Fake Chiefs and Deadbeat Dads

There was a time when chiefs played an important role in preventing divorces in order to protect the family and clan. See Eagle Down is our Law. (Yes ask the Office, they profess to stand by Eagle Down is our Law) Also take note that the book Eagle Down is our Law was submitted into evidence to the Supreme Court of Canada in Delgamuukw v British Columbia, [1997]

In 1986 Chief Woos conferred with Chief Dzee, and the agreed that they should have a feast for a couple in their fifties who had separated. They have been apart for a week. This will get them back together.  It will cost them more to take a name, about $5000.00 each Chief Woos told  Chief Haminskit (Cecil Alfred) on 7 April 1986. Under the threat of having to put on an expensive feast to pay for having separated, the couple had reconciliation and moved back together. Page 138 Eagle Down is our Law.

Oh my my my times have changed since then, here we have two deadbeat dads who can avoid child support by staying away from traditional jobs. Warner just disposed of a relationship with Freda, so where is the moral compass of the Hereditary Chiefs today? Adam will your wife and kids be joining you out at Parrot Lake? When was the last time you gave your kids a hug?

You are the ones telling the world about Wet’suwet’en law, does it apply to you also or only industry that does not share your DNA. You talk about forest fires, who do you expect to put out those fires if they come anywhere near your camps? Just being out these increases the chances of forest fires.

They you bitch and whine about the RCMP who are doing their job, making sure they keep track of who goes in and out of there, keeping drivers sober, one of your own (Freda and yourself Warner) that got into a severe car accident, and she is still suing the estate of the deceased victim for compensation. If not for the RCMP would she even be alive today?

Oh my, money is so much thicker than water, and so much more powerful than the ethics we hear you preach. If not for the RCMP what would stop more deaths by way of curtailing reckless drivers on those roads. Until you hoodlums went out there, there was not enough traffic to warrant continued police presence.

Good lord police are acting as private mercenaries, did you even go to school? Do you know what a mercenary is?

The chiefs and elders you speak about so passionately were told that they want to put LNG lines in and later they will pump oil though them, so based on lies they did the right thing, they made the right choice, but it’s also why today First Nations are removing this dumbed down mentality and are choosing to provide LNG to help the world get off coal. They would be rolling over in their graves at how Warner is trying to steal the Sun House title and property.

Then the video begs for money for the very fuel, the same oil they are trying to block, and are condemning. All that heavy equipment (parked Wet’suwet’en logging equipment) that you want to bring in will destroy this pristine park. Not to mention how illegal it is to put these machines in a designated park.

Here the pair of you parrot a lot about how we must save the planet for our children, but you must mean other peoples children right, because we’re not seeing much actions that say the same about your own kids. Will the Hereditary Chiefs bring you back together under the threat of an expensive feast, or will they confirm you have popcorn box chief titles, that have no morals other than to parrot the cause of the environment in order to get free labor, material, and funds.

Funny about this science station, why not make it a space station, being as all you’re backers are science fiction at this point anyways. Imagine watching from across the lake, the silhouette of rockets launching into outer space, it so much more exciting. Can you imagine why such a massive research center would be out there contaminating a public park in the first place? Right now Parrot Lake is pristine, and you want to put a stamp of DEAD END on it.

Then we have the issue of OWLS House raiding the property and titles of the Sun House, stealing a title does not grant you property rights, nor does it grant Adam rights to stolen property. You really plan to take over, and destroy this pristine location by putting up a camp; why not put it on Owl House property instead? If you need a place to hide from Family Maintenance Enforcement Program, why on property that is not yours? So you can blockade them if they try serve you?

Warner you said “we inherited the responsibility’ yes for the Owl house, have you not checked your genealogy?  Your comment that it was the elders and matriarchs of the Sun house is a flat out, and outrageous lie. That meeting never occurred, I challenge you to prove it did, name the date and location of that feast, you know you cannot, because it did not happen, you are a lair caught with words in your mouth that you cannot support.

I have said it before and will say it again; do we need to eagle feather you to understand this property does not belong to the Owl House? Stop pretending to be a chief, start doing, acting, behaving according to Wet’suwet’en laws, as opposed to using Wet’suwet’en blankets to GoFundMe when the only place they should ever be used is in a feast hall.

You are using it to prance all over Canada, like some folklore legend? To load your GofundMe account?

Adam I was blown away by your speech on how logging is turning the region into a baron wasteland, do you have an identical twin that is also doing that? You know the one who sued his own people, no that’s not a typo here, sued his own people, the logging company created by the Office of Wet’suwet’en called “WET’SUWET’EN ENTERPRISES LTD”

Your identical twin was an avid logger by the sounds of it. I will share with you the story of how he sued his own people, you’re so right, loggers are such evil people, turning beautiful forests into your words “They have taken all of the saleable timber out there, and all that is left is like a moonscape.”

Could that have anything to do with Canfor cutting back, and putting your identical twin out of work? Are you part of this year’s massive layoff by Canfor? All major forest companies in B.C. cut production

OK as promised, the dirt on your evil twin. Here is a link to the court case; can you imagine doing this to your own people? https://www.courts.gov.bc.ca/jdb-txt/sc/05/16/2005bcsc1645.htm

I will post some of the highlights, and proof even I could not make up stuff like this. Before you read this play that part about logging and its effects again, it will connect you so much more closely to the story below. Forgive the duh moment at the start, must have been the weeds?

Background

 

[2]                The plaintiff, Mr. Gagnon, resides in Moricetown, British Columbia. A lifelong resident of the area, he is a Wing Chief of the Fireweed Clan of the Wet’suwet’en Nation. He is also an experienced carpenter, road builder, and logger. Mr. Gagnon was Acting General Manager of the defendant, Wet’suwet’en Enterprises Ltd (“WEL”) for the year 2000, and is a past president of WEL’s board of directors.

 

[3]                The defendant, WEL, is a company owned beneficially by the Wet’suwet’en First Nation. Its board members are appointed by the hereditary chiefs of the five Wet’suwet’en clans. WEL’s mandate is to facilitate economic development for the Wet’suwet’en by among other things, pursuing resource-sharing opportunities. For instance, WEL was empowered to contract with forest product companies such as Houston Forest Products Ltd. (“HFP”) for the harvest and sale to HFP of logs cut from Wet’suwet’en lands.

 

[4]                In 2002, WEL negotiated the sale of 15,000 cubic meters of such logs to HFP with the intention to subcontract most of the various tasks required to deliver the finished logs to HFP (falling, bucking, loading, and transport). The season during which this was to be completed was set from August 1, 2002, to June 30, 2003. The areas to be logged were identified, the rate that HFP was to pay was specified, and a written agreement between WEL and HFP was completed on October 21, 2002.

 

[5]                 Leading negotiations for WEL was Andre Roy, Acting General Manager of WEL at that time.

 

[6]                In 2001, Mr. Gagnon had also worked as an employee for WEL, supervising logging operations and renting his excavator for the loading process.

 

[7]                In 2002, Mr. Roy offered Mr. Gagnon one of two subcontracts under the 2002 HFP head contract.  Mr. Gagnon was to take care of all the bucking and loading of logs for HFP.  The terms of his subcontract were more or less settled orally between Mr. Roy and Mr. Gagnon in August 2002 when Mr. Gagnon actually commenced work on the subcontract.

 

[8]                Mr. Gagnon testified that as a condition of entering into that agreement, because he had to make major commitments to secure the equipment, he insisted on a longer term than one year.  He says that Mr. Roy agreed to a three-year contract at rates to be calculated in line with the negotiated head contract between WEL and HFP or other forest product companies for those years.

 

[9]                According to Mr. Gagnon, between August 2002 and about February 2003, he learned from Mr. Roy that there was some dissention amongst the Gitdumden, one of the five Wet’suwet’en clans, over the fact that the logging for HFP was concentrated all or mostly around Nadina Mountain, on land traditionally owned by the Gitdumden. The Gitdumden chiefs wanted the subcontracts to be awarded to members of their clan. Mr. Gagnon was from a different clan.

 

[10]            Mr. Roy disagreed in principle and he was concerned that there could be interference with his plans for the 2002/2003 logging season.  He also knew that he would be leaving the job of Acting General Manager by the following June.  Therefore, he sought to put in writing his arrangements with Mr. Gagnon. This, at any rate, is what Mr. Gagnon says Mr. Roy told him.

 

[11]            According to Mr. Gagnon, in about early 2003, Mr. Roy gave him a letter.  It was undated, and it provided as follows:

 

On behalf of Wet’suwet’en Enterprises Ltd., I am awarding you the loading and bucking contract for this winters [sic] logging operations with Canfor and HFP (2002-2003).  This contract would be worth an estimated minimum of $112,500.00 (15,000 cubic meters @ $7.50 per cubic meter).

 

Also, depending on future logging opportunities, I am offering you the first right of refusal for the loading and bucking contracts for the winters of 2003-2004 and 2004-2005.  The estimated costs of the second and third year contracts could be in excess of $210,000.00 (30,000 cubic meters @ $7.00 per cubic meter).  Rates are subject to change depending on logging rates.

 

I look forward to working with you and your buckerman this fall and winter.

 

[12]            The letter was not worded to reflect their earlier agreement, said Mr. Gagnon.  Mr. Roy told him the reason for this was to protect WEL in the event that it could not get head contracts for one or both of the following two years. Mr. Roy did not want WEL to guarantee any subcontract.  Therefore, Mr. Roy came up with the idea of two consecutive rights of first refusal.  Mr. Gagnon said that he accepted that, and they proceeded accordingly.

 

[13]            Mr. Roy acknowledged sending the letter, but he testified that it was sent on November 4, 2002, as he was able to verify for himself by checking the hard drive on his laptop computer.  Mr. Roy also acknowledged that the letter, at least with respect to the 2002/2003 season, was confirmation of an oral agreement made earlier with Mr. Gagnon.

 

[14]            Very emphatically, however, Mr. Roy maintained that the only reason for the letter was to support Mr. Gagnon in a loan application to the Burns Lake Native Development Corporation.  He testified that the right of first refusal was only intended to be operative if Mr. Gagnon obtained the loan and purchased a new Komatsu excavator/loader.  Mr. Roy said that because the loan application was not accepted, and Mr. Gagnon did not buy the loader, those rights of first refusal lapsed. Mr. Roy had no further discussion with Mr. Gagnon about their agreement before he left his position as Acting General Manager and moved away from the area.

 

[15]            Meanwhile, on or about November 14, 2002, the Wet’suwet’en chiefs met with the WEL board members to discuss various matters including concerns regarding board members having conflicts of interest.  This led to the plaintiff tendering his resignation as an officer and director of WEL on November 29, 2002.  It is worth mentioning at this point that the defendant does not plead conflict of interest as grounds for avoiding the subcontract, and nothing in this case turns on the fact that Mr. Gagnon was in a position of conflict of interest when he entered into the subcontract with WEL.

 

[16]            At any rate, Mr. Gagnon got on with the work for the 2002/2003 season, but suffered major equipment breakdowns in the process.  He came to WEL for financing to pay for the repairs and WEL acceded.  In a letter dated January 9, 2003, and signed by both Mr. Gagnon and Mr. Roy, Mr. Gagnon agreed to repay the loan by permitting 30% deductions of Mr. Gagnon’s remaining subcontract payments. If the loan was not paid in full at the end of the season, Mr. Gagnon agreed that his excavator would become the property of WEL.

 

[17]            However, Mr. Gagnon continued to suffer equipment breakdowns, and by mid-January 2003, Mr. Roy was becoming impatient. In a letter dated January 13, 2003, Mr. Roy pointed out that Mr. Gagnon’s excavator had been shut down for approximately five working days. He instructed Mr. Gagnon either to get another loader on the job or he (Mr. Roy) would be forced to contract out the loading to another contractor.  On February 2, 2003, Mr. Roy wrote again to record that WEL had paid for additional equipment repairs by way of loans to Mr. Gagnon, which now totalled over $27,000.00. He confirmed the earlier agreement to deduct 30% of Mr. Gagnon’s contract payments, and he stipulated that 100% of Mr. Gagnon’s road-building income would also be deducted to repay the loans. He reminded Mr. Gagnon that approximately 9,000 cubic metres of logs remained to be delivered of the 15,000 cubic metres that WEL had contracted to deliver to HFP.

 

[18]            Mr. Gagnon completed the 2002/2003 season having loaded 12,000 cubic metres of the 15,000 cubic metres under contract. About $13,000 of his debt for repairs remained outstanding.  As Mr. Roy later confirmed to him in a letter dated February 17, 2004, that balance was cancelled in exchange for WEL taking ownership of Mr. Gagnon’s 668 skidder as a replacement for the excavator.

 

[19]            In another letter of March 4, 2004, addressed “To whom this may concern” Mr. Roy stated, among other things:

 

Adam Gagnon asked me to write a letter of support for him regarding his dealings with Wet’suwet’en Enterprises Ltd.  When I was Acting General Manager, I wrote Adam a letter during year 1 of a contract offering him years two and three of a loading sub-contract, based on availability.  The main reason for this letter was that he wanted to purchase a new Excavator/Loader as his older Excavator broke down.  In return, WEL would employ him as a sub-contract loader for the next two seasons, obviously based on availability.  Well, Adam decided not to purchase the new Excavator/Loader and instead fix up his link belt that broke down.

 

The key part to the letter was to offer him years two and three with no guarantee that the work would be there ─ logging is so up and down, prices of wood varies so much and the industry at the present time is so unpredicatable [sic].  The reason for this is that HFP could have pulled the contract out from under WEL for poor performance at any time and we all would have been out of a logging contract.  There were also some other opportunities coming down the pipe that WEL could have used Adam’s loader also.  We had a very good 2002/2003 logging season, despite Adam’s breakdowns and dealing with Lyle Buchholz’s Issues, but in the end after getting machines repaired, WEL ended up owning two used Clark 668C skidders (one was parked at Adam’s and the other at IKPP in Houston) that worked very well and were ready for the 2003/2004 season.

 

[20]            The letter goes on to comment upon matters of dispute amongst individuals involved with WEL and the hereditary chiefs.  In the final paragraph Mr. Roy said:

 

In closing, I hope WEL will consider Adam Gagnon for future loading sub-contracts as Adam has the history, dedication, and reliability that WEL should be associated with.  Adam was offered work in the future by me, and by default, they can only be offered based on availability ─ especially in the world of FN’s politics and in a very volatile Forest Industry.  To re-iterate, the main intent of the letter I gave Adam concerning offering years two and three of the loading contract was to create some consistency within the logging operations.  Under no circumstances should that letter lead to any litigation towards WEL, as the intentions of that letter, with regards to the present volatile Forest Industry, were never to “guarantee” anything to anybody but a future offering of work if it was there and feasible to undertake it.

 

[21]            When Mr. Roy left the company on June 25, 2003, Mr. Herb Naziel took over as Acting General Manager for the time being.  It is evident from the correspondence that by June 2003 there were already discussions taking place with a view to giving the 2003/2004 and 2004/2005 HFP logging subcontracts (if any) to others more closely associated with the Gitdumden Clan.  Coincidentally, it appears that Mr. Roy did not leave the WEL office with a copy of his letter of November 4, 2002, or any other record of his commitment to Mr. Gagnon.  This, he said, was because he thought the rights of first refusal commitment had expired since Mr. Gagnon had not purchased the agreed equipment.  The upshot, unfortunately, was that no one else at WEL was made aware that these rights of first refusal were offered in the first place.

 

[22]            Mr. Gagnon testified that he was not informed that anyone else had been considered for the subcontract until mid-August 2003 when he went to the WEL office and spoke with Mr. Naziel, who told him that his subcontract had been given to someone else.

 

[23]            According to Mr. Gagnon, he spoke with Mr. Cameron Stevens in September 2003.  Mr. Stevens worked for WEL, and became General Manager on September 29, 2003, replacing Mr. Naziel.  Mr. Gagnon informed Mr. Stevens of his rights of first refusal and later showed him a copy of Mr. Roy’s letter of November 4, 2002.

 

[24]            On February 14, 2004, Mr. Stevens wrote to Mr. Gagnon on behalf of WEL to apologize for his delay in not responding to Mr. Gagnon’s concerns, and to summarize information that he had obtained about the situation.

 

[25]            He advised that Mr. Naziel, as Acting General Manager, had hired a logging crew for the HFP logging operations at the commencement of harvesting.  He said:

 

To my knowledge, Herb approach [sic] you about the tentative start date for harvesting and you refused to return to work due to carpentry contracts and your refusal to work under Mike Shepard as logging foreman as mention [sic] by yourself on January 5, 2004.

 

I contacted Andre Roy the Acting General Manager at the time, about the letter offering Adam Gagnon contract services for bucking and loading.  Andre Roy made it very clear, the intent of the letter was to secure a line of credit from Burns Lake Native Development Corp. to purchase a loader.  Andre expressed you were very clear on the intent of the letter and you knew the letter was not intended to be a multi-year contract between WEL and Adam Gagnon.  There is 15,000 m3 quota from HFP to harvest timber around the Nadina Mountain area; however, there is no written agreement between HFP and WEL that states WEL has a multi-year contract to harvest 15,000 m3.

 

[26]            Mr. Cameron went on to remind Mr. Gagnon that he had agreed to transfer to WEL ownership of the 668 skidder, but that the formal documentation had not been processed, and he asked Mr. Gagnon to contact him about that.  He confirmed that WEL was not in a position to compensate Mr. Gagnon for his alleged rights to the loading and bucking subcontracts.

 

[27]            Mr. Gagnon also testified that after he heard about the subcontracts being given to another party (i.e. Mr. Shepard), he declined the invitation from Mr. Naziel to take on any subcontracts.  He wanted the subcontract that he had been promised in the letter of November 4, 2002, and if that were not offered, he did not with to perform bits of sub-subcontract work. He intended to continue with other opportunities for work that he had.

 

[28]            Mr. Naziel testified that he made several requests of Mr. Gagnon to join in the harvesting for the 2003/2004 year, implying that he had offered the HFP bucking and loading subcontracts to him. He said that Mr. Gagnon claimed to be too busy with other work he was doing, and would not respond.

 

[29]            When it was put to Mr. Naziel that these dealings with Mr. Gagnon took place after WEL had already subcontracted the bucking and loading work to another party, his answer was “no, only the work for 2003.”  On further questioning, he maintained that he asked Mr. Gagnon to come back to work before any subcontract was given to third parties.  Mr. Naziel was frank in saying, however, that he had difficulty recollecting dates.

 

[30]            Mr. Gagnon denied that he was ever offered the bucking and loading subcontract for 2003/2004 or 2004/2005.

 

[31]            The result, in any event, was that Mr. Gagnon did not obtain any of the subcontract work for 2003/2004 or 2004/2005.  In fact, WEL did enter into head contracts with HFP for the harvest of 15,000 cubic metres of logs in both of those seasons, and subcontracts were awarded accordingly, but not to Mr. Gagnon.  Mr. Gagnon claims that he has lost profits that he would have earned on those subcontracts.

 

Analysis

 

[32]            I am satisfied on the whole of the evidence that by November 4, 2002, Mr. Gagnon and WEL had established a subcontract for the bucking and loading portion of the HFP head contract for the 2002/2003 season.  That subcontract was partly written, in the first paragraph of the letter of November 4, 2002, and partly oral.  The consideration to Mr. Gagnon was to be based on the rates stipulated in the schedule to the head contract, but subject to a few particular oral understandings.  From Mr. Gagnon’s testimony, I heard evidence or drew inferences that these understandings included the following:

 

(1)        Despite volatility in the market year by year, the harvesting tasks would be roughly the same, and the rate paid for bucking and loading would remain proportionately the same in relation to the sale price for each cubic metre of logs under the future head contracts.

 

(2)        $0.50 of the rate for the 2002/2003 subcontract was for other supervisory services, and was not part of what was offered in the rights of first refusal.

 

(3)        A 15% or reasonable administrative fee was to be paid to WEL out of payments on the subcontract.

 

[33]             There is no evidence of any dispute as to the terms of the subcontract for the 2002/2003 season, and I find that Mr. Gagnon performed his obligations satisfactorily in accordance with the subcontract.  Mr. Roy confirmed in his correspondence and his testimony that this was so despite Mr. Gagnon’s equipment breakdowns; his loans from WEL, which he did not wholly repay and had to settle by agreeing to transfer ownership of his skidder to WEL; and the fact that only 12,000 of the agreed volume of 15,000 cubic metres of logs was delivered.

 

[34]            It is also unchallenged that Mr. Roy had the authority to enter into a conditional commitment for future subcontracts, and that he purported to do so, on behalf of WEL.

 

[35]            Mr. Gagnon described each right of first refusal as an obligation to offer a subcontract to him in each of the second and third years before offering it to anybody else. Mr. Roy testified in a similar vein. This indicates that the rights of first refusal were mis-described. What were actually intended, and what Mr. Gagnon actually understood to have been offered, were two consecutive options. There would be no prior offer to or from another potential subcontractor. WEL would simply present what was determined as the subcontract rate based on the head contract rate. In each of the second and third years, Mr. Gagnon would have an option to take the subcontract at that rate. This will make a difference in the calculation of losses, but does not significantly affect WEL’s liability.

 

[36]            It seems that neither party stipulated the time within which Mr. Gagnon could exercise the options. In these circumstances, one would expect Mr. Gagnon to be reasonably prompt, and I find that the parties mutually understood that the options would have to be exercised within a reasonable time prior to the commencement of each logging season. In my view, this is sufficient to answer any suggestion of uncertainty on the point.

 

[37]            Although it was not pleaded by the defendants, the question arises whether the rates for the future subcontracts were ascertainable or whether they would have to be negotiated based simply on market conditions at the time. It is fair to say that the rates to be charged to the forest companies for the delivery and sale of the logs in the second and third years were not ascertainable in November 2002 as there were no existing head contracts for either of those years.

 

[38]            That does not matter, of course, because under the agreement, the options were operative only if and when those head contracts came into being with clear or ascertainable terms of their own. The proviso that the rates would be subject to change depending on logging rates did not diminish the certainty of terms. The subcontract rates would be ascertainable when each head contract was signed because they would be set according to Mr. Gagnon’s proportionate share of the total head contract work. The rates negotiated for the head contract might vary from year to year, but Mr. Gagnon would know what his rate would be by applying the ratio for bucking and loading.

 

[39]            The defendant argued that the proviso “depending on future logging opportunities” was vague and raised so many considerations that it gave WEL discretion to refuse to offer future subcontracts to Mr. Gagnon. I am satisfied that “depending on future logging opportunities” refers to future logging contracts on Wet’suwet’en lands between WEL and HFP or other forestry companies, and that both Mr. Roy and Mr. Gagnon understood the proviso in that way.  In the statement of defence, the defendant offered no other explanation.

 

[40]            The courts have traditionally sought to uphold contracts that have been freely entered into, and to interpret them in a large and fair sense so as to give effect to the manifest intention of the parties at the time of contracting. Lomac Holdings Ltd. v. Prijatelj (1982), 38 B.C.L.R. 238, [1982] B.C.J. No. 1700 (QL) at para. 9 (S.C.). The court ought to make every effort to find meaning in the words of an agreement and so save a contract that was freely entered into from being void. Fred Walls & Son Holdings Ltd. v. Ford Motor Company of Canada Ltd. [1998], B.C.J. No. 1519 (QL), 1998 Carswell BC 1491 at paras. 32-33 (S.C.). In Marquest Industries Ltd. v. Willows Poultry Farms Ltd. (1968), 1 D.L.R. (3d) 513, 66 W.W.R. 477 at 483 (B.C.C.A.),  our Court of Appeal has said:

 

If a clause clearly has meaning with respect to the broad situation it is intended to cover and to the circumstances present, it should not be considered void for uncertainty because its meaning and application in some other circumstances cannot be ascertained.

 

[41]            In my view, what was agreed upon was sufficient to provide for an offer capable of acceptance on ascertainable terms in each of the second and third years.

 

[42]            The evidence is clear that although Mr. Roy did not guarantee Mr. Gagnon a subcontract for 2003/2004 and 2004/2005, he did agree that if WEL signed a head contract with a forestry company in those years, Mr. Gagnon would have the corresponding bucking and loading subcontract on terms similar to the subcontract for 2002/2003 but proportionate to the head contract rates, unless Mr. Gagnon chose not to exercise his option.

 

[43]            The defendant pleaded that its expressed intention was only to enter into the second and third year contracts subject to “conditions in the industry”, “opportunities available to the defendant”, and “the plaintiff having the necessary equipment”, with terms to be negotiated.  The defendant adduced no evidence to show that the parties agreed to such conditions orally or in writing, and I find that these conditions did not exist except insofar as they conform to the express written terms of Mr. Roy’s November 4, 2002, letter.

 

[44]            Mr. Buri, for the plaintiff, objected to Mr. Roy’s testimony that the rights of first refusal were to be offered only if Mr. Gagnon obtained his loan and purchased new equipment. Mr. Buri argued that no such condition was ever pleaded by the defendant, and therefore that evidence should be ruled inadmissible.

 

[45]            Mr. Buri was correct; however, I exercised my discretion to consider Mr. Roy’s evidence on this point.  Mr. Buri was not entirely taken by surprise by the testimony.  It was consistent with what Mr. Roy had apparently told Mr. Stevens, and with what Mr. Stevens recorded in his letter to Mr. Gagnon of February 17, 2004.

 

[46]            In any event, I do not accept that Mr. Roy, in sending the letter of November 4, 2002, or in any other way when he made the agreement with Mr. Gagnon, communicated to Mr. Gagnon that the offer of options or rights of first refusal was subject to Mr. Gagnon obtaining the loan and purchasing the equipment.  I asked Mr. Roy when he testified whether he expressly told Mr. Gagnon that the agreement was subject to that condition.  His answer, repeatedly, was that that was the message he intended to convey. Mr. Roy is well educated, experienced, and articulate. If he had intended to impose such a condition, in my judgment, he would have put it in clear, express terms in his letter. Mr. Roy’s letter “To whom this may concern” of March 4, 2004, fortifies my view that he did not impose this condition. In that letter, Mr. Roy sought to explain the future rights granted to Mr. Gagnon, but he did not make clear that the rights were granted subject to this alleged condition.

 

[47]            The evidence shows that Mr. Roy was motivated for another reason to provide the letter of November 4, 2002. Mr. Roy was exasperated at the time with the Wet’suwet’en hereditary chiefs for not supporting his vision of how WEL should operate; that is, independently without favour to individual clans and on a businesslike footing.  Clearly, Mr. Roy was concerned that the ongoing services of Mr. Gagnon, with which he was satisfied, might be prejudiced, and he wanted to ensure that this did not happen.  He issued the letter of November 4, 2002, to secure the long-term commitment of Mr. Gagnon, which he considered important to his goals for WEL.  No doubt the letter was also written to support Mr. Gagnon in adding to his equipment.  It was in WEL’s interest that Mr. Gagnon do so. However, I do not find that it was a condition of Mr. Gagnon’s options for subcontracts with WEL for the second and third years.

 

[48]            It appears, on the other hand, that by June 2003, Mr. Roy was not moved to make sure that his successors knew of Mr. Gagnon’s rights. It could be that he simply neglected to tell them. It could be that he believed that Mr. Gagnon had decided not to exercise his rights in view of the Gitdumden opposition, other problems that he had, and problems that he might expect to have because he was without adequate equipment. It could be that Mr. Roy was reluctant to disclose the agreement with Mr. Gagnon at a time when Mr. Roy was negotiating for his own severance remuneration from WEL. The fact that Mr. Roy kept the agreement secret does not move me to alter my view that the options were valid and binding on WEL.

 

[49]            The defendant denies that the head contract with HFP was renewed for 2003/2004.  Rather, the defendant says it was awarded only part of the sales volume for which it had bid.  The fact is that for the 2003/2004 season, HFP awarded the defendant a head contract for the delivery of another 15,000 cubic metres. It is no defence to the claim that WEL bid for more.

 

[50]            The fact that the plaintiff refused to do sub-subcontract work in 2003 for the 2003/2004 season does not prove that Mr. Gagnon declined to exercise his option for that year.

 

[51]            The proper construction of the two options is that Mr. Gagnon was to have a subcontract for the bucking and loading work directly from WEL under WEL’s head contract with HFP.  The options did not contemplate bits of work that might come to Mr. Gagnon through sub-subcontracts. I find that Mr. Gagnon did not turn down any subcontract under the 2003/2004 or 2004/2005 head contracts before the subcontracts were granted to someone else.  I accept Mr. Gagnon’s testimony that no one approached him with an offer for his acceptance or rejection in 2003.  Rather, he was told by Mr. Naziel that the subcontract had been given to someone else.  It is evident from the correspondence of Mr. Roy that discussions were going on with a third party or third parties when he left WEL in June 2003, and that there was persistent pressure from the Gitdumden to replace Mr. Gagnon.

 

[52]            The only evidence to the contrary was Mr. Naziel’s recollection that he had approached Mr. Gagnon before WEL granted the subcontract to someone else. However, Mr. Naziel’s recollection seemed to me to be too unclear for me to rely on it.  On January 15, 2004, Mr. Naziel wrote a letter “To Whom It May Concern” indicating his impression that Mr. Gagnon had conceded to the chiefs that he would have nothing more to do with the HFP contract.  Mr. Naziel spoke of trying to get Mr. Gagnon to help him get started with the logging again, but it is uncertain whether he meant the bucking and loading subcontract or other work.  He said toward the end of this letter:

 

At this time, I would like to extent [sic] my apologies to Adam Gagnon.  This communication was not very clear.  I did my best to keep the crews moving.  I am sorry for any confusion that I may have caused to you and other clan members.  I, Herb Naziel, ask for forgiveness.

 

[53]            I find that WEL contracted with persons other than Mr. Gagnon for the bucking and loading work under the HFP head contracts for 2003/2004 and 2004/2005 without offering the option or right of first refusal to Mr. Gagnon to take up that work.  This was a breach of WEL’s agreement with Mr. Gagnon, and for that WEL is liable to him in damages.

 

[54]            The plaintiff claims the profits he would have earned had he been given the contracts for the second and third years as agreed.

 

[55]            Mr. Buri, for the plaintiff, calculates that the total loss, net of appropriate deductions, was $207,000 if the rights granted Mr. Gagnon were options. If they were rights of first refusal, Mr. Buri calculates that the total loss for two years was $231,000. I have found that the rights granted were options, and I would calculate the loss accordingly.

 

[56]            I accept Mr. Buri’s method of using the 2002/2003 season as a starting point for determining the rate that Mr. Gagnon would have been paid in future seasons. I do not accept Mr. Buri’s use of the actual 2002/2003 rate of $7.50 per cubic metre. This is because part of that rate (50¢) was to compensate Mr. Gagnon for supervision of logging, which was not part of the bucking and loading tasks for which the subcontract was intended.

 

[57]            The evidence was that the head contract rate for the second year was $23.00 per cubic metre.  I agree with Mr. Buri that as the defence did not disclose the head contract rates for the third year, although asked to do so, the total head contract rate for that year should be presumed to be the same as for the second year: $23.00 per cubic metre.  There was no other evidence to the contrary.

 

[58]            Finally, I would not estimate the volume of logs delivered in those years at the full 30,000 cubic metres under contract.  I agree with the defendant that there should be some contingency for the possibility that Mr. Gagnon would not have delivered that many, even though that number was actually delivered in both of those years. In the 2002/2003 season, Mr. Gagnon delivered only 12,000 of the 15,000 cubic metres under contract. I find that Mr. Gagnon was largely responsible for that shortfall due to his equipment breakdowns. However, his equipment had been repaired recently. Also, I accept Mr. Gagnon’s testimony that the areas to be logged in 2003/2004 and 2004/2005 were easier to log. Therefore, I would not make a major deduction. I would reduce the total expected volume of logs by 1,000 cubic metres per year.

 

[59]            The defendant suggested that a considerably greater discount should be established for the expectation that the contract might terminate in either or both years due to the plaintiff’s further equipment deficiencies or other inability to complete the subcontracts.  I have not accepted that submission as it is not supported by the evidence. I have accounted for the possibility of somewhat reduced performance, and I do not believe that the evidence warrants any further reduction in that regard.

 

[60]            The gross income for 2003/2004 can be calculated by multiplying the portion of the head contract relating to bucking and loading by the total price that HFP paid for the logs in each of the second and third years. In the first year, Mr. Gagnon was paid $7.00 per cubic metre for bucking and logging (after deducting the 50¢ fee for supervision). WEL was paid $25.00 per cubic metre for the logs. The bucking and loading portion was therefore 28% of the total head contract.  In 2003/2004, WEL was paid $23.00 per cubic metre.  Assuming the same rate for 2004/2005, and assuming that the total volume delivered in those years would have been 28,000 cubic metres, Mr. Gagnon’s gross income in those years would have been $180,320 (23 x 28,000 x 28%).

 

[61]            The plaintiff’s evidence was that his expenses on the 2002/2003 subcontract were approximately $45,000; however, he did not provide a breakdown to demonstrate what expenses were included in this figure. The plaintiff estimated that his expenses for 2003/2004 and 2004/2005 would have been approximately $40,000 per year. Again, he provided very little evidence in support of this figure. I agree with the defendant that there should be an increase in the plaintiff’s estimate of his projected expenses for years two and three. I would increase the plaintiff’s estimate to $47,500 per year, for a total of $95,000.

 

[62]            Finally, having heard the evidence regarding Mr. Gagnon’s total actual income for the 2003/2004 and 2004/2005 seasons, I find on balance that he could have earned more. Mr. Gagnon admitted that he was not careful in recording all of his income and expenses. He admitted being invited to discuss with the new subcontractor the possibility of performing some of the work under that contract.  How much of that work he could have handled in addition to the work he was doing elsewhere, and how much he might have earned for it, was not specified in the evidence. However, by his own testimony, Mr. Gagnon was very experienced in carpentry and road building as well as logging.  It seems to me that some opportunities would have been available for someone of his abilities. I would add $10,000 to Mr. Gagnon’s earnings of $35,000, for a total income of $45,000 over two years.

 

[63]            Taking the foregoing into account, the net loss to the plaintiff would be $40,320, and I so find.

 

[64]            The plaintiff will have his costs at Scale 3.

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