Cowessess Indian Band No. 73 - v. -, 2015 SKPC 151

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2015 SKPC 151 Date: November 16, 2015 File: 114/14 Location: Melville _____________________________________________________________________________ Between: Cowessess Indian Band No. 73 - and - Gordon Harvey Alex Avramenko Nathan Phillips For the Plaintiff Self-Represented For the Defendant _____________________________________________________________________________ JUDGMENT R. GREEN , J ______________________________________________________________________________ I.

INTRODUCTION [ 1 ] The plaintiff claims against the defendant for: (1) an overpayment for work not done by him in cleaning up some of the plaintiff’s farmland ($2,505.00); (2) the cost of spray purchased by the plaintiff and given to the defendant, but not used by the defendant for spraying the plaintiff’s land as agreed ($2,850.00); and (3) costs arising from this action.

[ 2 ] The defendant originally brought a counterclaim alleging the plaintiff owed him for work he did for the plaintiff, but he withdrew that counterclaim before the trial.

The defendant defends this action by saying that: (1) it cannot proceed as it is out of time under The Limitations Act ; and (2) regardless, he did the work cleaning up the plaintiff’s land, and spraying it, and as a result, he is not liable to repay the plaintiff for any of the money advanced to him for cleanup or for the cost of the spray. [ 3 ] As an introductory issue, the defendant accepted, on the record during argument, that this Court has jurisdiction to try this action, despite him being an undischarged bankrupt.

The case management judge looked into this issue, and satisfied himself that this action, given Mr. Avramenko’s circumstances, did not result in this action being stayed under The Bankruptcy Act . [ 4 ] The plaintiff called three witnesses to testify: Loretta Delorme, the Land Leasing Co-ordinator for the plaintiff who dealt with the defendant in the spring and summer of 2012, and Vernon Glaicar and Raymond Hemming, both local farmers who leased land from the plaintiff and who were presented for their knowledge about whether the defendant cleaned up the plaintiff’s land as he was contracted to.

The defendant called two witnesses who worked for him: Trygve Eidem, who testified to cutting hay for the defendant on the plaintiff’s land and Davan Beattie, who testified to receiving spray for the defendant from Ms. Delorme and to spraying, discing and heavy harrowing for the defendant on the plaintiff’s land. The defendant decided not to testify, after being given that opportunity by me. [ 5 ] As I told both parties, this decision is based on the evidence received from these five witnesses. The only exceptions to this are: (1) the copies of two cheques for travel expenses of Mr. Glaicar and Mr.

Hemming placed into evidence with the defendant’s consent; and (2) any matters that I am able to take judicial notice of. [ 6 ] There was considerable, and visceral, acrimony between the defendant and counsel for the plaintiff during this trial. I gather this has arisen, in large part, because of other dealings and litigation between the parties. It is important in my view not to be sidetracked by collateral issues and animosity over other disputes. My focus will be on the issues to be determined in this action, which are:

(1) Is this action out of time under The Limitations Act ?

(2) Is the defendant liable to the plaintiff for breaching a contract for cleanup of the plaintiff’s land?

(3) Is the defendant liable to repay the plaintiff for the cost of the spray?

(4) What costs of the action should be ordered? II. BACKGROUND Loretta Delorme ’s explanation of the contracts and how they were breached [ 7 ] Key to the plaintiff’s case is three contracts entered into between the parties in the spring and summer of 2012. These contracts, which each included the legal description of the land involved, can be summarised as follows:

(1) The first contract (Exhibit P-2) was entered into between the parties on March 27, 2012. Through this contract the defendant agreed to cleanup specified lands of the plaintiff.

(2) The second contract (Exhibit P-3), signed by the defendant on July 2, 2012, provided that the defendant would spray 535 acres of the plaintiff’s land and, as well, provided that the plaintiff would purchase the herbicide Roundup for the defendant to be used in this spraying.

(3) The third contract (Exhibit P-4), signed on August 7, 2012, obligated the defendant to cut, bale and haul bales on the plaintiff’s

land. [ 8 ] Ms. Delorme said the first contract arose because the lands in question had not been farmed in years and, as a result, required cleanup. That contract, which contained a term of March 27 - May 15, 2012, covered cleanup work on portions of eight sections of the plaintiff’s land, totalling 2,113 acres. Relevant to this action, the first contract included cleanup work on 535 acres: NW 35-21-4 - 100 acres SW 35-21-4 - 140 acres NE 4-22-4 - 75 acres SE 4-22-4 - 100 acres SE 7-22-4 - 120 acres [ 9 ] These were the 535 acres which Ms.

Delorme claimed were not cleaned up by the defendant under the first contract, and which she listed under the heading of “Land not done” on a record she prepared (Exhibit P-5). [ 10 ] The first contract listed the work to be done on

section 35 as heavy harrowing. The work to be done on sections 4 and 7 is not specifically stated, although the contract generally referred to the “cleanup” of these lands. Under the first contract, the defendant was to be paid $6.00 per acre for heavy harrowing and $15.00 per acre for fuel. There was to be a 20% advance to the defendant, which Ms. Delorme said was paid to him ($8,874.00).

She said that the remaining 80% ($35,499.00) was paid to the defendant on June 4, 2012, even though the work under the first contract had not been done by then, as she was giving the defendant “the benefit of the doubt”. [ 11 ] As of May 15, 2012, the original date set for conclusion of the work under the first contract, Ms. Delorme knew the lands covered by this contract - and in particular the 535 acres mentioned above - had not been harrowed or otherwise cleaned up by the defendant. This was because she went out and inspected all of these lands.

She, as well, knew the lands were very wet, and was prepared to wait for the water table to go down so that the defendant could complete the work. She believed the defendant would eventually do the work on this first contract, even if that was later into the summer. She held this belief until early August, when she spoke to Cst. Stafford of the Melville RCMP. She was then told by this police officer that the defendant was being charged with fraud respecting the spray given by her to the defendant under the second contract. [ 12 ] That spray - Maverick spray which Ms.

Delorme said was similar to Roundup - was purchased by the plaintiff on June 25, 2012 from the Home Town Co-operative Limited for $2,850.00 (the receipt is Exhibit P-6). This spray was given by Ms. Delorme to Davan Beattie, an employee of the defendant, on July 1, 2012, when she gave him the spray and showed him the lands to be sprayed under the second contract. [ 13 ] On July 10, 2012, the defendant phoned Ms. Delorme on her cell phone, while she was on vacation in Montana. He asked her who took the spray and said he had reported this theft to the RCMP.

She had no idea who had taken the spray, but told the defendant she would make some inquiries with her employees. She did so, and phoned the defendant back to say none of her staff had taken the spray. [ 14 ] On July 30, 2012, Ms. Delorme left a message for Cst. Stafford of the RCMP, who returned that call on July 31. The officer asked Ms. Delorme what her involvement was and she told him. The officer told her not to let the defendant know that she had been in contact with the RCMP. This concerned her as she thought, in her words, “something was up”. [ 15 ] Subsequently, Ms.

Delorme gave a statement to the police on August 9, 2012. Prior to her conversation with the police officer, she didn’t have any reason to believe that the defendant wasn’t dealing with the plaintiff in a forthright manner. That belief changed after her contact with the police. In particular, she said that, on August 10, 2012, she was told by the police officer and by the defendant - in separate phone calls - that the defendant was getting charged with fraud. Specifically, when she asked the defendant what was to happen regarding the spray, he responded: “Call your insurance.

The RCMP have the file”. [ 16 ] In cross-examination, the defendant asked Ms. Delorme why, if the cleanup work under the first contract had not been done,

she would hire the defendant to do hay baling work under the third contract on August 7, 2012. She responded by saying the defendant had done good work for the plaintiff in the past, and it was not until the discussion with Cst. Stafford on August 10 that she decided to terminate their business relationship. The farmers who subsequently leased some of the land involved in these contracts from the plaintiff [ 17 ] In 2012, Vernon Glaicar leased 650 acres from the plaintiff. These lands included the west half of 35-21-4, the north half of 10-22-4 and the southwest quarter of 10-22-4.

His agreement with the plaintiff was that the land would be ready for him to seed in the spring of 2012. However, the land, and in particular

section 35, was not in his opinion heavy harrowed by anyone else in 2012. As a result, he harrowed this part of

section 35 twice and, as well, sprayed it to get it “into shape”. When asked how confident he was that no one else had heavy harrowed

section 35 in 2012, he said he was very confident, as there were no harrow marks on the land. [ 18 ] In her evidence, Ms. Delorme said that it was the Glaicars who heavy harrowed

section 35, and not the defendant. [ 19 ] In 2012, Raymond Hemming leased approximately 300 acres from the plaintiff: NE 6-20-4 and NW 5-20-4. These lands were some of the lands covered by the second contract. Mr. Hemming said that none of these lands were sprayed by anyone else in 2012. He knew this because he farmed the land next to

section 6, and as a result could see whether anyone was on the land. He was, as well, confident that no one else sprayed this land in 2012, as when he took over the land in the fall of 2012 there were three foot high weeds on the land which had gone to seed. While he said he did see a sprayer out on the land, he never saw anyone spraying with it. He also said there were no tracks from a sprayer on this land. [ 20 ] Mr. Hemming said he sprayed the land in 2013.

Regarding the years 2012, 2013 and 2014, he confirmed that the weather was quite wet, which meant that there were a lot of sloughs that could not be worked and seeded properly. Mr. Hemming was asked whether Roundup would have been enough to kill the weeds on this

section and he said it would have been. [ 21 ] Ms. Delorme was asked what lands, if any, were sprayed by the defendant under the second contract. She said none of the lands were sprayed, because she went out and looked at the lands. As a result, she bought more spray and gave this to Mr. Hemming for him to spray the land he had leased from the plaintiff. The defendant ’s evidence about work done for the plaintiff [ 22 ] Trygve Eidem said he was cutting hay for the defendant, which I assume was under the third contract, on the Cowessess Reserve property.

In doing so, the conditions were wet and the haybine became stuck. He further said that, south of where he was cutting hay, the defendant was discing and his disker and tractor got stuck, so he helped the defendant pull these out. [ 23 ] Davan Beattie said he sprayed land on the Cowessess First Nation, although he was not sure how much. He did this two years ago, and further said that, in addition to the spraying, he did discing and harrowing for the defendant at the Cowessess First Nation. [ 24 ] Mr. Beattie said Ms. Delorme provided the spray to him and showed him what was to be sprayed by the defendant. Ms.

Delorme took him to the quonset and supervised him loading the trailer onto which the spray was placed. She, as well, showed him where to park the trailer for the night. He said he didn’t use the sprayer and spray after he loaded the trailer because the GPS on the sprayer was malfunctioning and Mr. Beattie did not know how to fix the GPS himself. [ 25 ] Mr. Beattie did not drive the trailer home that evening, because he had a problem with his truck. He said that, a couple of days later, only the sprayer, and not the spray, was remaining where he had left it.

He initially claimed that, after the spray was taken, he did spray for Cowessess. However, on cross-examination, he admitted that all of the spraying he did occurred prior to the spray being stolen.

[ 26 ] In cross-examination, Mr. Beattie clearly did not know which field he did heavy harrowing on. Nor did he know how many hours he actually spent spraying. He further admitted that none of the spray given to him by Ms. Delorme was used to spray Cowessess lands. He accepted that the spray had been transferred to him by Ms. Delorme as representative of the defendant and that he had no personal knowledge whether any of the lands he was directed to spray by Ms. Delorme were actually sprayed. III. IS THIS ACTION OUT OF TIME UNDER THE LIMITATIONS ACT ? [ 27 ]

Section 5 of The Limitations Act provides, in part, that no proceedings shall be commenced with respect to a claim after two years from the day on which the claim is discovered. I am satisfied that, for the purposes of this section, this claim was commenced on August 1, 2014, when Mr. Phillips faxed a copy of the claim to the Court with his letter (Exhibit P-8). Section 6(1) of that Act further says, in part, that a claim is “discovered” on the day on which the claimant first knew or in the circumstances ought to have known: (

a) that the injury, loss or damage had occurred; (

b) that the injury, loss or damage appeared to have been caused by or contributed to by

an act or omission that is the subject of the claim; (

c) that the act or omission that is the subject of the claim appeared to be that of the person against whom the claim is made; and (

d) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it. [ 28 ] The defendant argued that, because Ms. Delorme knew the spray was stolen on July 10, 2012, the action was out of time. For the reasons that follow, I disagree. [ 29 ] I am satisfied that it was only after Ms. Delorme’s conversation with Cst.

Stafford and the defendant on August 10, 2012, that she came to believe that the defendant was not dealing with the plaintiff in a forthright manner and, as a result, would not complete the heavy harrowing work under the first contract or the spraying work under the second contract. While the term of the first contract was stated to be March 27 - May 15, 2012, I am further satisfied that time was not of the essence under this contract, and that the parties intended, especially considering the very wet conditions, that the cleanup work could still be done after May 15.

The second contract, for spraying, contained no such term of when the spraying was to be done, but I accept that the parties intended that work be done as soon as reasonably possible. [ 30 ] As a result, and although Ms. Delorme may have known on July 10, 2012 that something had happened to the spray she gave to the defendant, I am satisfied - applying the definition of “discovered” from s. 6 of the Act - that Ms. Delorme discovered the claim against the defendant for the heavy harrowing and the spray on August 10, 2012, when she was told by both Cst.

Stafford and the defendant, that the defendant was being charged with fraud respecting the spray. This claim, therefore, was commenced within two years of being discovered and is not barred by s. 5 of the Act or, in everyday words, is not out of time. IV. IS THE DEFENDANT LIABLE TO THE PLAINTIFF FOR BREACHING THE FIRST CONTRACT FOR CLEANUP OF THE PLAINTIFF ’S LAND? [ 31 ] In its summons, commencing this action, the plaintiff claimed that the defendant had breached the first contract by not cleaning up certain of its lands, which resulted in an overpayment of $2,505.00.

[ 32 ] In Ms. Delorme’s list of lands not cleaned up by the defendant under the first contract, and the resulting overpayment to him (Exhibit P-5), the total payment made to the defendant for heavy harrowing 535 acres under the first contract is listed as $11,235.00. In calculating the overpayment to the defendant on the first contract, two amounts were deducted: (1) for heavy discing 410 acres on SW 10-22-4, NW 10-22-4 and NE 10-22-4, a deduction of $7,380.00; and (2) for the defendant cutting hay on NE 15-21-4, a deduction of $1,350.00.

This resulted in an overpayment claimed against the defendant of $2,505.00. [ 33 ] One part of the plaintiff’s argument about the first contract requires comment. In submitting that this cleanup work had not been done by the defendant, Mr. Phillips stated at paragraph 29 of his brief that 535 acres were not heavy harrowed by the defendant and that 410 acres were not heavy disced by him. Those 410 acres, as best I can tell, are found on the SW 10-22-4, the NW 10-22-4 and the NE 10-22-4.

While, for the reasons I will soon state, I accept that the defendant did not heavy harrow the 535 acres he was paid for under the first contract, I nevertheless am not satisfied that the defendant did not heavy disc the 410 acres. That is because: (1) on cross- examination, Mr. Glaicar was asked when the defendant heavy disced three quarters of

section 10 for him and he responded that this was in mid-July; (2) in her evidence, Ms. Delorme said that, although the defendant heavy disced

section 10, the Glaicars redid it; and (3) as noted above, a deduction for heavy discing these exact acres was made by Ms. Delorme in Exhibit P-5. [ 34 ] Returning to the 535 acres the defendant was to heavy harrow under the first contract, I am satisfied that the best evidence on whether this work was done by the defendant is:

(1) Ms. Delorme’s evidence, who said she inspected all of this land by May 15, 2012 and none of it had been harrowed; and

(2) Mr. Glaicar’s evidence that he was very confident that no one other than himself heavy harrowed the west half of 35-21-4 in 2012 as there were no harrow marks on the land. [ 35 ] While Mr. Beattie testified to doing discing and harrowing for the defendant at the Cowessess First Nation, he clearly did not know which field(

s) he was working on, and he did not at any point say when he did this. Taken together, I am satisfied on a balance of probabilities that the defendant did not heavy harrow these 535 acres of the plaintiff’s land, as was agreed in the first contract and as he was paid for by the plaintiff. As a result, the plaintiff shall have judgment against the defendant for the overpayment - as calculated in Exhibit P-5 - of $2,505.00. V.

IS THE DEFENDANT LIABLE TO REPAY THE PLAINTIFF THE COST OF SPRAY PROVIDED TO THE DEFENDANT UNDER THE SECOND CONTRACT? [ 36 ] Under the second contract for spraying, the plaintiff was to “buy the Roundup”. The land to be sprayed under this contract was said to be 535 acres - but actually by the list below from the contract totals 534 acres: NW 18-19-4 125 acres NE 18-19-4 100 acres NE 6-20-4 120 acres SW 5-20-4 80 acres NW 5-20-4 109 acres [ 37 ] Ms. Delorme, on July 1, 2012, provided the defendant, through Mr. Beattie, with herbicide spray purchased for $2,850.00 by the plaintiff.

This spray was to be used by the defendant in spraying the plaintiff’s land under the second contract. Despite the second contract referring to the herbicide Roundup, I am satisfied that parties intended that the contract would apply to a chemical equivalent of Roundup, which I am satisfied Maverick is, based on Ms. Delorme’s testimony. [ 38 ] While the defendant did not testify, he nevertheless argued that the evidence supported a conclusion that he did the required spraying under the second contract. [ 39 ] Ms.

Delorme said none of the land was sprayed by the defendant under the second contract, as she had gone out and viewed the lands. As a result, she had to buy more spray, which she gave to Mr. Hemming and had him spray parts of sections 5 and 6 that Mr. Hemming had leased from the plaintiff.

[ 40 ] Mr. Hemming’s evidence was that, in 2012, he leased NE 6-20-4 and NW 5-20-4 from the plaintiff. He was confident none of these lands were sprayed by anyone else in 2012, as he farmed the land next to

section 6 and could see no one else was on the land, and as, when he took over the land in the fall of 2012, there were three foot high weeds on the land which had gone to seed. While he saw a sprayer out on the land, he did not see anyone spraying with it and there were no tracks from a sprayer on this land. [ 41 ] While Mr. Beattie initially claimed that, after the spray was taken in early July, he did spraying on the Cowessess lands, he admitted on cross-examination that all of the spraying he did occurred prior to the spray being stolen. He further admitted that none of the spray given to him by Ms.

Delorme was used to spray the Cowessess lands and that he had no personal knowledge whether any of the lands he was directed to spray by Ms. Delorme were actually sprayed. [ 42 ] Considering the evidence of the plaintiff in contrast to that of the defendant, and in particular the cross-examination of Mr. Beattie, I view evidence of Ms. Delorme and Mr. Hemming as the best evidence on the question of whether the defendant sprayed the required lands under the second contract.

As a result, I am satisfied that the plaintiff has shown that the defendant did not spray the land he was obligated to spray under the second contract, and, further, that the defendant should be liable to repay the plaintiff for the cost of the spray which was intended to be used for spraying these lands ($2,850.00). [ 43 ] Two other issues require comment as they were argued by the parties, although - for the reasons I will state - they do not change my findings.

The plaintiff argued that the contents of a letter dated September 5, 2012 (Exhibit P-9), sent to the defendant and signed by him, his wife Susan and his son Stephen, supported the liability of the defendant for the spray. [ 44 ] That letter, marked “without prejudice”, contains the following passage: It has been brought to our attention that Loretta doesn’t want to deal with us anymore over some spray. Your spray was stolen the first week of July from our trailer with our trailer. Your insurance is suppose(d) (sic) to cover the spray from what our company has told us.

We will replace the spray at our cost only if you call us to respray the 5 quarters for you. [ 45 ] Mr. Phillips argued that this letter was not privileged, as the defendant did not testify about his intention in sending the letter and as the letter disclosed no bona fide effort for settlement. I disagree.

That is because this letter, received from three signatories including the defendant and obviously referring to a series of transactions and disputes between the plaintiff and the defendant and his family, contains what is clearly an overture for settlement or compromise. [1] As a result, I accept that the letter is privileged. [ 46 ] Nor do I accept the plaintiff’s further argument the defendant waived this privilege, when this letter was apparently attached eight months later to a memo faxed by Falcon Collections to what appears to be an employee of the plaintiff, although the recipient was never established in the evidence.

Even setting aside the vagaries of between whom these faxed documents were exchanged, the documents included a demand letter to the plaintiff from the defendant and his family, which in my view clearly refers to a dispute over rental agreements between the parties and not to the issue of the spray. [ 47 ] Lastly, in his brief Mr. Phillips, at para. 19, said the defendant is involved in ongoing litigation - Triple A Farms v State Agriculture Development Inc. , 2014 SKQB 369 - in which he was accused of misappropriating, in September 2012, materials provided to him to conduct farming.

My reading of the case report is that State Agriculture Development Inc. counterclaimed that Triple A Farms and the defendant and his wife (all plaintiffs in the QB action) converted fertilizer to their own use. Given that this is an allegation, only, in ongoing litigation, I draw no adverse inference against the defendant based on it. Nor, aside from the limitations issue, do I do so on the issue of any suggestion the defendant was to be charged with fraud over the spray. While Ms.

Delorme was properly entitled to consider what she was told by the police officer, and by the defendant, in terminating the plaintiff’s business relationship with him, there is clearly no confirmation in the evidence that the defendant was actually charged. VI. COSTS OF THE ACTION [ 48 ] In the plaintiff’s summons, costs were claimed for issuing the summons ($53.00) and serving the summons ($149.10). Copies of cheques payable to Ray Hemming ($120.00) and to Vernon Glaicar ($150.00), were tendered as Exhibit P-1, which Mr. Phillips

submitted represented the cost of transportation, meals and witness fees for each witness. Mr. Phillips as well argued that costs should be ordered for Ms. Delorme’s mileage, at $.42/km., from the Cowessess First Nation, to attend the trial and one case management conference ($105.00). Having reviewed s. 5 of The Small Claims Regulations, 1998 and s. 31 of The Small Claims Act, 1997 , I am satisfied that an award of these costs is appropriate, which total $577.10. [ 49 ] In Mr. Phillips’ brief, he as well argued that I should award the plaintiff mileage for the cost of his personal travel to the trial.

Section 31 of the Act does not allow lawyer-related costs, and, as a result, this claim is not allowed. VII. CONCLUSION [ 50 ] After case management, a full day of hearing evidence, an adjournment for the preparation of detailed briefs of argument which were filed, and a full hearing of that argument, for the reasons set out above, the plaintiff shall have judgment against the defendant, an undischarged bankrupt, for:

(1) The overpayment to the defendant under the first contract $2,505.00

(2) The cost of the spray under the second contract $2,850.00

(3) Interest under The Prejudgment Interest Act from August 10, 2012 $151.12

(4) Costs of the action $577.10 ________ For a total of: $6,083.22 R. Green, J [1] See Abrams v Grant , [1978] OJ No. 2283 at par 5 .