Athabasca Realty Co. v. Foster and Foster, (1982) 35 A.R. 504 (CA)

• Judge: McGillivray, C.J.A., Laycraft and Harradence, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: February 24, 1982
• Citations: (1982), 35 A.R. 504 (CA)

Athabasca Realty Co. v. Foster (1982), 35 A.R. 504 (CA)

MLB headnote and full text

Athabasca Realty Co. Ltd. v. Foster and Foster

(Appeal No. 14375)

Indexed As: Athabasca Realty Co. v. Foster and Foster

Alberta Court of Appeal

McGillivray, C.J.A., Laycraft and Harradence, JJ.A.

February 24, 1982.

Summary:

A seller commenced an action for specific performance of an option to repurchase land plus damages. The action was settled by the parties. Subsequently the seller made an additional damage claim for rent and commenced a second action. The Alberta Court of Queen's Bench struck out the second action. The judgment of the Court of Queen's Bench is set out below - see paragraphs 25 to 49. The seller appealed to the Alberta Court of Appeal.

The Alberta Court of Appeal dismissed the appeal.

Releases - Topic 4021

Operation - Scope of matters released - General principles - The Alberta Court of Appeal stated that a release operates to cover what was contemplated by the parties (see paragraph 18).

Releases - Topic 4026

Operation - Scope of matters released - Damages - A seller commenced an action for specific performance of an option to repurchase land plus damages - The action was settled by the parties - Subsequently the seller made an additional damage claim and commenced a second action - The Alberta Court of Appeal affirmed the striking out of the second action because the additional damage claim was in the contemplation of the parties when they settled the first action (see paragraphs 18 to 22).

Damages - Topic 6

Definitions - Actions for damages and action for accounting distinguished - The Alberta Court of Appeal referred to the distinction between an action for damages and an action for an accounting (see paragraph 17).

Cases Noticed:

Athabasca Realty Co. Ltd. v. Lee and two others, 67 D.L.R.(3d) 272, refd to. [para. 3].

Athabasca Realty Co. Ltd. v. Graves (1979), 23 A.R. 65, 11 Alta. L.R.(2d) 136, refd to. [para. 3].

Directors L&S Rwy v. Blackmore (1870), LR 4 HL 610, refd to. [para. 18].

Upton v. Upton (1832), 1 Dow 400, refd to. [para. 18].

Brunswick of Canada Limited v. Varda, [1972] FC 637, refd to. [para. 18].

Thorburn v. Danforth Bus Lines Ltd., [1955] O.R. 494, refd to. [para. 22].

Tucker v. Moerman (1970), 12 D.L.R.(3d) 119, refd to. [para. 22].

Fesser v. McKenzie, [1971] 1 W.W.R. 617, refd to. [para. 36].

Henderson v. Henderson (1843), 3 Hare 100, 67 E.R. 313, refd to. [para. 37].

Ard v. Ard, [1923] 2 K.B. 432, refd to. [para. 38].

Leutner et ux. v. Garbus and Zottenberg, [1971] 1 W.W.R. 436, (Alta. S.C.), refd to. [para. 38].

Hall v. Hall and Hall's Feed and Grain Ltd. (1959), 15 D.L.R.(2d) 638, refd to. [para. 39].

Town of Grandview v. Doering, 61 D.L.R.(3d) 455, refd to. [para. 40].

Statutes Noticed:

Rules of Court (Alta.), rule 129 [para. 31].

Authors and Works Noticed:

McGregor on Damages (14th Ed.), p. 3 [para. 17].

Counsel:

K.D. Wakefield, for Athabasca Realty Co. Ltd.;

G.C. Bolton, for Walter Foster & Patricia Foster.

This appeal was heard by McGillivray, C.J.A., Laycraft and Harradence, JJ.A., of the Alberta Court of Appeal. The judgment of the Court of Appeal was delivered by Laycraft, J.A., at Edmonton, Alberta, on February 24, 1982.