Superior Canadian Livestock Auction Ltd. v. Stewart, (2014) 462 Sask.R. 286 (QB)

• Judge: Layh, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: December 04, 2014
• Jurisdiction: Saskatchewan
• Citations: (2014), 462 Sask.R. 286 (QB);2014 SKQB 394

Superior Cdn. Livestock v. Stewart (2014), 462 Sask.R. 286 (QB)

MLB headnote and full text

Temp. Cite: [2014] Sask.R. TBEd. DE.087

Andrew Drummond Stewart and Robert Murray Stewart (appellants) v. Superior Canadian Livestock Auction Ltd. (respondent)

(2014 QBG No. 864; 2014 SKQB 394)

Indexed As: Superior Canadian Livestock Auction Ltd. v. Stewart

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Layh, J.

December 4, 2014.

Summary:

The plaintiff had acted as an order buyer for livestock for the defendants. The plaintiff sought recovery from the defendants of $15,035 for five purebred bulls that the plaintiff had purchased for and delivered to the defendants in March 2008. The defendants denied that the bulls had been purchased or delivered. Alternatively, the defendants asserted that the claim was statute-barred.

The Saskatchewan Provincial Court, in a decision reported at (2014), 441 Sask.R. 287, allowed the action, granting judgment to the plaintiff. The defendants appealed.

The Saskatchewan Court of Queen's Bench allowed the appeal.

Contracts - Topic 1104

Formation of contract - General principles - Oral contracts - In September 2013, the plaintiff commenced an action, seeking recovery from the defendants for five purebred bulls purchased for and delivered to the defendants in March 2008 - The defendants asserted that the claim was statute-barred - The trial court allowed the action on the basis that a verbal collateral agreement had altered the running of the limitation period to November 2013 - The Saskatchewan Court of Queen's Bench allowed the defendants' appeal - For the appeal's purposes, the court assumed that the limitation period could have been altered if the parties had entered into a common law forbearance agreement - Further, in obiter, the court indicated that a validly created oral agreement could modify the original written terms of payment - However, there was a palpable and overriding error in the trial judge's finding of facts necessary to support finding the essential elements of a contract in the verbal collateral agreement - The plaintiff was nothing more than "a frustrated and overly-patient creditor seeking recovery of his account" - His efforts were "optimistic and unilateral suggestions" to the defendants, none of which were accepted - Nor had the trial judge canvassed the necessary legal framework to find a forbearance agreement - In addition to consideration, forbearance agreements required the debtor to request the forbearance, rather than the creditor - See paragraphs 16 to 30.

Contracts - Topic 1303

Formation of contract - Acceptance - What constitutes - [See Contracts - Topic 1104 ].

Contracts - Topic 1484

Formation of contract - Collateral contracts - What constitutes a collateral contract - [See Contracts - Topic 1104 ].

Contracts - Topic 1503

Formation of contract - Consensus or agreement - What constitutes a consensus necessary for a binding contract - [See Contracts - Topic 1104 ].

Contracts - Topic 2875

Consideration - What constitutes consideration - Forbearance - General - [See Contracts - Topic 1104 ].

Practice - Topic 9762.1

Small claims - Appeals - Scope of review - In September 2013, the plaintiff commenced an action, seeking recovery from the defendants of for five purebred bulls purchased for and delivered to the defendants in March 2008 - The defendants asserted that the claim was statute-barred - The trial court allowed the action on the basis that a verbal collateral agreement had altered the running of the limitation period to November 2013 - The defendants appealed under s. 39 of the Small Claims Act - The Saskatchewan Court of Queen's Bench discussed the standard of review - The question of whether the trial judge had erred in permitting an extension of the limitation period other than as specifically contemplated by s. 11 of the Limitations Act was a question of law, reviewed on the correctness standard, as was the question of whether a verbal collateral contract could modify a written invoice - Whether the trial judge had erred in finding the creation of a verbal collateral contract was a question of mixed fact and law - See paragraphs 14 and 15.

Cases Noticed:

Gamey v. Langenburg (Town) (2010), 343 Sask.R. 258; 472 W.A.C. 258; 2010 SKCA 11, refd to. [para. 14].

Tether v. Tether (2008), 314 Sask.R. 121; 435 W.A.C. 121; 2008 SKCA 126, refd to. [para. 15].

Shook v. Munro et al., [1948] S.C.R. 539, refd to. [para. 18].

Hamilton (City) v. Metcalfe & Mansfield Capital Corp. et al. (2012), 290 O.A.C. 42; 347 D.L.R.(4th) 657; 2012 ONCA 156, refd to. [para. 18].

Smiechowski v. Preece, [2014] A.R. Uned. 495; 2014 ABQB 272, refd to. [para. 19].

National Motor Coach Systems Ltd. et al. v. Sunshine Coach Ltd., [2006] A.R. Uned. 402; 2006 ABQB 466 (Master), refd to. [para. 19].

Soler & Palau Canada Inc. v. Meyer's Sheet Metal Ltd. (2012), 545 A.R. 391; 2012 ABQB 496 (Master), refd to. [para. 19].

Lloydminster Credit Union Ltd. v. 324007 Alberta Ltd. (2011), 375 Sask.R. 179; 525 W.A.C. 179; 2011 SKCA 93, refd to. [para. 21].

Authors and Works Noticed:

Chitty on Contracts (31st Ed. 2012), vol. 1, paras. 3-060 [para. 29]; 22-033, 22-035 [para. 21].

Counsel:

W. Howe, for the appellants;

S. Neal, for the respondent.

This appeal was heard by Layh, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following judgment on December 4, 2014.