Bucci Xenex Project Ltd. v. Ramasiuk, (2010) 498 A.R. 341 (QB)

• Judge: Tilleman, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: June 04, 2010
• Citations: (2010), 498 A.R. 341 (QB);2010 ABQB 389

Bucci Xenex Project Ltd. v. Ramasiuk (2010), 498 A.R. 341 (QB)

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. JN.081

Bucci Xenex Project Ltd. (plaintiff) v. Liliya Ramasiuk (defendant)

Liliya Ramasiuk (plaintiff by counterclaim) v. Bucci Xenex Project Ltd. and Chelsey Marshall (defendants by counterclaim)

(0901 02919; 2010 ABQB 389)

Indexed As: Bucci Xenex Project Ltd. v. Ramasiuk

Alberta Court of Queen's Bench

Judicial District of Calgary

Tilleman, J.

June 4, 2010.

Summary:

By an agreement and offer to purchase dated February 8, 2008, the defendant agreed to buy a brand new condominium unit along with its assigned parking stall unit and storage unit from the plaintiff project owner. The sale was never completed by the defendant. The plaintiff sued and the defendant counterclaimed.

The Alberta Court of Queen's Bench allowed the action and dismissed the counterclaim.

Fraud and Misrepresentation - Topic 2701

Misrepresentation - What constitutes misrepresentation - General - By an agreement and offer to purchase dated February 8, 2008, the defendant agreed to buy a brand new condominium unit along with its assigned parking stall unit and storage unit from the plaintiff project owner - The sale was never completed by the defendant - The plaintiff's evidence was that the contract was clear: that the closing date was projected to be the fall of 2008 and that any extension of that closing to February 6th, 2009, was wholly reasonable and within any requirement which they had to give notice beyond the 35 days of the initial expected closing in December - By contrast, the defendant's evidence was that she and Dettbarn were clearly told in February 2008 that the unit would be ready by fall 2008 meaning at the latest in December, allowing her to have a special Christmas reunion with her Belarus parents in her new condominium - When the October 2008 Grand Opening tour revealed the unit would not be ready, the defendant allowed Dettbarn to talk her into purchasing a new home and shortly thereafter, both the defendant and Dettbarn expressed the defendant's intention to the plaintiff via Marshall that the defendant would not be going through with the condominium purchase, and she wanted her deposit returned - Marshall disagreed and notwithstanding a letter by the defendant's lawyer, that decision was not overturned by the head office in Vancouver - The plaintiff sued and the defendant counterclaimed - The defendant alleged misrepresentation - The Alberta Court of Queen's Bench held that there was no misrepresentation - The court did not accept the defendant's position that oral comments bound the plaintiff to the Christmas closing date - If the fall closing was vague, it was intentionally written that way - The date was projected to be the Fall of 2008 and this was purposely done in the contract and in its surrounding documents - In short, the contract was deliberately ambiguous on the point because that was the point: the plaintiff did not know exactly when the project would close - The defendant said that Marshall promised her that the condominium would be done by Christmas 2008 and, based entirely on those oral assurances, the defendant signed the contract - That was not enough - The problem was that even if the court accepted that Marshall did hold out promises for the December completion, that did not override the clear language of clause 20 of the agreement - See paragraphs 57 to 66.

Real Property - Topic 8816

Condominiums - Purchase and sale agreements - General (incl. what constitutes) - [See Fraud and Misrepresentation - Topic 2701 ].

Real Property - Topic 8817

Condominiums - Purchase and sale agreements - Failure to close - By an agreement and offer to purchase dated February 8, 2008, the defendant agreed to buy a brand new condominium unit along with its assigned parking stall unit and storage unit from the plaintiff project owner - The sale was never completed by the defendant - The plaintiff sued - In addition to the deposit, the plaintiff sought specific performance and damages, including but not limited to increased marketing and holding costs, costs related to sales and re-marketing, potential loss on re-sale, commission costs, financing costs, managing costs, costs relating to litigation and interest - The Alberta Court of Queen's Bench allowed the plaintiff's action but limited the damages to the defendant's deposit - The deposit ($61,300) was a fair pre-calculation of damages - It was not a penalty and it was not too low - The court made this determination reading the forfeiture section of the contract, looking at the purchase price of the condominium, and from the perspective of how the parties could have viewed that amount of money on the date of signing and the date of the closure - Suing for specific performance and unliquidated damages almost ignored the exercise of assessing whether the deposit was a genuine and honest pre-estimate of the seller's damages and why that was estimated - Without more it did not automatically add or imply the seller has "whatever remedies [the seller] may have at law." - The plaintiff wrote the contract - The plaintiff phrased the deposit as a "genuine pre-estimate" of damages - If the seller wished to add a broad election to that portion of its contract (as it did by unlimiting the purchaser's remedies) it had to add it to the contract - Any limits on a remedy forced each side to fairly bear the other's risk - But the remedy clause had to be plain and unambiguous, and in the presence of a genuine pre-estimate clause and in the absence of an undisguised entire remedy clause, the deposit amount was both liquidated and it was the upper limit to the seller's damages - As a policy matter, construing the contract in this way was not onerous or inequitable because if the contract was clear and a buyer walked away, the seller only proved the buyer's breach, not harm, and in a rising market the seller got to "double dip" because the seller kept the deposit and got the increased market value of the condominium - See paragraphs 67 to 87.

Real Property - Topic 8819

Condominiums - Purchase and sale agreements - Breach - Measure of damages - [See Real Property - Topic 8817 ].

Cases Noticed:

Lozcal Holdings Ltd. v. Brassos Developments Ltd. (1980), 22 A.R. 131 (C.A.), dist. [para. 34].

Luscombe v. Mashinter (1978), 12 A.R. 590; 5 Alta. L.R.(2d) 164 (Dist. Ct.), refd to. [para. 37].

Shelson Investments Ltd. v. Durkovich (1984), 56 A.R. 367; 1984 CarswellAlta 167 (Q.B.), refd to. [para. 38].

McCulloch v. Gazelle, 1980 CarswellAlta 112 (Q.B.), refd to. [para. 38].

Sulek v. Cairns Homes Ltd., 1986 CarswellAlta 59 (Q.B.), refd to. [para. 39].

Bisset v. Wilkinson, [1927] A.C. 177 (P.C.), refd to. [para. 39].

Opron Construction Co. v. Alberta (1994), 151 A.R. 241 (Q.B.), refd to. [para. 40].

Bauer v. Bank of Montreal, [1980] 2 S.C.R. 102; 32 N.R. 191, refd to. [para. 40].

Lister (Ronald Elwyn) Ltd. et al. v. Dunlop Canada Ltd., [1982] 1 S.C.R. 726; 42 N.R. 181, refd to. [para. 40].

Guaranty Properties Ltd. et al. v. Edmonton (City) (2000), 261 A.R. 376; 225 W.A.C. 376; 2000 ABCA 215, refd to. [para. 42].

Gainers Inc. v. Pocklington Holdings Inc. (2000), 255 A.R. 373; 220 W.A.C. 373; 2000 ABCA 151, refd to. [para. 42].

Motkoski Holdings Ltd. v. Yellowhead (County) (2010), 474 A.R. 367; 479 W.A.C. 367 (C.A.), refd to. [para. 43].

Fraser v. Van Nus et al. (1987), 14 B.C.L.R.(2d) 111 (C.A.), refd to. [para. 50].

Barran v. Assef (1990), 105 A.R. 50 (Q.B.), affd. (1991), 117 A.R. 364; 2 W.A.C. 364 (C.A.), refd to. [para. 51, footnote 4].

Harchies Developments Ltd. et al. v. Ewanchuk et al. (2006), 408 A.R. 319; 2006 ABQB 672 (Master), refd to. [para. 52].

Gallen v. Butterley (1984), 9 D.L.R.(4th) 496 (B.C.C.A.), refd to. [para. 57].

James Baird Co. v. Gimbel Brothers (1933), 64 F. 2d 344 (Ct. of App., 2nd Cir.), refd to. [para. 64, footnote 6].

Dow Chemical Canada Inc. v. Shell Chemicals Canada Ltd. et al. (2010), 477 A.R. 112; 483 W.A.C. 112 (C.A.), refd to. [para. 66].

Semelhago v. Paramadevan, [1996] 2 S.C.R. 415; 197 N.R. 379; 91 O.A.C. 379, refd to. [para. 73, footnote 9].

1244034 Alberta Ltd. v. Walton International Group Inc. et al. (2007), 422 A.R. 189; 415 W.A.C. 189; 2007 ABCA 372, leave to appeal refused (2008), 387 N.R. 383; 460 A.R. 149; 462 W.A.C. 149 (S.C.C.), refd to. [para. 73, footnote 9].

Clendening et al. v. Cedarhurst Properties Ltd. (1977), 31 B.C.L.R. 153 (C.A.), refd to. [para. 82].

Bains & Sarai Holdings Ltd. v. Sahota (1985), 63 B.C.L.R. 206; 37 R.P.R. 7 (C.A.), refd to. [para. 82].

Collins (J.G.) Insurance Agencies Ltd. v. Elsley Estate, [1978] 2 S.C.R. 916; 20 N.R. 1, refd to. [para. 87].

Authors and Works Noticed:

Holmes, Oliver Wendell, The Common Law (1881), p. 302 [para. 67, footnote 7].

Counsel:

Richard J. Gilborn, Q.C. (Caron & Partners LLP), for the plaintiff;

John H. Wilson, Q.C. (Wilson Laycraft), for the defendant.

This action and counterclaim were heard on April 12-14, 2010, by Tilleman, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following reasons for judgment on June 4, 2010.