Pêcheries LJM Fisheries Inc. Claimant - v. -, 2003 NBQB 124

IN THE COURT OF QUEEN’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF MIRAMICHI Citation: 2003 NBQB 124 Date: 2003 03 24 Docket: N/M/7/01 Between: Pêcheries LJM Fisheries Inc. Claimant - and - St. Thomas Fish Market Inc., and Gerald Legere and Marie Legere Defendants Before: Mr. Justice Thomas W.

Riordon Date of hearing: January 3, 2003 Date of decision: March 24, 2003 Appearances: Michael Noel, Esq. - for the Plaintiff Gilles Lemieux, Esq. - for the Defendants DECISION RIORDON, J.: [ 1 ] The plaintiff claims from the defendants for monies alleged to be outstanding and payable for the purchase of lobster by the defendant St. Thomas Fish Market Inc. from the plaintiff. The proceedings are by way of Trial de Novo pursuant to the Small Claims Act and Regulations . The plaintiff claims that $5,605.50 is owed by the defendants. The defendants deny the claim.

The amount in question is made up of what the parties refer to as a rebate which can more appropriately be described as a bonus calculated on the quantity of product sold by the plaintiff. [ 2 ] The parties are in the fish business. The individual defendants are married to each other and are officers of the defendant corporation, which has been in the fish related business for some 19 years. The defendant Gerald Legere is its principal shareholder. [ 3 ] The plaintiff at all material times was also in the fish business having commenced its operations in 1995.

In the course of its business it purchases fish product from fishermen and resells that product. Its primary shareholder is Mr. Lucien Martin. [ 4 ] During the 1996 lobster fishing season, which runs for the months of May and June, an agreement was concluded between the corporate defendants under which the plaintiff sold lobster to the defendant fish market. [ 5 ] Collette Martin, a daughter of Lucien Martin, was the manager of the plaintiff company in 1996. Her sister Lucille Martin Sippley was employed as the bookkeeper.

Both testified on behalf of the plaintiff company. [ 6 ] Gerald Legere, the principal shareholder of the defendant company, which has been in business since 1984 and Marie Legere, who worked as a secretary for the company, both testified on behalf of the defendants. Mr. Joseph Allain a lobster fisherman who has fished and sold lobster for some 26 years also testified. [ 7 ] In 1996 the defendant corporation had a contract to supply lobster to three wholesalers in Montreal. In order to supply this contract a substantial quantity of lobster was needed. Early in the spring of 1996 according to Collette Martin, Mrs.

Marie Legere telephoned her to inquire if is would be possible to purchase lobster from the plaintiff. Ms. Martin said that she would need permission from her father Mr. Lucien Martin and agreed to ask him if she could sell to the defendant corporation. Ms. Collette Martin testified that her father approved the selling of lobster to the defendant on the condition that they pay what she described as a rebate. Ms. Martin stated that the defendants were informed and agreed to pay the rebate. This is in fact a bonus added on the regular market price of lobster purchases.

This rebate or bonus is an amount that is paid by the plaintiff to those persons who fish and supply their catch exclusively to the plaintiff. This is common practice in the industry.

[ 8 ] According to Ms. Martin and this practice was not really in dispute, a rate per pound of lobster purchased is determined sometime after the season and a bonus is paid to fishermen who fish exclusively for a fish buyer. The rate is determined and fixed by the bigger plants in the industry not before the commencement of the lobster season but after it is finished. The rate can vary from year to year obviously depending upon market conditions. In 1996 the rate of bonus was established at 50 cents per pound. It is the practice to pay the bonus sometime around Christmas.

In 1996 the plaintiff company did pay a 50 cent per pound bonus to those fishermen who fished exclusively for it during the prior fishing season. [ 9 ] In early December of 1996 Ms. Martin contacted Mrs. Legere of the defendant company to inquire about the bonus and payment. Shortly after she sent the defendant fish market a detailed invoice in relation to the bonus based on product sold to it during the spring season. It was made up of 9,055 pounds of canner lobster and 2,156 pounds of market lobster at a rate of 50 cents per pound totalling $5,605.50.

The quantities in question on the invoice correspond to the product sold to the plaintiff during the period from May 2 nd , 1996 to June 11 th , 1996. During this time the defendant fish market paid the plaintiff $3.45 per pound for canner size lobster and $4.45 per pound for market size lobster. [ 10 ] During the 1996 lobster season the defendants sent a truck to the plaintiff’s place of business every fishing day from the beginning of the lobster season up until June 11 th .

During this time the plaintiff also sold lobster to other fish plants including Blue Cove Packing Ltd., one of its principle customers. [ 11 ] Mr. Gerald Legere stated that he had spoken to Mr. Lucien Martin or his daughter prior to the start of the 1996 lobster fishing season and inquired if they would sell lobster to the defendant fish market. Mr. Legere acknowledged that he was asked if he would pay the bonus in addition to the market price during the season. According to Mr.

Legere he said that he would pay the bonus and had no problem with paying it as long as the plaintiff sold all of its lobster product that it would purchase from fishermen to the defendant fish market. [ 12 ] According to Mr. Legere he realized in June that the plaintiff was not selling all of its lobster product purchased from fishermen to the defendant fish market and that it was selling to Blue Cove Packing Ltd. Mr. Legere decided that in such circumstances the plaintiff would have to sell all of its lobster inventory to Blue Cove Packing Ltd.

He instructed his truck driver not to go to the plaintiff’s place of business to pick up lobster. Mr. Legere could not remember if he called representatives of the plaintiff company to tell them what he had decided. In any event no product was purchased from the plaintiff by the defendant fish market after June 11 th , 1996. Payment was made to the plaintiff for product purchased at the rates above mentioned. [ 13 ] Mr. Legere was familiar with the bonus custom in the industry and acknowledged paying it to fishermen who fished exclusively for his company.

He said that the bonus is paid by a fish plant to the fishermen to keep them loyal to the plant. Mr. Legere acknowledged that the bonus was discussed with representatives of the plaintiff in April of 1996 prior to the commencement of the lobster fishing season. He maintains that the bonus was only payable on condition that the plaintiff sells all of its lobster product to the defendant fish plant. [ 14 ] When the invoice for the bonus was received by the defendant fish market, Mr. Legere instructed Mrs. Legere not to pay the invoice. It remains outstanding and is disputed. [ 15 ] Mrs.

Legere testified that she did not speak to representatives of the plaintiff company in the spring of the year but acknowledges that Collette Martin did speak to her late in the year to inquire about payment of the bonus. Mrs. Legere said that she told Ms. Martin that she had no authority to pay the amount claimed and that would be a decision that would have to be made by her husband. When she discussed the account with her husband she was told not to pay the bonus. [ 16 ] Mr. Joseph Allain who has fished lobster for some 26 years is familiar with the custom of paying a bonus to fishermen by fish plant operators.

According to Mr. Allain the bonus is paid by a fish plant operator only to those fishermen who fish exclusively during the season for that particular plant. [ 17 ] In order to resolve the present matter it must be determined if an agreement had been concluded that the plaintiff was to sell all of its lobster product to the defendant fish market. There is no dispute that the payment of a bonus was discussed. Mr. Legere acknowledged that the defendant fish plant agreed to pay a bonus. Payment however according to Mr.

Legere was subject to the condition that the plaintiff sell all of its lobster to the defendant fish plant. Collette Martin says that this condition was never discussed and that Mr. Legere on behalf of the defendant fish plant agreed to pay this bonus without condition. The bonus of 50 cents per pound was paid by the plaintiff to those fishermen who fished exclusively for it during the season. [ 18 ] Having examined all of the evidence I accept the evidence of Collette Martin that the condition requiring the plaintiff to sell all of its lobster inventory to the defendant was not discussed or agreed upon.

Examination of the invoices for the period from May 2 nd to June 11 th shows that for the period from May 2 nd to late May the quantities of lobster sold were quite low. The minimal quantity of product sold each day would arouse suspicion that lobster was being sold to others. No inquiries were made to representatives of the plaintiff at any time about possible sales to others. No contact was made with nor were any concerns directed to representatives of the plaintiff around or shortly after June 11 th when a decision was made by Mr.

Legere on behalf of the defendant not to purchase additional lobster product from the plaintiff. It is around this time that Mr. Legere says he became aware that product was being sold to Blue Cove Fish Plant Ltd. Mr. Legere when asked if he contacted representatives of the plaintiff about this concern said he could not remember that he did. [ 19 ] In her evidence Collette Martin told of efforts to collect the bonus from the defendant. Initially she spoke with Mrs. Legere and inquired about payment. She told how Mrs. Legere asked for a breakdown of the bonus claim, which she supplied.

She described several meetings with Mrs. Legere and efforts made to collect the bonus including a number of trips to the defendant fish plant. She stated that Mrs. Legere had agreed to pay the bonus and when she went to see her to get a cheque it was never delivered. This was not denied. Ms. Collette Martin also testified that while at the Boston Seafood Convention in the spring of 1997 she discussed the outstanding account with Mr. Legere who was also at this meeting. According to Ms. Martin Mr. Legere acknowledged the debt to the

plaintiff and said he would send a cheque. Mr. Legere when questioned about this did confirm that he possibly spoke to Ms. Martin at the convention but that the conversation took place at a bar and at the time he was under the influence of alcohol and could not remember what was discussed. [ 20 ] From my assessment of the evidence it is my conclusion that the parties did conclude an agreement that a bonus would be paid by the defendant to the plaintiff. The bonus would be the amount established by the industry.

The evidence does not convince me that as a condition for payment of the bonus the plaintiff was required to sell all of its supply of lobster to the defendant fish market, which at the time needed a good supply of lobster to meet the demands of its customers in Montreal. It should have been obvious at the outset that the plaintiff was selling lobster to others by reason of the small quantity of lobster being sold by the plaintiff to the defendant fish market.

At no time did representatives of the defendant fish market express any concern to representatives of the plaintiff about the quantity of fish being sold to them. When a decision was made not to purchase any lobster no contact was made with the plaintiff company. [ 21 ] The amount of the bonus that was established by the industry was 50 cents per pound. This rate is not as I understand the evidence disputed.

Applying this rate to the amount of lobster sold to the defendant the amount outstanding for the bonus amounts to $5,605.50 which is the amount claimed by the plaintiff. [ 22 ] For the foregoing reasons I direct that Judgement be entered in favour of the plaintiff against the defendant St. Thomas Fish Market Inc. in the amount of $5,605.50. The plaintiff is also entitled to recover costs in accordance with the Small Claims Act regulation; more particularly section 51(3) of the regulations. [ 23 ] The claim of the plaintiff as against the defendants Gerald Legere and Maria Legere is dismissed.

The contract concluded was with the corporate defendant and not with the individual defendants. Thomas W. Riordon, J.C.Q.B.