Peters v. Wilson Estate, 2011 ABQB 665

Court of Queen ’ s Bench of Alberta Citation: Peters v. Wilson Estate, 2011 ABQB 665 Date: 20111101 Docket: 1001 04835 Registry: Calgary Between: Weldon J. Peters Plaintiff - and - William (Bill) Wilson In His Capacity As Executor of the Estate of Sheldon James Wilson (Deceased), and the Estate of Sheldon James Wilson (Deceased) Defendant Corrected judgment: A corrigendum was issued on November 8, 2011; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice R. J.

Hall _______________________________________________________ [ 1 ] The Applicant Defendants seek a

Summary Dismissal of the Plaintiff’s action, and

Summary Judgment on their counterclaim, pursuant to Rule 7.3 of the Alberta Rules of Court .

Section 7.3(1) provides:

7.3(1) A party may apply to the Court for

Summary Judgment in respect of all or part of a claim on one or more of the following grounds: (

a) there is no defence to a claim or part of it; (

b) there is no merit to a claim or part of it [ 2 ] Central to this application is s. 4 of the Statute of Frauds , the need for a written memorandum signed by the Party charged, when dealing with interests in land, and the doctrine of Part Performance to overcome s. 4 of the Statute of Frauds , which reads: No action shall be brought whereby . . . to charge any person . . . upon any contract or sale of lands. . .unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized. [ 3 ] The Plaintiff leased farm property from the deceased defendant and also resided in a house on that property.

A lease was entered into between the parties in March 2007 wherein the subject lands were leased to the Plaintiff for one year commencing May 1, 2007. The signed lease included a term that the lessee would keep the fences around and upon the leased land in good repair. [ 4 ] The Plaintiff maintains that a further agreement was reached orally between him and the Defendant, which agreement was reduced to writing but not signed.

That unsigned agreement leases the same lands for one year from May 1, 2008, at the same rental rate as the previous lease, and also contains an “Option to Purchase” providing an option to the Plaintiff to purchase the lands for $500,000, and providing details with respect to the giving of notice and the execution of the said option. [ 5 ] The unsigned agreement (referred to by the parties for ease of reference as “the Draft Lease”) was never executed. The Defendant Sheldon Wilson died on May 28, 2008. [ 6 ] In assessing an Application for

Summary Dismissal, the Court must accept as true, the facts averred by the party opposing the application, unless those facts have been disturbed in cross examination of the witnesses giving evidence on behalf of the respondent (in this case the Plaintiff). Evidence has been provided by Affidavit on behalf of the Plaintiff by the Plaintiff himself; a neighbour Jack Didier, who was well acquainted with the deceased and in fact provided care for the deceased; and Susan Kwan, who was a girlfriend of the Plaintiff and who details discussions with the Defendant’s solicitor.

In addition, affidavits were filed by the Applicant/Defendant, including an Affidavit of the Executor Bill Wilson, an affidavit of the deceased’s lawyer Robert Roddie, and an affidavit of an employee at Mr. Roddie’s office, Ms. Merna Curtis. With regard to those three latter affidavits, for the purpose of a

Summary Dismissal Application, where their evidence contradicts the evidence put forth by the Plaintiff/Respondent, their evidence must be disregarded, as conflicts in evidence can only be resolved at trial. Where, however, their evidence in the affidavits, or in cross examination on their affidavits, or in Questioning in the law suit itself is of assistance to the Respondent/Plaintiff, the Court may consider it in determining the Application. [ 7 ] In other words, for purposes of this application, the Court assumes that the facts deposed to or elicited by the Respondent/Plaintiff are true, and then determines whether, on that assumption, a

Summary Dismissal of the Claim and/or

Summary Judgment on the Counterclaim should be granted. The only exception to that is where the Applicant has cross examined the Respondent and has obtained an admission contrary to the facts alleged by the Respondent in opposing the Application. [ 8 ] The evidence put forth by the Plaintiff/Respondent in opposition to this Application is that the Plaintiff and the deceased Defendant entered into an oral agreement to continue the lease of the lands by way of a new lease, which lease would contain an option for the Plaintiff to purchase the land for $500,000 so long as he did so prior to December 31, 2009.

The Plaintiff deposes to such an agreement. Mr. Jack Didier deposes that he was told by the Defendant, before his death, that the Defendant had entered into an

agreement with the Plaintiff which provided an option to purchase the lands for $500,000. Ms. Kwan deposes that the two parties entered into such an agreement, and that she discussed that agreement personally with the Defendant and heard the Defendant agree to it with the Plaintiff; and that in recent weeks before his death she visited the Defendant in the Foothills Hospital who told her on two separate occasions that he “wanted to honour the agreement” with the Plaintiff. [ 9 ] Mr. Didier deposes that he was provided with a copy of the “Draft Lease” prepared by the solicitor for the Defendant Mr.

Roddie; that he took a copy of that agreement to the Plaintiff at the Foothills Hospital and discussed the contents of the “Draft Lease” with the Plaintiff; and that the Plaintiff put the “Draft Lease” into his beside table at the hospital. [ 10 ] Following the death of the Defendant the Executor refused to honour the terms of the “Draft Lease”, including the option to purchase clause. The Plaintiff deposes that he attended at the office of the deceased’s lawyer, Robert Roddie, on May 5, 2010. The Plaintiff deposes, and references notes that he took, that Mr.

Roddie commented that the Plaintiff “had a pretty good deal living there for the rent he was paying”; the Plaintiff noted “Shelly [the Defendant] made the agreement”, and the lawyer responded “I know”. [ 11 ] However, as I read the note, it is not clear from that note as to which agreement Mr. Roddie was referring, i.e. the signed lease agreement or the “Draft Lease”. Mr. Roddie did advise the Plaintiff on that occasion that the “Draft Lease” that had been drawn up was not valid, and Mr. Roddie and the Plaintiff disagreed on that point. [ 12 ] The evidence of Ms.

Kwan is that the Plaintiff instructed her to provide Mr. Roddie’s office with a cheque in the amount of $500,000 to exercise the option to purchase. She called Mr. Roddie on that date who provided her with his trust account number and arranged to have her deposit the cash to that account, with a settlement date to occur in July. The Defendant died on May 26, 2008. Ms. Kwan deposed that on that same day she again contacted Mr. Roddie to determine whether she needed a certified cheque and to determine whether the Defendant had signed the agreement. When Mr.

Roddie learned that the Defendant had passed away, he advised Ms. Kwan that she needn’t put the money in his trust account. [ 13 ] On the assumption that the evidence put forth by Ms. Kwan is true, there may be sufficient evidence of tender of the $500,000 to at least create a triable issue. However, before tender becomes relevant, a determination must be made as to whether, on the Plaintiff’s evidence, an enforceable agreement has been reached. [ 14 ] The Executor for the Estate of Sheldon Wilson is his son Bill Wilson.

Bill Wilson, as Executor, determined that the “Draft Lease” containing the option to purchase was unenforceable. On behalf of the Estate he has refused to honour that “Draft Lease”. On January 11, 2010 the Executor caused a Notice to Vacate to be served upon the Plaintiff. On March 30, 2010 this action was commenced. On April 1, 2010 the Plaintiff filed a Certificate of Lis Pendens against the title to the lands. [ 15 ] The Applicant/Defendant takes the position that the signed Lease has expired.

The “Draft Lease” was never signed; there was no agreement reached with respect to a new lease or with respect to an option to purchase; in the alternative, if an oral agreement was reached, such agreement has not been reduced to writing and signed by the Lessor/Optionor, and therefore is unenforceable pursuant to s. 4 of the Statute of Frauds ; that there has not been part performance unequivocably referable to the alleged oral agreement, that would counter-act or override the provisions of s. 4 of the Statute of Frauds ; in the alternative, no consideration was given for the option to purchase, contained in the “Draft Lease”, and accordingly the option to purchase cannot be exercised; and that

Summary Judgment should be granted on the counterclaim, which seeks a termination of the tenancy and damages for rent and other expenses resulting from the overholding by the Plaintiff. ISSUE #1 Is there evidence of an agreement reached between the Plaintiff and the Defendant granting a new lease and option to purchase to the Plaintiff? [ 16 ] The Plaintiff has put forth evidence that such an oral agreement was reached. Indeed, the Defendant puts forth no contrary evidence. The answer to this issue is yes. ISSUE #2 Given that the alleged agreement is oral, and that the “Draft Lease ” is unsigned does the agreement comply with the requirements of the Statute of Frauds ?

[17] The Plaintiff acknowledges that neither the Plaintiff nor any agent representing the Plaintiff has executed an agreement ormemorandum confirming such agreement. Absent execution by the Lessor/Optionor, the alleged oral agreement does not comply with s.4 of the Statute of Frauds. ISSUE #3 Has there been “part performance” sufficient to abrogate the effect of s. 4 of the Statute of Frauds? [18] The Plaintiff argues that there is corroborative evidence of an agreement having been reached. While that is the case, that isnot sufficient to satisfy the Statute of Frauds, nor to abrogate its effect. What must be shown by the Plaintiff is

an act or acts of partperformance of the oral contract, which acts must be unequivocably in reference to the oral agreement. As stated in Deglman v.Guarantee Trust Company of Canada and Constantineau, [1955] SCR 725, at p. 732: An

interpretation similar to that in McNeil v. Corbett was placed upon the decision in Maddison v. Alderson by Turgeon JA with whomHaultain CJS and Lamont McKay JJA agreed, in Re: Mesdon, Mesdon v. Gray et al, (SK CA), [1925] 4 D.L.R. 887, atp. 888, Turgeon JA said: . . .In order to exclude the operation of the Statute of Frauds, the part performance relied upon must be unequivacably referable to thecontract asserted. The acts performed must speak for themselves, and must point unmistakenly to a contract affecting the ownership orthe tenure of the land, and to nothing else. [19] The Plaintiff states that acts of part performance constitute: (

a) The fact that, at the request of the Defendant, the “Draft Lease” containing the option to purchase, was prepared by theDefendant’s lawyer; (

b) Payments of rent were made by the Plaintiff to the Defendant’s estate after the expiration of the signed lease, and in accordancewith the terms and provisions of the “Draft Lease”. (It is to be noted, however, that the rental payments called for under the signed leaseare the same in frequency and amount as those called for under the “Draft Lease”). (

c) The Plaintiff made improvements to the lands, described by the Plaintiff as follows: (

a) The Plaintiff lived on the lands and worked on buildings over several years; (

b) The Plaintiff performed services about the property without payment with the understanding that the Plaintiff would purchase theproperty, such as (

i) Built an outdoor area; (ii) Removed four old buildings; (iii) Installed/repaired fence around the quarter; (iv) Daily yard maintenance; (

v) Maintenance/repair at premises; (vi) Re-routed power to the building. (

d) the Defendant wanted the Plaintiff to have the property.

I will address each in turn. (

a) The “Draft Lease ” was prepared by the Defendant ’s Lawyer [ 20 ] The evidence of the Plaintiff is that Mr. Roddie directed that a lease and option to purchase be prepared, and in fact one was prepared by an individual working at the office of the Defendant’s lawyer, which “Draft Lease” was provided to the parties. Is that

an act of part performance, unequivocably in reference to the alleged oral agreement? [ 21 ] While it is clear that the instruction to draft an agreement is unequivocably in reference to the intention of the Defendant to enter into such an agreement, it is not unequivocably referential to an agreement having been reached. The evidence put forth by the Plaintiff is that the “Draft Lease” was delivered to the Defendant, who reviewed it, and then put it into his beside table drawer. He did not sign it. [ 22 ] It is often the case that parties instruct their lawyer(

s) to draft an agreement for their consideration, without having first entered into a binding agreement. Here, the Defendant had the opportunity to execute the “Draft Lease”; he did not do so. In my view the document prepared by Mr. Roddie’s office, which we have called the “Draft Lease” is exactly that; a draft. It is not unequivocably referential to an Agreement having been reached, as it is equally referential to the parties having contemplated reaching an agreement, but not to be bound until the document had been signed. (

b) Payments of Rent [ 23 ] Payments of rent made by the Plaintiff following the date of the alleged oral agreement and after the expiry of the signed lease are also not “unequivocably in reference” to the alleged oral agreement. They are equally consistent with meeting the obligations of an overholding tenant, to continue to pay rent at the agreed rate, as they are with the alleged oral agreement. (

c) Acts of husbandry, repair, maintenance and work performed on the Lands [ 24 ] With regard to the steps taken on the land, the Plaintiff, in Questioning and cross examination admitted that these steps had been taken prior to the end of the signed lease.

The only expenses incurred by the Plaintiff after the end of the signed lease were the purchase of seed and seeding materials, and for the seeding of the property in the months of June and July in 2008. [ 25 ] With respect to steps taken by the Plaintiff relating to husbandry of the subject property, all such steps taken prior to the alleged oral agreement cannot be acts of part performance of such an agreement, on the simple basis that they precede the alleged oral agreement. [ 26 ] Further, husbandry steps taken by the Plaintiff following the alleged oral agreement are as consistent with tenancy under the signed agreement, or tenancy as an overholding tenant, as they are with the alleged oral agreement.

They are not “unequivocably in reference” to the alleged oral agreement. [ 27 ] Therefore, none of these alleged acts of part performance are so unequivocably in relation to the alleged oral agreement as to counteract the provisions of s. 4 of the Statute of Frauds . (

d) The Defendant wanted the Plaintiff to have the Property [ 28 ] Finally the Plaintiff asserts that the deceased Defendant wanted the Plaintiff to have the property, relying on his Affidavit and

that of Ms. Kwan and Mr. Didier for that proposition. However, I cannot accept that the intention of the Deceased can be part performance of the alleged oral contract. The Statute of Frauds is enacted to prevent transfers of interests in land from being upheld based on oral evidence of intent of the parties. Such oral evidence does not enter back into the assessment as constituting

an act of part performance. [ 29 ] As the alleged oral agreement is not signed by the person charged by it, and as I have determined that there are not acts of part performance which are unequivocably referable to the alleged oral agreement, s. 4 of the Statute of Frauds must apply, and the alleged oral agreement cannot be enforced, as a matter of law; and that is the case even where there is corroborating oral evidence that such an agreement had been reached. [ 30 ] Given my decision on this point, it is unnecessary to consider whether any consideration was given in the alleged oral agreement for the option to purchase. [ 31 ] Turning to the counterclaim being put forth by the Defendant, it is apparent that the Plaintiff has been an overholding tenant, and the Plaintiff has no right to maintain a charge against the subject property.

Mr. Justice Poelman granted an order in these proceedings on July 27, 2011 providing that the Plaintiff shall make payments for his occupation of the lands, for his occupation of the house located on the lands, for property taxes, and for rent, set at $1,000 per month in relation to the lands, house and taxes until further Order of the Court. [ 32 ] The parties have advised the Court that the terms of that Order are being met. That Order shall continue in effect for the overholding period until it ends. [ 33 ] This Court summarily dismisses the Plaintiff’s claim in its entirety. This Court grants

Summary Judgment to the Plaintiffs by Counterclaim for the damages aforesaid. This Court directs that the land be vacated by the Plaintiff within 30 days of the day of these Reasons. This Court directs that the Certificate of Lis Pendens filed by the Plaintiff against the lands be discharged by the Registrar of Land Titles. [ 34 ] The Defendants shall have costs of these proceedings to be taxed in Column 2 of

Schedule “C” of the Alberta Rules of Court , including all reasonable disbursements. Heard on the 25th day of October, 2011. Dated at the City of Calgary, Alberta this 1st day of November, 2011 R. J. Hall J.C.Q.B.A. Appearances:

Christian S. Ouellette for the Plaintiff Joseph T. Schuck for the Defendant _______________________________________________________ Corrigendum of the Memorandum of Decision of The Honourable Mr. Justice R. J. Hall _______________________________________________________ Please be advised that this is a Corrigendum to the Memorandum of Decision of Mr. Justice R. J. Hall filed on November 1, 2011. Please replace the front page of your Memorandum of Decision with the corrected citation line and a bracket added after Sheldon James Wilson (Deceased) in the style of cause.