Balderston v. Faul et al., (2014) 608 A.R. 129 (QB)

• Judge: Bensler, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: April 25, 2014
• Citations: (2014), 608 A.R. 129 (QB);2014 ABQB 762

Balderston v. Faul (2014), 608 A.R. 129 (QB)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. JA.028

Christopher Darren Herbert Balderston (plaintiff) v. Murray Joseph Faul, Dennis Isaac Derksen and Wanda Marie Derksen (defendants)

(1304 00283; 2014 ABQB 762)

Indexed As: Balderston v. Faul et al.

Alberta Court of Queen's Bench

Judicial District of Grande Prairie

Bensler, J.

December 10, 2014.

Summary:

The plaintiff's action concerned a purported sale of two quarter sections of land owned by the defendants. The parties consented to a summary trial. The threshold question was whether there was an enforceable agreement between the plaintiff and the defendants for the sale of the lands.

The Alberta Court of Queen's Bench held that the parties had an enforceable agreement and the defendants' refusal to sell the lands to the plaintiff in accordance with the purported contract amounted to repudiation. The plaintiff did not accept the defendants' repudiation of the purported contract. The court found that specific performance was the appropriate remedy. The court made no finding as to the damages, if any, to which the plaintiff was entitled in addition to the remedy of specific performance. The order granting specific performance would not preclude a determination of any such damages.

Contracts - Topic 3666

Performance or breach - Repudiation - What constitutes acceptance of repudiation - [See Sale of Land - Topic 3424 ].

Deeds and Documents - Topic 5055

Rectification - When available - Intention of parties - [See Sale of Land - Topic 956 ].

Sale of Land - Topic 805

The contract - General - Agreement for sale - What constitutes - At issue on a summary trial was whether there was an enforceable agreement between the plaintiff, Mr. Balderston, and the defendants for the sale of two quarter sections of land - The first quarter was owned by the defendant, Mr. Faul - The second was owned jointly by the defendants, Mr. Derksen and Ms. Derksen - The Alberta Court of Queen's Bench held that the parties had an enforceable agreement when the purported contract was executed in February 2012 - At that point, the parties' demonstrated intention was the purchase and sale of the lands - Only two issues remained to be resolved: (1) the allocation of the purchase price as between Faul and the Derksens and (2) the identification of the lands to be subject to the right of first refusal - The court did not agree with the defendants' assertion that there was no way to give meaning to the two terms acknowledged to be in need of resolution - The right of first refusal was sufficiently certain to allow for enforceability - Balderston had also waived that right - The purported contract was valid and enforceable at the time of its execution - Subsequent email exchanges between the parties' lawyers represented proposals and counterproposals for variation of the existing purported contract - When it became clear that the defendants were not prepared to give anything in return for their new requests, Balderston waived certain of his rights under the purported contract - That did not demonstrate that there was no contract, but simply spoke to Balderston's desire to get done the part of the deal that was most important to him - See paragraphs 68 to 97.

Sale of Land - Topic 956

The contract - Conditions and warranties - Waiver - At issue on a summary trial was whether there was an enforceable agreement between the plaintiff, Mr. Balderston, and the defendants for the sale of two quarter sections of land - The first quarter was owned by the defendant, Mr. Faul - The second was owned jointly by the defendants, Mr. Derksen and Ms. Derksen - The purported contract was expressly made subject to the lawyers for both the buyer and the sellers "seeing and approving offer" - That condition had to be satisfied or waived by March 1, 2013 - On March 1, 2013, Balderston and the Derksens signed documents entitled Notice (re: Waiver/Satisfaction of Conditions) - However, the Notice signed by Balderston purported to waive the condition "Conditional to Sellers' lawyer seeing and approving of this offer" while the Notice signed by the Derksens purported to waive the condition "Conditional to Buyer's Lawyer seeing and approving of this offer" - Therefore, the defendants asserted that this condition precedent was never waived by them - The Alberta Court of Queen's Bench stated that "I have found that the parties' common intention was to waive their respective conditions. The written instruments do not reflect that intention. Therefore, pursuant to Rule 1.3(2), I grant rectification of the two documents entitled Notice (re: Waiver/Satisfaction of Conditions) to reflect the parties' intention as I have found it. Accordingly, the Defendants' argument that the Purported Contract never became unconditional fails" - See paragraphs 44 to 67.

Sale of Land - Topic 1010

The contract - Parties - Agents - General - At issue on a summary trial was whether there was an enforceable agreement between the plaintiff, Mr. Balderston, and the defendants for the sale of two quarter sections of land - The first quarter was owned by the defendant, Mr. Faul - The second was owned jointly by the defendants, Mr. Derksen and Ms. Derksen - In 2011, Faul had signed a document giving "Dennis/Wanda Derksen" permission to act on his behalf on the sale of his land - The defendants argued that the authority granted by Faul to sell his land had to be exercised jointly by Mr. Derksen and Ms. Derksen - Given their position that Ms. Derksen did not execute the purported contract, the defendants asserted that it did not bind Faul - The Alberta Court of Queen's Bench held that in light of its finding that Ms. Derksen's initials were sufficient to constitute execution of the purported contract, the answer to this argument was that, even if both Mr. Derksen and Ms. Derksen needed to sign the purported contract to bind Faul, that was what occurred - Moreover, it was not clear from the evidence that both signatures were in fact required - Mr. Derksen stated in his questioning on affidavit that it was his understanding that both he and Ms. Derksen had to act together on behalf of Faul - However, he also stated that he prepared the authorizing document, that there was no discussion about the use of the term "Dennis/Wanda" therein and that Faul told him he wanted to accept Balderston's offer - Mr. Derksen also acknowledged that it "was understood" that he had authority to do so on Faul's behalf - Significantly, Faul swore in his affidavit that the purported contract was "an offer which was signed by Dennis Derksen on my behalf" - Accordingly, the purported contract was sufficiently executed on behalf of Faul - See paragraphs 40 to 43.

Sale of Land - Topic 1325

The contract - Necessity for writing - General - Statute of Frauds - Circumstances within statute - [See Sale of Land - Topic 1532 ].

Sale of Land - Topic 1532

The contract - Form and contents of agreement or memorandum - The signature - Signature sufficient to satisfy Statute of Frauds (incl. electronic signature) - At issue on a summary trial was whether there was an enforceable agreement between the plaintiff, Mr. Balderston, and the defendants for the sale of two quarter sections of land - The first quarter was owned by the defendant, Mr. Faul - The second was owned jointly by the defendants, Mr. Derksen and Ms. Derksen - While Ms. Derksen's initials appeared in various places on the purported contract, her full signature did not - The Alberta Court of Queen's Bench held that the purported contract met the requirements of the Statute of Frauds - All of the evidence was consistent with the conclusion that Ms. Derksen wanted to accept Balderston's offer to purchase the lands and intended to do what was necessary to do so - Ms. Derksen's initials on the purported contract were sufficient to signify her intention to accept and authenticate it - Initials or something else less than a full signature could suffice if the intention was clear, as it was here - Even if that were not so, the other documents signed by Ms. Derksen, taken together with the purported contract, were sufficient to satisfy the Statute of Frauds - See paragraphs 30 to 39.

Sale of Land - Topic 3424

Contract - Discharge - Repudiation - By seller - What constitutes repudiation - At issue on a summary trial was whether there was an enforceable agreement between the plaintiff, Mr. Balderston, and the defendants for the sale of two quarter sections of land - The first quarter was owned by the defendant, Mr. Faul - The second was owned jointly by the defendants, Mr. Derksen and Ms. Derksen - The Alberta Court of Queen's Bench held that the parties had an enforceable agreement and the defendants' refusal to sell the lands to Balderston in accordance with the purported contract amounted to repudiation - The court stated that "there is no suggestion that Mr. Balderston accepted the Defendants' repudiation. Accordingly, he was obliged to fulfill his obligations under the Purported Contract, namely to tender the funds to purchase the Lands. ... the Purported Contract provides for payment of a 'Further Deposit' of $450,000.00 upon removal of the conditions, which occurred on March 1, 2013. It is common ground that Mr. Balderston did not tender this sum on that date. Rather, he tendered this amount, less a small deduction for tax adjustments, on May 6, 2013. Mr. Balderston's explanation for the later date was that, as of March 1, 2013, he thought the parties were still negotiating amendments to the original agreement. He tendered the funds in time for the closing date for the Faul Land as contemplated by the Purported Contract. I am satisfied that Mr. Balderston's late tender does not detract from his position that he did not accept the Defendants' repudiation of the Purported Contract. In the circumstances, it is, at most, a minor breach that does not affect the enforceability of the Purported Contract" - See paragraphs 98 to 102.

Sale of Land - Topic 8551

Remedies of purchaser - Specific performance - When available - [See Sale of Land - Topic 8559 ].

Sale of Land - Topic 8559

Remedies of purchaser - Specific performance - Upon repudiation by seller - At issue on a summary trial was whether there was an enforceable agreement between the plaintiff, Mr. Balderston, and the defendants for the sale of two quarter sections of land - The first quarter was owned by the defendant, Mr. Faul - The second was owned jointly by the defendants, Mr. Derksen and Ms. Derksen - Balderston sought an order for specific performance of the purported contract - The Alberta Court of Queen's Bench held that the parties had an enforceable agreement and the defendants' refusal to sell the lands to Balderston in accordance with the purported contract amounted to repudiation of the purported contract - The court stated that "I find that the Lands represent a unique opportunity for Mr. Balderston. The Lands are part of a larger plan for redevelopment. Their location, in proximity both to the City of Grande Prairie and to other lands Mr. Balderston has since acquired, and the ready access to roadways are amenities that cannot be readily replicated in other property. Damages will not permit Mr. Balderston to seek an equivalent opportunity elsewhere and, therefore, do not provide an adequate remedy. Accordingly, I find that specific performance is the appropriate remedy in this case. ... I will make no finding as to the damages, if any, to which Mr. Balderston is entitled in addition to the remedy of specific performance. The Order granting specific performance will not preclude a determination of any such damages" - See paragraphs 103 to 113.

Cases Noticed:

Austie v. Aksnowicz (1999), 232 A.R. 118; 195 W.A.C. 118; 1999 ABCA 56, refd to. [para. 31].

Moojelsky et al. v. Rexnord Canada Ltd. et al. (1989), 96 A.R. 91 (Q.B.), refd to. [para. 32].

Harvie v. Gibbons (1980), 12 Alta. L.R.(2d) 72 (C.A.), refd to. [para. 33].

Standard Realty Co. v. Nicholson, [1911] 24 O.L.R. 46 (H.C.), refd to. [para. 36].

Pecek v. Fedun (2007), 427 A.R. 356; 2007 ABQB 133, refd to. [para. 55].

Manson Insulation Products Ltd. et al. v. Crossroads C&I Distributors et al., [2013] A.R. Uned. 744; 2013 ABQB 702, refd to. [para. 56].

SHN Grundstuecksverwaltungsgesellschaft MBH & Co. Seniorenresidenz Hoppegarten-Neuenhagen KG v. Hanne (2012), 550 A.R. 129; 2012 ABQB 624, affd. (2014), 575 A.R. 149; 612 W.A.C. 149; 2014 ABCA 168, additional reasons at (2014), 577 A.R. 199; 613 W.A.C. 199; 2014 ABCA 245, leave to appeal refused [2014] S.C.C.A. No. 349, refd to. [para. 57].

Centura Building Systems Ltd. v. Cressey Whistler Project Corp. et al. [2003] B.C.T.C. 1227; 29 C.L.R.(3d) 200; 2003 BCSC 1227, refd to. [para. 64].

Ko v. Hillview Homes Ltd. (2012), 536 A.R. 93; 559 W.A.C. 93; 2012 ABCA 245, refd to. [para. 72].

Marquardt v. Gray, [2013] A.R. Uned. 269; 2013 ABCA 300, refd to. [para. 74].

Pedersen v. Soyka et al. (2014), 575 A.R. 217; 612 W.A.C. 217; 2014 ABCA 179, refd to. [para. 75].

Omers Energy Inc. v. Energy Resources Conservation Board (Alta.) et al. (2011), 513 A.R. 292; 530 W.A.C. 292; 2011 ABCA 251, refd to. [para. 76].

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, refd to. [para. 77].

Moberg v. Cleveland et al., [2010] B.C.T.C. Uned. 1303; 97 R.P.R.(4th) 201; 2010 BCSC 1303, refd to. [para. 87].

Brookside Farms Ltd., Re (1988), C.B.R.(N.S.) 162 (B.C.S.C.), refd to. [para. 91].

Semelhago v. Paramadevan, [1996] 2 S.C.R. 415; 197 N.R. 379; 91 O.A.C. 379, refd to. [para. 104].

1244034 Alberta Ltd. v. Walton International Group Inc. et al. (2007), 422 A.R. 189; 415 W.A.C. 189; 2007 ABCA 372, refd to. [para. 105].

Covlin v. Minhas et al. (2009), 468 A.R. 301; 2009 ABQB 42, affd. (2009), 469 A.R. 250; 470 W.A.C. 250; 2009 ABCA 404, refd to. [para. 106].

Statutes Noticed:

Statute of Frauds, 1677, 29 Car 2, c. 3, sect. 4 [para. 30].

Counsel:

Brian P. Kaliel, Q.C., and Emma Johnston (Miller Thomson LLP), for the plaintiff;

Murray L. Engelking (Engelking Wood), for the defendants.

This action was heard on April 25, 2014, before Bensler, J., of the Alberta Court of Queen's Bench, Judicial District of Grande Prairie, who delivered the following judgment on December 10, 2014.