Wilgosh v. Good Spirit Acres Ltd., (2007) 293 Sask.R. 175 (CA)

• Judge: Gerwing, Sherstobitoff and Jackson, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: April 12, 2007
• Jurisdiction: Saskatchewan
• Citations: (2007), 293 Sask.R. 175 (CA);2007 SKCA 43

Wilgosh v. Good Spirit Acres Ltd. (2007), 293 Sask.R. 175 (CA);

      397 W.A.C. 175

MLB headnote and full text

Temp. Cite: [2007] Sask.R. TBEd. MY.004

Roman Wilgosh (plaintiff/appellant) v. Good Spirit Acres Ltd. (defendant/respondent)

(No. 1264; 2007 SKCA 43)

Indexed As: Wilgosh v. Good Spirit Acres Ltd.

Saskatchewan Court of Appeal

Gerwing, Sherstobitoff and Jackson, JJ.A.

April 12, 2007.

Summary:

In April 2001, the parties entered into an agreement by which the plaintiff would perform custom farming services on the defendant's land. The plaintiff performed the work in 2001 and 2002. The defendant repudiated the contract in January 2003. The plaintiff sued for amounts owed under the agreement together with service charges compounded at 1.5% per month. He also claimed damages for loss of prospective income for 2004 and 2005 on the basis that he was wrongfully deprived of the opportunity to exercise an option in the agreement to provide services during those years. The defendant counterclaimed, alleging that the plaintiff had unlawfully converted mustard belonging to the defendant to his own use, that there were acreage overcharges by the plaintiff, and that the clause of the contract requiring payment of a 1.5% service charge to be compounded monthly did not meet the requirements of the federal Interest Act.

The Saskatchewan Court of Queen's Bench, in a decision reported at 276 Sask.R. 142, found that the plaintiff had converted the defendant's mustard to his own use and that the conversion provided cause for the defendant to repudiate the agreement. The court held that the plaintiff was entitled to be paid for amounts owed for his services as of the repudiation date, together with interest at 5% per annum. Beyond that, the plaintiff's claim was dismissed. The defendant's counterclaim was allowed to the extent that it was entitled to deduct the value of the missing mustard, the acreage overcharges and the service charges paid in excess of 5% per annum, from the amount owed to the plaintiff. The plaintiff appealed.

The Saskatchewan Court of Appeal varied the judgment below to change the defendant's damages for the missing mustard to the monetary value of 55 tonnes rather than 60 tonnes. The appeal was otherwise dismissed.

Contracts - Topic 9

General principles - Options - [See Contracts - Topic 5643 ].

Contracts - Topic 5643

Unenforceable contracts - Uncertainty and vagueness - Uncertainty - In April 2001, the parties entered into an agreement by which the plaintiff would perform custom farming services on the defendant's land - The plaintiff performed the work in 2001 and 2002 - The defendant repudiated the contract in 2003 - The plaintiff claimed damages for loss of prospective income for 2004 and 2005 on the basis that he was wrongfully deprived of the opportunity to exercise an option in the agreement to provide services during those years - The trial judge held that the option clause, which stated "Contractor retains an option for the years 2004 and 2005" was void for uncertainty - The option clause did not describe the services which might be required in 2004 or 2005, or at what price they would be provided - The Saskatchewan Court of Appeal held that the trial judge's conclusion was correct - See paragraph 10.

Evidence - Topic 104

Degree, standard or burden of proof - Standard or degree of proof - Proof of crime in civil cases - The plaintiff appealed from the trial judge's finding that the plaintiff had converted to his own use a substantial quantity of mustard seed which was the property of the defendant - The plaintiff argued that the trial judge erred in failing to apply a standard of proof commensurate with the seriousness of the allegation, the conversion alleged being tantamount to an allegation of theft - In support of his argument, the plaintiff cited the judgment in Continental Insurance Co. v. Dalton Cartage Co. (S.C.C.) - The Saskatchewan Court of Appeal held that the trial judge made no error of principle in determining the standard of proof - The trial judge referred to the decisions in both Continental Insurance and Bater v. Bater (Eng. C.A.) - He clearly understood both judgments and applied them - The standard of proof remained proof on a balance of probabilities, although there might be different degrees of probability within that standard - See paragraphs 2 to 3.

Evidence - Topic 7003.2

Opinion evidence - Expert evidence - General - When expert evidence required - A dispute arose regarding an agreement between the parties under which the plaintiff performed custom farming services on the defendant's land - The trial judge held, inter alia, that the plaintiff was entitled to be paid for his services performed as of the date that the defendant repudiated the contract - One ground raised on appeal concerned the number of acres charged for by the plaintiff - The plaintiff measured the acres by readings from meters mounted on his seeding and spraying equipment - The defendant had the acres measured using the Global Positioning System (GPS) - The plaintiff argued that the trial judge erred in accepting the GPS report without expert evidence - Alternatively, he argued that the trial judge should have treated it as inadmissible hearsay since the witness through whom it was introduced did not give evidence as to how he arrived at his figures - The Saskatchewan Court of Appeal held that both the meters and GPS systems were now so widely used and accepted that it was open to the trial judge to admit them as cogent evidence without the support of expert witnesses - It was also open to him to prefer one system over the other for accuracy - See paragraph 6.

Interest - Topic 3002

Statutory interest - Interest Act - Application of - [See Interest - Topic 3104 ].

Interest - Topic 3104

Statutory interest - Interest Act - Statutory conditions - Requirement of statement of "yearly rate" - The plaintiff sued the defendant for amounts owed under a contract for services - The defendant argued that the clause of the contract requiring payment of a 1.5% service charge to be compounded monthly on outstanding account balances did not meet the requirement in s. 4 of the federal Interest Act that the contract state the yearly interest rate - The plaintiff argued that the Interest Act had no application to the agreement - He cited a decision of the Alberta Court of Appeal, which had taken a restrictive view of the meaning of "interest" in the legislation and confined it to agreements to extend time for the payment of a loan or purchase price in return for the payment of interest - The trial judge followed the decision in Sunnyside Nursing Home v. Builders Contract Management (Sask. C.A.), which held that the Interest Act applied to all contracts - The trial judge concluded that the agreement did not meet the requirement in s. 4 of the Act and the plaintiff was only entitled to a service charge calculated at the rate of 5% per annum - The Saskatchewan Court of Appeal held that the trial judge's conclusion was correct - See paragraphs 7 to 8.

Cases Noticed:

Dalton Cartage Co. v. Continental Insurance Co. and St. Paul Fire and Marine Insurance Co., [1982] 1 S.C.R. 164; 40 N.R. 135, refd to. [para. 2].

Bater v. Bater, [1950] 1 S.C.R. 164, refd to. [para. 3].

Sunnyside Nursing Home v. Builders Contract Management Ltd., [1990] 5 W.W.R. 289; 83 Sask.R. 294 (C.A.), folld. [para. 8].

Counsel:

Pauline Duncan Bonneau, Q.C., for the appellant;

Ronald G. Gates, Q.C. and Deidre Aldcorn, for the respondent.

This appeal was heard on April 12, 2007, before Gerwing, Sherstobitoff and Jackson, JJ.A., of the Saskatchewan Court of Appeal. The decision of the Court of Appeal was rendered orally on April 12, 2007, and the following written reasons were delivered by Sherstobitoff, J.A., on April 16, 2007.