Andronyk v. Williams, (1985) 36 Man.R.(2d) 161 (CA)

• Judge: Matas, O'Sullivan and Huband, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: September 27, 1985
• Jurisdiction: Manitoba
• Citations: (1985), 36 Man.R.(2d) 161 (CA)

Andronyk v. Williams (1985), 36 Man.R.(2d) 161 (CA)

MLB headnote and full text

Andronyk v. Williams

Williams (Plaintiff by Counterclaim/Appellant) v. Andronyk, Unifeller Company Ltd. and/or Unifeller Company (Western) Ltd., Komarniski and Gregoire (Defendants by Counterclaim/Respondents) and Unifeller Company Ltd. and/or Unifeller Company (Western) Ltd., Komarniski and Gregoire (Third Parties) and Andronyk and Gregoire (Fourth Parties)

(Suit No. 285/84)

Andronyk v. Williams

Williams (Plaintiff by Counterclaim/Respondent) v. Andronyk, Unifeller Company Ltd. and/or Unifeller Company (Western) Ltd., Komarniski and Gregoire (Defendants by Counterclaim/Respondents) and Unifeller Company Ltd. and/or Unifeller Company (Western), Komarniski and Gregoire (Third Parties/Respondents) and Andronyk and Gregoire (Fourth Parties)

Andronyk v. Gregoire

(Suit No. 413/84)

Indexed As: Andronyk v. Williams

Manitoba Court of Appeal

Matas, O'Sullivan and Huband, JJ.A.

September 27, 1985.

Summary:

A vendor agreed to sell farm property for cash and a mortgage back. The vendor orally misstated the cultivated acreage of the farm property he sold to the buyer. When a deficiency was discovered, the buyer sought to rescind the contract.

The Manitoba Court of Queen's Bench, in a decision reported in (1984), 26 Man.R.(2d) 13, held that the buyer was entitled to rescission, but because the parties could not be put back into the positions they were in before the contract, the court awarded damages. The vendor appealed.

The Manitoba Court of Appeal allowed the vendor's appeal and granted the vendor an order of foreclosure.

Brokers - Topic 3563

Duties of broker to third parties - Real estate brokers - Duty of care - A vendor of farm property orally misrepresented the cultivated acreage of the property - The vendor's real estate agent also stated the acreage as the vendor had done - The purchaser brought an action for damages against the real estate agent, claiming that the agent breached a duty of care by making misstatements - The Manitoba Court of Appeal held that the agent had not breached its duty of care, because no special relationship existed between the vendor's agent and the purchaser - See paragraphs 96 to 100.

Contracts - Topic 1484

Formation of contract - Collateral contracts - What constitute - An agreement for sale provided, inter alia, that the purchaser relied "entirely upon my personal inspection and knowledge of the property independent of any representation made by or on behalf of the owner" - The vendor made untrue oral representations about the quantity of cultivated acreage - The Manitoba Court of Appeal held that the trial judge erred in holding that these representations made by the vendor constituted a collateral warranty - The Manitoba Court of Appeal held, therefore, that there was no breach of warranty by the vendor - See paragraphs 58 to 70.

Contracts - Topic 4181

Remedies for breach - Rescission - General - Rescission for breach of contract v. rescission for misrepresentation - The Manitoba Court of Appeal distinguished between rescission for breach of contract and rescission for misrepresentation - See paragraphs 34 to 41.

Contracts - Topic 4184

Remedies for breach - Rescission - When available - General - A purchaser agreed to buy land - The purchaser made substantial changes to a barn on the property and altered the physical state of the property - The purchaser then sought to rescind the agreement - The Manitoba Court of Appeal affirmed that whether or not the purchaser had the right to rescind he lost the right by his conduct, because the parties could no longer be put in the position they were in at the time the contract was made - See paragraphs 42 to 45.

Courts - Topic 102

Stare decisis - Authority of judicial decisions - English decisions - The Manitoba Court of Appeal stated that "in absence of a decision by the Supreme Court of Canada, it seems to me that a Canadian appellate court should have at least as much regard to a decision of the Privy Council as it has to the English Court of Appeal" - See paragraph 87.

Fraud and Misrepresentation - Topic 2502

Misrepresentation - Elements of actionable misrepresentation - The Manitoba Court of Appeal stated "it is only representations of fact that give rise either to a right of rescission in equity or a right of damages in deceit, or it may be, in actionable negligence. The law is clear ... that no action will lie for misrepresentation unless it is 'a statement of existing fact'. Of course, sometimes statements of opinion contain implied statements of fact, if only that the belief in the state of affairs is genuine, but where there is simply opinion or promises expressed, it must be incorporated into contract in order to be actionable." - See paragraph 53.

Fraud and Misrepresentation - Topic 2502

Misrepresentation - Elements of actionable misrepresentation - The Manitoba Court of Appeal stated that "it has been held that opinion or forecasting are not matters of fact and do not come within the Hedley Byrne ... principles or those of Derry v. Peek" - See paragraph 54.

Fraud and Misrepresentation - Topic 2512

Misrepresentation - Action for economic loss arising out of misstatement - The Manitoba Court of Appeal discussed when an action will lie for economic loss arising out of a misstatement - See paragraphs 73 to 95.

Fraud and Misrepresentation - Topic 2567

Misrepresentation - Particular statements - Quantity of land - A vendor of farm property told a buyer that there were 425 cultivated acres - The purchaser subsequently discovered that the cultivated acreage was approximately 125 acres less - The Manitoba Court of Appeal noted that the only relationship between the purchaser and vendor was that of precontract negotiators and such a relationship did not give rise to an actionable duty of care in making statements which were incorporated into the contract - Hence, the court concluded that the purchaser had no action in tort for negligent misrepresentation - See paragraphs 46 to 95.

Mortgages - Topic 5507

Mortgage actions - Action for foreclosure and sale - Foreclosure order - General - Specific performance v. foreclosure - The Manitoba Court of Appeal distinguished between a judgment for foreclosure and a judgment for specific performance - See paragraph 107.

Sale of Land - Topic 8550

Remedies of purchaser - Specific performance - General - Specific performance v. foreclosure - The Manitoba Court of Appeal distinguished between a judgment for foreclosure and a judgment for specific performance - See paragraph 107.

Cases Noticed:

Heilbut Symons & Co. v. Buckleton, [1913] A.C. 30 (H.L.), refd to. [para. 8].

Hedley Byrne & Co. Ltd. v. Heller and Partners Ltd., [1964] A.C. 465; [1963] 2 All E.R. 575, refd to. [paras. 54, 78].

Derry v. Peek (1889), 14 App. Cas. 337, refd to. [para. 54].

Campbell v. Leslie Real Estate and Development Co. Ltd. (1973), 1 N.R. 89, refd to. [para. 54].

Demuck v. Hallet (1866), L.R. 2 Ch. App. 21, refd to. [para. 56].

Scott v. Hansen (1829), 1 Russ & M. 128; 39 E.R. 49, refd to. [para. 57].

Hanson v. Franz (1918), 57 S.C.R. 57, refd to. [para. 63].

Hayward v. Mellick (1984), 5 D.L.R.(4th) 740 (Ont. C.A.), refd to. [para. 64].

Photo Production Ltd. v. Securicor Transport Ltd., [1980] 1 All E.R. 556, refd to. [para. 65].

Mutual Life and Citizens Assurance Co. Ltd. v. Evatt, [1971] A.C. 793, refd to. [para. 81].

Esso Petroleum Co. Ltd. v. Mardon, [1975] 1 Q.B. 819, refd to. [para. 82].

Sodd Corp. Inc. v. Tessis (1978), 19 O.R.(2d) 380, refd to. [para. 85].

Thegard v. Edmiston, [1925] 2 W.W.R. 756, refd to. [para. 109].

Statutes Noticed:

Limitation of Actions Act, R.S.M. 1970, c. L-150, C.C.S.M., c. L-150, sect. 31(d) [para. 99].

Authors and Works Noticed:

Charlesworth and Percy on Negligence (8th Ed.) [para. 72].

Clerk and Lindsell on Torts (15th Ed.), generally [paras. 79, 88, 89]; paras. 10-12 [para. 77]; 10-13 [para. 81]; 17-1 [para. 75].

Halsburys Laws of England (4th Ed.), vol. 31, paras. 1017 [para. 55]; 1018 [para. 59]; 1101 [para. 93].

Heap on Sales of Land (1st Ed. 1926), generally [paras. 107 to 110]; para. 223 [paras. 73, 75].

Rafferty, Nicholas, Article, [1984] Man. Law Journal 63 [para. 72].

Trietel on Contracts (6th Ed. 1983), pp. 252 [para. 53]; 283 [para. 38]; 284 [para. 39]; 289, 290 [para. 40]; 291 [paras. 36, 40]; 294 [para. 41]; 571 [para. 35].

Counsel:

N.A. Cuddy, for Andronyk;

J.A. Menzies and P.W. Schulman, Q.C., for Williams;

R.E. Stephenson and D.J. Rosin, for Gregoire;

W.P. Narvey, for Unifeller Company Ltd., Unifeller Company (Western) Ltd. and Komarniski.

This appeal was heard on March 25, 26 and 29, 1985, before O'Sullivan, Matas and Huband, JJ.A., of the Manitoba Court of Appeal. The following decision of the Court of Appeal was delivered by O'Sullivan, J.A., on September 27, 1985: