Turner v. DN Developments Ltd. et al., 2011 ABQB 554

JudgeBrowne, J.
CourtCourt of Queen's Bench of Alberta (Canada)
Case DateJune 09, 2011
Citations2011 ABQB 554;(2011), 525 A.R. 370 (QB)

Turner v. DN Dev. Ltd. (2011), 525 A.R. 370 (QB)

MLB headnote and full text

Temp. Cite: [2011] A.R. TBEd. SE.099

Raymond Turner and Lori Turner (applicants) v. DN Developments Ltd. and Darren's Homes (respondents)

(0703 13664; 2011 ABQB 554)

Indexed As: Turner v. DN Developments Ltd. et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Browne, J.

September 13, 2011.

Summary:

Landowners hired developers to construct a home on their land for $1,231,659.32. During the course of the construction, the parties negotiated a number of change orders. Litigation ensued respecting the work done and whether any money remained owing. The owners paid $1,286,000 to the developers. The developers claimed that a further $245,417.97 was owing. The developers filed a caveat, claiming an equitable encumbrance under and by virtue of the construction agreement. The developers also filed a builder's lien. The owners applied to discharge the caveat.

A Master of the Alberta Court of Queen's Bench concluded that the total price of the development was $1,231,659.32 plus any adjustment for change orders. The Master ordered that the caveat be discharged where the contract was not sufficiently clear to permit a caveat to be filed. The developers appealed the decision to discharge the caveat.

The Alberta Court of Queen's Bench allowed the appeal, holding that the caveat was validly filed and the construction agreement created an interest in land and permitted the registration of a caveat. The court affirmed that the purchase price included potentially valid change orders and any caveat or builder's lien was therefore not limited to the specified purchase price contained in the agreement.

Building Contracts - Topic 741

The contract - Interpretation - General - Landowners hired developers to construct a home on their land for $1,231,659.32 - During the construction process, the parties negotiated a number of change orders - Litigation ensued respecting the work done and the amount owed - The owners paid $1,286,000 without placing a mortgage against the property - The developers claimed that $245,417.97 remained owing - The developers filed a caveat, claiming an equitable encumbrance pursuant to the construction agreement - The owners applied to discharge the caveat, asserting that clause 6 of the agreement only permitted a caveat to be filed when a mortgage was placed on the property - A Master ordered that the caveat be discharged where the contract was not sufficiently clear to permit a caveat to be filed - The Alberta Court of Queen's Bench, applying the correctness standard, allowed the developers' appeal - Reading the contract as a whole, it was apparent that clause 6 was intended to protect the developers' interest in being paid - It first provided that the owners had the registered title to the land - It then contained a number of conditional clauses using the word "if" - Those clauses were followed by a non-conditional clause (i.e., it did not include "if") that permitted the developers to register a caveat - The import of that clause was that the owners agreed that the developers would be entitled to register a caveat which would constitute an equitable mortgage against the land - That was consistent with the overall context of the clause as it protected the developers' interest in being paid - It would be illogical to conclude that the contract permitted a caveat only where there was a mortgage - That would not be consistent with the parties' reasonable expectations and would be contrary to "compelling notions of business efficacy" - The provision was set in context of a paragraph entitled "Title and Mortgage", but that was insufficient to create any ambiguity, given the clear language and context - Accordingly, the contra proferentem doctrine did not have to be considered - See paragraphs 1 to 26.

Building Contracts - Topic 748

The contract - Interpretation - Inference of businesslike intention - [See Building Contracts - Topic 741 ].

Building Contracts - Topic 807

The contract - Variation - Extras - General - Landowners hired developers to construct a home on their land for $1,231,659.32 - During the construction process, the parties negotiated a number of change orders - Litigation ensued respecting the work done and the amount owed - The owners paid $1,286,000 without placing a mortgage against the property - The developers claimed that $245,417.97 remained owing - The developers filed a caveat, claiming an equitable encumbrance pursuant to the construction agreement - The owners applied to discharge the caveat, asserting that clause 6 of the agreement only permitted a caveat to be filed when a mortgage was placed on the property - A Master concluded that the total price of the development was $1,231,659.32 plus any adjustment for change orders - The Master ordered that the caveat be discharged where the contract was not sufficiently clear to permit a caveat to be filed - The Alberta Court of Queen's Bench agreed with the Master's finding respecting the total price of the contract - The change orders clearly operated to increase or decrease the purchase price - It did not make common sense that the purchaser signed a change order, the developers acted on the change order and the developers received no compensation for the work done pursuant to the change order - The interpretation of the purchase price contained in the agreement had to therefore include any valid change orders - See paragraphs 27 and 28.

Building Contracts - Topic 2630

Payment - Compensation to builder - Extras - Determination of amount of compensation - [See Building Contracts - Topic 807 ].

Contracts - Topic 7401

Interpretation - General principles - Reasonable expectations - [See Building Contracts - Topic 741 ].

Contracts - Topic 7406

Interpretation - General principles - Interpretation by context - [See Building Contracts - Topic 741 ].

Contracts - Topic 7416

Interpretation - General principles - Most commercially reasonable interpretation - [See Building Contracts - Topic 741 ].

Contracts - Topic 7426

Interpretation - Ambiguity - What constitutes ambiguity - [See Building Contracts - Topic 741 ].

Courts - Topic 1127

Masters - Appeals from - Standard of review - [See Building Contracts - Topic 741 ].

Cases Noticed:

United Utility Workers Association of Canada et al. v. TransAlta Corp. et al. (2004), 354 A.R. 58; 329 W.A.C. 58; 2004 ABCA 200, leave to appeal denied (2005), 337 N.R. 190; 371 A.R. 401; 354 W.A.C. 401 (S.C.C.), refd to. [para. 10].

Desoto Resources Ltd. v. Encana Corp. et al. (2010), 491 A.R. 97; 31 Alta. L.R.(5th) 282; 2010 ABQB 448, refd to. [para. 10].

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 33, refd to. [para. 11].

Janvier et al. v. 834474 Alberta Ltd. et al. (2010), 511 A.R. 76; 2010 ABQB 800, refd to. [para. 11].

Royal Bank of Canada v. Place (2010), 504 A.R. 230; 2010 ABQB 733, refd to. [para. 11].

Lee v. Lepage et al., [2010] A.R. Uned. 914; 2010 ABQB 829, refd to. [para. 11].

Heritage Station Inc. v. Professional Stucco Inc. et al., [2011] A.R. Uned. 63; 2011 ABQB 18, refd to. [para. 11].

Ma v. Quinn et al., [2011] A.R. Uned. 325; 2011 ABQB 103, refd to. [para. 15].

Pivotal Capital Advisory Group Ltd. v. NorAmera BioEnergy Corp. (2010), 487 A.R. 313; 495 W.A.C. 313; 2010 ABCA 199, refd to. [para. 13].

Jager v. Liberty Mutual Fire Insurance Co. et al. (2001), 281 A.R. 273; 248 W.A.C. 273; 2001 ABCA 163, refd to. [para. 13].

Double N Earthmovers Ltd. v. Edmonton (City) et al. (2005), 363 A.R. 201; 343 W.A.C. 201; 2005 ABCA 104, affd. [2007] 1 S.C.R. 116; 356 N.R. 211; 401 A.R. 329; 391 W.A.C. 329; 2007 SCC 3, refd to. [para. 13].

Keephills Aggregate Co. v. Riverview Properties Inc., [2011] A.R. Uned. 42; 2011 ABCA 101, refd to. [para. 20].

McDonald Crawford v. Morrow (2004), 348 A.R. 118; 321 W.A.C. 118; 2004 ABCA 150, refd to. [para. 21].

ATCO Electric Ltd. v. Energy and Utilities Board (Alta.) (2004), 361 A.R. 1; 339 W.A.C. 1; 2004 ABCA 215, refd to. [para. 21].

Counsel:

Brent W. Mielke, for the applicants;

James K. McFadyen, for the respondents.

This appeal was heard on June 9, 2011, by Browne, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following memorandum of decision on September 13, 2011.

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3 practice notes
  • Toronto Dominion Bank v. Letendre et al., 2012 ABQB 323
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • 28 Marzo 2012
    ..., Limitation of Actions - Topic 2181 and Limitation of Actions - Topic 2182 ]. Cases Noticed: Turner v. DN Developments Ltd. et al. (2011), 525 A.R. 370; 2011 ABQB 554, 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 33, re......
  • Bahcheli v. Yorkton Securities Inc. et al.,
    • Canada
    • Court of Appeal (Alberta)
    • 4 Abril 2012
    ...et al. v. 834474 Alberta Ltd. et al. (2010), 511 A.R. 76; 2010 ABQB 800, refd to. [para. 5]. Turner v. DN Developments Ltd. et al. (2011), 525 A.R. 370; 2011 ABQB 554, refd to. [para. 5]. Gudzinski Estate v. Allianz Global Risks US Insurance Co. et al. (2012), 519 A.R. 215; 539 W.A.C. 215; ......
  • Owners-Condominium Plan No. 762 1302 v. Stebbing, 2015 ABQB 219
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • 16 Enero 2015
    ...error, while issues of law are reviewed on a correctness standard. The Appellant, in support, cites Turner v DN Developments Ltd , 2011 ABQB 554, 525 AR 370. [6] This is not the correct standard of review. That judgment was subsequently overruled by Bahcheli v Yorkton Securities Inc , 2012 ......
3 cases
  • Toronto Dominion Bank v. Letendre et al., 2012 ABQB 323
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • 28 Marzo 2012
    ..., Limitation of Actions - Topic 2181 and Limitation of Actions - Topic 2182 ]. Cases Noticed: Turner v. DN Developments Ltd. et al. (2011), 525 A.R. 370; 2011 ABQB 554, 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 33, re......
  • Bahcheli v. Yorkton Securities Inc. et al.,
    • Canada
    • Court of Appeal (Alberta)
    • 4 Abril 2012
    ...et al. v. 834474 Alberta Ltd. et al. (2010), 511 A.R. 76; 2010 ABQB 800, refd to. [para. 5]. Turner v. DN Developments Ltd. et al. (2011), 525 A.R. 370; 2011 ABQB 554, refd to. [para. 5]. Gudzinski Estate v. Allianz Global Risks US Insurance Co. et al. (2012), 519 A.R. 215; 539 W.A.C. 215; ......
  • Owners-Condominium Plan No. 762 1302 v. Stebbing, 2015 ABQB 219
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • 16 Enero 2015
    ...error, while issues of law are reviewed on a correctness standard. The Appellant, in support, cites Turner v DN Developments Ltd , 2011 ABQB 554, 525 AR 370. [6] This is not the correct standard of review. That judgment was subsequently overruled by Bahcheli v Yorkton Securities Inc , 2012 ......

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