Duguid v., 2011 ABQB 66

Court of Queen ’ s Bench of Alberta Citation: Duguid v. 1169195 Alberta Ltd., 2011 ABQB 66 Date: 20110207 Docket: 0903 02853 Registry: Edmonton Between: Megan Jamesie Duguid Plaintiff - and - 1169195 Alberta Ltd. Defendant _______________________________________________________ Memorandum of Decision of L. A. Smart, Master in Chambers _______________________________________________________ [ 1 ] The Plaintiff applies to compel the Defendant’s representative to answer certain questions refused during examination for discovery.

This action arises out of a May 22, 2007 Offer to Purchase on a condominium unit and parking stall in a then to be constructed complex. The transaction has not closed and the Plaintiff commenced an action on February 25 th 2009 for recovery of her deposit and damages. [ 2 ] The specific questions refused pertain to the eight units in this 62 unit complex that comprise the subject unit and seven others similar to the subject. The Plaintiff has obtained transfers of land for six units and wishes to embark on a line of questioning that would provide sale price, timing and other particulars pertaining to the sales.

[3] The Defendant takes the position that the questions are not relevant and material and properly states that the determination ofwhat is relevant and material is determined by the pleadings (D’Elia v. Dansereau, 2000 ABQB 425). It is of the view that this is strictlya matter of contract between the parties and strenuously argues that anything outside the contract is not relevant. [4] As noted the Plaintiff has sought return of her deposit and damages in her pleadings. Her prayer for relief seeks relief fromforfeiture.

The body of the Amended Statement of Claim recites very few facts to assist in determining the basis upon which the depositis being claimed. They are in my view however, just barely adequate to raise the equitable relief prayed for, which takes the Plaintiff’saction outside the four corners of the contract. [5] Having said this, the issue still remains whether the questions can be said to be relevant and material. Although far fromclear what a trial judge may conclude, assuming the Plaintiff is found to have repudiated the contract, the issues of relief from forfeiturewould then arise.

The extent to which relief may be granted will certainly be affected by the value of the unit that was to be purchased(216927 Alberta Ltd. v. Fox Creek (Town) 1990 ABCA 29 , 72 Alta. L.R. (2d) 52 (C.A.)). The subject unit is not ready for saleand very likely will not be sold before the trial of this action. Valuation of this unit must be undertaken by an expert. The Plaintiff’s viewis that the very best comparables would be the similar units sold in the same complex.

The concern expressed is that what may be statedas consideration in a transfer of land may not accurately reflect incentives or rebates, or other factors which affect the true price. Finally,the timing of the sales may well be relevant to the trial judge when determining the appropriate point in time for valuation. [6] Ordinarily expert appraisers when assessing value must rely on the public record for their information but surely there canbe no mischief in having complete and accurate information if it is known to the Defendant.

That information would be the bestevidence for determining value of the subject unit in the event the Plaintiff must seek relief from forfeiture, that is to say, it is bothrelevant and material. [7] Defendant’s representative shall answer the questions previously refused. Heard on the 26th day of October, 2010. Dated at the City of Edmonton, Alberta this 7th day of February, 2011. L. A. Smart M.C.C.Q.B.A. Appearances: I. Samuel Kravinchuk for the Plaintiff

Gary Romanchuk Ogilvie LLP for the Defendant