Sturgis Meats Ltd. - v. -, 2013 SKPC 45

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2013 SKPC 045 Date: March 22, 2013 File: 80/12 Location: Yorkton _____________________________________________________________________________ Between: Sturgis Meats Ltd. - and - Gardon Securities Telecommunications and Answering Ltd. Mark Persick For the Plaintiff Mark Galambos For the Defendant ______________________________________________________________________________ JUDGMENT R.

GREEN , J ______________________________________________________________________________ OVERVIEW: [ 1 ] In 2006, Sturgis Meats entered into a contract with Gardon Securities. That contract covered both the installation of temperature monitoring equipment at Sturgis Meats and the month to month monitoring by Gardon Securities of the temperature in the freezer and cooler at this business. As a result, Gardon Securities installed temperature monitoring equipment in the cooler and freezer

of Sturgis Meats in January 2006, for the sum of $1,190.26 (Exhibit P-1), and then monitored the temperature in the freezer and cooler of this business thereafter. Even with this dispute, Gardon Securities continues to monitor those temperatures at Sturgis Meats. That monitoring is done by the Gardon Securities staff in Yorkton, based on information transmitted by the monitoring equipment over a telephone line from Sturgis Meats. [ 2 ] The initial contract, in 2006, between the parties was for three years, and had a provision that the contract would renew thereafter.

The contract also states: Gardon Securities assumes no liability for delay or interruption of service due to any acts of God or cause beyond the control of Gardon including interruptions in telephone service. (Exhibit P-1) [emphasis added] [ 3 ] In each of the years 2009 and 2010 Sturgis Meats paid $264.00 per year to Gardon Securities for alarm monitoring services (Exhibit P-2). Each of the invoices for these years contained a proviso saying: It is the responsibility of each customer to perform routine tests on each system (including components).

Gardon will not be responsible for incidents arising from equipment that has not been maintained or tested semi-annually. The case for Sturgis Meats [ 4 ] Rodney Wegner is a co-owner of Sturgis Meats. He lives about forty-five miles from Sturgis, where the business is located. The monitoring equipment at Sturgis Meats was tested on January 19, 2010 by Gardon Securities, and found to be in good working order (as per the invoice, Exhibit P-3). He said there were two temperature probes in the walk-in cooler and one in the walk-in freezer.

He claimed that Gardon Securities set the temperature in the cooler and the freezer, and that he had no involvement with this. Co-owner Bill Baerr, from Rhein, as well said he did not know how to adjust the temperature or monitoring equipment at the business. [ 5 ] Terry Hancock, whom the business employed as a meat cutter in Sturgis, was away on vacation from August 5, 2010 onwards. As a result, on August 14, 2010, Mr. Wegner went with Bill Baerr to check on their business. They found that the freezer was at room temperature and that the meat inside had spoiled. Mr.

Wegner later discovered that this resulted from a circuit breaker at the business being tripped off. As no alarm notification had been received from Gardon Securities, he immediately contacted their office. In his words, he received no satisfactory explanation from the woman he spoke to. He then called his insurance broker, and was told to turn the freezer back on and to clean out the freezer. [ 6 ] Mr. Wegner returned to Sturgis Meats the next day, August 15, 2010, and opened the door on the freezer to clean it out.

When he did so, the temperature in the freezer rose, and within thirty to forty-five minutes he received a call from Gardon Securities saying that the alarm had gone off. [ 7 ] The meat spoiled as a result of the initial temperature change in the freezer was valued at between $23,000.00 and $24,000.00 (Exhibit P-5). The net loss to Sturgis Meats was $11,000.00, after a settlement with their insurance broker, who was originally named as a defendant in this action. [ 8 ] Sturgis Meats claims that Gardon Securities is liable for this loss, by breaching the contract between them.

That breach is said to be failing to properly monitor the temperature in their freezer on August 14, 2010, or the days leading up to that day, and failing to notify Sturgis Meats of the rising temperature in their freezer. Sturgis Meats claims that, as a result of this failure, they were unable to respond appropriately and to prevent the meat in their freezer from spoiling. [ 9 ] Terry Hancock said he knew where the probes and the equipment were hooked up to monitor the temperature in the cooler and freezer at Sturgis Meats, but denied that he had ever adjusted this equipment.

He said he called Gardon Securities when there was trouble, but this was not often. He denied ever speaking to Gardon Securities about adjusting the temperature after an alarm sounded or about changing the settings on the monitoring system.

The case for Gardon Securities [ 10 ] Kelly Stoll has owned Gardon Securities for six years. Gardon Securities provides a broad cross

section of monitoring services which, in addition to the monitoring of fridges and coolers, includes the monitoring of: water and burglar alarms; vaccines for the health region; life lines for health care clients; and medical pendants. His business also provides an answering service and an overload service for the ambulance. [ 11 ] Mr. Stoll purchased the business after the monitoring equipment was installed by Gardon Securities at Sturgis Meats in 2006. He, however, is well acquainted with the equipment installed there and has frequently dealt with this client.

He denied any suggestion that the monitoring equipment at the business in Sturgis was the property of Gardon Securities. He said the monitoring equipment that was initially sold to Sturgis Meats became their property and responsibility at that time, in 2006. [ 12 ] Gardon Securities’ monitoring services are set up in Yorkton, where the business has eight separate computer receivers. This provides a back-up. If one receiver fails, the signal will go on to the next receiver. Records for the monitoring are kept at an alternate site in eastern Canada, which, according to Mr.

Stoll, produces records of the monitoring that cannot be altered or erased. He claimed that he was not aware of any failure of the Gardon Securities’ monitoring system over the years, largely because of the medical nature of much of their work and the resulting high level of regulation they are subject to. [ 13 ] Exhibit P-6 records the monitoring system contacts between Sturgis Meats and Gardon Securities from January 11, 2006 until November 15, 2012. That document shows that on August 4, 2010 at 9:45 a.m. Sturgis Meats was opened and the security system was disabled.

At the same time, the alarm ID was reset (page 37). The records further show that on August 5, 2010 at 2:23 p.m., the building was closed and was not reopened until nine days later on April 14 at 9:39 a.m. It was closed at 11:36 a.m. on that date. There was no alarm reported in these records between August 5 and August 14, 2010. On the next day, August 15, 2010, the building was opened at 10:33 a.m. and an alarm sounded at 11:08 a.m. The notation after that alarm, was “spoke to Janet, they are cleaning out the freezer, gave password”. [ 14 ] Mr.

Stoll said these records show that his company did monitor the temperature at Sturgis Meats as contracted over the dates in question, and that they did not breach the contract as no alarm was received by them on August 14, 2010 or on the days leading up to that day. He further said that no request was ever received from Sturgis Meats, after this incident, to repair the temperature monitoring equipment at that business. He said many of the clients of his business have their monitoring equipment serviced and checked every three months, and some more frequently than that. [ 15 ] Despite what Mr.

Hancock had said regarding his discussions with Gardon Securities, Mr. Stoll said he had personally spoken to Mr. Hancock at least ten times and described to him how to turn off and turn on the cooler by use of his computer program. I take from his evidence that they discussed how the monitoring equipment would be reset. Mr. Stoll made it clear that he was not in the meat business, and as a result did not know what the appropriate temperatures were for the freezer. This meant that he had to seek the advice of people at Sturgis Meats on that question.

ANALYSIS: [ 16 ] Sturgis Meats has the onus of proving on a balance of probabilities that Gardon Securities breached the contract between the parties by failing to properly monitor the freezer temperature at Sturgis Meats on or before August 14, 2010. [ 17 ] Mr. Stoll was cross-examined at length about a number of entries in the computer printout (Exhibit P-6).

This was an attempt to show that it was possible that the Gardon Securities’ computer monitoring system had failed in the months and years before this incident, and that a similar failure could have been the reason notice of the rising temperature in the freezer was not detected and then reported to Sturgis Meats in this case. [ 18 ] Mr. Stoll was shown a number of entries in Exhibit P-6, on a date unrelated to this incident, where there was a reference to

someone, purportedly from Gardon Securities, responding to an alarm by speaking to someone at Sturgis Meats or by attending at SturgisMeats to work on the equipment. In response to questions about how that information could find its way into a computer log that wasautomatically generated and incapable of being erased, Mr. Stoll said, and I accept, that the person monitoring the computer in Yorktonfor Gardon Securities has the ability to manually enter information into the log about who was spoken to or who responded.

He,however, maintained, and I further accept, that, despite manual additions that may be made, it is not possible in this system to erase thecomputer record of the signal being received by telephone from a business such as Sturgis Meats. [19] The plaintiff submits, in pointing to what they characterized as inconsistencies in the printout, that there was a so-called glitchin Gardon Securities’ computer monitoring system that led to no alarm from Sturgis Meats being received by them on August 14, or thedays leading up to that day.

That purported failure of the Gardon Securities’ monitoring system is said to constitute a breach of theircontractual obligation to monitor the temperature in the freezer at Sturgis Meats. [20] The defendant, however, states that: (1) it is obvious that the monitoring equipment was working - as an alarm was receivedfrom Sturgis Meats on August 15, 2010 and no request for repair was ever received from the business after this incident; and (2) thedetailed computer records, which are unalterable, and the nature of the computer back-up system at Gardon Securities ensures that therewas no failure of the computer monitoring system.

The defendant says that the obvious cause of the fact that no alarm was received onor before August 14, 2010 is that the monitoring equipment of Sturgis Meats either failed - perhaps from lack of proper maintenance - orwas adjusted improperly by someone at Sturgis Meats. [21] Based on the original contract between the parties (Exhibit P-1), and ongoing payments being made in 2010 by Sturgis Meats,I am satisfied that the contract between the parties was solely for the monitoring of the temperature in the cooler and freezer at SturgisMeats, and did not include any obligation on Gardon Securities to maintain or repair the monitoring equipment at Sturgis Meats.

If suchupkeep was requested by Sturgis Meats, that would be done separately, and would form a separate agreement. [22] I am further satisfied, and find, that an employee of Gardon Securities was monitoring the signal from Sturgis Meats on thedates in question and that no freezer alarm was received before the alarm of August 15, when the computer monitoring system wasworking properly. Given the exclusion clause in this contract - which I am satisfied is enforceable (see Fraser Jewelers

(1982) Ltd. v.Dominion Electric Protection Co. (1997), (ON CA), 34 O.R. (3d) 1 (Ont. C.A.)) - the issue becomes whether therewas a cause beyond Gardon Securities’ control which resulted in no freezer alarm being received by them so it could be reported toSturgis Meats. [23] In my view it is not possible on the evidence to say with any certainty why Gardon Securities did not receive such an alarmgenerated by the rising of the freezer temperature at Sturgis Meats on or before August 14. It is possible that there was a so-called glitchin Gardon Securities’ computer system.

It is, however, equally possible that the reason no alarm was received by Gardon Securities wasthat none was generated at Sturgis Meats, either because of a failure or glitch in the temperature monitoring equipment (which I amsatisfied belonged to and was the responsibility of Sturgis Meats) or because of the way that monitoring equipment was set or adjustedby someone other than an employee of Gardon Securities. [24] In particular, regarding the latter possibility, I do not reject Mr. Stoll’s evidence that he spoke to Terry Hancock at least tentimes, during which conversations Mr.

Stoll explained how the monitoring equipment could be set. Nor am I satisfied, on the evidence,that Sturgis Meats was regularly having their monitoring equipment serviced or repaired.

That is obviously so given the lack of anyrequest for Gardon Securities to attend for a check of or the repair of the equipment after the incident, but as well I note from theevidence that the monitoring equipment was last serviced on January 19, 2010, about seven months before this incident and more thanthe minimum of six months suggested by Gardon Securities on their invoice. [25] Given that I find the explanation of what happened in this case, as given by Mr.

Stoll, to be at the least as plausible as thatpresented on behalf of Sturgis Meats, I am not satisfied on a balance of probabilities the plaintiff has proved that the defendant breachedthis contract by failing to monitor the freezer temperature and by failing to respond to Sturgis Meats. Put another way, there is not in myview proof to that standard that the reason Gardon Securities did not receive a freezer temperature alarm from Sturgis Meat was withintheir control. [26] This action is dismissed. There will be no order as to costs.

R. Green, J