Newel Post Developments Ltd. v. 1402801 Alberta Ltd., (2010) 503 A.R. 334 (QB)

• Judge: Bensler, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: June 30, 2010
• Citations: (2010), 503 A.R. 334 (QB);2010 ABQB 660

Newel Post Dev. v. 1402801 Alta. (2010), 503 A.R. 334 (QB)

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. OC.109

Newel Post Developments Ltd. (plaintiff/respondent) v. 1402801 Alberta Ltd. (defendant/appellant)

(0901 07374; 2010 ABQB 660)

Indexed As: Newel Post Developments Ltd. v. 1402801 Alberta Ltd.

Alberta Court of Queen's Bench

Judicial District of Calgary

Bensler, J.

October 20, 2010.

Summary:

Newel Post Developments Ltd. applied for summary judgment to enforce an alleged settlement agreement with 1402801 Alberta Ltd.

A Master of the Alberta Court of Queen's Bench allowed the application. 1402801 appealed and applied to amend its statement of defence.

The Alberta Court of Queen's Bench allowed the application to amend. Due to the effect of the amendments, awarding summary judgment was inappropriate. Therefore, the appeal from the summary judgment was allowed.

Practice - Topic 2123

Pleadings - Amendment of pleadings - Statement of defence - General - Under a March 2007 agreement for purchase and sale, 1402801 Alberta Ltd. was to pay Newel Post Developments Ltd. $22,000,000 and a 30% share of future profits for real property (the development agreement) - Newel accepted a $1,000,000 promissory note as security for the post-closing payment of the purchase price - In August 2007, Newel registered an encumbrance on the title to protect its claims on future profits under the development agreement - In November 2007, Newel filed an unpaid vendor's lien caveat on the title - In June 2008, 1402801 sued Newel, seeking removal of the caveat - The action led to settlement discussions, including an exchange of emails in which Newel, in September 2008, agreed to accept 1402801's offer of $2,727,000 to eliminate the development agreement and remove the encumbrances on title - In May 2009, Newel applied for summary judgment to enforce the settlement agreement - In June 2009, 1402801 filed a statement of defence, asserting that there was no agreement or that it had been repudiated by Newel - A Master granted summary judgment to Newel - 1402801 appealed and applied to amend its statement of defence - The Alberta Court of Queen's Bench allowed the application to amend - 1402801's requested amendments sought to add an implied term to the settlement agreement, bolster claims that Newel had repudiated the deal, and excuse its nonperformance - These amendments were too substantial to allow without some evidential support - The amount of evidence required, however, was "not very burdensome" - The amendments were allowed on the basis that they conformed to the evidence before the court - See paragraphs 15 to 30.

Practice - Topic 9852

Settlements - What constitutes a settlement - Under a March 2007 agreement for purchase and sale, 1402801 Alberta Ltd. was to pay Newel Post Developments Ltd. $22,000,000 and a 30% share of future profits for real property (the development agreement) - Newel accepted a $1,000,000 promissory note as security for the post-closing payment of the purchase price - In August 2007, Newel registered an encumbrance on the title to protect its claims on future profits under the development agreement - In November 2007, Newel filed an unpaid vendor's lien caveat on the title - In June 2008, 1402801 filed an originating notice against Newel, seeking removal of the caveat - The action led to settlement discussions, including an exchange of emails in which Newel, in September 2008, agreed to accept 1402801's offer of $2,727,000 to eliminate the development agreement and remove the encumbrances on title - Over the next few months, 1402801 sent Newel a number of inquiries regarding draft settlement documentation - In December 2008, Newel sent 1402801 a draft lease with a request for comments - 1402801 did not respond - In May 2009, Newel applied for summary judgment to enforce the settlement agreement - In June 2009, 1402801 filed a statement of defence, asserting that there was no agreement or that it had been repudiated by Newel - The Alberta Court of Queen's Bench held that the parties had entered into a valid settlement agreement - Newel's actions in submitting the draft lease were, rather than a repudiation, an attempt to complete a term of the agreement - Further, had Newel's actions constituted repudiation, filing a statement of defence following a significant period of delay was not the kind of "unequivocal conduct" required to accept a repudiation - See paragraphs 32 to 50.

Practice - Topic 9870

Settlements - Repudiation - What constitutes - [See Practice - Topic 9852 ].

Cases Noticed:

Armstrong v. Esso Resources Canada Ltd. (1992), 10 C.P.C.(3d) 343 (Alta. C.A.), refd to. [para. 14].

Waquan v. Canada - see Mikisew Cree First Nation v. Canada et al.

Mikisew Cree First Nation v. Canada et al. (2002), 303 A.R. 43; 273 W.A.C. 43; 2 Alta. L.R.(4th) 1; 2002 ABCA 110, refd to. [para. 18].

Hunter Financial Group Ltd. et al. v. Maritime Life Assurance Co. (2007), 428 A.R. 150; 2007 ABQB 263, refd to. [para. 19].

Balm v. 3512061 Canada Ltd. et al. (2003), 327 A.R. 149; 296 W.A.C. 149; 2003 ABCA 98, refd to. [para. 19].

Milfive Investments Ltd. et al. v. Sefel et al. (1998), 216 A.R. 196; 175 W.A.C. 196; 1998 ABCA 161, refd to. [para. 19].

Malborough Ford Sales Ltd. v. Ford Motor Co. of Canada Ltd. (2003), 13 Alta. L.R.(4th) 336; 2003 ABQB 298, refd to. [para. 19].

Oregon Jack Creek Indian Band Chief v. Canadian National Railway Co., [1990] 1 S.C.R. 117; 103 N.R. 235, refd to. [para. 19].

Hodge v. Carey Industrial Services Ltd. et al. (1997), 202 A.R. 154; 50 Alta. L.R.(3d) 306 (Q.B. Master), refd to. [para. 20].

Firemaster Oilfield Services Ltd. v. Safety Boss (Canada) (1993) Ltd. et al. (1996), 183 A.R. 155; 37 Alta. L.R.(3d) 317 (Q.B.), refd to. [para. 20].

Pioneer Exploration Inc. Estate (Bankrupt) v. Euro-Am Pacific Enterprises Ltd. (2003), 339 A.R. 165; 312 W.A.C. 165; 2003 ABCA 298, refd to. [para. 31].

Cellular Rental Systems Inc. v. Bell Mobility Cellular Inc. (1995), 6 W.D.C.P.(2d) 169 (Ont. Gen. Div.), refd to. [para. 32].

Metropolitan Toronto Condominium Corp. No. 1250 v. Mastercraft Group Inc. et al. (2009), 255 O.A.C. 253; 310 D.L.R.(4th) 256; 2009 ONCA 584, refd to. [para. 33].

Fieguth v. Acklands Ltd. (1989), 59 D.L.R.(4th) 114 (B.C.C.A.), refd to. [para. 39].

Karsales (Harrow) Ltd. v. Wallis, [1956] 2 All E.R. 866 (C.A.), refd to. [para. 45].

Photo Production Ltd. v. Securicor Transport Ltd., [1980] A.C. 827 (H.L.), refd to. [para. 45].

Canso Chemicals Ltd. v. Canadian Westinghouse Co. (1974), 10 N.S.R.(2d) 306; 2 A.P.R. 306; 54 D.L.R.(3d) 517 (C.A.), refd to. [para. 45].

Tercon Contractors Ltd. v. British Columbia (Minister of Transportation and Highways), [2010] 1 S.C.R. 69; 397 N.R. 331; 281 B.C.A.C. 245; 475 W.A.C. 245; 2010 SCC 4, refd to. [para. 46].

BP Global Special Products (America) Inc. v. Conros Corp., [2010] O.T.C. Uned. 1094; 2010 ONSC 1094, refd to. [para. 46].

Pioneer Hi-Bred International Inc. et al. v. Richardson International Ltd. et al. (2010), 254 Man.R.(2d) 220; 2010 MBQB 161, refd to. [para. 46].

Guarantee Co. of North America v. Gordon Capital Corp., [1999] 3 S.C.R. 423; 247 N.R. 97; 126 O.A.C. 1, refd to. [para. 47].

Authors and Works Noticed:

Fridman, Gerald Henry Louis, The Law of Contract in Canada (4th Ed. 1999), p. 651 [para. 48].

Waddams, Stephen M., The Law of Contracts (5th Ed. 2005), para. 617 [para. 44].

Counsel:

Josef G.A. Krüger, Q.C., and Curtis E. Marble (Borden Ladner Gervais LLP), for the plaintiff/respondent;

Blair C. Yorke-Slader, Q.C. (Bennett Jones LLP), for the defendant/appellant.

This application and appeal were heard on June 30, 2010, by Bensler, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following reasons for judgment on October 20, 2010.