Terrace Consulting Inc. v. Jackson, 2011 ABQB 108

• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: February 02, 2011
• Citations: 2011 ABQB 108;(2011), 521 A.R. 22 (QBM)

Terrace Consulting Inc. v. Jackson (2011), 521 A.R. 22 (QBM)

MLB headnote and full text

Temp. Cite: [2011] A.R. TBEd. JN.057

Terrace Consulting Inc. (plaintiff) v. Kent Jackson and Myrna Jackson (defendant)

(1008 00349; 2011 ABQB 108)

Indexed As: Terrace Consulting Inc. v. Jackson

Alberta Court of Queen's Bench

Judicial District of Medicine Hat

Hanebury, Master

February 22, 2011.

Summary:

The plaintiff sued the defendants seeking to enforce its remedies under an offer to purchase a condominium. In their statement of defence, the defendants alleged that they were told that they were signing a rent to own contract. They alleged innocent, negligent and fraudulent misrepresentation, mistake and non est factum. In their counterclaim, the defendants adopted the allegations in their statement of defence and sought $4,000 damages (amount of the deposit). The plaintiff sought summary judgment.

A Master of the Alberta Court of Queen's Bench dismissed the summary judgment application. Fraudulent misrepresentation had been pled, but the particulars had not been adequately described. The evidence provided in the purchasers' affidavits supported a claim of intentional misrepresentation, either fraudulent or negligent. The counterclaim was based in tort and in law was not defeated by the entire agreement clause. It therefore raised a triable issue and should proceed to trial. The defence, had it been properly pled, would also defeat the summary judgment application. An intentional misrepresentation of the nature alleged should proceed to trial. Therefore, the defendants were directed to amend their statement of defence to better particularize the alleged misrepresentations as required by the Alberta Rules of Court.

Contracts - Topic 2116

Terms - Express terms - "Entire agreement" or "four corners" clause - The plaintiff sued the defendants seeking to enforce its remedies under an offer to purchase a condominium - In their statement of defence, the defendants alleged that they were told that they were signing a rent to own contract - They alleged innocent, negligent and fraudulent misrepresentation, mistake and non est factum - In their counterclaim, the defendants adopted the allegations in their statement of defence and sought $4,000 damages (amount of the deposit) - The plaintiff sought summary judgment - A Master of the Alberta Court of Queen's Bench stated that "From this case law the following general principles relevant to the case before this Court have been established: (a) a claim may sound both in tort and in contract; (b) when the claim in tort is for a representation that preceded the contract, to be actionable that representation must not have become an express term of the contract; (c) if there is an entire agreement clause in a contract it will be strictly construed against the party relying on it; (d) when a valid claim in tort is brought, an entire agreement or similar clause in the contract will not operate to bar the claim in tort unless the clause has specifically excluded a claim in negligence; (e) when a claim is in contract and a defendant alleges fraudulent misrepresentation, an entire agreement clause will not summarily foreclose a defence based on that allegation; (f) in British Columbia when a claim is in contract and a defendant alleges negligent misrepresentation, an entire agreement clause will not summarily foreclose a defence based on that allegation if the misrepresentation was on a point of substance that could reasonably have induced the defendant to enter into the contract; and (g) this latter statement of the law does not appear to have been adopted in Alberta." - See paragraph 55.

Contracts - Topic 2116

Terms - Express terms - "Entire agreement" or "four corners" clause - The plaintiff sued the defendants seeking to enforce its remedies under an offer to purchase a condominium - In their statement of defence, the defendants alleged that they were told that they were signing a rent to own contract - They alleged innocent, negligent and fraudulent misrepresentation, mistake and non est factum - In their counterclaim, the defendants adopted the allegations in their statement of defence and sought $4,000 damages (amount of the deposit) - The plaintiff sought summary judgment - A Master of the Alberta Court of Queen's Bench refused summary judgment - Fraudulent misrepresentation had been pled, but the particulars had not been adequately described - The evidence provided in the purchasers' affidavits supported a claim of intentional misrepresentation, either fraudulent or negligent - The counterclaim was based in tort and in law was not defeated by the entire agreement clause - It therefore raised a triable issue and should proceed to trial - The defence, had it been properly pled, would also defeat the summary judgment application - The court's goal was to see that justice was done - An intentional misrepresentation of the nature alleged should proceed to trial - Therefore, the defendants were directed to amend their statement of defence to better particularize the alleged misrepresentations as required by the Alberta Rules of Court.

Evidence - Topic 6205

Parol evidence rule - General principles - Evidence offered to show that document itself was not whole contract - [See first Contracts - Topic 2116 ].

Fraud and Misrepresentation - Topic 266

Fraudulent misrepresentation (deceit) - As a defence - Contract actions - [See first Contracts - Topic 2116 ].

Fraud and Misrepresentation - Topic 2508

Misrepresentation - General principles - Negligent misrepresentation - [See first Contracts - Topic 2116 ].

Fraud and Misrepresentation - Topic 2516

Misrepresentation - General principles - Contracts - [See first Contracts - Topic 2116 ].

Practice - Topic 1956

Pleadings - Particulars - Particulars in specific proceedings - Fraud and misrepresentation - A Master of the Alberta Court of Queen's Bench stated that "It is established law that fraudulent misrepresentation must be plead with specificity. Rule 13.7 Alberta Rules of Court; WIC Premium Television Ltd. v. General Instrument Corp. (1999) 253 A.R. 153 (Q.B.); Pepsi-Cola Canada Inc. v. P.M. Foods Ltd. (1985) 61 A.R. 340 (Q.B.). The pleading should include: the alleged misrepresentation; when, where, how, by whom and to whom it was made; its falsity; the inducement; the intention that the plaintiff should rely on it; the alteration of the plaintiff of his or her position relying on the misrepresentation; and, the resulting loss or damage: W.I.C. Premium." - See paragraph 15.

Practice - Topic 2126.1

Pleadings - Amendment of pleadings - Statement of defence - Adding particulars or subsequent facts - [See second Contracts - Topic 2116 ].

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - [See second Contracts - Topic 2116 ].

Practice - Topic 5708

Judgments and orders - Summary judgments - Bar to application - Existence of issue to be tried - [See second Contracts - Topic 2116 ].

Cases Noticed:

WIC Premium Television Ltd. v. General Instrument Corp. et al. (1999), 253 A.R. 153 (Q.B.), refd to. [para. 13].

Pepsi-Cola Canada Inc. and Pizza Hut Inc. v. P.M. Foods Ltd. et al. (1985), 61 A.R. 340 (Q.B.), refd to. [para. 13].

1250810 Alberta Ltd. v. 1284768 Alberta Ltd. (2010), 489 A.R. 201; 2010 ABQB 125, refd to. [para. 15].

Hansen v. Twin City Construction Co. and Stefanik (1982), 37 A.R. 433; 19 Alta. LR.(2d) 335 (Q.B.), refd to. [para. 15].

Pioneer Exploration v. Euro-Am (2003), 339 A.R. 165; 312 W.A.C. 165 (C.A.), refd to. [para. 17].

Hawrish v. Bank of Montreal, [1969] S.C.R. 515, refd to. [para. 18].

Dover Towing (1995) Ltd. v. Paramount Towing Ltd. - see Woodridge Lincoln Mercury Sales Ltd. v. Paramount Towing Ltd.

Woodridge Lincoln Mercury Sales Ltd. v. Paramount Towing Ltd. (2000), 261 A.R. 372; 225 W.A.C. 372; 2000 ABCA 147, refd to. [para. 18].

Gainers Inc. v. Pocklington Holdings Inc. (2000), 255 A.R. 373; 220 W.A.C. 373; 2000 ABCA 151, refd to. [para. 18].

Zaccardelli et al. v. Kraus et al., [2003] A.R. Uned. 218; 2003 ABQB 319 (Master), refd to. [para. 18].

Guaranty Properties Ltd. et al. v. Edmonton (City) (2000), 261 A.R. 376; 225 W.A.C. 376; 2000 ABCA 215, refd to. [para. 24].

Gallen v. Allstate Grain Co. et al. (1984), 9 D.L.R.(4th) 496 (B.C.C.A.), leave to appeal refused (1984), 56 N.R. 233 (S.C.C.), refd to. [para. 24].

Paddon Hughes Development Co. v. Pancontinental Oil Ltd. et al. (1998), 223 A.R. 180; 183 W.A.C. 180 (C.A.), refd to. [para. 28].

Case Threshing Machine v. Mitten (1919), 59 S.C.R. 118 (S.C.C.), refd to. [para. 29].

Kaster v. Cowan, [1925] 2 D.L.R. 742 (Alta. C.A.), refd to. [para. 30].

Alberta (Treasury Branches) v. Robinson et al., [1999] A.R. Uned. 480; 1999 ABQB 627, refd to. [para. 31].

Marwood Cedar Homes Ltd. v. Hanson Food Processing Ltd. (1988), 86 A.R. 207 (Q.B. Master), refd to. [para. 32].

C Corp. (Ontario) Ltd. v. Wesbru Holdings Ltd. (1988), 91 A.R. 210 (Q.B.), refd to. [para. 32].

Steeplejack Services (Canada) Ltd. v. Access Scaffold and Ladder Co. (1989), 98 A.R. 311 (Q.B. Master), refd to. [para. 32].

Everall Construction Ltd. v. Olson (Stuart) Construction Inc. (1990), 107 A.R. 85; 74 Alta. L.R.(2d) 357 (Q.B. Master), refd to. [para. 32].

Bucci Xenex Project Ltd. v. Ramasiuk (2010), 498 A.R. 341; 2010 ABQB 389, refd to. [para. 32].

Gainers Inc. v. Pocklington Holdings Inc. (2000), 255 A.R. 373; 220 W.A.C. 373; 2000 ABCA 151, refd to. [para. 33].

Central Trust Co. v. Rafuse and Cordon, [1986] 2 S.C.R. 147; 69 N.R. 321; 75 N.S.R.(2d) 109; 186 A.P.R. 109, refd to. [para. 35].

BG Checo International Ltd. v. British Columbia Hydro and Power Authority, [1993] 1 S.C.R. 12; 147 N.R. 81; 20 B.C.A.C. 241; 35 W.A.C. 241, refd to. [para. 35].

Queen (D.J.) v. Cognos Inc., [1993] 1 S.C.R. 87; 147 N.R. 169; 60 O.A.C. 1, refd to. [para. 35].

Bow Valley Husky (Bermuda) Ltd. et al. v. Saint John Shipbuilding Ltd. et al., [1997] 3 S.C.R. 1210; 221 N.R. 1; 158 Nfld. & P.E.I.R. 269; 490 A.P.R. 269, refd to. [para. 38].

Bank of Montreal v. 239199 Alberta Ltd. - see 239199 Alberta Ltd. v. Patel et al.

239199 Alberta Ltd. v. Patel et al. (1993), 145 A.R. 10; 55 W.A.C. 10 (C.A.), refd to. [para. 39].

Zippy Print Enterprises Ltd. v. Pawliuk et al., [1994] B.C.J. No. 2778 (C.A.), not folld. [para. 39].

Betker v. Williams (1991), 8 B.C.A.C. 265; 17 W.A.C. 265; 63 B.C.L.R.(2d) 14 (C.A.), refd to. [para. 39].

Unryn v. Melcor Developments Ltd. (1994), 159 A.R. 336 (Q.B.), refd to. [para. 39].

Opron Construction Co. v. Alberta (1994), 151 A.R. 241 (Q.B.), refd to. [para. 39].

Beenham et al. v. Rigel Oil & Gas Ltd. et al. (1998), 236 A.R. 276; 1998 ABQB 1043, refd to. [para. 39].

Dornan Petroleum Inc. et al. v. Petro-Canada et al. (1996), 189 A.R. 241 (Q.B.), refd to. [para. 39].

40 Sunpark Plaza Inc. v. 850453 Alberta Inc. (2007), 413 A.R. 200; 2007 CarswellAlta 104; 2007 ABQB 54, refd to. [para. 40].

Slessio v. Jovica et al., [1973] A.J. No. 205 (C.A.), refd to. [para. 43].

No. 2002 Taurus Ventures Ltd. v. Intrawest Corp. - see Intrawest Corp. v. No. 2002 Taurus Ventures Ltd. et al.

Intrawest Corp. v. No. 2002 Taurus Ventures Ltd. et al. (2007), 240 B.C.A.C. 112; 398 W.A.C. 112; 2007 BCCA 228, refd to. [para. 40, footnote 2].

MacMillan v. Kaiser Equipment Ltd. et al. (2004), 196 B.C.A.C. 117; 322 W.A.C. 117; 2004 BCCA 270, refd to. [para. 40, footnote 2].

Turner v. Visscher Holdings Inc. (1996), 77 B.C.A.C. 48; 126 W.A.C. 48; 23 B.C.L.R.(3d) 304 (C.A.), refd to. [para. 40, footnote 2].

TWT Enterprises Ltd. v. Westgreen Developments (North) Ltd. (1992), 127 A.R. 353 (C.A.), refd to. [para. 52, footnote 3].

Authors and Works Noticed:

Mayson, Tom F., The Use of Extrinsic Evidence in the Interpretation of Written Agreements in Alberta (2004), 42 Alta. L. Rev. 499, para. 123 [para. 26, footnote 1].

Counsel:

Kenneth C. Reeder (MacLean Wiedemann Lawyers LLP), for the plaintiff;

John F. Stodalka (Niblock & Company LLP), for the defendants.

This matter was heard on February 2, 2011, by Hanebury, Master, of the Alberta Court of Queen's Bench, Judicial District of Medicine Hat, who delivered the following decision on February 22, 2011.