Jeffrey Zuchkan - v. -, 2012 SKPC 9

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2012 SKPC 009 Date: January 3, 2012 File: 100/10 Location: Canora _____________________________________________________________________________ Between: Jeffrey Zuchkan - and - Biggar Transport

(2006) Ltd. Self For the Plaintiff Steven Balzer For the Defendant _____________________________________________________________________________ JUDGMENT R. GREEN , J _____________________________________________________________________________ I. OVERVIEW [ 1 ] The Plaintiff farms near Insinger. In May of 2009, he sold five truck loads of canola to Cargill Ltd. (Cargill). Cargill, in turn, arranged for the Defendant, a trucking company, to pick up this canola from the Plaintiff. [ 2 ] On May 22, 2009, the Defendant sent five trucks to the Plaintiff’s farm, each to pick up a load of canola. These were taken

[ 2 ] On May 22, 2009, the Defendant sent five trucks to the Plaintiff’s farm, each to pick up a load of canola. These were taken to the Cargill elevator in Clavet. The first one and two thirds loads of canola were taken from a bin located on the Plaintiff’s field, about seven miles from the Plaintiff’s homestead. The remaining three and a third loads were taken from an 8,000 bushel bin located in the yard of the Plaintiff’s homestead. [ 3 ] Cargill accepted four of these loads - loads one, two, three and five - but rejected the fourth load because it was contaminated with fertilizer.

Some time after that load was rejected, the Defendant’s truck driver, Larry Aug, drove the fourth load to the Defendant’s yard in Saskatoon, where it remained for a couple of days. That load was then delivered to Oleet Processing Ltd. (Oleet) in Regina, a feed processor, where it was sold at a discount, given the contamination.

The Plaintiff received $8,775.00 for the contaminated load from Oleet on June 1, 2009. [ 4 ] The Plaintiff claims the Defendant contaminated the fourth load, and, as a result, is liable to him in the tort of negligence for the difference between what the fourth load would have brought him from Cargill, if not contaminated, and what he received from Oleet, a difference he says is $8448.43.

The Plaintiff also claims for the costs associated with two witnesses attending the trial and the cost of attempts to subpoena a third witness. [ 5 ] The Defendant denies liability, saying it is just as likely, if not more likely, that the Plaintiff contaminated the grain himself with fertilizer, before it was loaded onto the Defendant’s truck. [ 6 ] The issue is simple. Is there proof on a balance of probabilities that the Defendant contaminated the fourth load of Canola taken from the Plaintiff’s farm? The Plaintiff testified in support of his claim.

He as well presented his son, Garret Zuchkan, who helps him farm, and Richard Yaremko, a person who had worked with fertilizer and canola for many years and at the date of this claim was employed by Cargill. The driver who picked up the fourth load, Larry Aug, was the only witness for the Defendant. II. EVIDENCE OF THE PLAINTIFF [ 7 ] The Plaintiff, who was not seeding the day the Defendant’s trucks picked up his canola, said he and his son, Garret both took

part in loading the first two trucks, and that Garret was involved with loading trucks three, four and five. While the last three trucks were being loaded, the Plaintiff was working in his yard, preparing “burn off” and making adjustments for an extra set of wheels on his sprayer. [ 8 ] The Plaintiff used a number of augers at his farm. A blue auger was used to load this canola into the Defendant’s trucks. While the blue auger had been used exclusively to that point in 2009 for grain, in the previous years the blue auger had, in special circumstances, been used for fertilizer.

He as well used an orange auger exclusively for loading and unloading fertilizer. He also used a red auger for handling fertilizer. [ 9 ] When asked how he put the Canola into the 8,000 bushel bin in his farmyard, he said that he used another auger to do this (i.e. other than the ones already mentioned). When asked whether he dried his Canola, he denied this, but rather said that he used a fan through the top of the bin to cool off the grain. [ 10 ] Garret Zuchkan (Garret) is twenty-four years of age, and said he had been helping his father out with the farm operation since he was twelve years of age.

As a result, he knows how to operate all the farm machinery everything except for the air seeder. [ 11 ] On the date in question, he was involved in loading five of the Defendant’s trucks with canola, both at a bin in his father’s field and the remainder back at the farmyard. Regarding the fourth truckload, he said he recalled that the driver, Mr. Aug, told him that he had come from Ituna and that he had been hauling fertilizer on his last load. When Mr.

Aug pulled into the Plaintiff’s farmyard, he positioned the truck under the auger that was connected the main Canola bin. [ 12 ] Garret said he then loaded all four hoppers of the fourth truck, two in each trailer of this tandem trailer unit. He denied taking that auger out of the canola bin at any point that day, and did not recall any other auger sticking out of it. He said the tarpaulins on Mr. Aug’s truck were open when he arrived at their farm. [ 13 ] Garret admitted that they had been seeding the day before, and said that their air seeder had an attachment for fertilizer.

He said that the air seeder had a hydraulic auger which was used to load fertilizer. [ 14 ] Garret denied that the canola was ever moved from the bin in their field to the bin at their farmyard, but rather said the canola was harvested and then brought directly to either bin. He said the grain trucks they used at their farm were used both to haul grain and fertilizer. He, however, said that he cleaned out the box between the different usages. He said, on the day before, that one truck was used to haul the seed and the other truck was used to haul fertilizer. [ 15 ] Mr.

Yaremko said that as of May 2009, he had worked at Cargill for fourteen years as a Co-op Inputs Manager. He had experience with fertilizer and grain. He said, over his career, he had dealt with loading about a thousand trucks with fertilizer. When shown a printout detailing the inorganic chemistry of the contaminant found in the Plaintiff’s fourth load, as apparently provided through Cargill (Exhibit P6), he described this as a 34-17 blend of fertilizer.

He further said this was the type of fertilizer that the Plaintiff bought. [ 16 ] When shown Exhibit P1 - a printout from Cargill showing the loads of canola taken on the date in question for which there

was payment made to the Plaintiff - he described 3.4% as a “normal” amount of dockage. Regarding the printout from Oleet, where the entry of dockage was described as “18%/heated”, this suggested to him that the canola received by Oleet was not from the same bin as the canola rejected by Cargill, given the lower dockage figures on Exhibit P-1 for the rest of the Plaintiff’s canola. [ 17 ] In Mr. Yaremko’s experience, he recalled two incidents where canola was contaminated by fertilizer. In one case, the truck driver did not properly clean out the tarpaulins that covered the trailers.

Otherwise, he said that fertilizer from a previous load could hang up in the corners, but said that it was most likely to result from fertilizer sticking to the tarpaulins, as humidity will make fertilizer stick to a tarpaulin. III. EVIDENCE OF THE DEFENDANT [ 18 ] Mr. Aug said he had worked for the Defendant for five and three quarter years, and in total had been a truck driver for fourty- four years. In his work for the Defendant, he has hauled canola and other cereal grains, feed pellets, canola meal, and fertilizer.

He said when he loads his trailer with the fertilizer, the fertilizer is loaded into the top of his trailer through a spout provided by the supplier. [ 19 ] On May 22, 2009, he picked up a load of fertilizer in Ituna and delivered it to Lestock. After delivering the fertilizer load, he swept out his trailers. He did so with a broom, and said his practice is to sweep out all the corners. There was one other individual helping him sweep out the truck in Lestock, with Mr. Aug sweeping the hoppers from the inside and the other fellow sweeping the gates out. [ 20 ] Mr.

Aug admitted that, while back in 2009 the practice followed by truck drivers was to sweep out a trailer after delivering a fertilizer load, the practice now to wash out a trailer after delivering fertilizer. He said this new practice started in 2010. Mr. Aug further admitted that it was possible that when he was sweeping out the trailer that he did not clean out all of the fertilizer. [ 21 ] When asked whether the floor was wet at the plant where he loaded this fertilizer in Ituna, Mr. Aug said he did not know as he did not go inside the plant.

He admitted it was possible that it was humid inside the shed, and said it took him ten minutes to load the fertilizer. He further admitted that it was possible that the auger loading the fertilizer into the hoppers of his truck sprayed the fertilizer onto the tarpaulin and elsewhere onto the truck. [ 22 ] Mr. Aug said that, before he left Lestock, he inspected his trailer, and didn’t see any fertilizer. He said the front of his two tarpaulins on his tandem trailer truck, covering the front two hopper bins, was left open when he left Lestock.

He then stopped near Leross, at the junction of Highways 35 and 16, when he closed the front tarpaulin. He believed this would have resulted in any fertilizer stuck to the front tarp being blown off. [ 23 ] Mr. Aug said that, at the Plaintiff’s farm, Garret was busy adjusting the grain flow during loading of the front two hopper bins, and while loading the back two hoppers, he and Garret had a conversation. He claimed that there was another auger in the top of the canola bin and that the lid of this bin was open.

He paid no attention to whether there were any fertilizer truck on the farm, but saw a tub of fertilizer sitting near the loading area of the canola. [ 24 ] After loading the Plaintiff’s canola, he drove to the Cargill plant in Clavet, and, after this load was rejected by Cargill, he, at some point, drove his truck and load back to the Defendant’s yard in Saskatoon. He said, a few days later, he drove this same truck and load to Oleet Processing in Regina. [ 25 ] Mr. Aug said, when the load was inspected in the Defendant’s yard in Saskatoon, he could see fertilizer randomly sprinkled at the top of the canola.

He said this was obvious in the front hopper and not as obvious in the second hopper. When asked why he did not see the fertilizer in the canola at the point it was being loaded at the Plaintiff’s farmyard, he said he thought what he saw there was chaff and not fertilizer. When the Plaintiff showed him, by demonstration in Court, canola with fertilizer sprinkled into and clearly visible against the canola, he said he might have seen the fertilizer if he looked but he didn’t see it. IV.

ANALYSIS Was negligence proven? [ 26 ] Does the evidence prove on a balance of probabilities that the Defendant was the cause of the contamination of the fourth load, and, therefore, negligent? Put another way, is it more likely than not that the Defendant, and not the Plaintiff, caused this canola to be contaminated by fertilizer? [ 27 ] In this case I have considered the defense evidence and in particular that:

(1) Mr. Aug testified to sweeping out his trailers after delivering the fertilizer load and to leaving the front tarpaulin open when departing from Lestock;

(2) Mr. Aug said he left the front tarpaulin on his truck open, and then drove to Leross where he closed it without him seeing any fertilizer debris;

(3) Mr. Aug testified there was fertilizer located near the bin where the canola was loaded in the Plaintiff’s farmyard; and

(4) Mr. Aug said he saw fertilizer in the front two hoppers of this tandem trailer unit when it was parked at the Defendant’s yard in Saskatoon.

[ 28 ] Nevertheless, and even considering that Mr. Yaremko described the fertilizer found in the fourth load by Cargill to be was the same type of fertilizer that the Plaintiff bought, I am satisfied on a balance of probabilities that the Defendant caused the contamination of the fourth load. That is because:

(1) While four of the five loads of canola taken from the Plaintiff by the Defendant that day were delivered to Cargill in an uncontaminated state, the fourth of these five loads was contaminated by fertilizer, and this load was taken by a truck that had, that day, last delivered a load of fertilizer;

(2) Other than the fourth load, more than two other loads of canola were taken from the same 8,000 bushel bin on the Plaintiff’s farmyard without any contamination by fertilizer;

(3) Mr. Aug admitted that he might not have removed all the fertilizer from his trailers when sweeping out the hoppers after delivering the fertilizer in Lestock;

(4) Mr. Aug, as well, admitted it might be possible that it was humid inside the shed when he loaded the fertilizer and further admitted that it was possible that the auger loading the fertilizer into the hoppers of his truck sprayed the fertilizer onto the tarpaulin and elsewhere onto the truck. That, in my view lends credibility to Mr. Yaremko’s evidence about the connection between humidity and fertilizer sticking to a tarpaulin and then contaminating canola;

(5) Mr. Aug said, while the practice in 2009 was to sweep out his trailers after delivering fertilizer, the practice in 2010 was changed to provide that a trailer had to be washed out after fertilizer was delivered. That in my mind shows how much of a contaminant fertilizer could be to a subsequent load, such as canola.; and

(6) Mr. Aug did not see any fertilizer immersed with the canola when it was loaded at the Plaintiff’s farmyard, although he acknowledged, upon demonstration by the Plaintiff, in Court, that fertilizer could easily be seen when immersed in canola. [ 29 ] Given the contrary evidence on this, I make no finding, and cannot determine, whether Mr. Aug arrived at the Plaintiff’s farm with his tarpaulins opened or closed or whether there was another auger in the farmyard bin of canola from which the fourth load was taken.

Nor am I satisfied from the evidence that there was any contamination of the fourth load from the fertilizer contained in the tub located at the Plaintiff’s farmyard. What damages were proven? [ 30 ] The Plaintiff claimed a difference of $8448.43 between what Oleet paid him for the fourth load of canola and what he would have been paid by Cargill, in the absence of contamination. He calculated this as follows:

(1) The weight of the fourth load of canola when unloaded at Oleet: 36.950 tonnes

(2) Less a fair dockage percentage for impurities in the canola: 4%

(3) For an adjusted weight of: 35.472 tonnes

(4) Multiplied by what he said was “the price of the day”: $485.55/tonne

(5) For a total of: $17,223.43

(6) Less the amount paid to him by Oleet: $8,775.00 ____________

(7) For a difference of: $8,448.43

[ 31 ] I, however, am not satisfied that there is sufficient proof of the dockage figure in these calculations. The position that 4% is the appropriate dockage figure be taken in the context of the printout from Cargill (Exhibit P-1), which shows dockage amounts varying from 3.4 - 9.6% for the Plaintiff’s canola. Mr. Yaremko’s evidence was that 3.4% was a “normal” amount of dockage.

The Plaintiff said the higher dockage figures were for the canola taken from his field where he claimed - without explaining - that there would be a higher dockage level, while the lower figures represented the canola taken from his farmyard bin, where the fourth load originated. After considering the Plaintiff’s evidence on this, including Mr. Yaremko’s opinion of the “normal” dockage level, I am nevertheless satisfied that the best evidence on the dockage level of the fourth load - given that I accept Mr.

Aug’s evidence that he delivered the same trailer and load to Cargill in Clavet as that he did to Oleet in Regina - to be that measured and stated by Oleet in Exhibit P-1: 18%. That dockage figure results in an adjusted weight of 30.299 tonnes . [ 32 ] As noted above, the Plaintiff said the so-called price of the day for uncontaminated canola was $485.55. According to the printout from Cargill, the price per tonne for the canola delivered to them by the Plaintiff on this occasion varied from $417.75 to $617.29 per tonne, I gather based on the pre-contracted futures price for each load.

While there was no indication of what the futures price was for the fourth load, if it had been accepted by Cargill, I am satisfied that the Plaintiff should not recover an amount based on a price per tonne higher than the one he stated in evidence as the price of the day, an amount he originally used to calculate his claim against the Defendant in his summons. [ 33 ] As a result, I find that the following damages have been proven:

(1) Adjusted weight of canola at Oleet (with 18% dockage): 30.299 tonnes

(2) Multiplied by the price per tonne of: $485.55

(3) For a total of: $14,711.68

(4) Less the amount paid to the Plaintiff by Oleet $8,775.00 _______

(5) For total damages of: $5936.68 V. CONCLUSION [ 34 ] The Plaintiff shall have judgment against the Defendant in the amount of $5936.68 . [ 35 ] The Plaintiff also sought costs associated with bringing his son and Mr. Yaremko to the trial. Given that the Plaintiff’s son is what might be described as a de facto partner in the Plaintiff’s farm operation, and as I am satisfied that he was an integral

part in this claim being brought, I am not satisfied that there should be costs awarded for his attendance in Court. Mr. Yaremko in my view, however, stands in a different light as he was not directly connected to the farming operation, and was called as a witness given his experience with fertilizer and contamination of canola. The Plaintiff shall have costs for him - a per diem and mileage - totaling $103.57 .

No costs, associated with the Plaintiff’s attempt at subpoenaing a further witness will be ordered, as, at a start, I have no idea what relevance the person’s evidence might have been to this trial. [ 36 ] The Plaintiff shall also receive costs for issuing this summons ( $85.00 ) and interest on the principal sum, under The Prejudgment Interest Act, from May 22, 2009. ___________________________________ R. Green, J