Atir Enterprises Ltd. v. Briault, (2008) 456 A.R. 1 (QB)

• Judge: Moen, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: August 19, 2008
• Citations: (2008), 456 A.R. 1 (QB);2008 ABQB 520

Atir Ent. Ltd. v. Briault (2008), 456 A.R. 1 (QB)

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. AU.113

Terrence L. Briault (also known as Terry L. Briault and Terry Briault) and Debbie Briault (also known as Debbie L. Briault)

(applicants/defendants)

(0712 00116; 2008 ABQB 520)

Indexed As: Atir Enterprises Ltd. v. Briault

Alberta Court of Queen's Bench

Judicial District of Wetaskiwin

Moen, J.

August 19, 2008.

Summary:

The plaintiff claimed that it had a contract with the defendants whereby the plaintiff had an interest in certain properties registered in the defendants' name. There were nine properties set out in the statement of claim. The plaintiff also claimed that it had contributed to the improvement and maintenance of the properties and therefore had a claim in unjust enrichment against the defendants. The defendants applied for summary judgment. The plaintiff applied to add Witham as a plaintiff in the action.

The Alberta Court of Queen's Bench determined the issues.

Contracts - Topic 8008

Statute of Frauds - Part performance - When available - The plaintiff claimed that it had a contract with the defendants whereby the plaintiff had an interest in certain properties registered in the defendants' name - There were nine properties set out in the statement of claim - The plaintiff also claimed that it had contributed to the improvement and maintenance of the properties and therefore had a claim in unjust enrichment against the defendants - The defendants applied for summary judgment - Witham was added as a plaintiff in the action - Witham claimed a contractual interest in the first five properties - The Alberta Court of Queen's Bench granted summary judgment to the defendants respecting Witham's claim in contract - Any agreement between Witham and the defendants had to fail for uncertainty of terms and any agreement with respect to land was rendered unenforceable by the Statute of Frauds - The court rejected Witham's assertion that in order to overcome the confines of the Statute of Frauds, he could rely on the equitable principle of part performance - All the evidence of part performance was either equivocal or inconsistent with the contract as alleged - See paragraphs 56 to 76.

Practice - Topic 651

Parties - Adding or substituting parties - Adding or substituting plaintiffs - Circumstances when allowed - [See Practice - Topic 653 ].

Practice - Topic 653

Parties - Adding or substituting parties - Adding or substituting plaintiffs - Application of limitation periods - The plaintiff claimed that it had a contract with the defendants whereby the plaintiff had an interest in certain properties registered in the defendants' name - There were nine properties set out in the statement of claim - The plaintiff also claimed that it had contributed to the improvement and maintenance of the properties and therefore had a claim in unjust enrichment against the defendants - The defendants applied for summary judgment - The plaintiff applied to add Witham as a plaintiff in the action - The proposed plaintiff claimed an interest in the first five properties - The defendants asserted that the proposed plaintiff was out of time - The Alberta Court of Queen's Bench added Witham as a plaintiff - The issue of the limitation period could not be determined at this time - There were issues of credibility and reliability that could only be fairly determined by a trial judge hearing all of the evidence tested in cross-examination - The issue to be determined as to the limitation period was what constituted a breach to the alleged contract and when did it occur - See paragraphs 40 to 55.

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - [See Contracts - Topic 8008 , both Restitution - Topic 62 and Restitution - Topic 788 ].

Restitution - Topic 62

Unjust enrichment - General - What constitutes - The plaintiff claimed that it had a contract with the defendants whereby the plaintiff had an interest in certain properties registered in the defendants' name - There were nine properties set out in the statement of claim - The plaintiff also claimed that it had contributed to the improvement and maintenance of the properties and therefore had a claim in unjust enrichment against the defendants - The defendants applied for summary judgment - The Alberta Court of Queen's Bench granted summary judgment against the plaintiff - The plaintiff's claim in unjust enrichment was hopeless - The plaintiff had failed to provide any evidence that the plaintiff did any work on the properties or provided any monetary contributions that would constitute an unjust enrichment - See paragraphs 37 and 38.

Restitution - Topic 62

Unjust enrichment - General - What constitutes - The plaintiff claimed that it had a contract with the defendants whereby the plaintiff had an interest in certain properties registered in the defendants' name - There were nine properties set out in the statement of claim - The plaintiff also claimed that it had contributed to the improvement and maintenance of the properties and therefore had a claim in unjust enrichment against the defendants - The defendants applied for summary judgment - Witham was added as a plaintiff in the action - Witham claimed in unjust enrichment and contractual quantum meruit - The Alberta Court of Queen's Bench denied summary judgment with respect to this claim because Witham did not have a hopeless case - There was contradictory evidence in the form of affidavits and examinations on affidavits and a trial judge had to assess that evidence on the basis of reliability and credibility as to the services provided by Witham in relation to the properties - See paragraphs 77 to 82.

Restitution - Topic 788

Benefit acquired from the plaintiff - Recovery based on quantum meruit - Bars - The plaintiff claimed that it had a contract with the defendants whereby the plaintiff had an interest in certain properties registered in the defendants' name - There were nine properties set out in the statement of claim - The plaintiff also claimed that it had contributed to the improvement and maintenance of the properties and therefore had a claim in quantum meruit against the defendants - The defendants applied for summary judgment - The Alberta Court of Queen's Bench granted summary judgment against the plaintiff - The plaintiff's claim in contractual quantum meruit was hopeless - The plaintiff never entered into any agreement with the defendants to do anything with the properties - Further, there was not sufficient evidence to show that there was any agreement oral or in writing that the plaintiff was to do anything on the properties that could be construed as a contractual quantum meruit claim - However, if the court was wrong in this, there was certainly no certainty of terms as between the plaintiff and the defendants - As such, there could be no agreement and therefore no claim in contractual quantum meruit - See paragraphs 18 to 34.

Cases Noticed:

Boudreault v. Barrett et al. (1998), 219 A.R. 67; 179 W.A.C. 67; 1998 ABCA 232, refd to. [para. 11].

393008 Alberta Ltd. et al. v. Johnston et al., [2004] A.R. Uned. 734; 2004 ABCA 927, refd to. [para. 12].

Murphy Oil Co. et al. v. Predator Corp. et al. (2004), 365 A.R. 326; 2004 ABQB 688, refd to. [para. 13].

732311 Alberta Ltd. v. Paradise Bay Spa & Tub Warehouse Inc. et al. (2003), 332 A.R. 315; 2003 ABQB 228, refd to. [para. 13].

Dome Construction Ltd. v. Solarsystems Industries Ltd. (1984), 36 Sask.R. 136 (Q.B.), refd to. [para. 15].

Peter v. Beblow, [1993] 1 S.C.R. 980; 150 N.R. 1; 23 B.C.A.C. 81; 39 W.A.C. 81, refd to. [para. 16].

98956 Investments Ltd. (Receivership) v. Fidelity Trust Co., [1988] 6 W.W.R. 427; 89 A.R. 151 (C.A.), refd to. [para. 46].

James H. Meek Trust et al. v. San Juan Resources Inc. et al. (2005), 376 A.R. 202; 360 W.A.C. 202; 2005 ABCA 448, refd to. [para. 46].

De Shazo v. Nations Energy Co. et al. (2005), 367 A.R. 267; 346 W.A.C. 267; 256 D.L.R.(4th) 502; 2005 ABCA 241, refd to. [para. 51].

Mitsui & Co. (Point Aconi) Ltd. v. Jones Power Co. et al. (2000), 189 N.S.R.(2d) 1; 590 A.P.R. 1; 2000 NSCA 95, leave to appeal refused (2001), 270 N.R. 196; 193 N.S.R.(2d) 400; 602 A.P.R. 400 (S.C.C.), refd to. [para. 62].

Booth v. Knibb Developments Ltd. et al. (2002), 312 A.R. 173; 281 W.A.C. 173; 2002 ABCA 180, refd to. [para. 66].

Maddison v. Alderson (1883), 8 App. Cas. 467, refd to. [para. 69].

Deglman v. Brunet Estate, [1954] S.C.R. 725, refd to. [para. 69].

Meston, Re; Meston v. Gray et al., [1925] 4 D.L.R. 887 (Sask. C.A.), refd to. [para. 73].

Steadman v. Steadman, [1974] 2 All E.R. 977 (H.L.), refd to. [para. 74].

Hill v. Nova Scotia (Attorney General), [1997] 1 S.C.R. 69; 206 N.R. 299; 157 N.S.R.(2d) 81; 462 A.P.R. 81, refd to. [para. 74].

Gidney v. Shank - see Gidney v. Feuerstein et al.

Gidney v. Feuerstein et al., [1996] 2 W.W.R. 383; 107 Man.R.(2d) 208; 109 W.A.C. 208 (C.A.), refd to. [para. 78].

Beller Carreau Lucyshyn Inc. v. Cenalta Oilwell Servicing Ltd. (1999), 232 A.R. 250; 195 W.A.C. 250; 1999 ABCA 122, refd to. [para. 79].

International Corona Resources Ltd. v. LAC Minerals Ltd., [1989] 2 S.C.R. 574; 101 N.R. 239; 36 O.A.C. 57, refd to. [para. 79].

Whitaker v. Eberle, [2002] A.R. Uned. 478; 2002 ABQB 1069, refd to. [para. 80].

Authors and Works Noticed:

Maddaugh, Peter D., and McCamus, John D., The Law of Restitution (2nd Ed. 2004) (2007 Looseleaf), generally [para. 53].

Counsel:

R. Peter Newton, Q.C. (Majeski & Company), for the respondent/plaintiff;

Gary B. Romanchuk and Courtney Keith (Student-at-Law) (Ogilvie LLP), for the applicants/defendants.

This application was heard on April 17 and 25, 2008, by Moen, J., of the Alberta Court of Queen's Bench, Judicial District of Wetaskiwin, who delivered the following reasons for judgment on August 19, 2008.