1247532 Alberta Ltd. v. Valpy Corp., (2007) 427 A.R. 169 (QB)

• Judge: Macklin, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: August 15, 2007
• Citations: (2007), 427 A.R. 169 (QB);2007 ABQB 547

1247532 Alta. Ltd. v. Valpy Corp. (2007), 427 A.R. 169 (QB)

MLB headnote and full text

Temp. Cite: [2007] A.R. TBEd. OC.060

1247532 Alberta Ltd. (plaintiff) v. Valpy Corporation (defendant)

(0603 14224; 2007 ABQB 547)

Indexed As: 1247532 Alberta Ltd. v. Valpy Corp.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Macklin, J.

September 19, 2007.

Summary:

On August 9, 2006, a buyer and seller entered into a commercial real estate contract for the sale of a property for $3,400,000. The transaction never materialized. The buyer sued the seller for specific performance or damages for breach of contract. The seller applied for summary judgment dismissing the action.

A Master of the Alberta Court of Queen's Bench, in a decision not reported in this series of reports, allowed the application and dismissed the action. The buyer appealed.

The Alberta Court of Queen's Bench dismissed the appeal.

Sale of Land - Topic 1324

The contract - Necessity for writing - General - Statute of Frauds - General - On August 9, 2006, a buyer and seller entered into a commercial real estate contract for the sale of a property - The contract required that the buyer pay an initial deposit of $100,000 and an additional deposit of $100,000 - The buyer could waive those conditions inserted for its benefit by giving written notice by September 4, 2006 (Buyer's Condition Day) failing which the contract would be ended - Within three days of the final signing of the contract, the seller would provide to the buyer true copies of all agreements, documents or materials reasonably related to the property and the buyer's conditions - Any delay by the seller in providing the documents would extend the Buyer's Condition Day - All time periods, deadlines and dates in the contract were to be strictly followed and enforced (the "time is of the essence" clause) - On September 20, 2006, the parties met to discuss matters - A draft amending agreement was prepared but never executed - The buyer did not provide the seller with written notice that the buyer's conditions had been satisfied or waived on or before September 4, 2006 - No monies were ever paid by the buyer in compliance with either the obligations set out in the contract or those allegedly agreed upon orally on September 20 - Neither the buyer nor the seller ever provided written notice that any of the conditions inserted for their respective benefit had been satisfied or waived - The transaction never materialized - The buyer sued the seller for specific performance or damages for breach of contract - The seller obtained summary judgment dismissing the action - The buyer appealed, asserting that an oral agreement was reached between the parties on September 20, 2006 which was evidenced by the unexecuted amending agreement - It argued that this agreement extended or "reinvigorated" the contract and was valid and enforceable as there has been part performance by the buyer to overcome the requirement of writing in the Statute of Frauds - The Alberta Court of Queen's Bench dismissed the appeal - The actions argued to be part performance were not requirements contained in the contract - Those mentioned in the contract were permissive - Further, part performance could not be invoked where the buyer was in default under the alleged contract (failure to provide the initial deposit) - Accordingly, it was plain and obvious that the buyer could not succeed in its claim that the oral agreement was enforceable - At best, the buyer could establish that the seller was open to discussions which the buyer hoped would lead to an enforceable contract - See paragraphs 30 to 44.

Sale of Land - Topic 1351

The contract - Necessity for writing - Part performance in lieu of writing - What constitutes part performance - [See Sale of Land - Topic 1324 ].

Sale of Land - Topic 6061

Completion - Time - Time of the essence - General - On August 9, 2006, a buyer and seller entered into a commercial real estate contract for the sale of a property - The contract required that the buyer pay an initial deposit of $100,000 and an additional deposit of $100,000 - The buyer could waive those conditions inserted for its benefit by giving written notice by September 4, 2006 (Buyer's Condition Day) failing which the contract would be ended and the initial deposit plus interest returned to it - Within three days of the final signing of the contract, the seller would provide to the buyer true copies of all agreements, documents or materials reasonably related to the property and the buyer's conditions - Any delay by the seller in providing the documents would extend the Buyer's Condition Day - All time periods, deadlines and dates in the contract were to be strictly followed and enforced (the "time is of the essence" clause) - On September 20, 2006, the parties met to discuss matters - A draft amending agreement was prepared but never executed - The buyer did not provide the seller with written notice that the buyer's conditions had been satisfied or waived on or before September 4, 2006 - No monies were ever paid by the buyer in compliance with either the obligations set out in the contract or those allegedly agreed upon orally on September 20 - Neither the buyer nor the seller ever provided written notice that any of the conditions inserted for their respective benefit had been satisfied or waived - The transaction never materialized - The buyer sued the seller for specific performance or damages for breach of contract - The seller obtained summary judgment dismissing the action - The buyer appealed, arguing that the seller did not meet the qualifications in order to rely on the "time of the essence" clause - The Alberta Court of Queen's Bench dismissed the appeal - The seller was entitled to rely upon the "time is of the essence" clause - First, there was no evidence that the seller was not ready, desirous, prompt and eager to comply with the terms of the agreement - Second, the seller could not be said to have been the cause of the delay in the buyer paying the initial deposit - Third, the buyer's argument that the seller subsequently recognized the agreement as still subsisting hinged on the buyer's evidence with respect to the alleged amending agreement - Accordingly, the August 9 contract ceased to be valid and enforceable when the buyer failed to deliver the initial deposit - The buyer's action was doomed to fail - See paragraphs 21 to 29.

Cases Noticed:

De Shazo v. Nations Energy Co. et al. (2005), 367 A.R. 267; 346 W.A.C. 267; 2005 ABCA 241, refd to. [para. 19].

Calvert Home Mortgage Investment Corp. v. Ro/Lin Holdings Ltd. et al. (2007), 417 A.R. 315; 410 W.A.C. 315; 2007 ABCA 259, refd to. [para. 23].

Smallman v. Smallman, [1971] 3 All E.R. 717 (C.A.), refd to. [para. 28].

Booth v. Knibb Developments Ltd. et al. (2002), 312 A.R. 173; 281 W.A.C. 173; 2002 ABCA 180, refd to. [para. 30].

Kazakoff v. Milosz (1977), 3 A.R. 275 (T.D.), refd to. [para. 34].

B.N. v. Canada (Attorney General) et al. (1999), 247 A.R. 135; 1999 ABQB 498 (Q.B. Master), refd to. [para. 35].

1061590 Ontario Ltd. v. Ontario Jockey Club et al. (1995), 77 O.A.C. 196; 21 O.R.(3d) 547; 43 R.P.R.(2d) 161 (C.A.), refd to. [para. 35].

Hunter v. Baluke (1998), 42 O.R.(3d) 553 (Gen. Div.), refd to. [para. 36].

Colberg v. Braunberger Estate; Colberg v. Schumacher (1978), 12 A.R. 183 (C.A.), refd to. [para. 38].

Tavares v. Tavares, [2001] O.T.C. Uned. 661; 43 R.P.R.(3d) 246 (Sup. Ct.), refd to. [para. 38].

Neighborhoods of Cornell Inc. v. 1440106 Ontario Inc. et al. (2003), 11 R.P.R.(4th) 394 (Ont. Sup. Ct.), refd to. [para. 38].

Toombs v. Mueller (1973), 47 D.L.R.(3d) 709, revd. 54 D.L.R.(3d) 160n (C.A.), refd to. [para. 40].

Counsel:

Jonathan Hillson (Fraser Milner Casgrain LLP), for the plaintiff;

Grant S. Dunlop (Ogilvie LLP), for the defendant.

This appeal was heard on August 15, 2007, by Macklin, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on September 19, 2007.