Shermet v. Miller et al., 2015 SKQB 34

Judge:Megaw, J.
Court:Court of Queen's Bench for Saskatchewan
Case Date:February 04, 2015
Jurisdiction:Saskatchewan
Citations:2015 SKQB 34;(2015), 468 Sask.R. 228 (QB)
 
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Shermet v. Miller (2015), 468 Sask.R. 228 (QB)

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Temp. Cite: [2015] Sask.R. TBEd. FE.033

Harry Shermet (plaintiff) v. Attie Miller, Sheldon Wayne Miller, Donald Lomenda, Laura Melnychenko, Randy Brooks and Pineland Insurance Ltd. operating under the business name Re/Max Pineland Realty (defendants) and Sheldon Wayne Miller (applicant) and Harry Shermet and Patricia Shermet (respondents)

(2012 QB No. 258; 2014 QBG No. 219; 2015 SKQB 34)

Indexed As: Shermet v. Miller et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Yorkton

Megaw, J.

February 4, 2015.

Summary:

The Millers accepted an offer from Shermet to purchase a property, subject to financing approval by September 30, 2011. Brooks and Pineland Insurance Ltd. acted as agents for both Shermet and the Millers. It became apparent that Shermet was having difficulty obtaining financing. The Millers accepted a second offer for the same property from Lomenda and Melnychenko, subject to financing approval by October 7, 2011. The Millers refused to complete the purchase with Shermet. Shermet sued the Millers, Brooks and Pineland and Lomenda and Melnychenko. Shermet's position was that he had advised Brooks on September 30, 2011, that financing had been approved. The Millers' position was that the financing condition had never been complied with. Brooks supported the Millers. Brooks and Pineland and Lomenda and Melnychenko applied for summary judgment to dismiss the action against them.

The Saskatchewan Court of Queen's Bench allowed the applications.

Actions - Topic 1500

Cause of action - General principles - What constitutes a cause of action - The Millers accepted an offer from Shermet to purchase a property, subject to financing approval by September 30, 2011 - Brooks and Pineland Insurance Ltd. acted as agents for both Shermet and the Millers - It became apparent that Shermet was having difficulty obtaining financing - The Millers accepted a second offer for the same property from Lomenda and Melnychenko, subject to financing approval by October 7, 2011 - The Millers refused to complete the purchase with Shermet - Shermet's position was that he had advised Brooks on September 30, 2011, that financing had been approved - The Millers' position was that the financing condition had never been complied with - Brooks supported the Millers - Shermet's action against Lomenda and Melnychenko stated that they "were aware" that the Millers had an accepted offer from Shermet and had "continued to insist that they be allowed to purchase the land" - The Saskatchewan Court of Queen's Bench dismissed the action against Lomenda and Melnychenko summarily on the basis that there was no cause of action against them - It was not alleged that they were in breach of a contract with Shermet, had owed him a duty of care or had interfered with any contractual relations with him - No justiciable claim was alleged - See paragraphs 51 to 54.

Brokers - Topic 3144

Duties of broker to principal - Real estate brokers - Negligence (incl. duty of care, standard of care, etc.) - The Millers accepted an offer from Shermet to purchase a property, subject to financing approval by September 30, 2011 - Brooks and Pineland Insurance Ltd. acted as agents for both Shermet and the Millers - It became apparent that Shermet was having difficulty obtaining financing - The Millers accepted a second offer for the same property from other parties, subject to financing approval by October 7, 2011 - The Millers refused to complete the purchase with Shermet - Shermet sued the Millers, Brooks and Pineland and others - Shermet's position was that he had advised Brooks on September 30, 2011, that financing had been approved - The Millers' position was that the financing condition had never been complied with - Brooks supported the Millers - The Saskatchewan Court of Queen's Bench dismissed the action against Brooks and Pineland summarily on the basis that there was no genuine issue for trial - The claim appeared to be that Brooks had somehow breached his duties to Shermet while acting as his agent - However, nothing suggested that Brooks had caused any damages to Shermet resulting from the Millers' refusal to complete - Even if Brooks had a duty to Shermet, either in contract or in tort, he had not done anything or failed to do anything that ultimately prevented the real estate transaction from being completed - See paragraphs 40 to 50.

Practice - Topic 1463

Pleadings - Statement of claim - General - Requirement of disclosing cause of action - [See Actions - Topic 1500 ].

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - The Saskatchewan Court of Queen's Bench discussed the "shift in culture" in summary judgment applications, concluding that "I am required to firstly determine whether there is a genuine issue requiring trial by reviewing only the evidence presented and not exercising the fact finding powers set forth in the Rules . If I conclude from that review there is a genuine issue requiring trial then I must determine if the parties can avoid a trial through the exercise of the fact finding powers contained in the Rules" - See paragraphs 33 to 39.

Torts - Topic 61

Negligence - Causation - Causal connection - [See Brokers - Topic 3144 ].

Cases Noticed:

Hryniak v. Mauldin, [2014] 1 S.C.R. 87; 453 N.R. 51; 314 O.A.C. 1; 2014 SCC 7, refd to. [para. 27].

Tchozewski v. Lamontagne, [2014] 7 W.W.R. 397; 440 Sask.R. 34; 2014 SKQB 71, refd to. [para. 27].

Counsel:

David G. Kreklewich, for the plaintiff/respondent, Harry Shermet and the respondent, Patricia Shermet;

Jared D. Epp, for the defendant/applicant, Sheldon Wayne Miller;

Hannah Kazman, for the defendants, Randy Brooks and Pineland Insurance Ltd. operating under the business name Re/Max Pineland Realty;

Randy P. Kachur, for the defendants, Donald Lomenda and Laura Melnychenko.

These applications were heard by Megaw, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Yorkton, who delivered the following judgment on February 4, 2015.

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