Global First Ltd. v. 1237007 Alberta Ltd. et al., 2008 ABQB 65

• Judge: Ross, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: November 13, 2007
• Citations: 2008 ABQB 65;(2008), 439 A.R. 220 (QB)

Global First Ltd. v. 1237007 Alta. (2008), 439 A.R. 220 (QB)

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. FE.098

Global First Ltd. (plaintiff) v. 1237007 Alberta Ltd. and Redwater Developments (150) Ltd. (defendants)

(0703 03313)

Pacific First Ltd. (plaintiff) v. Redwater Developments (160) Ltd. and 733263 Alberta Ltd. (defendants)

(0703 03314)

1237007 Alberta Ltd. and Redwater Developments (150) Ltd. and Redwater Developments (160) Ltd. and 733263 Alberta Ltd. (applicants) v. Global First Ltd. And Pacific First Ltd. (respondents)

(0703 04034; 2008 ABQB 65)

Indexed As: Global First Ltd. v. 1237007 Alberta Ltd. et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Ross, J.

January 25, 2008.

Summary:

The plaintiffs filed caveats against two parcels of land owned by the defendants, alleging purchasers' interests in the land under agreements for sale. The plaintiffs also sought specific performance of the agreements. The defendants sought to discharge the caveats and applied for summary dismissal of the actions for specific performance.

The Alberta Court of Queen's Bench dismissed the defendants' applications.

Contracts - Topic 3730

Performance or breach - Fundamental breach - What constitutes a fundamental breach - [See Sale of Land - Topic 8753 ].

Contracts - Topic 3742

Performance or breach - Fundamental breach - Rescission - Repudiation - [See Sale of Land - Topic 8753 ].

Contracts - Topic 4106

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

Contracts - Topic 4110

Remedies for breach - Specific performance - Sale or lease of land - [See Sale of Land - Topic 8551 ].

Practice - Topic 5719

Judgments and orders - Summary judgments - To dismiss action - [See Sale of Land - Topic 6052 ].

Practice - Topic 5720

Judgments and orders - Summary judgments - Order to proceed to trial - Terms (incl. payment to plaintiff) - The plaintiffs filed caveats against two parcels of land owned by the defendants, alleging purchasers' interests in the land under agreements for sale - The plaintiffs also sought specific performance of the agreements - The defendants sought to discharge the caveats and applied for summary dismissal of the actions for specific performance or, in the alternative, an order for security under rule 159(4) in the amount of $9,210,600 (the combined purchase prices of the two parcels) if the matter were to proceed to trial - The Alberta Court of Queen's Bench refused to dismiss the actions summarily or to discharge the caveats and ordered the plaintiffs to provide security in the combined amount of the deposits ($73,725 and $70,425) and cash to close ($1,142,010 and $1,091,730) stipulated under the two agreements - The plaintiffs had an arguable claim, but not a strong one - In the meantime, the defendants were denied the use of their resources, while the plaintiffs were not required to make payments or incur the obligations that they had agreed to under the agreements - Therefore, an order for security under rule 159(4) was appropriate - See paragraphs 30 to 39.

Real Property - Topic 7929

Title - Registration of instruments, etc. - Caveats or cautions - Setting aside - Grounds - [See Sale of Land - Topic 6052 and Sale of Land - Topic 8551 ].

Real Property - Topic 7931

Title - Registration of instruments, etc. - Caveats or cautions - Continuation of - [See Practice - Topic 5720 ].

Real Property - Topic 7936

Title - Registration of instruments, etc. - Caveats or cautions - Security for caveat - [See Practice - Topic 5720 ].

Sale of Land - Topic 6052

Completion - Time - Whether time for completion or closing was of the essence - The plaintiffs filed caveats against two parcels of land owned by the defendants, alleging purchasers' interests in the land under agreements for sale - The plaintiffs also sought specific performance of the agreements - The defendants sought to discharge the caveats and applied for summary dismissal of the actions for specific performance - At issue was whether the time for closing had expired - The closing dates had been extended twice by the defendants in letters that stated that time remained of the essence - The Alberta Court of Queen's Bench dismissed the defendants' applications - The likely result on these facts was that time remained of the essence for the extended dates and the agreements and that the plaintiffs' interests under them had expired - This was because the defendants had specified on each extension that time remained of the essence - However, an alternative line of cases indicated that all of the circumstances had to be examined to determine whether the extensions amounted to a waiver of the essentiality of time or whether any conduct by the defendants would make it unfair or unjust for them to rely on the breach of time clause - Here, facts that might be relevant, such as whether the continued negotiations between the parties related to the original agreements, were in dispute - Thus, it was inappropriate to dismiss the plaintiffs' claims summarily or discharge their caveats on that ground - See paragraphs 14 to 21.

Sale of Land - Topic 6062

Completion - Time - Time of the essence - Waiver of - [See Sale of Land - Topic 6052 ].

Sale of Land - Topic 8551

Remedies of purchaser - Specific performance - When available - The plaintiffs filed caveats against two parcels of land owned by the defendants, alleging purchasers' interests in the land under agreements for sale - The plaintiffs also sought specific performance of the agreements - The defendants sought to discharge the caveats and applied for summary dismissal of the actions for specific performance - The defendants asserted that, even if the plaintiffs' actions were not summarily dismissed, the caveats should be discharged because, at best, the plaintiffs were entitled to a damages award rather than specific performance where the plaintiffs' interest in the land was purely commercial - The plaintiffs asserted that specific performance was an available remedy because the land was uniquely suited to their plans for a mixed-use master plan community requiring 400 acres with long highway frontage in an area that was expected to undergo major energy-related development and where there was no other property of comparable size within the town - The Alberta Court of Queen's Bench refused to discharge the caveats - While further evidence was necessary to establish the uniqueness of the property, the plaintiffs had shown that their entitlement to specific performance was a triable issue - See paragraphs 23 to 29.

Sale of Land - Topic 8753

Remedies of purchaser - Damages - Breach of nonfundamental term - Damages only - The plaintiffs filed caveats against two parcels of land owned by the defendants, alleging purchasers' interests in the land under agreements for sale - The plaintiffs also sought specific performance of the agreements - The defendants sought to discharge the caveats and applied for summary dismissal of the actions for specific performance - At issue was whether the defendants' failure to provide an engineer's working documents regarding the land justified the plaintiffs' refusal to accept the tendered closing documents - The plaintiffs asserted that the failure to provide the documents was a material breach - The defendants disputed whether the agreements included the purchase of the engineer's documents but, if they were included, the plaintiffs were obligated to close notwithstanding any default regarding the documents and to pursue a separate claim for damages - The Alberta Court of Queen's Bench agreed that, at most, the plaintiffs were entitled to damages for the alleged breach - The documents were not necessary for the transfer or the contemplated use of the land - They could be replaced and the cost of doing so would form the basis for a damages award - The failure to perform a subsidiary part of a contract supported an action for damages, but did not justify rescission or excuse the failure to pay - See paragraph 22.

Cases Noticed:

Assaly (Thomas C.) Corp. v. Alberta Industrial Developments Ltd. (1982), 41 A.R. 436 (C.A.), refd to. [para. 12].

Ram v. Jinnah (1982), 39 A.R. 40 (Q.B. Master), refd to. [para. 12].

Vintage Fine Homes Inc. v. McCallum (2007), 414 A.R. 363; 2007 ABQB 146, consd. [para. 15].

Beacon Industrial Development Corp. v. G.C. Farm Supply Ltd. (1981), 123 D.L.R.(3d) 467 (Alta. Q.B.), consd. [para. 56].

Tanouye v. KJM Developments Ltd. (1980), 25 A.R. 200 (T.D.), consd. [para. 16].

Landbank Minerals Ltd. v. Wesgeo Enterprises Ltd. and Tri-Link Resources Ltd. (1981), 30 A.R. 300 (Q.B.), consd. [para. 19].

Barclay v. Messenger (1874), 30 L.T. 351, refd to. [para. 19].

Bogue Electric of Canada Ltd. v. Crothers Manufacturing Ltd., [1961] S.C.R. 108, refd to. [para. 19].

Hanson v. Cameron, [1949] 1 D.L.R. 16 (S.C.C.), refd to. [para. 19].

Adjala Properties Ltd. v. Sundre (Town) (1981), 28 A.R. 379 (C.A.), refd to. [para. 19].

Digger Excavating (1983) Ltd. v. Bowlen (2001), 286 A.R. 291; 253 W.A.C. 291 (C.A.), refd to. [para. 20].

1244034 Alberta Ltd. v. Walton International Group Inc. et al. (2007), 422 A.R. 189; 415 W.A.C. 189; 2007 ABCA 372, refd to. [para. 24].

11 Suntract Holdings Ltd. v. Chassis Service & Hydraulics Ltd. (1997), 49 O.T.C. 112; 36 O.R.(3d) 328 (Gen. Div.), refd to. [para. 28].

Dodge (John E.) Holdings v. 805062 Ontario Ltd., [2001] O.T.C. 803; 56 O.R.(3d) 341 (Sup. Ct.), refd to. [para. 28].

Bull HN Information Systems Ltd. v. L.I. Business Solutions Inc. (1993), 41 A.C.W.S.(3d) 50 (Alta. C.A.), refd to. [para. 31].

Swiderski v. Meer et al., [2004] A.R. Uned. 114; 2004 ABQB 30, refd to. [para. 31].

Black v. Sagriff & Associates Inc. et al., [2000] A.R. Uned. 188; 2000 ABQB 247 (Master), refd to. [para. 31].

Ghermezian v. Corey Developments Inc. et al. (2001), 302 A.R. 47; 2001 ABQB 914, refd to. [para. 32].

Gill v. Cole, [2000] A.R. Uned. 525; 2000 ABQB 977 (Master), refd to. [para. 34].

Khudabux v. Jina, [1995] A.J. No. 191 (Q.B.), refd to. [para. 35].

Authors and Works Noticed:

Di Castri, Victor, The Law of Vendor and Purchaser (3rd Ed. 1998), p. 14-11 [para. 22].

Counsel:

Ellery C. Lew (Witten LLP), for the applicants/defendants;

Graham McLennan (McLennan Ross LLP), for the respondents/plaintiffs.

These applications were heard on November 13, 2007, by Ross, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for decision on January 25, 2008.