R.C. MILLS Court of Appeal for Saskatchewan Docket: CACV2719 Citation: 6517633 Canada Ltd. Knudsen Sons Muddy View Ranch Ltd., 2015 SKCA 77 Date: 2015-06-26 Between: 6517633 Canada Ltd. Appellant (Plaintiff) And Knudsen Sons Muddy View Ranch Ltd. Respondent (Defendant) Before: Richards C.J.S. (in Chambers) Disposition: Leave to appeal denied Written reasons by: The Honourable Chief Justice Richards On Appeal From: QBG 2655 of 2014, J.C. of Regina Heard: June 24, 2015 Counsel: Stan Sheppard for the Appellant Idowu Adetogun for the Respondent Richards C.J.S. [1] Stan Sheppard’s company, 6517633 Canada Ltd. [the Company], sued Knudsen Sons Muddy View Ranch Ltd. [Knudsen] for breaching contract whereby the Company had agreed to custom seed some 1,050 acres for Knudsen in exchange for fixed price of $19,293.75. [2] The essential facts are relatively straightforward. In broad-brush terms, they are as follows. The contract in question was signed on May 29, 2014. The next evening, Gene Knudsen telephoned Mr. Sheppard to ask if he was prepared to do only portion of the seeding and to “seed along side us”. Mr. Sheppard made it clear that he considered this to be breach of the contract but said he would think about it. At around noon the next day, May 31, Mr. Sheppard called Gene Knudsen back and said he was not prepared to comprise his position. Mr. Sheppard then discovered voicemail message from Gene Knudsen which Mr. Knudsen had left for him earlier in the day. In it, Mr. Knudsen had said, “[W]e got guy” and had told Mr. Sheppard not to move his equipment to the Knudsen land. [3] On June 2, after getting advice from his lawyer, Gene Knudsen called Mr. Sheppard and, as found by the trial judge, told Mr. Sheppard that the Company could seed until the job was done. At that point, between 70 and 100 acres had already been seeded. Mr. Sheppard rejected this invitation and sued Knudsen for $19,293.75, the value of the contract. [4] At the Small Claims trial, the judge found that Knudsen had breached the contract but that the Company had failed to mitigate its damages when, on June 2, it had declined the opportunity to finish seeding the Knudsen land. He awarded damages in the amount of only $1,575.00, being the profit that would have been lost in relation to the 70-100 acres which had already been seeded when Mr. Knudsen had extended his offer. [5] The Company appealed to the Court of Queen’s Bench, arguing that the trial decision was unreasonable and unsupported by the evidence and that the trial judge had improperly interfered with Mr. Sheppard’s cross-examination of Knudsen’s witnesses. The appeal judge rejected both lines of argument. He found that the trial judge’s findings of fact had been reasonable and that the trial judge had managed the trial fairly, patiently and efficiently. [6] The Company now seeks leave to appeal to this Court. Significantly, by virtue of s. 45 of The Small Claims Act, 1997, SS 1997, S-50.11, it may appeal only on question of law. Further, in order to obtain leave, the Company must establish that any question of law it wishes to raise is of both sufficient merit and of sufficient importance to warrant the attention of the Court. See: Rothmans, Benson Hedges Inc. Saskatchewan, 2002 SKCA 119 (CanLII), 227 Sask 121. [7] The Company has catalogue of complaints about the Queen’s Bench decision and about the way in which the judges in the courts below decided the matters before them. However, only a few of those complaints can properly be characterized as questions of “law”. Most are questions of “fact”. (In this regard, Mr. Sheppard appeared, during the course of his oral submissions, to believe that any error of any kind was necessarily an error of law. This is not the case. An error which involves the weighing or assessment of the evidence and the determination of what did or did not happen is an error of fact.) [8] The Company’s central complaint is that neither the appeal judge nor the trial judge understood the significance of exhibit P-5, drawing which shows the effect that water washes would have had on efforts to seed particular tract of land owned by Knudsen. The Company’s concern is that exhibit P-5 was not given sufficient effect or importance in determining whether the Company had mitigated its damages. But, if this was an error, it was an error of fact. The trial judge concluded that the Company could have seeded all but 70-100 acres of the Knudsen land but had chosen not to do so. This is conclusion that was open to him given the evidence as whole and see no possible error in the appeal judge’s decision to that effect. Further, regardless of what exhibit P-5 might show about the impact of water washes on seeding patterns, the trial judge found that the Company could have mitigated its losses by seeding the whole of the tract of land shown in P-5 plus the balance of the Knudsen property (save for 70-100 acres). The fact that water washes might have changed seeding patterns or made seeding more difficult did not entitle the Company to refuse to mitigate its losses. [9] The Company also says the trial judge erred in finding that Mr. Sheppard contacted the RCMP. This too is an issue of fact and, in any event, it has absolutely no bearing on the outcome of the case. [10] The Company does raise some issues which could be issues of law but they are all so lacking in merit as to not warrant granting leave to appeal in relation to them. Let me comment very briefly on the main points raised by the Company: (a) The trial judge refused to let Mr. Sheppard refer to exhibit P-5—this is not matter raised or dealt with by the appeal judge. As result, it does not relate to an error in his decision. In any event, have reviewed the relevant part of the transcript. The trial judge did no more than attempt to keep the trial moving forward and to require Mr. Sheppard to answer the question that he had been asked at that point. (b) The trial judge improperly cut off Mr. Sheppard’s cross-examination of Gene Knudsen—I agree with the appeal judge that the trial judge did nothing improper in this regard. He merely attempted to keep Mr. Sheppard on track in the presentation of his case and discouraged him from asking Mr. Knudsen the same question multiple times. (c) The trial judge diminished Mr. Sheppard and/or showed bias by using the phrase “people like you” to describe him and by asking if he thought mitigation meant sitting by the phone and waiting for people to respond to his ads—this issue was not raised with the appeal judge and he did not deal with it. Further, it is devoid of merit. Seen in context, the trial judge’s language was innocuous, created no unfairness and revealed no bias. [11] I conclude, therefore, that leave to appeal should not be granted to the Company. Knudsen is entitled to costs which, in the interest of expediency, set at $800. “Richards C.J.S.” Richards C.J.S.
The court denied leave to appeal. The applicant’s proposed grounds of appeal were not questions of law but of fact.