2001 SKQB 463 Q.B.G. A.D. 1998 No. 1040 J.C. R. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: NORTHERN RECYCLING LTD. and GARY PAWLIW and JOSEPH PAWLIW operating as Triple Holdings AND Q.B.G. A.D. 1998 No. 1041 J.C. R. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: NORTHERN METALS LTD. and GARY PAWLIW and JOSEPH PAWLIW operating as Triple Holdings DEFENDANTS Michael B. Griffin for the plaintiffs Gerald B. Heinrichs for the defendants JUDGMENT MacDONALD J. October 16, 2001 [1] It had been established that these two matters would be tried together and there are no substantive differences between the cases on the issues that determine the rights and obligations of the parties. [2] Accordingly, this judgment applies to both Q.B.G. No. 1040/1998 and Q.B.G. No. 1041/98. [3] There are two contracts that play in this case: The contract between the City of Regina and Triple Holdings operated by the defendants; The contract of January 21, 1997, between the respective plaintiffs in each action and the same two defendants in each action. [4] The plaintiffs have constructed their cases in reliance upon the overall affect of both contracts with specific emphasis on the contract of January 21, 1997. PRIVITY OF CONTRACT [5] The defendants have pleaded that there is no privity of contract between the plaintiffs and the City of Regina and that the plaintiffs are thereby prevented from enforcing the terms as agreed by the City of Regina and Triple P Holdings. [6] The issue of privity of contract could have been a critical issue in different circumstances but, in the end, this case will not turn on the question of privity. [7] While, strictly speaking, the plaintiffs were not actual parties to the contract with the City of Regina, the general thrust of all of the evidence was that certain benefits were intended to pass through the general contract to the members of the Independent Truckers Association. [8] It is not clear from the evidence whether all the parties intended that all contracts and arrangements be taken as one overall agreement and enforced accordingly. For determination of the case here will look to see if the plaintiffs have made out the case that they have constructed. [9] The single issue of privity is overwhelmed by the larger issue as to what really is the contract alleged to have been breached. [10] If the plaintiffs had intended to present the case that the contract was the whole arrangement between the City, the Association, the contractor and the truckers, then they would have had to draw in all of the parties, including the trucking association and the City of Regina as well as all of the related documents. [11] must decide the case as presented; that the plaintiffs are entitled to damages from the defendants for breach of contract dated January 21, 1997 and with reference to the contract between the defendants and the City of Regina. [12] The first breach of contract complained of is that the defendants failed to apply the rotation of truckers described in the arrangement between the City of Regina and the Independent Truckers Association. [13] The factual evidence here is in conflict but find that the defendants made some effort to include the plaintiffs in the rotation. [14] Problematically, for the plaintiffs, there is no contractual obligation in the agreement of January 21, 1997 which requires the defendants to adhere to any particular arrangement on the rotation of work and the contract between the defendants and the City of Regina is not incorporated by specific or general reference. [15] The contract of January 21, 1997, obligates the trucker to provide services according to set of rules. The contract goes on to specify the contractors obligations to pay in the event services are provided by the trucker. [16] But there is no corresponding obligation on the part of contractor to call for such services. [17] The plaintiffs cannot therefore make out their case of this alleged breach of contract. [18] The second breach of contract alleged by the plaintiffs is that the defendants took too many hours on the total contract. The plaintiffs say that the defendants are entitled to maximum of 10% of the whole available hours on the work with the City of Regina and that by taking more hours, they broke the arrangement and these "excess" hours should be used in calculating an allotment on the rotation. [19] The contract of January 21, 1997 is silent on this issue. [20] The plaintiffs rely on s. of the 1997 Tender for Rental of Trucks Specifications. Section of the specifications does not say in any respect what the plaintiffs allege it does and it is totally silent on the interpretative issue about how much work the contractor can do in total. [21] The first sentence of s. 9 of the specifications is more consistent with what was actually done by the defendants than with the interpretation put on it by the plaintiffs. [22] The plaintiffs have failed to make out a case that the contract term was as alleged on that breach and that any breach occurred. [23] It is incumbent upon me to deal with findings as to damages even though have found there is no entitlement. The damages claimed by the plaintiffs are excessive and do not properly take into account: (a) Actual operating expenses for the time complained about; (b) The net affect of mitigating factors; and (c) reliable calculation of the administration of the rotation of work. [24] Even if the case on entitlement had been made out the damages could not have been properly determined without further evidence or representation. RESULT [25] Accordingly, each case is dismissed.
This judgment applies to both QBG No. 1040/98 and QBG No. 1041/98 respecting the contract between the city and Triple P Holdings and the January 21, 1997 contract between the plaintiffs and the defendants. The first breach of contract concerned a failure to apply the rotation of truckers described in the arrangement between the city and Truckers Association. The second breach alleged the defendants took too many hours on the total contract. Both matters were tried together. The defendants pleaded there was no privity of contract between the city and plaintiffs, therefore the plaintiffs could not enforce terms agreed to by the city and Triple P. HELD: Both actions were dismissed. 1)The case did not turn on the issue of privity. While the plaintiffs were not actual parties to the contract with the city, certain benefits were intended to pass through the general contract to members of the Truckers Association. 2)There was no contractual obligation in the 1997 agreement which required the defendant to adhere to any particular arrangement on the rotation of work. The contract between the defendants and city was not incorporated by specific or general reference. The first sentence of s.9 of the 1997 tender for rental of truck specifications was more consistent with what was actually done by the defendants than with the interpretation put on it by the plaintiffs. They failed to make out a case that the contract term was as alleged or that any breach occurred.  3)Had a case been made out, further evidence of damages would be required. The damages claimed were excessive and did not properly take into account actual operating expenses, the net affect of mitigating factors, and reliable calculation of the administration of the rotation of work.