Barry Stettner - v. -, 2021 SKPC 45

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2021 SKPC 45 Date: September 10, 2021 File: #50/20 Location: Melville _____________________________________________________________________________ Between: Barry Stettner - and - Jeff Burak Rod Simaluk For the Plaintiff Grant Schmidt For the Defendant ______________________________________________________________________________ JUDGMENT R. GREEN , J ______________________________________________________________________________ I INTRODUCTION [ 1 ] Mr.

Stettner operates a heavy truck repair business in Regina and resides outside of Regina on an acreage. Mr. Burak has operated an agricultural equipment repair business in Goodeve for five years. He previously worked for John Deere and has thirty years of experience working on John Deere equipment, which has included him taking courses and upgrading about repairing this farm

equipment. [ 2 ] In December 2018 Mr. Stettner purchased a John Deere model 4255 tractor online from a seller in Mississippi for $16,500.00. That tractor proved to have major transmission problems, as Mr. Stettner found that it unexpectedly went in and out of gear. As a result, he hired Mr. Burak to repair this tractor and took it to him on August 10, 2019. Mr. Burak did extensive repairs to the tractor and Mr. Stettner picked it up from Mr. Burak on December 17, 2019. [ 3 ] Both parties acknowledge that the tractor was in poor condition when Mr.

Stettner purchased it, and that major repairs were required to its transmission. Mr. Stettner agreed that a similar model, in good condition, would have been worth approximately $40,000.00. [ 4 ] When Mr. Stettner took the tractor to Mr. Burak, he told Mr. Burak that he “bought the tractor cheap” and asked whether or not it could be fixed. Mr. Stettner told Mr. Burak to do whatever he had to do to fix the tractor, and he clearly knew he would have to spend a significant amount of money to repair it. While Mr.

Burak was initially skeptical that this tractor was worth the money required to fix its transmission, he eventually agreed to undertake this repair. [ 5 ] When Mr. Stettner picked up his model 4255 tractor from Mr. Burak on December 17, 2019, he drove it onto his trailer and transported it back to his residence, where he drove it into his storage shed. The tractor sat unused until the spring of 2020. During the early winter months of 2020, Mr. Stettner took his second tractor to Mr. Burak for repairs and these were completed by Mr. Burak without any problem. [ 6 ] When Mr.

Stettner started his 4255 tractor on March 31, 2020 and drove it a short distance on his property, he quickly discovered that the problem regarding it going in and out of gear was recurring. As a result, he brought the tractor back to Mr. Burak in Goodeve on April 3, 2020 and asked him to do further repairs on it. [ 7 ] After unsuccessful attempts by Mr. Burak to fix this tractor, and after extensive text communications back and forth between the men (which appear in Exhibit P-9, a 26 page copy of the text messages between them from August 6, 2019 until June 29, 2020), Mr.

Stettner had Pattison Agriculture from Balcarres, a John Deere dealer, come and pick up the tractor from Mr. Burak in late June 2020. Pattison Agriculture then performed diagnostics on the tractor and discovered that an engagement override valve (EOV) that Mr. Burak had installed in the tractor was upside down. Once this was corrected, the tractor operated normally, and Pattison Agriculture delivered the tractor to Mr. Burak at his residence. [ 8 ] Mr. Stettner paid for all of the repair parts used by Mr.

Burak by direct payments to Pattison Agriculture (Exhibit P-3 and P- 4) and paid both of the labour invoices that Mr. Burak gave to him, for $9,451.31 on November 30, 2019 and for $2,446.50 on May 27, 2020 (Exhibits P-2 and P-5). He, as well, paid the invoices of Pattison Agriculture after they picked up the tractor from Mr. Burak in the spring of 2020: (1) $5,212.68 for diagnostics and repairs to the tractor, during which it was discovered that an EOV valve had been installed upside down (Exhibit P-6); (2) $1,096.50 for the cost charged by Pattison Agriculture of transporting his tractor from Mr.

Burak’s business in Goodeve to that John Deere dealership in Balcarres and then to Mr. Stettner’s home near Regina (Exhibit P-6); and (3) $1,496.26 charged by Pattison Agriculture for the cost of cleaning the tractor as a result of mice contamination (Exhibit P-7). [ 9 ] As a result, and despite a total claim in his Summons against Mr. Burak for $23,541.34, in argument after the evidence at the trial closed, Mr. Stettner narrowed his claim to: (1) a refund of $4,446.50 that he paid to Mr.

Burak for his labour in working on the tractor ($2,000.00 of the labour charged in December, 2019 plus $2,446.50 for the labour charged in May 2020); (2) $605.00 for the cost of Mr. Stettner transporting his tractor to Mr. Burak in the spring of 2020; (3) $1,096.50 for the cost of Pattison Agriculture transporting his tractor from Goodeve to Balcarres and then to his residence near Regina; and (4) $1,496.26 for the cost of Pattison Agriculture cleaning his tractor for mice contamination. [ 10 ] Mr. Stettner testified on his own behalf. Mr.

Burak testified, and as well called as witnesses his employee Dustin Renkes, who worked with Mr. Burak on the repairs to Mr. Stettner’s tractor, and Tyler Rein, the lead technician from Pattison Agriculture in Balcarres who was qualified as an expert in John Deere technology and who was in charge of diagnosing and repairing Mr. Stettner’s tractor. [ 11 ] The issues to be determined are: 1. Is Mr. Stettner entitled to a refund of some of what he paid to Mr. Burak for labour to fix this tractor, and if so, how much? 2. Is Mr. Stettner entitled to be compensated for his mileage in bringing his tractor to Mr.

Burak in spring 2020 and for the cost of Pattison Agriculture transporting this tractor from Goodeve to Balcarres and then to his residence near Regina? 3. Is Mr. Stettner entitled to be compensated for the cost of Pattison Agriculture cleaning the tractor for mice contamination? 4. What, if any, prejudgment interest or costs of the proceeding are payable? II THE LABOUR CHARGED BY MR. BURAK TO MR. STETTNER The evidence of Barry Stettner [ 12 ] Regarding his claim for a repayment of part of the labour paid to Mr. Burak, Mr. Stettner submitted that Mr.

Burak either violated their agreement by not repairing the tractor, or, in the alternative, that he was negligent in the repairs he performed on the tractor. In addition to the money he paid for labour to Mr. Burak and the parts, transportation and labour he paid to Pattison Agriculture, Mr. Stettner testified that he was inconvenienced by the loss of a tractor, as he had only two tractors at his residence and the loss of one created challenges in his farming operation.

[ 13 ] According to Mr. Stettner, in August 2019 Mr. Burak told him that he was really busy, and Mr. Stettner agreed to wait for the repair of his tractor. The men communicated over the next few months about attempts by Mr. Burak to repair the tractor and on November 30, 2019, Mr. Burak provided an invoice to Mr. Stettner for the repair of this tractor. Mr. Stettner paid this invoice and picked up the tractor on December 17, 2019. On that day, Mr. Burak told him there was one more part, which I am satisfied was a transmission shift valve, that could be replaced on the tractor, but it was very expensive. While Mr.

Stettner claims he said to Mr. Burak “do what you have to do”, this valve was not replaced. [ 14 ] Mr. Stettner drove the tractor onto his trailer and then home, where he drove it into his storage shed for the winter. In the spring, Mr. Stettner drove it out of his shed and a short distance on his property but said he had the same problem as before as he could not get the tractor into gear. He contacted Mr. Burak again, and it was arranged that Mr. Stettner would bring the tractor back to Mr. Burak. [ 15 ] There were a series of communications back and forth between the men in the spring of 2020, in which Mr.

Burak said that he had taken apart and reinstalled the transmission shift valve and had done other work on the transmission but still could not get the tractor to run properly. Mr. Stettner was frustrated, and he contacted Pattison Agriculture in Balcarres to get a second opinion on the tractor. Mr. Stettner said that Mr. Burak eventually said to him that he should come and get the tractor, and that was when he had Pattison Agriculture pick up the tractor and take it back to their dealership. Mr. Stettner said that Mr.

Burak had assured him that he would not have to pay any labour for the second time he took the tractor back in the spring of 2020 but ended up charging Mr. Stetter $2,446.50 for labour. [ 16 ] While the tractor was at Pattison Agriculture, Mr. Stettner received word through Mr. Reins that Mr. Burak had installed an EOV valve in the transmission upside down and this had been repaired. Mr. Stettner, as well, learned that there were still substantial metal filings in the transmission oil which Mr. Stettner believed had come from the previous repair work done by Mr. Burak. The evidence of Dustin Renkes [ 17 ] Mr.

Renkes is a journeyman agricultural technician who works for Mr. Burak. He helped Mr. Burak work on Mr. Stettner’s tractor. He said the problem with this tractor was that its “power shift was gone” and he helped split the tractor and remove the engine and the cab to get access to the transmission. He then, in his words, “opened up the transmission” to get access to the power shift components and helped Mr. Burak disassemble the transmission. [ 18 ] Mr. Renkes said he observed lots of contamination and metal filings within this tractor’s transmission oil and described the transmission as looking “really dirty”.

The actual clutch disc assembly from this tractor’s transmission was shown to him in court (Exhibit D-1) and he described this as “quite worn with metal missing and metal filings and sludge on it”. He was then shown Exhibit D-2, which he said was a valve body and spool from this transmission, and he noted scarring on it where metal had scraped together and was in his words “virtually useless”. [ 19 ] Mr.

Renkes said that the oil in the transmission was so dirty with metal filing that, despite his best efforts, it was impossible to get it 100% clean and that it was difficult to get all of the filings out of the so called “nooks and crannies” of the transmission. After the first repair in December 2019, Mr. Renkes test drove the tractor for about a half a mile and said it shifted gears in his view without any problem. When the tractor was returned in the spring of 2020, Mr. Renkes worked to replace the transmission shift valve on the outside of the tractor.

He said this took a couple of hours to get the valve off and about four hours in total after draining and changing the oil. The evidence of Tyler Rein [ 20 ] Mr. Rein is the lead technician for John Deere at Pattison Agriculture in Balcarres. He works on all types of John Deere agricultural equipment. He has taken a range of training both online and in person regarding assessment and repair of John Deere equipment. He received his master service technician designation from John Deere five years ago. He was qualified as an expert in John Deere technology. [ 21 ] Mr.

Rein was in charge of diagnosing and repairing Mr. Stettner’s tractor after it was brought from Mr. Burak’s business. He discovered that the reason the tractor was not running was because an EOV valve within the transmission control valve (which I am satisfied is the same valve Mr. Burak referred to as the transmission shift valve) had been installed upside down in the valve housing.

As a result, he had the valve put in the correct position and the tractor operated without any problems. [ 22 ] When asked whether it would be difficult to properly assemble this valve without the diagnostic equipment and manuals that a John Deere dealer had, he admitted that it would be difficult to do that without the information that he possessed from John Deere. [ 23 ] Mr. Rein had worked with Mr. Burak at John Deere a number of years ago. Mr. Rein did not discuss with Mr. Burak what was wrong with this tractor, as he said Mr.

Burak wanted an independent opinion about what was wrong with the tractor. [ 24 ] When shown Exhibits D-1 and D-2 - original parts from this tractor that were replaced by Mr. Burak - Mr. Rein concurred that they were very badly worn. He said that when metal wears from such parts, the metal fragments go into the oil which circulates throughout the entire hydraulic system of the transmission.

As well, he said that the level of contamination by metal filings in the transmission oil of this tractor was uncommonly high, but noted the oil in this type of transmission circulates throughout the tractor and it would be virtually impossible to get all of the filings out of the oil. [ 25 ] Mr. Rein said Pattison Agriculture’s shop hourly rate was $160.00 compared to the $85.00 that Mr. Burak charged. He said they can demand a higher rate at the John Deere dealership because they have more advanced technology and diagnostic equipment, and more advanced tooling to allow them to fix these agricultural implements.

As well, the employees at John Deere have more advanced manuals and technical knowledge and, as well, receive support from John Deere’s corporate network in the United States. [ 26 ] Regarding the mistake that Mr. Burak made in putting the valve upside down, Mr. Rein described it as an error that could happen to anyone. When asked how much time it took to figure out what the problem was and to reposition the valve Mr. Rein estimated

that it was eight hours, comprised both of significant diagnostic work done to find the problem and of the time required to properly reinstall the transmission control valve. The evidence of Jeff Burak [ 27 ] Mr. Burak said he initially gave Mr. Stettner a quote of $9,000.00 for labour to rebuild the transmission. He explained to Mr. Stettner, that, because it was harvest time, he would have to prioritize any emergency repair work for farmers who were in the midst of harvest. [ 28 ] Mr. Burak said he had fixed this type of tractor transmission about 500 times in his career. When he received the tractor from Mr.

Stettner, Mr. Burak said the transmission was failing. He replaced many of the parts of the transmission and kept the old used parts from this tractor at his business. He brought to court the clutch disc assembly and a valve body and spool from this transmission, and these were marked as Exhibits D-1 and D-2. Taken together, he said this repair job was “huge” as the tractor had been operated during the time its transmission was failing. He said there was a lack of oil pressure in the transmission, and he was not sure how long the tractor had been operated at that decreased level.

As well, there were many metal filings in the oil of the transmission. [ 29 ] Given the age of the tractor, Mr. Burak could not order all of the identical parts, but had to take what he understood to be the appropriate replacement parts from John Deere. He said he made every effort to replace what needed to be replaced in the transmission and to clean it up as best he could. [ 30 ] Mr. Burak said the spring of 2020 was chaotic as very little crop had been taken off by farmers during the previous autumn and, as a result, the spring brought many emergency repairs for him from farmers who were, again, combining.

He made the situation known to Mr. Stettner, and Mr. Stettner was prepared to have him take the tractor back and work on it a second time. [ 31 ] Regarding the second time he worked on the tractor, because Mr. Burak was having trouble finding the problem with the tractor, Mr. Burak said that Mr. Stettner got impatient. Mr. Burak said the friction between himself and Mr. Stettner was because Mr. Stettner was upset that Mr. Burak was taking on subsequent work from farmers in the midst of harvest and Mr. Stettner was concerned that his tractor was not a priority for Mr. Burak. [ 32 ] Mr.

Burak said this resulted in many communications back and forth between himself and Mr. Stettner, and at some point, Mr. Stettner threatened to sue him for $50,000.00. As a result, Mr. Burak told Mr. Stettner he could come and get his tractor once he paid Mr. Burak’s account for labour. [ 33 ] Mr. Burak claimed his second account for labour was fair, and that any reference he made to not charging Mr. Stettner was for additional work he did in trying to get the tractor operating and, in particular, he meant he was not going to charge Mr.

Stettner for the four times he removed and reinstalled the transmission shift valve, but rather would only charge him one time for this. Mr. Burak said, taken together, he wrote off, and did not charge Mr. Stettner for at least 40 hours of labour on this second account. However, in cross-examination, Mr. Burak said he intended only to charge Mr. Stettner for 20 hours, which was half of the time he spent working on the second repair. [ 34 ] Mr.

Burak admitted that he made a mistake by installing the EOV valve upside down within the transmission shift valve but said that he was working off of a poor picture of the valve, as John Deere keeps the original pictures and manuals for themselves. He knew there was still work to be done on the tractor the second time Mr. Stettner picked it up, and admitted, as well, that, in the spring of 2020, he wasn’t able to figure out the problem that left this tractor inoperable. [ 35 ] Mr.

Burak estimated that the time to remove the transmission shift valve, drain the transmission and flip the valve over would be about four hours. Regarding the metal filings in the transmission oil, and the general condition of the tractor, Mr. Burak said this was why he tried to talk Mr. Stettner out of fixing the tractor in the fall of 2019. As well, he said he made it clear to Mr.

Stettner that, given the level of contamination, it would be virtually impossible to get the oil completely clean and it made no sense to change the oil on the transmission every time he affected some repair to the tractor before the exact problem was discovered. [ 36 ] Mr. Burak charges $85.00 an hour for labour, which is about one half of what a John Deere dealer charges. Mr. Burak said, as quoted, he charged Mr. Stettner $9,000.00 for labour in November 2019. He said this, in effect, gave Mr.

Stettner a rebuilt transmission. [ 37 ] While admitting that the tractor would not move when Pattison Agriculture picked it up, he said the tractor was “somewhat operable” in November of 2019 when Mr. Stettner picked it up, albeit the shift was still rough, and he talked to Mr. Stettner about replacing the transmission shift valve. Because this part was very expensive, he did not replace it. Analysis [ 38 ] Regarding Mr.

Stettner’s claims for a refund of $2,000.00 from the total labour invoice labour of $9,451.31 on November 30, 2019 (Exhibit P-2) and of $2,446.50, which was all of the labour invoiced on May 27, 2020, in my view the two claims must be considered separately. [ 39 ] Regarding the first time Mr. Burak worked on Mr. Stettner’s 4255 tractor, I am satisfied that Mr. Burak gave Mr. Stettner an estimate of $9,000.00 for his labour, and that his invoice (Exhibit P-2) was essentially for that amount, before GST was added.

That invoice details what the labour consisted of, which included splitting the tractor into two pieces and then removing, rebuilding and reinstalling the transmission. I am further satisfied that Mr. Burak was not satisfied the tractor was completely repaired when Mr. Stettner picked up the tractor on December 17, 2019, and that he told Mr. Stettner that the gear shift on this tractor was still “rough” and that another part, a transmission shift valve (which was very expensive) might have to be rebuilt or replaced.

It is not clear from the evidence why that valve was not replaced then but, as well, the evidence does not satisfy me that there was any agreement to replace the transmission shift valve at that point.

[ 40 ] Taken together, I am satisfied that Mr. Burak, up until December 2019, provided the labour services he promised to provide to Mr. Stettner, and I am satisfied that the evidence establishes he was not negligent in the work he did up to that point. As a result, I am not satisfied that Mr. Stettner is entitled to a partial refund of the first labour invoice (Exhibit P-2), regardless of what subsequently happened with the tractor. [ 41 ] Regarding the second time Mr. Burak had the tractor, I am satisfied that Mr. Stettner returned the tractor to Mr.

Burak so that he could rebuild, replace or otherwise repair the transmission shift valve that Mr. Burak had referred to on December 17, 2019 as being the likely cause of the rough shift. That is because Mr. Stettner, in his text message to Mr. Burak on March 31, 2020, said: Hey Jeff. I think we move forward with the new valve. Let’s get it asap. Get it ordered and have them email me an invoice so I can get it paid and we get it installed Thanks. [ punctuation added ] [ 42 ] Then, after many messages back and forth between the men, Mr.

Stettner expressed his frustration at the delay in getting his tractor fixed and back to him. Mr. Burak tried to explain the delay with all the emergency calls he was getting during the delayed harvest and, as well, expressed frustration with not being able find the problem with the tractor. Then came Mr. Burak’s text on May 23, 2020. The last part of that text, referring to Mr. Stettner’s tractor said: It’s been a nightmare tractor from the start; one of the worst I have ever seen and now add in all the

part change up, I am at a point I don’t know what is causing it. If I add up all my time on it now, I am probably look(ing) at over 30 hours again. I’ve had the oil and valve in and out four time(

s) and hours in the book testing, moving gauges and head scratching. And fixes or not, I am still and never asked you to pay me for my time on this one. And still (

I) won’t charge you a dime in the end. [ punctuation added ] [ 43 ] Mr. Stettner claimed this text meant he should not be charged labour for the entirety of the second time Mr. Burak had the tractor. Mr. Burak claimed, while admitting he may have phrased this poorly, that he meant he would not charge Mr.

Stettner a dime for the extra work he did on the transmission shift valve (i.e. taking the valve off and reinstalling it four times) but would only charge him for a lesser amount, which in cross-examination he said was 20 hours of labour or half of the time - as a result a total of 40 hours - he spent working on this tractor the second time. [ 44 ] Mr. Burak’s invoice on May 27, 2019 (Exhibit P-5), which Mr.

Stettner paid, was comprised of 8 hours of labour for removing and repairing or rebuilding the transmission shift valve, 6 hours for the second removal, repair and reinstallation of this valve, 6 hours for the third removal of this valve and 6 hours for the fourth removal, for a total of 26 hours. As I accept that Mr. Stettner hired Mr. Burak on the second occasion to repair or replace the transmission shift valve, I am satisfied that Mr. Burak was entitled to receive from Mr. Stettner the lesser number of hours Mr.

Burak testified on cross-examination that he intended to bill for – 20 hours at $85.00/hour plus GST @ 5% = $1,785.00 – less the cost of any shop parts and less the cost to Mr. Stettner of any breach of contract or negligence on Mr. Burak’s part during the second repair. [ 45 ] Because Mr. Burak installed the EOV valve in the transmission shift valve upside down, and then could not find or correct that mistake, I find that this constituted either negligence or a breach of his agreement to repair or replace the transmission shift valve on this tractor.

Pattison Agriculture required eight hours to find and correct this mistake. As his dealings with Mr. Burak were in effect at an end, given Mr. Burak’s direction for him to come and get his tractor, I am satisfied that Mr. Stettner is entitled to be compensated by Mr. Burak for the amount it cost him to have Pattison Agriculture find and correct Mr. Burak’s mistake (8 hours x $160/hr. plus GST @5% = $1,344.00). [ 46 ] As a result, I find Mr. Burak was entitled to receive from Mr.

Stettner, for the second repair, the amount I have determined he was entitled to receive ($1785.00) less the cost of Pattison Agriculture finding and correcting Mr. Burak’s mistake ($1,344.00), which equals $441.00. Because Mr. Burak charged, and collected from, Mr. Stettner $2,446.50 for the second repair, which included $I26.00 for shop supplies and as a result $2,320.50 for labour, I am satisfied that Mr. Stettner is entitled to a refund of $1,879.50 ($2,320.50 - $441.00) from the payment for labour he made to Mr. Burak. III THE COST OF TRANSPORTING THE TRACTOR IN SPRING 2020 [ 47 ] Mr.

Stettner claims for both the cost of his mileage in transporting the tractor to Mr. Burak in the spring of 2020 ($605.00) and the amount charged by Pattison Agriculture for picking up the tractor from Goodeve, transporting it to Balcarres and then transporting it, a week or so later, to Mr. Stettner’s residence near Regina ($1,096.50). [ 48 ] Regarding the cost of Mr. Stettner’s mileage, as I am satisfied both that Mr. Burak was not negligent in his first repair of the tractor and that the parties agreed that Mr.

Burak was to install the transmission shift valve on this tractor on the second occasion I am not satisfied that this mileage cost was directly connected to the mistake Mr. Burak subsequently made in installing the EOV valve upside down. [ 49 ] However, in my view the transportation costs from Pattison Agriculture stand on a different footing. That is because the dealings between Mr. Stettner and Mr. Burak were clearly at an end in late May 2020 and, after Mr. Burak told Mr. Stettner to come and get his tractor and Mr. Stettner appeared quite prepared to do so, Mr.

Stettner had no reasonable alternative but to get the tractor to someone who could make it operational. Pattison Agriculture was prepared to undertake this task and successfully completed it. [ 50 ] Mr. Burak argued that he should not be responsible for this cost, as in effect the entire path taken by Pattison Agriculture with the tractor was on Mr. Stettner’s route home from Goodeve and was the same route he had taken home with his tractor in December 2019. While that may be true, nevertheless I find the cost of transporting this tractor back from Goodeve, by whoever transported it, was

a cost to Mr. Stettner which was a direct result of the mistake Mr. Burak made in rendering the tractor inoperable. [ 51 ] As a result, while I am not satisfied on a balance of probabilities that Mr. Stettner should be compensated for his mileage in initially taking the tractor to Mr. Burak in spring 2020, I am satisfied that the cost charged by Pattison Agriculture for transporting his tractor back from Goodeve is a cost that Mr. Stettner is entitled to be compensated for by Mr. Burak, in the amount of $ 1,096.50 . 1V THE COST OF CLEANING FOR MICE CONTAMINATION [ 52 ] Mr.

Rein said Pattison Agriculture cleaned the tractor as a result of what he viewed as mice contamination, and invoiced Mr. Stettner $1,496.26 for this cleaning (Exhibit P-7). He said remnants of mice feces and canola were found inside the tractor. While it may have been possible that the tractor was outside for one day while at the dealership in Balcarres, he said it was otherwise kept indoors. Further, Mr. Rein said it is possible for mice to get into a tractor at any time of the year. [ 53 ] Mr.

Stettner claimed that there was no mice problem at his acreage and his storage shed, into which he had placed mice poison, was clean and mice free. [ 54 ] Mr. Burak denied that any mice contamination to the tractor happened at his business. He said he does not have rodent problem at his farm and says that he does not farm canola, but only has a bin where a neighbour stores seed barley.

He said in November of 2019, that bin was empty. [ 55 ] Regarding the cost of cleaning this tractor, I find that the evidence is inconclusive on who had possession of the tractor when it became contaminated by mice and their remnants. There is no doubt Mr. Rein discovered the contamination, but I view the evidence of Mr. Burak as believable as the evidence of Mr. Stettner on this point. While it is possible the contamination happened at Mr. Burak’s business, I am not satisfied on a balance of probabilities that it did, and this claim is dismissed.

V PRE-JUDGMENT INTEREST AND THE COSTS OF THE PROCEEDING [ 56 ] Given the disparity between what was originally claimed and the damages that were ultimately awarded (which is over $20,000.00) I do not view this as an appropriate case for pre-judgment interest to be awarded to the plaintiff. [ 57 ] Because Mr. Stettner has succeeded, in part, on his claim, he is entitled to receive the cost of commencing this action ( $100.00 ) from Mr. Burak.

As well, at the Case Management Conference for this action, Judge Taylor on March 8, 2021 ordered that the defendant was to provide the expert CV and a statement of other work experience of the purported expert, which turned out to be Mr. Rein, to the plaintiff by April 30, 2021. Based on Mr. Simaluk’s submission, these were not provided to him until June 29, 2021. Given that this delay was raised by the plaintiff at the start of the trial but also considering that Mr.

Rein in effect was a witness whom the plaintiff ended up citing in support of his position on several issues, I view the appropriate discretionary award for a breach of the court order to be $200.00 . VI CONCLUSION [ 58 ] For the reasons stated above, Mr. Stettner shall have judgment against Mr. Burak as follows: As a refund of labour costs paid by Mr. Stettner on the second repair $1,879.50 For the cost of Pattison Agriculture transporting this tractor $1,096.50 Costs of the proceeding $300.00 _________ TOTAL $3,276.00

________________________ R. Green, J