Cross Creek Timber Traders Inc. v. St. John Terminals Ltd., 2002 NBQB 79

• Judge: Glennie, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: February 28, 2002
• Jurisdiction: New Brunswick
• Citations: 2002 NBQB 79;(2002), 248 N.B.R.(2d) 201 (TD)

Cross Creek Timber v. St. John (2002), 248 N.B.R.(2d) 201 (TD);

    248 R.N.-B.(2e) 201; 646 A.P.R. 201

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[French language version follows English language version]

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Temp. Cite: [2002] N.B.R.(2d) TBEd. MR.005

Cross Creek Timber Traders Inc. (plaintiff) v. St. John Terminals Ltd. (defendant)

(S/C/825/2000, 2002 NBQB 79)

Indexed As: Cross Creek Timber Traders Inc. v. St. John Terminals Ltd.

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Saint John

Glennie, J.

February 28, 2002.

Summary:

St. John Terminals Ltd. (Terminals) owned approximately 800 acres of heavily wooded land near Musquash, New Bruns­wick, which Cross Creek Timber Traders Inc. was inter­ested in purchasing. Cross Creek, through a real estate agent, Oland, made an offer to purchase the property for $300,000. The offer was countered by Ter­minals including two additional terms or conditions. Cross Creek accepted the ad­ditional terms and gave Oland a deposit cheque. Oland notified Terminals that there was a deal, but Ter­minals denied that a deal was reached, rely­ing on a number of tech­nical arguments. Cross Creek tendered the balance of the purchase price on the closing date, but Ter­minals refused to accept the funds. Cross Creek sued Terminals, seeking specific performance of the purchase and sale agree­ment.

The New Brunswick Court of Queen's Bench, Trial Division, held that there was a binding agreement of purchase and sale between the parties but that Terminals' actions on the date the deposit was paid and thereafter constituted an anticipatory breach of the agreement. As a consequence of the anticipatory breach, Cross Creek had no obligation to tender; however in any event, a proper tender did in fact take place on the closing date. The court held that Cross Creek was entitled to specific performance of the purchase and sale agreement plus damages, if any, caused by Terminals failure to close on the closing date.

Sale of Land - Topic 1653

The contract - Offer and acceptance - Counter-offer - What constitutes - The New Brunswick Court of Queen's Bench, Trial Division, stated that "a counter-offer may be constituted by a vendor altering a potential purchaser's signed offer to pur­chase in a material particular and for­ward­ing the document to the purchaser for the initialling of the changes." - See para­graph 127.

Sale of Land - Topic 1653

The contract - Offer and acceptance - Counter-offer - What constitutes - Cross Creek Timber Ltd. offered to purchase a property from St. John Terminals Ltd. (Terminals) - The offer was countered by Terminals including two additional terms; namely that a portion of the property was not included because it had been sold to Ducks Unlimited and that the property was being sold as farmland - The New Bruns­wick Court of Queen's Bench, Trial Divi­sion, held that the addition of the term regarding farm land created a counter-offer because it in effect increased or potentially increased the purchase price because of tax liability - The Ducks Unlimited provision was informational and would not, if it was the only additional condition, have consti­tuted a counter-offer - Further, since Ter­minals did not complete the section of the purchase and sale agreement regarding a method for acceptance of the counter-offer, then the counter-offer could be accepted in such a manner as could be implied from the nature of the counter-offer - See para­graphs 127 and 147 to 178.

Sale of Land - Topic 1653

The contract - Offer and acceptance - Counter-offer - What constitutes - Cross Creek Timber Ltd., through its real estate agent, Oland, offered to purchase a prop­erty for $300,000 from St. John Terminals Ltd. (Terminals) - The offer was countered by Terminals including two additional terms or conditions - Terminals also signed a fee agreement wherein it was agreed that the buyer's deposit would be held in trust by the company Oland worked for - Cross Creek accepted the counter-offer by initial­izing the additional terms and gave a de­posit cheque to Oland - Oland then noti­fied Terminals that there was a deal - Terminals claimed that there was no deal relying on a number of tech­nical argu­ments - The New Brunswick Court of Queen's Bench, Trial Division, held that Oland communicated Cross Creek's accept­ance of Terminals' counter-offer to Ter­minals prior to any withdrawal of the counter-offer - The counter-offer accord­ingly became a binding contract - See paragraphs 137 and 147 to 178.

Sale of Land - Topic 1677

The contract - Offer and acceptance - Ac­ceptance - What constitutes - Cross Creek Timber Ltd., through its real estate agent, Oland, offered to purchase a proper­ty from St. John Terminals Ltd. (Ter­minals) - The offer was countered by Terminals includ­ing two additional terms or conditions; namely that a portion of the property was not included because it had been sold to Ducks Unlimited and that the property was being sold as farmland - Cross Creek accepted the counter-offer by initializing the additional terms and gave a deposit cheque to Oland - Oland then notified Terminals that there was a deal - Ter­minals claimed that there was no deal - The New Brunswick Court of Queen's Bench, Trial Division, held that the addi­tion of the term regarding the sale of farm land created a counter-offer - However because Terminals did not specifically set forth a manner in which the counter-offer was to be accepted by Cross Creek, Ter­minals impliedly waived the necessity for com­munication of the acceptance directly to it - Therefore immediately upon accep­tance by Cross Creek, by initialling the changes and delivering the deposit cheque to Oland, a complete and binding contract was formed - See paragraphs 127 to 178.

Sale of Land - Topic 1677

The contract - Offer and acceptance - Ac­ceptance - What constitutes - The New Brunswick Court of Queen's Bench, Trial Division, stated that "where no particular mode of acceptance is expressly required, an offer or a counter-offer can be accepted in such manner as may be implied by the nature of such offer or counter-offer." - See paragraph 173.

Sale of Land - Topic 3471

Contract - Discharge - Repudiation - Anti­cipatory breach - General - The New Brunswick Court of Queen's Bench, Trial Division, stated that an anticipatory breach of an agreement relieves the non-breach­ing party of the obligation to tender - See paragraph 132.

Sale of Land - Topic 3471

Contract - Discharge - Repudiation - Anti­cipatory breach - General - Cross Creek Timber Ltd., through its real estate agent, Oland, offered to purchase a prop­erty for $300,000 from St. John Terminals Ltd. (Terminals) - The offer was countered by Terminals including two additional terms or conditions - Terminals also signed a fee agreement wherein it was agreed that the buyer's deposit would be held in trust by the company Oland worked for - Cross Creek accepted the counter-offer by initial­izing the additional terms and gave a de­posit cheque to Oland - Oland then noti­fied Terminals that there was a deal - Terminals claimed that there was no deal relying on a number of tech­nical argu­ments - The New Brunswick Court of Queen's Bench, Trial Division, held that there was a valid and binding agreement of purchase and sale - Ter­minals triggered an anticipatory breach of the agreement when it started the process of trying to get out of the deal - The court held that Terminals' technical arguments failed when analyzed in the context of Terminals' failure to act in good faith - See paragraphs 126 to 146.

Sale of Land - Topic 6152

Completion - Tender of purchase price - Requirement of tender - [See first Sale of Land - Topic 3471 ].

Sale of Land - Topic 6152

Completion - Tender of purchase price - Requirement of tender - Cross Creek Tim­ber Ltd., through its real estate agent, Oland, offered to purchase a property for $300,000 from St. John Terminals Ltd. (Terminals) - The offer was countered by Terminals including two additional terms or conditions - Cross Creek accepted the counter-offer by initializing the additional terms and gave a deposit cheque to Oland - Oland then notified Terminals that there was a deal - Terminals immediately claimed that there was no deal - Never­theless, on the closing date, Cross Creek tendered the balance of the purchase price - The New Brunswick Court of Queen's Bench, Trial Division, held that there was a valid and binding purchase and sale agreement, but Terminals had triggered an anticipatory breach of the agreement from the date the deposit was made and, there­fore, Cross Creek was relieved of any requirement to tender - However in any event, a proper tender did in fact take place on the closing date - See paragraphs 131 to 180.

Sale of Land - Topic 7408

Remedies - General - Specific perform­ance - When available - [See Sale of Land - Topic 8551 ].

Sale of Land - Topic 8551

Remedies of purchaser - Specific per­for­mance - When available - Cross Creek Timber Ltd., through its real estate agent, Oland, offered to purchase a property from St. John Terminals Ltd. (Terminals) - The offer was countered by Terminals includ­ing two additional terms - Cross Creek accepted the counter-offer by initializing the additional terms and gave a deposit cheque to Oland - Oland then notified Terminals that there was a deal but Ter­minals disagreed - Nevertheless, on the closing date, Cross Creek tendered the balance of the purchase price - The New Brunswick Court of Queen's Bench, Trial Division, held that there was a valid and binding purchase and sale agreement, but Terminals had triggered an anticipatory breach of the agreement from the date the deposit was made and, therefore, Cross Creek was relieved of any requirement to tender - However, a proper tender did in fact take place on the closing date - Cross Creek was entitled to specific performance where the property was unique and a sub­stitute property was not readily avail­able, plus damages for the failure to close - See paragraphs 1 to 180.

Sale of Land - Topic 8756

Remedies of purchaser - Damages - In addition to specific performance - [See Sale of Land - Topic 8551 ].

Cases Noticed:

Singh v. Chung (1995), 60 B.C.A.C. 191; 99 W.A.C. 191 (C.A.), refd to. [para. 127].

Parkette Apartments Ltd. v. Masternak (1965), 50 D.L.R.(2d) 577 (Ont. H.C.), refd to. [para. 127].

International Corona Resources Ltd. v. LAC Minerals Ltd., [1989] 2 S.C.R. 574; 101 N.R. 239; 36 O.A.C. 57; 61 D.L.R.(4th) 14; 35 E.T.R. 1; 44 B.L.R. 1, refd to. [para. 130].

Crawford v. Agricultural Development Board, [1997] N.B.J. No. 368; [1997] Law Post N.B.C. No. 4280 (C.A.), refd to. [para. 130].

Valley Equipment Ltd. v. John Deere Ltd. (2000), 223 N.B.R.(2d) 264; 572 A.P.R. 264 (T.D.), refd to. [para. 130].

Pompeani v. Bonik Inc. et al. (1997), 104 O.A.C. 144; 35 O.R.(3d) 417 (C.A.), refd to. [para. 132].

MacIntyre et al. v. Commerce Capital Mortgage Corp. et al. (1981), 34 O.R.(2d) 104 (H.C.), refd to. [para. 132].

Syed v. McArthur (1984), 46 O.R.(2d) 593 (H.C.), refd to. [para. 143].

Whittall v. Kour (1969), 8 D.L.R.(3d) 163 (B.C.C.A.), refd to. [para. 143].

Lloyd v. Howard, [1942] 3 D.L.R. 443, refd to. [para. 148].

Goodfellow v. Drschiwiski and Drschi­wiski (1979), 18 A.R. 561; 1979 Cars­wellAlta 410 (C.A.), leave to appeal refused (1980), 31 N.R. 272; 22 A.R. 53 (S.C.C.), refd to. [para. 149].

Whitehall Estates Ltd. v. McCallum (1975), 63 D.L.R.(3d) 320 (B.C.C.A.), refd to. [para. 152].

Ryder and Wizenberg v. Medic and Medic (1976), 2 A.R. 284; 1 Alta. L.R.(2d) 235 (C.A.), refd to. [para. 154].

Humble Investments Ltd. v. Skalbania (N.M.) Ltd., Embassy Estates Ltd. and Cenaiko Enterprises Ltd. (1983), 22 Sask.R. 81; 1983 CarswellSask 259, refd to. [para. 162].

Cowie v. Richards, 1960 CarswellNB 26; 50 M.P.R. 107 (N.B.C.A.), refd to. [para. 164].

Shelson Investments Ltd. v. Durkovich, 1984 CarswellAlta 167; 56 A.R. 367 (Q.B.), refd to. [para. 170].

532782 B.C. Inc. v. Republic Financial Ltd., [2001] A.R. Uned. 207; 2001 Cars­wellAlta 912 (Q.B.), refd to. [para. 179].

King et al. v. Urban & Country Transport Ltd. et al. (1973), 1 O.R.(2d) 449 (C.A.), refd to. [para. 179].

Waddell v. Hornby, [1982] 2 W.W.R. 589; 17 Sask.R. 49 (Q.B.), refd to. [para. 179].

Semelhago v. Paramadevan, [1996] 2 S.C.R. 415; 197 N.R. 379; 91 O.A.C. 379; 136 D.L.R.(4th) 1, refd to. [para. 191].

11 Suntrack Holdings Ltd. v. Chassis Service Anphranzan Hydrolics Ltd. 1997, CarswellOnt 4804, refd to. [para. 202].

Dodge (John E.) Holdings Ltd. v. 805062 Ontario Ltd., [2001] O.T.C. Uned. C51; 2001 CarswellOnt 3984 (Sup. Ct.), refd to. [para. 205].

Authors and Works Noticed:

Chitty on Contracts (27th Ed.), vol. 1, para. 2-063, p. 128 [para. 147].

Clark, Donald H., Will That Be Per­formance ... Or Cash?: Semelhago v. Paramadevan and the Notion of Equivalence (1999), 37 Alta. L. Rev. (No. 3), pp. 589 to 619 [para. 198].

Da Silva, Orlando, The Supreme Court of Canada's Lost Opportunity: Semelhago v. Paramadevan, A Case Comment (1998), 23 Queen's L.J. 475, generally [para. 194].

Di Castri, Victor, The Law of Vendor and Purchaser (3rd Ed.), para. 177 [paras. 127, 167]; para. 615 [paras. 132, 146].

Fridman, The Law of Contract in Canada (3rd Ed.), p. 600 [para. 144].

Sharpe, Robert J., Injunctions and Specific Performance, generally [para. 192]; p. 8-4 [para. 193].

Counsel:

Jacob J. van der Laan, for Cross Creek Timber Traders Inc.;

Duane M. McAfee, for St. John Terminals Ltd.

This matter was heard August 29 and 30, 2001, before Glennie, J., of the New Bruns­wick Court of Queen's Bench, Trial Divi­sion, Judicial District of Saint John, who delivered the following decision on February 28, 2002.