CAN Supply Wholesale Ltd. Plaintiff - v. -, 2019 SKPC 21

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2019 SKPC 21 Date: March 25, 2019 File: SC#735 [2017] Location: Saskatoon _____________________________________________________________________________ Between: CAN Supply Wholesale Ltd. Plaintiff - and - Blair Sirota Defendant - and – Tino Mazza Third Party R. Heinrichs and D. Bowles For the Plaintiff B. Sirota For the Defendant T. Mazza For Third Party _____________________________________________________________________________ JUDGMENT R.D. JACKSON , J _____________________________________________________________________________

I INTRODUCTION [ 1 ] This is a case which morphed from a dispute involving, at best, a few hundred dollars, to a claim in excess of $10,000.00, much of which could have been avoided in the Court’s view. [ 2 ] At the outset of the trial, prior to hearing the evidence, the Court explained that since several months had elapsed from the date of the case management and given the somewhat unique circumstances of the action, the parties would be well served to take fifteen minutes on their own to see if a negotiated resolution could occur. After a few moments, the Court was informed no settlement would be forthcoming.

Similarly, at the conclusion of all of the trial evidence, the parties were again exhorted to canvass any settlement possibilities over the lunch hour, which bore no fruit, and accordingly, this decision follows. [ 3 ] The plaintiff, CAN Supply Wholesale Ltd., claims the following relief: a) $10,212.00, rental for a post-driver; b) $2,700.00 replacement value for a new post-driver; c) $117.00 returned material with missing parts; d) $162.75 service costs; e) $92.00 filing fee. [ 4 ] The defendant, Blair Sirota (“Sirota”), denied any responsibility and added Tino Mazza (“Mazza”) as a third party to the claim.

Additionally, Sirota counterclaimed against the plaintiff for the sum of $839.00 for material shortage and transportation costs. Mazza, although not a co-defendant, purported also to counterclaim for this amount against the plaintiff. II BACKGROUND [ 5 ] The plaintiff company is in the business of vinyl fencing supply, operating out of Vanscoy, Saskatchewan. Sirota resides in Saskatoon and is employed as Operations Manager for Saputo Dairy.

Mazza is a retired contractor with in excess of 40 years’ experience, who still retains ownership of his corporate entities. [ 6 ] Sirota and Mazza are friends of one another who desired to erect fences at their personal residences in Saskatoon, being 54 Noble Crescent and 323 Hastings Lane, respectively.

On August 28, 2017, or thereabouts, Mazza made phone contact with the plaintiff company and decided to purchase the requisite fence materials from them. [ 7 ] On September 4, 2017, Mazza and Sirota attended at the plaintiff’s business premise and met with Donald Bowles (“Bowles”), one of the principals of the plaintiff company. According to Bowles, it was determined that 22 bundles of 8 foot fence material, plus appropriate fixtures including posts, caps, trim and so forth, was required. [ 8 ] Because Mazza represented as a contractor, the plaintiff agreed to a 7% discount on the price.

A quote incorporating the 7% discount was generated for $4,176.95 which Mazza paid on the spot by way of a cheque drawn on his company, Aqua Terra Development Corp. [ 9 ] After paying for the material on September 4, Bowles assisted Sirota and Mazza to load 17 bundles on their truck, being the maximum it could accommodate at that time.

It was further agreed that a “post-driver”, which is a gas-powered device designed to drive fence poles into the ground, would be necessary. [ 10 ] Bowles testified that a rental rate of $100.00 per day for the post-driver was discussed and agreed to, and thereafter, all three travelled to Saskatoon to the home of Ryan Heinrichs (“Heinrichs”), the other principal owner of the plaintiff company, to retrieve one of these units. [ 11 ] Sirota testified at trial that the agreement was for “$100.00 cash” as a flat rate rental for the post-driver.

Mazza had no recollection of any of this discussion. [ 12 ] Prior to releasing the post-driver, Heinrichs drew up a handwritten one-page contract marked as Exhibit P-4 (See Appendix A). [ 13 ] In his testimony, Sirota confirmed his signature on the contract.

He stated however that he did not receive a copy of it and that the “/day” portion following the “$100” at the end of the first paragraph was not on the original contract, so must have been added subsequently by Heinrichs. [ 14 ] Both Heinrichs and Bowles were recalled by the Court in rebuttal on this point concerning subsequent alteration of the contract and both denied that any change or alteration had ever been made to the original.

Bowles also refuted Sirota’s evidence that a flat rate of $100.00 for the post-driver was agreed to at the yard site. [ 15 ] The balance of the materials were picked up by Sirota and Mazza on September 6, 2017. Two of the fence posts were subsequently determined to be cut incorrectly, which the plaintiff replaced at no cost. [ 16 ] On September 8, 2017, Heinrichs attended at the residence of Sirota to discuss concerns raised by Mazza and Sirota regarding

material shortage and being overcharged and, as well, to pick up the post-driver. According to Heinrichs, he explained that no material had been shorted and no overcharge had occurred. However, he was prepared to compromise the post-driver rental of $400.00 owing to that point down to $100.00 which would have allayed any concerns of an overcharge or shortage of material. [ 17 ] Sirota and Mazza testified that no compromise was offered and that Heinrichs’ response to any reduction on the bill were words to the effect “that will never happen”.

Sirota then left to take his dog to the veterinarian and Mazza informed Heinrichs that the post-driver would not be returned until some resolution was worked out on the bill. [ 18 ] Sirota and Mazza both confirmed in their evidence that they decided in advance they would employ this strategy to keep the post-driver in their possession as “leverage”.

Otherwise, they would have to chase the plaintiff thereafter for satisfaction on their statement concerning the overcharge, which they estimated at between $500.00 and $600.00. [ 19 ] Later on that evening of September 8, Bowles attended to the Sirota residence to retrieve the post-driver. He was accompanied by a customer who required the post-driver the next day. Sirota advised Bowles the same thing that was told to Heinrichs earlier – they would be keeping it until matters concerning their bill were settled. Accordingly, Bowles left the premises without the post-driver.

As a consequence, the plaintiff had to rent a new post-driver to the customer that had otherwise been intended for sale. [ 20 ] Thereafter, Heinrichs testified that he sent emails, ordinary mail and registered mail to Sirota’s residence demanding return of the post-driver and informing him of the continued escalating cost of its daily rental. [1] [ 21 ] Both the ordinary mail and registered mail letters were returned unopened marked “return to sender”. Sirota testified that he did not receive either of these and that he didn’t know otherwise who would have directed their return.

He confirmed that the only other occupant of his residence was his wife who was from Thailand and that it would not have been her who returned the mail. He mused that his postman had been coming and going quite a bit that summer but would not go as far to say that it would have been him who returned the mail. [ 22 ] Sirota eventually returned the post-driver to Heinrichs at his residence on December 6, 2017 as a result of being served with a Small Claims summons on November 29, 2017.

III DETERMINATION Rental Rate [ 23 ] For the reasons that follow, the Court finds as a fact that the rental rate for the post-driver was $100.00 per day, commencing September 4, 2017. [ 24 ] The total claim for the post-driver rental was for the sum of $10,212.00 which formed the bulk of the plaintiff’s cause of action against the defendant.

Sirota’s assertion at trial was that the rental was a flat rate of $100.00 cash, a hugely significant difference and further, that the original contract had been altered by adding “/day” after “$100”. [ 25 ] The defendant, however, at no time prior to trial in his initial material filed December 28, 2017, or his lengthy five-page addition July 4, 2018, made any reference whatsoever to either the rental being a flat cash rate of $100.00 or the written contract being altered.

It beggars belief that the single most important aspect of the plaintiff’s claim which inflated the defendant’s position on the rental by roughly 100 times, would not have been addressed at the earliest opportunity in the strongest language possible.

Yet, not one word. [ 26 ] When questioned by the Court on this, the defendant’s response that “he must have overlooked it” or “he didn’t read the contract” (served on him November 29, 2017) until after his final reply of July 4, 2018, underscores his complete lack of credibility in this regard. [ 27 ] Also, as shown in the contract, the period to end the first paragraph follows after “day” not the “$100”.

No other signs are otherwise apparent that any alteration or addition occurred to the original text. [ 28 ] Further, the position of both the defendant and the third party was that the plaintiff representatives were not coming back to them to negotiate, simply so rental costs would run up. This demonstrates they were obviously aware that such rental costs were accruing and were not a “flat” rate of $100.00. [ 29 ] The only logical inference to the claims made by the defendant is that this evidence was a complete fabrication at trial.

The Court finds that there was no agreement at the outset to pay $100.00 flat rental and that the written contract was not altered after its making on September 4, 2017. Damages [ 30 ] Although extremely unfortunate given the ultimate escalation from insignificant to the “outrageous” amount of damages (as stated by Mazza), there is no reason in fact or law not to apply the terms of the contract as written and agreed to. The fact that the ultimate rental charges far exceeded the value of the equipment, is of no relevance.

Similarly, mitigation does not apply as the plaintiff did not have possession of the post-driver at any time throughout the rental period. [ 31 ] The defendant chose (in concert with the third party) to take the high-handed position of refusing to return the plaintiff’s property simply as a bargaining ploy to coerce the plaintiff to negotiate their perceived issues on the bill. [ 32 ] Unfortunately for the defendant, this bully tactic was costing him $100.00 per day in rental fees.

The defendant further exacerbated his folly by ignoring emails and refusing to accept mail deliveries to his house from the plaintiff. His explanation that he was not the one responsible for its return to the plaintiff is completely incredible and the Court rejects his evidence outright in this

regard. [ 33 ] Although the defendant was rejecting his mail deliveries, he was told point blank in the emails to return the post-driver or legal action would result and that the rental claim had already escalated to thousands of dollars.

Nonetheless, he made no efforts whatsoever to address these issues until finally served with court documentation in late November, 2017. [ 34 ] Return of the post-driver on December 6, 2017 marked 92 days in the possession of the defendant for which the plaintiff is entitled to full rent at $100.00 per day, plus combined GST and PST of 11%. [ 35 ] The plaintiff is not entitled to the $2,700.00 claimed for the new post-driver pressed into rental service. Heinrichs confirmed this unit has been used continuously as a rental.

He could provide no evidence as to loss of value, or amounts realized in rental, by way of mitigation. [ 36 ] Similarly, there is insufficient evidence before the Court regarding the value of the missing parts of $117.00, as claimed by the plaintiff, and accordingly, this aspect of the claim is dismissed as well. Counterclaim [ 37 ] The defendant has counterclaimed for $839.00 representing his estimate of overcharge of $739.00, plus $100.00 gas costs for having to make extra trips to the plaintiff’s business for material. [ 38 ] The evidence of the defendant is that he and Mazza were overcharged for materials.

A good deal of evidence was tendered concerning the length of the fences totalling 160 feet and thereby only requiring 20 bundles of 8 foot segments. In response to a question from the Court, the defendant acknowledged that the essence of his complaint was that he and Mazza were overcharged by two bundles.

Curiously, he did not articulate this to Heinrichs at their meeting on September 8 – only vaguely that they were “shorted” material and were “overcharged”. [ 39 ] The plaintiff witnesses explained that one cannot simply divide the length of the fences by 8 foot sections as certain bundles had to be cut and modified to accommodate corners and offsets, thereby requiring the additional fencing material.

This is evidenced in the photos taken and marked as Exhibit P-5. [ 40 ] Further, P-5 demonstrates that, in total, 22 fence bundle units were utilized for the two houses, as numbered sequentially in the photographs – exactly what was invoiced. The Court accepts this as the best evidence of what was billed and what was ultimately used. [ 41 ] Accordingly, the defendant’s counterclaim is dismissed. Third Party Claim [ 42 ] The defendant has added Tino Mazza as a third party. His assertion is that everything was done together with Mazza.

They agreed to share the cost of their joint fence construction and further jointly decided to withhold the post-driver from the plaintiff as a means of forcing the plaintiff to come and negotiate. [ 43 ] Mazza confirmed Sirota’s evidence in this regard. In all respects, he said, he and Sirota acted as one throughout. [ 44 ] When asked by the Court whether he thought this type of conduct of withholding another’s property to gain bargaining leverage was a proper business practice, he was unapologetic. He stated that “otherwise if we took the post-driver back we would have to chase them to get satisfaction”.

Overall, he put the onus squarely on the plaintiff to make contact (which the plaintiff was in fact attempting to do). His assumption was that the plaintiff was simply content to “rack up rental costs”. He didn’t know anything about returned mail or emails, but in this day and age, he said, they should have just picked up the phone and called him or Sirota. [ 45 ] On balance, the Court is satisfied that the defendant Sirota has established that the third party Mazza should bear responsibility to him for one-half of the rental cost determined owing.

The parties mutually agreed to share the cost of the fence construction, which logically would have included the use and cost of the post-driver. Both mutually agreed to withhold the post-driver and both knew the rental cost was $100.00 per day. Costs [ 46 ] The actions of the defendant, and third party, although moreso by the defendant, were unreasonable and high-handed throughout. There is little doubt that this claim could have easily been resolved either through negotiation or an abbreviated and simple court proceeding, but for the manner they chose to deal with this.

As well, the defendant deliberately rebuffed any contact from the plaintiff by ignoring emails and refusing ordinary and registered mail. Further, he provided false evidence to the Court concerning the initial rental rate, the alleged alteration of the written contract, and receipt of the plaintiff’s letters. [ 47 ] For all of the foregoing reasons, this is clearly a case where costs should apply against the defendant and third party, pursuant to s. 36(3) (

e) of the Small Claims Act, 2016 and Small Claims Regulation 6(3), which the Court fixes at $750.00. [2] No pre-judgment interest will be awarded in lieu thereof. IV RESULT [ 48 ] The plaintiff shall have judgment against the defendant Sirota for the following: a) $10,212.00, calculated at 92 days rental at $100.00 per day, plus combined GST and PST of 11%;

b) $750.00 costs; c) $92.00 filing fee; and d) $162.75 service costs. [ 49 ] The defendant Sirota shall have judgment against the third party, Mazza, for the following: a) $5,106.00, representing one-half of the rental costs attributed to the defendant; and b) $250.00 costs. ____________________________ R.D. Jackson, J Appendix A

Section 6(3) of the The Small Claims Regulations , 2017 , RRS c S-50.12 Reg 1 . c. S-50.12 Reg. 1 reads :