Last week we looked at the landowner, KD, who found herself unpaid for
pasturing cattle. However, what if JS the cattle owner finds that KD
didn’t live up to the agreement?
Five of JS’s cattle have wandered off after 100 metres of fence was
down and it took KD several days to repair it. Or JS goes to pick up
his cattle and finds they are in worse condition than when he left
them. In the written agreement KD and JS had agreed that KD would
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pasture no more than 150 head of cattle. However, JS finds that more
than 300 head were pastured – too many for the pasture.
Even if there is no detailed contract, the law still places obligations
on KD. Unless otherwise agreed, as a general principle of law KD must
take the same kind of care as a reasonable owner would. Thus KD must
ensure that the fences are in shape so cattle don’t escape. If the
cattle are sick, at minimum she would have to notify the owner.
For our discussion, we’ll assume that there is no question KD was in
breach of the well-written contract. What can JS do?
Failing negotiation, there is no easy or quick solution to JS’s
dilemma. All that JS can do is sue KD. To complicate matters, in our
example, KD and JS live in different provinces. As a general rule,
contract disputes must be heard by the court in the province where
either the contract was performed or signed. So JS, who lives in
Alberta, would probably have to sue KD in Saskatchewan courts.
In Saskatchewan, if JS’s claim is under $5,000, the matter can be heard
in small claims court. Small claims limits in Alberta and Manitoba are
$7,500. Claims for damages above that amount must be taken to Court of
Queen’s Bench. Small claims courts operate with less formality, fewer
rules and court costs are far less than those in higher courts.
When JS sues by issuing a statement of claim, several things may
happen. KD may simply ignore the lawsuit in which case default judgment
could be entered against her. Or she may defend and judgment may be
entered against her.
Judgment does not mean that JS will automatically be able to collect.
No court official or police officer will go out to enforce the judgment.
If KD doesn’t pay voluntarily, there are two things JS can do. First,
he can garnishee. This would include any bank accounts or money that KD
might be getting from grain or cattle sales. Alternatively, JS can
obtain a writ of execution for KD’s goods to be seized by the sheriff
or bailiff to satisfy the judgment. These goods, let’s say cattle,
could be sold.
Initially, JS will have to pay the costs associated with any costs of
garnishee or execution. In certain circumstances, a writ of execution
can also be filed against KD’s land.
If KD is in tough circumstances, with no money and nothing to seize, JS
may never recover. Even if JS is successful, he may have to travel to
Saskatchewan and face the hassle of going to court. JS must decide if
it is worth it.
Don Purich is a former practising lawyer who is now involved in
publishing, teaching and writing about legal issues. His columns are
intended as general advice only. Individuals are encouraged to seek
other opinions and/or personal counsel when dealing with legal matters.
