Rose Anna Crowe Plaintiff - v. -, 2015 SKPC 176

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 201 5 SKPC 176 Date: December 9, 2015 File: 139/15 Location: Regina Saskatchewan _____________________________________________________________________________ Between: Rose Anna Crowe Plaintiff - and - Jeremy Thomas Defendant Dustin Gillanders For the Plaintiff (Defendant by Counterclaim) Jeremy Thomas and Bob Thomas For the Defendant (Plaintiff by Counterclaim) JUDGMENT P. DEMONG, J Introduction [ 1 ] Rose Anna Crowe holds a lifetime interest on certain parcels of farm land. In 2008, she entered into a five year lease agreement with Jeremy Thomas.

Jeremy, as lessee, agreed to pay rent on two parcels of land. In 2011, Rose alleges that Jeremy failed to pay rent within the time stipulated by the lease and that as a result, he was in default of payment. She alleges that she subsequently gave notice of termination of the lease and repossessed the land.

[ 2 ] Rose brought action against Jeremy in the Court of Queen’s Bench and Jeremy defended and counterclaimed. By agreement of the parties, the Queen’s Bench action was remitted to this Court for Trial. [ 3 ] Rose claims that she is entitled to the payment of rent for the year 2011 in the sum of $3,400.00 because, she says, the lease obligates Jeremy to pay for rent for the year 2011 even if the lease is terminated. Jeremy has defended this portion of her claim, alleging that he made every diligent effort to make payment as required under the lease but that Rose wilfully prevented Jeremy from doing so.

In consequence, he says that he stood ready, willing, and able to pay and therefore the lease should not have been terminated and that he was entitled to possession and use of the land in question. [ 4 ] Rose claims the further sum of $9,600.00 which arises from her alleged loss of opportunity to claim certain monetary benefits under an Excess Moisture Program that was established by way of a Federal-Provincial Contribution Agreement.

She says that Jeremy, without colour of right, applied for these monies, and obtained them, even though he had no right to do so because he was no longer a lessee of the land in question. [ 5 ] Rose alleges that when she tried to apply for these benefits, the Program refused to pay her because Jeremy had already claimed and obtained them.

She alleges that she is entitled to the benefit of the monies obtained by Jeremy on the basis of unjust enrichment, or alternatively by reason of Jeremy’s negligent or intentional interference with her otherwise unqualified right to apply for the benefits that would have been available to her. Jeremy defends this portion of the claim, alleging that he was in rightful possession of the land in question. [ 6 ] Jeremy has counterclaimed against Rose and seeks unspecified damages for Rose’s breach of the agreement, predicated on his inability to farm the land in each of the years 2011 and 2012.

Evidence [ 7 ] Rose Anna Crowe is 60 years old and resides on farmland in the vicinity of Parry, Saskatchewan. She is employed with the Five Hills Tribal Council and also works with the Piapot First Nations in the area of child and family welfare in Regina. She is a Status Indian and, under a Band Member Lease Agreement between herself and Kehiew Holdings Inc. (Exhibit P-2) she and her son James Crowe were allocated a leasehold interest in a number of parcels of land purchased by Kehiew under the Piapot Specific Claim Agreement and Land Entitlement.

The agreement grants to her, and her son, the right to the use and benefit of the land leased. The Lease Agreement allows her and her son James to sublet the land if they so choose. [ 8 ] In 2008, Rose was approached by Jeremy Thomas and his father Bob Thomas. Each of these individuals farm in the vicinity of certain parcels of land held by Rose. Jeremy and Bob farm together under a corporate entity called Maxum Land Holdings Ltd..

Jeremy was interested in obtaining a lease for a five year term in respect of certain parcels of land held by Rose legally described as NE 34-10- 21 W2M and SE 34-10-21 W2M, comprising 320 acres, more or less. [ 9 ] Rose was agreeable and prepared a lease (Exhibit P-1). She signed the lease and it was witnessed by her common law partner Barry Baer. The lease was presented to the Thomas’, and Bob Thomas signed the lease as agent for his son Jeremy. For the purposes of this action, paragraphs 3, 6, 12, and 23 are pertinent. They read: 3.

The Tenant will pay to the Landlord, at Parry, Saskatchewan the sum of $3,400.00 ($1,700.00 per quarter) for each of the said term to be paid as follows: The sum of $1,700.00 (one thousand, seven hundred) on the 1 st day of April, 2008, and the sum of $1,700.00 (one thousand, seven hundred) on the 1 st day of October, 2008, during each and every year of the term hereof, all without any deduction, defalcation or abatement whatsoever. The GST will not be collected but the Second Part agrees to pay the GST in full, if requested to do so. 6.

The Tenant will cultivate, seed and harvest the said land in a proper and husbandlike manner and will not impoverish or waste the same and will use the lands and premises for the purpose of a farm only, and will render up the same in the same or better condition at the conclusion of the term of the lease. Continuous Cropping must be agreed upon by both parties involved within this lease agreement.

12. (

a) If and when the Tenant makes default in payment of any sum payable hereunder or in the performance of any covenant, promise, agreement or undertaking herein contained, the then current year’s rental shall become forthwith due and payable and the said term shall at the option of the Landlord become forthwith forfeited and void; (

b) If and when the Tenant makes default in payment of any sum payable hereunder or in the performance of any covenant, promise, agreement or undertaking herein contained, the Landlord may at any time thereafter re-enter into and upon the said land and shall have again, repossess and enjoy as of his former estate, without demand or notice. 23. Any notice given hereunder shall be in writing and shall be serve by registered mail, postage prepaid, and shall be conclusively deemed to have been received two (2) business days after posting the same, and in the case of the Lessor, addressed to: R.

Anna Crowe Box 14 Parry, Saskatchewan S0H 3L0 … [ 10 ] On a review of the evidence, I am satisfied that the land in question had not been worked for some time prior to 2008. The parties have suggested that the amount payable under the lease was rather nominal partly because of its unworked condition. In any event, Jeremy took possession of the land and worked it in 2008 in preparation for seeding the following year. Jeremy made payment without issue in 2008. In 2009, Jeremy also used the land.

In 2010, Jeremy advised that payment would be late and he eventually provided Rose with two post-dated cheques for October 1 st of 2010. Rose accepted these post-dated cheques as payment for the 2010 lease year. [ 11 ] Rose states that in 2011 she began to have concerns with a further late payment. Part of her concern, she says, arose because she alleges that the land had not been worked in 2010.

She says that in consequence, she tried to contact Jeremy on numerous occasions in February of 2011 because she wanted to clarify his intentions regarding his working of the land in 2011 as well as to ensure that payment would be provided on time, and in accordance with the terms of the lease. She states that Jeremy resides about 16 kilometres from her home. She says that she stopped at Jeremy’s home on a number of occasions and that even though the lights were on in the house, he would not answer his door.

She says that she attempted to phone him but he did not answer her calls and she could not leave a message because his message manager was full. She says that she once had occasion during this time to talk to Bob and indicated to him that she needed to speak to Jeremy. She says that Bob replied that he did not know where Jeremy was. [ 12 ] Rose says, that notwithstanding these several attempts, Jeremy never contacted her and April 1 st came and went and Jeremy had not paid her the $1,700.00 rent that was due and payable on that date.

In consequence, she says that on April 5, 2011 she attended at Jeremy’s residence and taped a notice to his door indicating that, in accordance with paragraph 12 of the lease, Jeremy was in default of payment and that she considered the lease to be terminated and that she intended to re-enter and repossess the land. [ 13 ] Rose says that thereafter, she entered into an arrangement with members of her extended family who farm near Piapot. She says a tractor and cultivator were brought onto the land and they attempted to start work on the land in anticipation of seeding it.

She alleges that the land was in poor condition and asserts that the land had not been worked down in the fall of 2010, nor had it been sprayed.

Finally, she says that notwithstanding these initial efforts, heavy and continuous rain that spring prevented them from putting in a crop. [ 14 ] Rose states that in or about September of 2011, she became aware of the Canada - Saskatchewan 2011 Excess Moisture Program - a program which was established to provide Saskatchewan producers who, due to excessive moisture conditions on their land, would be entitled to obtain payments of up to $30 per acre on unseeded land from the federal government. Rose applied for benefits under that Program (Exhibit P-4) on September 9, 2011.

The application was delivered to Saskatchewan Crop Insurance Corporation (SCIC), which

she understood was administering the program on behalf of the federal government for Saskatchewan producers. She claimed for the full 320 unseeded acres situated on the parcels of land that are the subject of this lawsuit. [ 15 ] Rose says that she was subsequently advised by SCIC that her application was disallowed because another producer, Jeremy Thomas, had already applied for and received the benefits under that Program in respect of the land in question.

When she sought to argue the matter, and when her then lawyer requested that SCIC hold back payment of the monies to Jeremy, she says that a representative of SCIC advised her that her recourse was to proceed with a civil action against Jeremy, something which she promptly did.

The parties are in agreement that Jeremy did in fact apply for, and did in fact receive, the benefits in question, which amounted to the sum of $9,600.00. [ 16 ] Finally, Rose maintains that Jeremy did not, at any time after receiving written notice of termination of the lease on April 5 of 2011, ever contact her to discuss the termination of the lease or payment of the rent monies that were due and owing for the 2011 crop year. [ 17 ] Bob Thomas and Jeremy Thomas dispute a number of Rose’s allegations, particularly as they relate to payment, or rather attempted payment, for the 2011 lease year.

Jeremy says that it would be most unlikely that Rose had attempted, but failed, to contact him in February or March or April of 2011. He says that he is usually at his residence in those months and in any event he has a number of hired hands which are always on the property. He invited the Court to conclude that if Rose had attended on his land or at his premises on the number of occasions she suggested, that she would have easily been able to contact him. In addition, he maintains that he has both a cell phone and a home phone with message manager, and that Rose had been provided with these numbers.

He says that he never received a call from Rose, nor was any phone message left for him prior to April 1st. [ 18 ] Bob and Jeremy Thomas indicated that it was Bob, rather than Jeremy, who would deliver payment under the lease. That is to say, Jeremy would provide the funds to Bob, and Bob would attend at Rose’s home to pay her directly because a personal visit was preferable for Jeremy so that Bob could then simultaneously receive a receipt and a GST number for tax purposes.

That stated, Jeremy testified that on two occasions in March of 2011, he attended at Rose’s residence to make payment but that no one was home. His evidence was to the effect that he knocked on the garage door and not getting an answer, he simply left. This evidence is contrary to his earlier assertion that Bob, and not Jeremy, would make contact for payment of the lease. [ 19 ] This evidence is disputed by Barry Baer, Rose’s common law partner. Barry testified that some years earlier, he had suffered a significant leg injury that has left him in such a diminished state that he rarely leaves his home.

He stated that any given time, even when he is at home, whether active or resting, another person is there to watch over and assist him. He invites the Court to conclude that it would be most unlikely indeed that Jeremy had attended the property and could find no one to answer the door. [ 20 ] Bob maintains that he attended Rose’s residence sometime in May of 2011, in an effort to speak with Rose, but once again no one was home. Bob further maintains that in or about the middle of September of 2011, he and Jeremy attended at Rose’s residence in an effort to make payment for the 2011 lease year.

Rose was unavailable, and they spoke with Barry Baer, who in turn indicated to them that he could not speak for, or bind Rose, by accepting the payment. [ 21 ] Bob steadfastly maintains, and Jeremy also maintains, that Jeremy stood ready, willing and able to make payment for the 2011 lease year. In support of this assertion, each point to a letter, (Exhibit D2-10), that Jeremy caused his then lawyer to write to Rose dated September 27, 2011.

That letter enclosed a trust cheque in the amount of $3,400.00 payable to Rose for the 2011 lease payments, and it requested that Rose endorse her consent to the cancellation of the remainder of the lease for the 2012 lease year. I note in passing that Rose did not accept payment, nor did she execute the release. In fact, the letter was sent to her by registered mail, to the address set forth in paragraph 23 of the lease, and she refused to accept it. It was returned to Jeremy’s lawyer.

I note in passing that this letter was penned well after Jeremy received notice that Rose had applied for benefits under the Excess Moisture Program. [ 22 ] Before analysing the lease payment component of this claim, I would like to turn to the actual working of the land in question, since it took up a significant portion of this trial, presumably, because it speaks to the credibility of the respective parties, and arguably, entitlement to benefits under the Excess Moisture Program.

[ 23 ] Jeremy did not seed the land in 2008. The land had not, in his opinion, been worked for a number of years, although Rose disagreed with this suggestion. He says that he turned the land and applied spray to kill weeds. He says that he did seed the land in 2009 and had a reasonably good crop. In 2010, Jeremy indicated that he started to prepare the land for seeding but almost forty-two inches of rain fell that year and he could not get onto the land to seed.

He says, however, that in the fall of 2010, he turned the land and sprayed it in anticipation of the 2011 crop year. [ 24 ] Barry Baer stated that he saw the land in the spring of 2011 when Rose and her family attempted to farm it and as an experienced farmer, he doubted that the land had been turned or sprayed in 2010. [ 25 ] Jeremy and Bob both dispute that the land was worked in any way by Rose and her family in 2011 based on their visual inspection. They own land adjacent to the land in question.

Bob and Jeremy further dispute, as Rose alleges, that the land had been worked in any way in the years 2012, 2013 and 2014. In support of this contention, they tendered photographs which Bob says he took of Rose’s land (Exhibit D2-6 and D2-8) 2012 and 2013. I have no reason to doubt that the photographs were in fact taken in those years, and that they were of Rose’s land. This Court has no expertise in working land, but the photographs show very significant weed growth.

They do not tend to support that the land had been turned to a blackened state or that the weeds had been sprayed down. [ 26 ] Bob invites the Court to conclude that his evidence, which contradicts Rose’s evidence, lends support to his conclusion that more likely than not, Rose had not cultivated or sprayed this land in the fall of 2011, something he says would have to have been done in order to obtain the benefit of the Excess Moisture Program. But I have a problem with this.

Bob is not an expert as it relates to the implementation and administration of the Program, nor did Jeremy lead any evidence from SCIC or the federal government as to how and under what circumstances monies might be paid out for unseeded acres under the Program. What I find discomforting about Bob’s assertion is that in the 2011 crop year, neither Bob nor Jeremy entered onto the land, nor did they do anything to turn or spray the land that year. Notwithstanding this, Jeremy applied for, and received payment from, the Program for this land.

If working the soil was a precondition of obtaining the benefit, and if the land was not worked, how can it be that Jeremy was entitled to receive benefits under that Program but that if Rose was in the same position she would not have been allowed that same right? [ 27 ] Bob represented Jeremy in this trial. He has insisted that Jeremy paid SCIC insurance premiums as a precondition to obtaining the benefits under the Excess Moisture Program and that this premium cost approximately $2.00 per acre or $640.00.

Counsel for Rose disputes that an insurance premium payment was required in order to be eligible for payment under the Program. In support of that proposition counsel has tendered Rose’s application form, the Backgrounder pamphlet which identifies the circumstances under which benefits might be payable, and Order- in -Council 526/2011 prepared by the federal government and which constitutes the federal government’s Contribution Agreement with the Province of Saskatchewan (Exhibit P-6). I have reviewed these documents in addition to Exhibit D-1, which incorporates The Excess Moisture Program Regulations, 2011 c.

F-8.001 Reg 45 made pursuant to The Farm Financial Stability Act, 1989-90 c. F-8.001 and with due respect to Bob and Jeremy, I cannot identify any provision whatsoever which contemplates that benefits under the program are conditional upon payment of an insurance premium. It appears, rather, that payment is or can be made to applicants who meet the criteria set forth in the Agreement and the Regulations.

I am satisfied that if Rose was the owner of the land in question, and if she was rightfully in possession of that land, and if that land was affected by moisture to the extent and in the manner contemplated by the Program, she would be lawfully entitled to apply for and arguably obtain the benefits available under the Program. Issues [ 28 ]

i) Did Jeremy fail to pay the rent which was due and payable on April 1 st of 2011? If so, was Rose entitled to terminate the lease and enter into possession of the land? ii) If the lease was terminated by Rose because of non-payment of rent, does Rose have the right to demand the then current year’s rental in the sum of $3,400.00? iii) If the lease was terminated, and Rose came into possession of her land, was she entitled to bring application for benefit payments pursuant to The Excess Moisture Program?

iv) If the lease was terminated, did Jeremy have the right to bring application for benefits under the Excess Moisture Program?

v) Can Rose bring action in this Court for recovery from Jeremy of the sum of $9,600.00 to which she would otherwise have been entitled to obtain on the basis of unjust enrichment? vi) If Rose cannot rely on the principle of unjust enrichment, is she entitled to sue Jeremy in negligence? vii) If the lease was properly terminated, can Jeremy succeed on his counterclaim? Analysis [ 29 ] Jeremy entered into a lease with Rose through his agent, father, and business partner, Bob Thomas.

In the years 2008, 2009, and 2010, subject only to the late payment, he complied with the lease, and I am satisfied that he knew or ought to have known of the terms and conditions of that lease. The payment obligations are set out in the lease in

section

Section 3 is not complicated. It obligated Jeremy to pay to the Landlord, at Parry, Saskatchewan $1,700.00 on April 1 st and on October 1 st of each year in which the lease was in operation. Jeremy’s statement of defence alleges that the 2011 payment on the lease was tendered to Rose and refused by her.

In his counterclaim, Jeremy alleges that he made every diligent effort to make payment as required but that Rose wilfully prevented Jeremy from making payment. [ 30 ] With due respect to Jeremy, the only evidence that came before the Court with respect to Jeremy attempt to pay before April 1 st of 2011, is Jeremy’s evidence that he twice attended at Rose’s home in March of 2011 and knocked on the garage door and finding no answer, left the premises.

This evidence does not satisfy me in any way that on that basis alone, the lease payment was tendered and refused, or that Rose wilfully prevented him from making payment. [ 31 ] Jeremy could easily have complied with the requirement for payment on or before April 1 st by availing himself of the notice provisions set forth under

section 23 of the lease. He could have, but did not, give notice of payment by serving it by registered mail, postage prepaid to R. Anna Crowe, Box 14, Parry, Saskatchewan SOH 3LO. [ 32 ] While I have some concerns relating to the number of attempts that Rose tried to contact Jeremy to ensure that payment was delivered on time, I am satisfied she did, in fact, attempt to do so, and did so because of her previous concerns relating to late payment in the past. I prefer her evidence on this point to that of Jeremy’s because it seems reasonable that a person in her situation would try to do so.

Her evidence is that she did so and her evidence on this point was not seriously challenged in cross-examination. I also prefer her evidence because, with the greatest of respect to Jeremy, the manner in which he handled his obligations under the lease, and his potential rights under the lease seems to me to be rather careless and disinterested. Had he read his lease, he would have known that he could make payment by mail. When presented with a notice of termination and re-possession, he did nothing. He did not, in my view, make any earnest efforts to remit payment.

This disinterest appears to have extended into April, May, June, July and August of 2011. He was, for example, aware that Rose had taken possession of the land, but he took no steps to impede her right of re-entry. He did not make, or at least the Court was not made aware of, any attempt to bring application to Court to challenge Rose’s decision to terminate the lease and take possession of the land.

The only steps that the Court was made aware of was one attempt by Bob to meet her at her home in May of 2011 (which was unsuccessful), and then nothing until September of 2011 when Jeremy was made aware of her attempt to apply for benefits under the Excess Moisture Program. [ 33 ] I take notice of Bob’s assertion that payment could not be made because the Thomas’ could not meet Rose in person.

I suspect that Bob was inviting me to conclude that because that was how payment had been made on occasion in the past, it was either: the only way in which payment could be made, or that as a result of past practice Rose was somehow estopped from relying on the timeliness of payments in the absence of a face to face meeting. I disagree. As indicated, a face to face meeting was not indicated anywhere in the lease as the only means by which a payment could be made. Payment could have been made through the mail in accordance with the notice provisions under the lease.

If necessary, payment could be taped to Rose’s home. Furthermore, the fact that payments had previously been face to face does not, in my mind amount to an estoppel. First, estoppel was not pleaded. Second, in order to found an argument on estoppel, the Court would have to have heard evidence to the effect that Jeremy relied on this past practice to his detriment. I heard no such evidence. All I heard was that face to face payment would be preferable for Jeremy so that he could obtain a timely receipt and a GST number.

[34] Jeremy’s entire argument with respect to Rose’s decision to terminate the lease for non-payment appears to be predicated on the factthat he intended to pay, and that he stood ready willing and able to pay, and that following termination, in both May and then again ontwo occasions in September, he attempted to pay, but in September payment was refused. Unfortunately, in the instant circumstances,action speaks louder than intention.

In my view, Rose was entitled to rely on her strict legal rights as set forth in the lease - an agreementin writing which is clear and unambiguous. [35] While not specifically addressed in final argument, nor, on a review of the evidence, presented at trial, I am also satisfied that eventhough Rose attempted to demand payment on time, she was not required to make formal demand for payment prior to exercising herright of termination and re-entry.

While, under the common law, a demand for payment may be required prior to the exercise of that rightof re-entry, that requirement does not arise if the lease expressly dispenses with such a demand. (Rilling v Hort, (SKKB), [1973] 4 W.W.R. 522). In the instant circumstances,

section 12(

b) of the lease did, in fact, dispense with that demand requirement.As a result, I am satisfied that Rose was entitled to terminate the lease for non-payment and re-enter and take possession of the land. [36] I am also satisfied that Rose did have the right to demand the then current year’s rental in the sum of $3,400.00. First, I note that thelease expressly indicated in

section 12 (

a) that ‘upon default in payment the then current year’s rental shall become forthwith due andpayable and the said term shall at the option of the landlord become forthwith forfeited and void’.

While Jeremy spent almost no time at trial arguing whether or not this provision could be relied upon, I note that it is certainly in issue and the Court must giveconsideration as to whether or not it is a penalty clause and therefore unenforceable, or whether it is a genuine pre-estimate of damagesfor early termination of the contract. [37] I am satisfied that the onus of proving that it is a penalty clause rests with Jeremy (Robophone Facilities Ltd. V Blank [1966] 1W.L.R. 1428 (C.A.). Jeremy has led no evidence whatsoever in this regard.

In order to meet that onus, Jeremy would have had toconvince the Court that the liquidated damages are extravagant or unconscionable in comparison to the greatest loss that couldconceivably be proved to have followed from the breach. On the rather limited evidence before me, I am not satisfied that it is. Rose hada vested interest in ensuring that the land was worked. It is an express term of the lease.

In addition, and as Rose’s counsel points out, the date for payment is April 1st, a date which severely limits a lessor’s chances of putting another party into possession of the property before seeding is to commence. In my view, the comments of Professor Waddams, in his textbook The Law of Damages, 3rd ed (CanadaLaw Book, 1997) at para. 8.330 are apposite: It is useful to remember that the jurisdiction to strike down penalty clauses represents an exception to a general rule of freedom ofcontract. The force of the general principle should not be underestimated.

There are strong arguments for enabling parties to set theirown value on performance. The power to do so gives flexibility to the contracting process: ...

It enables the promisee to avoid the cost ofsecuring compensation that may be caused by the legal restriction on damages, such as remoteness, certainty of proof mitigation, andfailure to recognize intangible losses; it reduces the cost to the parties and to the state of settling a dispute after breach .... [38] Finally, the amount payable represents only the rent that would have been payable in that year, it does not seek the entirety of theamount that would be payable for the remainder of the five year lease.

It reflects the difficulty that a landlord in Saskatchewan wouldalmost certainly face in attempting, on short notice, to find another leasee willing to enter upon and work the land in the relatively shortperiod of time a farmer faces when up against the limited growing season in Saskatchewan. I find that Rose is entitled to claim theamount sought, and is not required to mitigate that loss.

There is extensive authority for the proposition that where a contract contains aliquidated damages clause that is a genuine pre-estimate of the damage and not a penalty, there is no obligation to mitigate on the part ofthe injured party. (Nystoruk v Precision Diversified Services Ltd. [2003] A.J. No. 332 (QB)). [39] Having found that the lease was properly terminated, and having found that Rose had the right of re-entry and possession of theland, I have no hesitation in concluding that Rose would have had the right to make application for benefits under the Excess MoistureProgram.

I have reviewed the Contribution Agreement entered into between the Government of Canada and the Province ofSaskatchewan, the regulations made by the Province, and the application form. I see nothing that would have prevented Rose fromapplying for, and arguably obtaining, those benefits which would have equated to a payment of $30 per acre for the 320 acres underconsideration. The deadline for application was September 30 of 2011.

Her application was not accepted because Jeremy had applied forand received those monies based on his representation that he was in rightful possession of, and had lawful authority to deal with thatland. Rose was told that if she took issue with the payment made to Jeremy, that it was, according to SCIC, a civil matter between herand Jeremy. While Jeremy argues that her proper course of action should have been to appeal the decision of SCIC pursuant to theprocedure available under the Program, I note that the appeal procedure was voluntary and would not affect Rose’s right to sue if she so

chose. I am satisfied that her failure to follow that voluntary procedure does not preclude her from bringing this action. [40] In my view, Jeremy’s decision to represent to SCIC that he had a valid interest in the land in question was, when considered in itsbest light, negligent. He knew, or certainly ought to have known that the landlord had terminated the lease. He knew, or ought to haveknown, that Rose had taken back possession of the land. He knew, or certainly ought to have known, that when he applied for thebenefits under the Program, that he had not yet paid the rent that was due.

He knew, and certainly ought to have known, that he did not,in the 2011 growing season, take any step whatsoever in attempting to work the land. His representation to SCIC was amisrepresentation and it was negligently made. That negligent misrepresentation to a third party worked to the detriment of Rose.

Jeremyhad a duty to her not to make such a negligent misrepresentation and I am satisfied that when he did so he knew, or ought to have known,that in doing so Rose would be precluded from claiming the very same benefit that he obtained. [41] The claim that Rose filed in the Court of Queen’s Bench is less than precise. It seeks ‘damages flowing from the Canada-Saskatchewan Crop Insurance Corporation in the amount of $9,600.00. It does not seek restitution by way of unjust enrichment, nor doesit state that Rose is seeking damages based on a negligent misrepresentation.

At trial, this Court heard for the first time that the essenceof the claim was to be grounded on unjust enrichment. For the reasons that will be set out shortly, that was unfortunate, but not fatal, tothe claim, I say this because counsel also made it clear, on questioning from the Bench, that the claim is advanced also on the basis of atort of interference with Rose’s economic interests. [42] Unlike the Court of Queen’s Bench, the Small Claims Court is a statutory Court and its jurisdiction is limited to the authoritygranted to it by statute. In a very recent decision, Mr.

Justice Zuk, of our Court of Queen’s Bench, had the opportunity to discuss thisCourt’s jurisdiction to award monies arising under the restitutionary remedy of unjust enrichment. (Hope v Parkdale No. 498 (RuralMunicipality) 2015 CarswellSask 443, 2015 SKQB 194). His analysis commences at paragraph 62 and concludes at paragraph 92, and Ido not intend to repeat that analysis. Mr.

Justice Zuk has acknowledged that this Court has, in the past, made decisions based on theremedy of unjust enrichment, which decisions, in turn, have been upheld by both the Court of Queen’s Bench and the Court of Appeal;but without consideration of the jurisdictional issue. He has concluded that there is no statutory authority which grants to the SmallClaims Court jurisdiction to hear claims based on the equitable principle of unjust enrichment.

I am, of course, bound by that decisionand therefore I have no authority to award Rose her claim for $9,600.00 on that basis alone. [43] That stated, this Court has full statutory authority to consider claims founded on tort, and to give damages accordingly. In the instantcircumstances, and as discussed above, I find that Rose has a valid claim for damages arising from the tort of negligentmisrepresentation. An action can properly be advanced for damages which arise from one party’s negligent misrepresentation to a thirdparty. (Young v.

Bella, [2006] 1 SCR 108, 2006 SCC 3 ). [44] I am satisfied that there was, at all relevant times hereto, a sufficiently close relationship between Jeremy and Rose such that, in thereasonable contemplation of the defendant, carelessness on his

part in claiming an ownership interest in the land might cause damage toRose. I am further satisfied that there are no existing policy reasons which might negative that duty. While no evidence was given at trialto identify the standard of care of a reasonably prudent farmer applying for benefits for lands owned or leased by him, I am satisfied that,objectively viewed, if any party seeks to obtain benefits predicated on a leasehold interest in land, he should not bring application forthose benefits when he knows or ought to have known that he had no right to the land in question.

At the very least, Jeremy should haveput SCIC on notice that his right to the land was in dispute. His failure to do so was a breach of his duty of care to Rose. I am furthersatisfied that the loss arising from that breach was Rose’s inability to claim for those very benefits that Jeremy ultimately received. I amsatisfied that the loss caused by his misrepresentation is not so remote as to deprive her of a remedy. The loss is directly related to hismisrepresentation.

Finally, I am satisfied that the measure of damages that Rose is entitled to is equal to that amount that she could havereceived, but for Jeremy’s misrepresentation, which equals the $30.00 per acre benefit available to her for her 320 acres of land, whichequates to the sum of $9,600.00. [45] Because I have found that the lease was properly terminated, I find that Jeremy cannot succeed on his counterclaim. This may be amoot point in any event, as Jeremy had not complied with an earlier order of the Court to file documents in support of his counterclaim.

In addition, he did not, notwithstanding the Court’s direction, attempt to lead evidence in support of his counterclaim when instructed todo so. Ultimately, he gave notice to the Court of his intention to withdraw the counterclaim.

Conclusion [46] Rose shall have judgment in the sum of $13,000.00, constituting $3,400.00 in liquidated damages arising from Jeremy’s breach of the lease, and damages in the sum of $9,600.00 by virtue of his negligent misrepresentation. I award the sum of $466.64, as pre- judgment interest commencing, September 30 of 2011. I tentatively award Rose costs for the issuance of her summons in the sum of $100.00. If Rose takes issue with this amount she has thirty days from the date of this judgment to bring application to this Court for a re-assessment of her costs.

If no application is brought within that time, my present assessment shall stand fixed in the amount stated. [46] In total, Rose shall have judgment in the sum total of $13,566.64. P. Demong, J