Peters v. Wilson Estate, 2011 ABQB 689

Court of Queen ’ s Bench of Alberta Citation: Peters v. Wilson Estate, 2011 ABQB 689 Date: 20111110 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 _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice R. J. Hall _______________________________________________________ [ 1 ] In this matter I signed a Memorandum of Decision dated November 1, 2011. I ruled that the Defendant’s application for a

Summary Dismissal of the Plaintiff’s claim succeed and that the Defendant also have

summary judgment for his counterclaim. The Order has not yet been filed. [ 2 ] The Plaintiff seeks to have me change my mind. He applies under Rule 9.13 of the (new) Alberta Rules of Court , which provides:

9.13 At any time before a judgment or order is entered, the Court may

a) vary the judgment or order, or

b) on application, and if the Court is satisfied there is good reason to so do, hear more evidence and change or modify its judgment or order or reasons for it. [ 3 ] Rule 9.13(

a) clearly gives the Court a broad discretion to vary the judgment or order. It makes no reference to an application being made. It provides an opportunity to the Judge to vary the judgment or order, presumably where the judge has come to a view that it needs to be done before the order or judgment is filed, but after reasons have issued or a decision was made. I consider that the circumstances therein contemplated are those where the Judge, on his or her own, has rethought a matter or wishes to clarify it. [ 4 ] Rule 9.13(

b) contemplates an application being made by a party to the proceeding. That is the Rule applicable to this matter. [ 5 ] The Court must be satisfied there is good reason to change or modify the judgment. The Court may hear more evidence. The Rule is not clear as to whether there must be new evidence received by the Judge in order for the Judge to change or modify its judgment or order, or whether the Judge may do so simply because the Judge considers there is a good reason to do so. [ 6 ] In Evans v. Sport Corp. [2011] AJ No. 867 Graesser, J.

Considered the Rule and says (para. 15): Regarding the plain language of Rule 9.13 I believe I have extremely broad authority to do what I think is correct in these circumstances. [ 7 ] In that case no new evidence was received by the learned trial judge. Nevertheless, he was persuaded that he had made an error or errors in the calculation of damages, and he used the provisions of Rule 9.13 to correct the errors and alter his decision. [ 8 ] I am concerned that this broad authority granted under Rule 9.13 will result in unsuccessful parties taking another “kick at the can”, rearguing their case.

Nevertheless, I acknowledge the breadth of authority granted, and agree with Graesser, J. that the Rule can be applied, even without the allowance or introduction of new evidence. [ 9 ] Counsel for the Plaintiff did seek to put a further affidavit of his client before me. He said the evidence could have been before me at the hearing of the motion on which I have now ruled, but it had not been put before me, apparently by choice.

I ruled that did not satisfy me of “a good reason” for me to allow the admission of that evidence, and I refused to allow it. [ 10 ] Plaintiff’s counsel has argued that I am in error in finding there were not acts of part performance unequivocally referable to the contract asserted. He says I failed to consider or properly consider: (

a) expenses that were made by the Plaintiff for seed and seeding operations incurred after the original lease had expired. (

b) that the payments called for by the “Draft Lease” did not include taxes, whereas the payments under the signed lease did; such that the payment of rent after the “Draft Lease” differed from the payments before. (

c) that the Plaintiff through his agent had tendered $500,000 to exercise the option to purchase.

[11] As to argument (a), I dealt with that argument at para. 26 of my decision. [12] For clarity, the Plaintiff was continuing to farm the land. It was necessary to the farming operation to grow grass for his cattleand horses. It is as referable to an overholding tenant farmer as to a potential owner under an Option to Purchase. [13] As to argument (

b) there is no evidence before me that the Plaintiff had ever paid the taxes to Mr. Wilson before his death.The obligation on the Plaintiff was to pay the taxes to the taxing authority. The evidence does not show that the amount of his cheques tothe landlord changed. There is nothing done by him that is unequivocally referable to the alleged contract. [14] On both arguments (

a) and (b), reference should be had to the Alberta Court of Appeal decision in Booth v. KnibbDevelopments Ltd., 2002 ABCA 180 (a case where the Plaintiff asserted an oral agreement to repurchase land back from the Defendant).At paragraph 29 the court states: The payment of taxes, water levies and utilities cannot be said to be referable to a contract for purchase and sale and nothing else.Tenants remain on the land and may be required to pay certain costs associated with land occupancy.

The Alberta Supreme Court TrialDivision held in Shillabeer Estate (Re) (1979), (AB KB), 100 D.L.R. (3d) 279 that the payment of taxes, monthlypayments, insurance premiums and repair costs were insufficient to constitute part performance. The mere payment of money has alsobeen held to be insufficient, in itself, to satisfy the doctrine of part performance: Maddison, supra at 479, adopted in Deglman, supra at727. [15] The non-payment to the Defendant of taxes on a monthly basis in this instance, is no different than what I infer occurred inpast months and past years.

The rent payments made are consistent with either the signed lease, the obligations of an overholding tenant,or the “Draft Lease” and therefore are not unequivocally referable to the “Draft Lease”. [16] As to argument (c), a similar argument was made in Booth v. Knibb Developments Ltd., supra. Counsel there had argued, as anact of part performance, that Mrs. Booth approached Knibb to repurchase the land when she received funds to do so. The Court said atparagraph 30: The Booths remaining on the land is equally consistent with a tenancy. Mrs.

Booth’s act in seeking to repurchase the land when she hadsufficient funds to do so demonstrates her desire to do so, but does not unequivocally indicate that a sale contract existed. [17] That is also the case here. The Plaintiff clearly desired to purchase the land for $500,000 from the Defendant. But his desire isnot unequivocally referential to an agreement being in existence. [18] Nor does the apparent willingness, at that time, of the Defendant’s counsel to take the money into trust, pending execution ofan agreement.

Taking the money into trust would not be an acceptance of the payment, until such time as a contract was reached; that is apurpose of a payment into trust. [19] Therefore I see no “good reason” to modify or change my decision in this matter. There is nothing new that wasmisunderstood by me or not brought to my attention. The Plaintiff’s application under Rule 9.13 is denied, with the following exceptions. [20] In my Memorandum of Decision I indicated the Plaintiff was to vacate the premises within 30 days.

However, I did so withoutfirst hearing argument on the topic from counsel, as to the practicality of such an order. Having now heard from counsel, I am satisfiedthat the appropriate period is 90 days from the date of that decision, rather than 30 days. The previous Memorandum of Decision isvaried accordingly. [21] Also, I ruled respecting costs without first hearing from counsel. My order as to costs is vacated, with leave to the parties toaddress me in writing with regard to the costs of that application and this one.

Costs arguments should be provided to me by November16, 2011 by the Defendant and by November 23, 2011 by the Plaintiff in reply.

Stay of Execution Application [ 22 ] The Plaintiff argues that I should stay the operation of this Judgment. His counsel states he is instructed to appeal and undertakes that he will do so. He maintains there is a prima facie case, or arguable points of appeal, that the balance of convenience lies with ordering such a Stay and that, absent a Stay there would be irreparable harm to his client.

He must satisfy me on all three branches of the test. [ 23 ] It is difficult for a party to attend before the judge who has decided against him or her and ask that Judge to concede that his or her decision is prima facie wrong; or at least appealable.

I am prepared to assume the first branch of the test is made out herein in this case. [ 24 ] I agree that the Balance of Convenience favours the Plaintiff staying on the lands rather than moving, during the time it takes for this matter to be heard; although not without some reservations, since the owner of the property should have the use of it and the right to prepare it for sale and to sell it. The Plaintiff is paying rent and maintaining the premises under the order of Poelman, J. carried forward by me.

That tips the balance in the Plaintiff’s favour. [ 25 ] However, I do not accept the Plaintiff’s argument that there will be irreparable harm to him if the stay is not granted. Our Court of Appeal has previously ordered that harm is not irreparable where it can be compensated in damages, even in cases of land and residences. See Rubin v. Gendemann

(2011) AJ No. 767 . I accept the reasoning there as being binding upon me. [ 26 ] Accordingly the Plaintiff’s application for a Stay of Execution is denied. Heard on the 7th day of November, 2011. Dated at the City of Calgary, Alberta this 10th 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