Tessier Estate et al. v. Tessier, (2001) 211 Sask.R. 50 (QB)

• Judge: M-E. Wright, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: August 23, 2001
• Jurisdiction: Saskatchewan
• Citations: (2001), 211 Sask.R. 50 (QB);2001 SKQB 399

Tessier Estate v. Tessier (2001), 211 Sask.R. 50 (QB)

MLB headnote and full text

Temp. Cite: [2001] Sask.R. TBEd. SE.005

Aline Marie Stella Boutin and Edward Deault, as Executors of the Estate of Yvonne Marie Tessier, deceased (plaintiffs) v. Ronald Joseph Tessier, Madeline Marie Tessier and Louis Marie Tessier (defendants)

(1999 Q.B. No. 829; 2001 SKQB 399)

Indexed As: Tessier Estate et al. v. Tessier

Saskatchewan Court of Queen's Bench

Judicial Centre of Prince Albert

M-E. Wright, J.

August 23, 2001.

Summary:

The Tessier's mutually agreed to sell their jointly owned land. Under the agreement for sale, each was to be paid one-half of the purchase price. Mrs. Tessier died. Mrs. Tessier's estate sued Mr. Tessier and the purchasers. At issue was whether the agreement for sale severed the Tessier's joint tenancy in the land and who was entitled to receive the remaining payments under the agreement for sale.

The Saskatchewan Court of Queen's Bench held that the joint tenancy was severed on the purchasers' effective possession date that Mrs. Tessier's estate was entitled to one-half of the proceeds still owing under the agreement for sale.

Contracts - Topic 2533

Variation or alteration - By parties - Oral variation of written contract - The Saskatchewan Court of Queen's Bench stated that a collateral contract which varied a written contract would not be given effect to if the collateral contract was oral and could be proven only by the admission of parol evidence - See paragraph 27.

Contracts - Topic 2533

Variation or alteration - By parties - Oral variation of written contract - The Tessier's mutually agreed to sell their jointly owned land - Under the agreement for sale, each was to be paid one-half of the purchase price - Mrs. Tessier died - Mr. Tessier alleged that the joint tenancy had not been severed and that he was entitled to all of the remaining proceeds - He sought to adduce parol evidence to, inter alia, dispel ambiguities in the agreement for sale or support a claim for rectification - The Saskatchewan Court of Queen's Bench held that the joint tenancy had been severed both by agreement and course of conduct - The court held that certain parol evidence, statements made by Mrs. Tessier to others, were not admissible to prove otherwise because they were not reliable or were of limited probative value - Further, there were no ambiguities in the written agreement - See paragraphs 14 to 26.

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - General - Where admission of hearsay necessary and evidence reliable - [See second Contracts - Topic 2533 ].

Evidence - Topic 6204

Parol evidence rule - General principles - Evidence offered to contradict or explain written agreement - [See both Contracts - Topic 2533 ].

Real Property - Topic 3886

Joint estates - Severance of joint tenancies - Mutual acts which result in severance - The Tessier's mutually agreed to sell their jointly owned land - Under the agreement for sale, each was to be paid one-half of the purchase price - Thirty-nine such payments were made before Mrs. Tessier died - The Tessier's maintained the proceeds in separate bank accounts - The Saskatchewan Court of Queen's Bench held that there were sufficient indicia of the destruction of the unities of interest and possession, both by agreement and course of conduct - The court held that the Tessier's joint tenancy was severed on July 9, 1996, the purchasers' effective possession date, and thereafter their interest in the land and the proceeds of sale were held as tenants in common - See paragraphs 1 to 13.

Real Property - Topic 3887

Joint estates - Severance of joint tenancies - Mutual acts which do not result in severance - The plaintiffs argued that by virtue of the mutual consent of joint tenants to the sale of certain land, and the registration of a caveat by the purchasers, the statutory requirements for severance of the joint title had been met - They relied upon s. 240 of the Land Titles Act - The Saskatchewan Court of Queen's Bench rejected the argument - The court held that s. 240 was not intended to expand upon the common law ways in which a joint tenancy could be severed; rather, it was designed to limit the unilateral alienation of the interest of one joint tenant vis-à-vis another joint tenant - See paragraph 11.

Real Property - Topic 3898

Joint estates - Severance of joint tenancies - Evidence and proof - [See second Contracts - Topic 2533 ].

Cases Noticed:

Johnson v. Johnson, [1980] 5 W.W.R. 717; 3 Sask.R. 75 (Q.B.), refd to. [para. 8].

Williams v. Hensman (1961), 1 John. & H. 546; 70 E.R. 862, refd to. [para. 8].

Royal Bank of Canada v. Babiy and Oliver, [1992] 1 W.W.R. 320; 93 Sask.R. 161; 4 W.A.C. 161 (C.A.), leave to appeal denied [1992] 1 S.C.R. 103; 139 N.R. 238; 113 Sask.R. 159; 52 W.A.C. 159, refd to. [para. 18].

Stonehouse v. British Columbia (Attorney General), [1962] S.C.R. 103; 37 W.W.R.(N.S.) 62, refd to. [para. 9].

Denny, Re; Stokes v. Denny, [1947] 116 L.J.R. 1029, refd to. [para. 10].

Flynn v. Flynn, [1930] I.R. 337, refd to. [para. 10].

McKee v. National Trust Co. Ltd. et al. (1975), 7 O.R.(2d) 614 (C.A.), refd to. [para. 10].

Sorensen Estate v. Sorensen, [1977] 2 W.W.R. 438; 3 A.R. 8 (C.A.), refd to. [para. 10].

Ginn v. Armstrong (1969), 3 D.L.R.(3d) 285 (B.C.S.C.), refd to. [para. 12].

Schofield v. Graham (1969), 6 D.L.R.(3d) 88 (Alta. S.C.), refd to. [para. 12].

Paterson and Paterson Estate v. Paterson (1979), 2 Man.R.(2d) 332; 108 D.L.R.(3d) 234 (Q.B.), refd to. [para. 12].

Steeves v. Steeves, [1997] N.B.R.(2d) (Supp.) No. 124; 33 R.F.L.(4th) 314 (T.D.), refd to. [para. 12].

Sampaio Estate v. Sampaio (1992), 90 D.L.R.(4th) 122 (Ont. Gen. Div.), refd to. [para. 12].

Perry v. Perry Estate (2001), 294 A.R. 387 (Surr. Ct.), refd to. [para. 12].

R. v. Khan, [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353; 59 C.C.C.(3d) 92, refd to. [para. 19].

R. v. Smith (A.L.), [1992] 2 S.C.R. 915; 139 N.R. 323; 55 O.A.C. 321; 75 C.C.C.(3d) 257, refd to. [para. 19].

R. v. Starr (R.D.), [2000] 2 S.C.R. 144;; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161, refd to. [para. 19].

R. v. K.G.B., [1993] 1 S.C.R. 740; 148 N.R. 241; 61 O.A.C. 1; 79 C.C.C.(3d) 257, refd to. [para. 20].

R. v. F.J.U., [1995] 3 S.C.R. 764; 186 N.R. 365; 85 O.A.C. 321, refd to. [para. 20].

R. v. Hawkins (K.R.) and Morin (C.) (1995), 79 O.A.C. 241; 22 O.R.(3d) 193 (C.A.), affd. [1996] 3 S.C.R. 1043; 204 N.R. 241; 96 O.A.C. 81, refd to. [para. 22].

Gallen v. Allstate Grain Co. et al. (1984), 9 D.L.R.(4th) 496 (B.C.C.A.), refd to. [para. 23].

Murray v. Boyle et al. (1991), 93 Sask.R. 165; 4 W.A.C. 165 (C.A.), refd to. [para. 25].

Trans-Canada Pipelines Ltd. v. Northern & Central Gas Corp. (1983), 146 D.L.R.(3d) 293 (Ont. C.A.), refd to. [para. 25].

Hart v. Boutilier (1916), 56 D.L.R. 620 (S.C.C.), reving. (1916), 28 D.L.R. 791 (N.S.T.D.), refd to. [para. 26].

Bercovici v. Palmer (1966), 58 W.W.R.(N.S.) 112 (Sask. C.A.), refd to. [para. 26].

Rose (London) Ltd. v. Pim, Jr. & Co., [1953] 2 Q.B. 450; [1953] 3 W.L.R. 497; [1953] 2 All E.R. 739, refd to. [para. 26].

Hawrish v. Bank of Montreal, [1969] S.C.R. 515, refd to. [para. 27].

Statutes Noticed:

Land Titles Act, R.S.S. 1978, c. L-5, sect. 240 [para. 9].

Authors and Works Noticed:

Anger and Honsberger, The Law of Real Property (2nd Ed. 1985), vol. 1, p. 805 [para. 12].

Fridman, G.H.L., The Law of Contract in Canada (3rd Ed. 1994), pp. 455, 456 [para. 23].

Ziff, Bruce, Principles of Property Law (2nd Ed. 1996), p. 302 [paras. 11, 12].

Counsel:

L.J. Zatlyn, Q.C., for the plaintiffs;

D.B. Heffernan, for the defendants.

This action was heard by M-E. Wright, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Prince Albert, who delivered the following decision on August 23, 2001.