622705 Saskatchewan Ltd. Plaintiff (Defendant by Counterclaim) Bruce Taras (Defendant by Counterclaim) - v. -, 2016 SKPC 35

Editor’s note: Corrigendum released on April 25, 2016. Original judgment has been corrected with text of Corrigendum appended. IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2016 SKPC 035 Date: March 21 , 2016 File: 200 of 2014 Location: Saskatoon _____________________________________________________________________________ Between: 622705 Saskatchewan Ltd. Plaintiff (Defendant by Counterclaim) Bruce Taras (Defendant by Counterclaim) - and - Dale Smuda Defendant (Plaintiff by Counterclaim) Nicholas J. Stooshinoff, Q.C. For 622705 Saskatchewan Ltd. and Bruce Taras Davin R. Burlingham For Dale Smuda

_____________________________________________________________________________ CORRECTED JUDGMENT : The text of the original judgment has been changed as per the Corrigendum released April 25, 2016. (A copy of the Corrigendum is appended to the judgment) _____________________________________________________________________________ Introduction [ 1 ] The Plaintiff, 622705 Saskatchewan Ltd. (“the Plaintiff”), is a holding company incorporated by Bruce Taras (“Taras”). The Plaintiff is the registered owner of NE 23 36 07 W3 and NW 23 36 07 W3 (the “farmland”).

Taras and the Defendant, Dale Smuda (hereinafter “Smuda”), are rural neighbours residing on farms located just outside the City of Saskatoon. [ 2 ] For a period of more than twenty years, the farmland was farmed by Smuda pursuant to an oral crop share agreement made between Taras and Smuda. The crop was shared on the basis of a 1/3 share for Taras and a 2/3 share for Smuda. Generally speaking, each year Smuda would pay Taras his 1/3 share by delivering a cheque to him after all of the crop for the year had been harvested. [ 3 ] In 2013, Smuda seeded oats and canola on the farmland.

Sometime in the fall of 2013, Taras and Smuda had a falling out which damaged their personal relationship and their business arrangement. [ 4 ] The Plaintiff commenced this action against Smuda for payment of a 1/3 share of the 2013 canola crop. Smuda counterclaimed against the Plaintiff, and Taras personally, for his 2/3 share of the oats grown in 2013, which Taras prevented him from harvesting.

Smuda also counterclaimed for the value of oats he stored in Taras’ bin, which still remain with Taras. [ 5 ] It is not in dispute that the 2013 canola crop is in the possession of Smuda, and that oats belonging to Smuda are in the possession of Taras. The parties agree that the price per bushel of canola in 2013 was $10.25, and that in 2015 it was $10.89. The parties also agree that in 2013 the oat crop yield was 50 bushels per acre, and the price was $2.50 per bushel. [ 6 ] The parties cannot agree on how many acres of canola were seeded in 2013, or on how many bushels per acre were harvested from the farmland.

The parties also disagree on how many acres of oats were seeded in 2013, as well as the amount of oats that Smuda stored in Taras’s bin. [ 7 ] Smuda alleges that Taras breached the oral crop share agreement when he prevented Smuda from entering onto the farmland to harvest the oat crop. Taras denies that the oral agreement was breached and, in the alternative, argues that Smuda failed to mitigate his damages as he could have harvested the oats had he paid Taras a 1/3 share of the canola crop. Plaintiff Evidence [ 8 ] Bruce Taras testified as the proper officer on behalf of the Plaintiff.

He testified that he had an oral crop share agreement with his neighbour, Smuda. Smuda would seed and harvest the crops and sell the crops as he saw fit. A 1/3 share of the crops was paid to Taras, and 2/3 was retained by Smuda. Taras testified that the arrangement with Smuda was that he got paid his 1/3 share after the crops came off. [ 9 ] Taras testified that in 2013 oats and canola were seeded on the farmland. He thought it was an outstanding year for canola as he had seen large swaths of canola on his land. He said that Smuda called him to say he was out of bin space because the crop yield was so great.

Taras gave Smuda permission to store oats in his bin. [ 10 ] According to Taras, he thought he was entitled to a share of these oats. With the help of his hired man, he measured the width, depth and height of the bin to determine total amount. In October 2013, he removed 203 bushels of oats to feed his livestock because he thought that 1/3 of the oats were his. Later, in 2014, he removed another 150 bushels of oats and placed them in a smaller bin on his property.

In total, he removed 356 bushels of oats from the 1977 he calculated Smuda had put in. [ 11 ] Taras testified that in the late fall of 2013, he and Smuda had a disagreement over the payment of his 1/3 share of the canola. Taras said he wanted to be paid his share and that he told Smuda “roughly two weeks prior to that” that he wanted to be paid for his canola, within two weeks, before Smuda took off any more crop. Smuda did not pay within those two weeks. As a result, Taras prohibited Smuda from going on to the farmland.

He spoke to Joel O’Hara, Smuda’s hired man, and told him that the land could not be farmed “until Dale and I straighten out a few problems.” Taras did not indicate in his evidence the date on which he said he asked Smuda to pay him for his share of the canola. [ 12 ] At some later point Taras received a letter from Smuda telling him that his share of the canola was based on a yield of 24 bushels per acre. Taras thought this was extremely low and he did not accept it. He said he determined that the canola yield was much

higher by looking at other information sources, such as Government of Saskatchewan crop statistics, indicating that the average canola yield in 2013 for Rural Municipality No. 345 was 43 bushels per acre. [ 13 ] Taras stated that a Saskatchewan Crop Insurance Seeded Acreage Report dated May 27, 2013 (the “SCIC Report”) prepared by Smuda indicated that 90 acres were seeded to canola in 2013.

However, since commencing litigation, he had obtained a Saskatchewan Municipal Hail Insurance Association Report dated June 18, 2013 (the “SMHIA Report) suggesting that 95 acres of canola were seeded. [ 14 ] With respect to oats, the SCIC Report indicated that no oats were seeded. It showed a total of 60 acres being “too wet”. The SMHIA Report reported 40 acres of oats seeded. [ 15 ] Taras acknowledged that he did claim for hail insurance and indicated that he obtained the SMHIA Report from the Rural Municipality, but that he did not sign it.

He testified that he believed, on the basis of the SMHIA Report, that 40 acres of oats were seeded. [ 16 ] Taras testified that he was prepared to turn over the oats in the bin to Smuda but that Smuda had never asked him for the oats. He also said that he was prepared to pay Smuda for 2/3 of the lost input costs related to the 2013 oat crop that was never harvested. [ 17 ] On cross examination, Taras stated he took oats from the bin under the mistaken impression that they were his.

He now concedes that none of the oats placed in the bin belong to him. [ 18 ] Taras acknowledged that he took out hail insurance every year but stated he did not recall doing so in 2013. He testified that the signature on the SMHIA Report is not his. He agreed that the administrator could have signed it on his behalf, that it refers to “B. Taras” and contains his telephone number. When asked if the numbers on the report were his, he stated that he would ask Smuda every year for numbers and he relied on Smuda. [ 19 ] Taras confirmed that Smuda has been farming his land for approximately 20 years.

When it was suggested to him that he had never once questioned the amount owing to him from Smuda, he stated that he did in 2012. He agreed that, generally speaking, Smuda would tell him what the harvest was, and he would accept it. With respect to the canola crop in 2013, it was only after he issued a statement of claim against Smuda that Smuda disclosed the canola harvest from the farmland. [ 20 ] Taras admitted on cross examination that he stopped Smuda from harvesting the oat crop in the fall of 2013. When asked if Smuda could have harvested the oats had he not done that, he answered “possibly”.

As to whether he had a contract with Smuda he stated “it was a contract to the point of a few weeks prior when I said to him I wanted to be paid for my canola before he took any more crop off.” When queried pointedly if he had breached the contract by not allowing Smuda to harvest the oats, he did not agree, and said that he and Smuda “had a few things to straighten out before he was going to be allowed to take oats off”. [ 21 ] On cross-examination, Taras conceded that payment for the canola crop was not the only dispute between he and Smuda in 2013.

Tensions had arisen over horse riders from his stable being present on Smuda’s land. When pressed, he indicated that Smuda had come to his house to complain about this. He was not home, but his wife was. Taras said Smuda was aggressive towards his wife, and that his behaviour was uncalled for. He agreed that a few days after Smuda attended at his home, there was an incident between the two of them on the highway. However, he denied that it was a confrontation, or that he shoved Smuda.

He said it was a discussion. [ 22 ] Taras acknowledged that shortly after this incident, he told Smuda’s hired man that neither he nor Smuda could go on to the farmland to harvest the oats. Taras said he was not angry about the confrontation on the highway, and he just wanted to get paid for his canola before Smuda did any more work on the land. When asked if he made the situation worse by stopping Smuda from harvesting the oats, he said he “wanted to get the matter settled on the canola, first of all, that was the important thing, that I get paid for my canola”.

He said if Smuda had paid him for the canola, he would have been allowed to go on the land and take off the oats. He further stated, by way of explanation, that he “didn’t want to be exposed for the amount of money he owed me on the canola plus the revenue he was going to get for the oats”. He explained that would be “more money that he would have owed me that I would probably have trouble getting”.

He said Smuda did not want to pay him or settle the matter. [ 23 ] When asked whether Smuda had ever paid him his full share of the crops before all of the harvesting was done, Taras answered that Smuda had done so although he could not recall when this had happened. When questioned as to when he told Smuda’s hired man that he could not go on the farmland to harvest the oats he said it was on October 28, 29 or 30, 2013. [ 24 ] Taras agreed that his farmland was wet in 2013.

He assumed that Smuda got a bumper crop of canola from his farmland in 2013. [ 25 ] On re-examination, Taras testified that he had rolled his personal assets into a holding company. Unfortunately, it was not clear from his evidence when this occurred. [ 26 ] Brian Perkins was subpoened to testify on behalf of the Plaintiff. Mr. Perkins lives in Saskatoon and has a farm ten miles west of the city. Some of his land is within one mile of the subject farmland and is adjacent to Smuda’s land. In 2013 he seeded two small fields of canola and the yields were 38 bushels/acre and 49 bushels/acre.

[ 27 ] Russell Novick also testified on behalf of the Plaintiff. He farms in Vanscoy and has land a few miles east from Smuda and Taras. He seeded canola in 2013 and his production was 45 bushels/acre. He recalled 2013 being wetter than previous years and he did have some land too wet to seed to canola. [ 28 ] Regan Sloboshan gave evidence on behalf of the Plaintiff. He farms approximately six or seven miles from the farmland. He seeded canola in 2013 and harvested approximately 40 bushels/acre. He described the yield as “alright”.

He said it was wet and he had lots of acres out of production. [ 29 ] The final witness for the Plaintiff was Thomas DeForest, who stated he does odd jobs for Taras. He recalled Smuda delivering oats in early September 2013 which were placed in Taras’s bin. He climbed in the bin, levelled the oats and assisted in measuring the dimensions. He said this was done two days after the oats were delivered. Defence Evidence [ 30 ] Dale Smuda testified on his own behalf. He began farming with his father and produced his first crop in 1987. He has had a 22 year long working relationship with Taras.

He also works in a potash mine. [ 31 ] In 2013, Smuda seeded approximately 2,200 acres plus another 150 acres for Taras. He said the agreement from day one with Taras was that 1/3 of the crop would go to Taras and 2/3 would go to him. It was not his common practice to provide Taras with a weigh slip. [ 32 ] He sometimes used Taras’s bin to store his grain, which he did in September 2013. Based on handwritten notes, he calculated he placed 2852 bushels in the bin at that time. [ 33 ] Smuda testified that he seeded 90 acres (two - 45 acre fields) of canola on the farmland in 2013.

He recorded these numbers on the SCIC Report. These are the numbers he has used for crop insurance for years and are the same numbers that the prior owner of the farmland used. The SCIC Report listed 60 acres as “too wet” to seed. Smuda acknowledged that he provided this information. However, he testified that he later went back out into the field and decided that he might be able to seed oats. He called SCIC back to say he was not making a claim. Smuda testified that he seeded all 60 acres to oats. [ 34 ] The canola he seeded in 2013 was harvested later in September.

It was put in a bin on his land and is still there. Based on handwritten notes he made at the time of harvesting the canola, he testified that 2,337 bushels were harvested from the farmland. [ 35 ] Smuda testified that Taras would ask him for a cheque as soon as the harvest was done. He would pay Taras once the crops were done, not once any specific crop was harvested. [ 36 ] Smuda denied that Taras came to him in the fall of 2013 to ask to be paid for his share of the canola. Sometime between when he took the canola crop off, and the end of the harvest, there was an argument between he and Taras.

Smuda testified that he caught boarders from Taras’s business riding horses on his land. He said he “put the run on them” and “told them in no uncertain terms to get off his land and stay off his land”. Smuda then went to Taras’ home. Taras was not there, so Smuda spoke to Taras’s wife. He explained that he was upset by the horse riders on his land because he does not carry liability insurance, and there are hazards such as rocks and holes present. After speaking with Taras’s wife, he left.

Four or five days later, he was driving in his Kenworth truck when Taras drove by him, pulled up in front of him, and jammed on his brakes. He got out of the truck and he and Taras argued. Smuda said that Taras grabbed him by the neck, and pushed him. He said he wasn’t sure at the start why Taras was so mad, but that it was obvious he was very upset. The argument did not go anywhere, and they each went their own way that night. [ 37 ] Smuda testified that later, on October 29, 2013, he was going to harvest the oats on the farmland.

At approximately 8:30 p.m. his hired hand, Joe O’Hara, called him to say they had been kicked off the land. When Smuda arrived O’Hara already had the combine out of the field. Taras drove up and Smuda asked him if they could talk. Taras replied “no”. Smuda called the RCMP to make sure everyone would stay calm as he did not know where matters would go. Smuda said he asked Taras about his oats in the bin and Taras mumbled something in reply. He was left with the impression that the oats would not be returned.

He never tried to go back to pick up his oats because he “got assaulted once”. [ 38 ] Smuda testified that he and O’Hara were going to combine all 60 acres on October 29, 2013. Together they could have done it quite easily, and that it did not snow for several days afterwards. [ 39 ] Smuda said that he has not hidden any grain. He said he would be willing to have the canola weighed, and to split the cost of doing so with Taras. He testified that in 2013 the canola swaths on the farmland did look good from the road, where the land is at a higher elevation.

However, the crops on the lower portion of the farmland struggled because of wet conditions. [ 40 ] Further, the oats seeded in 2013 were not harvested. If they had been, the cost of combining would have been approximately $15.00/acre. [ 41 ] On cross-examination, Smuda testified that he was not able to provide his average canola yield, exclusive of the farmland in

question. He said he had phoned SCIC, and was told that his average canola yield in 2013, including the canola he seeded for Taras, was 34 bushels/acre. [ 42 ] As well, he does not have anything to do with SMHIA forms and he did not report 40 acres of oats seeded or 95 acres of canola seeded on the SMHIA Report. He said the initials on the report are not his. [ 43 ] When asked how he knew he seeded 60 acres of oats, Smuda said this is what he has done for years. He acknowledged this was an educated guess, and that he wrote a letter to Taras dated February 25, 2014 indicating that 55 acres of oats had been seeded.

He also acknowledged that the seeded acres he reported on the SCIC Report were based on historical numbers and that he did not have the ability to measure the fields. [ 44 ] With respect to his handwritten notes, Smuda agreed that there was no date or signature on them and that they were first disclosed in the litigation. He further stated that he did not know what his input costs were for the oats seeded in 2013. Issues 1. What was the agreement between the parties? 2. Who was the agreement between? 3. What is the value of Taras’ 1/3 share of the 2013 canola crop? 4.

What is the value of the oats stored by Smuda in Taras’s bin? 5. Is Smuda entitled to recover damages from Taras for breach of contract for the 2013 oat crop he was prevented from harvesting? Analysis 1. What was the agreement between the parties? [ 45 ] Based on the evidence at trial, I find that there was an oral crop share agreement made between Taras and Smuda, entitling Taras to a 1/3 share of the crop and Smuda to a 2/3 share. Pursuant to this agreement, Smuda would pay Taras his 1/3 share after all of the crop for the year had been harvested. Smuda would then write a cheque payable to Taras.

There was cooperation and trust between Smuda and Taras and the agreement was carried out on a handshake for over twenty years. Each party benefited from this arrangement. 2. Who was the agreement between? [ 46 ] Smuda says that at all times he contracted with Taras, not the corporate Plaintiff, 622705 Saskatchewan Ltd. Accordingly, if he is entitled to judgment, it should be against Taras personally. [ 47 ] Smuda entered a map of the farmland as an exhibit at trial. It shows land belonging to “Dale and Doreen Smuda” and to “622705 Sask. Ltd.”.

This would suggest that Smuda might have known that the land he was farming pursuant to the crop share agreement was owned by the corporate Plaintiff. Nevertheless, the evidence at trial indicated that at the time the crop share agreement was made, it was made between Taras, in his personal capacity, and Smuda. At some point in time, Taras rolled his personal assets into the corporate Plaintiff. There was no evidence to suggest that Taras told Smuda that he was operating as a limited company. Every year, Smuda wrote a cheque to Taras personally.

He was never asked to pay 622705 Saskatchewan Ltd., nor was he advised by Taras that 622705 Saskatchewan Ltd. was the contracting party.

[48] Taras has the onus of proving that Smuda was aware that he was acting only as agent for the corporate Plaintiff. He has notmet that onus. The evidence at trial indicated that Smuda believed he was contracting with Taras personally. As there is no evidence tosuggest that Smuda was apprised of the corporate Plaintiff as the contracting party, Taras is liable to Smuda personally for any judgmentin this matter. See: Drury Farms Inc v Stevenson, 2008 SKPC 68 and Excelco Foods Inc v Snyder (1991), (SK KB),95 Sask R 314 (SKQB). 3.

What is the value of the Plaintiff’s 1/3 share of the 2013 canola crop? [49] Smuda testified that he seeded 90 acres. Further, the SCIC Report completed by Smuda indicated that 90 acres of canolawere seeded. Smuda is the person with the best knowledge of the fields and he is the one who completed the SCIC Report each year. While Taras argued that 95 acres of canola were seeded based on a SMHIA Report, it was not clear who completed that form. Inparticular, Taras acknowledged that he took out hail insurance every year, but he stated he did not recall doing so in 2013.

I acceptSmuda’s evidence that he had no involvement in completing the SMHIA Report and that the initials on the report are not his. Accordingly, based on the evidence at trial, I find that Smuda seeded 90 acres of canola on the farmland in 2013. [50] With respect to the canola, Taras argues that the Court should impute a harvest to Smuda of 43 bushels per acre, the 2013average yield for Rural Municipality No. 345, according to Government of Saskatchewan crop statistics.

Taras argues his position issupported by the testimony of three individuals he called as witnesses at trial, all whom farm land near his own and who grew canola in2013. These individuals obtained yields of 38, 40, 45 or 49 bushels per acre on various fields. Two of these witnesses indicated thatthey had some land which was too wet to seed to canola in 2013. [51] At the time of harvesting canola in 2013, Smuda made notes of the weight of each truckload he hauled. From his records, hedetermined that he harvested 2,337 bushels of canola from the farmland.

Based on 90 acres, this represents a yield of 26 bushels peracre. Further, Smuda’s evidence that much of the farmland was too wet for the canola to do well was consistent with the evidence givenby two of the area farmers called by Taras as witnesses. [52] Unfortunately, Smuda did not provide Taras, in a timely way, with information respecting the canola yield. Thisunderstandably led to suspicions on Taras’s part.

Taras admitted at trial that he is not a farmer, and that he had no first hand knowledgeof the number of acres seeded to canola, nor the amount harvested. [53] I find that Smuda’s notes of the canola yield, made at the time, and based on the weight of the canola he harvested from thefarmland, constitute the best evidence of the canola yield, and I accept it. [54] Taras is entitled to a 1/3 share of the canola harvested in 2013 amounting to 779 bushels. The price of canola in 2013 was$10.25/bushel. Therefore, I find that Taras is entitled to be paid the sum of $7,984.75 by Smuda for the 2013 canola crop. 4.

What is the value of the oats stored by Smuda in Taras’s bin? [55] In the fall of 2013, Smuda stored some of his oats in a bin on Taras’s property. Taras testified that he removed 203 bushels ofoats from the bin in October, 2013, to feed his livestock, as he thought 1/3 of these oats were his. He removed a further 150 bushels ofoats from the bin later in 2014. On cross examination, however, he conceded that none of the oats placed in the bin by Smuda belongedto him.

Accordingly, the only issue to be determined is the quantity of oats placed in the bin. [56] Smuda has handwritten notes made at the time the oats were stored in September 2013, showing the number of bushels of oatsfrom each truckload. Based on his handwritten notes, this amounted to 2852 bushels. The oats were weighed by Smuda on a scale thathe got in 2012. [57] Taras alleges that Smuda put 1,978 bushels of oats in his bin. Taras did not weigh the oats.

Rather, he bases his figure oncalculations he made after taking measurements of the bin. [58] As Smuda weighed the oats, and his handwritten notes were made at a time prior to the dispute arising between the parties,the Court accepts Smuda’s figure of 2,852 bushels. As the parties agreed on the price of oats at $2.50/bushel, the value of these oats is$7,130.00. 5. Is Smuda entitled to recover damages from Taras for breach of contract for the 2013 oat crop he was prevented from harvesting?

[ 59 ] Smuda alleges that Taras breached the crop share agreement by preventing him from entering onto the farmland to harvest the oat crop. Taras does not deny that he prevented access but says he did so because Smuda had failed to pay him his 1/3 share of the canola crop. [ 60 ] In his testimony at trial, Taras left the impression that the only dispute between he and Smuda was over payment for the canola. He testified that he told Smuda he wanted to be paid for his share of canola within two weeks. When payment was not forthcoming, he prohibited Smuda from harvesting the oats.

However, on cross-examination, a different picture of events emerged. It is clear that the abrupt manner in which Smuda chased horse riders off Taras’s land, and then spoke to Taras’ wife, angered Taras and led to hard feelings. This in turn resulted in an altercation between Taras and Smuda a few days later on the highway, where emotions quickly escalated. A short time later, on October 29, 2013, when Smuda was about to commence the oat harvest, Taras prevented him from doing so. [ 61 ] Taras did not present as a completely forthright witness and his testimony at times seemed contrived.

He tended to downplay his reaction to Smuda over the horse riders, and the real motivation behind some of his conduct. For example, when pressed on cross- examination about stopping Smuda from harvesting the oats, he denied he was angry and explained his actions by saying that he did not want to be “exposed” for the amount of money Smuda owed him on the canola, plus the revenue he was going to get for the oats. This explanation makes no business or practical sense, and I find it unbelievable. [ 62 ] However, much of Smuda’s conduct contributed to and exacerbated the tension between the parties.

Smuda was extremely abrupt with Taras’s wife regarding the matter of horse riders on his land. He failed to provide Taras with timely information respecting the canola harvest which only furthered the mistrust between the parties. Nevertheless, Smuda was candid in his testimony about his conduct. Where the evidence of Taras conflicts with that of Smuda, I prefer the evidence of Smuda and accept his version of events. [ 63 ] Based on all of the evidence, I find that Taras did not come to Smuda with a request to be paid for his canola within a period of two weeks.

Rather, Taras was angered by Smuda’s treatment of the horse riders and his wife and this led to the confrontation on the highway and to Taras prohibiting Smuda from harvesting the oats on October 29, 2013. Any demand by Taras for payment of his 1/3 share of canola was made either at the time of the confrontation on the highway, or shortly thereafter, on October 29, 2013. [ 64 ] By his own evidence, Taras frustrated Smuda from harvesting the oats and was not prepared to allow him access until they straightened out “a few problems”.

This was a clear breach of the crop share agreement by Taras. [ 65 ] The remedy for breach of contract is an award of compensatory damages. In The Law of Contracts, 2 ed. (Toronto: Irwin Law Inc., 2012), author John D.

McCamus explains as follows: The governing principle for calculating compensatory damages in a claim for damages for breach of contract is the expectancy principle that requires the party in breach to pay, as damages, an amount of money that will provide the victim of the breach with the financial equivalent of performance. [1] [ 66 ] Had Taras not breached the contract, Smuda would have ultimately received his 2/3 share.

I accept Smuda’s evidence that he and his hired man could have harvested the oat crop on October 29, 2013 and that it did not snow until several days afterwards. [ 67 ] Based on the SMHIA Report, Taras alleges that only 40 acres of oats were seeded by Smuda in 2013. Smuda testified that 60 acres of oats were seeded and this is consistent with the SCIC Report. However, on February 25, 2014, Smuda wrote to Taras, claiming the value of his 2/3 share of the oat crop, based on 55 acres of oats.

On cross-examination, he admitted that the number of acres seeded could have been somewhat less than 60. [ 68 ] Accordingly, based on all of the evidence, I find that 55 acres of oats were seeded in 2013. The parties agreed on a yield of 50 bushels/acre and on a price of $2.50/bushel. The evidence at trial indicated that there would be 2% dockage. Further, there would be a cost savings of $15.00/acre to Smuda as he did not actually incur costs of harvesting.

Accordingly, Smuda’s damages for breach of contract amount to $3,621.75. [2] [ 69 ] Taras alleges that Smuda should not recover damages for breach of contract because he failed to mitigate. [ 70 ] As noted by author John D. McCamus in his text The Law of Contracts , the victim of a breach cannot recover losses that he could have avoided by taking reasonable steps subsequent to the breach. Furthermore, the party alleging a failure to mitigate has the burden of establishing it. [3] [ 71 ] I am not satisfied that Taras has established, on a balance of probabilities, that Smuda failed to mitigate his damages.

Smuda was prohibited from entering onto the farmland to harvest the oats on October 29, 2013. Emotions were very high at the time. In fact, they were still high at the time of trial two years later. By Taras’s own evidence, it is clear that he was not going to allow Smuda onto his land until he and Smuda straightened out “a few problems”. There was not just the matter of payment for the canola that was at issue between the parties. Rather, Taras and Smuda were also at odds over the horse riders on Smuda’s land, and the return of the oats stored in Taras’s bin.

It is not clear that even if Smuda had paid Taras for his 1/3 share of the canola, either on or shortly after October 29,

2013, that all matters would have been resolved to the satisfaction of Taras such that he would have allowed Smuda onto the farmland. Further, time was of the essence as there was only a short window for harvest given that snow fell on October 31, 2013. In all of the circumstances, I find there was no failure to mitigate on the part of Smuda.

Conclusion [ 72 ] Taras has proven damages against Smuda in the amount of $7,984.75. [ 73 ] Correspondingly, Smuda is entitled to $10,751.75 against Taras. [ 74 ] Accordingly, by way of set-off, Smuda shall have judgment against Taras in the amount of $2,767.00 plus pre-judgment interest from January 1, 2014 to date of judgment. [ 75 ] I make no award as to costs. ______________________ V.L. Monar Enweani, J IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Date: April 25, 2016 File: SC#200 of 2014 Location: Saskatoon _____________________________________________________________________________ Between:

622705 Saskatchewan Ltd. Plaintiff (Defendant by Counterclaim) Bruce Taras (Defendant by Counterclaim) - and - Dale Smuda Defendant (Plaintiff by Counterclaim) _____________________________________________________________________________ CORRIGENDUM to Judgment dated March 21, 2016 V.L. MONAR ENWEANI, J _____________________________________________________________________________ LXXVI. The judgment in this matter was released on March 21, 2016. There are certain typographical and/or calculation errors in the figures listed in paragraphs 72, 73 and 74. LXXVII.

Paragraph 72 reads: “Taras has proven damages against Smuda in the amount of $7,9854.75.” That paragraph should read: “Taras has proven damages against Smuda in the amount of $7,984.75.” LXXVIII. Paragraph 73 reads: “Correspondingly, Smuda is entitled to $11,032.25 against Taras.” That paragraph should read: “Correspondingly, Smuda is entitled to $10,751.75 against Taras.” LXXIX.

Paragraph 74 reads: “Accordingly, by way of set-off, Smuda shall have judgment against Taras in the amount of $3,048.00 plus pre-judgment interest from January 1, 2014 to date of judgment.” That paragraph should read: “Accordingly, by way of set-off, Smuda shall have judgment against Taras in the amount of $2,767.00 plus pre-judgment interest from January 1, 2014 to date of judgment.” __________________________ V.L. Monar Enweani, J [1] At p. 871. [2] Damages are calculated as follows: $6,875.00 - $137.50 (representing 2% dockage) = $6,737.50. Smuda’s 2/3 share of $6,737.50 amounts to $4,446.75.

From this amount is deducted the sum of $825 saved by Smuda as he did not incur the cost to harvest the crop. The net amount is $3,621.75.

[3] At pp. 926-928.