 against Cook Bros., he said he didn’t know how many yards were involved when he first sent the bill. He remained adamant that he had never given anyone authority to remove his rip-rap stones.

The evidence presented by Mr. Englot [ 22 ] Leslie Englot has been in the construction and gravel business for 48 years. In 2008, a representative of Hugh Munroe came to look at his sand and gravel pit. He was told he had the best pit in the area and agreed to provide all the sand, gravel and clay required for the highway project. Because Mr. Englot understood that all the materials would come from his gravel pit, and not elsewhere, he did not want any material to be taken for the project from Mr. Klimchuk’s land. Nor, he said, did he want any stones coming into his pit from Mr.

Klimchuk’s. [ 23 ] At some point, Mr. Englot spoke to Blair Cook of Cook Bros. who said that further stones were desperately needed for the project and that he had approached Mr. Klimchuk. Mr. Englot saw equipment belonging to Cook Bros. being moved from his property and understood it was being taken to Mr. Klimchuk’s land. Later, he became aware that there was a disagreement between Cook Bros. and Hugh Munroe. As a result, he dealt directly with Hugh Munroe regarding the provision of his material to the highway project. This was detailed in a written contract between Mr. Englot and Hugh Munroe (Exhibit D-2).

[ 24 ] In cross-examination Mr. Englot said he had no idea how much of Mr. Klimchuk’s rip-rap stones were hauled to his land. He also said there would be a value to having the stones removed from Mr. Klimchuk’s land, as it would clean up the land for farming. He denied ever having spoken to Mr. Klimchuk on the phone about hunting elk on his property or about the value of Mr. Klimchuk’s rip- rap stones. Mr. Englot stated that he was paid $4,920.00 by Hugh Munroe for his rip-rap stones, but that this payment did not include payment for any of Mr. Klimchuk’s rip-rap stones. He was sure of this.

He further denied that he had ever been paid $16.00 a yard for rip-rap stones. The evidence presented by Cook Bros. [ 25 ] Cook Bros. called three witnesses: Lloyd Chartrand, a foreman for Hugh Munroe in Winnipeg; Blair Cook, an owner of Cook Bros.; and Herman Kruk, a farmer in the Pelly area. [ 26 ] Mr. Chartrand said that in 2008 he was the foreman for the highway project in question. He said he met briefly with Mr. Klimchuk in relation to that project. He and Mr. Cook were driving around looking for additional rock or stone for the project, and spoke to Mr. Klimchuk on a dirt road west of Mr. Klimchuk’s field.

He said Mr. Klimchuk told them that they could have his stones. Mr. Chartrand was clear that this happened before any stones were taken from Mr. Klimchuk’s field. He said there was no mention of Mr. Klimchuk being paid for the stones, and he clearly understood that Mr. Klimchuk was giving them his stones if the construction company was prepared to haul the stones away. [ 27 ] In cross-examination, Mr. Chartrand estimated that Mr. Klimchuk was between 5'10" and 6 feet in height and that he was in his 60s, and maybe older. He claimed that Mr.

Klimchuk told him that this was his land they were on. [ 28 ] Blair Cook said that he acted as a subcontractor to Hugh Munroe regarding the highway project, as formalized in a contract between the two (Exhibit D-2). This contract included payment for rip-rap stones at the rate of $15.00 per cubic metre FOB (which meant free on board at the pit). In effect, Cook Bros. had the responsibility of finding, cleaning and loading the rock. They did not have the responsibility of hauling the rock to the highway site. [ 29 ] Mr. Cook said he and Mr. Chartrand spoke to Mr.

Klimchuk, the latter of whom was present in Court when Mr. Cook testified. I have no doubt that Mr. Cook was speaking to Mr. Klimchuk about these stones on the date in question or that this was the same conversation that Mr. Chartrand described. Mr. Cook said that Mr. Klimchuk told him it was his land they were standing on. Mr. Cook said they were in need of rock and Mr. Klimchuk responded that Mr. Cook could take his rock. He said there was no discussion about payment for the stones. [ 30 ] Mr.

Cook claimed there was a benefit to any farmer to have such rock piles removed, as not having to pay for that removal meant they would, later, be able to farm the land upon which the rocks were removed from. He confirmed that Cook Bros. received a payment from Hugh Munroe of $2,430.00 for rip-rap stones which were 75 percent from the Englot property and a further payment of $3,645.00 for rip-rap stones, some of which Mr. Cook said came from Mr. Klimchuk’s property. [ 31 ] In cross-examination, Mr. Cook said that he usually deals with agreements with farmers for such rock verbally. When he first met with Mr.

Klimchuk, he believed he was in his early 70s. He confirmed that there was no discussion about payment for the stones and, on reflection, thought it probably would have been a good idea to get something in writing from Mr. Klimchuk. [ 32 ] Mr. Kruk farms a few miles away from Mr. Klimchuk’s farm and, in 2008, was approached by Blair Cook. He agreed to allow Cook Bros. to take rock away from his property and requested no payment from them. He said there was a benefit to him to have the rock removed at no cost, as he would then not have to farm around the rock pile. Mr.

Kruk said he was 5'10" and 55 years of age, and denied ever speaking to Lloyd Chartrand. Analysis [ 33 ] In argument, Mr. Rusnak acknowledged that the evidence supports a conclusion that Mr. Englot was not involved in removing stones from the quarter leased by Mr. Klimchuk. I agree. I am not satisfied that Mr. Englot was involved, in any way, in taking any of the three piles of rip-rap stones from the leased land. I accept Mr. Englot’s evidence on this in its entirety, and am not satisfied that he is liable to Mr. Klimchuk in the tort of conversion respecting these stones. That claim is dismissed.

[34] That leaves the question of whether Cook Bros. is liable in the tort of conversion respecting the rip-rap stones taken from theleased land. While these stones are property that could be the subject of such a claim, given my finding (above) that the Crown ownedthese rip-rap stones, I am not satisfied on a balance of probabilities that Mr. Klimchuk had a possessory interest in these stones sufficient:(1) to allow him to dispose of these stones; or (2) to support a claim in the tort of conversion respecting these stones. [35] Regardless of that conclusion, I am not satisfied to that standard that Cook Bros. committed an intentional wrongful actrespecting these stones. That is because:

(1) In my view the account given by both Mr. Chartrand and Mr. Cook - that Mr. Klimchuk agreed, before any stones were removed, togive his stones to Cook Bros. as long as there was no cost to Mr. Klimchuk for the removal - is at least as believable as the account givenby Mr. Klimchuk - that the discussion happened after the stones were taken and that he did not agree to Cook Bros. removing any of thestones. Mr. Chartrand’s description of Mr. Klimchuk’s height and age does not cause me to reject his account, given the passage of timesince the meeting between the two men, the similarity between Mr.

Chartrand’s account and that of Mr. Cook about how they came tomeet Mr. Klimchuk and what was said during the meeting, and the reality that Mr. Klimchuk appeared, at trial, to be much younger thanhis actual age. Nor am I satisfied that Mr. Chartrand mistook his meeting with Mr. Klimchuk for a discussion with Herman Kruk orsome other farmer;

(2) I do not accept that Mr. Klimchuk recalls accurately whom he spoke to about the stones, as he said two men drove up on the road byhis land in a pickup truck but he could not identify them, nor was he sure he had seen Mr. Cook before the trial - or when he spoke tothese men. I am satisfied, as per the account of both Mr. Chartrand and Mr. Cook, that the meeting happened before the rocks weretaken as they were in the process of finding more rocks for the project; and

(3) The evidence of Mr. Kruk satisfies me that there was a benefit to Mr. Klimchuk in having the stones removed at no cost to him. That, in my view, provides a further basis upon which the version given by Mr. Cook and Mr. Chartrand is as believable as that given byMr. Klimchuk. [36] In total, I not satisfied on a balance of probabilities that either Mr. Cook (on behalf of Cook Bros.) or Mr. Chartrand (on behalfof Hugh Munroe) took or caused to be taken rip-rap stones from the leased land that they did not believe they had been given authority toremove without any payment between the parties.

As I am not satisfied on a balance of probablilities that Mr. Klimchuk had apossessory interest in these rip-rap stones sufficient to support a claim in conversion or that anyone acting on behalf of Cook Bros.committed an intentional wrongful act respecting these stones, the claim in conversion against Cook Bros. is dismissed. IV. THE CLAIM FOR UNJUST ENRICHMENT [37] Mr. Rusnak further acknowledged that, from the evidence, he would be hard pressed to argue that Mr. Englot received abenefit from Cook Bros. or Hugh Munroe, related to the stones taken from the quarter Mr. Klimchuk leased. I accept Mr.

Englot’sevidence that he received nothing for these stones. As a result Klimchuk’s claim for unjust enrichment against Mr. Englot is dismissed. V. THE COUNTERCLAIM FOR HARASSMENT [38] Mr. Englot’s counterclaim for harassment is based upon his assertion that the way Mr. Klimchuk pursued him forcompensation over Mr. Klimchuk’s rip-rap stones - and in particular letters from a number of different lawyers on Mr. Klimchuk’sbehalf - constitutes harassment. While there is no doubt that a tort of intentional infliction of nervous shock exists in Canada, there is no agreement on whether a tort of harassment does (see G.

Fridman, The Law of Torts in Canada (2nd ed.) at pages 81 - 84). Whether thetort of harassment is actionable in this Court, or whether harassment is a behaviour that could result in liability for the intentionalinfliction of nervous shock, at a minimum such liability is based upon: ... first, outrageous or flagrant and extreme conduct; second, conduct calculated "to produce some effect of the kind which wasproduced;" third, conduct producing actual harm, i.e., a visible and provable illness (as per McLachlin J., as she then was, in Rahemtullav.

Vanfed Credit Union, (BC SC), [1984] 3 W.W.R. 296 (B.C.S.C.) at p. 311 - 313).

[ 39 ] Despite my finding against Mr. Klimchuk on the issues raised in his summons, I, nevertheless, am not satisfied that his pursuit of Mr. Englot was done for the purpose of harassing Mr. Englot or causing him nervous shock, nor am I satisfied that his actions otherwise met the standard set out in Rahemtulla . I am satisfied that Mr. Klimchuk was pursuing what he believed - and apparently still believes - to be a valid and lawful claim. As a result, I am not satisfied that the counterclaim for harassment has been made out, and it is dismissed. VI. CONCLUSION [ 40 ] For the reasons set out above:

(1) Mr. Klimchuk’s claims against Mr. Englot and Cook Bros. are dismissed; and

(2) Mr. Englot’s counterclaims against Mr. Klimchuk are dismissed. [ 41 ] Mr. Englot attended to Yorkton three times for case management conferences in the course of this case, on September 14 and December 6, 2010 and on March 14, 2011. On the latter date, Mr. Wagner, representing Mr. Klimchuk, advised the Court at 9:30 a.m. that day that the conference, set for 3:30 p.m., was to be adjourned to May 30, 2011. He, however, did not advise Mr. Englot of this, and Mr. Englot drove from his home in Aaron to Yorkton, through winter driving conditions. For that, I accept that Mr.

Englot is entitled to costs in the amount of $200.00 from Mr. Klimchuk, and I so order. There will be no other order for costs. R. Green, J