Tree Island Steel Co. v. Treeter and Treeter, (1976) 2 A.R. 34 (CA)

JudgeProwse, Moir and Haddad, JJ.A.
CourtCourt of Appeal (Alberta)
Case DateOctober 12, 1976
Citations(1976), 2 A.R. 34 (CA)

Tree Island Steel Co. v. Treeter (1976), 2 A.R. 34 (CA)

MLB headnote and full text

Tree Island Steel Co. Ltd. v. Treeter and Treeter

Indexed As: Tree Island Steel Co. v. Treeter and Treeter

Alberta Supreme Court

Appellate Division

Prowse, Moir and Haddad, JJ.A.

October 12, 1976.

Summary:

This case arose out of the plaintiff's claim in contract against the defendants. The defendants owned all of the shares in a company and agreed to sell the shares to the plaintiff. The agreement for sale included an agreement that the male defendant was to be employed as manager of the company for a period of two years, but that such employment could be terminated by either party at any time. In such event the sale price was to be reduced. The male defendant was dismissed after two weeks and the plaintiff brought an action for a declaration that the purchase price should be reduced. The defendants counterclaimed on the basis of fraud. The defendants applied for a trial by jury. The chambers judge dismissed the application on the grounds that the defendants' counterclaim was not an action and the claim was not in contract within the meaning of s. 32(1) of the Jury Act, R.S.A. 1970, c. 194. The defendants appealed.

The Appellate Division allowed the appeal. The Appellate Division held that the defendants' counterclaim was an action within the meaning of s. 32 of the Jury Act. The Appellate Division held that the defendants' counterclaim for fraud was an action founded in tort within the meaning of s. 32(1)(b). The Appellate Division held that the defendants' action fell within the terms of s. 32(1) and that they were entitled to a jury trial.

Practice - Topic 1821

Pleadings - Counterclaim - General principles - The Alberta Court of Appeal held that a counterclaim was an action within the meaning of s. 32 of the Jury Act, R.S.A. 1970, c. 194, for the purpose of an application for trial by jury.

Practice - Topic 5100

Juries and jury trials - Right to jury - General principles - Jury Act, R.S.A. 1970, c. 194, s. 32 - Rules of Court, Rule 234 - The plaintiff brought an action against the defendants and the defendants counterclaimed for fraud - The defendants applied for a jury trial - The chambers judge dismissed the application on the grounds that the defendants' counterclaim was not an action and the claim was not in contract within the meaning of s. 32(1) of the Jury Act - The Appellate Division held that an action within the meaning of s. 32 included any cause of action, whether commenced by a statement of claim or counterclaim - The Alberta Court of Appeal held that the defendants' claim for fraud was an action founded in tort within the meaning of s. 32(1)(b) - The Appellate Division held that the defendants' action fell within the terms of s. 32(1) and that they were entitled to a jury trial - The Appellate Division held further that the court could order any issue to be tried by jury under Rule 234 of the Rules of Court.

Words and Phrases

Action - The Alberta Court of Appeal discussed the meaning of "action" as found in s. 32(1) of the Jury Act, R.S.A. 1970, c. 194 - The Appellate Division held that a counterclaim was an action within the meaning of s. 32 of the Jury Act for the purpose of an application for a trial by jury.

Cases Noticed:

Rich v. Henson, [1923] 1 W.W.R. 812, appld. [para. 10].

Douglas Lake Cattle Company Ltd. v. Reinseth, [1922] 1 W.W.R. 1258 (B.C.C.A.), appld. [para. 11].

Statutes Noticed:

Jury Act, R.S.A. 1970, c. 194, sect. 32 [para. 1].

Rules of Court (Alta.), rule 5(a), rule 234, rule 235 [para. 1].

Counsel:

B.C. Vogel, for Tree Island Steel Co. Ltd.;

D. Spitz, for Werner and Gertrude Treeter.

This case was heard at Edmonton, Alberta, before PROWSE, MOIR and HADDAD, JJ.A., of the Alberta Supreme Court, Appellate Division.

On October 12, 1976, PROWSE, J.A., delivered the following judgement of the Appellate Division:

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10 practice notes
  • Hajjar v. Repetowski, (2001) 319 A.R. 251 (QB)
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • 7 Mayo 2001
    ...16 refers to a cause of action whether commenced by statement of claim or counterclaim ( Tree Island Steel Co. v. Treeter and Treeter (1976), 2 A.R. 34; 72 D.L.R.(3d) 172 (C.A.)." [56] The aspect of Hammond which discusses equitable remedies and the history of non-jury determinations need n......
  • Coulter v. Co-operators Life Insurance Co., 2013 ABCA 295
    • Canada
    • Court of Appeal (Alberta)
    • 6 Septiembre 2013
    ...refd to. [para. 23]. Davies v. Nelson, [1928] 1 D.L.R. 254; 61 O.L.R. 457 (C.A.), refd to. [para. 24]. Tree Island Steel Co. v. Treeter (1976), 2 A.R. 34; 72 D.L.R.(3d) 172 (C.A.), refd to. [para. 39]. Canadian Imperial Bank of Commerce v. Wedeene River Contracting Co. et al. (1992), 7 C.P.......
  • Purba v. Ryan, (2006) 397 A.R. 251 (CA)
    • Canada
    • Court of Appeal (Alberta)
    • 5 Junio 2006
    ...Cases Noticed: Rich v. Henson, [1923] 2 D.L.R. 111; 19 Alta. L.R. 103 (C.A.), refd to. [para. 5]. Tree Island Steel Co. v. Treeter (1976), 2 A.R. 34; 72 D.L.R.(3d) 172 (C.A.), refd to. [para. Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC......
  • Alberta (Treasury Branches) v. Hammond,
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • 21 Septiembre 1999
    ...Fairview Cycle Ltd. (1987), 75 A.R. 198; 49 Alta. L.R.(2d) 395 (C.A.), refd to. [para. 7]. Tree Island Steel Co. v. Treeter and Treeter (1976), 2 A.R. 34; 72 D.L.R.(3d) 172 (C.A.), refd to. [para. K.M. v. H.M., [1992] 3 S.C.R. 6; 142 N.R. 321; 57 O.A.C. 321, refd to. [para. 10]. Haggart Con......
  • Request a trial to view additional results
10 cases
  • Hajjar v. Repetowski, (2001) 319 A.R. 251 (QB)
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • 7 Mayo 2001
    ...16 refers to a cause of action whether commenced by statement of claim or counterclaim ( Tree Island Steel Co. v. Treeter and Treeter (1976), 2 A.R. 34; 72 D.L.R.(3d) 172 (C.A.)." [56] The aspect of Hammond which discusses equitable remedies and the history of non-jury determinations need n......
  • Coulter v. Co-operators Life Insurance Co., 2013 ABCA 295
    • Canada
    • Court of Appeal (Alberta)
    • 6 Septiembre 2013
    ...refd to. [para. 23]. Davies v. Nelson, [1928] 1 D.L.R. 254; 61 O.L.R. 457 (C.A.), refd to. [para. 24]. Tree Island Steel Co. v. Treeter (1976), 2 A.R. 34; 72 D.L.R.(3d) 172 (C.A.), refd to. [para. 39]. Canadian Imperial Bank of Commerce v. Wedeene River Contracting Co. et al. (1992), 7 C.P.......
  • Purba v. Ryan, (2006) 397 A.R. 251 (CA)
    • Canada
    • Court of Appeal (Alberta)
    • 5 Junio 2006
    ...Cases Noticed: Rich v. Henson, [1923] 2 D.L.R. 111; 19 Alta. L.R. 103 (C.A.), refd to. [para. 5]. Tree Island Steel Co. v. Treeter (1976), 2 A.R. 34; 72 D.L.R.(3d) 172 (C.A.), refd to. [para. Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC......
  • Alberta (Treasury Branches) v. Hammond,
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • 21 Septiembre 1999
    ...Fairview Cycle Ltd. (1987), 75 A.R. 198; 49 Alta. L.R.(2d) 395 (C.A.), refd to. [para. 7]. Tree Island Steel Co. v. Treeter and Treeter (1976), 2 A.R. 34; 72 D.L.R.(3d) 172 (C.A.), refd to. [para. K.M. v. H.M., [1992] 3 S.C.R. 6; 142 N.R. 321; 57 O.A.C. 321, refd to. [para. 10]. Haggart Con......
  • Request a trial to view additional results

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