W S White ’s Ag Sales & Service Ltd. - v. -, 2016 SKPC 80

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2016 SKPC 080 Date: May 31, 2016 File: 132/15 Location: Broadview _____________________________________________________________________________ Between: W S White ’s Ag Sales & Service Ltd. - and - Gerd Martin Walter White For the Plaintiff T. Avery For the Defendant _____________________________________________________________________________ JUDGMENT R. GREEN , J ______________________________________________________________________________ I. INTRODUCTION [ 1 ] Gerd Martin’s 1999 Massey Ferguson tractor broke down in February of 2013.

It was his only tractor, which he used to feed his small herd of livestock at his farm north of Qu’Appelle. As a result of the breakdown, he telephoned W S White’s Ag Sales & Service Ltd. in Whitewood, who picked up the tractor a few days later. Mr. Martin wanted his tractor fixed by the plaintiff quickly, but much to his chagrin, he did not receive it back from the plaintiff until late June or early July of 2013.

[ 2 ] Mr. Martin did not pay any of the plaintiff’s invoice of $11,105.99, which was issued by the plaintiff on September 26, 2013 (Exhibit P-2). As a result, the plaintiff sued the defendant for this amount, together with interest at 2% per month from billing date or interest under The Prejudgment Interest Act, in the alternative, and other costs of this action. [ 3 ] Mr. Martin disputes the claim in two ways. First, he says the plaintiff’s claim is out of time under The Limitations Act . Second, he says that, if the claim was commenced within the appropriate time: (

a) the plaintiff’s invoice was larger than it should have been for the work done, (

b) he never agreed to pay interest, and (

c) he should be entitled to set-off an amount from the invoice for: (1) his loss of the use of the tractor while in the plaintiff’s possession; (2) the plaintiff’s delay in fixing the tractor; and (3) the lack of communication by the plaintiff with him about his tractor. [ 4 ] Given the pleadings and the submissions of the parties at the trial, the issues I am to determine are:

(1) Is this action barred by The Limitations Act ?

(2) If not, how much does the defendant owe the plaintiff for repairing his tractor?

(3) Is the plaintiff entitled to interest on the unpaid amount? and

(4) What amount, if any, should the defendant be allowed to set-off against the amount he otherwise owes the plaintiff for fixing his tractor? [ 5 ] Witnesses for the plaintiff were:

(1) Walter White, owner and president of the plaintiff, a company which no longer sells or repairs farm machinery;

(2) Heather Szakacs, service manager of the plaintiff in 2013; and

(3) Malcolm Frier, parts manager of the plaintiff in 2013. [ 6 ] Mr Martin testified in his own defense. II. IS THIS ACTION OUT OF TIME? [ 7 ] Relevant to this claim, The Limitations Act provides: In s. 5, that no proceedings shall be commenced after two years from the day the claim is discovered; and In s. 6(1), that a claim is discovered on the day on which the claimant first knew or in the circumstances ought to have known that the

injury, loss or damage had occurred. [ 8 ] As I understand Mr. Martin ’ s position, he says that on the day the plaintiff finished work on his tractor, in late June or early July, 2013, the plaintiff knew Mr. Martin owed money for the repairs to the plaintiff. As a result, he claims this action, issued on September 24, 2015, was commenced outside of the two year limitation period. I disagree. [ 9 ] It is obvious that the plaintiff did not act quickly in issuing the invoice for this work on September 26, 2013.

That said, I do not see how the plaintiff, through its agents, could have reasonably known that the plaintiff had a legal claim in debt against Mr. Martin until the invoice was sent to him, and he refused to pay, a situation which has continued to the present. As a result, I am satisfied that this action was commenced less than two years from when the plaintiff, through its agents, knew or ought to have known it had a claim in debt against Mr. Martin. III.

HOW MUCH OF THIS INVOICE DOES THE DEFENDANT OWE TO THE PLAINTIFF? [ 10 ] Aside from the issues of the limitation period and of set-off, based on the arguments presented at the trial, there does not appear to me to be a dispute over how much is owing on the invoice issued by the plaintiff on September 26, 2013.

That invoice, in the amount of $11,105.99, is what the plaintiff claimed as owing for the repairs in this action, and I am satisfied this amount sets the upper limit of any potential recovery on the debt. [ 11 ] I say that despite the plaintiff filing a statement at the trial (Exhibit P-3) which was prepared by Mr. White around April 30, 2016 using the Excel program, at a time when he could no longer access the plaintiff’s electronic record keeping system. While that statement states an amount owing by Mr.

Martin for this repair, before interest, of $16,006.19 - I gather because some discounts given earlier to Mr. Martin were later removed - this statement is in my view of no assistance in determining the amount owing. Even assuming it is accurate - a dubious assumption based on the way it was prepared shortly before the trial - that statement, which was never presented to Mr.

Martin and prepared solely for use at the trial, is clearly subservient to the invoice sued upon in this action (Exhibit P-2). [ 12 ] Focusing on that invoice, there was obviously a double entry for a part used on the tractor (P 3902711M11 KIT/BEVEL) in the amount of $2,653.20. Mr. White acknowledged at the trial that the double entry was a mistake. Mr. Avery acknowledged at the trial that, aside from the issues of timeliness (limitation period) and set-off, the defendant owes $8,452.79 ($11,105.99 less $2,653.20) on the invoice. I am satisfied it is so. IV.

IS THE PLAINTIFF ENTITLED TO RECEIVE INTEREST ON THE AMOUNT OWING? [ 13 ] The plaintiff claimed the defendant owed interest of 2% per month on the unpaid balance. It was submitted that this claim is supported by the invoice (Exhibit P-2), which contains such a proviso. Mr.

Martin denies ever discussing interest with the plaintiff’s employees or ever agreeing, orally or in writing, to pay interest. [ 14 ] Setting aside the issue that the photocopy of the invoice filed with court as Exhibit P-2 is cut off on the left hand margin and, as a result, the claimed monthly interest rate is illegible, I am not satisfied on a balance of probabilities that the plaintiff proved that there was an agreement for Mr.

Martin to pay interest at this rate, or at any rate. [1] As a result, the only interest I will order, on the unpaid balance, is under The Prejudgment Interest Act , as claimed in the alternative. V. IS THE DEFENDANT ENTITLED TO A SET - OFF? [ 15 ] Mr. Avery submitted in argument that Mr. Martin is entitled to a nominal set-off of $1,000.00 as a result of his loss of the use of the tractor while in the plaintiff’s possession, the plaintiff’s delay in fixing the tractor and the lack of communication by the plaintiff with him about his tractor. For the reasons that follow, I disagree.

[ 16 ] Mr. Martin testified that, after his tractor broke down in mid-February of 2013, he called the plaintiff’s office and spoke to Heather Szakacs. He told her he needed the tractor to feed his cow and she said it would be seven to ten days before the tractor was returned. A few days later an employee of the plaintiff picked up this tractor from Mr. Martin’s farm. He called the plaintiff’s office one week later, and left messages for both Ms. Szakacs and Mr. White. His calls were not returned. [ 17 ] Mr.

Martin called the plaintiff’s office again at the end of March, and a mechanic there told him his tractor was not yet in the shop. He claimed that he requested a replacement tractor - he did not say when he did this or to whom he made this request - but none was given to him. He then spoke to Ms. Szakacs later in the spring - he did not say an exact date - and she suggested the bill would be $8,000.00 less 20% for the repairs taking so long. I note that Ms.

Szakacs was not cross-examined about such a discussion, nor was there any defense argument that this discussion constituted a subsequent agreement between the parties on the cost of the repairs. [ 18 ] Mr. Martin said he was, at this point, frustrated in his dealing with the plaintiff. As a result, he contacted Agco, the parts distributor for the plaintiff. He spoke with a woman there named Holly Dobas, who said she would act as an intermediary between Mr. Martin and the plaintiff. Sometime on or shortly after mid-June, Ms. Dobas called him, and left a message that his tractor would be returned the next day. Mr.

Martin said the tractor was not returned to him until late June or early July. [ 19 ] Mr. Martin was concerned about the size of the plaintiff’s bill, given the delay in getting his tractor fixed and back to him, and thought Agco would be able to help him by convincing the plaintiff’s employees to reduce the amount he owed. This obviously did not happen. [ 20 ] During the time he was without his tractor, Mr. Martin fed his cattle with the help of his neighbors. To pay back his neighbors, he did work for them.

No money was exchanged between them and there was no suggestion of any firm agreement - oral or written - between Mr. Martin and his neighbors. [ 21 ] Ms. Szakacs described the so-called winter works program operated by the plaintiff in 2013. This provided discounts on parts (both cost and transportation) and on labor, for non-emergency repairs done over the winter season, presumably when the machinery was not required for farming. She said the discounts were offered because the work was not done as quickly as a more urgent request. She claimed Mr. Martin agreed to have his tractor fixed under this program. Mr.

Martin disputed this, saying the winter works program was never discussed with him, so he could not have agreed to it. On balance, I am not satisfied that he agreed to the program, but that does not necessarily mean he is entitled to a set-off. [ 22 ] Mr. Frier described the parts system used by the plaintiff. If a part was unavailable through their supplier Agco, that part would be back ordered. If the part had not arrived in two weeks from the back order date, Agco would be asked to place an emergency order for the part, I gather from another distributor. Regarding Mr.

Martin’s tractor, he says the part that was entered twice on the invoice (P 3902711M11 KIT/BEVEL) was back ordered by Agco, but was subsequently lost by them. That part had to be reordered, which I take it resulted in a further delay. Ms. Szakacs said this repair was delayed by an unavailability of a part, which I am satisfied was the kit/bevel part, and which was not received by the plaintiff until early June. She said after receipt of this part, the repair did proceed. [ 23 ] Ultimately, the question is whether the delay in fixing and returning this tractor to Mr.

Martin gives a legal basis for a set-off from the invoice amount. This was a fourteen year old tractor, and as a result there was no statutory time limit on the plaintiff for repair of it under s. 33 of The Agricultural Implements Act . While I did not hear any good reason from those who testified for the plaintiff about why Mr. Martin’s calls were not returned, nevertheless, I am satisfied that the plaintiff was delayed in fixing this tractor in large part due to a difficulty in getting a part to fix it. [ 24 ] This must have been a frustrating experience for Mr. Martin.

He needed his tractor to feed his cattle, and its return was delayed. That said, it is clear that he continued to deal with the employees of the plaintiff, and did not at any point move to rescind the contract and take his tractor back from the plaintiff. While the employees of the plaintiff could in my view easily have treated Mr.

Martin in more considerate way and kept him better informed about what was happening, I am nevertheless satisfied that any suggestions about when the repair would be done or what the amount owing would be were estimates only, and did not form a part of the agreement between the parties. [ 25 ] Taken together, I cannot see any legal basis in this case for a set-off by Mr. Martin against what he otherwise owed to the plaintiff.

V. CONCLUSION [ 26 ] As explained above, the plaintiff shall have judgment against the defendant in the amount of $8,452.79, together with interest under The Prejudgment Interest Act from September 26, 2013 (the date of the invoice, Exhibit P-2) in the amount of $168.70. The plaintiff shall also receive the cost of commencing this action, which is $100.00. R. Green, J [1] See Prince Albert Co-operative Assoc. v Rybka , 2006 SKCA 136 at para 16 .