Bowers v. Dives, (1980) 21 A.R. 318 (NWTSC)

• Judge: Disbery, J.
• Court: Supreme Court of Northwest Territories (Canada)
• Case Date: February 06, 1980
• Jurisdiction: Northwest Territories
• Citations: (1980), 21 A.R. 318 (NWTSC)

Bowers v. Dives (1980), 21 A.R. 318 (NWTSC)

MLB headnote and full text

Bowers v. Dives

(No. 4538)

Indexed As: Bowers v. Dives

Northwest Territories Supreme Court

Trial Division

Disbery, J.

February 6, 1980.

Summary:

This headnote contains no summary.

Barristers and Solicitors - Topic 2592

Negligence - Particular negligent acts - Preparation of documents - The Northwest Territories Supreme Court, Trial Division, stated that a solicitor acting for a purchaser, who must obtain financing before the closing date in the contract, owes a duty to the client to inform him of the nature and effect of a clause stating that completion of the contract depends on the client being able to obtain financing - The Trial Division further stated that failure of the solicitor to inform the client of such a conditional clause constitutes actionable negligence by the solicitor - See paragraph 27.

Damages - Topic 1004

Mitigation - What constitutes reasonable remedial measures - A buyer breached a contract to buy a mobile home - The seller refused to allow the buyer to rent the mobile home, because he wanted to sell the home for immediate occupancy - The seller brought an action against the buyer for breach of contract - The buyer argued that the seller failed to mitigate his damages for refusing to rent the home - The Northwest Territories Supreme Court, Trial Division, allowed the seller's action and held that his attempt to sell the home for immediate occupancy was sufficient mitigation - See paragraphs 48 to 53.

Damages - Topic 1415

Special damages - Transportation - A seller brought an action against a buyer for breach of a contract to buy a mobile home - Following breach of the contract the seller, residing in Vancouver, flew back to Yellowknife to regain possession of the home and attempt to sell it - At trial the seller claimed his travelling expenses as special damages - The Northwest Territories Supreme Court, Trial Division, allowed the seller's action, including his claim for transportation expenses - See paragraph 63.

Damages - Topic 5853

Contracts - Sale of goods - Breach by buyer - Measure of damages - A seller brought an action against a buyer for breach of a contract to buy a mobile home - The Northwest Territories Supreme Court, Trial Division, allowed the action and awarded the seller $2,500.00 general damages, being the difference between the contract price and the market value at the time of breach - See paragraphs 29 to 47.

Damages - Topic 5853

Contracts - Sale of goods - Breach by buyer - Measure of damages - A seller brought an action against a buyer for breach of a contract to buy a mobile home - Following breach the buyer returned the key to the seller, who then attempted to sell the home - The home was unoccupied for three months - The seller claimed special damages for the three months for taxes and insurance premiums paid by him and for part of the lost rent - The Northwest Territories Supreme Court, Trial Division, allowed the seller's the action but dismissed the special damages claimed - The Trial Division held that allowing the special damages would give the seller an additional benefit or profit - See paragraphs 54 to 59.

Cases Noticed:

Cornell v. Jaegar et al. (1967), 59 W.W.R.(N.S.) 513, refd to. [para. 33].

Brenner et al. v. Gregory (1972), 30 D.L.R.(3d) 672, refd to. [para. 33].

Samayoa v. Marks (1974), 53 D.L.R. (3d) 42, refd to. [para. 33].

Major v. Buchanan et al. (1975), 61 D.L.R.(3d) 46, refd to. [para. 33].

Mastercraft Construction Corporation Limited v. Baker et al. (1978), 86 D.L.R.(3d) 121, dist. [para. 34].

100 Main Street Limited v. W.B. Sullivan Construction Ltd. (1978), 88 D.L.R.(3d) 1, consd. [para. 42].

Red Deer College v. Michaels and Finn, [1976] 2 S.C.R. 324, refd to. [para. 49].

Springman v. The Queen, [1964] S.C.R. 267, refd to. [para. 54].

R. v. Bedard (1976), 31 C.C.C.(2d) 559; 38 C.C.C.(2d) 112, refd to. [para. 55].

Laird v. Pim et al. (1841), 7 M. & W. 474; 151 E.R. 852, refd to. [para. 58].

Sunnyside Greenhouses Ltd. v. Golden West Seeds Ltd., [1972] 4 W.W.R. 420, refd to. [para. 65].

Statutes Noticed:

Rules of Court (N.W.T.), rule 132 [para. 22].

Sale of Goods Ordinance, R.O.N.W.T. 1974, c. S-2, sect. 2(h) [para. 54]; sect. 48 [para. 55].

Evidence Ordinance, R.O.N.W.T. 1974, c. E-4, sect. 38 [para. 60].

Authors and Works Noticed:

Di Castri, Victor, The Law of Vendor and Purchaser, P. 736 [para. 41].

Mayner and McGregor on Damages (12th Ed. 1961), pp. 19, 22, 23 [para. 40].

Mayner and McGregor on Damages (13th Ed. 1972), p. 490 [para. 50].

Counsel:

R. Clark Rehn, for the plaintiff;

George Carter, for the defendant.

This case was heard by DISBERY, J., of the Northwest Territories Supreme Court, Trial Division.

On February 6, 1980, DISBERY, J., delivered the following judgment: