Lisitza Estate et al. v. Van Oirschot, 2003 SKQB 162

• Judge: Goldenberg, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: April 04, 2003
• Jurisdiction: Saskatchewan
• Citations: 2003 SKQB 162;(2003), 234 Sask.R. 1 (QB)

Lisitza Estate v. Van Oirschot (2003), 234 Sask.R. 1 (QB)

MLB headnote and full text

Temp. Cite: [2003] Sask.R. TBEd. AP.067

Adrienne Banzet and Ardith Breton, Executrices of the Estate of Edward Lisitza, deceased and Lisitza Seed Farm Ltd. (plaintiffs/defendants by counter-claim) v. Bert Van Oirschot and Jason Van Oirschot (defendants/plaintiffs by counter-claim)

(2000 Q.B.G. No. 46; 2003 SKQB 162)

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

Saskatchewan Court of Queen's Bench

Judicial Centre of Melfort

Goldenberg, J.

April 4, 2003.

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 an agreement for sale and possession of the farmland. 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 determined the issues accordingly.

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 Saskatchewan Court of Queen's Bench 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 - Lisitza's estate could not rely on a disclaimer clause in the agreement excluding liability for all representations outside the terms of the contract - See paragraphs 199 to 223.

Fraud and Misrepresentation - Topic 305

Fraudulent misrepresentation - Actions - Defences - Exclusionary clauses - [See Fraud and Misrepresentation - Topic 6 ].

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 - Lisitza's estate could not rely on a disclaimer clause in the agreement excluding liability for all representations outside the terms of the contract - See paragraphs 224 to 230.

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 ].

Fraud and Misrepresentation - Topic 2824

Misrepresentation - Defences - Agreement excluding liability - [See Fraud and Misrepresentation - Topic 6 and Fraud and Misrepresentation - Topic 2508 ].

Sale of Land - Topic 942

The contract - Conditions and warranties - Effect of - [See Fraud and Misrepresentation - Topic 6 and Fraud and Misrepresentation - Topic 2508 ].

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 farmland - 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 - The Saskatchewan Court of Queen's Bench 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 - See paragraphs 272 to 287.

Cases Noticed:

Purdy v. Olson, 1996 CarswellSask 164 (Q.B.), refd to. [para. 10].

Hill v. Hill (1990), 88 Sask.R. 170 (Q.B.), refd to. [para. 10].

Hannah v. Pollard (1991), 91 Sask.R. 67 (Q.B.), refd to. [para. 10].

Rana (Salim) Inc. et al. v. Maduck, [2000] 10 W.W.R. 70; 196 Sask.R. 54 (Q.B.), refd to. [para. 172].

Perchino Holdings Ltd. v. Rose Beverages 1964 Ltd. and Gill (1987), 62 Sask.R. 270 (Q.B.), refd to. [para. 173].

Milliken v. Young, [1929] 1 W.W.R. 213; [1929] 3 D.L.R. 64; 23 Sask. L.R. 370 (C.A.), refd to. [para. 173].

Wells v. Blain et al., [1927] 1 D.L.R. 687 (Sask. C.A.), refd to. [para. 174].

Eco-Zone Engineering Ltd. v. Grand Falls-Windsor (Town) (2001), 5 C.L.R.(3d) 55 (Nfld. C.A.), refd to. [para. 175].

Knight v. Huntington (2000), 4 B.L.R.(3d) 95 (Sask. Q.B.), affd. (2001), 14 B.L.R.(3d) 202 (Sask. C.A.), refd to. [para. 219].

Hasham v. Kingston (1991), 54 O.A.C. 249; 4 O.R.(3d) 514 (Div. Ct.), refd to. [para. 222].

1018429 Ontario Inc. v. Fea Investments Ltd. (1999), 125 O.A.C. 88; 179 D.L.R.(4th) 268 (C.A.), refd to. [para. 222].

Queen (D.J.) v. Cognos Inc., [1993] 1 S.C.R. 87; 147 N.R. 169; 60 O.A.C. 1, refd to. [para. 225].

Alvin's Auto Service Ltd. v. Clew Holdings Ltd. et al., [1997] 9 W.W.R. 5; 157 Sask.R. 278 (Q.B.), refd to. [para. 226].

Mlazgar v. Brick (1999), 185 Sask.R. 178 (Q.B.), refd to. [para. 227].

Harvie et al. v. Gibbons (1980), 109 D.L.R.(3d) 559 (Alta. C.A.), refd to. [para. 237].

Sunnyside Nursing Home v. Builders Contract Management Ltd. et al., [1990] 5 W.W.R. 289; 83 Sask.R. 294 (C.A.), refd to. [para. 269].

Frobisher Ltd. v. Canadian Pipelines & Petroleums Ltd. (1957), 23 W.W.R. (N.S.) 241; 10 D.L.R.(2d) 338 (Sask. C.A.), refd to. [para. 269].

Barber and Barber v. Glen and Glen, [1987] 6 W.W.R. 689; 59 Sask.R. 49 (C.A.), refd to. [para. 287].

Ram v. Saskatchewan Government Insurance (1989), 75 Sask.R. 310; 57 D.L.R.(4th) 616 (Q.B.), refd to. [para. 287].

Bailey et al. v. Saskatchewan Registered Nurses' Association, [1996] 7 W.W.R. 751; 145 Sask.R. 133 (Q.B.), revd. (1996), 148 Sask.R. 156; 134 W.A.C. 156 (C.A.), refd to. [para. 290].

Hassler v. Moose Mountain District Health Board, [2001] S.J. No. 634 (Q.B.), refd to. [para. 291].

Authors and Works Noticed:

Canadian Encyclopedic Digest (Western) (3rd Ed.), vol. 7, title 34, § 524, p. 460 [para. 194].

Canadian Encyclopedic Digest (Western) (3rd Ed.), vol. 30, A, title 130, § 77, generally [para. 238].

Counsel:

Grant Carson, for the plaintiffs/defendants by counter-claim;

Lloyd M. Balicki, Q.C., for the defendants/plaintiffs by counter-claim.

This action and counter-claim was heard before Goldenberg, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Melfort, who delivered the following decision on April 4, 2003.