MFI AG Services Ltd. v. Sotkowy, (2013) 419 Sask.R. 256 (QB)

• Judge: Chicoine, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: April 29, 2013
• Jurisdiction: Saskatchewan
• Citations: (2013), 419 Sask.R. 256 (QB);2013 SKQB 161

MFI AG Services Ltd. v. Sotkowy (2013), 419 Sask.R. 256 (QB)

MLB headnote and full text

Temp. Cite: [2013] Sask.R. TBEd. MY.048

MFI AG Services Ltd. (applicant/plaintiff) v. Lyndon Joseph Sotkowy and Warren James Sotkowy (respondents/defendants) and Nicholas P. Robinson, Merchant Law Group LLP and Valley View Wreckers Ltd. (respondents/proposed defendants)

(2012 QBG No. 344; 2013 SKQB 161)

Indexed As: MFI AG Services Ltd. v. Sotkowy

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Chicoine, J.

April 29, 2013.

Summary:

The plaintiff lessee sued the defendant lessors respecting farm land, claiming that the defendants failed to honour an option to purchase in the lease agreement. The plaintiff sought a declaration of constructive trust or specific performance. It applied for an order adding as defendants its previous counsel and a company who was interested in purchasing the disputed lands. It also applied for an order permitting it to make amendments to the Statement of Claim necessitated by the joinder of the proposed defendants, and further amendments that it believed were necessary to determine the real questions in issue between it and the current defendants.

The Saskatchewan Court of Queen's Bench denied the application to add defendants and consequently did not grant leave to make any amendments that would have been required as a result of the joinder of new parties. The court did grant an order permitting amendments that it found were necessary to determine the real questions in issue between the plaintiff and defendants.

Practice - Topic 665

Parties - Adding or substituting parties - Adding or substituting defendants - Considerations - [See both Practice - Topic 673 ].

Practice - Topic 673

Parties - Adding or substituting parties - Adding or substituting defendants - Circumstances when denied - The plaintiff lessee sued the defendant lessors respecting farm land, claiming that the defendants failed to honour an option to purchase in the lease agreement - The plaintiff sought a declaration of constructive trust or specific performance - It filed a certificate of pending litigation (CPL) against the lands - Valley View Wreckers (VVW) offered to purchase a portion of the disputed lands from the defendants - However, in light of the CPL, the defendants convinced VVW to instead enter into a lease agreement with an option to purchase - The plaintiff applied for an order adding VVW as defendants - The Saskatchewan Court of Queen's Bench dismissed the application - There was no reason to add VVW as a defendant - If the defendants successfully defended the action, they would be in a position to honour the option agreement - If the plaintiff was successful, then VVW's option would simply be frustrated - It was unlikely that VVW would have any claim in law against the plaintiff because there was no contractual relationship between them - Whether VVW would have a claim against the defendants for damages was of no consequence to the plaintiff - See paragraphs 17 to 25.

Practice - Topic 673

Parties - Adding or substituting parties - Adding or substituting defendants - Circumstances when denied - The plaintiff lessee sued the defendant lessors respecting farm land, claiming that the defendants failed to honour an option to purchase in the lease agreement - The plaintiff sought a declaration of constructive trust or specific performance - The plaintiff retained Nicholas Robinson of the firm Merchant Law Group to represent its interests - Robinson later withdrew as counsel - The plaintiff applied for an order adding Robinson and Merchant Law Group as defendants - It claimed that Robinson and his firm had failed to provide adequate legal advice or take the necessary steps to exercise the applicable options - The Saskatchewan Court of Queen's Bench dismissed the application - There was no common question of law between the plaintiff's claim against the defendants and its claim against Robinson and Merchant Law Group - Robinson and his firm had no hand in preparing or negotiating the lease agreements - A live issue was whether the agreement and option to purchase had expired by the time Robinson was retained - The expense and delay that would be caused by compelling the plaintiff to bring a separate action against its previous counsel would not be greatly out of proportion to the inconvenience, expense or embarrassment that Robinson and his firm would experience if the actions were tried together - The claim against Robinson and his firm might be premature if the plaintiff succeeded in its action against the defendants - See paragraphs 26 to 44.

Practice - Topic 2116

Pleadings - Amendment of pleadings - With conditions - The plaintiff lessee sued the defendant lessors respecting farm land - It applied for an order adding as defendants its previous counsel and a company who wanted to purchase the land - It also applied for an order permitting it to file a Second Amended Statement of Claim necessitated by the joinder of the proposed defendants, and further amendments that it believed were necessary to determine the real questions in issue between it and the current defendants - Examinations for discovery had already been held - The Saskatchewan Court of Queen's Bench denied the application to add defendants and consequently did not grant leave to make any amendments that would have been required as a result of the joinder of new parties - The court did grant an order permitting amendments that were necessary to determine the real questions in issue between the plaintiff and defendants - As a condition precedent to filing the Second Amended Statement of Claim, the plaintiff had to pay to the defendants their costs thrown away resulting from the plaintiff's application to add parties and amend the Statement of Claim ($2,500) - The plaintiff was also ordered to pay costs if further examinations for discovery were required to deal with matters arising from the amendments - See paragraphs 45 to 53.

Practice - Topic 7053

Costs - Party and party costs - Entitlement to party and party costs - Amendment of pleadings - [See Practice - Topic 2116 ].

Cases Noticed:

Collin Hotels Ltd. v. Surtees Estate, [1984] 5 W.W.R. 277; 34 Sask.R. 148 (Q.B.), dist. [para. 22].

Royal Bank of Canada v. Fischer and Kidd et al. (1989), 73 Sask.R. 156 (C.A.), dist. [para. 23].

Pioneer Trust Co. (Liquidation) v. Lebrosix Holdings Ltd. et al. (1989), 78 Sask.R. 62 (Q.B.), refd to. [para. 27].

Saskatchewan Transportation Co. v. Royal Bank of Canada et al. (1985), 35 Sask.R. 145 (Q.B.), refd to. [para. 27].

Popescu v. Adamache et al., [1979] 6 W.W.R. 73; 7 Sask.R. 268 (Q.B.), refd to. [para. 30].

Payne v. British Time Recorder Co. Ltd. and W.W. Curtis Ltd., [1921] 2 K.B. 1, refd to. [para. 31].

Nagy v. Wu (2012), 400 Sask.R. 183; 2012 SKQB 261, refd to. [para. 35].

Thames Steel Construction Ltd. v. Portman (1980), 111 D.L.R.(3d) 460 (Ont. H.C.), appld. [para. 36].

Federation Insurance Co. v. Piscione, [1964] 2 O.R. 404 (H.C.), refd to. [para. 36].

Kanji Holdings Ltd. and Springer Enterprises Ltd. v. Musgrave, [1974] 2 W.W.R. 173, dist. [para. 43].

Horncastle v. Saskatchewan Government Employees Association (No. 2) (1980), 4 Sask.R. 22 (Q.B.), refd to. [para. 47].

Hahn v. Yeager et al. (1993), 118 Sask.R. 1 (Q.B.), refd to. [para. 48].

J.G. et al. v. Sister Servants of Mary Immaculate et al. (2007), 294 Sask.R. 99; 2007 SKQB 54, refd to. [para. 49].

Counsel:

Khurrum R. Awan, for the applicant;

Kevin A. Clarke, for the respondents, the Sotkowys;

Stephen D. McLellan, for the proposed defendants, Nicholas P. Robinson and Merchant Law Group LLP;

No one appearing for the proposed defendant, Valley View Wreckers Ltd.

This application was heard before Chicoine, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following fiat on April 29, 2013.