Westward Farms Ltd. and Deniau v. Cadieux et al., (1982) 16 Man.R.(2d) 219 (CA)

• Judge: Matas, Huband and O'Sullivan, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: March 19, 1982
• Jurisdiction: Manitoba
• Citations: (1982), 16 Man.R.(2d) 219 (CA);1982 CanLII 2972 (MB CA);138 DLR (3d) 137;[1982] 5 WWR 1;16 Man R (2d) 219

Westward Farms Ltd. v. Cadieux (1982), 16 Man.R.(2d) 219 (CA)

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)

(Suit No. 178/81)

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

Manitoba Court of Appeal

Matas, Huband and O'Sullivan, JJ.A.

June 3, 1982.

Summary:

The plaintiffs Westward and Deniau brought an action for specific performance of an offer to purchase the defendant Cadieux's property. The plaintiffs claimed damages in the alternative or in addition to specific performance. Westward's claim was as assignee from Deniau. The plaintiff Barnabe brought an action for specific performance for the sale of the same land. Barnabe's claim was based on a right of first refusal in a lease given Barnabe by Cadieux. Cadieux counterclaimed for occupation rent and damages for Barnabe's interference in the Deniau sale. The two actions were consolidated for trial. Cadieux added his realty company, its employees and Barnabe as third parties in the first action and the realty company and its employees as third parties in the second action.

The Manitoba Court of Queen's Bench, in a decision reported in 9 Man.R.(2d) 96, allowed Westward's action for specific performance. The court dismissed Barnabe's action for specific performance, but awarded Barnabe damages for the lost opportunity to exercise the right of first refusal. The court ordered Barnabe to pay Cadieux occupation rent. The court dismissed the third party claims. Cadieux appealed to reverse or vary both judgments. Barnabe cross-appealed for specific performance or higher damages.

The Manitoba Court of Appeal allowed Cadieux's appeals against Westward and Barnabe, dismissing both their actions against Cadieux. The court dismissed Barnabe's cross-appeal. The court affirmed Cadieux's award of occupation rent.

Brokers - Topic 8

General - Salesman - Defined - Real estate agents arranged sale of the vendor's land through a third party - The third party, who owned the company which bought the land, received a sales commission - The Manitoba Court of Appeal held that the third party was a salesman as well as a buyer within the Brokers Act - See paragraphs 35 to 59.

Brokers - Topic 9

General - Brokers associate defined - Real estate agents arranged sale of the vendor's land through a third person - The third person, who owned the company which bought the land, received a sales commission - The Manitoba Court of Appeal held that the third party and his company were associates of the broker within s. 19 of the Brokers Act - See paragraphs 35 to 60.

Brokers - Topic 3026

Duties of broker to principal - Disclosure - Real estate agents arranged sale of the vendor's land through a third person - Unknown to the vendor, the third person, who owned the company which bought the land, received a sales commission - S. 19 of the Brokers Act provided that where an associate bought an interest and did not disclose his interest the vendor could rescind within 30 days after becoming aware of the circumstances - The Manitoba Court of Appeal held that the third party and his company were associates and because of the nondisclosure the vendor's attempt to rescind was valid - See paragraphs 35 to 61.

Contracts - Topic 5643

Unenforceable contracts - Uncertainty and vagueness - Uncertainty - A sale of land agreement described the purchaser as "Deniau or nominee", because at the time of the offer it was not known who the purchaser would be - The Manitoba Court of Appeal held that the agreement was void, because there was no certainty of parties - See paragraphs 76 to 79.

Evidence - Topic 2401

Special modes of proof - Presumptions - Specific presumptions - Inference from failure to call available evidence - A landowner's wife signed an acceptance of an offer to purchase the land - The purchaser submitted that without evidence by the wife the court should infer that the wife knew she was disposing of her dower rights by signing the acceptance - The Manitoba Court of Appeal refused to draw the inference - See paragraph 27.

Practice - Topic 7021

Costs - Party and party costs - Entitlement to - Successful party - Exceptions - Conduct - The Manitoba Court of Appeal refused to award a successful appellant his costs because his success was partly due to a point not raised by him and because it was his conduct which brought about the confusion leading to litigation - See paragraph 65.

Practice - Topic 9012

Appeals - Restrictions on argument on appeal - Issues or points not raised at trial - The Manitoba Court of Appeal raised points of law which were not raised at trial or were raised differently and permitted the parties to amend their pleadings and give full arguments - See paragraphs 13 and 14.

Real Property - Topic 2205

Dower - Assignment or bar - Requirement of consent in writing - A wife, as vendor, signed an acceptance of an offer to purchase her husband's land - The Dower Act required a wife to sign a consent and acknowledgment before an inter vivos disposition of homestead was valid - The Manitoba Court of Appeal held that the signature on the acceptance was not a consent within the Act - See paragraphs 15 to 29.

Real Property - Topic 2205

Dower - Assignment or bar - Requirement of consent in writing - A landowner leased his land, giving the lessee a right of first refusal - The Manitoba Court of Appeal affirmed a decision holding that the option could not be exercised because the land was homestead and the owner's wife had not signed a consent and acknowledgment to disposition of the land - See paragraph 94.

Sale of Land - Topic 1723

Offer and acceptance - Options - Right of first refusal - Exercise of - A landowner accepted an offer to purchase his land - The lessee, upon hearing of the sale, brought an action for specific performance of his right of first refusal contained in the lease - The sale was later declared invalid - The Manitoba Court of Appeal held that without a valid sale agreement there was no basis upon which the lessee could exercise his option - See paragraphs 62 to 64.

Sale of Land - Topic 6029

Completion - Condition precedent - What constitutes - An offer to purchase contained conditions that the offer was subject to arranging financing by a certain date and to the sale of other lands - The offer further stated that nonfulfillment of any condition would render the offer void - The Manitoba Court of Appeal held that the conditions were true conditions precedent, the nonfulfillment of which absolved the vendor from any further liability - See paragraphs 80 to 88.

Cases Noticed:

Senstad v. Makus, [1977] 5 W.W.R. 731; [1978] 2 S.C.R. 44; 17 N.R. 361; 6 A.R. 451; 79 D.L.R.(3d) 321 (S.C.C.), reving 3 A.R. 1, dist. [para. 16].

Rose v. Dever, [1972] 2 W.W.R. 431, affd. [1973] 6 W.W.R. 612 (S.C.C.), dist. [para. 16].

McColm v. Belter et al., [1975] 1 W.W.R. 364 (Alta. C.A.), consd. [para. 24].

Gronbach et al. v. Petty et al. (1952), 5 W.W.R.(N.S.) 68, appld. [para. 28].

Causeway Shopping Centre Ltd. v. Muise (1968), 70 D.L.R.(2d) 720, consd. [para. 76].

Turner v. Zhilka, [1959] S.C.R. 578, refd to. [para. 83].

Barnett v. Harrison (1975), 57 D.L.R.(3d) 225, refd to. [para. 83].

Statutes Noticed:

Dower Act, R.S.M. 1970, c. D-100, sect. 3(1)(a) [para. 21]; sect. 3(1)(d) [para. 21]; sect. 5(1) [para. 21]; sect. 5(2) [para. 21]; sect. 8(1) [para. 22].

Real Estate Brokers Act, R.S.M. 1970, c. R-20, sect. 2(c)(2) [para. 38]; sect. 19 [para. 41].

Authors and Works Noticed:

Halsbury's Laws of England (4th Ed.), vol. 1, pp. 470-472, paras. 787, 788 [para. 42].

Shorter Oxford English Dictionary (3rd Ed.) [para. 58].

Counsel:

W.R. DeGraves, Q.C., and G.M. Wood, for Roger Cadieux;

A.J. Hogue and M. Monnin, Q.C., for Westward Farms Ltd. and Jean-Claude Deniau;

G.J. Dennehy, for Louis Barnabe;

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

This appeal was heard on March 19, 1982, by MATAS, HUBAND and O'SULLIVAN, JJ.A., of the Manitoba Court of Appeal. On June 3, 1982, the decision of the Court of Appeal was delivered and the following opinions were filed:

MATAS, J.A. - See paragraphs 1 to 71;

O'SULLIVAN, J.A. - See paragraphs 72 to 96;

HUBAND, J.A. - See paragraph 97.