Another Look Ventures Inc. v., 2012 ABQB 143

Court of Queen ’ s Bench of Alberta Citation: Another Look Ventures Inc. v. 642157 Alberta Ltd., 2012 ABQB 143 Date: 20120307 Docket: 1104 00222 Registry: Grande Prairie Between: Another Look Ventures Inc. and Curtis D.P. Smith Professional Corporation Plaintiffs (Defendant by Counterclaim) - and - 642157 Alberta Ltd. Defendant (Plaintiff by Counterclaim) _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice C.L.

Kenny _______________________________________________________ Introduction [ 1 ] The Plaintiff filed a Statement of Claim seeking specific performance of an Offer to Purchase certain property or in the alternative, damages against the Defendant for failing to complete the transaction. The Defendant has brought this application seeking

summary dismissal of the Plaintiff’s claim.

Background [ 2 ] In 2001, the Plaintiffs approached the Defendant to purchase a portion of property owned by the Defendant known as Prairie Plaza in Grande Prairie, Alberta. Negotiations ensued and, ultimately, on November 5, 2003, an Offer to Purchase and Interim Agreement (Offer to Purchase) was signed. [ 3 ] The agreement contemplated subdivision to accomplish the transfer of the space identified in the agreement. Subdivision became unworkable and the parties moved forward with condominiumization of the property instead.

The Plaintiffs paid certain monthly funds along with a $50,000 deposit to the Defendant during this process pursuant the agreement between the parties. [ 4 ] In January, 2004, the Plaintiff , Curtis D. P. Smith Professional Corporation, entered in to a 10 year lease with the Defendant for the space described in the Offer to Purchase.

This was for the purpose of obtaining financing to complete the Offer to Purchase and was to be a temporary measure until the condominiumization was completed at which time the lease would be assigned by the Defendant to the Plaintiffs upon transfer of the property contemplated under the Offer to Purchase. In the interim, while awaiting the condominiumization, the Plaintiffs paid occupation rent for the premises to the Defendant.

Condominiumization of the units occurred in August of 2006. [ 5 ] After the condominiumization, in 2006, the Plaintiffs indicated they tried to have discussions with the Defendant to figure out what was still owing under the Offer to Purchase in order to close the transaction. Nothing came of that. In 2008, they attempted again to conclude the transfer of the property. At that time the Defendant indicated they wanted more money for the space and they were not prepared to close the transaction based on the 2003 Offer to Purchase.

The Plaintiffs then filed a caveat against the property on August 19,2008 registering a purchasers interest in the property. Counsel for the Plaintiffs attempted to arrange for arbitration of the dispute in 2009 but received no reply to his correspondence from the Defendant’s solicitor. [ 6 ] A Statement of Claim was filed by the Plaintiffs on March 18, 2011. Rules for

Summary Judgment [ 7 ] An application for

summary judgment is made pursuant to Rule 7.3 of the Alberta Rules of Court, Alta Reg. 124/2010 . That

section reads as follows: 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; (

c) the only real issue is the amount to be awarded.

(2) The application must be supported by an affidavit swearing positively that one or more of the grounds described in subrule (1) have been met or by other evidence to the effect that the grounds have been met.

(3) If the application is successful the Court may, with respect to all or part of a claim, and whether or not the claim is for a single and undivided debt, do one or more of the following:

(

a) dismiss one or more claims in the action or give judgment for or in respect of all or part of the claim or for a lesser amount; (

b) if the only real issue to be tried is the amount of the award, determine the amount or refer the amount for determination by a referee; (

c) if judgment is given for part of a claim, refer the balance of the claim to trial or for determination by a referee, as the circumstances require. Legal Analysis [ 8 ] The test for

summary dismissal is very high. It must be “plain and obvious that the action cannot succeed”, the action is “bound to fail” , or the action has “ no prospect of success”: Boudreault v. Barrett , 1998 ABCA 232 at para 9 , 219 A.R. 67; De Shazo v. Nations Energy Co. , 2005 ABCA 241 at para 17 , 367 A.R. 267. Parties Positions and Discussion [ 9 ] The Defendant (Applicant) says that the Plaintiff’s action cannot succeed for the following reasons:

a) The Plaintiff did not fulfill the terms of the agreement

b) The Plaintiff unilaterally amended the agreement

c) The limitation period to claim for specific performance or damages has expired

d) The Plaintiff’s claim for damages for improvements to the property are not proper or are statute barred. ( The Plaintiff has withdrawn this claim as set out in their written brief) [ 10 ] The Applicant says that the decision by the Plaintiffs to move to condominiumization rather than subdivision without amending the agreement, fundamentally altered the agreement, and therefore the Plaintiffs did not comply with the agreement.

They say the price is uncertain in terms of what was paid and when by the Plaintiffs and that there were two parts to the agreement respecting what property would transfer which was not exactly what was set out in the condominium plan. The difficulty with this argument in a

summary dismissal application is that there is some evidence that the Applicant agreed to the condominiumization and in fact participated, in so much as an owner of property must do, in order to realize that result. [ 11 ] There is also evidence that a number of deposits were made, which the Applicant accepted. The Applicant now says that some of those were made before the agreement was signed and therefore cannot relate to the agreement. There were also other payments made.

The parties cannot agree on what the payments were for. [ 12 ] It is clear in reviewing the transcripts of the examination on affidavits, that these parties have been long time friends who became involved in this business transaction. That relationship resulted in informal discussions which may or may not have varied an agreement signed by the parties.

It appears that the condominiumization took quite a while and when the Plaintiffs tried to finalize the transaction and to have a full accounting done to see how much they owed, the Applicant by that time, no longer felt they had a deal or certainly not one based on the original Offer to Purchase. [ 13 ] The Applicant also raises the issue of the Statute of Limitations. The limitation period arises from the time the Plaintiff discovered or ought to have discovered they had a cause of action.

The factual matrix in this transaction which took place over several years, does not lend itself to a precise calculation of when the limitation period commenced. Further evidence is necessary. Conclusion

[ 14 ] There are so many facts in dispute in this matter that it is not appropriate that the Court grant

summary dismissal at this stage. Specific performance of the agreement will be a difficult claim to pursue at this stage however, it may be the case that the Plaintiffs, if they are within the limitation period, have a claim for damages for funds paid by them by way of deposit and costs of the condominiumization. [ 15 ] The application for

summary dismissal is dismissed. Heard on the 9 th day of November, 2011. Dated at the City of Calgary, Alberta this 1 st day of March, 2012. C.L. Kenny J.C.Q.B.A. Appearances: Owen A. Lewis for the Plaintiff (Defendant by Counterclaim) Cliff M. Headon for the Defendant (Plaintiff by Counterclaim)