Matichuk v. Quattro Holdings Ltd., 2013 ABQB 164

Court of Queen ’ s Bench of Alberta Citation: Matichuk v. Quattro Holdings Ltd., 2013 ABQB 164 Date: 20130318 Docket: 1203 17855, 1203 17422 Registry: Edmonton

Between: 1203 17855 Andrew William Matichuk and Iris Marlene Wengreniuk, Jacqueline Doskoch and Chris Doskoch, Zinger Holdings Ltd., Lorraine Marie Yaremko (Executor of the Estate of Boris Yaremko), Lorraine Marie Yaremko, Harold Dundas, Du-all Holdings Ltd., Denton Holdings Ltd., Anne Soldan, Morris Shevolup, Larry Shevolup, Paul Ergezinger and Gisela Ergezinger, Ted Palamarek, Patricia Kudrinko, Paul's Holdings Ltd., Dianne Carol Carlson, Ronald T. Hook and James T. Hook, and Marilyn J. Lazzari Plaintiffs - and - Quattro Holdings Ltd. Defendant And Between: 1203 17422 Quattro Holdings Ltd.

Plaintiff - and - Jacqueline Doskoch, Chris Doskoch, Lorraine Marie Yaremko (Executor of the Estate of Boris Yaremko), Harold Dundas, Du-all Holdings Ltd., Denton Holdings Ltd., Ted Palamarek, Andrew William Matichuk, Iris Marlene Wengreniuk, Dianne Carol Carlson, Marilyn J. Lazzari, Paul Ergezinger, Gisela Ergezinger, Ronald T. Hook, James T. Hook, Zinger Holdings Ltd., Patricia Kudrinko, Paul ’ s Holdings Ltd., Morris Shevolup, Larry Shevolup and Anne Soldan Defendants

_______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Gerald A. Verville _______________________________________________________ Introduction [ 1 ] The parties have made two applications in two separate actions arising out of the same set of facts. [ 2 ] The dispute involves the

interpretation of an agreement for sale entered into on or around June 27, 2012 (Agreement) of a 144.51 acre parcel of agricultural land (the Lands) in St.

Albert by a group of landowners (Vendor) to Quattro Holdings Ltd. (Quattro). [ 3 ] The transaction did not close due to an issue regarding wetlands on the Lands. [ 4 ] Quattro filed a Statement of Claim, seeking a declaration that the Agreement is valid and subsisting, an order setting a closing date, and determination of an abatement of the purchase price. [ 5 ] The Vendor filed an Originating Application, requesting a declaration that the Agreement was repudiated by Quattro and terminated, and an order directing removal of Quattro's caveat and lis pendens . [ 6 ] Quattro filed an application for partial

summary judgment, seeking a declaration that the Agreement is valid and subsisting, and an order setting a new closing date. Facts [ 7 ] The Vendor decided to sell the Lands in 2006. Quattro entered into the Agreement with the intent of developing them. [ 8 ]

Article 1 of the Agreement provides for a purchase price of $13,005,900, or $90,000 per acre based on the acreage of 144.51 acres stated on the titles to the Lands. This was payable by two deposits totaling $115,000, cash payable on the Closing Date of $4,220,300 and a vendor take-back mortgage of $8,670,600 “ subject to adjustments provided for herein. ” [ 9 ] Under

Article 2.1, the Vendor acknowledged that Quattro intended to develop the Lands, and undertook to provide information, support, assistance and authority to Quattro to allow it to meet with authorities in relation to development matters. [ 10 ] Under

Article 2.3, Quattro was given “ the opportunity to inspect the Lands ... to and including the Closing Date ” and to be satisfied in all respects with the results of such inspections.

[ 11 ] The Vendor represented under

Article 3.1.1 that it was the legal representative of the owners of the Lands. In

Article 3.16, the Vendor represented that it would be able to transfer the Lands free and clear of all charges, encumbrances, and “ restrictions ” on the Closing Date. In

Article 3.1.13 under “ Environmental Laws ” the Vendor represented that to the best of the Vendor's knowledge, there are no contaminants or hazardous materials located upon the Lands or on lands immediately adjacent to the Lands. Quattro represented in

Article 4.1.4 that in the event it did not remove the conditions precedent as set forth in

Article 2, it would deliver at no cost to the Vendor all reports pertaining to the Lands, as prepared by the Purchaser. [ 12 ]

Article 7.1 provided that the Closing Date was the 60th day from the payment of the second deposit (October 10, 2012). Under

Article 8.1, time was agreed to be of the essence. [ 13 ]

Article 7.4 is at the center of the dispute: 7.4 Adjustments - The parties acknowledge and agree that the amount set out herein for the Purchase Price is based on the assumption that the Lands are 144.51 acres. Prior to and in conjunction with the Closing Date, the Vendor shall advise the Purchaser of the precise acreage. If the acreage, including deduction of environment, if any, varies from the 144.51 acres, the Purchase Price shall be adjusted on the basis of $90,000 per acre . [emphasis added] [ 14 ] Quattro and Landrex Inc. have a common shareholder.

On September 20, 2012, in-house counsel for Landrex, Garry Wetsch, sent a letter to the Vendor ’ s solicitor, Brian Brendzan, taking the position that there should be an “ environmental adjustment ” pursuant to

Article 7.4 of the Agreement, and stating that Stantec had: ...completed preliminary studies but will need more time to complete the desktop and reporting studies. Once that is completed, Stantec would then complete the necessary research and consultation with the appropriate entities (Environment - Alberta), City of St. Albert and potentially the Federal Government. In doing so, we are advised that this is a “ complex ” parcel as it involves wetlands that cover lands outside the Parcel, the Species at Risk Act and various regulatory approvals pertaining to the wetlands ....

As to timing, we are advised a period of 6 to 8 months. On page 2 of the letter Mr. Welsch proposed an extension of the Closing Date. [ 15 ] On September 26, 2012, Mr. Welsch forwarded to Mr. Brendzan certain emails between representatives of Landrex and representatives of Stantec.

In one of these emails, Kurtis Fouquette of Stantec provided an estimate that the “ wetlands ” situated on the Lands amounted to approximately 6.379 hectares (15.76 acres), noting: “ You should also bear in mind that for the purposes of compensation, AESRD [Alberta Environment and Sustainable Resource Development] will apply a 3:1 compensation ratio on final wetland sizes ” . [ 16 ] On October 1, 2012, Mr. Brendzan replied to Mr.

Welsch's letter, advising that the Vendor was not agreeable to an extension of the Closing Date nor to any reduction to the purchase price for any purported wetland issues. [ 17 ] On October 4, 2012, Mr. Brendzan sent Mr. Welsch transfer documents on trust conditions. The solicitors for Quattro, Parlee McLaws LLP, wrote to Mr. Brendzan, pointing out that the Agreement required that he provide trust documents at least 20 days prior to the Closing Date.

By agreement, the Closing Date was extended to November 2, 2012. [ 18 ] On October 31, 2012, two days before the agreed extended Closing Date, Parlee McLaws sent a letter to Mr. Brendzan, stating in part: The Purchaser has been informed by its environmental consultants that there are five wetlands to be addressed with Alberta Environment and two provincially listed bird species on the property, one of which is listed federally as a species of concern under the Species at Risk Act . Pursuant to

section 7.4 of the Agreement for Purchase and Sale, the Vendor has covenanted to advise the Purchaser as to the precise

acreage after deduction for lands which, for environmental reasons, are not available in respect of which a price adjustment is required.The Vendor knew that an adjustment ... was required prior to and in conjunction with the Closing Date and the Vendors have refused todo so. Accordingly, the Vendors are in breach of the Agreement. ... As a consequence of the Vendors' breach, a new Closing Date is required.

A new Closing Date of May 1, 2013 is a reasonable time for adetermination to be made as to the adjusted acreage by agreement or Court order. [19] The Vendor retained Gowling Lafleur Henderson LLP, who wrote to Parlee McLaws on November 9, 2012, stating that therewas no merit to the position taken by Quattro, and that as Quattro had “failed to close or to make any kind of tender on the Closing Date,the Agreement is clearly at an end”. The letter presented two alternative proposals to Quattro. The first offered to reinstate the Agreementwith a new Closing Date of December 10, 2012.

The second offered to return to Quattro its non-refundable deposits (i.e. $115,000,equivalent to 0.88% of the purchase price), provided Quattro agreed to discharge its caveats from the Vendor’s titles. [20] Quattro did not accept either offer and the two actions were commenced. Issues [21] Two issues must be addressed: (

a) Is Quattro entitled to a deduction from the purchase price of pursuant to

Article 7.4 due to the wetlands on the Lands? (

b) Is the Agreement terminated? Vendor’s Position [22] The Vendor submits that

Article 7.4 does not entitle Quattro to a reduction of the purchase price. Quattro failed to close onthe agreed Closing Date, and time was agreed to be of the essence. The Closing Date gave Quattro ample time to conduct itsinvestigations. [23] The phrase in

Article 7.4, “including deduction of environment, if any” is obscure and cannot mean that areas which are not“developable” give rise to a per-acre reduction in the purchase price.

At most, it means that Quattro was entitled to seek a deduction if itfinds fault with the Vendor’s representations and warranties respecting “Environmental Laws” which were limited to lack ofcontamination or hazardous materials on the Lands. [24] The Vendor argues that although every clause in a contract must, if possible, be given effect, words and clauses which areuncertain or meaningless should be disregarded: Ko v Hillview Homes Ltd, 2012 ABCA 245, 536 AR 93 at para 8.

A clause or phrasewhich can be severed from the rest of the contract, and which conveys no discernible meaning can and should be disregarded, leaving therest of the contract intact: Nicolene, Ltd v Simmonds, [1953] 1 QB 543 at page 551, Calvan Consolidated Oil & Gas Co Ltd v Manning(1958), (AB CA), 16 DLR (2d) 27, [1958] AJ No 56 at para 51 (App Div); Continental Insurance Co v Law Society of Alberta (1984), 1984 ABCA 261 , 56 AR98, [1984] AJ No 1017 at para 25 (CA).

The presumption that a court should avoid a construction which leaves part of the languageuseless has little value in the construction of commercial contracts: Chitty on Contracts, 30th ed (London: Sweet & Maxwell, 2008), Vol1 at para 12-077. The Vendor argues that a court should avoid an

interpretation which leads to an unreasonable result, which leads to asituation which is “unworkable” or which imposes on one of the parties a responsibility which it could not possibly have intended toassume.

[ 25 ] The Vendor submits that “ deduction of environment ” if it means anything at all, must be something that can be defined precisely in terms of area. It must also be something that the parties would be able to define by the Closing Date. The initial Closing Date of October 10, 2012, was extended by agreement to November 2, 2012.

The parties agreed that time was to be of the essence. [ 26 ] If Quattro planned to develop the Lands in a way that was going to destroy some, or all of the wetlands, and so would ultimately have to pay some compensation, the Vendor had no way of knowing this at the time of contracting or by the Closing Date. Whether compensation became payable, and if so how much, would depend upon Quattro's development plans and the regulatory response to those plans. [ 27 ] Mr.

Andrews (the president of Quattro) in his affidavit deposed that he was generally familiar with the topography of the Lands before the Agreement was entered into, and that he knew there were wetlands on the Lands. Therefore “ if any ” in the phrase is inconsistent with Quattro's argument, as it clearly indicates that there may not be any deduction from the Purchase Price because of “ environment. ” [ 28 ] The Vendor further argues that “ including deduction of environment, if any ” is a meaningless phrase. “ Environment ” is an extremely broad word which has various meanings.

Nothing in the Agreement gives any clue as to what “ deduction of environment ” might mean. The

interpretation Quattro has put forward in these proceedings (that “ deduction of environment ” refers to areas which are “ undevelopable ” ) is inconsistent with the one described by Stantec in its emails to Landrex (that compensation may become payable for areas destroyed). [ 29 ] The Vendor notes that at least one other

article exists in the Agreement that is meaningless: the last paragraph of

Article 8.5 regarding “ Notice ” refers to a “

Section 20". There is no “

Section 20" in the Agreement. [ 30 ] The Vendor points to an affidavit sworn by Perry McCormick, an officer with Ducks Unlimited Canada, who explains that Ducks Unlimited is approved by AESRD as a “ wetlands restoration agency ” and conducts approximately 95% of the wetlands evaluations in Alberta. The cost of restoring wetlands is currently set under AESRD Guidelines at $16,500/hectare.

Multiplied by the 3:1 compensation ratio used when wetlands are lost due to a development, the compensation comes to $49,500/hectare ($20,032/acre). [ 31 ] If Quattro's argument is correct, it would be entitled to receive a deduction of $90,000 per acre for an issue which might eventually ultimately result in a maximum expense of $20,000 per acre. Wetland areas can in fact be a substantial benefit to the development. The Vendor notes that Landrex's Erin Ridge North development, acquired 26 years ago, contain wetlands and no wetlands expense has been incurred at all.

The Vendor concludes that the result being sought by Quattro is unreasonable, because it would provide Quattro with a windfall. [ 32 ] In any event, the Vendor submits that there is no evidence before the Court supporting the argument that any portions of the Lands areas are not “ developable. ” A developer may choose to preserve wetlands, as an overall benefit to the development as a whole.

The evidence submitted on behalf of Quattro respecting wetlands and bird sightings does not meet the criteria of either necessity or reliability, and it should be disregarded. [ 33 ] The Vendor submits that if the phrase has some meaning, it is possible that the parties were using “ environment ” in the same sense that they used the word in the one other place it appears in the Agreement. Specifically, in

Article 3.1.13, the Vendor made a representation under the heading “ Environmental Laws ” that there were no contaminants or hazardous materials located upon the Lands or on immediately adjacent lands . [ 34 ] The Vendor further argues that even if the Court accepts Quattro ’ s

interpretation of

Article 7.4, the facts do not justify any deduction from the purchase price for environmental reasons. Quattro was given ample time to conduct the site investigations it was entitled to undertake. The Agreement gave Quattro the right to have its consultants enter the Lands to conduct their inspections. No explanation has been offered as to why Quattro did not require Stantec to get its environmental review finished and finalized before the Closing Date.

Quattro was under an express obligation to provide the Vendor with “ all reports ” arising from its inspection, but it only forwarded some emails from Stantec which lay out some numbers which Stantec itself emphasized were “ approximate ” and “ preliminary ” .

[ 35 ] The Vendor submits that the fact that the parties agree to an extension of the time to close does not in and of itself indicate a waiver of a time of the essence clause: Bowlen v Digger Excavating

(1983) Ltd , 2001 ABCA 214 , [2001] AJ No 1125 at paras 17 and 23 . At the very least the party seeking relief must be in a position to show that the conduct of the other party misled him or caused him to act in a manner which resulted in an inability to perform the obligations that he would otherwise have been in a position to perform.

The evidence shows that the Vendor acted in good faith and did nothing to prevent Quattro from closing on the agreed date. [ 36 ] The Vendor opines that the letter dated October 31 letter gave no indication as to what adjustment Quattro thought should be made to the Purchase Price. Nor had Quattro given any such indication in prior correspondence. Rather than telling the Vendor what it thought the deduction should be, Quattro's argument was that a lengthy extension to the Closing Date was required. It proposed May 1, 2013.

If Quattro is right about the meaning of the phrase in question, then it was incumbent on Quattro to ensure that all of its necessary inspections and reports were completed in advance of the Closing Date and provided to the Vendor. [ 37 ] The Vendor denies that it had any knowledge of a stipulation in an earlier offer that the acreage would be adjusted to exclude any land dedicated to environmental reserve due to provincial wetland claims. Further, it denies that

Article 7.4 places an onus on the Vendor to determine which portions of the Lands may not be developed due to environmental reasons. [ 38 ] The Vendor asserts that by refusing to close on the agreed Closing Date, Quattro repudiated the Agreement. The Vendor accepted Quattro' s repudiation and the Agreement is at an end. Quattro ’ s Position [ 39 ] Quattro notes that the Crown owns the bed and shore of all naturally occurring water bodies, including semi-permanent and permanent wetlands according to the Public Lands Act , RSA 2000, c P-40: Title to beds and shores, etc. 3(1) Subject to subsection (2) but notwithstanding any other law, the title to the beds and shores of (

a) all permanent and naturally occurring bodies of water, and (

b) all naturally occurring rivers, streams, watercourses and lakes, is vested in the Crown in right of Alberta and a grant or certificate of title made or issued before, on or after May 31, 1984 does not convey title to those beds or shores. (2) Subsection (1) does not operate (

a) to affect a grant referred to in subsection (1) that specifically conveys by express description a bed or shore referred to in subsection (1) or a certificate of title founded on that grant, (

b) to affect the rights of a grantee from the Crown or of a person claiming under the grantee, when those rights have been determined by a court before June 18, 1931, or (

c) to affect the title to land belonging to the Crown in right of Canada.

(3) For the purposes of subsection (1), a river, stream or watercourse does not cease to be naturally occurring by reason only that itswater is diverted by human act. [40] The Crown also owns all water in the Province, including water in permanent or intermittent wetlands, as well as the right todisturb water: Water Act, RSA 2000, c W-3: Water vested in Crown 3(2) The property in and the right to the diversion and use of all water in the Province is vested in Her Majesty in right of Alberta exceptas provided for in the regulations. [41] Quattro states that an application must be made to the Alberta Environment and Sustainable Resources Department (AESRD)for removal of wetlands upon payment of compensation to an agency designated by the Province.

As well, agreements are required withneighbouring landowners for permission to disturb the wetlands straddling the boundary. Further, Stantec recommended determining inthe spring whether two species at risk which were sighted on the Lands are nesting within the Lands. Finally, the City of St. Albert mustapprove environmental impact of proposed development on the wetlands: City of St. Albert Municipal Development Plan Bylaw 15/2007,s. 10.0. [42] Quattro states that it initially believed the Vendor had information which would be useful to determining the acreageadjustment for environmental issues.

Landrex, on behalf of Quattro, retained Stantec to deal with provincial and municipal regulatoryauthorities and to determine the impact of the wetlands and any other environmental matters, such as the abandoned crude oil pipelinewhich crosses a portion of the Lands. [43] Quattro submits that the phrase “deduction of environment” in the acreage and price adjustment clause is presumed to havemeaning. The courts seek a commercially sensible

interpretation of the provisions of a contract: Nickel Developments Ltd v Canada Safeway Ltd, 2001 MBCA 79, 199 DLR (4th) 629 at para 34. [44] Quattro argues that the wetlands were obvious to the parties at the time the Agreement was negotiated. The Vendor knew theLands were being purchased for commercial and residential development.

The phrase in question in an adjustment clause in a contractfor purchase of lands for commercial and residential development can only be reasonably interpreted to mean that environmentalconcerns were to be accounted for in an adjustment to the purchase price, which had been negotiated on a per acre basis. The Vendor hadreceived an earlier offer from Landrex at a price of $65,000 per acre “less the land, if any, dedicated for environmental reserve due to aprovincial wetland claim”.

Quattro submits that regulatory evidence is part of the commercial context in which the Agreement wasmade: Nexxtep Resources Ltd v Talisman Energy Inc, 2013 ABCA 40, [2013] AJ No 57 at para 33. [45] Quattro further submits that

Article 7.4 required the Vendor to advise it before the Closing Date of the precise acreage of theLands, which required the Vendor to have determined the deduction of any portions of the Lands which, for environmental reasons,could not be developed.

The Vendor knew from Landrex’s earlier offer that price adjustments would be required for environmentalreasons relating to the wetlands. [46] Quattro asserts that the Vendor had the ability to communicate with the regulatory authorities, prior to the Closing Date, anddetermine whether the Province was claiming ownership of the bed and shore of any or all of the wetlands. To the extent ownership of aportion of the Lands was claimed by the Crown, the acreage and price could be adjusted.

For those wetlands over which the Crown doesnot claim ownership of the bed and shore, the Vendor would determine and pay the compensation necessary to give Quattro the right toremove the wetlands.

Quattro argues that the fact that it may ultimately choose to preserve wetlands does not change the fact that it isentitled to an adjustment for those portions of the Lands it cannot develop because of the impact on the environment, as determined bythe regulatory authorities. [47] Quattro submits that there is an implied duty of good faith which includes a duty to cooperate in achieving the objectives ofan agreement: CivicLife.com Inc v Canada (Attorney General) (2006), (ON CA), 215 OAC 43, [2006] OJ No 2474

at para 29 (CA). Courts will readily imply a provision on the part of each party to do all that is necessary to secure its performance of acontract: Dynamic Transport Ltd v OK Detailing Ltd, (SCC), [1978] 2 SCR 1072, [1978] SCJ No 52 at paras 9 to 10. [48] Quattro asserts that the Vendor had a positive contractual obligation to have determined, by the regulatory authorities,whether all of any portion of the wetlands could be developed and to provide an appropriate per acre price adjustment.

Quattro submitsthat the Vendor cannot take advantage of its own default as a basis for alleging the Agreement has been terminated. Where a vendor hasagreed to sell a greater area of land than it is able to convey, the purchaser has the right to proceed with the transaction and accept thelesser area with an appropriate abatement of the purchase price: Makowecki v St Martin (1990), (AB KB), 107 AR346, [1990] AJ 643 (QB). [49] Quattro argues that if it agrees to buy 144.51 acres but receives only 128.73 acres, it is not a windfall to pay only for the128.73 acres. Analysis [50]

Article 7.4 is indisputably ambiguous, and the Court takes into account the extrinsic evidence presented in an attempt toestablish the appropriate construction of the clause. [51] I am satisfied that everyone knew at the time the Agreement was signed that there were wetlands on the 144 acres. Thephrase “deduction of environment, if any” in

Article 7.4 would appear to undermine Quattro’s position. If everyone knew there werewetlands, “if any” suggests that the “deduction of environment” did not contemplate a deduction for wetlands. [52]

Article 7.4 of the Agreement contemplates an adjustment of acreage relating to “something” to do with the environment.Whatever that “something” was, it could affect some portion of the acreage which was purportedly being purchased by Quattro. [53]

Article 7.4 also contemplates that the Vendor would advise Quattro of the precise acreage, from which it can be inferred thatthe precise acreage would be ascertainable and ascertained by the Vendor “prior to and in conjunction with the Closing Date”. However,the Agreement in fact imposes no obligation on the Vendor to ascertain anything in particular in relation to “environment.” [54] Quattro submits that it believed the Vendor had information which would be useful to determining the acreage adjustment forenvironmental issues.

While that may be the case, the evidence does not establish that the Vendor led Quattro to believe this was so.Further, this is not reflected through any onus in that respect imposed on the Vendor in the Agreement. [55] The Vendor did represent in

Article 3.1.13 under the heading “Environmental Laws” that there were no contaminants orhazardous materials located upon the Lands or on immediately adjacent lands. In my view, although it is possible to construe it asincluding a deduction for the effect of contaminants, it would be arbitrary without more to construe

Article 7.4 as necessarily beingrestricted to the effect of contaminants or hazardous materials located upon the Lands or on immediately adjacent lands. Further, it isredundant with respect to contaminants insofar as the Vendor has represented in the Agreement that there were none on the Lands. [56] However, I attribute little weight to the prior offer which provided that the acreage would be adjusted to exclude any landdedicated to environmental reserve due to provincial wetland claims. The Vendor denies firsthand knowledge of that condition. In anyevent, the Vendor did not enter into that agreement.

It is, therefore, evidence of an offer which the Vendor did not accept. It would beillogical, without more, to read a stipulation from that rejected offer into the Agreement. [57] Quattro essentially argues that the onus was on the Vendor to determine whether the Crown was making a claim of

ownership, and those acres of wetlands would be deducted at $90,000 per acre. The evidence before the Court is that restoration of some of the wetlands might be possible, but would involve consultation and negotiations with the Crown and adjacent owners. Again, the Agreement does not place an onus on the Vendor to consult with the Crown or adjacent landowners. Nor was there evidence that such an onus was discussed during the negotiations.

At most, the Agreement imposes on the Vendor an obligation to facilitate Quattro ’ s exploration of the development potential of the Lands. [ 58 ] Quattro argues that the wetlands may not be amenable to development. However, only Quattro would know whether and how the wetlands can be incorporated into its proposed development. This is inconsistent with an onus being placed on the Vendor to make this determination. [ 59 ] Further, the Agreement as drafted was to close at most 95 days after acceptance. Time was of the essence.

In my view, the period to closing on October 10, 2012 (or even the extension to November 2, 2012) would not reasonably have provided sufficient time for the necessary consultations to take place to determine the Crown ’ s and adjacent owners ’ positions on the issue of the wetlands, for Quattro to develop its resulting approach to development, and to receive the regulatory response to that approach. In fact, despite its own efforts Quattro is still not in a position to state unequivocally what the ramifications of the wetlands are on the proposed development and seeks a new closing date as a result.

There is no suggestion in the evidence that the Vendor has hindered Quattro in its attempts to resolve these issues in a timely fashion. [ 60 ] While I do not interpret

Article 7.4 as necessarily being restricted to the effect of contaminants or hazardous materials, I find that it cannot be reasonably construed as argued by Quattro. I accept that Quattro may have wished to stipulate in the Agreement that a deduction be made for wetlands. However, I find that there was no meeting of the minds on this point and the wording of

Article 7.4 cannot be construed to reflect the intention of the parties to adjust for wetlands before or on the Closing Date. It would not have required sophisticated drafting to include the term “ wetlands ” in

Article 7.4 if that were the intention. The prior offer provided a precedent containing a much clearer stipulation. [ 61 ] For the foregoing reasons, I find that the phrase “ including deduction of environment ” is so vague as to be meaningless, despite Quattro ’ s attempts to convince me otherwise and the extrinsic evidence presented in support of its argument. [ 62 ] I further find that the parties ’ agreement to extend the time to close in this case does not indicate a waiver of the “ time of the essence ” clause: Bowlen v Digger Excavating

(1983) Ltd . The correspondence from Brian Brendzan dated October 9, 2012 could leave no reasonable doubt that time remained of the essence: “ In the event the transaction does not close on [November 2, 2012] the deposit monies will be forfeited as liquidated damages and our client will be taking steps to resell the property in order to quantify their damages. ” Furthermore, the Vendor did not conduct itself in an unfair, unjust or misleading manner in relation to the “ time of the essence ” clause.

It did not hinder Quattro ’ s development planning efforts. [ 63 ] Quattro argues that the Vendor did not fulfill the obligation to revise the acreage by the Closing Date. I find that the Vendor ’ s failure to revise the acreage by the Closing Date reflected its position that the acreage was as stated in the Agreement. [ 64 ] I further find that Quattro repudiated the Agreement by refusing to close on the agreed Closing Date. The Vendor accepted the repudiation and therefore the Agreement is at an end.

Costs [ 65 ] If the parties are unable to agree on costs, they may speak to costs within 30 days of this decision. Security

[ 66 ] The parties may also speak to me within 30 days of this decision if necessary with respect to the issue of security. Heard on the 26 th day of February, 2013. Dated at the City of Edmonton, Alberta this 15 th day of March, 2013. Gerald A. Verville J.C.Q.B.A. Appearances: Paul Edwards, Gowling Lafleur Henderson LLP for the Plaintiffs James K. McFadyen, Q.C., Parlee McLaws LLP for the Defendant