Fairview Farms Ltd. et al. v. Putnam (A.A.) & Sons (1987) Ltd., 2000 NSCA 27

• Judge: Chipman, Freeman and Pugsley, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: February 09, 2000
• Jurisdiction: Nova Scotia
• Citations: 2000 NSCA 27;(2000), 182 N.S.R.(2d) 384 (CA)

Fairview Farms Ltd. v. Putnam (2000), 182 N.S.R.(2d) 384 (CA);

 563 A.P.R. 384

MLB headnote and full text

Temp. Cite: [2000] N.S.R.(2d) TBEd. MR.036

A.A. Putnam & Sons (1987) Limited (appellant) v. Fairview Farms Limited and M.S.D. Enterprises Limited and A.A. Putnam & Sons Investments Limited and Jean Putnam, Claudia Putnam and Lorne Putnam

(C.A. No. 157649; 2000 NSCA 27)

Indexed As: Fairview Farms Ltd. et al. v. Putnam (A.A.) & Sons (1987) Ltd.

Nova Scotia Court of Appeal

Chipman, Freeman and Pugsley, JJ.A.

February 9, 2000.

Summary:

In 1988, three brothers (through their respective companies) signed an agreement reorganizing their deceased father's farming operation. One of the brothers (Lorne) and his son (Scott) took over the dairy operation, but the agreement provided that if all or any part of the "fluid milk quota" was sold before 2003, all three brothers were entitled to 1/3 of the gross sale proceeds. The dairy farm's milk quota was actually made up of two separate quotas, the fluid milk quota (2,291 litres per day) and the market share quota (378,339 litres per year). Lorne and Scott's company sold the market share quota and took the position that the other two brothers were not entitled to share in the sale pro­ceeds, as the agreement was limited to fluid milk quota. The two brothers sought rectifi­cation of the agreement.

The Nova Scotia Supreme Court, in a judgment reported 178 N.S.R.(2d) 33; 549 A.P.R. 33, granted rectification to change "fluid milk quota" to "milk quota". It was the clear intention of all three brothers that they were to equally share in the assets of their father's farm and it was understood that all three would share in the sale of any milk quota. Lorne and Scott's company appealed.

The Nova Scotia Court of Appeal dis­missed the appeal. Rectification was the appropriate and just remedy.

Deeds and Documents - Topic 5055

Rectification - When available - Intention of parties - In 1988, three brothers (through their respective companies) signed an agreement reorganizing their deceased father's farming operation - One of the brothers (Lorne) and his son (Scott) took over the dairy operation - The agree­ment provided that if all or any part of the "fluid milk quota" was sold before 2003, all three brothers would receive 1/3 of the gross sale proceeds - The dairy farm's milk quota was actually made up of two separate quotas, the fluid milk quota (2,291 litres per day) and the market share quota (378,339 litres per year) - The market share quota was sold and Lorne took the position that his brothers were not entitled to share in the sale proceeds, as the agree­ment was limited to fluid milk quota - The trial judge granted rectifica­tion of the agreement to change "fluid milk quota" to "milk quota" - It was the clear intention of all three brothers that they were to equally share in the assets of their father's farm and it was understood that all three would share in the sale of any milk quota - The Nova Scotia Court of Appeal held that rectification was the appropriate and just remedy.

Cases Noticed:

Toneguzzo-Norvell et al. v. Savein and Burnaby Hospital, [1994] 1 S.C.R. 114; 162 N.R. 161; 38 B.C.A.C. 193; 62 W.A.C. 193, refd to. [para. 27].

Federal Business Development Bank v. Elcon Petroleum Maintenance Ltd. et al. (1983), 58 N.S.R.(2d) 246; 123 A.P.R. 246 (T.D.), refd to. [para. 71].

Dartmouth (City) v. Dartmouth Police Association (1998), 172 N.S.R.(2d) 352; 524 A.P.R. 352 (C.A.), refd to. [para. 31].

Authors and Works Noticed:

Fridman, G.H.L., The Law of Contract in Canada (3rd Ed. 1994), pp. 821, 822 [para. 29].

Counsel:

William M. Leahey, for the appellant;

Peter M. Rogers, for the respondents;

This appeal was heard on January 25, 2000, before Chipman, Freeman and Pugs­ley, JJ.A., of the Nova Scotia Court of Appeal.

On February 9, 2000, Freeman, J.A., delivered the following judgment for the Court of Appeal.