Marthaller v. Lansdowne Equity Venture Ltd., (1997) 200 A.R. 226 (CA)

• Judge: Côté, O'Leary and Picard, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: July 09, 1997
• Citations: (1997), 200 A.R. 226 (CA)

Marthaller v. Lansdowne Equity (1997), 200 A.R. 226 (CA);

    146 W.A.C. 226

MLB headnote and full text

Temp. Cite: [1997] A.R. TBEd. JL.045

Margaret Marthaller and Leroy Marthaller (plaintiffs/respondents) v. Lansdowne Equity Venture Ltd., operating under the firm name and style of Canadian Heritage Homes and the said Canadian Heritage Homes (defendants/appellants)

(Appeal No. 96-16621)

Indexed As: Marthaller v. Lansdowne Equity Venture Ltd.

Alberta Court of Appeal

Côté, O'Leary and Picard, JJ.A.

July 9, 1997.

Summary:

The plaintiffs sued for damages, re­scission of their contract with the defendant and the return of a $9,700 deposit paid by the plain­tiffs to the defendant. The plaintiffs believed that they were purchasing a mobile home. In fact, they signed an agreement to rent with an option to purchase.

The Alberta Court of Queen's Bench, in a judgment reported 185 A.R. 355, found the defendant liable for negligent misrepresenta­tion and ordered that the deposit be returned. The defendant appealed.

The Alberta Court of Appeal allowed the appeal and directed a new trial.

Contracts - Topic 1598

Formation of contract - Mistake, misun­derstanding or misrepresentation - Unilat­eral mistake - The plaintiffs, allegedly believing they purchased a mobile home, signed a lease/option agreement - The trial judge, although finding that the plaintiffs failed to exercise reasonable care in sign­ing the document, found the defendant liable for negligently misrepresenting to the plaintiffs that they were purchasing the mobile home and failing to let them know that the purchase agreement had been changed to a lease/option agreement because financing had been refused - The court ordered the plaintiffs' $9,700 deposit returned - The Alberta Court of Appeal allowed the defendant's appeal and ordered a new trial - Assuming that negligent misrepresentation existed, the trial judge erred in failing to adequately address the issues of causation and inducement - Fur­ther, the case was decided on blanket credibility findings after an unfair trial which wrongly excluded the defendant's legitimate evidence and improperly restricted the defendant's right to cross-examination.

Contracts - Topic 1602

Formation of contract - Mistake, misun­derstanding or misrepresentation - Non est factum - Bar - Carelessness or negligence - [See Contracts - Topic 1598 ].

Contracts - Topic 1604

Formation of contract - Mistake, misun­derstanding or misrepresentation - Mis­representation - What constitutes - [See Contracts - Topic 1598 ].

Contracts - Topic 4195

Remedies for breach - Rescission - Grounds - Negligent misrepresentation - [See Contracts - Topic 1598 ].

Evidence - Topic 457

Functions of counsel, judge and jury - Counsel - Opening and closing statements - At a trial before judge alone, the plain­tiffs' counsel was permitted to make a "full and almost inflammatory opening address" - The trial judge declined the defendant's counsel's request to speak for a minute, without affording counsel an opportunity to state what he wanted to say or why he wanted to say it - The Alberta Court of Appeal stated that "the law imposes no such absolute bar to an early defendant's opening statement, still less other sub­missions where there is no jury" - See paragraph 45.

Evidence - Topic 4701

Witnesses - Examination - Cross-exam­ination - General - The Alberta Court of Appeal stated that "the law of evidence and the law of cross-examination are not codified. Alberta's Evidence Act ... merely makes a few changes to the common law. By and large, the Evidence Acts expand the scope of cross-examination; they cut it down only in a very small detail or two. Statutory authority to ask a question in cross-examination is unnecessary; a com­mon-law rule will do." - See paragraph 30.

Evidence - Topic 4703

Witnesses - Examination - Cross-exam­ination - Range of examination - The defendant attempted to cross-examine a plaintiff on whether a party to a parallel defamation suit helped finance this action - The trial judge barred the questioning on the basis that it was a collateral point - The Alberta Court of Appeal held that the trial judge erred - There was no rule against collateral issues on cross-examin­ation - They were barred later only in rebuttal evidence - The court stated that "cross-examination on whether a witness is inde­pendent or has some motive to testify for one side, is very common and clearly proper. ... Whether the witness has been given money or other inducements to secure his evidence has always been a legitimate topic for cross-examination. ... We tell juries to look for just such de­pendence, independence or motives in assessing credibility; and the credibility of this witness was at the heart of this trial." - See paragraphs 40 to 41.

Evidence - Topic 4760

Witnesses - Examination - Prior incon­sistent statements - Cross-examination on prior written statements - Production of statements - The Alberta Court of Appeal held that the trial judge erred in stating that a witness could not be cross-exam­ined on a prior statement or previous evidence unless a contradiction was first shown - Further, the court rejected the position that a prior statement could be cross-examined on only by reading it to the witness - The Alberta Evidence Act did not require that the transcript be before the witness - See paragraphs 31 to 34.

Fraud and Misrepresentation - Topic 2707

Misrepresentation - What constitutes mis­representation - Falsity by silence - [See Contracts - Topic 1598 ].

Practice - Topic 9226

Appeals - New trials - Admissible evi­dence rejected - [See Contracts - Topic 1598 ].

Cases Noticed:

L.K. Oil & Gas Ltd. and XL Food Sys­tems Ltd. v. Canalands Energy Corp. (1989), 98 A.R. 161 (C.A.), refd to. [para. 8].

Akhtar et al. v. MacGillivray and Co. et al. (1990), 112 A.R. 241 (Q.B.), refd to. [para. 8].

Anderson and Anderson v. Chaba and Chaba, [1978] 1 W.W.R. 631; 7 A.R. 469 (C.A.), refd to. [para. 11].

ABC Color & Sound Ltd. et al. v. Royal Bank of Canada (1991), 117 A.R. 271; 2 W.A.C. 271 (C.A.), refd to. [para. 11].

Yarley (China) Developments Co. v. Amber Equities Inc. et al. (1996), 191 A.R. 52 (Q.B. Master), refd to. [para. 11].

Marvco Color Research Ltd. v. Harris and Harris, [1982] 2 S.C.R. 774; 45 N.R. 302; 141 D.L.R.(3d) 577; 26 R.P.R. 48; 20 B.L.R. 143, refd to. [para. 12].

R. v. Nand (1989), 95 A.R. 314 (C.A.), refd to. [para. 33].

R. v. Whitford (1990), 105 A.R. 274 (C.A.), refd to. [para. 33].

R. v. Keegstra (J.) (1994), 157 A.R. 1; 77 W.A.C. 1; 23 Alta. L.R.(3d) 4; 92 C.C.C.(3d) 505 (C.A.), leave to appeal refused [1995] 2 S.C.R. 381; 180 N.R. 120; 169 A.R. 50; 97 W.A.C. 50, refd to. [para. 33].

Yuill v. Yuill, [1945] P. 15; [1945] 1 All E.R. 183 (C.A.), refd to. [para. 36].

R. v. Nguyen (Q.L.T.) (1997), 193 A.R. 297; 135 W.A.C. 297 (C.A.), refd to. [para. 37].

R. v. Corbett, [1988] 1 S.C.R. 670; 85 N.R. 81; 41 C.C.C.(3d) 385; 64 C.R.(3d) 1; 28 B.C.L.R.(2d) 145, refd to. [para. 40].

R. v. Titus, [1983] 1 S.C.R. 259; 46 N.R. 477, refd to. [para. 41].

McGinn v. Bain Insulation and Supply Ltd. (1990), 126 A.R. 81 (Q.B.), refd to. [para. 41].

Mitchell v. Heintzman (1913), 9 D.L.R. 20 (Ont. C.A.), refd to. [para. 41].

Hanington v. Lampert (1924), 52 N.B.R. 426 (C.A.), refd to. [para. 47].

Scott v. Smith (1931), 4 M.P.R. 23 (N.B.C.A.), refd to. [para. 47].

Case v. Edmonton Country Club Ltd., [1974] 5 W.W.R. 157 (Alta. T.D.), refd to. [para. 47].

Symphony Group v. Hodgson, [1994] Q.B. 179; [1993] 4 All E.R. 143 (C.A.), refd to. [para. 47].

Statutes Noticed:

Evidence Act, R.S.A. 1980, c. A-21, sect. 23(1) [para. 34]; sect. 23(2), sect. 24, sect. 26 [para. 32]; sect. 27 [para. 47].

Rules of Court (Alta.), rule 263 [para. 47]; rule 519 [para. 62].

Authors and Works Noticed:

Cross, Rupert, and Tapper, Colin, Evi­dence (8th Ed. 1995), pp. 322, 323 [para. 30]; 325, 326, 334 to 337 [para. 40].

Mauet, Fundamentals of Trial Techniques (Canadian Ed. 1984), vol. 36 [para. 45].

McWilliams, Peter K., Canadian Criminal Evidence (3rd Ed. 1988) (1997 Supp.), vol. 2, §§ 37:20200, 37:20410, 37:20500 [para. 40]; 37:20530 [para. 41].

Phipson on Evidence (14th Ed. 1990), pp. 222, § 11-34 [para. 47]; 252, § 12-22, 265 to 266, § 12-34 [para. 40].

Sopinka, John, Lederman, Sydney N., and Bryant Alan W., The Law of Evidence in Canada (1992), pp. 839 to 849 [para. 32]; 864, 865 [para. 30]; 884 to 886 [para. 32].

Williston, W.B., and Rolls, R.J., The Con­duct of an Action (1982), pp. 34, 35 [para. 45].

Counsel:

G.S. Solomon, for the respondents;

G.F. Dixon, Q.C., for the appellants.

This appeal was heard on May 15, 1997, before Côté, O'Leary and Picard, JJ.A., of the Alberta Court of Appeal.

On July 9, 1997, the following memoran­dum of judgment was delivered by the Court.