Nunavunmi Maligaliuqtiit

NUNAVUT COURT OF JUSTICE

Cour de justice du Nunavut

Citation: Qairrulik Outfitting Ltd. v. Sholz,

2018 NUCJ 7
Date: 20180130
Docket: 08-17-255
Registry: Iqaluit

Plaintiff: Qairrulik Outfitting Ltd.

-and-

Defendant: Peter Sholz

________________________________________________________________________

Before: The Honourable Mr. Justice Paul Bychok

Counsel (Plaintiff): Guy Vachon

Counsel (Defendant): Self-Represented

Location Heard: Iqaluit, Nunavut

Date Heard: January 30, 2018
Matters: Small Claims Hearing

REASONS FOR JUDGMENT

(NOTE: This document may have been edited for publication)

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I. BACKGROUND

[1] The plaintiff, Qairrulik Outfitting Ltd. of Iqaluit, rented a snow machine
to the defendant, Peter Sholz, on March 28, 2017. The plaintiff
company is owned and operated by Guy Vachon. The contract was
for a rental the next day from 9 a.m. to 5 p.m. The defendant picked
up the snow machine the next morning. He did not return the snow
machine by five p.m. Instead, he abandoned it on the land. The
plaintiff has sued the defendant in Small Claims Court to recover the
costs it incurred to locate and transport its snow machine back to its
shop as well as lost profits. The plaintiff did not say whether his claim
is based in contract or tort.

[2] The hearing was held on January 29, 2018 and I reserved my
decision. These are my reasons for judgment.

II. FACTS

[3] The parties entered into a simple contract on March 28, 2017 for the
day rental of a snow machine. The terms of the contract were written
by hand on an invoice. The contract reads as follows:

Rental For Tomorrow

1 Bear Cat from 9 – 5 p.m.
Damages
Lost
Injuries
Your Responsibility

[4] The rental fee agreed to by Mr. Sholz was $341.25. Mr. Sholz signed
the contract.

[5] Mr. Sholz filed with the Court a two-page written explanation of his
actions that day. In it, Mr. Sholz said he explained his route to Mr.
Vachon, and that Mr. Vachon did not warn him he might run into
difficult conditions. Mr. Vachon did not have a SPOT 1 so he told Mr.
Sholz to try Baffin Gas. The staff there did not have one either. In his
written submission, Mr. Sholz complained that no one at either
business told him he might get a SPOT at the local HTO. He said he

1
SPOT is the acronym for a satellite GPS messaging system designed to communicate the
operator’s precise geographic location.
 3

left Iqaluit at 9 a.m. with a full tank of gas. He also left town without a
GPS because, “again, none available (sic)”.

[6] The Court heard different versions of what was said by the parties
before the contract was signed. Mr. Sholz claims he asked three
times for an extra tank of gas, but that Mr. Vachon refused saying he
did not need it. Mr. Vachon denied that claim, saying that he had in
fact suggested extra gas. Mr. Vachon’s assertion was supported by
his employee, Jimmy Kovic, who was present throughout these
discussions.

[7] Mr. Kovic testified that he and Mr. Vachon “tried to recommend he
(Mr. Sholz) bring extra gas but he figured the big tank on the machine
he was driving had enough to come back”. 2 Mr. Kovic also said he
knew exactly what route Mr. Sholz was planning to take because “the
only way to come back was through that fisher ice where the polynyas
were”. In his view, Mr. Sholz did not have enough gas to make the
return trip as planned. 3

[8] Mr. Sholz said he had checked “the day before” with a licensed local
guiding agency to discuss his planned route. He did not recall who he
spoke to, but he said whoever he spoke to did not have any concerns
about his route. He said he also asked Mr. Vachon if there were any
problems with his proposed route. Mr. Vachon, he said, “did not
indicate any”. 4

[9] Mr. Vachon denied Mr. Sholz’s version of events. Mr. Vachon said he
advised Mr. Sholz “not to go there and travel by himself. It’s not
safe”. 5

[10] Mr. Sholz, Mr. Vachon and Mr. Kovic all testified over the telephone. I
asked several questions of each of them to clarify the evidence. But,
without cross examination to test the credibility and reliability of what I
was told, the discrepancies in what was said between the parties
stand. I am not able to resolve these discrepancies.

[11] In his two-page email, Mr. Sholz provided a lengthy account of the
route he took from Iqaluit to the south end of Ward Inlet on Frobisher
Bay. He stated he had half a tank of gas left when he arrived there.

2
Transcript, hearing, January 30, 2018, page 24.
3
Ibid, page 23.
4
Ibid, page 19.
5
Ibid, page 19.
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Once he arrived there, he discovered that it was low tide and the
snow machine track had “crumbled”. He said: “I was trapped”. He did
not turn around and retrace his route back to town.

[12] Instead, Mr. Sholz said he then spent an hour driving around trying to
find a route back to Iqaluit before giving up. He abandoned the snow
machine with 1/8 tank of gas left between 2:30 and 3 p.m., and he
started to walk back to town. He was picked up later by a passing
helicopter.

[13] Significantly, Mr. Sholz acknowledged the following in his written

submission: “I felt comfortable with the route as I had travelled as far
as Ward Inlet overland before and remembered the way, the weather
was good, and my return route was not complex – just follow the sea
ice”. 6 I asked Mr. Sholz how long he had been living in Iqaluit at that
time, and he replied two and a half years. He claimed to have no
knowledge of Iqaluit’s daily tides.

III. THE PARTIES’ POSITIONS

[14] Mr. Vachon says that Mr. Sholz left his snow machine on the sea ice
instead of returning it to his shop. He has claimed damages totaling
$1,438.50. This claim includes hiring two guides to go out to retrieve
the snow machine, lost profit for one snow machine used by the
guide, lost profit on the rented snow machine because two other
clients had to be turned away, gasoline and a $100 administration fee.
Mr. Vachon told me the administration fee is to compensate him for
the half day he spent calling around town trying to locate the
abandoned machine.

[15] Mr. Scholz, in turn, referred the Court to his two-page email which
outlined the events of the day in question. He then read a “final
statement” to the Court. Mr. Sholz said the rental contract at issue
created “a trust” between the parties. He stated he fulfilled his duty of
care by requesting an extra tank of gas, by informing the plaintiff of
the length and location of his trip, and by treating the snow machine
“as if it were my own”. 7 He said the plaintiff misrepresented the
range of the snow machine on one tank of gas. By doing so, he

6
Exhibit 1, email dated April 4, 2017.
7
Transcript, hearing, page 13.
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continued, “the duty of care for issues arising from the range of the
vehicle was transferred legally from myself as renter to the rental
agency”. 8 He said he was not liable for the damages claimed by Mr.
Vachon.

IV. THE LAW

A. Contract Law

[16] Entire books have been written and much judicial ink spilled on what
makes an enforceable contract. In Canada, contract law is part of the
judge-made common law. Contract law has evolved as society has
developed and become more complex. In its most basic form, a
contract is formed when there is an offer, an acceptance, and the
exchange of something valuable between the parties.

[17] If one party to a contract fails to perform his obligation(s), the other
party is entitled to sue him to be compensated for his resulting
damages. In contract law, this is called the expectation measure. It
includes, for example, lost profits which resulted from the contract
breach. 9 The aim of the remedy is to put the plaintiff in the position he
would have been in had the contract been performed according to its
terms. 10 Courts look to see whether the parties have contemplated
what would happen should one party breach the contract. In those
cases, contract law principles will govern the analysis.

B. Tort Law

[18] Traditionally, the only remedies available to an aggrieved person for

breach of contract were to be found in contract law. However, the law
has evolved and in certain circumstances an action in tort may be
available for breach of contract. 11 (Tort law is judge made common
8
Transcript, hearing, page 14.
9
Jamie Cassels and Elizabeth Adjin-Tettey, Remedies: The Law of Damages (Third Edition),
Irwin Law, Toronto, 2014, at pages 18, 27.
10
Lawyers call this principle by the Latin term restitutio in integrum. See Angela Swan and Jakub
Adamski, Halsbury’s Laws of Canada Contracts 2017 (First Edition), LexisNexis, Toronto, 2017,
at page 479; Jamie Cassels and Elizabeth Adjin-Tettey, supra, at page 18.
11
Canadian Encyclopedic Digest Contracts, XIV Remedies for Breach of Contract, section
XIV.2.(a).
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law which provides remedies for civil wrongs.) A remedy in tort may
be available if the relationship between the contracting parties is so
close that a common law duty of care arises.

[19] In those cases where a tort remedy may be available for a contract
breach, the objective is the same – to put the plaintiff in the position
he would have been in had the contract been performed according to
its terms.

V. BURDEN OF PROOF

[20] This is a civil action, so the burden of proof – by which I mean job of
persuading me – lies with the plaintiff on a balance of probabilities.

VI. CHOICE OF REMEDY

[21] A plaintiff may choose to pursue to his advantage either a claim in

contract or in tort. 12 The facts of this case lead to the same result
whichever analysis is followed. In my view, this is a simple contract
case.

VII. ISSUES

[22] There are two issues which I must decide.

1. Did the Mr. Sholz breach his contract with the

plaintiff?

2. If the answer to the first question is yes, how

should the plaintiff’s damages be compensated?

[23] For the following reasons, I find that Mr. Scholz breached his contract
with the plaintiff. Mr. Sholz is liable to compensate the plaintiff for the
economic loss which the latter suffered as a direct result of the
breach.

12
Ibid.
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VIII. ANALYSIS

[24] This case presents a good example of a simple everyday contract.

Mr. Vachon, for the plaintiff, offered to rent its snow machine to the
defendant, Mr. Sholz, on certain terms including the cost of the rental.
Mr. Vachon told Mr. Sholz that any damages to the machine or losses
or injuries suffered by him during the rental period would be the
latter’s responsibility. The rental was to start at 9 a.m. on March 30th,
and Mr. Sholz was required to return the snow machine to the plaintiff
that same day in the same condition by 5 p.m. These terms were
written down. The parties also agreed that Mr. Scholz would return
the snow machine with a full tank of gas.

[25] Whatever discussions there may have been about various things –
gasoline, a SPOT, a GPS, and the planned route – Mr. Sholz agreed
to rent the machine subject to the terms included in the written
contract. Mr. Sholz paid the rental fee and took possession of the
machine the next day according to the contract’s terms.

[26] In my view, this case is about a simple and straightforward

commercial transaction. Mr. Sholz wanted to rent a snow machine,
and Mr. Vachon rented him one for the day. Mr. Vachon’s obligation
under the contract was to provide a serviceable snow machine with a
full tank of gas. Mr. Vachon fulfilled his obligation.

[27] Mr. Sholz’s obligation under the contract was to return the snow
machine in the same condition by 5 p.m. that day. Mr. Sholz
breached the contract when he decided to abandon the snow
machine on the land over 20 kilometres from town.

[28] If Mr. Sholz believed he needed a SPOT, or a GPS, or an extra tank

of gas, or further information to ensure a safe trip, the onus was on
him to obtain it. He chose not to pursue any of these things. Instead,
he decided to head out in any event. He was after all as he claimed:
“comfortable with the route” because he had driven it before. The
weather was “good” and the route was “not complex”. In the end, the
route turned out to be much more difficult than he had foreseen. The
tide was out, and he ran out of gas. He alone is responsible for his
misfortune that day.
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[29] Mr. Sholz’s obligation was to return the snow machine to its owner no
later than 5 p.m. on March 30th. He abandoned the snow machine on
the land instead.

[30] There is no evidence that the parties had discussed what would
happen in the event Mr. Scholz breached his contract by failing to
return the snow machine. Therefore, I must return to first principles.
As I stated earlier, the following is a fundamental principle of contract
law: that the plaintiff be put into the position he would have been in
had the contract been performed.

[31] It cost the plaintiff $1,438.50 to hire two guides, and the loss of use of
two snow machines for the day, to retrieve the snow machine
abandoned by Mr. Sholz. He would not have had to incur those
expenses had Mr. Sholz returned the snow machine according to the
contract’s terms.

[32] In my view, Mr. Sholz demonstrated poor judgment in not taking basic
pre-trip precautions. He placed too much confidence in his flawed
understanding of the challenges and risks posed by his trip. Mr.
Sholz also demonstrated poor judgment when he realized he was
starting to run low on gas. He ought to have turned around and
returned to town when he noticed he was down to half a tank of
gas. Instead, he drove around fruitlessly for an hour looking for a
non-existent path through the sea ice. Mr. Sholz cannot blame others
for his own actions. Nor do his actions provide him with an excuse for
not returning the snow machine to the plaintiff according to the
contract.

[33] The contract in this case was a simple one-day rental of a snow
machine. The contract did not insure Mr. Sholz from the results of his
own decisions. Mr. Sholz is, therefore, liable for the reasonable costs
incurred by Mr. Vachon to retrieve the snow machine where it had
been abandoned by Mr. Sholz in breach of the contract.
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IX. REMEDY

A. Damages

[34] Each category of the plaintiff’s itemized loss was caused directly by
Mr. Scholz’s breach of contract. I award the plaintiff his claimed
damages in the amount of $1438.50.

B. Costs

[35] The Rules of Court permit the award of costs to a maximum of 10%. 13
Mr. Sholz’s liability was clear cut. The file was sent to mediation to
assist with an out-of-court settlement, and a mediation hearing was
held. But, Mr. Scholz was determined to litigate. In my view, this is
an appropriate case for a costs award. I award the plaintiff a further
$143.85 in costs.

[36] The total award in Mr. Vachon’s favour, then, is $1,582.35.

Dated at the City of Iqaluit this 16th day of March, 2018

___________________
Justice Paul Bychok
Nunavut Court of Justice

13
Rules of Court, rule 18.