Braun et al. v. Peszko et al., (2015) 467 Sask.R. 199 (CA)

• Judge: Jackson, J.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: August 26, 2015
• Jurisdiction: Saskatchewan
• Citations: (2015), 467 Sask.R. 199 (CA);2015 SKCA 112

Braun v. Peszko (2015), 467 Sask.R. 199 (CA);

    651 W.A.C. 199

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. NO.016

Dale Anderson (respondent/respondent by cross appeal/appellant/third party) v. Larry Braun, 627332 Saskatchewan Ltd., 627360 Saskatchewan Ltd., 627469 Saskatchewan Ltd., 627470 Saskatchewan Ltd., and 627471 Saskatchewan Ltd. (applicants/appellants by cross appeal/respondents/plaintiffs), Jason Peszko and Bill Roe, operating under the name, Roe & Company (applicants/respondents by cross appeal/respondents/defendants), Bill Thompson (respondent/respondent/third party) and Larry Machula (respondent/respondent/third party)

(CACV2691; 2015 SKCA 112)

Indexed As: Braun et al. v. Peszko et al.

Saskatchewan Court of Appeal

Jackson, J.A.

October 30, 2015.

Summary:

The plaintiffs owned a major piece of property in Saskatoon. A forgiveable loan had been provided to the plaintiffs by CMHC and was registered as a mortgage charge (the RRAP mortgage). In January 2006, the plaintiffs executed a contract of purchase and sale for the property. The purchase price was $9,660,000. The plaintiffs' understanding was that the purchasers were to assume the RRAP mortgage and that the amount owing ($514,800) was not part of the purchase price. However, last minute changes to the contract made this ambiguous. In February 2006, Peszko was retained to close the sale. The vendor's statement of adjustment credited the purchasers with $514,800. Peszko's efforts to procure the unpaid balance were unsuccessful. The plaintiffs sued Peszko in negligence, seeking $514,800. Peszko added Thompson (the plaintiffs' realtor), Anderson (the purchasers' realtor) and Machula (Anderson's consultant) as third parties. Thompson cross claimed against Anderson and Machula.

The Saskatchewan Court of Queen's Bench, in a decision reported at (2015), 466 Sask.R. 1, allowed the action. The court found that the contract called for the plaintiffs to receive $9,660,000 net of the RRAP mortgage and that they were entitled to damages of $514,800. Peszko was 80% at fault while the plaintiffs were 20% contributorily negligent. Thompson was liable for 25% of the damages ascribed to Peszko. Anderson and Machula were liable for 20% of the damages ascribed to Peszko. Thompson's cross claim against Anderson and Machula was jointly and severally allowed at 10% of Thompson's liability. Anderson appealed from the finding of his liability under the third party claim and the cross claim. The plaintiffs cross-appealed the finding that they were 20% contributorily negligent. The plaintiffs and Peszko each applied to lift the stay of execution under rule 15(1) of the Court of Appeal Rules as it affected them.

The Saskatchewan Court of Appeal, per Jackson, J.A., allowed the plaintiffs' application and dismissed Peszko's application.

Practice - Topic 8953

Appeals - Stay of proceedings pending appeal - Circumstances when stay may be lifted - The plaintiffs retained Peszko to close a real estate transaction - The vendor's statement of adjustment erroneously credited the purchasers with $514,800 - Peszko's efforts to procure the unpaid balance were unsuccessful - The plaintiffs sued Peszko in negligence, seeking $514,800 - Peszko added Thompson (the plaintiffs' realtor), Anderson (the purchasers' realtor) and Machula (Anderson's consultant) as third parties - Thompson cross claimed against Anderson and Machula - Allbright, J., found that Peszko was 80% at fault while the plaintiffs were 20% contributorily negligent - Thompson was liable for 25% of the damages ascribed to Peszko - Anderson and Machula were liable for 20% of the damages ascribed to Peszko - Thompson's cross claim against Anderson and Machula was jointly and severally allowed at 10% of Thompson's liability - Anderson appealed from the finding of his liability under the third party claim and the cross claim - The plaintiffs cross-appealed the finding that they were 20% contributorily negligent - The plaintiffs and Peszko each applied to lift the stay of execution under rule 15(1) of the Court of Appeal Rules as it affected them - The Saskatchewan Court of Appeal, per Jackson, J.A., allowed the plaintiffs' application and dismissed Peszko's application - As Peszko had not appealed his liability, there was no basis on which Peszko could resist the plaintiffs' application to lift the stay - It was arguable that the plaintiffs' claim was not stayed by Anderson's appeal - On Anderson's appeal, both Anderson and Thompson intended to argue that Allbright, J., had erred by not holding Peszko solely liable for the plaintiffs' loss - If they were permitted to proceed and were successful, that would have implications for the judgment that Peszko held against Thompson - Therefore, Peszko's application could not be allowed.

Cases Noticed:

Mayne v. Kidd, [1951] 2 D.L.R. 652 (Sask. C.A.), refd to. [para. 20].

Tekarra Properties Ltd. v. Saskatoon Drug and Stationery Co. (1985), 37 Sask.R. 286 (C.A.), refd to. [para. 24].

MacKay Construction Ltd. v. Potts Construction Co. (1983), 25 Sask.R. 81 (C.A.), refd to. [para. 24].

Bank of Nova Scotia v. Simonot et al. (1992), 100 Sask.R. 257; 18 W.A.C. 257 (C.A.), refd to. [para. 24].

Vagi et al. v. Peters (1989), 74 Sask.R. 46 (C.A.), refd to. [para. 25].

Rieger et al. v. Burgess et al. (1986), 53 Sask.R. 201 (C.A.), refd to. [para. 26].

Rieger et al. v. Burgess et al. (1986), 53 Sask.R. 202 (C.A.), refd to. [para. 26].

Rieger et al. v. Burgess et al. (1987), 53 Sask.R. 199 (C.A.), refd to. [para. 26].

Thompson v. Haley, [1998] Sask.R. Uned. 222; 1998 CanLII 12381 (C.A.), refd to. [para. 29].

Schimelfenig v. Schimelfenig (2014), 433 Sask.R. 31; 602 W.A.C. 31; 2014 SKCA 4, refd to. [para. 29].

Counsel:

Curtis Onishenko, for the applicants (Larry Braun);

Robert Kennedy, Q.C., for the applicants/respondents (Jason Peszko and Bill Roe);

Deryk Kendall, for the respondent (Bill Thompson);

No one appearing, for the respondent (Larry Machula);

No one appearing, for the respondent (Dale Anderson).

These applications were heard in chambers on August 26, 2015, by Jackson, J.A., of the Saskatchewan Court of Appeal, who delivered the following judgment on October 30, 2015.