Docket: CACV2514 Robbie Dale Wotherspoon Prospective Appellant - v. -, 2014 SKCA 48

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 48 Date: 2014-04-24 Between: Docket: CACV2514 Robbie Dale Wotherspoon Prospective Appellant - and - Growers International Organic Sales Inc. and N.M. Paterson & Sons Limited Prospective Respondents Before: Whitmore J.A. (in Chambers) Counsel: Robbie Wotherspoon, appearing on his own behalf Madeline Baron, for the prospective respondents Application: From: Q.B. 67/213, J.C. of Swift Current Heard: April 23, 2014 Disposition: Leave denied Written Reasons: April 24, 2014

By: The Honourable Mr. Justice Whitmore Whitmore J.A. I. Introduction [ 1 ] This is an application for leave to appeal by Robbie Dale Wotherspoon (the applicant). [ 2 ] In June 2011 the applicant and Growers International Organic Sales Inc. (the respondent, “Growers”) entered into a written contract for the delivery of grain (durum).

The applicant made a partial delivery but did not complete the terms of the contract. [ 3 ] The price of the grain under the contract was going up rapidly during the term of the contract and the respondent set off what was owed the applicant for the grain delivered from the amount the respondent calculated was its damages for non-delivery under the June 2011 contract. [ 4 ] The applicant sued in small claims court for payment for grain delivered. [ 5 ] In small claims court, the trial judge found that there had been a fundamental breach of the June 2011 contract when Growers did not pick up the durum between June 13 and June 24, 2011.

It appears the trial judge then went on to conclude that from that point on a brand new verbal or ad hoc contract was entered into between the parties resulting in Mr. Wotherspoon delivering grain on November 4, 2011 essentially unfettered by any of the June 2011 contract terms. In short, Mr. Wotherspoon delivered grain and should have received full payment for the grain without any set off. II. The Appeal [ 6 ] The respondent appealed to the Court of Queen’s Bench where the appeal judge concluded that the trial judge erred in not considering the evidence of the applicant’s conduct after June 24, 2011.

The appeal judge said the following: However whether this was a fundamental breach or not is not the issue. In my view the learned trial judge erred when he considered the evidence and found that the June 2011 contract was over. The evidence of Mr. Wotherspoon clearly indicates (for the reasons set out above in the appellant’s position) that he undoubtedly considered the contract to be still in existence. There can be no other explanation for his actions.

I believe that unfortunately the learned trial judge erred when he stated in his decision at para. 19 that it was reasonable to conclude that the durum price w2as the same in November as it was in June, 2011. There was no evidence of that and in fact the evidence was that the price was around $14.00. It seems that view of the evidence resulted in the trial judge deciding that the price that Mr. Wotherspoon was willing to take was consistent with what the prevailing price was. As stated the prevailing price appeared to be much higher.

Accordingly, whether there was a fundamental breach or not is moot; the real issue is what Mr. Wotherspoon decided to do after June 24, 2011. As I have indicated, his testimony indicates that he continued with the contract right up to when he delivered the durum on November 4, 2011 for the agreed price with Growers. However he only delivered 25.249 MT of durum and he needed to deliver a further 97.218 MT of durum. He refused to do this. In short Mr. Wotherspoon should not be able to have his cake and eat it too.

He considered himself bound by the June 2011 contract to the extent that he was prepared to deliver grain on November 4, 2011 and he should have recognized (and it appears he did because he could not give an explanation to the trial judge as to why he did not deliver the balance of the grain) that he had an obligation to deliver the rest of his grain. It would seem obvious that Mr.

Wotherspoon realized in November 2011 what was going on with the set off under the liquidated damages portion of the contract he signed and simply chose not to deliver any more grain. [ 7 ] The appeal judge thereupon granted the appeal and set aside the judgment in favour of the applicant in the amount of $9,277.50 and dismissed his claim against the respondent. From this decision the applicant seeks leave to appeal. [ 8 ] This application is brought pursuant to s. 45 of The Small Claims Act, 1997 , S.S. 1997, c.

S-50.11: Appeal to Court of Appeal 45 The judgment of the judge hearing the appeal is subject to appeal to the Court of Appeal on a question of law, with leave of a judge of that court. In considering whether to grant leave, it is necessary to consider whether the matter has sufficient merit and importance to warrant granting leave (see Rothmans, Benson & Hedges Inc. v. Saskatchewan , 2002 SKCA 119 , 227 Sask. R. 121). [ 9 ] The applicant’s proposed grounds of appeal are as follows:

i) the appeal judge erred in law and fact by holding that there was not a fundamental breach of the June 2011 contract; and ii) the appeal judge erred in law and fact by holding that a subsequent verbal contract did not exist between the parties. [ 10 ] The respondent claims that the applicant has not identified an error of law. [ 11 ] I am of the view that these grounds are not properly questions of law, but are more in the nature of a disagreement with the findings

of fact and the application of facts to the law. [ 12 ] As well, the applicant has not shown that the proposed grounds of appeal have a chance of success upon further appeal. The applicant has provided no basis for his submissions on the alleged errors of the appeal judge. [ 13 ] Finally, the applicant has not shown that this matter is of general importance. It is a small claims matter involving less than $10,000 and has been heard by two levels of court. It is fact specific and is not of any general application (see 627360 Saskatchewan Ltd. v. Bellrose , 2007 SKCA 23 , 293 Sask. R. 164; Flannigan v.

DeCorby , 2006 SKCA 121 , 153 A.C.W.S. (3d) 1025). [ 14 ] I do not view this as a matter to be brought before this Court for further consideration. Leave is denied. The respondent shall have its costs to be taxed. DATED at the City of Regina, in the Province of Saskatchewan, this 24th day of April, A.D. 2014 . “Whitmore J.A.” Whitmore J.A.