Lalani v. Chow et al., 2011 BCCA 499

JudgeNewbury, Saunders and D. Smith, JJ.A.
CourtCourt of Appeal (British Columbia)
Case DateOctober 26, 2011
JurisdictionBritish Columbia
Citations2011 BCCA 499;(2011), 313 B.C.A.C. 259 (CA)

Lalani v. Chow (2011), 313 B.C.A.C. 259 (CA);

    533 W.A.C. 259

MLB headnote and full text

Temp. Cite: [2011] B.C.A.C. TBEd. DE.015

Mumtaz Lalani and Mansurali Lalani (appellants/plaintiffs) v. Raymond Chow, Executor of the Will of Erland Walter Wenn Deceased, Trygve Shawn Wenn, Kerry Patrick Wenn, Erland William Wenn, Brandon Wenn and Sandi Whitehurst (respondents/defendants)

(CA038677; 2011 BCCA 499)

Indexed As: Lalani v. Chow et al.

British Columbia Court of Appeal

Newbury, Saunders and D. Smith, JJ.A.

December 7, 2011.

Summary:

The plaintiffs contracted with the executor of Wenn's estate to purchase a residential property. They agreed on a purchase price of $570,000 and a closing date of May 28, 2009. On May 11, 2009, three sons of Wenn commenced an action claiming that they had a binding contract with the executor to purchase the property from him for $450,000. The sons also claimed under the Wills Variation Act. The litigation caused the parties to miss the closing date. In November 2009, the plaintiffs sued for specific performance.

The British Columbia Supreme Court held that specific performance was not necessary to compensate the plaintiffs properly for the failure to execute the transfer. The court awarded damages of $43,532.76. The plaintiffs appealed.

The British Columbia Court of Appeal allowed the appeal and ordered the executor to pay the plaintiffs damages of $241,680.

Sale of Land - Topic 8568

Remedies of purchaser - Specific performance - Bars - The plaintiffs contracted with the executor of Wenn's estate to purchase a residential property - They agreed on a purchase price of $570,000 and a closing date of May 28, 2009 - On May 11, 2009, three sons of Wenn commenced an action claiming that they had a binding contract with the executor to purchase the property from him for $450,000 - The sons also claimed under the Wills Variation Act - The litigation caused the parties to miss the closing date - In November 2009, the plaintiffs sued for specific performance - The summary trial judge held that specific performance was not necessary to compensate the plaintiffs properly for the failure to execute the transfer - The property was not unique - The court awarded damages of $43,532.76 - The plaintiffs appealed - The British Columbia Court of Appeal allowed the appeal and ordered the executor to pay the plaintiffs damages of $241,680 - The court was not certain that the summary trial judge was correct in finding that the property was not unique - However, in light of the inequities to Wenn's wife as an equally innocent party, a decree of specific performance would not be appropriate even if the property was unique - Accordingly, damages were the appropriate remedy - The summary trial judge should have assessed the plaintiffs' damages with reference to the market value of the property at the date of trial - At the date of trial, the "agreed value" of the property was $810,000 - The difference between this amount and the original purchase price was $240,000, to which the plaintiffs were entitled as damages, together with their conveyance costs of $1,680 and the per diem mortgage interest they incurred to the date of trial.

Sale of Land - Topic 8755

Remedies of purchaser - Damages - In lieu of specific performance - [See Sale of Land - Topic 8568 ].

Sale of Land - Topic 8774

Remedies of purchaser - Damages - Measure of - [See Sale of Land - Topic 8568 ].

Cases Noticed:

Taberner v. Ernest & Twins Developments Inc., [2001] B.C.T.C. 367; 89 B.C.L.R.(3d) 104; 2001 BCSC 367, refd to. [para. 12].

Richter v. Simpson (1982), 37 B.C.L.R. 325 (S.C.), refd to. [para. 13].

Adderley v. Dixon (1824), 57 E.R. 239 (Ch.), refd to. [para. 17].

Heron Bay Investments Ltd. et al. v. Peel-Elder Developments Ltd. et al. (1976), 2 C.P.C. 338 (Ont. H.C.), refd to. [para. 17].

Chaulk v. Fairview Construction Ltd. (1977), 14 Nfld. & P.E.I.R. 13; 33 A.P.R. 13 (Nfld. C.A.), refd to. [para. 17].

306793 Ontario Ltd. in Trust v. Rimes (1979), 100 D.L.R.(3d) 350 (C.A.), refd to. [para. 17].

Semelhago v. Paramadevan, [1996] 2 S.C.R. 415; 197 N.R. 379; 91 O.A.C. 379, refd to. [para. 18].

Dodge (John E.) Holdings Ltd. v. 805062 Ontario Ltd., [2001] O.T.C. 803; 56 O.R.(3d) 341 (Sup. Ct.), affd. (2003), 168 O.A.C. 252; 223 D.L.R.(4th) 541 (C.A.), refd to. [para. 20].

Ali et al. v. 656527 B.C. Ltd. (2004), 201 B.C.A.C. 140; 328 W.A.C. 140; 2004 BCCA 350, refd to. [para. 20].

Silverberg v. 1054384 Ontario Ltd. et al. (2009), 266 O.A.C. 216; 2009 ONCA 698, refd to. [para. 20].

Raymond v. Raymond Estate (2011), 371 Sask.R. 260; 518 W.A.C. 260; 2011 SKCA 58, refd to. [para. 20].

Authors and Works Noticed:

Sharpe, R.J., Injunctions and Specific Performance, looseleaf, §§ 7.190 [para. 18]; 7.210 [para. 17]; 7.90 [para. 23].

Swan, John, Canadian Contract Law (2006), p. 295 [para. 16].

Counsel:

W.D. MacLeod, for the appellants;

P.W. Brown, for the respondent, R. Chow;

D.T. Hill, for the respondent, T. Wenn;

J.D. Buchan, for the respondent, S. Whitehurst.

This appeal was heard at Vancouver, British Columbia, on October 26, 2011, by Newbury, Saunders and D. Smith, JJ.A., of the British Columbia Court of Appeal. The following judgment of the Court of Appeal was delivered by Newbury, J.A., on December 7, 2011.

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17 practice notes
  • Compensation for Harm to Economic Interests
    • Canada
    • Irwin Books Remedies: The Law of Damages. Third Edition Compensatory Damages
    • June 21, 2014
    ...Trust Co of Canada v Pressure Concrete Services Ltd , [1973] 3 OR 629, aff’d (1975), 9 OR (2d) 375 (CA); Lalani v Wenn Estate , 2011 BCCA 499, where the purchasers’ damages were assessed as the market value of the property at the date of trial. 39 See Semelhago v Paramadevan , [1996] 2 SCR ......
  • Compensation for Harm to Property Interests
    • Canada
    • Irwin Books Remedies: The Law of Damages. Third Edition Compensatory Damages
    • June 21, 2014
    ...v Toronto Catholic District School Board , 2012 SCC 51; Beier v Proper Cat Construction Ltd , 2013 ABQB 351. 2 See Lalani v Wenn Estate , 2011 BCCA 499 [ Lalani ]. 3 Pitcher v Shoebottom (1970), [1971] 1 OR 106 (HCJ) [ Pitcher ]. See also Lalani , ibid. 4 Pitcher , ibid . REMEDIES: THE LAW ......
  • Specific Performance: Discretionary Defences and Considerations that Affect Discretion
    • Canada
    • Irwin Books The Law of Equitable Remedies - Third edition
    • November 18, 2023
    ...note 6. 143 See Patel , above note 134, citing Isaacs J in Gall v Mitchell (1924), 35 CLR 222 at 230 (HCA). 144 Lalani v Wenn Estate , 2011 BCCA 499. Speciic Performance: Discretionary Defences and Considerations 473 they had an existing contract with the deceased’s executor to purchase the......
  • Specific Performance: Sale of Land
    • Canada
    • Irwin Books The Law of Equitable Remedies - Third edition
    • November 18, 2023
    ...Silverberg ]; United Gulf Developments Ltd v Iskandar , 2004 NSCA 35 at para 17; Walton , above note 17 at para 4; Lalani v Wenn Estate , 2011 BCCA 499 at para 20. 25 Landmark of Thornhill Ltd v Jacobson (1995), 25 OR (3d) 628 at 636 (CA) [ Landmark of Thornhill ]; Matthew Brady Self Storag......
  • Request a trial to view additional results
7 cases
  • Beier et al. v. Proper Cat Construction Ltd. et al., (2013) 564 A.R. 357 (QB)
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • June 5, 2013
    ...refd to. [para. 72]. Fieguth v. Ackland Ltd. (1989), 59 D.L.R.(4th) 114 (B.C.C.A.), refd to. [para. 72]. Lalani v. Chow et al. (2011), 313 B.C.A.C. 259; 533 W.A.C. 259; 345 D.L.R.(4th) 310 (C.A.), refd to. [para. 78]. Lalani v. Wenn Estate - see Lalani v. Chow et al. Raymond v. Raymond Esta......
  • JANS v. JANS, 2016 SKQB 275
    • Canada
    • Court of Queen's Bench of Saskatchewan (Canada)
    • August 24, 2016
    ...properly consider whether the plaintiff has a particular attachment to the land. That principle was confirmed in Lalani v Wenn Estate, 2011 BCCA 499, 25 BCLR (5th) 137. b. Was there an oral agreement, and if so, on what terms? [212] The key witness in relation to the existence of an oral ag......
  • SHH Management Limited v. Philip, 2020 BCSC 1411
    • Canada
    • Supreme Court of British Columbia (Canada)
    • September 22, 2020
    ...the share purchase, nor that the shares of Inc. are unique: Basra v. Carhoun, [1993] B.C.J. No. 1648 at para. 31 (C.A.); Lalani v. Chow, 2011 BCCA 499 at para. 17. [270] The plaintiffs are also not entitled to restitution based on unjust enrichment because they have not discharged their onu......
  • Jones v. Centrone, 2022 BCSC 1816
    • Canada
    • Supreme Court of British Columbia (Canada)
    • October 14, 2022
    ...fair, real and substantial justification for his claim to performance must be found.  [252]    In Lalani v. Chow, 2011 BCCA 499, the Court of Appeal commented on this passage, stating at para [19]        Despite the Court’s sugge......
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10 books & journal articles
  • Compensation for Harm to Economic Interests
    • Canada
    • Irwin Books Remedies: The Law of Damages. Third Edition Compensatory Damages
    • June 21, 2014
    ...Trust Co of Canada v Pressure Concrete Services Ltd , [1973] 3 OR 629, aff’d (1975), 9 OR (2d) 375 (CA); Lalani v Wenn Estate , 2011 BCCA 499, where the purchasers’ damages were assessed as the market value of the property at the date of trial. 39 See Semelhago v Paramadevan , [1996] 2 SCR ......
  • Compensation for Harm to Property Interests
    • Canada
    • Irwin Books Remedies: The Law of Damages. Third Edition Compensatory Damages
    • June 21, 2014
    ...v Toronto Catholic District School Board , 2012 SCC 51; Beier v Proper Cat Construction Ltd , 2013 ABQB 351. 2 See Lalani v Wenn Estate , 2011 BCCA 499 [ Lalani ]. 3 Pitcher v Shoebottom (1970), [1971] 1 OR 106 (HCJ) [ Pitcher ]. See also Lalani , ibid. 4 Pitcher , ibid . REMEDIES: THE LAW ......
  • Specific Performance: Discretionary Defences and Considerations that Affect Discretion
    • Canada
    • Irwin Books The Law of Equitable Remedies - Third edition
    • November 18, 2023
    ...note 6. 143 See Patel , above note 134, citing Isaacs J in Gall v Mitchell (1924), 35 CLR 222 at 230 (HCA). 144 Lalani v Wenn Estate , 2011 BCCA 499. Speciic Performance: Discretionary Defences and Considerations 473 they had an existing contract with the deceased’s executor to purchase the......
  • Specific Performance: Sale of Land
    • Canada
    • Irwin Books The Law of Equitable Remedies - Third edition
    • November 18, 2023
    ...Silverberg ]; United Gulf Developments Ltd v Iskandar , 2004 NSCA 35 at para 17; Walton , above note 17 at para 4; Lalani v Wenn Estate , 2011 BCCA 499 at para 20. 25 Landmark of Thornhill Ltd v Jacobson (1995), 25 OR (3d) 628 at 636 (CA) [ Landmark of Thornhill ]; Matthew Brady Self Storag......
  • Request a trial to view additional results

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