Docket: CACV2491 Howard Pincemin (Defendant) Appellant - v. -, 2014 SKCA 40

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 40 Date: 2014-04-14 Between: Docket: CACV2491 Howard Pincemin (Defendant) Appellant - and - Dale Pincemin (Plaintiff) Respondent Before: Herauf J.A. Counsel: Stuart Busse, Q.C. for the appellant Craig Frith for the respondent Appeal: From: 2013 SKQB 383 Heard: April 9, 2014 Disposition: Dismissed Written Reasons: April 14, 2014

By: The Honourable Mr. Justice Herauf Herauf J.A. I. Introduction [ 1 ] The appellant, Howard Pincemin, appeals to this Court pursuant to s. 55 of The Landlord and Tenant Act , R.S.S. 1978, c. L-6, an order of Mr. Justice Currie granting a writ of possession to permit the respondent, Dale Pincemin, to recover possession of the SE-30-29- 25-W3 (the “home quarter”) from the appellant. II. Facts [ 2 ] The parties are two of eight children who were raised on a family farm near Kindersley, Saskatchewan.

The parties’ parents divorced in the 1980’s and the mother, Madeline Pincemin, received sole title to the home quarter in the division of family property settlement. [ 3 ] Around 1997, Madeline Pincemin sold the home quarter to the respondent. The parties agree that the respondent did not pay the full purchase price to Madeline Pincemin. The respondent takes the position that the agreement between Madeline Pincemin and himself was that no payments were to be made to her after her death and the respondent would have free and clear title to the home quarter. Madeline Pincemin died in 1999.

The documentary evidence to support the agreement can no longer be located. [ 4 ] In 1999, at the time of Madeline Pincemin’s death, the respondent and his family were residing on the home quarter. The appellant moved onto the home quarter in the mid-2000’s and the respondent and his family at that time moved to Kindersley, Saskatchewan. The appellant has been farming the home quarter on the basis of an oral lease with the respondent. III. Issues [ 5 ] There are two grounds of appeal that need to be addressed.

The first relates to the alleged failure by the Chambers judge to adequately accommodate and consider the appellant’s hearing disability in his assessment of the appellant’s credibility. The second relates to the failure of the respondent to present evidence at the hearing that there was in fact a crop harvested on the home quarter from 2008 to 2011. IV. Judgment of the Court of Queen’s Bench [ 6 ] Due to conflicting affidavit evidence a viva voce hearing was held.

In his written reasons the Chambers judge at para. 32 of the judgment ( 2013 SKQB 383 ) made this specific finding: 32 I conclude, then, that in 2007 or 2008, Howard and Dale entered into an oral lease by which Howard rented the home quarter from Dale. Howard was to farm the land, and he was to give one-third of the crop to Dale as rent.

Howard was responsible for one-third of the property taxes, and he was responsible for paying the utilities. [ 7 ] In coming to this conclusion the Chambers judge made adverse credibility findings against the appellant that led him to conclude that the appellant’s evidence was not reliable. The Chambers judge noted the conflicting versions of how the appellant came to be in possession of the home quarter. Ultimately, the Chambers judge accepted the version of events as testified to by the respondent.

He found the respondent to be a credible witness and noted that the events “more likely unfolded as described by Dale than as described by Howard” (para. 23). The Chambers judge, having accepted the respondent’s versions of events, had no hesitation in concluding that the respondent was entitled to writ of possession based upon the non-payment of rent for the years 2008 to 2011. V. Analysis The Appellant’s Hearing Disability [ 8 ] The appellant has a moderate to severe hearing disability. He was provided with assistive technology to accommodate his hearing difficulties at the outset of the viva voce hearing.

It was apparent that the Chambers judge was aware of the need to accommodate the appellant.

The Chambers judge was instrumental in ensuring that the placement of the microphone, when the appellant was in the witness box, was to ensure that the appellant had the most advantageous opportunity to hear the questions. [ 9 ] The transcript indicates that the appellant was advised by his counsel at the commencement of his examination-in-chief that “it’s imperative that you’re able to hear and participate meaningfully in these proceedings.” As a result, the appellant was advised to request that any question or point be repeated if necessary.

The appellant acknowledged that he understood that he could do so if he did not hear the question or if he misunderstood the question. Furthermore, there was an eleven day adjournment between the two dates where the Chambers judge heard viva voce evidence. At no time did counsel for the appellant advise the Chambers judge that the appellant did not understand the questions. [ 10 ] The gist of the appellant’s submission is that the Chambers judge made adverse credibility findings against the appellant because

the appellant did not hear the questions properly. This certainly is not borne out by a review of the transcript. At para. 15 of the judgmentthe Chambers judge noted: 15 In testifying, Howard seemed sincere but sometimes confused as to what exactly had happened. He did not have events clear inhis mind. In some of his answers he wandered away from the topic of the question, and some of his answers did not make sense. [11] The transcript reveals that the appellant offered numerous explanations as to the arrangement with respect to his being inpossession of the home quarter.

The Chambers judge noted these at paras. 16-19 of the judgment. For ease of reference these paragraphsare repeated here: 16 In the course of his testimony Howard described, in more than one way, the arrangements with respect to his being in possessionof the home quarter. He said that Dale had told him that he could stay on the home quarter and farm it for the rest of his life. He said alsothat he had paid Dale extra money in the purchase of NW-20, in exchange for which Dale had leased the home quarter to him for the restof his life.

He said, too, that he never would have entered into a lease of land on which he already had been living. 17 Howard also testified, when asked about the lease arrangement with Dale, that he could not remember a lease for the homequarter, but could remember only that Dale used to say that the farm was there, and Howard did not need to worry about it. 18 During Howard's testimony it was evident that he could not remember exactly what he and Dale had discussed about Howard'suse of the home quarter.

Howard's overall view seems to be that the home quarter is family land, which he should have inherited, andthat because he has now lived on the home quarter for several years he effectively controls and owns it. 19 In these circumstances I conclude that Howard has not been able to relate, in his testimony, the full and accurate history of events.I am not confident that his evidence is reliable. It is apparent that these explanations are not consistent with one another. [12] It was for this reason that the Chambers judge found the evidence of the appellant unreliable.

As noted by the Supreme Court ofCanada in F.H. v.

McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41 at para. 72: … Assessing credibility is clearly in the bailiwick of the trial judge and thus heightened deference must be accorded to the trial judge onmatters of credibility. [13] I agree with the respondent that the Chambers judge’s description of the appellant as seemingly “sincere but sometimes confusedas to what exactly had happened” was likely an attempt to spare the appellant’s feelings. [14] In any event, I can come to no other conclusion than that the viva voce hearing was conducted in a fair manner having regard to thehearing disability of the appellant.

Accordingly, I would not give effect to this ground of appeal. Evidence of Harvested Crop for 2008 to 2011 [15] The appellant contends that there was simply no evidence introduced at the hearing to show that there was any crop for the years2008 to 2011, inclusive. Thus in order for there to be a breach of the rental agreement due to failure to pay rent, there must be some rentdue and owing. The appellant further contends that even if there was evidence of a crop for the years in question (2008 to 2011), s. 5 ofThe Limitations Act, S.S. 2004, c.

L-16.1, precludes commencement of any claim for recovery of rent “after two years from the day onwhich the claim is discovered.” Since the respondent terminated the lease on March 26, 2013 any potential rent owing for the 2008,2009 and 2010 crop years is statute barred. [16] The respondent rightfully takes issue with these arguments being raised for the first time on appeal.

Furthermore, the respondentsubmits that there was some evidence adduced in respect to crops grown on the home quarter in the 2008 through 2011 growing seasons. [17] With respect to the limitation period, I agree with the respondent that it is inappropriate and unfair to raise a new ground of defencethat was not raised at trial and in relation to which evidence might have been required. See: Howell v. Stagg, (SK CA),[1937] 2 W.W.R. 331 (Sask. Q.B.); Farr-Mor Fertilizer Services Ltd. v. Hawkeye Tanks and Equipment Inc., 2002 SKCA 44, 219 Sask.R. 148 (C.A.) and Luzny v. Craik (Town), 2013 SKCA 94, 423 Sask.

R. 116 (C.A.). Based upon these authorities I do not intend to dealwith the limitation period issue other than to point out the obvious: the 2011 crop year rental would not be statute barred by virtue of thetwo year limitation period. [18] While it could be argued that the same conclusion should be reached with the “new argument” relating to evidence concerningcrops grown in the years in question, I prefer to deal with it on the footing that there was some evidence led to support that crops weregrown. In this respect I note the following: (

a) the evidentiary record at the viva voce hearing included hail insurance receipts for cropsgrown on the home quarter for the 2008 to 2011 growing seasons. These were further supplemented by evidence from the respondentthat he received small hail insurance payments during the tenure of the lease. Of course, the payments could not have been made in theabsence of insurable crops; (

b) the appellant testified that he farmed the home quarter every year “but maybe one” in his entire life.Furthermore, there was documentary evidence filed indicating that there was a crop harvested in the 2010 crop year; (

c) there wasevidence from the respondent that he paid for crop insurance on the home quarter throughout the years in question but did not receiveany insurance proceeds in respect of any yield losses. [19] I agree with the respondent that based upon this evidence, the Chambers judge was entitled to find that the home quarter had beencropped for the years in question. As a result, his conclusion that there were crop share arrears for the years in question is certainlysupported by the evidence. I would not give effect to this ground of appeal. VI. Conclusion

[ 20 ] The appeal is dismissed with costs to the respondent to be assessed under column 2. DATED at the City of Regina, in the Province of Saskatchewan, this 14 th day of April, A.D. 2014. “Herauf J.A.” __________ Herauf J.A.