Lisitza Estate et al. v. Van Oirschot, 2004 SKCA 21

• Judge: Vancise, Gerwing and Lane, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: February 12, 2004
• Jurisdiction: Saskatchewan
• Citations: 2004 SKCA 21;(2004), 241 Sask.R. 300 (CA)

Lisitza Estate v. Van Oirschot (2004), 241 Sask.R. 300 (CA);

    313 W.A.C. 300

MLB headnote and full text

Temp. Cite: [2004] Sask.R. TBEd. MR.047

Adrienne Banzet and Ardith Breton Executrices of the Estate of Edward Lisitza, deceased and Lisitza Seed Farm Ltd. (appellants) v. Bert Van Oirschot and Jason Van Oirschot (respondents)

(No. 741; 2004 SKCA 21)

Indexed As: Lisitza Estate et al. v. Van Oirschot

Saskatchewan Court of Appeal

Vancise, Gerwing and Lane, JJ.A.

February 12, 2004.

Summary:

Lisitza and his company agreed to sell a farm to the Van Oirschots. Lisitza died. His estate sued the Van Oirschots seeking cancellation of the agreement for sale and possession of the farm land. The Van Oirschots claimed a right of set off and counterclaimed for damages for, inter alia, fraudulent and negligent misrepresentations by Lisitza.

The Saskatchewan Court of Queen's Bench, in a decision reported at 234 Sask.R. 1, determined the issues accordingly. The estate appealed. The Van Oirschots cross-appealed.

The Saskatchewan Court of Appeal allowed the appeal in part and dismissed the cross-appeal.

Fraud and Misrepresentation - Topic 6

Fraudulent misrepresentation - What constitutes - The Van Oirschots agreed to purchase a farm from Lisitza (now deceased) - The Van Oirschots alleged that Lisitza made misrepresentations to them respecting the number of cultivated acres and as to the quarter sections of land being in summerfallow - The trial judge held that the misrepresentations were fraudulent - Lisitza knew that they were false or was reckless respecting the representations - The representations were important factors for the Van Oirschots in determining the price that they were willing to pay for the land - The representations induced them to enter into the agreement - The Saskatchewan Court of Appeal dismissed the estate's appeal - See paragraph 13.

Fraud and Misrepresentation - Topic 2508

Misrepresentation - Negligent misrepresentation - The Van Oirschots agreed to purchase a farm from Lisitza (now deceased) - The Van Oirschots alleged that Lisitza made misrepresentations to them respecting the number of cultivated acres and as to the quarter sections of land being in summerfallow - The Saskatchewan Court of Queen's Bench opined that the misrepresentations were negligent - The parties had a unique relationship of vendor and purchaser without the assistance of realtors - This constituted a special relationship - The representations were fundamentally untrue but relied on by the Van Oirschots in a reasonable manner to their detriment as they paid more for the land than they would have if the proper facts were represented to them - The Saskatchewan Court of Appeal dismissed the estate's appeal - See paragraph 13.

Fraud and Misrepresentation - Topic 2533

Misrepresentation - Elements - Special relationships - [See Fraud and Misrepresentation - Topic 2508 ].

Fraud and Misrepresentation - Topic 2567

Misrepresentation - Representations - Particular statements - Quantity of land - [See Fraud and Misrepresentation - Topic 2508 ].

Practice - Topic 7030

Costs - Party and party costs - Entitlement to - Where success or fault divided - [See Practice - Topic 7110.1 ].

Practice - Topic 7110.1

Costs - Party and party costs - Special orders - Increase in scale of costs - Conduct of opposite party - A trial judge held that the plaintiffs action, subject to set-off, should be granted - Despite the divided success of the parties, the trial judge awarded costs in double the usual quantum (column 4) - The Saskatchewan Court of Appeal held that there was no basis on which punitive costs of this nature should be granted, where there was divided success and some of the difficulty in the proceedings could be attributed to each side - The appropriate award would have been not to award costs to either party - See paragraphs 17 to 19.

Sale of Land - Topic 8504

Remedies of purchaser - Fraud - What constitutes fraud - [See Fraud and Misrepresentation - Topic 6 ].

Sale of Land - Topic 8903

Remedies of purchaser - Relief from forfeiture - When available - Lisitza and his company agreed to sell a farm to the Van Oirschots - Lisitza died - His estate sued the Van Oirschots seeking cancellation of an agreement for sale and possession of the farm land - Questions arose as to what was payable under an offer to purchase and the disputed agreement of sale and on what sum interest was being charged and at what rate - A provision provided that overdue payments would bear interest at the Royal Bank of Canada's prime commercial rate plus 5% - The trial judge exercised its power to relieve against penalties (Queen's Bench Act, s. 13) - It would not have been possible to resolve the matter without litigation - It would be inequitable for the Van Oirschots to be required to pay penalty interest pending a determination by the courts as to the proper amount outstanding - The Saskatchewan Court of Appeal dismissed the estate's appeal - Relief from forfeiture was a discretionary remedy - See paragraph 11.

Cases Noticed:

Siemens et al. v. Bawolin et al., [2002] 11 W.W.R. 246; 219 Sask.R. 282; 272 W.A.C. 282 (C.A.), refd to. [para. 18, footnote 8].

Marcine v. Marcine (2002), 166 Man.R.(2d) 251; 278 W.A.C. 251; 219 D.L.R. (4th) 22 (C.A.), refd to. [para. 19, footnote 9].

Prinzo v. Baycrest Centre for Geriatric Care (2002), 161 O.A.C. 302; 215 D.L.R. (4th) 31 (C.A.), refd to. [para. 19, footnote 9].

Counsel:

Grant Carson, for the appellants;

Lloyd M. Balicki, Q.C., for the respondents.

This appeal and cross-appeal were heard on February 12, 2004, before Vancise, Gerwing and Lane, JJ.A., of the Saskatchewan Court of Appeal. Gerwing, J.A., released the decision of the court orally on that date and released written reasons on February 23, 2004.