Superior Canadian Livestock Auction Ltd. - v. -, 2014 SKPC 72

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2014 SKPC 072 Date: April 4, 2014 File: 390/13 Location: Regina, Saskatchewan _____________________________________________________________________________ Between: Superior Canadian Livestock Auction Ltd. - and - Andrew Drummond Stewart and Robert Murray Stewart Layton Bezan For the Plaintiff David Werminski For the Defendant JUDGMENT P.

DEMONG, J Introduction [ 1 ] The plaintiff ( “ Superior ” ) alleges that in March of 2008 it acted as an order buyer for the defendants ( “ the Stewarts ” ) for the purpose of buying five purebred bulls from a company known as R Plus Simmentals. It maintains that the bulls were purchased and delivered to the Stewarts but the Stewarts have refused and continue to refuse to remit payment for these animals. Superior now seeks recovery from the Stewarts, jointly and severally in the principal sum of $15,035.00 together with pre-judgment interest and legal costs.

[ 2 ] The Stewarts deny that they retained Superior for this purpose. They further deny that the bulls were delivered to them. In the alternative, they argue that if the purchase was made on their behalf, and if the bulls were delivered, then, and in any event, Superior ’ s claim is statute barred because it was not brought within a reasonable time. They specifically plead and rely on sections 5 and 19 of The Limitations Act , SS 2004, c. L-16.1. The Evidence of Layton Bezan [ 3 ] Layton Bezan is the president and principal owner of Superior.

He was the individual primarily involved in the circumstances giving rise to this claim and at trial he acted for and tendered evidence on behalf of Superior. [ 4 ] Superior has been involved in the cattle industry since 1994. The company buys and sells feeder cattle and breeding stock. It also operates a ranch and raises cattle for subsequent sale. Prior to incorporating Superior, Mr. Bezan worked at a test breeding centre and has significant experience in identifying and purchasing quality purebred bulls, both for his own company and as an order buyer for others. [ 5 ] As an order buyer for Superior, Mr.

Bezan is regularly contacted by clients who wish to utilize his expertise. They will provide him with particulars relating to the classification, breed, type, weight, and preferred price of the cattle they wish to purchase and rely on Superior to attend at auction to purchase those cattle on their behalf.

Superior will do so and upon delivery of those cattle and presentation of a buyer ’ s invoice, get paid for the cattle together with a commission for its services. [ 6 ] If a client refuses delivery of the animals (which rarely happens) Superior bears the risk of the purchase, and either retains the cattle for its own use or resale, or alternatively attempts to return the animals back to the original seller who may agree to take them back in the expectation of maintaining cordial business relations in the future. [ 7 ] Mr. Bezan first met the Stewarts in 2003.

Andrew and Robert farmed and ranched in close proximity to the Bezan land in association with their father, Andrew senior. Mr. Bezan considered all of the Stewarts to be friends, neighbours and business associates. He personally rented land from the Stewarts and each of them would buy and sell hay one to the other as circumstances warranted. [ 8 ] Between 2003 and 2009, Superior handled 15 to 20 transactions per year for the Stewarts, buying, marketing and selling their cattle. Superior also assisted in directing the Stewarts to certain financing entities as circumstances warranted.

It became quite apparent at trial that third party financing of cattle herds is frequent, if not the norm, in the ranching industry. If cattle are to be sold, invariably the proceeds of the sale are firstly directed to the entity which financed the original purchase, then the commission is taken off, and then the remaining profit is remitted to the seller less commission. [ 9 ] Some time in or around 2006, Andrew Stewart, senior advised Mr. Bezan that he was particularly impressed with the Simmental bulls that Superior used in its cross-breeding program. Mr.

Bezan advised Andrew, senior that they were purchased from a company called R Plus Simmentals. Andrew, senior asked if Superior would act as their order buyer. Andrew, senior was looking for easy breeders with a consistent colour for use with Hereford cows. He also stated that he was concerned about cash flow and wanted to know if he could obtain credit terms. It should be noted that at or about this time the cattle industry was in a state of flux as BSE, a very significant cattle disease, was ravaging the industry and its cross-border sales. [ 10 ] Mr.

Bezan contacted R Plus Simmentals and entered into a credit arrangement whereby Superior would buy the cattle and deliver them to the Stewarts, and the Stewarts would pay down the purchase price by delivering cattle to Superior for resale. The proceeds of those sales would be applied to the Stewarts ’ outstanding indebtedness, and, as that debt was paid down, Superior would in turn pay down the debt it had with R Plus.

This credit arrangement was negotiated by Andrew, senior for the Stewarts and was intended to run for one year because the parties fully expected that sufficient cattle could be sold within a year to allow for complete repayment of the outstanding debt. [ 11 ] Mr. Bezan followed his normal protocol in relation to this purchase on behalf of the Stewarts. After clarifying the type of purebreds sought by the Stewarts, he attended the R Plus Simmentals annual sale and reviewed the details of the bulls that were for sale.

He reviewed the sales pamphlet which provided an overview of the bulls for sale against the criteria sought by the Stewarts. He then bid on and ultimately purchased eight bulls for the Stewarts and delivered them onto the Stewarts ’ property. He delivered an invoice

identifying the animals by ear tag, lot number, weight, and price. Superior ’ s invoice clearly stated that “ Payment is due upon receipt of cattle and this invoice ” . The invoice also noted that “ All livestock is the property of Superior Canadian Livestock until full payment is received and cleared ” . [ 12 ] I am satisfied that the reference to “ Payment being due upon receipt of cattle and this invoice ” was varied by the oral collateral agreement for financing referred to above. Mr. Bezan defined this agreement to the Court, and no objection or challenge was made by the Stewarts.

In fact the Stewarts (both Andrew and Robert) confirmed its existence. Exhibit P-1 with attachments clearly evidences notations made by Superior reflecting certain subsequent cattle sales made by Superior to the credit of the Stewarts which reduced the existing indebtedness on that invoice over time. In the result, by the spring of 2008 the original purchase price of $18,200.00 was reduced to nil dollars reflecting payment in full of that invoice. [ 13 ] Mr.

Bezan stated that in or about February of 2008, he was again contacted by Andrew Stewart, senior who advised him that he quite liked the bulls that had been purchased for them the year before and was looking for four or five more bulls either black in colour or off-red. Andrew, senior asked for the same credit terms (again to run one year), and Mr.

Bezan in turn contacted R Plus Simmentals who agreed to this continued financing arrangement: Superior would purchase for the Stewarts; the Stewarts would pay down the indebtedness by offering cattle to Superior for sale; Superior would sell the cattle and remit payment back to R Plus; and so on until the indebtedness was reduced to nil. [ 14 ] The R Plus Simmental Bull Sale took place on March 2 of 2008 and Mr. Bezan followed precisely the same protocol for this purchase as he did in the past.

In support he provided Exhibit P-2 which incorporated the invoice for the purchase of five more Simmental bulls by lot, ear tag, weight, and price description together with the receipt from R Plus Simmentals reflecting that purchase, the sales pamphlet and Mr. Bezan ’ s notations thereon. [ 15 ] Superior ’ s buyer invoice was in the same format as the invoice referred to in the earlier sale with the same notations as indicated above, but of course indicating the purchase of five bulls by description with a purchase price totalling $15,035.00. [ 16 ] Following the sale Andrew, senior phoned Mr.

Bezan and advised that he did not want delivery until the latter part of July and asked Mr. Bezan to arrange for insurance and interim feeding of the animals on site until delivery (something which, according to the evidence at trial is not unusual, but for which demands a small additional monthly charge). [ 17 ] Mr. Bezan stated that in mid-June he received a call from R Plus Simmentals indicating that the bulls should be picked up and that a truck was available for delivery.

Ken Rosengren, who is associated with R Plus Simmentals, loaded the defendants ’ bulls and some bulls that Superior had bought on their own behalf and Mr. Bezan says that after discussing the time of delivery with Andrew, senior the bulls were delivered to a compound opposite Andrew, senior ’ s home. Mr. Bezan testified that in addition to Ken Rosengren, Andrew, senior was in attendance at the delivery, as was either Robert or Andrew Stewart, although he could not recall which. [ 18 ] Throughout the summer and fall of 2008, Superior continued to act as agent for the sale of the Stewart cattle.

On August 25, 73 steers and heifers were sold. On September 4 and September 3, a number of other animals were sold. There were further sales on December 10 and December 26 and another sale in January of 2009. Unfortunately almost all of these animals were encumbered and in the result almost all of the monies obtained following sales were remitted back to the third party financier of those animals. The only exception was the January 20, 2009 sale which had net proceeds of $6,823.94 after payment of the encumbrances on the animals. Mr.

Bezan asked if Superior could apply that money against the outstanding indebtedness the Stewarts had in relation to the purchase of the five bulls in March of 2008, but the defendants pled hardship and, on that basis, he returned the proceeds to them rather then applying it to the debt. [ 19 ] Mr. Bezan testified that throughout 2008 and 2009, the cattle industry was in a dismal state. Prices were low and there were barriers to export sale. The sales market was in a downward spiral.

Superior continued to sell cattle for the Stewarts, as reflected by invoices submitted into evidence and dated July 16, August 27, September 14, November 7 and November 17, all in 2009. Each of these sales provided no net gain for the Stewarts because the financier obtained the full benefits of the proceeds. In the result, Superior had no opportunity to set off any of the money due and owing to it arising from the March 2, 2008 purchase of the five Simmental bulls. Mr.

Bezan indicated that because of the inability of the Stewarts to pay down the existing debt, he and Andrew, senior agreed that the credit financing arrangement would continue on beyond the originally anticipated one year, and carry on until such time as the Stewarts could pay off the debt.

[ 20 ] Mr. Bezan says that in mid-summer of 2009 he was made aware of a large sale of some 240 cattle belonging to the Stewarts, presumably to an unknown person in Ontario. He says that this was of significant concern to a number of third party financiers including a company called Unifeed and Valley Financial. He says an investigation ensued involving those parties together with some Saskatchewan brand inspectors and the RCMP.

He says that the investigation is ongoing. [ 21 ] He says that he was called upon to attend the inspection of some unbranded cattle and that when he attended the Stewart ranch most of the cattle were gone, as were the bulls that he had purchased on their behalf. He inquired of the Stewarts as to whether or not he could sell the remaining unbranded cattle but learned through the grapevine that they were sold through another livestock company known as Heartland Livestock. [ 22 ] Mr. Bezan was undeterred in his attempt to make some arrangement for repayment of the debt. At trial he submitted a

summary of dates indicating that between September 9 of 2009 and through until November 19 of 2011, he phoned or personally attended on Andrew, senior and/or the Stewarts on no less than 25 occasions. In the course of these conversations he attempted to arrange for payment of the account, either through the anticipated sale of lambs or goats (he had been advised by them that they were thinking of getting into that line of ranching) or by selling hay, or starting a corral cleaning business.

He steadfastly maintained that on virtually every one of these attendances Andrew, senior not only acknowledged the indebtedness, but indicated that eventually Superior would get paid by set off, by employing one of the means identified above. Andrew, senior ’ s favourite turn of phrase, the Court learned, was “ better to be paid slow than not at all ” .

For reasons which will become clear later on in this judgment, I consider the October 5 and November 11, 2011 telephone conversations of particular importance. [ 23 ] In September of 2012 (the precise date is uncertain), Superior heard a rumour that the Stewarts intended to sell their land and perhaps leave the province. Mr. Bezan thought that perhaps this would be an opportunity for him to finally obtain payment for the debt but he says that it became clear to him that there were a number of other people and organizations in line waiting to be paid for the debts incurred by the Stewarts. Mr.

Bezan said that once the rumour started to circulate about the Stewarts leaving the province he then recognized that they had no intention of paying their debt and instructed his wife to prepare and serve a demand letter which was accepted by an “ Andrew Stewart ” by registered mail on or about December 18 of 2012. Mr. Bezan says that he had no reply to that demand, and therefore he commenced this action on the 25 th day of September 2013. The court record confirms that date as the date of filing and issuance of the claim. [ 24 ] The Stewarts were represented by counsel at this trial. Mr.

Bezan was cross-examined primarily in relation to the actual delivery of the purebred cattle in each of 2007 and 2008 and in relation to the non-existence of a delivery manifest in the 2008 year. In response, Mr. Bezan confirmed that Andrew senior was in attendance on both occasions and to the best of Mr. Bezan ’ s recollection either Andrew or Robert. Mr. Bezan was in attendance on both occasions as was Ken Rosengren who was the consignor driver. Mr.

Bezan confirmed that no manifest was provided on either occasion and indicated to the Court that in his significant experience the delivery of purebred bulls did not require manifests in part because purebreds are neither branded nor financed through a third party and therefore there would be no need to prove transfer from place to place within Saskatchewan. The Evidence of Ken Rosengren [ 25 ] Mr. Rosengren was called by the plaintiff. He has been a breeder of Simmentals for 20 years. He has had a working relationship with R Plus Simmentals and with Superior and he confirmed that Mr.

Bezan had purchased the first group of bulls for the Stewarts from R Plus in 2007 and the second group of five bulls in March of 2008. He confirmed that the credit arrangement established by Superior and the Stewarts was accepted by him such that he would take payment from Superior when monies became available from the sale of other Stewart cattle by Superior. He confirmed that he was the driver in attendance for the delivery of the five purebreds in June of 2008 and that Andrew, senior and “ one of the Stewart boys ” (meaning either Robert or Andrew) were also there although he could not recall which one.

The Evidence of Jeremy Knapp [ 26 ] Jeremy Knapp was also called by Superior. He is a rancher and cattleman. He reiterated the format for purchasing purebred bulls at auction---which did not deviate from Mr. Bezan ’ s evidence. He has attended a number of auctions and purchased a number of purebreds. He reaffirmed the evidence of Mr. Bezan relating to the existence or non-existence of manifests and said that in his experience manifests are never prepared or delivered when he buys bulls.

His confirmation of ownership is confirmed when he visually inspects the animal and compares his purchase notes with the ear tag of the animal that is delivered to him.

[26] Superior then closed its case. The Evidence of Andrew Stewart, Junior [ 27 ] Andrew stated that he has been in the cattle business since he was very young, or for about 25 years. He says that he lived in Saskatchewan for about 13 years and ranched with his brother Robert and father Andrew, senior. He confirmed that the Stewarts have dealt with Superior since 2003 and confirmed that they bought and sold cattle through Superior in relation to feeder cattle, cows and bulls. He confirmed the nature of the bull purchase in 2007 and the credit extension agreement in relation to that purchase.

His version of the 2007 contract is precisely the same as that identified by Mr. Bezan excepting only that in 2007 the Stewarts obtained a manifest on delivery of the cattle. (This was denied by Mr. Bezan and his witness.) When called upon to produce that manifest Andrew indicated to the Court that it had been seized by the RCMP in relation to the ongoing investigation referred to earlier.

When asked why he had not contacted the RCMP to obtain a copy of this important document for this trial he had no explanation. [ 28 ] Andrew confirmed that it would have been his father Andrew, senior who would have conducted the negotiations for the Stewarts in relation to the 2007 purchase as well as most of the other technical paperwork on the ranch. [ 29 ] Andrew flatly denies that there was ever a second agreement for the purchase of another five Simmental bulls in 2008.

At least, he maintains that he never negotiated such an agreement, never saw the delivery of these animals, never saw a manifest for these animals, never saw any of the bulls on his ranch and never agreed to make any payments in respect of these bulls. When Mr. Bezan attended at his ranch in the summer of 2009 looking for the bulls, he says that he simply didn ’ t understand what Mr. Bezan was talking about because he “ had no record of the purchase ” . [ 30 ] Andrew can recall discussions relating to the establishment of a corral cleaning company with Mr. Bezan but says that he declined to participate.

He could not, nor did not relate this conversation to an ongoing obligation to pay for the purchase of the five bulls in 2008. He intimated that if these bulls were in fact purchased, then they were probably done so by Superior for the use of Superior and inferred that Superior ’ s entire claim was in fact a conspiracy to force the Stewarts to pay for something that they didn ’ t receive. He suggested that the very first he ever even heard of these bulls was when he received a copy of the plaintiff ’ s statement of claim.

The Evidence of Robert Stewart [ 31 ] Robert Stewart confirmed the partnership that existed with his brother Andrew and his father Andrew, senior. He confirmed the 2007 rolling credit arrangement with Superior for the purchase of eight Simmental bulls in the same fashion as explained by Mr. Bezan. He maintained that he never knew about the second purchase of five Simmentals in 2008. He denies ever speaking to Mr. Bezan about these bulls or their purchase and he denies that he was ever present and privy to any conversation with Mr. Bezan and Andrew, senior when they talked about this outstanding indebtedness.

He conceded that Andrew, senior did most of the book work for the ranch. [ 32 ] Robert says that he did participate in the sale of over 240 head of the Stewart cattle in the summer of 2009 and maintains that all of them were sold to a John Sampson. He has no contract for that sale nor does he have a manifest. He says they were “ taken out of his truck a couple of days after the cattle were taken away. ” . He says that he has not been paid for these cattle and continues to search for them.

Incredibly, he has no fixed address for the purchaser of these cattle, all of which were encumbered by a third party financing agreement. Equally incredible, he never contacted the RCMP to report this loss. [ 33 ] After cross-examination of Robert, the defendants closed their case without calling Andrew, senior, and notwithstanding that the case conference management report identified that the Stewarts would be calling three lay witnesses rather than just two. Credibility [ 34 ] Where the evidence of Mr. Bezan conflicts with the evidence of the Stewarts, I prefer the evidence of Mr. Bezan. Throughout the

[34] Where the evidence of Mr. Bezan conflicts with the evidence of the Stewarts, I prefer the evidence of Mr. Bezan. Throughout thetestimony of each of Andrew and Robert Stewart I found them to be recalcitrant when answering both my questions and the questions ofMr. Bezan. They were reluctant to answer direct questions, and they could not remember exact details when asserting their position.Their memory was, in my view, very selective... almost non-existent when it was about matters which conflicted with their defence andmuch clearer when it advanced their own interests.

Incredibly, they displayed an almost cavalier nonchalance when it come to discussingthe disappearance of their 240 cattle with an estimated value in excess of $100,000.00 and presumably a further $15,000.00 of purebredSimmental bulls. [35] In so far as demeanour is concerned (and I do not place a great deal of importance on demeanour generally) I noted that each ofthem avoided eye contact when hard questions were put to them and oftentimes each of them looked to the other for what appeared to besupport when presented with questions which most people would be able to answer and expand upon.

Invariably they presented witharms across their chest, with their backs tucked tightly into the witness box. They were hesitant to, and in fact objected to having toadvise the Court where they presently reside, something which strikes the Court as most peculiar. [36] As to why Andrew, senior was not called, the defendant himself spoke at the urging of his lawyer, in final argument andmaintained that he was in Ontario taking care of his wife who was ill.

When advised that he could have presented by telephone andcertainly could have cleared up much of the evidence, there was no desire on behalf of the defendants to attempt to reopen their case andhave him attend by telephone; nor was there any request whatsoever to seek an adjournment to allow his evidence at a later date. Withrespect, even the most junior of counsel, let alone these two defendants must have thought to themselves “why don’t we makearrangements to have Dad give evidence.... he was in charge of the paperwork on the farm, he should be able to clear this up in a jiffy.” [37] Conversely, Mr.

Bezan struck me as an erstwhile, credible and trustworthy individual. He gave his evidence in a straightforwardand plausible fashion. He was well prepared and his documentation showed a business like symmetry in his dealings with the Stewartsover time. He fairly conceded to a faulty recollection from time to time, whether or not those facts assisted or detracted from Superior’sclaim.

He struck me as a hardworking rancher who was, at all times relevant to these proceedings, sincerely interested in the success ofthe then struggling cattle industry and the success of the Stewarts who were active participants in that tight knit ranching community.Equally important, his evidence was consistent with and in accord with those witnesses that he called, and whose evidence was equallysimple and straightforward. [38] In considering the evidence I draw an adverse interest against the defendants for failing to call their father Andrew, senior.

It wasclear from the evidence of both sides that he was acting for the defendant Stewarts throughout these dealings as agent and principal, andhad first hand knowledge of the dealings which give rise to this dispute. [39] In Murray v Saskatoon, (SK CA), [1952] 2 D.L.R. 499 the Saskatchewan Court of Appeal quoted Wigmore onEvidence and articulated the general rule in relation to adverse inferences in a civil context: 20 .... the failure to bring before the tribunal some circumstance, document or witness, when either the party himself or his opponentclaims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and thisfear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavourable to the party.... 21 The party affected by the inference may, of course, explain away by showing circumstances which prevent the calling of thewitness; but where the failure to produce the witness is not explained, the inference may be drawn that the unproduced evidence wouldbe contrary to the party’s case or at least would not support it. [40] In my view, the defendants’ failure to call Andrew, senior allows me to draw the inference that had he attended at trial and giventruthful evidence, he would have confirmed much of what Mr.

Bezan stated in relation to the purchase of the animals on a continuationof a credit extension agreement; the delivery of the bulls; and the ongoing negotiations regarding eventual repayment when funds becameavailable. With respect, the ex post facto justification that his non-attendance might be attributable to his need to attend on his ill wife,notwithstanding the opportunity to attend by telephone, or even attend at a later date if an adjournment had been requested, does notconstitute a “showing of circumstances which prevent the calling of the witness”. Issues

[41] 1. Did Superior enter into an agreement with the Stewarts to purchase five purebred Simmental bulls for them in the late winter/early spring of 2008? 2. If the answer to issue number 1 is yes, did Superior purchase these bulls for the Stewarts and were they delivered? 3. If the answer to 1 and 2 above is yes, did the purchase agreement incorporate an oral collateral agreement to allow for a credit arrangement in which it was understood that the debt to Superior would be paid off over time as and when the Stewarts could afford to pay? 4.

If the answers to 1 and 2 and 3 are yes, is the claim advanced by Superior statute barred by the passage of time? Analysis [42] Mr. Bezan has clearly articulated and carefully documented the means by which he attended the R Plus Simmental auction in March of 2008. His means of documenting the purchase of the five Simmental bulls in question is exactly consistent with his earlier agreement with the Stewarts. His attendance and subsequent purchase is confirmed by the evidence of the operator of R Plus Simmentals.

His documentation clearly reflects an ongoing relationship with the Stewarts which speaks to a succession of sales on their behalf and which runs well into November of 2009, well beyond the one year anniversary of the March 2, 2008 purchase of the animals.

His records reflect ongoing communications with the Stewarts as late as November 19 of 2011, and of which he steadfastly maintains involve a continuing dialogue between himself and the Stewarts regarding the setting off of the debt by a variety of means.... the further sale of cattle... the prospective sale of goats and lambs.... the working off of the debt by corral cleaning and /or manure spreading. [43] Superior ’ s witnesses confirm both the sale of the animals in question and personal attendance at the corral across the lane from Andrew, senior ’ s home, with Andrew, senior in actual attendance at the time of delivery. [44] In reply, the defendants flatly deny the existence of the agreement or the delivery.

In so doing they acknowledge that their father Andrew, senior would be in the best situation to speak to these matters since he was the business manager of this family endeavour but they declined to call him to testify.

They do not question the fact that Superior continued to work with them in selling their animals well into the fall of 2009, and acknowledge conversations regarding corral cleaning but refuse to explain why it might be that Superior would be asking them to do this kind of work. [45] The Stewarts place special emphasis on the fact that there is no written manifest proving delivery of the animals and say that the absence of the manifest is proof that there was no agreement or delivery.

When asked to produce the manifest from the 2007 sale (which the plaintiff and all of its witnesses say did not exist and is not in any event required for the purchase of purebred bulls) they claim that it is in the possession of the RCMP pursuant to an investigation. They apparently did not think to either call the RCMP to testify or simply ask for a copy to present at trial. Their argument, in a nutshell, is that Superior, Mr.

Bezan, his wife, and each of the witnesses that attended at trial on behalf of Superior are complicit in a conspiracy to fraudulently document this sale and then use this Court as an avenue to extract money from them.

They invite me to so conclude without a shred of evidence in that regard, and instead have me infer that each of these individuals would attempt to do so at the risk of each of them besmirching their good names and their business endeavours. [46] After considering all of the evidence, I am satisfied that there was an agreement between Superior and the Stewarts to purchase five bulls and that the Stewarts used Andrew Stewart, senior as their agent in that regard. I am further satisfied that these bulls were delivered to the Stewarts on or about the date indicated by Mr. Bezan in his testimony.

I am further satisfied that there was a verbal contract entered into between Superior and the Stewarts (through their agent Andrew Stewart senior) and by agreement, amended over time, such that payment for the animals would be made through the several devices referred to in this judgment. [47] Having so found, I am of the view that the limitation period in the instant circumstances would start to run when Superior knew, or ought reasonably to have known, that the Stewarts had no intention of honouring its several promises to pay pursuant to these agreements. In my view, Mr.

Bezan would have had an inkling that Superior was not going to be paid when he discovered that the cattle owned by the Stewarts had disappeared from the Stewart ranch. That inkling of an idea would have started to crystalize in September of 2011, when he was advised that the potential sale of land would not likely generate any excess monies. It would have crystalized further when Andrew, senior and Andrew, junior chose not to enter into an arrangement to participate in a corral cleaning business in October of

2011 and, in my view, it would have been manifestly evident when they chose not to participate in a “ tradeoff of work for debt pay down ” discussed with Andrew on November 19, 2011. [48] For these reasons I am satisfied that, in accordance with section 6(1) (

d) of The Limitations Act , Superior knew or ought to have known on or about November 19, 2011, that the Stewarts had no intention of honouring the agreement and that a proceeding would be the appropriate means to seek to remedy its loss. [49] Superior commenced this action on the 25 th day of September 2013. This is within the two year limitation period prescribed by The Limitations Act , and therefore the claim is not barred by the passage of time. [50] Judgment shall issue in favour of the plaintiff in the sum of $15,035.00.

The plaintiff is entitled to pre-judgment interest calculated from the 19 th day of November 2011 in the sum of $332.00. In addition, the plaintiff is entitled to costs which this court assesses at $110.00 for the cost of issuing and service of the claim. Paul Demong, J