Donald James LeBlanc - v. -, 2017 SKPC 57

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Date: June 29, 2017 2017 SKPC 057 File: SC 211/16 Location: Regina _____________________________________________________________________________ Between: Donald James LeBlanc - and - Lexterra Land Ltd. Self Represented For the Plaintiff Kevin Miller For the Defendant JUDGMENT P. DEMONG, J Introduction [ 1 ] Mr. LeBlanc brings this action against Lexterra Land Ltd. (Lexterra) alleging that he entered into a binding lease agreement in which Lexterra would lease certain mineral rights on land owned by Mr.

LeBlanc in exchange for payment to him in the sum of $9,600.00 and other consideration. Mr. LeBlanc is self-represented. His argument, in essence, is that notwithstanding this written agreement, Lexterra chose to repudiate the agreement prior to Mr. LeBlanc’s execution of a formal lease and in the result he was within his rights to accept that repudiation as a breach of contract and sue for the sum of money which arose naturally from that loss. He seeks payment of the monies that he says is due and owing to him under the agreement in the sum of $9,600.00. [ 2 ] Mr.

LeBlanc seeks the further sum of $20,000.00, alleging that Lexterra promised him that the entire arrangement between the parties would be conducted entirely in French. He alleges that Lexterra chose to repudiate the contract because it refused to deal with him

entirely in French and in the result, it had discriminated against him based on his cultural heritage. [ 3 ] Lexterra disputes the entirety of Mr. LeBlanc’s claim. First, it says that Lexterra was not contracting with Mr. LeBlanc, but rather, Lexterra was acting for a disclosed agent by the name of Steppe Petroleum Inc. Second, it urges the Court to conclude that the arrangement between the parties was not a formal contract, but at best, merely pre-contractual negotiations, akin to an offer to treat.

Third, it alleges that its offer to lease the mineral rights in question was formally withdrawn in writing on December 15 th , 2015, and, because the offer was revoked prior to formal execution of the requisite legal documents, there is no contract upon which to base a claim. Fourth, it denies that it discriminated against Mr. LeBlanc and it says that its offer to lease was withdrawn when, contrary to its reasonable business expectations, Mr. LeBlanc expressed his intent to refuse to execute a copy of the lease in the English language.

Fifth, it argues that this Court has no jurisdiction to make a monetary award for discrimination, as that is under the exclusive jurisdiction of either the Human Rights Commission or the Court of Queen’s Bench. Finally, and in any event, it puts the quantum of Mr. Leblanc’s monetary claim to the strict proof thereof. Evidence, Analysis and Findings of Fact [ 4 ] Mr. LeBlanc was born and raised in Saskatchewan. He attended grade school and high school in Estevan and then attended the University of Saskatchewan where he obtained a Bachelor’s Degree in Literature specializing in Shakespeare.

He went on to obtain a Bachelor’s Degree in Education and had worked towards obtaining a Master’s Degree in French. He taught both English and French at Miller and O’Neill High School in Regina. In the latter part of his career he has worked as a musician, travelling throughout Canada and the United States in pursuit of his craft. In consequence it is clear that he has regularly entered into agreements and conducted his business in each of the English and French languages. [ 5 ] Culturally, Mr. LeBlanc identifies as French Acadian and is a fervent and passionate proponent of the French language.

This fervour was made abundantly clear to the Court at the outset of these proceedings when Mr. LeBlanc filed his civil claim in the French language, and took great exception to this Court’s decision to communicate with him in English. By way of written Fiat earlier in these proceedings, and citing Supreme Court of Canada legal authority, the Court made Mr. Leblanc aware of its decision to conduct this action in English, but to allow him to conduct his action in French, with the Court employing a French interpreter to assist the Judge and Court Clerk and the defendant, none of whom are fluently bilingual.

I use the word ‘fervour’ for good reason, I have been advised by Mr. LeBlanc in writing, copied by him to each of our Premier, and the Federal Minister of Justice, and the Prime Minister of Canada, that: I am not qualified to be a Judge because of my lack of fluency in the French language; that he was both disappointed with, and insulted by, the Fiat that was rendered by the Court; and, that the Fiat’s import was to suggest to him that he should ‘go lie down on [his] mat like a dog’.

He has repeatedly returned the Court’s written communication to him, expressing his indignation that the correspondence is not written in French. He has strong feelings about the use, or rather the lack of use, of the French language. [ 6 ] There is no question that Mr. LeBlanc is fluent in both languages. His educational background and his past experience as a high school English teacher makes this self-evident. In addition, during the course of this trial, and notwithstanding that a French interpreter was provided, Mr.

LeBlanc would frequently answer questions put to him in English before the interpreter had the opportunity to translate. In addition, he would, from time to time, slip into clear and fluent English when responding to questions, or when cross- examining the defendant’s witness. [ 7 ] I make mention of Mr Leblanc’s fluency, and his fervour, for two reasons. First, I reject any suggestion at this trial that he did not understand any of the English communications that he may have received from Lexterra. Second, much of Mr.

LeBlanc’s claim is predicated on his assertion that he had an express agreement with Lexterra that the entirety of its proposed arrangement to lease Mr. LeBlanc’s mineral rights would be conducted exclusively in the French language. I am not entirely satisfied that Lexterra and Mr. LeBlanc had a true meeting of the minds in relation to this exclusivity, and it appears that this lack of full consensus has given rise to this dispute. I am satisfied that Lexterra was not fully aware of the depth and breadth of Mr. LeBlanc’s passion.

I am not satisfied that Lexterra was, at the time that negotiations commenced, fully aware of his honest and heartfelt feeling that the use of French is inextricably tied to his cultural identity. I am not satisfied that Lexterra understood that, in Mr. LeBlanc’s view, it would not be able to receive a copy of the signed lease agreement in English. [ 8 ] Garret Zokol is a land man employed by Lexterra which is in the business of negotiating and entering into mineral rights leases for the benefit of third parties which seek to extract those minerals. English is his first and only language.

He is not fluent in French. Mr. Zokol testified that he first contacted Mr. LeBlanc by telephone in an effort to discuss the acquisition of certain mineral leases on land which had been willed to Mr. LeBlanc by his father. He says that the conversation was relatively short, and that eventually he was hung

up on when he indicated to Mr. LeBlanc that he did not speak French. Mr. Zokol says that he contacted Mr. LeBlanc a second time a couple of weeks later and continued to express interest in the mineral lease, and that he ‘would do his best to communicate in French by e-mail’. [ 9 ] On or about October 26 th , Mr. Zokol sent a standard form letter to Mr. LeBlanc at his home address. It had been translated from English to French. It indicated that Lexterra sought, on behalf of its client, to lease Mr.

LeBlanc’s mineral rights and it identified the essential conditions of the offer: a CAP 91 Oil and Natural Gas Lease; a bonus exam of $150/acre; a duration of head lease of three years; and royalties of 15%. [ 10 ] There appears to have been a delay between the time that Mr. Zokol spoke with Mr. LeBlanc on the second occasion and the provision of this offer. On November 18 th of 2015 Mr. Zokol sent an e-mail (in English) to Mr. Leblanc asking when there might be a good time to follow up regarding the offer. Mr.

LeBlanc sent an e-mail (in French) shortly thereafter indicating that he had left a voice message with Mr. Zokol and advised Mr. Zokol that he had not yet received the offer. Mr. Zokol’s e-mail reply (in English) apologised and he resent the offer letter. [ 11 ] On November 19 th , Mr. LeBlanc sent another e-mail (in French) and wrote in part: Thank you for your e-mail, However... in French please. 1. Please understand the all communications in respect to this matter must be written in the French language. I believe I already indicated this to you by telephone, in English, in October 2015!

He also asked about any connections that Mr. Zokol may have with a company named ‘Scottland’; whether the offer was dated from April 2014 for a period of three years; whether the offer in monetary terms was inferior or superior to that proposed by ‘Scottland’; and, whether or not everything had been sent by courier or Canada Post, because he preferred having hard, paper, documents. [ 12 ] Mr. Zokol replied by e-mail (in French), that same day and indicated that ‘I’ll do my best to communicate with you in French’.

He stated that he had no connection with ‘Scottland” and indicated that he worked for a different company. He indicated that he felt the terms proposed were very fair and were the same that he extended to everyone. He stated that if Mr. LeBlanc agreed with the terms, he would send the paper version of the documents which would need to be executed before a Notary, and he suggested that in the alternative he could come to Saskatchewan (from Alberta) to sign the documents. He made no mention of the start date for the lease. [ 13 ] On November 21 st , by e-mail (in French) Mr. LeBlanc thanked Mr.

Zokol for his reply and stated ‘I agree with your terms by which you have offered $9,600.00’. He indicated that he would await the documents ‘for finalization’. I take special note of the fact that Mr. LeBlanc was, at that time, aware that certain documents would have to be endorsed before the arrangement was finalized. [ 14 ] Mr. Zokol replied by e-mail (in French) on November 24 th and advised Mr.

LeBlanc that ‘I am glad that we have agreed upon conditions’; and that he needed to find a lawyer to translate the Oil and Natural Gas Lease from English to French after which he would send, by regular mail, the final documents to be authenticated. [ 15 ] On November 27 th , Mr. Zokol sent another e-mail (in French) indicating that he was preparing the lease package and asked for confirmation of Mr. LeBlanc’s postal address. He asked about Mr.

Leblanc’s marriage status for the purposes of the execution of a Homestead’s Act Affidavit in the lease; he explained that the package would include both a French and English copy of the lease indicating that he required both a French and an English copy signed for legal purposes; and he affirmed that he would provide complete instructions in French. He invited Mr. LeBlanc to contact him if he had any questions. [ 16 ] Mr.

LeBlanc replied by e-mail (in French), indicating that: he preferred that his address be posted in the French language when the package was sent; that he was single; that he ‘wanted the documents in French, please’; and, he inquired as to who precisely Lexterra’s client was, because he thought that he, Mr. LeBlanc, was the client. He wanted to know if Mr. Zokol was involving someone else in the matter.

[ 17 ] On December 1 st , Mr. Zokol replied by e-mail (in French), advising that he would mail the leases later in the week; that he would include the postal address in the French language; and, that Lexterra was a brokerage company whose client was Steppe Resources. He indicated that he would send the documents in French, but that he would also need a copy signed in English. [ 18 ] On December 3 rd , Mr. LeBlanc sent an e-mail (in French), asking who Steppe Resources was and expressed his concern that this arrangement with Steppe Resources would make things much more complicated.

He also stated: ‘Please take note again that I look forward to your documents in French, the other official language of Canada. An English contract is not necessary’. [ 19 ] Mr. Zokol e-mailed Mr. LeBlanc back on the same day (in French). The English translation of that e-mail is reproduced in its entirety: Thursday, December 3, 2015 – 3:10 pm Hello Mr. Leblanc, Please know that I respect your feelings and concerns in this matter, I am doing my best to satisfy you and my client.

In our first telephone conversation, I explained that I work for Lexterra Land and that we represent an oil and gas company (Steppe Resources). This is the company that will invest in the drilling and production of oil and gas. Oil and gas companies like Steppe Resources use companies like Lexterra Land for the acquisition of leasing understandings with the mineral rights holders. We are simply the broker. We understand fully that Canada is a bilingual country; however the provinces are not all considered as bilingual.

Alberta and Saskatchewan, for example, are considered as unilingual (Anglophone) and Quebec (French). For this reason, please understand that our client needs a lease in French and English for legal reasons. I respect your feelings in this matter and that is why we are going ahead with the French lease but it is necessary to have a copy of the lease in English for our client. Without a copy in English we cannot proceed with the appropriate applications to our regulatory organizations for the drilling of a well and you will not receive your payment. The lease contract has been sent to you by mail this morning.

If you have any questions, please let me know. I am happy to be of help. Cordially, Garrett [ 20 ] On December 7 th , Mr. Leblanc replied to that e-mail (in French). The English translation of that e-mailed is reproduced in its entirety: Subject: Lease agreements Monday, December 7, 2015 – 5:04 pm Hello Mr. Kozol, Your reply is rather strange! 1. From your reasoning, it seems this would mean that if a contract is written only in English everything is okay. But if the contract is written only in French, that wouldn’t work. It is obvious that English will be the official working document for Lexterraland/Steppe

Resources and that the French document will be ignored. I don’t like this at all. It’s the same old issue. English gets shoved down my throat all my life and I don’t accept that! 2. As to the legality of a document/contract in French only for the provinces of Saskatchewan and Alberta, the Court must accept the legality of a document in French in a case argued in Court for any matter.. i.e. the legality of the French-only document must be upheld and honoured by the Court. 3.

The official English language in Alberta and Saskatchewan applies only to the laws of Parliament... that means laws presently in force... statute books in English at the present time have not been required to translate into French. But a case in Court can be and must be heard in the French or English language in all legality! Yours sincerely, Donald J. LeBlanc [ 21 ] On December 15 th , Mr. Zokol sent an e-mail (in English), withdrawing Lexterra’s offer to lease Mr. LeBlanc’s mineral rights.

It reads: Hi Don, It is unfortunate that this has become such an issue; our client has decided to withdraw our offer to lease your mineral rights. We do not operate (nor do you live) in a French speaking Province and for that, it is unreasonable to move forward with a lease contract to be only in French and not English (we needed both). To expect all Canadians to speak or conduct business in only French, in every Province, is very irrational. Can you please return the package that was mailed to you. It is prepaid. Thank you for you time. Garrett [ 22 ] At trial, Mr.

LeBlanc was cross-examined on the e-mail from Mr. Zokol dated December 15 th . I am satisfied that Mr. Leblanc understood what it said, and that he understood that it was Lexterra’s written revocation of their offer. I am less certain that he understood the legal implications of that written revocation. There were no further e-mail or telephone communications between the parties until March 4 th of 2016. [ 23 ] I am satisfied that the lease package of materials had been sent to Mr. LeBlanc before Lexterra’s December 15 th revocation of the offer and that, because Mr.

LeBlanc was working away from home, he did not receive this package immediately. The evidence before the Court suggests that the package found its way to him while he was working in the United States. The package included a letter of instruction (in French), explaining what the documents were and the manner in which they were to be executed. It included leases in each of the English and French languages and a production allocation agreement. The package also included a sample document showing how the leases and the allocation agreement were to be executed and notarized.

The letter pointed out that if the lease was executed improperly, the lease would have to be returned for proper completion. [ 24 ] Notwithstanding Mr. LeBlanc’s receipt of Mr. Zokol’s December 15 th written revocation of the offer, Mr. LeBlanc attended before a Notary Public in San Antonio, Texas, on January 31 st of 2016 and attempted to properly execute the leases. I say attempted, because it is clear that they were not executed properly. Mr. LeBlanc’s signature was not witnessed.

The Homesteads Act Affidavit is not sworn or dated, and the Affidavit of Execution has not been dated, nor witnessed, nor does it disclose geographically, where it was signed. It would appear that the Notary used by Mr. LeBlanc was unfamiliar with the manner in which the lease was to be completed. This, notwithstanding that the sample documents provided with the materials explain clearly what was to be done.

[ 25 ] I am satisfied that Lexterra ultimately received these documents in due course. Mr. LeBlanc did not subsequently receive any payment, and, on March 4 th , 2016, he sent an e-mail (in French), indicating that he had accepted Lexterra’s offer and had signed all of the documents in accordance with Lexterra’s instructions. He requested payment. [ 26 ] On March 8 th , Mr.

Zokol replied by e-mail (in English), indicating that in Lexterra’s view it had the right to withdraw its offer any time prior to acceptance, and that since it had withdrawn its offer prior to execution of the leases, there was no binding agreement. Mr. Zokol also noted that in any event, all of the documents had been improperly executed. [ 27 ] On March 9 th Mr. Leblanc e-mailed (in French), demanding once again that all communications be in French and advised Lexterra that if he did not receive his money he would take Lexterra to court. Mr.

Zokol replied one last time on March 9 th by e-mail (in English), indicating that in Lexterra’s opinion it did not need to continue a conversation in this regard. [ 28 ] Mr. LeBlanc brought this action shortly thereafter. [ 29 ] Before I begin my analysis of the issues and the law, I wish to point out that I envy the fact that Mr. LeBlanc is fluent in both of the official languages of Canada. Some of us do not have that ability. I also understand, from the evidence given by Mr. LeBlanc at trial, that his erstwhile desire to conduct his dealings with Lexterra in French was twofold.

First, because he is passionate on the subject of the use of the French language as a fundamental tenet of his cultural heritage and his understanding of its rightful place in the law of Canada; and second, because he was paying homage to his French speaking father who had willed the land to Mr. LeBlanc. What better way to pay tribute to him then to ensure that those who used the land, acquired the use of that land while employing the French language. However, and as indicated, I am not satisfied that Lexterra understood the extent of Mr.

LeBlanc’s passion, nor his desire to pay tribute to his father until the very end of the discussions between the parties. Issues [ 30 ] Mr. LeBlanc’s primary legal argument on the issue of the validity of the contract was that a revocation of a contract in relation to land is required to be under seal, and because it was not under seal there could be no revocation. I am unaware of any law in Saskatchewan requiring that a revocation of a contract in writing need be under seal. Nor was any case law or legislative authority provided to me for that proposition. But this does not end the matter.

The issues before this Court can be summarized as follows:

i) Did Lexterra’s written offer and Mr. LeBlanc’s written acceptance constitute a legal binding contract subject only to the execution of certain pro forma documents or was it, as Lexterra suggests, simply an invitation to treat? ii) Was Lexterra entitled to ‘revoke its offer’ as it is arguing, or is its decision not to be bound by the agreement a repudiation of a valid and subsisting contract? iii) If the written offer and acceptance is a valid contract, can Lexterra argue, based on the facts and the law, that Mr.

Leblanc breached the contract when, he expressed his frustration that presumably ‘English [would] be the only official working document for Lexterra’ and that ‘English gets shoved down my throat all my life and I don’t accept that’? iv) Was Mr. LeBlanc’s failure to properly execute the lease fatal to the existence of the agreement?

v) Upon consideration of all of these matters, is Mr. LeBlanc entitled to damages for breach of contract and if so is mitigation an issue to be considered by the Court?

vi) Did Lexterra discriminate against Mr. Leblanc based on its failure to deal with him exclusively in the French language and presumedcultural heritage? vii) Does this Court have jurisdiction to award damages based on an allegation of discrimination? Discussion [31] Mr. Leblanc’s primary argument in relation to the nature of the agreement entered into between the parties is that an offer hadbeen made to him for his natural gas rights.

The offer set forth the ‘conditions’: - A CAPL 91 Oil and Natural Gas Lease -Bonus exam of $150/acre -Duration of head lease: 3 years -Royalties of 15% His written reply, accepting these ‘conditions’ was made on November 21st, of 2015 and as such, there was a formal written contract inplace identifying all of the essential terms of the contract. [32] Lexterra argues that these terms do not identify with precision all of the essential terms that would be required and suggest thatthere would have to be further discussion relating to, among other things: ongoing rights of each party after the expiration of the lease;tax responsibilities of each party; rights if an offset well were to be drilled; the right of the lessee to include the leased lands in largerpooling agreements with other leases; and the right to assign or surrender among others. [33] With due respect, I think that Lexterra is paying short shrift to the case law that has developed in Saskatchewan and elsewhere asit relates to what may constitute a binding contract, and in particular the most recent decision of our Court of Appeal in Harle v101090442 Saskatchewan Ltd., 2014 SKCA 6 [Harle].

In the instant circumstances, the parties anticipated that a formal leasewould be required, but, Lexterra offered a CAPL 91 Oil and Natural Gas Lease, and it was this precise lease which was provided to Mr.Leblanc. While there was no cross-examination of Mr. LeBlanc as to what he thought this lease might entail, I take judicial notice of thefact that it is a ‘standard’ oil and gas lease that was developed for use by landmen by the Canadian Association of Petroleum Landmenwhich would strive to protect the position of an oil company and treat the land or mineral owner fairly. Mr.

LeBlanc indicated that hewas prepared to accept that form of lease. I do not know whether or not Mr. LeBlanc would have been aware of each and every term andcondition set forth therein, but he evidenced his intent to be bound by it and his post contractual conduct evidenced his intent to at leasttry to execute the contract properly. In addition, while Lexterra suggests that there had been no agreement on a production allocationarrangement, again, Mr. LeBlanc’s post contract conduct evidenced his intention to agree to the form of that document.

In essence, eachof those things that Lexterra hoped for was accepted, post contract by Mr. Leblanc. I think it is important to make two further comments in respect of Lexterra’s position. When Mr. LeBlanc asked if he was being treated fairly, Mr. Zokol responded on November 19th, 2015that ‘the terms that I proposed to you are very fair’. ‘I offer the same terms given here to everyone’. In addition, I have concerns whenLexterra alleged that much more need to have been done in order to nail down the essential terms of the contract. Mr.

Zokol appears notto have been concerned in this regard because in the same letter he indicated ‘if you are in agreement with the terms I have offered I willsend you by regular mail the paper version of the documents you need to contact a notary. Or, I will come down to Saskatchewan to signthe documents, whatever is the easiest for you’. This does not suggest to me that there was any expectation by Lexterra that there wouldbe additional terms to be agreed to, let alone significant additional terms, and once again, I note, that an investigation of the post contractconduct of Mr.

LeBlanc makes it strikingly clear that he was agreeable to precisely what Lexterra sought to obtain, with perhaps theexclusion of the start date of the lease. [34] It is clear that the lease was to run for a period of three years, but there was no express consensus as to the start date of the lease.I note however, that in matters of contract, where there is no time stipulated as to the start date of the contract, and if the parties have notidentified that time is to be of the essence, then the courts will readily interpret the agreement for the parties based on what a reasonabletime would be, and this in turn could be identified based on what Mr.

Zokol indicated in his letter, that is to say that they would be fairand based on terms that he provided to everybody. [35] I note each of these factors in the context of our Court of Appeal’s decision in Harle. In that case the Court was called upon todetermine whether or not an agreement in relation to land should not have been enforced based on lack of certainty of terms. From that

decision certain general principles of law emerge. At para 36 the Court noted the importance of the post contractual conduct of the parties in the context of construing whether or not there is something more significant between the parties than an ‘agreement to agree’. At para 51, citing Prof. McCamus The Law of Contracts , 2 nd ed. (Toronto: Irwin Law Inc., 2012) at pp 93-94 they reiterate his words: Parties, especially those not advised by lawyers, may be unaware of the nature of all the essential terms to be stipulated in the particular context.

Parties may assume that reasonable or ‘the usual’ arrangements will apply to an undetermined matter. ... Rigid application of the doctrine of certainty, therefore could produce much mischief, especially in cases where the parties detrimentally rely on the assumption that a valid and enforceable agreement has been created. Accordingly, courts will attempt to fill in gaps and find meaning in agreements in circumstances where it appears the binding agreement was intended by the parties.

The law of certainty of terms, then, reflects this tension between the requirement that the parties reach a complete and intelligible agreement and a reluctance to defeat the expectations of the parties that an enforceable agreement has been created ...

As we shall see, the leading modern authorities tend to place particular emphasis on the need to give effect, where possible, to the expectations of the parties that they have entered valid and enforceable agreements. [ 36 ] Lexterra maintains that any contract it may have entered into is unenforceable because its efficacy depended on the formalization of their lease agreement in writing. Put another way, was the execution of the lease a strict condition giving efficacy to the contract, or was it a mere formality?

In my view, in the instant circumstances, there was a meeting of minds on all essential terms of the contract. The lessor and lessee were known. The term of the lease was ascertained and the time for its performance could be implied by a Court, if necessary, as being within a reasonable time. The price was known and the land location was understood between the parties. Full particulars of their arrangement were to be set forth in an identifiable ‘standard’ Oil and Natural Gas Lease generally used by Lexterra. Any additional terms could reasonably be interpreted by the courts based on Mr.

Zokol’s promise to treat Mr. LeBlanc fairly and in accordance with ‘the same terms that he gives to everyone’. In my view, the execution of the lease and production allocation agreement was a mere formality that would simply particularize the agreement already entered into. This conclusion does not do harm if considered in the reverse. Had Mr. LeBlanc reneged on his agreement, I see no reason why Lexterra could not thereafter come to Court and argue for specific performance of the agreement or damages in lieu. [ 37 ] Issues

i) and ii) are answered in support of Mr. LeBlanc. When Mr. LeBlanc evidenced his written acceptance of the contractual terms offered by Lexterra a legally binding contract was formed, subject only to the execution of a formal lease. The arrangement between the parties was not simply an invitation to treat; something which Lexterra could revoke at any time prior to execution of the formal lease. [ 38 ] Nor am I satisfied that Mr.

LeBlanc’s indignation and frustration that an English version of the lease would be required along with a French version of the lease, should reasonably have been seen by Lexterra to be an anticipatory repudiation of the agreement by Mr. LeBlanc. John D. McCamus, in The Law of Contracts 2 nd ed. (Irwin Law Inc. 2012: Toronto) discusses the elements of anticipatory repudiation at p 693 of his text: An anticipatory repudiation consists of an ‘intimation of an intention to abandon and altogether to refuse performance of the contract. ...

The basic test to be applied is “whether the party renunciating has acted in such a way as to lead a reasonable person to the conclusion that he does not intend to fulfil his part of the contract”. [ 39 ] The words used by Mr. LeBlanc, as referred to earlier in this judgment, certainly expresses Mr.

LeBlanc’s frustration that English is always being thrust down his throat and he does not like that, and his assertion that an English copy of a lease would not be necessary may be his understanding of the needs of the regulatory bodies in either Alberta or Canada; but these words, taken in the context of the discussion had and taken between the parties and based on the evidence before me do not convince me that he had thereby evinced an intention to repudiate the agreement in its entirety. There is no question in my mind that Mr. Zokol had, by this time, become frustrated with Mr.

LeBlanc’s insistence on the use of French; and he may very well have come to the conclusion that the potential reward was not worth the effort in dealing with Mr. LeBlanc; and he may have interpreted Mr. LeBlanc’s comments in the context of his assumption that he was only dealing with an invitation to treat; but, I see nothing in Mr. Leblanc’s words which suggest that he either intended to no longer be bound by the agreement that he had entered into, or that he evinced a clear intention not to be bound. In my view, Mr. Zokol should have, but chose not to, make further inquiries of Mr.

Leblanc’s intention to be bound by the agreement before terminating the agreement. [ 40 ] Issue iii) is answered in favour of the plaintiff, I do not find that Lexterra was within its rights to unilaterally terminate the agreement based on the language used by Mr. LeBlanc.

[41] Nor do I accept Lexterra’s argument that the contract failed because Mr. Leblanc failed to properly execute the Leases. First,there is no evidence whatsoever that Mr. LeBlanc, evidenced an intention to purposely execute the lease in a wrongful manner. Inaddition, Mr. Zokol knew that Mr. Leblanc was unrepresented by counsel and he had, in writing, indicated that he would personallyattend on Mr. LeBlanc by travelling to Saskatchewan to assist him with the documentation and that if it was done wrong it would have tobe redone.

I am satisfied that, but for the French issue, had the lease been improperly executed Lexterra would have allowed him tocorrect that deficiency. I believe I can imply a reasonable expectation of the parties that, while left unsaid in their negotiations, ifpresented with this potential problem at the outset of their negotiations, each would have said ‘well of course, that is what we wouldexpect to occur’.

While a court should be hesitant to imply certain terms into a contract, the comment of Le Dain J. in Canadian PacificHotels Ltd. v Bank of Montreal, (SCC), [1987] 1 SCR 711 is apposite: What is important ... is a focus on the intentions of the actual parties. A court, when dealing with terms implied in fact, must be carefulnot to slide into determining the intentions of reasonable parties. This is why the implication of the term must have a certain obviousnessto it .... . [42] Issue iv) is answered in favour of Mr. Leblanc.

His failure to properly execute the lease is not fatal to the existence of theagreement. [43] For all of these reasons I find that there was a valid and subsisting agreement in place; that Lexterra repudiated the agreement;and, that Mr. Leblanc was entitled to accept that repudiation and recover damages for breach of that contract which in turn equates to thesum of $9,600.00 subject to his obligation to mitigate those damages. [44] Not a single comment was made in respect of mitigation at the trial of this action. Mr. LeBlanc did not advise whether he tooksteps to mitigate his loss.

Lexterra did not address this issue at all either in cross-examination or in presenting its defence. While the lawis clear that a plaintiff has an obligation to mitigate his damages arising from a breach of contract, the burden of proving that the plaintiffought to have mitigated the loss is on the contract-breaker. [See, generally, S.M. Waddams, The Law of Contracts 6th ed. (Canada LawBook Inc. 2010: Aurora, Ontario) at p 757. I note that Lexterra was represented by counsel. The dispute note filed in these proceedingswas prepared by legal counsel and counsel appeared at trial on behalf of Lexterra.

The dispute note does not place mitigation of damagesinto issue, and because no questions were asked of Mr. LeBlanc on this issue, and because no other evidence was led on this issue, I amsatisfied that Lexterra has not met its burden on this issue and therefore I will not deal with it. [45] Mr. Leblanc also seeks the sum of $20,000.00 from this court based on an allegation that he was discriminated against becauseLexterra terminated the agreement because of his cultural heritage. I am not satisfied that they did.

Firstly, on the evidence I am notsatisfied that there was a meeting of minds, that each and every aspect of the dealings between these two parties would be conducted inFrench and exclusively in French. Certainly that is the

interpretation that Mr. LeBlanc would place on their arrangement. However, Iconclude that the best that Lexterra could offer was a willingness to communicate with Mr. LeBlanc in French. I cannot conclude thatthey had agreed to conduct each and every aspect of this arrangement exclusively in French. They attempted to accommodate him in theFrench language but they also sought, for what they considered to be in their legitimate business interests, a lease and a productionallocation agreement that was in both French (for the benefit of Mr.

LeBlanc) and English (for the benefit of their client and theirregulatory authorities). This desire does not, in my view come anywhere near an attempt, as Mr. LeBlanc would put it, to discriminateagainst him personally, based on his cultural heritage. In my view, Lexterra did everything they reasonably could do to accommodate hissensitivities, short of depriving themselves and their client of a formalized agreement in a language in which they regularly conductedbusiness. I see no basis upon which I could award Mr.

LeBlanc damages under this aspect of his claim. [46] Even if I am wrong in so concluding, I am satisfied that this Court has no jurisdiction to award damages on the basis ofdiscrimination. That jurisdiction is given to the Saskatchewan Human Rights Commission pursuant to The Saskatchewan Human RightsCode, SS 1979, c S-24.1 or alternatively, pursuant to

section 2 of that Act to the Court of Queen’s Bench. [47] Mr. Leblanc is entitled to damages in the sum of $9,600.00. I am not prepared to award prejudgment interest on that amount,accruing as it is at the rate of less than one half on one percent per annum, simply because I do not have sufficient evidence before me todetermine at what point in time the monies would have been due and payable to Mr. LeBlanc under the contract. Mr. LeBlanc is entitledto his costs, which he has submitted to the Court for its consideration. I am prepared to award him the sum of $259.69 which representshis out of pocket expenses and his cost of issuing his claim.

[ 48 ] In total, judgment is awarded in favour of Mr. LeBlanc in the sum of $9,859.69. [ 49 ] Lastly, I would be remissed if I failed to thank our French interpreter, Michael Jackson for his excellent service and assistance in this matter. P. Demong, J