Beier et al. v. Proper Cat Construction Ltd. et al.,

• Judge: Wakeling, J.
• Neutral Citation: 2013 ABQB 351
• Citation: (2013), 564 A.R. 357 (QB),2013 ABQB 351,564 AR 357,[2013] AJ No 707 (QL),(2013), 564 AR 357 (QB),[2013] A.J. No 707 (QL),564 A.R. 357
• Date: 05 June 2013
• Court: Court of Queen's Bench of Alberta (Canada)

Beier v. Proper Cat Constr. Ltd. (2013), 564 A.R. 357 (QB)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. JL.051

Carol Phyllis Beier, Clayton Gessner and C's Oilfield Consulting and Construction Service Ltd. (plaintiffs) v. Proper Cat Construction Ltd., Deborah Lyn Davies and Reid Davies (defendants)

(0903 04868; 2013 ABQB 351)

Indexed As: Beier et al. v. Proper Cat Construction Ltd. et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Wakeling, J.

July 5, 2013.

Summary:

The plaintiffs brought an action, asserting that the defendants failed to discharge obligations they accepted in a 2007 real estate agreement. The plaintiffs also alleged that the defendants allowed their horses to unlawfully enter the disputed land. On February 8, 2012, a settlement agreement was reached and subsequently signed by all parties. The settlement agreement was never enforced. In December 2012, the plaintiffs applied for summary judgment, seeking specific performance of the 2007 real estate agreement.

A Master of the Alberta Court of Queen's Bench, in a decision not reported in this series of reports, dismissed the application. The plaintiffs appealed.

The Alberta Court of Queen's Bench allowed the appeal and granted summary judgment to the plaintiffs.

Practice - Topic 5701

Judgments and orders - Summary judgments - General - The Alberta Court of Queen's Bench discussed the "fundamental and peripheral principles which shape the summary judgment law" - See paragraphs 56 to 71.

Practice - Topic 9851

Settlements - General - The Alberta Court of Queen's Bench discussed the "criteria by which the existence of an enforceable agreement is determined" - See paragraph 72.

Practice - Topic 9852

Settlements - What constitutes a settlement - The plaintiffs brought an action, asserting that the defendants failed to discharge obligations they accepted in a 2007 real estate agreement - The plaintiffs also alleged that the defendants allowed their horses to unlawfully enter the disputed land - On February 8, 2012, a settlement agreement was reached and subsequently signed by all parties - The settlement agreement was never enforced - In December 2012, the plaintiffs applied for summary judgment, seeking specific performance of the 2007 real estate agreement - At issue was, inter alia, whether the settlement agreement was enforceable - The Alberta Court of Queen's Bench found that the settlement agreement was enforceable - There were no missing essential terms - The settlement agreement adequately identified "the land the subject matter of the agreement, the vendor, the purchaser, the purchase price, the requirements to convey clear title, the closing date and the other documents which had to be prepared" - As soon as the plaintiffs were informed that the plaintiffs had signed the settlement agreement, a binding agreement was in effect - The signatures were objective evidence of her acceptance of the settlement agreement on which the plaintiffs could reasonably rely - Nothing happened subsequently which altered the settlement agreement's legal status - In the result, the court granted summary judgment to the plaintiffs - See paragraphs 81 to 83.

Practice - Topic 9854

Settlements - Enforceability - General - [See Practice - Topic 9852 ].

Practice - Topic 9869

Settlements - Breach - What constitutes - The plaintiffs brought an action, asserting that the defendants failed to discharge obligations they accepted in a 2007 real estate agreement - The plaintiffs also alleged that the defendants allowed their horses to unlawfully enter the disputed land - On February 8, 2012, a settlement agreement was reached and subsequently signed by all parties - The settlement agreement was never enforced - In December 2012, the plaintiffs applied for summary judgment, seeking specific performance of the 2007 real estate agreement - The Alberta Court of Queen's Bench found that the defendants breached the settlement agreement - The defendant Davies failed to transfer the settlement lands to the plaintiff Gessner and to comply with other obligations imposed on her by the settlement agreement - The other defendants also failed to discharge promises they made in the settlement agreement - In the result, the court granted summary judgment to the plaintiffs - See paragraph 96.

Practice - Topic 9870

Settlements - Repudiation - What constitutes - The plaintiffs brought an action, asserting that the defendants failed to discharge obligations they accepted in a 2007 real estate agreement - The plaintiffs also alleged that the defendants allowed their horses to unlawfully enter the disputed land - On February 8, 2012, a settlement agreement was reached and subsequently signed by all parties - The settlement agreement was never enforced - In December 2012, the plaintiffs applied for summary judgment, seeking specific performance of the 2007 real estate agreement - At issue was, inter alia, whether there was repudiation of the settlement agreement and whether the defendants accepted the repudiation - Following the execution of the settlement agreement, the parties went back and forth with respect to the sale of the land "as is" - The defendants asserted that this conduct constituted repudiation - The Alberta Court of Queen's Bench found that no conduct post execution of the settlement agreement evidenced an intention to repudiate the settlement agreement - The communications between counsel as they worked through the drafting process did not support the argument that either side repudiated the settlement agreement and that the other side accepted the repudiation - In the result, the court granted summary judgment to the plaintiffs - See paragraphs 84 to 95.

Sale of Land - Topic 8550

Remedies of purchaser - Specific performance - General - The Alberta Court of Queen's Bench discussed the law of specific performance - See paragraphs 73 to 80.

Sale of Land - Topic 8551

Remedies of purchaser - Specific performance - When available - The plaintiffs brought an action, asserting that the defendants failed to discharge obligations they accepted in a 2007 real estate agreement (with respect to the settlement lands) - The plaintiffs also alleged that the defendants allowed their horses to unlawfully enter the disputed land - On February 8, 2012, a settlement agreement was reached and subsequently signed by all parties - The settlement agreement was never enforced - In December 2012, the plaintiffs applied for summary judgment, seeking specific performance of the 2007 real estate agreement - The Alberta Court of Queen's Bench granted summary judgment to the plaintiffs - Specific performance was the appropriate remedy - The plaintiffs could not purchase quiet enjoyment of their existing property by acquiring any property other than the settlement lands - The defendants, persons the plaintiffs believed were rogue neighbours, owned and occupied the settlement lands - These facts made the settlement lands unique - If the court ordered the defendants to pay damages to the plaintiffs for breach of the settlement agreement, the reasonable expectations of the plaintiffs would not be met - The plaintiffs agreed to purchase the settlement lands to buy peace and quiet, not to profit from future increases in the value of the settlement lands - The plaintiffs also had a second reason which made the acquisition of the settlement lands desirable - Contiguous property presented opportunities of a business nature which also warranted specific performance - There was no reason to exercise this court's discretion in favour of the defendants - Severe hardship did not exist just because the defendant Davies might have to acquire a smaller home and, along with her mother and daughters, adjust to a different lifestyle - See paragraphs 97 to 101.

Cases Noticed:

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Pioneer Exploration Inc. Estate (Bankrupt) v. Euro-Am Pacific Enterprises Ltd. (2003), 339 A.R. 165; 312 W.A.C. 165 (C.A.), refd to. [para. 63].

Mellon v. Gore Mutual Insurance Co. (1995), 174 A.R. 200; 102 W.A.C. 200 (C.A.), refd to. [para. 63].

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German v. Major (1985), 62 A.R. 2 (C.A.), refd to. [para. 63].

Tucson Properties Ltd. v. Sentry Resources Ltd. and Fournel (1982), 39 A.R. 341; 22 Alta. L.R.(2d) 44 (Q.B. Master), refd to. [para. 63].

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Authors and Works Noticed:

Bauman, John A., The Evolution of the Summary Judgment Procedure: An Essay Commemorating the Centennial Anniversary of Keating's Act (1956), 31 Ind. L.J. 329, pp. 339 to 342, 353 [para. 57].

Clark, Charles E., and Samenow, Charles U., The Summary Judgment (1929), 38 Yale L.J. 423, generally [para. 58, footnote 1]; pp. 424, 425 [para. 57]; 471 [para. 56].

Clark, Charles E., The Summary Judgment (1952), 36 Minn. L. Rev. 567, p. 578 [para. 59].

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Holdsworth, William Searle, A History of English Law (7th Ed. 1956), vol. 1, pp. 456, 457 [para. 74].

Jones, Gareth, and Goodhart, William, Specific Performance (1986), pp. 78 to 88 [para. 80]; 202 to 204 [para. 108].

Kronman, Specific Performance (1978), 45 U. Chi. L. Rev. 351, pp. 357, 358 [para. 75]; 360, 361 [para. 77].

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Sharpe, Robert J., Injunctions and Specific Performance (2012 Looseleaf Update, Release 21), p. 10-14 [paras. 80, 101]; para. 7.12 [para. 77].

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Waddams, Stephen M., The Law of Contracts (6th Ed. 2010), pp. 20 [para. 82]; 30 to 42 [para. 72]; 105 [para. 82]; 462 [para. 85]; 512 [para. 67]; 524 [para. 73].

Wright, Charles Alan, and Kane, Mary Kay, Law of Federal Courts (7th Ed. 2011), pp. 706 [para. 59]; 709 [para. 67].

Counsel:

H.J. Kruger (Davis LLP), for the plaintiffs;

Michael Cooper (Ogilvie LLP), for the defendants.

This appeal was heard on June 5, 2013, by Wakeling, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on July 5, 2013.