Bourk v. Temple et al., (1990) 105 A.R. 61 (QB)

• Judge: Conrad, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 23, 1990
• Citations: (1990), 105 A.R. 61 (QB)

Bourk v. Temple (1990), 105 A.R. 61 (QB)

MLB headnote and full text

Russel B. Bourk (applicant) v. Isobel Temple and P.J. Toole & Cote Real Estate Ltd. (respondents)

(Action No. 8901-10192)

Indexed As: Bourk v. Temple et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Conrad, J.

March 23, 1990.

Summary:

A real estate purchase contract represented and warranted that the buildings complied with all municipal government laws and regulations. Before the closing date the purchaser discovered that the building locations were nonconforming and did not comply with a land use bylaw. The purchasers rescinded the contract and claimed return of the deposit. The vendors submitted that a nonconforming location was lawful and did not breach the contract. Also rescission was not available for breach of a warranty.

The Alberta Court of Queen's Bench allowed the purchaser's claim.

Sale of Land - Topic 8852

Remedies of purchasers - Rescission or annulment - When available to purchaser - A land use bylaw defined a nonconforming use building as not complying when the bylaw was enacted and restricted alterations etc. - A property purchase contract represented and warranted that the buildings complied with municipal regulations and provided for return of the deposit for breach or nonperformance - The buildings were nonconforming - The vendor rejected the purchaser's rescission prior to closing submitting that nonconforming buildings were lawful - The Alberta Court of Queen's Bench allowed rescission whether the term was a condition or a warranty and ordered return of the deposit.

Sale of Land - Topic 8859

Remedies of purchaser - Rescission or annulment - Return of deposit - [See Sale of Land - Topic 8852].

Cases Noticed:

Red Deer (City) v. Council of the City of Red Deer (1976), 2 A.R. 271 (C.A.), refd to. [para. 11].

David Everett Holdings Ltd. v. Council of the City of Red Deer, [1975] 3 W.W.R. 333, refd to. [para. 11].

Richview Construction v. Raspa (1975), 11 O.R.(2d) 377, refd to. [para. 35].

Statutes Noticed:

Calgary Land Use Bylaw 2P80, sect. 4(72) [paras. 6, 20]; sect. 22(3) [paras. 4, 17].

Planning Act, R.S.A. 1980, c. P-9, sect. 1(m.1) [paras. 5, 20]; sect. 69(5) [paras. 9, 10, 13, 20]; sect. 74 [para. 15]; sect. 74(5) [paras. 7, 12, 19]; sect. 81 [para. 17].

Authors and Works Noticed:

Shorter Oxford English Dictionary [para. 18].

Counsel:

Blair R. Carbert, for the applicant;

Thomas S. Dick, for respondent Isobel Temple;

Gregory C. Axelson, for respondent P.J. Toole & Cote Real Estate Ltd.

This case was heard before Conrad, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following judgment on March 23, 1990.