Westward Farms Ltd. and Deniau v. Cadieux et al., (1981) 9 Man.R.(2d) 96 (QB)

• Judge: Wright, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: March 17, 1981
• Jurisdiction: Manitoba
• Citations: (1981), 9 Man.R.(2d) 96 (QB)

Westward Farms Ltd. v. Cadieux (1981), 9 Man.R.(2d) 96 (QB)

MLB headnote and full text

Westward Farms Ltd. and Deniau v. Cadieux (defendant) and Barnabe, McKague Sigmar Realty Ltd., Fillion and Durand (third parties); Barnabe v. Cadieux (defendant) and McKague Sigmar Realty Ltd., Fillion and Durand (third parties)

Indexed As: Westward Farms Ltd. and Deniau v. Cadieux et al.

Manitoba Court of Queen's Bench

Wright, J.

March 17, 1981.

Summary:

This case arose out of a dispute respecting the sale of a farm. The owner leased the farm to Barnabe with a right of first refusal on its sale. The owner's wife did not sign the right of first refusal. Subsequently, the owner agreed to sell the land to Westward Farms Ltd., without informing Barnabe. However, later the owner agreed to sell the land to Barnabe. Both Westward Farms Ltd. and Barnabe brought actions for specific performance against the owner.

The Manitoba Court of Queen's Bench allowed the action of Westward Farms Ltd. for specific performance. The court dismissed Barnabe's action for specific performance, because the owner's wife did not sign the right of first refusal as required by the Dower Act, but allowed Barnabe's action for damages against the owner.

Brokers - Topic 8

General - Salesman - Defined - A man, who had an interest in a corporate purchaser of land, had an arrangement with the real estate agent by which he assisted the agent in obtaining potential purchasers of land - The seller of land to the company attacked the agreement for sale on the ground that, as a salesman, the man failed to inform him of his interest in the purchasing company contrary to s. 19 of the Real Estate Brokers Act - The Manitoba Court of Queen's Bench held that the man was not a salesman within the meaning of the Act and that the Act was inapplicable - See paragraphs 6 to 65.

Estoppel - Topic 1158

Estoppel by conduct - Representation by conduct - Silence or standing by - Business relations - The purchaser of land informed the seller that a condition precedent to the transaction would not be satisfied, but that the purchaser wished to proceed in any event - The seller said nothing and only raised the failure to satisfy the condition precedent after an action for specific performance was begun by the purchaser - The Manitoba Court of Queen's Bench held that the seller was estopped from relying on the failure to satisfy the condition precedent - See paragraphs 44 to 50.

Real Property - Topic 245

General principles - Incidents of ownership - Restrictions on alienation - Statutory - Effect of - The Manitoba Court of Queen's Bench held that the sale of land to a person who is not a resident Canadian contrary to the Farm Lands Protection Act, C.C.S.M., c. A-15, could be attacked only under the provisions of the Act - The court held that the failure to comply with the Act could not be raised as a defence to an action for specific performance of sale of land - See paragraphs 51 to 59.

Real Property - Topic 2205

Dower - Assignment or bar - Requirement of consent in writing - The owner of a homestead property and his wife signed an agreement for sale of the land - The Manitoba Court of Queen's Bench held that the wife's signature constituted a consent in writing to the disposition of the land within the meaning of the Dower Act, R.S.M. 1970, c. D-100 - See paragraphs 33 to 39 - The court held further that the Dower Act did not require compliance with the acknowledgment provisions of s. 8 in order to validate a consent otherwise made in conformity with the Act - See paragraphs 25 to 32.

Real Property - Topic 2205

Dower - Assignment or bar of dower - Requirement of consent in writing - The owner of a homestead property gave the lessee of the land a right of first refusal on sale of the land - The owner's wife did not sign the right of first refusal - The Manitoba Court of Queen's Bench held that the lessee was not entitled to specific performance of the right of first refusal, because the right was a disposition of the land to which the owner's wife was required to consent under the Dower Act, R.S.M. 1970, c. E-100 - See paragraph 34.

Sale of Land - Topic 6029

Completion - Conditions - Condition precedent - What constitutes - An agreement for the sale of farmland was conditional upon other purchases by the purchaser being completed - The Manitoba Court of Queen's Bench held that the condition was a true condition precedent, which could not be waived by the purchaser - See paragraphs 40 to 44.

Sale of Land - Topic 6033

Completion - Conditions - Condition precedent - Conditions precedent which cannot be waived - An agreement for the sale of farmland was conditional upon other purchases by the purchaser being completed - The Manitoba Court of Queen's Bench held that the condition was a true condition precedent, which could not be waived by the purchaser - See paragraphs 40 to 44.

Sale of Land - Topic 8759

Remedies of purchaser - Damages - Where seller's title defective - Rule in Bain v. Fothergill - The owner of farmland gave the lessee of the land a right of first refusal on sale, but then agreed to sell the land to another without giving the lessee first refusal - The Manitoba Court of Queen's Bench held that the owner was liable to the lessee for damages for breach of the right of first refusal - The court held that the damages should not be limited by the Rule in Bain v. Fothergill, because the Rule applied only where breach occurs without fault of the seller - See paragraphs 82 to 92.

Sale of Land - Topic 8763

Remedies of purchaser - Damages - Time for assessment of - The owner of farmland gave the lessee of the land a right of first refusal on sale, but then agreed to sell the land to another without giving the lessee first refusal - The Manitoba Court of Queen's Bench held that the lessee's damages for the owner's breach of right of first refusal should be calculated from six months after the time when it became clear that the right of first refusal had been breached - The court held that the lessee could be expected to mitigate his damages after the six month period - See paragraphs 80 to 92.

Cases Noticed:

Senstad v. Makus, [1977] 5 W.W.R. 731; 17 N.R. 361; 6 A.R. 451 (S.C.C.), reving 3 A.R. 1, appld. [para. 29].

Martens v. Burden, [1974] 3 W.W.R. 522, not folld. [para. 29].

McColm v. Belter, [1975] 1 W.W.R. 364, not folld. [para. 29].

Vandermeulen v. Wieler, [1980] 4 W.W.R. 164, not folld. [para. 29].

Rose v. Dever, [1972] 2 W.W.R. 431, affd. [1973] 6 W.W.R. 672 (S.C.C.), refd to. [para. 30].

Pinsky v. Wass, [1953] 1 S.C.R. 399, appld. [para. 37].

Turney v. Zhilka, [1959] S.C.R. 578, consd. [para. 42].

O'Reilley v. Marketers Diversified Ltd., [1969] S.C.R. 741, consd. [para. 42].

Matrix Construction Ltd. v. Chan Go See, [1976] 2 W.W.R. 764 (B.C.C.A.), consd. [para. 42].

Giaouris v. Pristouris (1978), 2 R.P.R. 81 (O.C.A.), appld. [para. 47].

Friesen v. Bomok and Bomok, [1979] 3 W.W.R. 132 (Sask. Q.B.), appld. [para. 58].

Bain v. Fothergill (1874), L.R. 7 H.L. 158, dist. [para. 88].

Wroth v. Tyler, [1973] 1 All E.R. 897 (Ch. D.), consd. [para. 88].

A.V.G. Management Science Ltd. v. Barwell Developments Ltd. et al. (1979), 24 N.R. 554 (S.C.C.), appld. [para. 88].

Malhotra v. Choudhury, [1979] 1 All E.R. 186 (C.A.), consd. [para. 92].

Radford v. Defroberville, [1978] 1 All E.R. 33, consd. [para. 92].

Statutes Noticed:

Agricultural Lands Protection Act, C.C.S.M., c. A-15, sect. 2(1) [para. 52]; sect. 7, sect. 9, sect. 12 [para. 55].

Dower Act, R.S.M. 1970, c. D-100, sect. 3(1), sect. 5(1), sect. 5(2), sect. 8(1), sect. 8(3), sect. 8(4) [para. 26].

Farm Lands Protection Act - see Agricultural Lands Protection Act above.

Real Estate Brokers Act, R.S.M. 1970, c. R-20, sect. 2(c), sect. 2(q) [para. 64]; sect. 19 [para. 64].

Authors and Works Noticed:

Ogilvie, M.H., Comment: Sale of Land - Defects in Title - Limitation of Damages - Measure of Damages - Common Law or Equity (1980), 43 Can. B. Rev. 394 [paras. 88, 92].

Counsel:

G.J. Phelan, for Westward Farms Ltd. and Jean-Claude Deniau;

W.R. DeGraves, Q.C. and P.L. Keenberg, for Roger Cadieux;

G.M. Dennehy, for Louis Denis Roland Barnabe;

J.S. Betryshyn, for McKague Sigmar Realty Ltd., Robert Fillion and Armand Durand.

This case was heard before WRIGHT, J., of the Manitoba Court of Queen's Bench, who delivered the following judgment on March 17, 1981: