Green v. Swift Current (City), 2009 SKQB 110

• Judge: Whitmore, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: March 20, 2009
• Jurisdiction: Saskatchewan
• Citations: 2009 SKQB 110;(2009), 330 Sask.R. 179 (QB)

Green v. Swift Current (2009), 330 Sask.R. 179 (QB)

MLB headnote and full text

Temp. Cite: [2009] Sask.R. TBEd. AP.008

Mathew David Green and Dixie Rhonda Green (plaintiffs) v. The City of Swift Current (defendant)

(2004 Q.B. No. 107; 2009 SKQB 110)

Indexed As: Green v. Swift Current (City)

Saskatchewan Court of Queen's Bench

Judicial Centre of Swift Current

Whitmore, J.

March 20, 2009.

Summary:

The plaintiffs entered into two agreements with the city relating to an irrigation project under which effluent generated from the city's sewage lagoons was used for irrigating crops. The system served approximately 830 acres of agricultural land, including that of the plaintiffs and three other farmers. In 2004, after a series of difficulties with the plaintiff, Mathew, the city concluded that its relationship with the plaintiffs had deteriorated to the point where the city could not carry on. The city terminated the agreements with the plaintiffs, alleging breaches of the agreement by the plaintiffs, including a failure to cooperate with the city and the other irrigators to allow the project to function appropriately. The plaintiffs commenced an action against the city, alleging breaches of the agreements and that the city wrongfully terminated the agreements. The city counterclaimed.

The Saskatchewan Court of Queen's Bench dismissed the action and the counterclaim.

Contracts - Topic 2065

Terms - Implied terms - To achieve business efficacy - The plaintiffs entered into two agreements with the city relating to an irrigation project under which effluent generated from the city's sewage lagoons was used for irrigating crops - The system served approximately 830 acres of agricultural land, including that of the plaintiffs and three other farmers - In 2004, after a series of difficulties with the plaintiff, Mathew, the city concluded that its relationship with the plaintiffs had deteriorated to the point where the city could not carry on - The city terminated the agreements with the plaintiffs on the basis of breaches by the plaintiffs, including a failure to cooperate with the city and with the other irrigators - The plaintiffs commenced an action against the city, alleging, inter alia, that the city wrongfully terminated the agreements - The Saskatchewan Court of Queen's Bench dismissed the action - There was no express term requiring the plaintiffs to cooperate - However, an implied term requiring cooperation was necessary to give business efficacy to the contracts - The implementation and success of the irrigation system required that all of the parties had to work together - Mathew was unreasonable, uncooperative and completely oblivious to any opinion other than his own - He failed to act in good faith - His lack of cooperation and of sharing the water meant that the other parties did not get what they needed from the system - Mathew's breach also meant that the city was unable to dispose of its effluent, which was the sole purpose of the irrigation system - The city was justified in terminating the agreements based on Mathew's breach of the fundamental implied term of the agreements requiring cooperation - See paragraphs 183 to 222.

Contracts - Topic 3502

Performance or breach - Obligation to perform - Good faith - Exercise of - [See Contracts - Topic 2065 ].

Contracts - Topic 3524

Performance or breach - Breach - Bad faith - [See Contracts - Topic 2065 ].

Contracts - Topic 3730

Performance or breach - Fundamental breach - What constitutes a fundamental breach - [See Contracts - Topic 2065 ].

Contracts - Topic 3731

Performance or breach - Fundamental breach - Effect of - [See Contracts - Topic 2065 ].

Contracts - Topic 4650

Discharge and termination - By breach - General - [See Contracts - Topic 2065 ].

Contracts - Topic 4653

Discharge and termination - By breach - Respecting purpose of contract - [See Contracts - Topic 2065 ].

Limitation of Actions - Topic 8021

Actions against municipalities - Applicability of limitation period - General - The plaintiffs commenced an action against the city, alleging that it breached several agreements relating to an irrigation project - The claim was served on the city on June 30, 2004 - The city asserted that s. 314 of the Urban Municipality Act and s. 307(1) of the Cities Act limited the plaintiffs' claim to damages incurred after June 30, 2003 (one year before service of the statement of claim) - The plaintiffs asserted that s. 307 was not intended to limit an action for breach of contract, but was only intended to apply to an action for damages - As a breach of contract could have remedies other than damages, the plaintiffs asserted that it could not be meant to apply to breaches of contract - The Saskatchewan Court of Queen's Bench rejected the plaintiffs' interpretation - The plaintiffs' damages were limited to the period within one year of the service of the statement of claim - See paragraphs 146 to 151.

Municipal Law - Topic 6263

Actions against municipality - Restrictions - Statutory restrictions - The plaintiffs commenced an action against the city, alleging that it breached several agreements relating to an irrigation project - The city asserted that s. 302 of the Cities Act was a complete defence to the action - Section 302 stated that "a city is not liable for damage caused by any thing done or not done by the city in accordance with the authority of this or any other Act unless the cause of action is negligence or any other tort" - The Saskatchewan Court of Queen's Bench held that s. 302 did not prevent the plaintiffs from pursuing the city for an action for breach of contract - While there was no case law interpreting the section, the authorities were replete with actions against cities in Saskatchewan - This established, at least, that such actions were permissible - See paragraphs 152 and 153.

Municipal Law - Topic 6441

Actions against municipality - Limitation periods - General - [See Limitation of Actions - Topic 8021 ].

Cases Noticed:

Platana v. Saskatoon (City) et al. (2006), 275 Sask.R. 242; 365 W.A.C. 242; 2006 SKCA 10, refd to. [para. 150].

New Brunswick Power Corp. v. Westinghouse Canada Inc. et al. (2008), 337 N.B.R.(2d) 138; 864 A.P.R. 138; 2008 NBCA 70, refd to. [para. 187].

1193430 Ontario Inc. v. Boa-Franc Inc. (2005), 203 O.A.C. 320; 260 D.L.R.(4th) 659 (C.A.), refd to. [para. 187].

M.J.B. Enterprises Ltd. v. Defence Construction (1951) Co. et al., [1999] 1 S.C.R. 619; 237 N.R. 334; 232 A.R. 360; 195 W.A.C. 360, refd to. [para. 213].

Tkachuk v. Saskatoon Auction Mart (2007), 299 Sask.R. 273; 408 W.A.C. 273; 2007 SKCA 18, refd to. [para. 214].

Wind Power Inc. et al. v. Saskatchewan Power Corp. (2002), 217 Sask.R. 193; 265 W.A.C. 193; 2002 SKCA 61, refd to. [para. 214].

Double N Earthmovers Ltd. v. Edmonton (City) et al. (2007), 356 N.R. 211; 401 A.R. 329; 391 W.A.C. 329; 2007 SCC 3, refd to. [para. 214].

Statutes Noticed:

Cities Act, S.S. 2002, c. C-11.1, sect. 302 [para. 152]; sect. 307(1) [para. 149].

Urban Municipality Act, S.S. 1983-84, c. U-11, sect. 314(1) [para. 148].

Authors and Works Noticed:

Fridman, Gerald Henry Louis, The Law of Contract in Canada (5th Ed. 2006), p. 465 [para. 212].

Counsel:

Robert G. Kennedy, Q.C., for the plaintiffs;

Murray Walter, Q.C., for the defendant.

This action and this counterclaim were heard by Whitmore, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Swift Current, who delivered the following judgment on March 20, 2009.