Helland v. Caragata et al., 2009 SKQB 143

• Judge: Herauf, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: April 24, 2009
• Jurisdiction: Saskatchewan
• Citations: 2009 SKQB 143;(2009), 332 Sask.R. 1 (QB)

Helland v. Caragata (2009), 332 Sask.R. 1 (QB)

MLB headnote and full text

Temp. Cite: [2009] Sask.R. TBEd. AP.053

Lyle Helland (plaintiff/defendant by counterclaim) v. Barry Caragata and Leanne Caragata (defendants/plaintiffs by counterclaim) and Stacey Anderson (defendant/defendant by counterclaim) and Ken Anderson (defendant)

(2005 QB No. 150; 2009 SKQB 143)

Indexed As: Helland v. Caragata et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Moose Jaw

Herauf, J.

April 24, 2009.

Summary:

Helland brought an action against Caragata and Ken Anderson, alleging conversion of 39 cattle and seeking damages, punitive damages and costs. Caragata counterclaimed against Helland and Stacey Anderson for similar relief based on his allegation that Helland unlawfully converted 27 head of Caragata's cattle and for the return of a tractor and a truck held by Helland.

The Saskatchewan Court of Queen's Bench held that Helland had successfully proven his claim of conversion against Caragata and was entitled to damages for the loss of 14 cattle in the amount of $11,900 ($850 x 14). Helland was also entitled to damages for loss of profit for five years of calf crops (2005 to 2009) in the amount of $31,500 (14 x 5 x $450) for a total of $43,400. Helland had successfully proven his claim of conversion against Ken Anderson for a portion of the cattle and was entitled to nominal damages of $850. The amount was considered paid by the retention by Helland of a cow belonging to Ken Anderson. Caragata was entitled to the return of the tractor and truck. The counterclaim was otherwise dismissed. Helland was entitled to prejudgment interest on the sum of $11,900 from February 1, 2005 (the approximate date that the theft of the cattle was discovered) to the date of judgment. The court also determined the costs issues.

Damage Awards - Topic 525

Torts - Injury to goods or personalty - Trespass - Conversion - In December 2004 and January 2005, Caragata, with Anderson's assistance, went to Helland's farm and removed 14 cows on the first trip and nine on the second - In February 2005, Helland, with RCMP and brand inspectors, recovered 25 cows - Based on inventory records which showed that 39 cows were taken, rather than 23 as admitted by Caragata, Helland alleged that Caragata had taken three loads - Helland sued Caragata and Anderson, alleging conversion of 39 cattle - The Saskatchewan Court of Queen's Bench held that, based on the direct and circumstantial evidence, Helland had successfully proven his claim against Caragata and was entitled to damages for the loss of 14 cattle in the amount of $11,900 ($850 x 14) - Helland was also entitled to damages for loss of profit for five years of calf crops (2005 to 2009) in the amount of $31,500 (14 x 5 x $450) for a total of $43,400 - Circumstantial evidence could be used to prove conversion - Anderson had assisted Caragata and was also liable - He could not claim good faith or innocence as a defence - However, based on Anderson's limited involvement, the court was prepared to award nominal damages only against him - Regarding loss of profit, while damages for conversion were subject to mitigation, Helland had acted reasonably in the circumstances - He had launched his lawsuit within a few months - He had attempted numerous times to move the action to settlement or trial - All delays were on Caragata's shoulders - Further, Caragata had not cross-examined on the issue nor called any evidence regarding mitigation - Therefore, Helland was entitled to damages representing five lost calf crop years - Regarding punitive damages, while the circumstances clearly fit within the legal principles for awarding punitive damages, the court declined to award them in light of Caragata's mental health issues and periodic hospitalizations - See paragraphs 122 to 151.

Damages - Topic 1004

Mitigation - General principles - What constitute reasonable remedial measures - [See Damage Awards - Topic 525 ].

Damages - Topic 1014

Mitigation - In tort - Damage to goods - [See Damage Awards - Topic 525 ].

Damages - Topic 1081

Mitigation - Evidence and proof - General - [See Damage Awards - Topic 525 ].

Damages - Topic 1301

Exemplary or punitive damages - Wrongful seizure, detention or conversion of goods - [See Damage Awards - Topic 525 ].

Damages - Topic 1814

Torts affecting goods - Conversion - Basis for calculation - [See Damage Awards - Topic 525 ].

Damages - Topic 1820

Torts affecting goods - Conversion - Loss of profits - [See Damage Awards - Topic 525 ].

Practice - Topic 7025

Costs - Party and party costs - Entitlement to party and party costs - Successful party - Exceptions - Failure to agree or use less expensive or simplified procedure - In December 2004 and January 2005, Caragata, with Anderson's assistance, went to Helland's farm and removed 14 cows on the first trip and nine on the second - In February 2005, Helland, with RCMP and brand inspectors, recovered 25 cows - Based on inventory records which showed that 39 cows were taken, rather than 23 as admitted by Caragata, Helland alleged that Caragata had taken three loads - Helland sued Caragata and Anderson, alleging conversion of 39 cattle - The Saskatchewan Court of Queen's Bench held that, based on the direct and circumstantial evidence, Helland had successfully proven his claim and was entitled to damages totalling $43,400 - Regarding costs, the court rejected the suggestion that the value of the claim brought the action within rule 496 which would deny Helland his costs - The action was not amenable to the simplified procedure because of its complexity - The court also rejected Helland's request for costs in excess of the tariff or a fixed amount to compensate him for the excessive delay and abuse of process that had increased his costs - While all delays including failure to attend mediation, failure to attend pretrials and various adjournments could be placed at the doorstep of Caragata, it was difficult to determine whether this could be attributed to Caragata or his solicitor - Helland had already been awarded costs of one cancelled pretrial conference - The court ordered Caragata to pay $500 in costs for a last minute adjournment of the trial - Other than that, Helland was entitled to his costs from Caragata in an amount to be taxed - See paragraphs 152 to 160.

Practice - Topic 7103.1

Costs - Party and party costs - Special orders - Adjournments - [See Practice - Topic 7025 ].

Practice - Topic 7110.1

Costs - Party and party costs - Special orders - Increase in scale of costs - Conduct of opposite party - [See Practice - Topic 7025 ].

Torts - Topic 3091

Trespass - Trespass to goods - Conversion - General principles - [See Damage Awards - Topic 525 ].

Torts - Topic 3093

Trespass - Trespass to goods - Conversion - What constitutes conversion - [See Damage Awards - Topic 525 ].

Torts - Topic 3105

Trespass - Trespass to goods - Conversion - Defences - [See Damage Awards - Topic 525 ].

Torts - Topic 3107

Trespass - Trespass to goods - Conversion - Damages - General - [See Damage Awards - Topic 525 ].

Torts - Topic 3108

Trespass - Trespass to goods - Conversion - Damages - Mitigation - [See Damage Awards - Topic 525 ].

Cases Noticed:

Boma Manufacturing Ltd. et al. v. Canadian Imperial Bank of Commerce, [1996] 3 S.C.R. 727; 203 N.R. 321; 82 B.C.A.C. 161; 133 W.A.C. 161, refd to. [para. 79].

Marfani & Co. Ltd. v. Midland Bank Ltd., [1968] 2 All E.R. 573 (C.A.), refd to. [para. 80].

Northstar Leasing Corp. v. Two Ten Spruce Corp., [2007] O.T.C. Uned. 375 (Sup. Ct.), refd to. [para. 81].

Wilgosh v. Good Spirit Acres Ltd. (2007), 293 Sask.R. 175; 397 W.A.C. 175; 2007 SKCA 43, refd to. [para. 104].

Klewchuk et al. v. Switzer et al. (2001), 292 A.R. 205; 2001 ABQB 316, varied (2003), 330 A.R. 40; 299 W.A.C. 40; 2003 ABCA 187, refd to. [para. 138].

Cash v. Georgia Pacific Securities Corp. et al., [1990] B.C.T.C. Uned. 683 (S.C.), refd to. [para. 139].

Gruza v. Kozak; Saskatchewan Valley Credit Union Ltd. v. Gruza (1989), 80 Sask.R. 197; 63 D.L.R.(4th) 129 (C.A.), refd to. [para. 139].

Predovich et al. v. Armstrong et al. (1997), 32 O.T.C. 241; 74 C.P.R.(3d) 351 (Gen. Div.), refd to. [para. 140].

Lauscher v. Berryere (Bankrupt) et al. (1999), 177 Sask.R. 219; 199 W.A.C. 219; 172 D.L.R.(4th) 439 (C.A.), refd to. [para. 146].

Hill v. Church of Scientology of Toronto and Manning, [1995] 2 S.C.R. 1130; 184 N.R. 1; 84 O.A.C. 1, refd to. [para. 146].

National Crane Services Inc. v. Stenhouse (2007), 291 Sask.R. 281; 2007 SKQB 31, refd to. [para. 152].

Authors and Works Noticed:

Fleming, John G., The Law of Torts (8th Ed. 1992), p. 69 [para. 134].

Klar, Lewis N., Tort Law (3rd Ed. 2003), p. 95 [para. 130].

Rainaldi, Linda A., Remedies in Tort (1987), vol. I, pp. 4-14[para. 83]; 4-18.1 [para. 84]; 4-29 [para. 129].

Counsel:

Kevin C. Mellor, for Lyle Helland;

Jack R. Hoffart, for Barry Caragata;

Ronald G. Gates, Q.C., for Stacey Anderson & Ken Anderson.

This action and this counterclaim were heard by Herauf, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Moose Jaw, who delivered the following judgment on April 24, 2009.