Darren Keck v. Sandra Keck, 2017 SKPC 39

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Date: April 17, 2017 2017 SKPC 039 File: SC 503/15 Location: Regina _____________________________________________________________________________ Between: Darren Keck and Sandra Keck - and - Balgonie Early Learning Centre Inc. Self Represented For the Plaintiffs Nathanial Day For the Defendant JUDGMENT P. DEMONG, J Introduction [ 1 ] Darren and Sandra Keck are parents who reside near the town of Balgonie. The Balgonie Early Learning Centre Inc. (BELCI) is a non-profit corporation incorporated pursuant to The Non-profit Corporations Act, 1995 c.

N-4.2 SS 1997 (the Act ) and a licenced early learning and child daycare centre situated in the town of Balgonie. [ 2 ] Pursuant to a written child services agreement entered into in or around January of 2012 the Kecks enrolled their infant son in the daycare centre. They also became members of BELCI, and Darren Keck became a director of BELCI.

[ 3 ] As a result of what BELCI described as two separate incidents of a breach of the BELCI Code of Conduct, BELCI concluded that the Kecks were in breach of the written child services agreement and terminated the written agreement. [ 4 ] The Kecks allege that the defendant ‘illegally terminated’ the agreement because BELCI allegedly failed to follow the legislation or the bylaws which govern BELCI when it decided to terminate the agreement.

They describe this termination as a form of ‘discipline’ or ‘termination of a membership interest’, which they say can only be undertaken following a fair hearing as mandated by sections 119 and 120 of the Act . They allege that no fair hearing was provided and in any event they deny that they were in breach of the Code of Conduct. [ 5 ] The Kecks are suing to recover the sum of $6,385.85 which they say constitutes the additional costs that they were required to incur by placing their child in alternative care in consequence of the breach. [ 6 ] BELCI has defended the action.

First, it alleges that the Kecks are out of time to bring their action. Second, it alleges that if the relief sought by the Kecks is predicated on a failure of BELCI to comply with its governing legislation, then this Court has no jurisdiction to hear the matter, since the Act directs aggrieved persons to bring their claim to the Court of Queen’s Bench. [ 7 ] In the alternative, BELCI asserts that the matter before this Court does not involve a question of ‘discipline’ or ‘termination of a membership interest’ as those terms are described in the Act.

It says that the true issue before this Court is founded in contract. It says that the Kecks entered into a contract, breached that contract and that thereafter BELCI terminated the contract as a result of the breach. It says that it was within its rights to terminate the agreement, and if it is wrong, then it places into issue the quantum of damages claimed by the Kecks. Issues [ 8 ] There are four issues to be determined by this Court:

a) Are the Kecks out of time to bring this action?

b) If the Court finds that BELCI’s decision to terminate the contract is a form of ‘discipline’ or a ‘termination of the Kecks’ membership interest’ as those terms are set forth under the Act , does this Court have jurisdiction to grant relief?

c) If the only issue before this Court is a question of breach of contract, was BELCI in breach of contract when it chose to terminate the written agreement entered into between the parties?

d) If BELCI breached the contract, what is the proper measure of damages to be awarded to the Kecks? Evidence and Findings of Fact [ 9 ] Before I review all of the evidence presented at trial I would like to deal with issue (a). It is clear that BELCI terminated the contract it had with the Kecks on November 25 th , 2013. The Kecks commenced this action and paid their fee to issue a summons in these proceedings prior to November 25 th of 2015. The original summons dated November 24 th , 2015 was not served and the Kecks sought a new summons which in turn was issued on February 8 th , 2016.

While at first instance it may appear to BELCI that the summons that they received, and which is dated February 8th, 2016, is prima facie proof that the claim was issued beyond the two year limitation period to bring an action for breach of contract, it is not the date of the issuance of a summons that defines the limitation period in this Court. Rather, the limitation period is considered from the time that a fee is paid to issue a claim. This matter has been considered by the

Court of Queen’s Bench in Bakaluk v McGregor 2003 SKQB 386 and remains good law. Since the fee was paid to issue theclaim before the limitation period expired, the claim is not out of time. [10] Issue (

a) is answered in the negative. The Kecks are not out of time to bring this action. [11] I will now return to the evidence tendered on the remaining issues. Unless otherwise indicated, the following evidence has beenaccepted as fact. [12] On the 3rd day of January, 2012, Sandra Keck, for and on behalf of herself and her husband Darren Keck entered into a writtenagreement for child care services with BELCI. The agreement contemplated that in exchange for the sum of $550.00 per month, theirson, then age 18 months, would be provided daycare services between the hours of 7:00 a.m. and 5:30 p.m.

Monday through Friday. [13] The following terms of the agreement are central to this dispute: 6. The parent and the child care service agree that this agreement may be terminated upon one month’s written notice by either the parent or the child care service. Notice shall be received by the 1st day of the month. The fee may be paid in lieu of notice.

The parent and the child care service agree to comply with the child care facility policies and The Saskatchewan Child Care Regulationsas amended from time to time, a copy of which is available from Learning. . . . [14] The agreement purports to be a standard form ‘Agreement for Child Care Services’ provided by the Saskatchewan Ministry ofEducation. The agreement has guidelines set out on the reverse side of this one page document. Those guidelines read in part: This form is completed by the child care service and the parent prior to admitting a child.

It is a contract between parent and child careservice and serves as a legal document. . . . A new agreement must be completed whenever there is a change in number of childrencovered by the agreement, hours of care, fees or other relevant policies. [15] The child care facility policies, which are referred to in

article 6 of the agreement referred to above, are set forth in The ParentManual that is available to all parents. Page five of that Parent Manual incorporates a Code of Conduct. It reads: Code of Conduct Every adult and child should be treated with respect and dignity; it is essential that everyone conduct themselves in a courteous mannerat the centre at all times. The following behaviour will not be tolerated from clients Obscene or demeaning language or behaviour Aggressive or overly loud voice tones Threats, intimidation or physical force Inappropriate conversations Inappropriate demands or expectations that conflict with our policies or programs

Contravention of these guidelines will result in severe repercussions ranging from written warnings to termination of service. [ 16 ] A Policies and Procedures Manual Version 2.0 was also prepared by BELCI and introduced in or around April of 2012. It was also available for inspection and review by parents and it incorporates a similar Code of Conduct.

The only difference in wording is that the word ‘utmost’ was inserted before the phrase ‘respect and dignity’ in the first sentence of the Code, and the phrase ‘Including parents and staff’ was inserted after the phrase ‘It is essential that everyone’ in the second sentence of the Code. [ 17 ] In May of 2012 Darren Keck joined the board of directors of BELCI. That summer, the board of directors attended a one day conference put on by a representative of the Ministry of Education. At that conference the Code of Conduct was reviewed.

The evidence at trial suggested that not only was it reviewed but the need for strict compliance with the Code of Conduct was stressed by the Ministry. I am satisfied that Mr. Keck was in attendance at that meeting at that time and that as a board member he not only received training as it related to the Code of Conduct, but was made aware of its importance in the governance of BELCI, including the board’s affirmation that the governing principle would be ‘zero tolerance’.

There is no question in my mind that he was aware of the Code of Conduct. [ 18 ] On May 31 st , 2013 an incident occurred inside the premises of the daycare involving Darren Keck and Amanda Russell, a member of the fundraising committee of the daycare. Mr. Keck provided little in the way of details regarding this incident in his examination-in-chief and was, in my estimation, extraordinarily defensive in cross-examination when circumstances of that incident were put to him. He conceded that he attended at the facility and confronted Ms. Russell regarding a disagreement over a fundraising issue that had arisen.

He said that he approached her and was upset over the way Ms. Russell had presumably dealt with or spoke to Sandra Keck sometime earlier. He said that when he confronted her, he did not see any other parents or staff around or children in the immediate vicinity. He acknowledged that he swore at her and used what he described as “an F bomb”. He suggested that the conversation was limited to one or two sentences and was one-sided; that is to say, he did the talking. He said that he left shortly thereafter. [ 19 ] Mr.

Keck’s recollection of this incident was not quite as clear and cogent and detailed as the recollection provided by Crystal Sommer, a registered nurse and client of the daycare centre. She gave evidence at trial and I found her to be an excellent witness. She had, at that time, two children enrolled in BELCI. She described the confrontation. She says that it occurred inside of the facility. She had been there for an hour or two preparing for a fundraising event. She was there with Amanda Russell, another woman by the name of Terry Anne, and another man and his child.

They were in a horseshoe formation inside the door of the facility. There were other children milling around. She said that Mr. Keck entered in an abrupt manner yelling and using foul language. She could not recall the full conversation, but described Mr. Keck’s demeanour as aggressive. She recalled Mr. Keck speaking about his wife and the manner in which she had been treated and whether or not Ms.Russell would treat him in the same “f***ing way”. She described his voice as extremely rude and loud, perhaps an 8 or 9 on a 10 point scale.

She said that after this outburst he left, muttering to himself and again using the word “f***”. She says that he slammed the door when he left. [ 20 ] Ms. Sommer said that she was shocked that this had occurred and specifically noted that other parents in the vicinity felt the same way. She said some of the children were visibly upset and that shortly thereafter she reported the incident to Sandra Lloyd, the director of the facility, in part because of her concern that the centre was supposed to be a ‘safe place’. Where the evidence of Ms. Sommer and Mr. Keck conflict I unhesitantly accept her evidence over his.

Ms. Sommer has no financial interest in these proceedings and was subpoenaed to testify. Mr. Keck has a vested interest in understating the full nature and extent of his outburst, and, I found him to be defensive and less than fully candid on the stand. I simply did not believe him when he asserted that he was unaware that children and others were in the immediate vicinity of this confrontation. [ 21 ] Shanna Ramm was, at this time, the vice-chair of the board of directors of BELCI. Following the incident she prepared an incident report with the assistance of another member of the board of directors.

She was asked to do so in light of the fact that she was not present during the course of this incident. The board was looking for two people who would investigate independently. They conducted interviews with each of Ms. Sommer, Ms. Russell and Corey Berenyi, the other parent who was in close proximity. She met with Mr. And Mrs. Keck and specifically recalled that Mr. Keck did not wish to apologize for his actions. She recalled his specific reply during that interview; “if you are going to poke the bear, you’re going to get the teeth”!

She indicated, however, that he agreed to apologize to the children and parents who were in attendance at the time. [ 22 ] Following her investigation she reported to the board and in her report she concluded that Mr. Keck had approached Ms. Russell

[ 22 ] Following her investigation she reported to the board and in her report she concluded that Mr. Keck had approached Ms. Russell abruptly and in a confrontational manner and had used multiple curse words demanding a response. Ms. Russell invited him to speak to the Chair of the Board and Mr. Keck replied with some more curses tossed in, at which time some of those present advised him that children were present and that thereafter he left, slamming the door behind him. Ms. Ramm concluded that Mr. Keck had in fact been in breach of the Code of Conduct.

She recommended a letter of warning - a final warning - and urged that any further violation should result in termination. [ 23 ] The board accepted her recommendations and forwarded a letter to Darren Keck dated June 26 th , 2013. It reads in part: Through our investigation, it was determined that you were in violation of the Code of Conduct as outlined in the parent manual. As a result of your actions, please consider this letter a final warning. It is expected that there will be no further actions that violate the Centre’s code of conduct. You will treat every adult and child with respect and dignity.

You will conduct yourself in a courteous manner at the centre or while representing the Centre at all times. You will abstain from using obscene language, aggressive voice tones, threats and intimidation. It is further noted that in your post as a member of the Board of Directors, you are held to a higher standard and are expected to lead both clients and staff by example.

Any further acts of misconduct, failure to observe the Centre’s Bylaws or policies will lead to further disciplinary action up to and including termination of your child-care services. . . . [ 24 ] In the fall of 2013 BELCI had concluded that they would have to make certain changes to their fee reduction program. Prior to this time volunteers could earn a monetary credit by providing volunteer services for the daycare. While this matter was not clearly articulated at trial it became apparent that BELCI intended to introduce mandatory fundraising.

Volunteering could reduce the monthly fee to be paid but if a member’s hours were insufficient, there would be an increase of $100.00 to the monthly fee for the services rendered. Members were asked to sign a new contract without the full plan being known. A new contract would, of course, be required to be signed since a potential increase in fees was anticipated. A fee increase, in accordance with the reverse side of the contract, mandates a newly signed contract. [ 25 ] It is clear that Mr.

Keck took issue with what he considered to be either an ill-advised scheme, or alternatively, a forced requirement to sign a new contract on terms that he was not prepared to accept. It is also clear that Mr. Keck took the initiative to make his personal views known to the other members and, on what has been described as several occasions, he attempted to stop members on their way into and out of the daycare centre in an effort to persuade them to his way of thinking. Amanda Haas was one such parent. She had two children in the daycare centre and she said that she had been confronted by Mr.

Keck outside of the gates of the daycare for precisely this purpose. While she described his demeanour as angry and frustrated, she was not offended by the contact. She was in favour of the mandatory fundraising scheme and found BELCI to be a wonderful daycare. [ 26 ] Sandra Lloyd was and still is the Executive Director of BELCI. She is in charge of the day to day operations of the centre which operates with a staff of 11. It can support 52 children. She deals with office duties, contracts, client concerns and staff oversight. Occasionally she will assist with helping the children.

She indicated that following the first episode with Mr. Keck in May of 2013, and then later in the fall, as BELCI was gearing up to change the terms of the child services contract she said that she had received notice from staff and other parents that Mr. Keck had tried to engage other parents outside the gates of the facility in order to persuade them not to sign the new agreement. She said that from time to time parents had phoned her inquiring as to whether or not Mr. Keck was in attendance, in order that they could

schedule a pick up without having to be confronted by him. She said that she also received notes from her staff indicating that they felt uncomfortable with his attendance at or near the centre. [ 27 ] On November 21 st of 2013, Ms. Lloyd had worked at the centre from between 6:30 a.m. until approximately 3:15 p.m. and then returned at about 5:15 p.m. to pick up her child. She said that she walked in the front door of the centre and into what has been described as the ‘gym’, a room of about 20 feet by 30 feet. As she walked in she saw Mr.

Keck yelling out loud and speaking to another client by the name of Rhonda Graham. She overheard him yell “I am going to sue John’s ass”! She noted that there were between five and ten children in the immediate vicinity. Danielle, one of the employees, was also there. Ms. Lloyd said that he looked “really angry”, and was

upset and mad. She described the volume of his voice as yelling, about a nine on a ten point scale. She said that she was fearful, but did not elaborate. While she could not say how long the episode had been going on before she entered the premises, the confrontation ended quickly thereafter, with Mr. Keck grabbing his son and leaving the premises. While Mr. Keck acknowledged that a confrontation took place at this time and that he expressed some dissatisfaction, he denied that he said “ I will sue John’s ass”. The Keck’s have invited the Court to conclude that Ms.

Ramm was, in large part, lying. [ 28 ] I am not prepared to accept that assertion. Ms. Lloyd came across as an articulate and honest witness who was concerned with the immediate and long term impact of having a client who could not contain his temper. Where her evidence conflicted with Mr. Keck’s evidence, I prefer hers. I dismiss Mr. And Mrs. Keck’s suggestion that she was lying. For reasons which will shortly become apparent, the old adage ‘people who live in glass houses should not throw stones’ is applicable. [ 29 ] Ms. Lloyd immediately reported this incident to the board.

The board held a special meeting the next day, a Friday, and concluded that it would terminate the Keck’s child care contract. By correspondence dated November 25 th , a Monday, the Kecks were notified of this decision. The letter reads in part: This letter is a follow up to an incident that occurred on November 21, 2013 and behaviour during the week of November 18, 2013 at the Balgonie Early Learning Centre Inc. (BELCI) It has come to the attention of the Executive Director and Board of directors that Darren has been in violation of BELCI’s Code of conduct.

Specifically, on November 21, 2013 Darren was witnessed displaying the following behaviours that are not tolerated from clients: Obscene or demeaning language or behaviour Intimidation Inappropriate conversations As noted in BELCI’s parent manual ‘Contravention of these guidelines will result in severe repercussions ranging from written warnings to termination of service’. It has also been noted that during the week of November 18, 2013 Darren was witnessed interfering with clients picking up their children resulting in a stressed environment for the children, clients, and staff of the centre.

On June 20, 2013 Darren received a final warning in regards to actions that were found to violate the Code of Conduct as per the Parent Manual. . . . For the above reasons the Board of Directors voted unanimously Resolution 11_22_2013_X to terminate your childcare services effective immediately. As a result of Darren’s violation of the code of conduct fees paid for November will not be reimbursed. However, it has been decided that because of the necessity for immediate termination of your services BELCI will issue you any deposits paid to the centre.

Darren and Sandra, it is expected that you will not be on BELCI’s premises or disrupt BELCI’s services once you have received this notice. Failure to abide by this expectation will be deemed as trespassing. . . . [ 30 ] The Kecks subsequently received back their child’s items which had been left with the centre and did not return.

[ 31 ] Much of the time spent at this trial dealt with steps taken by the Kecks after this termination to try to convince BELCI to reconsider its decision, and further steps by each to both advance and/or restrict the Kecks’ membership and directorship with BELCI. In my view, none of this is particularly relevant to the issue of termination of the contract. It is, however, directly applicable to the issue of ‘discipline’ and ‘membership interests’ set forth in the Act . Suffice it to say, that in the ensuing months, the board did not change its mind notwithstanding the Kecks’ entreaties and Mr.

Keck’s membership and directorship were eventually cancelled by the board. There was some suggestion that there is a parallel action commenced in the Court of Queen’s Bench dealing with these ancillary issues. [ 32 ] In consequence of the termination, the Kecks say they incurred damages which they identified as the difference between what they would have paid for day care services had the contract not been terminated and the actual out of pocket expenses they incurred in order to mitigate that loss. The costs they say they incurred are broken down as follows:

a) loss of volunteer credit hours that were earned at BELCI and which could be applied to a fee reduction in the year 2014 - $ 250.00

b) failure of BELCI to reimburse for the remainder of the month of November 2013 (4 days at $29.75) - $ 119.00

c) loss of income suffered by Darren by having to take time off work in November and December to care for child (4 ½ days gross income at $210.56 per day plus 5% lost matching RSP contribution by employer) - $ 994.96

d) one time registration fee to enroll child in Prairie Dreams daycare - $ 90.00

e) daycare fees for Prairie Dreams daycare at $545.00 per month from January through until the end of June 2014 - $3,270.00

f) additional mileage travelled to place child in Prairie Dreams daycare at stated rate of 34.5 kilometres travelled per day multiplied by the Public Service Commission travel allowance of .4065 per kilometre ($14.02 per day multiplied by 21 days per month on average multiplied by 6 months) - $1,766.52

g) daycare costs paid to Jillayne Keck for the months of July and August 2014 - $1,142.00

h) travel expense incurred in transporting child to Jillayne Keck at same rate as in (

f) above (42 days multiplied by $14.02 per day) - $ 588.84

i) daycare costs incurred at new daycare in Pilot Butte provided by Amanda LeBerge ($625.00 per month for September and October, 2014 and then $650.00 per month thereafter until end of August 2015 - $8,400.00

j) additional per diem travel expenses incurred by transporting child to Pilot Butte (15 kilometres multiplied by $.4065 per kilometre multiplied by 21 days per month multiplied by 12 months) - $1,536.57

k) fee paid to Laberge by reason of failure to give one month notice for September of 2015- $ 650.00

l) fee paid for child care to Nicole Deck for July of 2015 - $ 175.00

m) home based daycare deposit fee for Laberge - $ 100.00 Total - $19,082.89 [ 33 ] By comparison, Mrs. Keck suggested that the amount that they would have spent had the contract not been terminated would have been the sum of $595.00 per month (a revised amount which was acknowledged as being paid by the Kecks for daycare services prior to the termination) multiplied by 21 months, or $12,495.00. The difference, by my analysis of the evidence presented by the Kecks would be $6,587.89. [ 34 ] I have some concerns with the figures presented by the Kecks. First, they sought Mr.

Keck’s gross income for his time off rather than his net income. While I was not provided with his income tax rate, I am not prepared to re-open the trial for this limited purpose. I estimate that he was in a 20% tax bracket. The actual amount lost from work after tax would therefore be closer to $796.00 for a net reduction of $199.00. Second, no explanation was given as to why the Kecks paid for daycare for July of 2015 to Amanda Leberge and also to Nicole Deck. The latter loss has not been proven to my satisfaction and the amount should be reduced by a further $175.00.

Third, it would appear that the September 2015 payment in the sum of $650.00 arose because the Kecks failed to give one month’s notice. I fail to see why that failure and the ensuing additional cost would have to be borne by BELCI and I would reduce the amount claimed by the further sum of $650.00, all for a net reduction of the Keck’s costs equal to $1,024.00. The net additional cost to the Kecks would therefore be $5,563.89. [ 35 ] The Kecks have assessed the expected cost of daycare at BELCI for the years 2014 and 2015 at $595.00 per month.

This figure fails to consider that BELCI was going to, and did, implement a mandatory volunteer program. Failure to comply would have added an additional $100.00 per month to the monthly fee. Because the Keck family was so vociferously against this amendment I can come to no other reasonable conclusion that they would not have participated. Even if they had, they would have incurred 12 hours of mandatory volunteer work at a presumed rate of $8.50 per hour, a rate far less than what Mr. Keck could earn as a truck driver. In my view this additional amount should be taken into consideration.

My recollection of the evidence is that this new program was to be put into effect in March of 2014 and in consequence, the costs that the Kecks would more likely have incurred if they had stayed at BELCI would have been increased by a further $1,800.00 ($100.00 multiplied by 18 months). Therefore, if the Kecks were to prove successful on the entirety of their claim the best they could hope to receive would be reduced by a further $1,800.00, for a net potential loss of $3,763.89. [ 36 ] I spoke of ‘glass houses’ earlier in this judgment.

When Sandra Keck gave her evidence, she advised the Court that they left Prairie Dreams at the end of June of 2014 because they needed a back-up facility; that they had been looking for something closer; and in any event, her hours of work were changing effective September 1 st . In cross-examination she was asked if, in fact, she and Mr. Keck had their contract terminated by Prairie Dreams. Her answer was “no”. That answer was a lie. It speaks very poorly to her credibility.

As a result of that answer, BELCI was tasked with calling an additional witness, Michelle Gendron, who was, at all relevant times, the Executive Director of Prairie Dreams. Ms. Gendron confirmed that on January 8 th , 2014, Prairie Dreams felt compelled to write a letter to the Kecks indicating that the Kecks had conducted themselves inappropriately by talking to one of the staff members disrespectfully. On May 27 th , 2014, another letter was sent to the Kecks complaining that Mr. Keck had verbally harassed the staff and that in consequence, only Mrs. Keck would be allowed to pick up and drop off their child.

The staff felt uncomfortable with Mr. Keck’s attendance at the centre. On June 3 rd , 2014, citing its harassment policy, Prairie Dreams gave notice of termination of the contract on that basis. While it noted that its policy suggested immediate termination, it was prepared to let the contract expire on June 30 th to allow the Kecks time to access alternate care for their child. [ 37 ] Sandra Keck lied to the Court under oath. This has, perhaps surprisingly, only been proven to have happened before me during trial in one other instance in the last four hundred or so trials over which I have presided.

In that instance, the Court was spontaneously provided with an abject, comprehensive and profoundly heartfelt apology. No such apology was provided by Sandra Keck. Her action is contemptible. Had BELCI or her counsel, Mr. Day,

pressed this matter I would have been hard pressed not to cite Sandra Keck for contempt in the face of the Court. I was tempted to in any event. I am hopeful that, as she reads this decision, she understands both the nature and the gravity of her behaviour. I will leave it at that. Analysis and Law [ 38 ] The Kecks argue that they were not provided with a fair hearing before the contract was terminated. They refer to sections 119 and 120 of the Act. They argue that because

section 120 of the Act entitles a member of a corporation to a fair hearing, and because the termination of the contract would constitute termination of a ‘membership interest’, they are aggrieved and seek compensation. [ 39 ]

Section 121 of the Act entitles an aggrieved member to apply to the Court pursuant to

section 225 of the Act .

Section 225 of the Act grants to the Court significant powers. The Court may make an order to rectify the matters complained of, and that includes the authority to compensate an aggrieved person. [ 40 ] However,

section 2 of the Act defines ‘Court’ as meaning the Court of Queen’s Bench. Were I to conclude that the termination of the agreement is either ‘discipline’ or a ‘membership interest’, I would not have any jurisdiction whatsoever to make an award for compensation or any other ancillary relief. That authority rests with the Court of Queen’s Bench. Because I have no jurisdiction to determine this issue, the plaintiffs’ claim, seeking relief under the Act , is dismissed. [ 41 ] Issue (

b) is answered in the negative. I can make no inquiry into, and I can make no award for compensation to the Kecks by reason only that they were disciplined or had their membership interests adversely impacted upon by the decision of BELCI to terminate the contract.

I have no jurisdiction to do so. [ 42 ] Notwithstanding my conclusion above, and because the Kecks have also claimed in contract, I must determine whether or not BELCI was in breach of contract when they terminated the Kecks’ contract. [ 43 ] I am satisfied that the contract that the parties entered into could be terminated on either one month’s written notice by either party, or alternatively, if either party failed to comply with the child care facility’s policies.

I am satisfied on a balance of probabilities that the Kecks knew, or certainly ought to have known that one of those policies included an obligation to abide by the Code of Conduct. That Code of Conduct indicated that obscene or demeaning language or behaviour, aggressive language, and intimidating conduct would not be tolerated and I am satisfied on a balance of probabilities that Mr. Keck violated that policy once, and was warned, and then violated that policy a second time. [ 44 ] I am satisfied that compliance with that policy can be considered as an essential term of the contract.

While I do not want to overstate this, I have no doubt that parents who engage the services of a daycare and deliver up their infant and toddler children to strangers outside of their home fear that their children may be exposed to an environment or to people that are, in no particular order, rude, obnoxious, uncaring, foul, intimidating or dangerous. I have no doubt that employees who work in that environment are deeply concerned that this kind of conduct, by parents, creates an extraordinarily uncomfortable work environment.

I have no doubt that a daycare facility’s reputation, and its ability to attract clientele, would be adversely affected if they allowed this sort of conduct to occur at their facility. I have no doubt that it is for precisely these reasons that BELCI introduced the Code of Conduct. It was saying to any prospective parent “your contract is conditional upon compliance with this Code, we will honour that code and you must promise to abide by it, and any of your conduct which is inimical to it will preclude you from receiving the services we offer”.

In my view, the contract cannot be construed in any other way but to treat, as a breach of contract, repeated violations of the Code. [ 45 ] I am satisfied that Darren Keck’s second violation of the Code of Conduct, after having been warned once of the likely consequences of a repeat violation constituted a breach of contract on his part. It was clearly open to BELCI to terminate the contract in consequence of that breach and it did so, and, as a result, the Kecks have no legal right to seek damages. Even if I had concluded that Mr.

Keck was not in breach of the contract, it would have been open to BELCI to terminate the agreement pursuant to the contractual

provisions set forth in that agreement - either by giving one month’s notice of intent to terminate the agreement, or by payment of the fee in lieu of notice. On this last point, I would note that BELCI did, in fact, pay a one month fee to the Kecks although it did so only recently, and presumably, in an effort to err on the side of caution. [ 46 ] Issue (

c) is answered in the negative. BELCI was not in breach of contract when it terminated the agreement following Mr. Keck’s breach of an essential term of the agreement. [ 47 ] If I am wrong in determining that I have no jurisdiction to award compensation pursuant to the Act , and had I concluded that BELCI’s decision to terminate the contract was either discipline or a termination of a membership interest, I would have awarded the Kecks damages in the sum of $3,763.89. If I am wrong in concluding that BELCI was not in breach of contract, then, and in any event, I would answer issue (

d) by concluding that the damages to which the Kecks would be entitled to would equate to nil dollars, in light of BELCI’s decision to render the sum of $595.00 to the Kecks, which constitutes the ‘fee’ in lieu of notice under the agreement. [ 48 ] For all of the foregoing reasons, the claim is dismissed. BELCI has been successful in the defence of this action and it is entitled to costs. Those costs, pursuant to

section 31 of The Small Claims Act, 1997, should be limited to those out-of-pocket expenses incurred by it in defending this action, absent lawyer-related costs, by which I mean, absent the hourly fees that may have been charged to it by its counsel but inclusive of any disbursements incurred. BELCI is directed to serve and submit its claim for costs to the Court, for the Court’s consideration, on or before April 28 th , 2017. If costs are abandoned, BELCI should advise the Court in writing as soon as possible. _____________________ P.

Demong, J IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Date: May 3, 2017 2017 SKPC 039 File: SC 503/15 Location: Regina _____________________________________________________________________________ Between: Darren Keck and Sandra Keck

- and - Balgonie Early Learning Centre Inc. Self Represented For the Plaintiffs Nathanial Day For the Defendant ADDENDUM TO JUDGMENT COSTS AWARD P. DEMONG, J Introduction [1] Judgment in this action was given on April 17, 2017. The defendant was successful in defending the action and I invited the defendant to submit its claim for costs in accordance with my direction as set forth in paragraph 48 of that judgment. That submission has been presented to the Court for its consideration with an affidavit in support.

I have reviewed the submission and I am prepared to allow the following costs in accordance with s. 31 of The Small Claims Act, 1997 , which authorizes the Court to award costs for, in essence, reasonable out-of-pocket expenses incurred in the prosecution or defence of a claim. [2] I award witness fees paid pursuant to a subpoena to each of the defence witnesses Amanda Haas, Crystal Sommer, John Winter, Raeanne Skihar and Shanna Ramm which equates to the sum of $75.00.

As some of these witnesses had to travel to Court from a distance of in excess of ten kilometres (each of them are from in and around the Balgonie area), I award their cost of travel at a per kilometre stated rate of 42.83 cents per kilometre as set forth in The Saskatchewan Public Service Commission regulations (Travel Allowances).

I award $76.68 for Michelle Gendron, $68.70 to Sandra Lloyd, which includes a $14.00 dinner per diem, $40.70 to Shanna Ramm, which sum is also inclusive of a $14.00 per diem for dinner, and $109.10 for Kevin Belitski’s travel and parking costs while at trial. [3] The only other disbursement sought is for photocopying and paper expenses at the stated rate of $0.25 cents per copy, a rate which the Court finds to be reasonable. The amount sought is $1,580.38, which comprises the photocopying done by BELCI directly and that done by its lawyers in assisting with this matter.

I note in passing that this trial was paper intensive and the law firm acting for the defendant filed an expansive document book and supplementary document book and these would have had to have been duplicated for both the plaintiff and the defendant. While the number of photocopies appears rather large at first instance, I would note that the document books submitted certainly assisted in the smooth and effective delivery of evidence at trial.

Of the amount sought, I would simply reduce that sum by $150.00, for a total of $1,430.38 – this in light of the fact that the billing document provided by the law firm to its client included, perhaps by oversight, the additional sum of $150.00 for online legal research, something which I am not prepared to consider in making my award. [4] The defendant shall have judgment for its costs in the sum of $1,800.56 which I direct be paid immediately. ____________________ P. Demong, J