Brody v. Lorna Rushfeld, 2014 SKPC 151

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2014 SKPC 151 Date: July 28, 2014 File: 08/13 Location: Estevan _____________________________________________________________________________ Between: Brody and Lorna Rushfeld - and - RM of Coalfields Self-Represented For the Plaintiffs D.M. Zeggelaar For the Defendant _____________________________________________________________________________ JUDGMENT K.

BAZIN , J _____________________________________________________________________________ [ 1 ] In my previous ruling on the issue of the limitation period, I found that on the evidence at that time there was a contract entered into between the parties on April 12, 2012 when Mr. Brody Rushfeld attended the council meeting, and the price of $6.00 per yard was established. Mr. Rushfeld testified that based on this, he then submitted a bill to the RM, as instructed. [ 2 ] I found that the contract is completed and made at this stage, when there is an agreement as to $6.00 a yard. That issue has

been ruled on and decided. [ 3 ] While I had previously decided that a contract existed for the purpose of the sole issue of the limitation period, in which the Defendant RM did not call any evidence, the parties both called a number of witnesses that testified as to whether there was still in fact a contract, in addition to testifying as to the RM’s counterclaim. The RM also argued in their brief that there was no contract.

As such, if I am in error in the procedure, which had been agreed to by the parties to deal with the limitation period first, were I found that a contract was made on April 12,2012, considering the additional evidence and argument put forth by both parties as to the existence of a contract, I would have still found that there was a contract establishing the price between the parties as of April 12, 2012, being $6.00 a yard for the clay. [ 4 ] What came out in evidence through the RM Reeve, Mr.

Lainton, was that in November 2011 he was acting under his emergency powers, which I infer he was referring to The Emergency Planning Act , S.S. 1989-90 Ch. E-8.1.

When asked in re- examination if the RM had any legal obligation to provide assistance to the ratepayers during the flooding, he stated he had no idea, but he was going under the emergency measure powers when he acted, during the flood. [ 5 ] This evidence makes moot any question as to whether or not the RM contracted with the Rushfelds for their clay, in the classic sense, as under The Emergency Planning Act , s. 21, they were obligated to compensate the Rushfelds for the RM’s removal and use of the Rushfelds’ clay. The RM did not need to contract with the Rushfelds for the removal of the clay under the Act .

They did have to compensate the Rushfelds, or contract to an agreed upon amount of compensation. Failing any agreement they would have to follow the arbitration guideline of the Act. [ 6 ] As held earlier on the issue of the limitation period, the contract is formed on April 12, 2012 where I found that there was an agreement to pay $6.00 a yard. The Emergency Planning Act was in effect, and the Reeve testified that he was acting under his emergency powers during the emergency. [ 7 ] The RM argued that a single RM councillor, in this case Ms. Behm, could not contract on behalf of the RM.

Whether or not a single councillor or the Reeve could bind the RM by way of contract outside of The Emergency Planning Act is not relevant as the RM was acting under The Emergency Planning Act , which binds the RM to compensate parties for property utilized. [ 8 ] The RM in argument states that the clay was not used in response to an emergent situation but that the evidence shows that the purpose of building up the road was to create a more effective flood barrier for the Plaintiffs’ property in the event of a future emergency.

I do not accept the RM’s position as the evidence was overwhelming that the road was built up as part of the RM’s attempts to stop flooding in the area, which included the Plaintiffs’ farm yard and to allow the public and the ratepayers use of the road, particularly as it was a school bus route and as well to allow access to oilfields in the area. [ 9 ] The fact that the building up of the road had a dual purpose and did have some future planning involved, for future flood control, I find that the evidence has shown that the reason for the removal and the actual use of the Plaintiffs’ clay was as per s. 21(1) of The Emergency Planning Act , to prevent, combat or alleviate the effects of an emergency. [ 10 ] Reeve Lainton was asked what was his understanding why they could take clay from the Rushfelds’ land.

He said that Councillor Ingrid Behm had advised that they had permission to take the clay from the Rushfelds’ land. Councillor Behm stated that she had no doubt whatsoever that the Rushfelds would be treated like everyone else and be paid for the clay removed from their land, when she talked about the RM using their clay. She testified that her recollection was that it was discussed at council and a motion was made that the RM would use the Rushfelds’ clay.

She testified that she does not know when the RM ever did not pay when they used a person’s material. [ 11 ] From this statement, and the actions of the parties on April 12, 2012, I find that it supports my earlier finding that the RM council had approved the use of the Rushfelds’ clay. [ 12 ] Reeve Lainton’s testimony was that there was no agreement to pay the Rushfelds for their clay, and that any discussion at the

April 12 th meeting was simply to tell Mr. Rushfeld to submit his bill to PDAP for payment. [ 13 ] Of note is that in cross-examination he testified that the Rushfelds’ bill has never been put forward to council as a whole to vote on, either to pay it or not pay it. [ 14 ] Reeve Lainton had no explanation when asked why the Rushfeld account has never been presented to council for a vote. This supports the position that the RM had already agreed to pay for the clay at $6.00 a yard, but for whatever reason they simply are not paying for the clay as agreed. [ 15 ] Mr.

George Gonas testified on behalf of the Plaintiffs, both as to the clay that the RM paid him for, as well as whether he received a bill for work done by the RM. Reeve Lainton testified that the RM never received an invoice from Mr. Gonas. Mr. Gonas testified that he never sent a bill for clay to the RM, and he simply received a cheque in the mail for his clay at $6.00 per cubic yard. He testified that he was asked if the RM could take some clay and he said go ahead and take the dirt. There was no discussion as to quantity or price.

He simply received a cheque in the mail later with the quantity and the price set out. This was done in April or May 2011, as the road near his property was built up in the mid-summer of 2011. [ 16 ] Reeve Lainton testified in relation to the Gonas account, that there was no specific motion to pay his account, other than it was paid through a general motion and approving all accounts and this would have been done at a council meeting, even though Mr. Gonas never sent in an account.

RM minutes filed by the Plaintiff on March 7, 2011, does show the motion that council make payment to George Gonas and Marvin Olson for clay taken from their properties for the building up of a road. There are no amounts mentioned. Reeve Lainton testified that he told Mr. Gonas first that he would be paid for his clay before they took the clay. I infer from this, and there’s no evidence to the contrary, that there is no official motion establishing a contract with Mr. Gonas, with the RM, and the authority to make the contract is directly through the Reeve.

From this I infer that Reeve Lainton had the authority of council to make arrangements, under emergency powers to take the clay and eventually pay for it. [ 17 ] The manner in which the clay was obtained and paid for by the RM, as to the Gonas matter is relevant to support the Plaintiffs’ testimony that a contract to pay them for clay at $6.00 a yard was reached with the RM at the April 12, 2012 meeting. This is what the RM paid others around the same time. [ 18 ] Mr. Rushfeld testified that the RM told him, and Ms. Pelton stated that the Reeve advised him to take it to PDAP as they pay out 90%.

I infer from this that they told him to submit it directly, as opposed to the RM submitting it. This supports Mr. Rushfeld’s testimony. It is clear that Reeve Lainton, and the Administrator Ms. Pelton, were not aware of how PDAP worked as Mr. Rushfeld testified his claim was rejected as it had to do with the RM’s road, not his. It also supports Mr. Rushfeld’s testimony that the RM had agreed to pay, as they are directing him to a procedure that overall, the RM would receive the most benefit, being how much they might have to pay out of their own funds, by the Rushfelds submitting it directly.

It is again an opportunity for the RM to categorically state, we are not paying you, as we have no agreement with you to pay for the clay, so you have to get your money from the government. Or as the RM appears to be saying now, “we thought the clay was free”. [ 19 ] I find that what the RM was doing is simply trying to pay out as little directly to Mr. Rushfeld by telling him to first direct his bill to PDAP. There is nothing wrong with this, as if PDAP would pay a higher percentage directly to Mr.

Rushfeld than the RM could receive, this would be less cost to the RM. [ 20 ] We know that the RM bought clay, at $6.00 a yard from Mr. Gonas in early 2011 to build up the road adjacent to his land, done in the mid-summer of 2011. We know from the RM minutes, March 7, 2011, that the RM also bought clay from Mr. Olson, being clay taken from his property. [ 21 ] Reeve Lainton, testified that he was advised by Councillor Behm that the RM had permission to take the clay from the Rushfelds’ land. From Councillor Behm’s testimony, it is inconceivable that Reeve Lainton thought they could simply take the clay for

free, all the while they always pay everyone else. This includes Mr. Gonas who simply said, go ahead and take the dirt, nothing more, which might be interpreted as taking it for free. Yet he, without sending a bill gets a cheque in the mail, for his clay with a price calculated by the RM, that he did not have any input on. This conduct by the RM is consistent with the Reeve and councillors exercising their powers under The Emergency Planning Act . [ 22 ] Reeve Lainton knew, or should have known that the RM under the emergency powers could take what they needed but would be required to compensate the parties.

This explains why the RM is not signing contracts with people in this emergency situation before taking clay, but only inquiring, I find out of courtesy, to take the clay. [ 23 ] The Plaintiffs’ position is supported by Mr.

Rushfeld’s testimony at the commencement of the matter when he testified in relation to the limitation period, that when he advised the RM that PDAP would not pay his account, Reeve Lainton tells him that they could not afford to pay his account, at that time as they were awaiting money from the government for expenses for the flooding. [ 24 ] The Rushfelds are not told that the RM has no contract with them to pay them anything, or that the RM is not going to pay them. One would have thought that that was the simple answer to the Rushfelds.

If Reeve Lainton honestly believed that he, on behalf of the RM did not contract with the Rushfelds as to the $6.00 a yard price he would simply have said this.

This is not done, and the Rushfelds are advised not that they do not have a contract with the RM for payment of the clay, but are told that the RM just did not have the money to pay at that time. [ 25 ] Lorna Rushfeld testified that, after seeing that the RM donated $50,000.00 to the Estevan Hospital, she spoke to Reeve Lainton which I understand to be in the fall of 2012, and is told by Reeve Lainton that the RM had not received the provincial disaster money when asked when the RM would pay. He also told her that they should be grateful for the work done by the RM.

If there was no contract as to the price reached with the RM, one would expect Reeve Lainton to simply tell Ms. Rushfeld that as well. Again he was the one who was speaking with Mr. Rushfeld in which Mr. Rushfeld testified that the contract as to the price was reached in April 2012. The testimony of what Mr. and Ms. Rushfeld were told by Reeve Lainton was not challenged, and in particular Reeve Lainton had the opportunity to deny these conversations, but the matter was not put to him to challenge Mr. and Ms.

Rushfeld’s testimony. [ 26 ] As such, as stated earlier, if I am in error in the procedure, by considering the Limitation Act issue ahead of the balance of the trial, considering the additional evidence, the most significant being that the RM was operating under The Emergency Planning Act , I would still find that there was a contract establishing the price between the parties as of April 12, 2012, being $6.00 a yard for the clay. [ 27 ] The additional evidence makes it clear that the basis for the contract was under The Emergency Planning Act , and the only agreement to be reached is the eventual compensation.

RM of Coalfield ’s Counterclaim [ 28 ] The RM had put for th a claim for set off, and I allowed them to amend their defence at trial to formally have their set off claim under a counterclaim as required by the Act . [ 29 ] The RM’s counterclaim is for the cost of work done on the RM’s road, which is adjacent to the Plaintiffs’ land.

The bulk of the claim is for work done in this area due to the 2011 flood, and the Defendant alleged this was done to protect the Plaintiffs’ home and yard site. [ 30 ] The RM put forward time sheets of employees that worked on the RM’s road adjacent to the Rushfelds’, hereafter referred to as the “Rushfeld Road”. In addition the RM filed the indemnity statement for Councillor Ingrid Behm, highlighting the period between April 2011 to December 2011, claiming this as against the Rushfelds in the RM’s claim for set off, if they are found liable for any funds owing to the Rushfelds.

The RM is saying that all the money paid to the Rushfeld’s area councilor, Ms. Behm, during her term between April 2011 to December 2011 is to be paid by the Rushfeld’s. No evidence, or law, was put forward to support the RM’s claim that one set of ratepayers would be responsible for a councillors entire indemnity paid in the fulfilment of their elected duties to the entire RM.

[ 31 ] Valerie Pelton, the present RM Administrator, and previous acting RM Administrator in March 2011, testified that the time sheets entered only represented about 30% of the work done on the Rushfeld Road. She testified that it was someone else in the office, Gloria, who wrote on the time sheets “ Rushfeld ” on the bottom of the time sheets where the RM alleges work was done on the Rushfeld Road, which is part of the RM ’ s counterclaim. She testified that these time sheets were submitted to PDAP, for rebate from the government.

She testified that the time sheets and work indicated had to be to a specific area in order to qualify for reimbursement. The time sheets total approximately $10,000.00 and the RM was paid back around $3,900.00 from PDAP. The RM’s position is that the balance is owed by the Plaintiffs. [ 32 ] Under cross-examination, it is clear that there is no reliable evidence that the time sheets relate to work done on the RM’s road, adjacent to the Rushfelds’ land. Ms. Pelton used terms like “possibly” and “I guess”, when cross-examined about the time sh eets being related to work done to the Rushfeld Road.

By way of example, the first time sheet dated April 18, 2011, shows 9 ½ hours by the foreman, Leonard, along with the RM Councillor Behm, checking roads. Under cross-examination, Ms. Pelton had no answer as to why it would take the foreman and the councillor 9.5 hours to check one mile of road. This is an example of the weakness of the RM ’ s evidence by Ms. Pelton, that the time sheets are for work done to the RM road adjacent to the Rushfelds ’ , which formed part of the RM ’ s claim for set off. The time sheets were compiled by Ms.

Pelton, and it is clear from her testimony she has no direct knowledge as to whether or not this work is actually done in relation to the Rushfeld Road adjacent to the Rushfelds ’ property. While there are a few items on the time sheets that directly indicate work is being done near the Rushfeld property, it is also clear that much of the time sheets indicate directly themselves that the work is not related to the Rushfeld Road.

One additional example is the May 31, 2011 time sheet that indicates a road tour, going to Estevan for parts, and luncheon meetings with councillors from division four. [ 33 ] There is a May 31, 2011 time sheet for shop maintenance for five hours, however the RM attributes all this time to the RM’s road by the Rushfelds’, and asks that the Rushfelds be responsible for these expenses. [ 34 ] Ms. Pelton was asked if time sheets were totalled for George Gonas, an unrelated party, as he also had work done on the RM road adjacent to his land, and Ms.

Pelton agreed that the work done on the road adjacent to his was somewhat similar to the work done on the road adjacent to the Rushfelds ’ . However she was not sure if time sheets were totalled for that work. [ 35 ] Ms. Pelton in cross-examination admitted that she cannot attribute the time to the Rushfeld Road as indicated on the time sheets in Exhibit D3. She stated in agreement under cross-examination that she could not say what time in the time sheets is actually time spent on the road adjacent to the Rushfelds’. This calls into question the credibility of Ms.

Pelton, as she testified that she submitted these time sheets to the government as being related to the Rushfeld Road or area, when from her testimony on cross-examination she could not attribute it to this area. Ms. Pelton also on cross-examination stated that no one else in the RM had been asked to pay the RM back for any work done on t he roads adjacent to their land, during the flood, or any other time. [ 36 ] Ms. Pelton was unable to explain when asked, why no other people are asked to pay back the RM for work done on roads adjacent to their land, other than the Rushf elds.

I infer from her testimony that the only reason is because the Rushfeld s sued the RM for payment for the clay the RM removed from their land, so that the RM could build up its road, adjacent to the Rushfelds’ farm, due to the flood. No bill is sent to the Rushfelds or any indication that they are required to pay these costs to the RM, and it only shows up in their statement of defence and counterclaim in this action. [ 37 ] I find that the RM has not proven any aspect of their claim for set off, as set out in their counterclaim.

The evidence is that any work done by the RM, on its own road was simply regular RM work that was done for tax payers in the RM, in light of the flood. The RM made the decision what if anything they would do to the road, in light of the 2011 flood. [ 38 ] As testified to by Leonard Johnson, for the Plaintiffs, the RM foreman at the time, and present councillor, he did not work on any private roads of the Rushfelds, but worked on the RM’s road. The councillor, Ms.

Behm also testified for the Plaintiffs that she is not aware of any work done on the Rushfelds’ personal property. [ 39 ] In addition to the RM not being able to quantify the work done on their own road referred to as the Rushfeld Road, the RM has not established any legal basis for the counter claim, in that all work done was on the RM road, not the property of the Rushfelds. The Rushfelds were not advised that they would be required to pay for any work that the RM does on the road adjacent to their property in light of the flood.

The RM has not provided any authority that would allow them to make this claim against the Rushfelds other than claiming the fact that they did the work. In addition the RM has not quantified any of the counterclaim.

[ 40 ] Ingrid Behm, testified that work on the Rushfeld Road was discussed at RM meetings as the road needed rebuilding as it was a low road and it needed to be raised in any event. It was a bus route and it was not safe.

She testified that she was out in the area on a continuing almost daily basis because of flooding, and she testified that no work was done on the Rushfelds’ land or yard. [ 41 ] Leonard Johnson, testified on behalf of the Plaintiffs that lots of other roads, and people faced the same situation as the Rushfelds in relation to the roads adjacent to them, being issues related to flooding. [ 42 ] Councillor Paul Darren, who testified for the RM, stated that Councillor Ingrid Behm brought up the issue of the Rushfelds’ property going to flood at a council meeting and indicated that the RM should help them.

From the testimony of Mr. Darren, I find that Ingrid Behm’s request for assistance to the Rushfelds, was simply the practice of how the RM became aware of issues relating to its ratepayers. It is clear that Mr. Darren was doing for his ratepayers in his area exactly the same thing that Ms. Behm was doing for ratepayers in her area. The RM simply helped ratepayers in the area to the best they could in light of the 2011 flood. He also testified that the RM extended resources in relation to other ratepayers and they were not asking or expecting payment, for work done during the flood of 2011, or any other time.

He simply said that this is what people receive, being assistance from the RM for being ratepayers and taxpayers. [ 43 ] I find that the RM’s counterclaim is totally unfounded, and it is simply an afterthought to charge against the Rushfelds for work done on the RM’s road, in light of the Rushfelds issuing the statement of claim. There never was any intention by the RM that when any work was being done on the RM’s road adjacent to the Rushfelds’ property, or any assistance related to helping them in the 2011 flood, that the Rushfelds would be expected to pay whatsoever.

From the RM witnesses that testified, it is clear that no other ratepayer, even though the testimony of the Reeve was that other ratepayers had equal or greater flooding issues, and that there was substantial work done by the RM in relation to these other ratepayers, they were not asked , or expected to pay the RM for any resources expended on roads adjacent to their land. The RM has not established any basis for the counterclaim. [ 44 ] As such I find that the Rushfelds have proven their claim.

The amount of clay used is not in dispute and agreed to by the parties being the amount that appears on the Rushfelds’ statement of claim. [ 45 ] As such the Plaintiffs will have judgment in the amount of: 1) $17,299.80 for clay taken and used by the Defendant RM; 2) pre-judgment interest from April 12, 2012 to date of judgment; and 3) costs of filing $100.00. K. Bazin, J