Rabbit Hill Recreations Inc. v. Stelter et al., (2009) 473 A.R. 26 (QB)

• Judge: Lee, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: May 13, 2009
• Citations: (2009), 473 A.R. 26 (QB);2009 ABQB 329

Rabbit Hill Recreations Inc. v. Stelter (2009), 473 A.R. 26 (QB)

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. JN.025

Rabbit Hill Recreations Inc. (plaintiff) v. Dale R. Stelter and Gladys Emilie Stelter (defendants) v. Roy Kelley, Re/Max Real Estate (Edmonton) Ltd., Re/Max Real Estate Central Office, Brendan Avery Carr and Donna Louise Defir, carrying on business under the firm name and style of Carr Defir and the said Carr Defir (third party)

(0503 08786)

Rabbit Hill Recreations Inc. (plaintiff) v. Dale R. Stelter and 1153696 Alberta Ltd. (defendants) v. Brendan Avery Carr and Donna Louise Defir, carrying on business under the firm name and style of Carr Defir and the said Carr Defir (third parties)

1153696 Alberta Ltd. (plaintiff by counterclaim) v. Rabbit Hill Recreations Inc., James Sutherland, Robert Sutherland and Ritchie Parie (defendants by counterclaim)

(0703 08570; 2009 ABQB 329)

Indexed As: Rabbit Hill Recreations Inc. v. Stelter et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Lee, J.

May 27, 2009.

Summary:

The disputes at issue in both actions arose out of a right of first refusal (ROFR) contained in a lease held by the plaintiff in relation to lands owned by Stelter, and the sale of those lands (along with other lands owned by his spouse) (the defendants) to a third party, Proznik and/or his nominee numbered corporation (the respondents). The plaintiff alleged that the lease, and in particular its ROFR, was breached. The defendants denied this, and in the alternative looked to their realtor and their lawyer for contribution and indemnity. The plaintiff brought an application to (1) amend its first legal action and (2) consolidate the actions.

The Alberta Court of Queen's Bench allowed the application.

Practice - Topic 2105

Pleadings - Amendment of pleadings - Prejudice or presumed prejudice - What constitutes - The disputes at issue in both actions arose out of a right of first refusal (ROFR) contained in a lease held by the plaintiff in relation to lands owned by Stelter, and the sale of those lands (along with other lands owned by his spouse) (the defendants) to a third party, Proznik and/or his nominee numbered corporation (the respondents) - The plaintiff alleged that the lease, and in particular its ROFR, was breached - The plaintiff brought an application to, inter alia, amend its first legal action - The proposed amendments were (a) the Additional Particulars Amendment, seeking to add additional particulars of breach of contract by the defendants and (b) The Additional Remedy Amendment, seeking to add a claim for the remedy of specific performance - The Alberta Court of Queen's Bench allowed the application - The proposed amendments did not seek to add any new claim to the first action - They sought to add additional particulars, relating to the conduct of the defendants with respect to the exercise of the plaintiff of its ROFR - Accordingly, s. 6(2) of the Limitations Act applied - Section 6(2) required only that the added claim "be related to the conduct, transaction or events described in the original pleading", which was the case here - The amendment was not frivolous and vexatious, nor was there any evidence or indication of bad faith - The Additional Remedy Amendment was also sufficiently particularized - Several particulars of breach of contract had already been pleaded from which the remedy of specific performance might flow, and the amendment now pleaded that the land was unique, and added an associated prayer for relief - There was a triable issue - Finally, there was insufficient evidence of irreparable prejudice to justify disallowing the amendments in the face of the general principle that they should be allowed - See paragraphs 68 to 100.

Practice - Topic 2110

Pleadings - Amendment of pleadings - Adding new cause of action or "claim" - [See Practice - Topic 2105 ].

Practice - Topic 2111

Pleadings - Amendment of pleadings - Prohibition against adding new action or "claim" which is statute barred - [See Practice - Topic 2105 ].

Practice - Topic 2121

Pleadings - Amendment of pleadings - Statement of claim - Adding particulars or subsequent facts - [See Practice - Topic 2105 ].

Practice - Topic 4122

Joinder of causes and consolidations - Consolidation of actions and applications or motions - When available - The disputes at issue in both actions arose out of a right of first refusal (ROFR) contained in a lease held by the plaintiff in relation to lands owned by Stelter, and the sale of those lands (along with other lands owned by his spouse) (the defendants) to a third party, Proznik and/or his nominee numbered corporation (the respondents) - The plaintiff alleged that the lease, and in particular its ROFR, was breached - The plaintiff brought an application to, inter alia, consolidate the actions - The Alberta Court of Queen's Bench allowed the application - The statements of claim in the first action and the second action were virtually identical - The third party notices in each action were extremely similar - The parties were similar - Rabbit Hill was the plaintiff in both actions - Stelter was the defendant in both actions - Proznik's relevant numbered corporation was a defendant in the second action - It was presumed that Proznik would cause both of his numbered corporations to be added as defendants to the first action if the amendments were allowed, the plaintiff would not oppose this - The Stelters' solicitors were third parties to both actions - The differences in parties relate to: (a) the Stelter's solicitors, who were third parties in the first action, though not in the second action; (b) Gladys Stelter, who was Dale Stelter's spouse, and was a defendant in the first action, but not the second action; and (c) the counterclaim commenced in the second action by the numbered company against the plaintiff and three of its directors - Consolidation was justified - See paragraphs 101 to 117.

Cases Noticed:

Rago Millwork & Supplies Co. v. Woodhouse (D.) Construction Ltd. (1981), 28 A.R. 499 (Q.B. Master), refd to. [para. 27].

624250 Alberta Ltd. v. Acklands-Grainger Inc. et al., [2002] A.R. Uned. 293; 3 Alta. L.R.(4th) 73 (Q.B. Master), refd to. [para. 27].

Morrison-Knudsen Co. v. British Columbia Hydro and Power Authority (1978), 85 D.L.R.(3d) 186 (B.C.C.A.), refd to. [para. 30].

MacNaughton v. Stone, [1950] D.L.R. 330 (Ont. H.C.), refd to. [para. 31].

575714 Alberta Ltd. v. 341888 Alberta Ltd. et al., [2008] A.R. Uned. 212 (Q.B.), refd to. [para. 42].

Oregon Jack Creek Indian Band Chief v. Canadian National Railway Co., [1990] 1 S.C.R. 117; 103 N.R. 235, refd to. [para. 71].

Marlborough Ford Sales Ltd. v. Ford Motor Co. of Canada, 2003 ABQB 298, refd to. [para. 72].

C.H.S. et al. v. Director of Child Welfare (Alta.) (2006), 403 A.R. 103; 2006 ABQB 528, affd. (2006), 401 A.R. 215; 391 W.A.C. 215; 2006 ABCA 355, refd to. [para. 72].

Balm v. 3512061 Canada Ltd. et al. (2003), 327 A.R. 149; 296 W.A.C. 149; 2003 ABCA 98, refd to. [para. 73].

Hunter Financial Group Ltd. et al. v. Maritime Life Assurance Co. (2007), 428 A.R. 150; 2007 ABQB 263, refd to. [para. 75].

Canada Deposit Insurance Corp. v. Canadian Commercial Bank (2000), 269 A.R. 49; 2000 ABQB 440, refd to. [para. 77].

Ilic v. Toronto Sun Publishing Corp. et al. (1998), 224 A.R. 116 (Q.B.), refd to. [para. 78].

Ilic v. Calgary Sun - see Ilic v. Toronto Sun Publishing Corp. et al.

Harness Horse Owners Association of Halifax County v. Sussex Racetracks Inc. et al. (1989), 94 N.S.R.(2d) 449; 247 A.P.R. 449 (C.A.), refd to. [para. 87].

Blake v. Fireman's Fund Insurance Co. of Canada (1980), 110 D.L.R.(3d) 44 (Q.B.), refd to. [para. 87].

Brett v. Brett (1996), 7 R.P.R.(3d) 90 (Ont. Gen. Div.), refd to. [para. 87].

Semelhago v. Paramadevan (1996), 197 N.R. 379; 91 O.A.C. 379; 136 D.L.R.(4th) 1 (S.C.C.), refd to. [para. 89].

Irving Industries (Irving Wire Products Division) Ltd. et al. v. Canadian Long Island Petroleums Ltd. and Sadim Oil & Gas Co., [1975] 2 S.C.R. 715; 3 N.R. 430, refd to. [para. 90].

McFarland v. Hauser et al. (1978), 23 N.R. 362; 12 A.R. 332 (S.C.C.), refd to. [para. 90].

Henuset Bros. Ltd. v. International Union of Operating Engineers, Local 955 et al.; Henuset Bros. Ltd. v. Syncrude Canada Ltd. et al. (1984), 57 A.R. 258 (Q.B.), refd to. [para. 103].

Alberta v. Labour Relations Board (Alta.) et al. (1997), 201 A.R. 1 (Q.B.), refd to. [para. 103].

Mikisew Cree First Nation v. Canada et al. (1998), 224 A.R. 157 (Q.B.), refd to. [para. 104].

Grebely (Andy & Jean) Holdings Ltd. et al. v. Commercial Union Assurance Co. of Canada et al. (2000), 282 A.R. 296 (Q.B.), refd to. [para. 104].

Bakker v. Van Santen, [2003] A.R. Uned. 654; 2003 ABQB 804, refd to. [para. 104].

I.C. Farms Ltd. et al. v. Hironaka et al., [2005] A.R. Uned. 742; 2005 ABQB 71, refd to. [para. 104].

B & S Publications Inc. v. Gaulin et al. (2002), 317 A.R. 397; 284 W.A.C. 397; 2002 ABCA 238, refd to. [para. 104].

Alliance Pipeline Limited Partnership et al. v. Franklin (C.E.) Ltd. et al. (2007), 417 A.R. 1; 410 W.A.C. 1; 2007 ABCA 285, refd to. [para. 104].

Vanbrabant et al. v. Alberta (Minister of Education) et al. (1989), 102 A.R. 77 (C.A.), refd to. [para. 106].

Golosky v. Nelson Lumber Co., 2003 CarswellAlta 969 (Q.B.), refd to. [para. 107].

Encana Corp. v. Devon Canada Corp. (2008), 466 A.R. 175; 2008 ABQB 232, refd to. [para. 107].

Athabasca Realty Co. v. Humeniuk (1978), 14 A.R. 79 (T.D.), refd to. [para. 107].

Hollands et al. v. Winfield Power Co. et al. (2004), 366 A.R. 59; 2004 ABQB 929, refd to. [para. 107].

Canada Deposit Insurance Corp. et al. v. Prisco et al. (1997), 214 A.R. 181; 56 Alta. L.R.(3d) 130 (Q.B.), refd to. [para. 108].

Northland Bank v. Willson - see Canada Deposit Insurance Corp. et al. v. Prisco et al.

Horwood v. Statesman Publishing Co., [1929] All E.R. Rep. 554 (C.A.), refd to. [para. 109].

Predator Corp. v. Ricks Nova Scotia Co. (2001), 316 A.R. 378; 2001 ABQB 1110, refd to. [para. 111].

Stay Steel & Pipe Ltd. v. Calgary (City), [2001] A.R. Uned. 333; 2001 ABCA 313, refd to. [para. 111].

Authors and Works Noticed:

Sharpe, Robert J., Injunctions and Specific Performance (2nd Ed. 1992) (Looseleaf), pp. 10-36 to 10-39 [para. 92].

Waddams, Stephen M., The Law of Contracts (4th Ed. 1999), p. 450, para. 614 [para. 38].

Waddams, Stephen M., The Law of Contracts (5th Ed. 2005), pp. 500, 501 [para. 93].

Counsel:

Monique Petrin Nicholson and Bryan J. Kickham, Q.C. (Miller Thomson LLP), for the plaintiff/defendant by counterclaim, Rabbit Hill Recreations Inc.;

Daniel R. Peskett (Brownlee LLP), for the respondents/defendant/plaintiff by counterclaim, 1153696 Alberta Ltd.

This application was heard on May 13, 2009, by Lee, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on May 27, 2009.