Athabasca Realty Co. v. Graves and Graves, (1979) 23 A.R. 65 (QB)

• Judge: McFadyen, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: October 30, 1979
• Citations: (1979), 23 A.R. 65 (QB)

Athabasca Realty Co. v. Graves (1979), 23 A.R. 65 (QB)

MLB headnote and full text

Athabasca Realty Company Limited v. Graves and Graves

(95775)

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

Alberta Court of Queen's Bench

Judicial District of Edmonton

McFadyen, J.

October 30, 1979.

Summary:

This case arose out of the plaintiff's action against the defendants for enforcement of an agreement for sale. The defendant husband, who was an employee of Great Canadian Oil Sands Limited (G.C.O.S.), and his wife purchased a house in 1971 from the plaintiff, a subsidiary of G.C.O.S. The plaintiff was established to provide cheap housing for G.C.O.S. employees. The defendants purchased the house at cost or less and agreed that, if the husband ceased to be an employee of G.C.O.S. within 10 years, they would reconvey the house to the plaintiff for the amount paid on the purchase price plus improvements. The husband lost his job with G.C.O.S. in 1975, but he and his wife refused to reconvey the house to the plaintiff, which brought an action against them to enforce the agreement for sale. The plaintiff brought an action against the defendants to enforce the agreement to reconvey the property.

The Alberta Court of Queen's Bench, Judicial District of Edmonton, allowed the action and directed the defendants to reconvey the property to the plaintiff.

Equity - Topic 1062

Equitable relief - Relief against forfeiture - Forfeiture - Defined - The defendant husband, who was an employee of Great Canadian Oil Sands Limited (G.C.O.S.), and his wife purchased a house in 1971 from the plaintiff, a subsidiary of G.C.O.S. - The plaintiff was established to provide cheap housing for G.C.O.S. employees - The defendants purchased the house at cost or less and agreed that, if the husband ceased to be an employee of G.C.O.S. within 10 years, they would reconvey the house to the plaintiff for the amount paid on the purchase price plus improvements - The husband lost his job with G.C.O.S. in 1975, but he and his wife refused to reconvey the house to the plaintiff, which brought an action against them to enforce the agreement for sale - The defendants pleaded that they should be relieved from forfeiture - The Alberta Court of Queen's Bench, held that no forfeiture arose from the breach of the defendants' obligation to reconvey the house, because there was no loss of any right or property of the defendants as a result of the breach of their obligation - The Court of Queen's Bench held that forfeiture is a penalty for breach of duty or breach of contract - The Court of Queen's Bench held that the husband was not required to continue his employment with G.C.O.S. and his ceasing to be employed merely brought into operation their agreement to reconvey the property, which was not forfeiture - See paragraphs 18 to 24.

Equity - Topic 1068

Equitable relief - Relief against forfeiture - Grounds for relief - The defendant husband, who was an employee of Great Canadian Oil Sands Limited (G.C.O.S.), and his wife purchased a house in 1971 from the plaintiff, a subsidiary of G.C.O.S. - The plaintiff was established to provide cheap housing for G.C.O.S. employees - The defendants purchased the house at cost or less and agreed that, if the husband ceased to be an employee of G.C.O.S. within 10 years, they would reconvey the house to the plaintiff for the amount paid on the purchase price plus improvements - The husband lost his job with G.C.O.S. in 1975, but he and his wife refused to reconvey the house to the plaintiff, which brought an action against them to enforce the agreement for sale - The defendants pleaded that they should be relieved from forfeiture - The Alberta Court of Queen's Bench held that there was no forfeiture to relieve against, but that, if there was forfeiture, no relief should be granted, because it was not unconscionable that the defendant be required to reconvey the property - See paragraphs 25 to 35.

Equity - Topic 1072

Equitable relief - Relief from forfeiture - Waiver of forfeiture - The Alberta Court of Queen's Bench held that, if a right of forfeiture arises from a party's breach, the other party does not lose his right to forfeiture by delaying action, if the party's breach is a continuing one - See paragraphs 41 to 44.

Real Property - Topic 162

General principles - Incidents of ownership - Right of alienation - The defendant husband, who was an employee of Great Canadian Oil Sands Limited (G.C.O.S.), and his wife purchased a house in 1971 from the plaintiff, a subsidiary of G.C.O.S. - The plaintiff was established to provide cheap housing for G.C.O.S. employees - The defendants purchased the house at cost or less and agreed that, if the husband ceased to be an employee of G.C.O.S. within 10 years, they would reconvey the house to the plaintiff for the amount paid on the purchase price plus improvements - The Alberta Court of Queen's Bench held that the agreement was enforceable by the plaintiff upon the defendants' refusal to reconvey upon the husband losing his job - The Court of Queen's Bench held that the agreement was a valid agreement for sale and was not a mortgage, so that the doctrine against clogs on the equity of redemption was inapplicable - See paragraphs 16 to 17.

Cases Noticed:

Athabasca Realty Co. Ltd. v. Lee et al. (1976), 67 D.L.R.(3d) 272, appld. [para. 16].

Empire Loan & Savings Co. v. McRae (1903), 5 O.L.R. 710; 23 C.L.T. 229, appld. [para. 18].

Popyk v. Western Savings and Loan Association (1969), 67 W.W.R.(N.S.) 684, appld. [para. 19].

East Crest Oil Company Limited v. Strohschein and Strohschein (1952), 4 W.W.R.(N.S.) 553, appld. [para. 20].

Canadian Superior Oil of California Ltd. v. Kanstrup and Scurry-Rainbow Oil Ltd. (1964), 47 D.L.R.(2d) 1, appld. [para. 21].

Dolly Varden Mines Ltd. (N.P.L.) v. Sunshine Exploration Ltd. et al. (1967), 64 D.L.R.(2d) 283, appld. [para. 22].

Westminster (Duke) v. Swinton, [1948] 1 K.B. 524, dist. [para. 34].

Counsel:

T. Mayson, Q.C. and K.D. WaKefield, for the plaintiff;

R.B. White, for the defendants.

This case was heard at Edmonton, Alberta, before McFadyen, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on October 30, 1979: