Alfred Vogel v. Al Vogel Construction Ltd., 2019 SKPC 49

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2019 SKPC 49 Date: August 21, 2019 File: 87 of 2019 Location: Regina _____________________________________________________________________________ Between: Alfred Vogel and Al Vogel Construction Ltd. - and - Saskatchewan Power Corporation Alfred Vogel For the Plaintiffs Kamara Q. Willett For the Defendant _____________________________________________________________________________ JUDGMENT DEMONG , J _____________________________________________________________________________ Introduction

[ 1 ] The plaintiffs allege that they are the owners of two residential duplex homes located at 2077A and 2077B Osler Street, in Regina. Saskatchewan Power Corporation (hereafter “SaskPower”) is a Crown Corporation governed by The Power Corporation Act , RSS 1978, c P-19 , (hereafter the “Act” ).

It provides electrical services to its customers and the plaintiffs are two of these customers. [ 2 ] The plaintiffs allege that SaskPower negligently, or in the alternative, in breach of contract, discontinued electrical service to the properties during cold weather conditions, and that this, in turn, resulted in frozen water pipes - which in turn resulted in water leakage - which in turn resulted in damages to the walls, gyproc, insulation, ceilings and flooring of the duplex identified as 2077A Osler Street. [ 3 ] The plaintiffs say that the cost to repair the damages is $32,240.89.

They argue that they also lost income which could have been produced by renting the property; suffered a further loss because of the property’s reduced market value; and, incurred further loss by having to carry certain costs in the ongoing maintenance and management of the property in its damaged condition. The plaintiffs have, in accordance with the monetary jurisdiction of this Court, limited their claim to the sum of $30,000.00 together with prejudgment interest and costs. [ 4 ] SaskPower has defended the claim.

While it originally placed quantum of damages into issue, it withdrew this aspect of its defense at trial in order to expedite the court process - a most sensible, thoughtful, and time saving admission which was much appreciated by the Court.

However, SaskPower specifically denies that it was negligent or in breach of contract and puts the plaintiffs to the strict proof of their claim. [ 5 ] SaskPower says that the plaintiffs are a party to a billing contract with SaskPower and that one of the conditions of that contract is that the plaintiffs were obligated to pay the full amount of any invoice rendered for electrical services that it provided, and, it argues that a failure to pay renders a customer subject to collection activities including termination of services.

It argues that the plaintiffs had full knowledge that there were arrears which had accrued and that the plaintiffs simply chose to delay or ignore payment. It maintains that it had full authority to cut off the electrical supply. [ 6 ] Before turning to my analysis of this claim I should point out two things. First, Mr. Vogel’s legal name is Alfred and not Al. The claim has been amended to reflect this fact. Second, Mr. Vogel has left it unclear as to which of the plaintiffs actually own the property in question. He could not provide the Court with any clarification on this point at trial, and Mr.

Vogel seems unconcerned with this material fact. Mr. Vogel’s continued reference to himself as the owner, and as the person who retained his property manager, combined with the fact that SaskPower has recorded him as the account holder for electrical services for each of these properties, satisfies me, more likely than not, that Alfred Vogel, is, at least, a joint owner of the properties in question. The Law, the Evidence, Findings of Fact and Analysis [ 7 ] SaskPower is a Crown corporation which, in the course of its business, and among other things, provides electrical services to its customers.

Section 8 of the Act sets out its purposes and powers, and the relevant portions of

Section 8 read as follows: Purposes and powers 8(1) The purposes and powers of the corporation shall be: (

a) The generation, transmission, distribution, sale and supply of electrical energy; …

(3) Notwithstanding any other Act but subject to subsection (5), every person who accepts, uses or otherwise is the recipient of a service provided by the corporation shall:

(

a) Pay any charges and rates; and (

b) Comply with any terms and conditions; established and revised by the corporation. …

(4) The charges, rates, terms and conditions mentioned in subsection (3) shall be set out or described in a

schedule that the corporation shall make available for public inspection at the business offices of the corporation during business hours.

(5) A charge, rate, term or condition is not valid unless the

schedule mentioned in subsection (4) and in which it is set out or described has been made available for public inspection in the manner provided in that subsection. … [ 8 ] The evidence before the Court is that the terms and conditions established pursuant to section 8(3) of the Act are available for inspection on SaskPower’s website, or can be obtained by request from a customer service representative.

There is no evidence before the Court that the plaintiffs were unaware of those terms and conditions, or that they could not have obtained a copy of those terms and conditions if they were unaware of them. [ 9 ] The Terms and Conditions of Service (effective December 13, 2012) were introduced into evidence as Exhibit D-1.

Section 2 of those terms and conditions defines the term “customer” as “every Person who accepts, uses or otherwise is the recipient of Electrical Service or any SaskPower service”. The evidence before me makes it abundantly clear that the plaintiffs were “customers” as that term is understood. [ 10 ]

Section 7.11 and 7.13 of the terms and conditions impose a responsibility on the Customer to pay the full amount of any SaskPower bill by the due date specified on any bill rendered by SaskPower. It also speaks to the consequences arising from default of payment: 7.11 Responsibility to Pay The Customer shall pay the full amount of any SaskPower bill issued to the Customer by the due date specified on the bill, without prejudice to the Customer’s right to contest any rate or fee charged.

A failure to pay any amount billed by SaskPower shall be a default of payment and the Customer shall be subject to collection activities which may result in the discontinuance or termination of Electrical Service or any other SaskPower Service in accordance with subsection 7.13 of the Terms and Conditions of Service. 7.13 Accounts in Arrears Customer accounts in arrears 45 days or longer may be subject to collection activity by SaskPower.

Electrical Service may be curtailed or disconnected by SaskPower, at SaskPower’s sole discretion, until the account is paid in full or payments arrangements acceptable to SaskPower are agreed to with the Customer. [ 11 ] The Act limits SaskPower’s liability for the disconnection of electrical services. Section 3(2.1) reads:

(2.1) Notwithstanding subsection (2), the corporation is not liable in any action:

(

a) for failure to supply electrical energy or natural or manufactured gas due to any cause except a failure by the corporation, its officers, employees or agents to exercise a reasonable standard of care having regard to the circumstances; or (

b) for any injury, loss or damage to persons or property arising out of, or directly or indirectly resulting form, the supply of use of electrical energy or natural or manufactured gas be a customer beyond the point of delivery to the customer’s premises. [ 12 ] In order for the plaintiffs to succeed in this action, they must convince the Court that SaskPower was negligent or in breach of contract.

In relation to the former, the plaintiffs carry the burden of proof, on a balance of probabilities, to show that SaskPower owed the plaintiffs a duty of care in the manner in which it carried out its activities; that in attempting to meet that duty of care it fell below the standard of care of a reasonably prudent utility provider; and, that in consequence, they suffered loss.

In the latter, the plaintiffs carry the burden of proof to convince the Court that they had a valid and subsisting contract with SaskPower; that SaskPower breached the terms of that contract when it cut electrical power to the premises in question; and, that in consequence, they suffered loss. I have already noted that the loss portion of this analysis is no longer in issue.

SaskPower concedes that as a direct result of its decision to cut electrical power the plaintiffs’ loss is equal to the maximum monetary jurisdiction of this Court, which is $30,000.00, together with prejudgment interest on that sum. [ 13 ] Much of Mr. Vogel’s evidence dealt with what he considered to be the unsatisfactory manner in which his property manager, Shawn maintained the properties in question. He felt that Shawn should have, but failed to ensure that the properties would be kept up and that he failed to alert the plaintiffs of potential problems, including, arguably, the cutting of electrical power.

While I am sympathetic to Mr. Vogel’s complaints, Shawn is not a defendant in this action; was not a party to the contract entered into between the plaintiffs and SaskPower; and, there is no evidence before me to suggest that SaskPower had contracted with Shawn and not Mr. Vogel, or that it had agreed to allow Shawn to act as the plaintiffs’ agent; or, that it was even aware of Shawn’s existence at any relevant time. [ 14 ] Mr. Vogel’s evidence can be summarized. First, he asserts that he had not been made aware of the fact that SaskPower could cut off his electrical service.

Second, he asserts that he never received notice that the power might eventually be cut off. Third, he asserts that he was not actually made aware of the fact that it had been cut off. Fourth, he asserts that the decision to cut off his electrical power was unfair and caused him catastrophic loss.

His argument, in essence, appears to be along the lines that SaskPower should not exercise its right to terminate electrical services if a party fails or refuses or is unable to pay for that service, or alternatively, that the protocols that SaskPower has in place which leads up to that termination is either unfair or unreasonable or both.

All of this, he asserts, should be considered in light of prevailing weather conditions in Saskatchewan, the propensity for Saskatchewan weather conditions to turn bitterly cold, and the disastrous consequences of turning off electrical power in cold weather conditions - which will inevitably have the effect of causing significant losses if reasonable notice is not given, and proper winterization protocols - such as turning off one’s water supply - are not undertaken by the homeowner. [ 15 ] SaskPower is well aware of all of these concerns, and it entered into evidence the protocols that it invariably follows leading up to its contractual right to terminate electrical service.

Jolene Belliveau, an acting manager at SaskPower, explained those protocols to the Court and insisted that they were followed in the instant case. She says that if an account is outstanding or in arrears, customers are informed of that in writing and the consequences of non-payment are explained. In support of that first step she points to Exhibit P-3, two bills which were sent to Mr. Vogel in relation to the power supply for both properties. Those bills noted that there was $1,147.77 owing and in arrears in relation to unit 2077B Osler Street, and $843.62 owing and in arrears for unit 2077A Osler Street.

These bills named Al Vogel as the customer, and they purport to having been sent to P.O. Box 37 Pasqua Lake, Sk. Mr. Vogel has seized on this address as a serious issue because he does not live at that address, and presumably, therefore, would not have received them. He suggests that perhaps this is his property manager’s address. If so, I do not think that this ultimately assists him for reasons which will follow. [ 16 ] These two bills each have a notice written in bold on the face of the account. It reads: We URGENTLY need to discuss your past due account.

We know oversights happen and life gets in the way, but we need to receive payment by June 12, 2018 to keep your power service on. Please call us right away at 1-888-757-6937 to discuss payment options. Failing to pay means we may need to limit the power you receive or disconnect your service without further notice. If this happens, there may be additional charges and a security deposit applied to your account. Please accept our thanks and apologies if you have already paid your account.

[ 17 ] While Mr. Vogel says that he did not receive these bills, and that perhaps his property manager failed to pay them, it is Mr. Vogel and not Shawn who had contracted with SaskPower. Mr. Vogel is an experienced former contractor and is of advanced years. I find it highly unlikely that he did not know that he had to pay his monthly power bills or understand the consequences of not paying them. This, particularly, in light of the fact that he eventually conceded in cross-examination that he had probably seen the bills by June of 2018, but “probably didn’t read them”. [ 18 ] Ms.

Belliveau says that if the aforementioned notice is not attended to, then the next step in the protocol is to make contact by telephone by reference to the account number and try both the home number and the cell number that the customer has provided to SaskPower, and to explain that disconnection may occur. Mr. Vogel indicated at trial that he could not recall if he received a call from SaskPower in July of 2018, but I am satisfied that he did. SaskPower has entered into evidence its customer service business records and recordings of telephone calls that SaskPower had with Mr. Vogel.

An entry dated July 3, 2018 evidences that there was discussion regarding the potential disconnect of services to 2077A Osler Street. Where the business records of SaskPower conflict with Mr. Vogel’s memory or often used phrase “I can’t recall” I prefer the business records. They are kept in the normal course of business for just these sorts of situations, and the notes made thereon properly reflect the essence of the audio recordings that were also made and tendered into evidence. [ 19 ] Ms.

Belliveau says that if the first phone call does not result in payment, then a follow up call is made advising that in the event of non-payment within 48 hours, electrical power will be disconnected. SaskPower’s business records indicate that in fact a customer service representative left just such a message on Mr. Vogel’s telephone message manager on August 15. [ 20 ] Mr. Vogel responded to this message and phoned SaskPower on August 24. At that time SaskPower detailed the amounts that were owing and it made note of the fact that Mr. Vogel was not paying the bill ostensibly due to a dispute with Mr.

Vogel’s property manager. [ 21 ] Ms. Belliveau indicated that if payment is still not made the next step in the protocol is to send a disconnect request to one of its workmen who will proceed to disconnect as that workmen’s

schedule first allows, and once again, SaskPower’s records makes note of this next step having been taken on September 24. [ 22 ] Mr. Vogel contacted SaskPower on October 16 th and advised them that he had made payment on the account for 2077B Osler Street but not in 2077A Osler Street because he had insufficient funds. He was in turn advised that full payment would be required and to contact SaskPower immediately to confirm that the balance was paid. [ 23 ] Ms.

Belliveau stated that the last step in the protocol is to cut off the electrical supply if no payment is made, and in fact, SaskPower cut the electrical supply on October 23 without further notice to Mr. Vogel. [ 24 ] I should point out one more protocol that SaskPower has established. Recognizing the effect of cold weather in Saskatchewan, electrical supply is only cut off in its entirety between April 1 and October 31 in any given year.

If SaskPower has to resort to cutting off electrical supply after October 31 and before April 1, then it simply reduces the electrical supply to that home, by using a load limiter, which allows sufficient supply to allow a furnace to run. However, a load limiter is not employed for those homes which have had its supply terminated between April 1 and October 31.

The ostensible rationale is that if it has to terminate service for non-payment during this period of time, the account holder will by then have had sufficient notice of SaskPower’s intention to cut supply and the account holder can then take timely and appropriate steps to winterize that home and protect it from the consequences of no supply. [ 25 ] I am satisfied that SaskPower did in fact cut the electrical supply on October 23. I find it mystifying that Mr. Vogel was unaware of this.

He says that either he or his wife or his realtor or his property manager were at the home approximately every second day throughout the fall of 2018. Like SaskPower, I find it difficult to believe that one or more of them would not have ever tried to turn on a light, or notice that the rental property was colder than it ought to have been had the furnace been able to operate, particularly in light of the fact that, according to Mr.

Vogel, the temperature in November was like any other typical November in Regina - getting progressively colder throughout the month leading up to a very harsh cold snap running from November 16 through November 18. It was only on this date when Mr. Vogel entered 2077A Osler Street and identified the significant damages caused by burst pipes and accumulated water and other damage. [ 26 ] The only other evidence of note was the introduction of certain audio tapes relating to conversations between Mr. Vogel and SaskPower representatives which add little to the discussion except to express Mr.

Vogel’s utter frustration with having the electrical supply cut off.

[ 27 ] As I stated earlier, Mr. Vogel carries the burden of proof to show that SaskPower was either negligent or in breach of contract. Contractually SaskPower had every right to disconnect the electrical supply if its customer failed and continued to fail to keep his account payments current. Notwithstanding Mr. Vogel’s assertions I find that he well knew that his account was in arrears and had been in arrears for some time.

I am satisfied that he knew, or certainly ought to have known, following SaskPower’s several notices and telephone contacts with him that a failure to keep that account current might result in termination of service. I am satisfied that SaskPower established a protocol which it followed consistently when dealing with Mr. Vogel. I have no evidence to suggest that the standard of care adopted by SaskPower when dealing with Mr. Vogel is unreasonable in any sense of the word.

It acted professionally, sent timely notices and fully explained, when requesting payment, the consequences of non-compliance with those requests for the payment. Simply put, I have no evidence before me to show that SaskPower, conducted itself in a manner less reasonably than any other utility provider. I can find no breach of contract, nor can I conclude that SaskPower was negligent. [ 28 ] In Mr. Vogel’s final argument he invited the Court to conclude, in the alternative, that he should be entitled to relief because of the unfairness of his situation.

This Court has no jurisdiction to offer a remedy simply because it may be sympathetic to a plaintiff’s plight. In the absence of a juristic reason, this Court cannot simply direct a defendant to pay money to a plaintiff because the defendant feels that it is unfair that a party that he has contracted with has lawfully relied on certain terms and conditions set forth in their contractual relationship. For these reasons, Mr. Vogel’s claim is dismissed in its entirety. [ 29 ] SaskPower has sought costs, not in the full amount of ten percent of the damages claimed by Mr.

Vogel, but in the reduced amount of five percent, which is equal to the sum of $1,500.00. In exercising my discretion as to costs, and in consideration of the enumerated factors set out in section 36(3) of The Small Claims Act, 2016 , SS 2016, c S-50.12 , I take note of item (e), the conduct of the parties, and the fact that this trial was ultimately concluded in just over one-half day. With due respect to Mr. Vogel, his claim against SaskPower has been found to be without merit.

With due respect to SaskPower, the matters in issue were straightforward and $1,500.00 seems high for the amount of trial time involved. As such I award the lesser sum of $1,000.00 together with SaskPower’s $50.00 cost to file its reply. SaskPower is granted costs in the sum of $1,050.00. _____________________ P. Demong, J.