Beier v. Proper Cat Construction Ltd., 2013 ABQB 351

Court of Queen ’ s Bench of Alberta Citation: Beier v. Proper Cat Construction Ltd., 2013 ABQB 351 Date: 20130705 Docket: 0903 04868 Registry: Edmonton Between: Carol Phyllis Beier, Clayton Gessner and C ’ s Oilfield Consulting and Construction Service Ltd. Plaintiffs - and - Proper Cat Construction Ltd., Deborah Lyn Davies and Reid Davies Defendants Corrected judgment: A corrigendum was issued on August 6, 2013; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr.

Justice Thomas W. Wakeling _______________________________________________________ I. Introduction [ 1 ] The plaintiffs seek

summary judgment against the defendants and Sandra Saran. They request a declaration that they entered into a binding settlement agreement with the defendants and Ms. Saran on February 8, 2012 ( “ February 8, 2012 settlement agreement ” ) and an order directing the transfer in accordance with the terms of the February 8, 2012 settlement agreement of the land in the County of Vermilion River described in the February 8, 2012 settlement agreement ( “ settlement lands ” ). [ 2 ] This is an appeal from an order of Master Smart dismissing the plaintiffs ’ application for

summary judgment. Court of

Queen’s Bench Act, R.S.A. 2000, c. C-31, s. 12 & Alberta Rules of Court, Alta. Reg. 124/2010, as amended, rule 6.14(1). [3] The standard of review is correctness. Bahcheli v. Yorkton Securities Inc., 2012 ABCA 166 , 524 A.R. 382, 387(C.A. 2012). II. Questions Presented [4] Is the February 8, 2012 settlement agreement enforceable? [5] If the February 8, 2012 settlement agreement is enforceable, did the plaintiffs repudiate the February 8, 2012 settlementagreement and did the defendants and Ms.

Saran accept the repudiation? [6] If there was no repudiation of the February 8, 2012 settlement agreement and it remained in force, did the plaintiffs do allthat was required of them under the February 8, 2012 settlement agreement? [7] Did the defendants and Ms. Saran breach the February 8, 2012 settlement agreement by failing to convey the settlementlands to Clayton Gessner? [8] If the defendants and Ms.

Saran breached the February 8, 2012 settlement agreement, what is the appropriate remedy?Should this Court order specific performance of the February 8, 2012 settlement agreement and direct the transfer of the settlementlands? [9] As specific performance is an equitable remedy, is there any reason why the Court should exercise its discretion and notaward specific performance? [10] Are the plaintiffs entitled to

summary judgment? Is the plaintiffs’ case so compelling that the likelihood of success isextremely high? Do the defendants and Ms. Saran have any defence to the plaintiffs’ claim? III. Brief Answers [11] The February 8, 2012 settlement agreement is enforceable. Each of the parties signed it and had knowledge that the othershad executed the February 8, 2012 settlement agreement. The terms contained in the February 8, 2012 settlement agreement identify theland, the vendor, the purchaser, the purchase price, the closing date and agreed upon warranties and the other documents necessary tocomplete the settlement.

All essential terms for a settlement agreement were agreed upon. [12] No post February 8, 2012 conduct on the part of the plaintiffs evidenced an intention to repudiate the February 8, 2012settlement agreement. [13] The plaintiffs discharged their obligations under the February 8, 2012 settlement agreement. The defendants and Ms. Sarandid not.

[14] Specific performance is the appropriate remedy. The plaintiffs agreed to purchase the settlement lands to effect the removalof obnoxious neighbours. This fact makes the settlement property unique for the purposes of Semelhago v. Parmadevan, (SCC), [1996] 2 S.C.R. 415, 429. [15] There is no reason to deny specific performance in order to relieve some of the defendants and Ms. Saran of the consequencesof their signing the February 8, 2012 settlement agreement. Severe hardship does not exist just because Ms. Davies may have to acquire asmaller home and, along with her mother and daughters, adjust to a different lifestyle. [16] The plaintiffs are entitled to

summary judgment under rule 7.3(1)(

a) of the Alberta Rules of Court, Alta. Reg. 124/2010.Their case is so strong that the likelihood of success is very high. The defendants and Ms. Saran have no defence to the plaintiffs’ claim.There is no genuine issue to be tried and the plaintiffs are entitled to judgment as a matter of law. The facts and the law on which theplaintiffs rely are incontrovertible. IV. Applicable Rules of Court [17] Rule 7.3 of the Alberta Rules of Court, Alta. Reg. 124/2010 (sometimes the “new

summary judgment rule”) is set out below: 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 followinggrounds: (

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 andundivided 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. [18] Rules 159 and 162 of the Alberta Rules of Court, Alta. Reg. 390/68 (sometimes the “old

summary judgment rules”), in forcebefore November 1, 2010, read as follows: 159(1) In any action in which a defence has been filed, the plaintiff may, on the ground that there is no defence to a claim or part of aclaim or that the only genuine issue is as to amount, apply to the court for judgment on an affidavit made by him or some other personwho can swear positively to the facts, verifying the claim or part of the claim and stating that in the deponent’s belief there is no genuineissue to be tried or that the only genuine issue is as to amount. ...

(3) On hearing the motion, if the court is satisfied that there is no genuine issue for trial with respect to any claim, the court maygive

summary judgment against the plaintiff or a defendant.

162 At any stage of the proceedings the court may, upon application, give any judgment or order to which the applicant may be entitled when (

a) admissions of fact have been made on the pleadings or otherwise, or (

b) the only evidence consists of documents and such affidavits as are sufficient to prove their execution or identity. V. Statement of Facts A. The Underlying Action [ 19 ] On April 2, 2009 Carol Phyllis Beier and C ’ s Oilfield Consulting and Construction Service Ltd. commenced an action against Proper Cat Construction Ltd., Deborah Davies and Reid Davies ( “ 2009 action ” ). An amendment made to the statement of claim on October 7, 2012 added Clayton Gessner as a plaintiff and detailed additional allegedly unlawful conduct on the part of the respondents. [ 20 ] In the 2009 action the plaintiffs assert that Ms.

Davies, Mr. Davies and Proper Cat Construction Ltd. failed to discharge obligations they accepted in a 2007 real estate sale agreement with Ms. Beier and seek substantial damages. The amended version also states that the defendants allowed their horses to unlawfully enter the land Ms. Beier purchased from the defendants and committed other unlawful acts, including the following: 29(

e) Since November 2007 D. Davies, and other individuals known to or acting through D. Davies have, and continue to, harass and intimidate the Plaintiffs and the employees of C ’ s Oilfield [Consulting and Construction Service Ltd.], and make public threats of illegal acts, with the intention to injure or cause damages, including but not limited to: (

a) threats of physical harm and death to Beier, Clayton Gessner and the employees of C ’ s Oilfield; (

b) threats of property damage, including arson, to the Plaintiff ’ s property; and (

c) threats to C ’ s Oilfield business and customers. 29(

f) The outrageous conduct of D. Davies, and other individuals known to or acting through D. Davies constitutes: (

a) interference with the Plaintiffs ’ peaceful enjoyment of the Land; (

b) interference with the business operations of C ’ s Oilfield; (

c) assault upon the Plaintiffs and the employees of C ’ s Oilfield; and (

d) the intentional creation of the apprehension of imminent harm to the Plaintiffs ’ and C ’ s Oilfield employees ’ person and property. 29(

g) As a result of D. Davies ’ threats, intimidations and harassment, the Plaintiffs have suffered, and will continue to suffer irreparable harm. [ 21 ] The defendants filed a statement of defence and amended statement of defence on May 29, 2009 and June 3, 2009 respectively denying any wrongdoing. B. The February 8, 2012 Settlement Agreement [ 22 ] On February 7 or 8, 2012 Ms. Davies attended at Davis LLP ’ s office for the purpose of being questioned in the 2009 action. Mr. Davies and David Hawreluk of Bennett Jones LLP, the defendants ’ lawyer, accompanied her. The visit to Davis LLP produced the

February 8, 2012 settlement agreement between the plaintiffs and the defendants, as well as Ms. Saran, Ms. Davies ’ mother (collectively the “ defendants ” ). Ms. Davies described part of the settlement process this way in her December 12, 2012 affidavit: 44. Reid [Davies] and I discussed the Agreement. I was extremely reluctant to sign the Agreement, given the significant attachment that I had to the ... [settlement lands]. However, in the end, Reid and I concluded that signing the Agreement provided an opportunity to end the Subject Action, and any further litigation with the Gessner Group.

As a result, Reid signed the Agreement on behalf of himself, and Proper Cat Construction. I signed the Agreement on behalf of myself. 45. On the evening of February 8, 2012, Reid and I discussed the Agreement with Sandra [Saran]. Sandra initially reacted in strong opposition to the Agreement. However, Reid and I stressed that the Agreement provided an opportunity to end Subject Action [sic], and any further litigation with the Gessner Group. As a result, Sandra signed the Agreement. [ 23 ] Mr.

Gessner, in his March 1, 2013 affidavit, swore that the defendants ’ counsel informed the plaintiffs ’ counsel in a February 10, 2012 email that Ms. Saran signed the February 8, 2012 settlement agreement and that “ we are continuing to move forward ” . He had delivered a similar, if less clear, message in his first affidavit: “ By email on February 12, 2012 ... [defendants ’ counsel] confirmed that settlement had been reached ” . [ 24 ] The February 8, 2012 settlement agreement obliged (

a) the plaintiffs to discontinue the 2009 action; (

b) the plaintiffs and the defendants to sign releases, a confidentiality agreement and “ all necessary supporting documents to give effect to this agreement ” ; (

c) Ms. Davies to transfer title to the settlement lands to Mr. Gessner free and clear of all financial encumbrances and financial interests; (

d) Mr. Gessner to pay $212,500 to Ms. Davies; and (

e) the defendants not to vandalize or sabotage the settlement lands; set August 31, 2012 as the “ closing date for payment of funds and vacant possession ” ; recorded the fixtures which may and may not be removed from the settlement lands and declared that “ the mobile home ... will belong to C. Gessner if it remains on the ... [settlement lands] after the closing date ” . [ 25 ] The market value of the settlement lands may have been $275,000. The difference between the market value and $212,500 represented the notional value attributed to the 2009 action. Ms. Davies indicated on questioning that Mr.

Davies would pay her the shortfall and that he in effect would cover the plaintiffs ’ damage claim. [ 26 ] Both parties, by the conduct of their counsel and their own activities, manifested their belief that the February 8, 2012 settlement agreement was a conclusive resolution of their differences. [ 27 ] Two emails from the defendants ’ counsel contemporaneous with the February 8, 2012 settlement agreement provide ample support for this proposition. The first, a February 10, 2012 email, reads as follows: “ We were able to get Ms.

Saran to sign the agreement that you prepared, so we are continuing to move forward. Are you going to prepare the other necessary documents to get the matter concluded? ” The second is a February 12, 2012 email: “ Given the settlement, I am writing to make sure Mr. Gessner and Ms. Beier will not be cashing the cheque that I sent you for conduct money ” . [ 28 ] The parties also proceeded on the assumption that Ms. Davies would transfer the settlement lands to Mr. Gessner. The defendants removed the stall fronts to the barn and some litter. Unlike past years, Ms.

Davies did not stock pile winter feed for her horses. Mr. Gessner made numerous arrangements to improve the settlement lands, including the removal of the horse manure which was stockpiled on the settlement lands and some of the buildings on the settlement lands and the rental of heavy equipment needed to level ten acres on the settlement lands. C.

Post February 8, 2012 Events [ 29 ] The lawyers still had some work to do after the defendants ’ counsel forwarded the signed February 8, 2012 settlement agreement signed by all of the defendants to the plaintiffs ’ counsel as an enclosure to a February 14, 2012 letter. Releases, a confidentiality agreement, a real estate purchase agreement, a trust conditions letter and a discontinuance had to be drafted.

[ 30 ] Part of the February 14, 2012 letter reads as follows: To make sure that the matter is concluded once the settlement agreement is signed and the transaction is concluded, we want to make absolutely clear that the property is taken on an “ as is where is basis ” and that the purchaser will not come back against the Davies for any reason.

We want to make sure that the matter is completely resolved once and for all. [ 31 ] On March 20, 2012 plaintiffs ’ counsel, forwarded to defendants ’ counsel a draft release, confidentiality agreement and residential real estate purchase contract. [ 32 ] On March 27, 2012 the defendants ’ counsel provided his counterpart with his comments on the draft documents. His principal concern was the warranty part of the residential real estate purchase contract: “ The Davies are not going to ... give any warranties or representations about the conditions of the property.

They are not prepared to expose themselves to further lawsuits from Mr. Gessner. ... The property is being sold in an ‘ as is ’ condition ” . [ 33 ] Plaintiffs ’ counsel responded promptly. On March 28, 2012 he explained why the provisions in the real estate purchase contract were not inconsistent with the “ as is ” position staked out by the defendants. [ 34 ] Later that day, defendants ’ counsel replied as follows: We do not agree with your

interpretation or understanding of the deal. One of the reasons why the ... [Davies] agreed on the price they did was that it was expected to end all matters with your clients. With what you propose, my clients will have sold the property and then be exposed to further litigation. That is not acceptable nor is it our understanding of the settlement. In our view “ as is ” means just that - “ as is ” . There are no representations or warranties. Given the position you are maintaining, there is no settlement. [ 35 ] Defendants ’ counsel wrote the plaintiffs ’ counsel again on May 6, 2012.

Counsel repeated his clients ’ position that this is an “ as is ” sale. But he did propose that a property inspector be retained to determine whether the settlement lands are in the same condition on the date of closing as in the date of the first inspection. Part of the May 6, 2012 email noted that “ Ms. Davies is making arrangements to vacate the property and purchase a new home based on the settlement ” . [ 36 ] Plaintiffs ’ counsel responded on May 24, 2012.

He forwarded a revised real estate purchase contract. [ 37 ] Defendants ’ counsel did not provide his comments. [ 38 ] On August 22, 2012 plaintiffs ’ counsel delivered to defendants ’ counsel a Davis LLP cheque for $212,500 payable to Bennett Jones LLP in trust, a discontinuance of the 2009 action, a release signed by the plaintiffs, a release, a mirror image of the one signed by the plaintiffs, to be signed by the defendants, a confidentiality agreement signed by the plaintiffs and a letter setting out trust conditions designed to ensure that Mr.

Gessner acquires the land “ free and clear of all financial encumbrances and financial interest ” , a term of the February 8, 2012 settlement agreement, and that “ there has been no sabotage or vandalism of the property ” . The trust letter also advised that “ [w]e are prepared to consider modification of the trust conditions to accommodate any reasonable difficulties that you may encounter in completing the settlement ” . [ 39 ] On August 24, 2012 defendants ’ counsel returned the documents he received on August 22, 2012. Counsel ’ s August 24, 2012 letter stated that “ [i]t is the position of Mr.

Davies that no settlement was reached ” . It is important to note that none of the other defendants adopted this position.

[ 40 ] The mobile home referred to in the February 8, 2012 settlement agreement remained on the settlement lands after August 31, 2012. D. The Plaintiffs ’

Summary Judgment Application [ 41 ] On December 5, 2012 the plaintiffs filed an application for

summary judgment and the November 19, 2012 affidavit Mr. Gessner swore. They named as respondents the defendants.

Schedule A to the application for

summary judgment contains the order the plaintiffs seek. [ 42 ] Mr. Gessner swears in his November 19, 2012 affidavit that Ms. Davies and her mother, Ms. Saran, have committed numerous unlawful acts since Ms. Brier purchased property from Ms. Davies in 2007. The following records some of the most important aspects of Mr. Gessner ’ s complaints: 28(

c) On at least 10 occasions D. Davies ’ horses have got onto the Gessner Land from the Settlement Land, remained there and caused harm; (

d) D. Davies has not fetched her horses; (

e) The horses have had to be returned to the Settlement Land by the Gessner Group or the RCMP; (

g) I have had to incur costs to capture them, maintain them, confine them, impound and remove them; ... 29 The most significant instance of D. Davies ’ horses trespassing on the Gessner Land occurred on August 4, 2010: ... (

b) The RCMP and the county branding inspector arrived at the Gessner Land with trailers to remove and impound D. Davies ’ horses; ... (

d) On the same occasion I witnessed D. Davies and Saran obstructing the removal of the horses by blocking the entrances gates and sitting on the road. ...; (

e) Saran was arrested by the RCMP officer for obstruction of justice and removed from the scene. ... 30 While trespassing on the Gessner Land, D. Davies has repeatedly threatened to kill Beier and myself and burn our house down. ... 34 D. Davies was arrested and criminally charged with uttering threats to cause death to us and threatening to burn, destroy or damage our property, contrary to

Section 264 of the Criminal Code . ... 36 The Davies Group have on many occasions blocked roads or entrances to the Gessner Land. This behaviour has interfered with access and C ’ s Oilfield ability to conduct its business operations.

... 37 D. Davies has made a regular practice of maliciously piling horse manure at the south-eastern corner of the Settlement Land, upwind of the Gessner property. Having regard to the prevailing wind, the smell made life unpleasant and interfered with the use and enjoyment of the Gessner Land by me, Beier and the employees of C ’ s Oilfield. ... 39 D. Davies and Saran embarked on a systematic campaign of unwarranted and unsubstantiated complaints to local and other authorities, including ... the following: (

a) During November 2008 she complained to Alberta Environment; (

b) During the spring of 2009 she complained to the Workers ’ Compensation Board; (

c) During June 2009 she complained to the Occupational Health and Safety Authority; (

d) On 14 occasions between December 2007 and March 2010 she complained to the county fire marshall; (

e) On six occasions between December 2007 and November 2008 she complained to the RCMP; (

f) During December 2007 she complained to the county dog catcher; ... 40 Each time she made a complaint, the authorities conducted an investigation and I was required to spend my time answering their questions and responding to the complaint. 41 All the complaints described above were without merit or substance and were dismissed. 42 In addition, I believe that the following problems encountered on the Gessner Land were caused by D. Davies or persons acting as her agents: (

a) During November 2008 a large quantity of shingle nails were spread on the Gessner Land driveway and all access points to the land; (

b) The nails were spread in such a fashion that it was impossible to drive vehicle [sic] onto or off the Gessner property from any direction without driving over the nails and causing punctures; (

c) The nails caused punctures and I incurred repair costs to tires of vehicles; ... (

e) Only someone with a detailed knowledge of all access points to the Gessner Land could have laid the nail pattern so throughly. [ 43 ] Mr. Gessner, also in his November 19, 2012 affidavit, explained why he valued the settlements lands: 67 Part of my motivation for signing the settlement agreement was because I wished to end the seemingly endless disputes and harassments that I as their immediate neighbour have endured from D. Davies and Saran over the past five years. I wanted both the Gessner Group and the Davies Group to have peace of mind from this point forward.

I do not believe that will happen as long as D. Davies and Saran occupy the Settlement Land. 68 Another part of my motivation for signing the settlement agreement is that I can make particular use of the Settlement Land specifically because it is immediately adjacent to the Gessner Land. Other land would not enable me to accomplish the business purposes that made the Settlement Land specifically attractive to me.

69 The terms of this settlement would allow me to use the Settlement Land for various business purposes that complement with and expand my existing operations currently conducted solely on the Gessner Land. [ 44 ] He expresses the belief in his November 19, 2012 affidavit that “ any remedy of a damage award ... would be of little use to me ” . [ 45 ] The plaintiffs, according the Mr. Gessner ’ s first affidavit, “ [remain] ready, willing and able to fulfill all of ...[their] obligations under the ... [February 8, 2012 settlement agreement] ” . [ 46 ] On January 22, 2013 Mr. Gessner swore a second affidavit.

He deposes a belief “ that there is no defence to the claim by the applicants set out in the application for

summary judgment filed December 5, 2012 ” . [ 47 ] Ms. Davies, Mr. Davies and Ms. Saran each filed an affidavit in opposition to the plaintiffs ’ application for

summary judgment. [ 48 ] Each of Mr. and Ms. Davies acknowledged signing the February 8, 2012 settlement agreement. [ 49 ] Ms. Davies records, in her December 13, 2012 affidavit, the considerations which she bore in mind, before she signed the February 8, 2012 settlement agreement: 40 [Mr. Davies] ... and I discussed the possibility of settling the Subject Action on terms whereby ... [the settlement lands] were transferred to Gessner. On the one hand, [Mr. Davies] ... and I wanted to see the Subject Action come to an end.

After all, the Subject Action had caused us considerable stress; not to mention the incurrence [sic] of significant legal fees. On the other hand, I was extremely reluctant to enter into any settlement whereby I would lose possession of the ... [settlement lands]. The ... [settlement lands] had been in my possession for more than 20 years. [My daughters] ... had grown up on the ... [settlement lands]. Further, I operated my business, K- Lyn Stables on the ... [settlement lands]. ... 44 [Mr. Davies] and I discussed the Agreement.

I was extremely reluctant to sign the Agreement, given the significant attachment I had to the ... [settlement lands]. However, in the end, [Mr. Davies] and I concluded that signing the Agreement provided an opportunity to end the Subject Action, and any further litigation with the Gessner Group. As a result, [Mr. Davies] ... signed the Agreement on behalf of himself, and Proper Cat Construction. I signed the Agreement on behalf of myself. [ 50 ] Ms. Davies admits in her affidavit sworn on December 13, 2012 that after November 1, 2007 the relationship she, Mr. Davies and Ms. Saran had with Ms. Beier and Mr.

Gessner “ deteriorated ” . While she denies in her January 30, 2013 affidavit that she ever threatened to kill any of the plaintiffs, she did concede that on August 4, 2010 she shouted and swore at Ms. Beier, Mr. Gessner and others and was charged with uttering threats during the August 4, 2010 incident. Ms. Davis swore that the “ charges were resolved after I agreed to attend an anger management course ” . [ 51 ] Ms. Davies explained why she did not want to give up ownership of the settlement lands. This is where her two daughters grew up and her stable business was based.

If she was forced to sell the settlement lands for $215,000, she could not afford to acquire comparable property. She swore that she “ would have to purchase a significantly downgraded residence likely in an urban area ... [which would represent] a dramatic lifestyle adjustment [for her family] ” .

E. Master Smart ’ s Decision [ 52 ] Master Smart heard the

summary judgment application on February 11, 2013 and gave his oral reasons for decision shortly after he heard counsels ’ oral submissions. The Master made a number of findings. First, he stated that the “ plaintiff must prove its case on a balance of probabilities with the evidentiary burden then shifting to the defendant to prove there is a genuine issue for trial. Indeed, it must be beyond doubt that there is no genuine issue for trial existing, a very high standard ” . Second, the Master held that the February 8, 2012 settlement agreement was not a binding agreement.

He did so, primarily because the material did not clearly indicate that the defendants notified the plaintiffs before February 14, 2012 that Ms. Saran signed the February 8, 2012 agreement on February 8, 2012. The Master assumed that Ms. Saran signed the February 8, 2012 settlement agreement well after February 8, 2012. This is not the evidence. Ms. Davies ’ December 13, 2012 affidavit reveals that Ms. Saran signed the February 8, 2012 settlement agreement on February 8, 2012, just like the other signatories: 45 On the evening of February 8, 2012 [Mr. Davies] ... and I discussed the Agreement with ... [Ms.

Saran]. [Ms. Saran] ... initially reacted in strong opposition to the Agreement. However, [Mr. Davies] and I stressed that the Agreement provided an opportunity to end the Subject Action, and further litigation with the Gessner Group. As a result, [Ms. Saran] ... signed the Agreement. Unfortunately, Mr. Gessner ’ s first and second affidavits did not include the February 10, 2012 email from the defendants ’ counsel to plaintiffs ’ counsel which gave the plaintiffs notice that Ms. Saran had signed the February 8, 2012 settlement agreement. This important document was presented to this Court as an exhibit to Mr.

Gessner ’ s third affidavit. Third, as a result of his misapprehension of the evidence, Master Smart characterized defendants ’ counsel ’ s February 14, 2012 letter to plaintiffs ’ counsel as a counteroffer. This was not an issue raised by the defendants before the Master. The February 14, 2012 letter contained this passage: To make sure that the matter is concluded once the settlement agreement is signed and the transaction is concluded, we want to make absolutely clear that the property is taken on an “ as is where is basis ” and that the purchaser will not come back against the Davies for any reason.

We want to make sure that this matter is completely resolved once and for all ... . As the Master concluded that the plaintiffs never accepted the counteroffer, there was no binding agreement. Fourth, Master Smart, in obiter, opined that plaintiffs ’ counsel ’ s August 23, 2012 trust letter may not have constituted proper tender, another issue not raised by the defendants, and that he would have ordered specific performance had he determined that the February 8, 2012 settlement agreement was enforceable. F.

The Plaintiffs Appealed Master Smart ’ s Order [ 53 ] On February 27, 2013 the plaintiffs filed an appeal from the order of Master Smart dismissing their

summary judgment application. [ 54 ] On March 1, 2013 the plaintiffs filed Mr. Gessner ’ s third affidavit, this one sworn on February 27, 2013. Attached as the sole exhibit to this affidavit was defendants ’ counsel ’ s February 10, 2012 e-mail to plaintiffs ’ counsel stating that Ms. Saran had signed the February 8, 2012 settlement agreement. The defendants did not object to the admissibility of this affidavit. VI. Analysis A. Introduction [ 55 ] I will first discuss the fundamental and peripheral principles which shape the

summary judgment law, the criteria by which the existence of an enforceable agreement is determined and specific performance law, and then identify the facts on which there is no contest to determine whether the plaintiffs are entitled to

summary judgment.

B.

Summary Judgment Removes Actions With Either Meritless Claims or Defences From our Overburdened LitigationStream [56] Most legal systems recognize that there is no reason to accord every party to an action full access to all stages of the litigationspectrum. The common law principle that a person has a right to be heard or to have his day in court is not more important than speedyresolution of meritless claims or defences the continuation of which drive up the cost of litigation for everyone not just those prosecutingan action or maintaining a defence which has no real prospect of success. Justice Sanderman opined in Richter v. Chemerinski, 2010ABQB 302, ​ 16 that a sound

summary judgment rule “balances the need ... to bring relief to parties who should not needlessly be forcedto come to court to establish an obvious unassailable position and the need to allow those who have a tenuous but arguable position toadvance it”. There is a need for a mechanism which provides a “simple, orderly and prompt presentation of the substantive issues indispute between the parties”. Clark & Samenow, “The

Summary Judgment”, 38 Yale L.J. 423, 471 (1929). [57] The Westminister Parliament accepted this assessment in 1855 when, in response to the earnest entreaties of the commercialcommunity, it enacted the

Summary Procedure on Bills of Exchange Act, 18 & 19 Vict., c. 67. The recital stated that “bona fide holdersof dishonoured bills of exchange and promissory notes are often unjustly delayed and put to unnecessary expense in recovering theamount thereof by reason of frivolous or fictitious defences ... and it is expedient that greater facilities than now exist should be given forthe recovery of money due on such bills and notes”. This statute introduced a streamlined civil procedure for the collection of bills ofexchange and promisory notes. Bauman, “The Evolution of the

Summary Judgment Procedure: An Essay Commemorating theCentennial Anniversary of Keating’s Act”, 31 Ind. L.J. 329, 353 (1956) & Clark & Samenow, “The

Summary Judgment”, 38 Yale L.J.423, 424 (1929). Later English reforms made available an expedited process in a number of actions. Bauman, “The Evolution of theSummary Judgment Procedure: An Essay Commemorating the Centennial Anniversary of Keating’s Act, 31 Ind. L.J. 329, 339-42 (1956)& Clark & Samenow, “The

Summary Judgment”, 38 Yale L.J. 423, 425 (1929). [58] Influenced by the English reforms, those responsible for the administration of civil justice in Canadian and American jurisdictions, enthusiastically embraced the methodology necessary to implement the benefits

summary judgment represents.[1] [59] A mechanism which resolves before trial claims or defences that are so compelling the likelihood they will succeed or are so weak that the likelihood they will be rejected is very high is desirable.[2] Professor Wright held the view that

summary judgment “is a salutary and efficient instrumentality for expedition of the business of the court”. C. Wright & M. Kane, Law of Federal Courts 706 (7th ed. 2011). Not only does

summary judgment result in prompt adjudication, it saves the parties the expenses associated with utilization ofthe complete litigation procedure. Any protocol which reduces the cost of litigation increases the likelihood more members of thecommunity can afford to retain lawyers. The presence of lawyers in our court is essential to the administration of justice. Lawyers makethe legal system more efficient. A related benefit is the positive outcome for others in the litigation stream. It frees up judicial resourceswhich are badly needed to process claims in a timely fashion which warrant full exposure to the complete judicial spectrum. ProfessorClark sums up the case for

summary judgment this way: “A court has failed in granting justice when it forces a party to an expensivetrial to meet purely formal allegations without substance as much as when it improperly refuses to hear a case at all”. “The

SummaryJudgment”, 36 Minn L. Rev. 567, 578 (1952). [60] In Canada v. Lameman, 2008 SCC 14 , [2008] 1 S.C.R. 372, 378 the Supreme Court of Canada endorsed the valueof

summary judgment protocols: The

summary judgment rule serves an important purpose in the civil litigation system. It prevents claims or defences that have no chanceof success from proceeding to trial. Trying unmeritorious claims imposes a heavy price in terms of time and cost on the parties to thelitigation and on the justice system. It is essential to the system and beneficial to the parties that claims that have no chance of success beweeded out at an early stage. See also Greene v. Field Atkinson Perraton, 1999 ABQB 239, ​ 1 (Master) (the purpose of the

summary judgment rule is to “rejectpromptly and inexpensively, claims and defences that are bound to fail at trial”); Espey v. Chapters Inc., (AB KB),225 A.R. 68, 69 (Q.B. 1998) (“A

summary judgment procedure is swift, cheap and efficient, with the same neutral evaluation before animpartial judge”); Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764 , 108 O.R. 3d 1, 7 (C.A. 204) (“summaryjudgment is intended to provide a means for resolving litigation expeditiously and with comparatively less cost than is associated with a conventional trial”); Dawson v. Rexcraft Storage and Warehouse Inc., (ON CA), 164 D.L.R. 4th 257, 265 (Ont. C.A.1998) (“The essential purpose of

summary judgment is to ... terminate ... claims and defences that are factually unsupported”); 1061590

Ontario Ltd. v. Ontario Jockey Club, (ON CA), 21 O.R. 3d 547, 557 (C.A. 1995) (“The rule is intended to removefrom the trial system ... these matters in which there is no genuine issue for trial”) & Apsley v. Boeing Co.,722 F. Supp. 2d 1218, 1230(D. Kan. 2010) (“summary judgment ... is an important procedure designed to secure the just, speedy and inexpensive determination ofevery action”). [61] Rule 7.3 of the new Alberta Rules of Court allows a court to grant

summary judgment to a moving party if the nonmovingparty’s position is without merit. A party’s position is without merit if the facts and law make the moving party’s position unassailableand entitle it to the relief it seeks. A party’s position is unassailable if it is so compelling that the likelihood of success is very high. [62] This may exist in a number of scenarios. [63] First, the moving party is entitled to

summary judgment if, as a plaintiff, it presents uncontroverted facts and law whichentitle it to judgment against the nonmoving party. The court must be satisfied that the plaintiff has presented uncontested facts whichestablish all the essential elements of the action. Louis, “Federal

Summary Judgment Doctrine: A Critical Analysis”, 83 Yale L.J. 745,747-48 (1974). Suppose that A sues B for wrongful dismissal alleging that the prior notice B gave A of B’s intention to dismiss A fromhis employment was not in accordance with the employment agreement between A and B. If A applies for

summary judgment and files asupporting affidavit deposing that A and B entered into a binding agreement, the terms of which obliged B to pay A $X if B dismissed Abefore the end date of the employment agreement, A is entitled to

summary judgment for $X. See Guarantee Co. of North America v.Gordon Capital Corp., (SCC), [1999] 3 S.C.R. 423, 438 (the existence of undisputed facts and law warrants

summaryjudgment as there is no genuine issue to be tried); Another Look Ventures Inc. v. 642157 Alberta Ltd., 2012 ABCA 253, ¶ 8 (summaryjudgment may be granted if it is plain and obvious that the action cannot succeed”); Enokhok Development Corp. v. Alberta Treasury Branches, 2011 ABCA 322 , 68 Alta. L.R. 5th 126, 131 (C.A. 2011) (“summary judgment should only be granted if the matter isone factually and legally beyond doubt”); Poliquin v.

Devon Canada Corp., 2009 ABCA 216 , 454 A.R. 61, 81-82 (C.A. 2009)(“On the uncontroverted evidence here, it is plain and obvious that Poliquin’s wrongful dismissal action cannot succeed”); Prefontaine v.Veale, 2003 ABCA 367 , 339 A.R. 340, 344 (C.A. 2003) (“A defendant must show more than a strong likelihood that he willsucceed; the pleadings and evidence on the motion must show that the claim has no reasonable prospect of success”); PioneerExploration Inc. Estate v.

Euro-Am Pacific Enterprises Ltd., 2003 ABCA 298 , 339 A.R. 165, 168 (C.A. 2003) (“It must bebeyond doubt that no genuine issue for trial exists”); Mellon v. Gore Mutual Insurance Co., 1995 ABCA 340 , 174 A.R. 200,201 (C.A. 1995) (“It is not manifestly clear or beyond a reasonable doubt that there is not a triable issue raised in the pleadings herein”);Zebrowski v. Jehovah’s Witnesses, 1988 ABCA 256 , 87 A.R. 229, 232 (C.A. 1988) (“summary judgment is available to adefendant where the material clearly demonstrates that the action is bound to fail”); German v.

Major, 1985 ABCA 176 , 62A.R. 2, 9 (C.A. 1985) (“I agree ... that it is impossible for German to win this suit because the judgments in the criminal case support theconclusion, beyond any reasonable doubt, that his criminal conviction was reasonably justified”); Tuscon Property Ltd. v. SentryResources Ltd., (AB KB), 22 Alta. L.R. 2d 44, 47 (Master 1982) (summary judgment may be granted if the correctdisposition of the action is “beyond all doubt”); Beavis v. PricewaterhouseCoopers Inc., 2010 MBCA 69 , 258 Man. R. 2d 15,20 (C.A. 2010) (an applicant must prove that the respondent’s position “must fail”); Esses v.

Friedberg & Co., 2008 ONCA 646, 241 O.A.C. 134, 143 (2008) (“the moving party ... bears the legal or persuasive burden to satisfy the court that there is nogenuine issue for trial before

summary judgment can be granted”) & Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S.574, 587 (1986) (“Where the record taken as a whole could not lead a rationale trier of fact to find for the non-moving party, there is no‘genuine issue for trial’”). [64] Second, the moving party is entitled to

summary judgment if, as a defendant, it presents uncontroverted facts and law, whichmakes it highly unlikely the plaintiff will succeed. Again, the court must conclude that the uncontested facts before it do not establish anessential element of the plaintiff’s action or do establish all the essential elements of a defence. Louis, “Federal

Summary JudgmentDoctrine: A Critical Analysis", 83 Yale L.J. 745, 747 (1974). Suppose that A commences a wrongful dismissal action against B relyingon the common law. B defends by alleging that A was not entitled to reasonable notice of B’s intention to terminate A’s employmentbecause A assaulted B without justification while working for B. Assume that the law states that if A assaults B without justificationwhile working for B, B is relieved of the obligation under common law to provide A with reasonable prior notice of his intention todismiss A. To successfully move for

summary judgment, B must depose in an affidavit that A assaulted him without justification. If Adoes not file an affidavit swearing that he did not assault B or if he did, it was in self defence or accidental, B is entitled to

summaryjudgment dismissing A’s claim. [65] There are a number of relevant principles which underly the fundamental norm that claims or defences that are so compellingthe likelihood they will succeed is very high should be dealt with summarily. [66] First, the legal or persuasive burden rests on the moving party. Stoddard v. Montague, 2006 ABCA 109 , 412 A.R.88, 91 (C.A. 2006); Esses v. Friedberg & Co., 2008 ONCA 646 , 241 O.A.C. 134, 143 (2008) & Celotex Corp. v. Catrett, 477U.S. 317, 323 (1986).

The moving party must present the facts which, in combination with the applicable law, make its positionunassailable if the nonmoving party does not contest the facts and the law. For example, if A files an affidavit asserting that B borrowed

$1,000 from A and signed a promissory note to pay A $1,000 plus interest of 10% on a stipulated date and B has failed to pay A theagreed upon sum on the stipulated date, A has discharged the legal or persuasive burden. See Manufacturers Life Insurance Co. v.Executive Centre at Manulife Place Inc., [2011] 11 W.W.R. 833 (Alta. QB 2011) (landlord granted

summary judgment against tenant forunpaid rent in straightforward case). [67] Second, the nonmoving party has no legal or persuasive burden to discharge. 732311 Alberta Ltd. v. Paradise Spa & TubWarehouse Inc., 2003 ABCA 362 , 339 A.R. 386, 388 (C.A. 2003); Esses v. Friedberg & Co., 2008 ONCA 646 , 241O.A.C. 134, 143 (C.A. 2008) & Adickes v. S.H. Kress & Co., 398 U.S. 144, 161 (1970). In some circumstances the nonmoving partymay be at risk of losing the

summary judgment application if it fails to present a version of the facts which is inconsistent with that reliedon by the moving party. Espey v. Chapters Inc., (AB KB), 225 A.R. 68, 69 (Q.B. 1998) (the nonmoving party filedno opposing affidavit and had

summary judgment awarded against it); Shell Canada Products Ltd. v. Whissel Construction, [1993] A.J.No. 1289, ¶ 8 (Master) (the nonmoving party filed no opposing affidavit and had

summary judgment awarded against it); Handleman v.G & G Group Ltd., 2006 CarswellOnt 8245 (C.A.) (the nonmoving party filed no opposing affidavit and had

summary judgmentawarded against it); Canada v. Lameman, 2008 SCC 14 , [2008] 1 S.C.R. 372, 378 (on a

summary judgment application eachside “must ‘put its best foot forward’ with respect to the existence or non-existence of material issues to be tried”); 1061590 Ontario Ltd.v. Ontario Jockey Club, 231 O.R. 3d 547, 557 (C.A. 1995) (“a respondent on a motion for

summary judgment must lead trump or risklosing”); Puolitaipale Estate v. Grace General Hospital, 2002 MBCA 147 , 170 Man. R. 2d 32, 33 (C.A. 2002) (“Once themoving party has crossed the threshold and moved the ball into the respondent’s court, it is time for the respondent to put his or her ‘bestfoot forward’ ”); United States v. W.R. Grant Co., 345 U.S. 629, 635 (1953) (the government’s election not to file a “countervailingaffidavit” meant there was no “genuine issue as to any material fact” under Fed. R. Civ. P. Rule 56) & Adickes v. S.H.

Kress & Co., 398U.S. 144, 161 (1970) (the nonmoving party declines to lead evidence at its own peril). The nonmoving party cannot rely solely on itspleadings or as the United States Supreme Court opined in Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586(1986) that “there is some metaphysical doubt as to the material facts”. Canada v. Lameman, [2008] 1 S.C.R. 372, 378; Anderson v.Liberty Lobby Inc., 477 U.S. 242, 256 (1986); Matsushita Electric Industries Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) & C. Wright & M. Kane, Law of Federal Courts 709 (7th ed. 2011).

In the promissory note example, B would inevitably lose if he failed torespond. But there are some fact patterns in which the nonmoving party may, with relative safety, decline to present facts inconsistentwith those on which the moving party relies. For example, if A sues B alleging that B breached his promise to play the piano at A’s barfor a week and A seeks an order compelling B to play at A’s bar, B can successfully resist

summary judgment by arguing that the law does not allow the court to make this order. S. Waddams, The Law of Contracts 512 (6th ed. 2010) (“The reluctance to enforce a contractfor personal services represents perhaps the strongest of the recognized grounds for refusal of specific performance”). [68] Third, the motions court may not make findings of credibility and resolve contested fact issues. Esses v. Friedberg & Co.,2008 ONCA 646 , 241 O.A.C. 134, 142-43 (2008); Murphy Oil Co. v. Predator Corp., 2006 ABCA 69 , 384 A.R. 251,257 (C.A. 2006) & Richter v. Chemerinksi, 2010 ABQB 302, ¶ 21.

Contra Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule20.04(2.1) (the court is granted the power to weigh evidence and evaluate the credibility of a deponent). If a fact on which the movingparty relies to support

summary judgment is the subject of a credibility contest, the motion court must dismiss the

summary judgmentapplication. Murphy Oil Co. v. Predator Corp., 384 A.R. 251, 257 (C.A. 2006) (“When a chambers ... judge must necessarily assess thequality and weight of the evidence to come to a decision, the failure of the case is not beyond doubt”). For example, if, in the promissorynote example, B swore in an affidavit that she repaid A in accordance with the terms of the promissory note and produced a receiptsigned by A, the motions court would be required to dismiss A’s

summary judgment application. Arnold v. Porter, 154 F. 2d 464, 470-71(2d Cir. 1946). That a controversy over nonmaterial facts exists is irrelevant. [69] Fourth, if the law is unclear, either because the moving party is seeking to extend the scope of a well established propositionor to make new law, a chambers judge may decline to resolve the dispute. This is so even though the trial judge is, arguably, in no betterposition to decide this challenging legal issue than the chambers judge. The chambers judge may legitimately conclude that her properrole is to identify unassailable positions, which assumes the law on the issue is settled, not develop the law in the course of a

summary judgment chambers application. See Romano v. D’Onofrio, (ON CA), 262 D.L.R. 4th 181, 184 (Ont. C.A. 2005)(motion judge erred in deciding “a significant question of law ... in the context of a Rule 20 motion”); R.D. Belanger & Associates Ltd. v.Stadium Corp., (ON CA), 5 O.R. 3d 778, 782 (C.A. 1991) (“Matters of law which have not been settled fully in ourjurisprudence should not be disposed of at this [early] stage of proceedings”; Richter v. Chemerinski, 2010 ABQB 302 ¶ 20 (“Judgmentshould not be given ... if there are difficult or intricate legal issues”); Barrett v.

Enfield London Borough Council, [2001] 2 A.C. 550, 557(1999) & Farah v. British Airways plc, The Times (January 26, 2000) (C.A. 1999). But the chambers judge is entitled to decide thenovel legal issue if she wishes to do so. A willingness to decide such a legal issue would be consistent with the goal of expedited justice.See Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 20.04(4) (the court may determine the question of law). [70] Fifth, a nonmoving party’s argument that questioning or trial may produce evidence which assists the nonmoving party iswithout merit. Canada v.

Lameman, 2008 SCC 14 , [2008] 1 S.C.R. 372, 382 (“A

summary judgment motion cannot bedefeated by vague references to what might be adduced in the future if the matter is allowed to proceed”); Poliquin v. Devon CanadaCorp., 2009 ABCA 216 , 454 A.R. 61, 80 (C.A. 2009) (“Courts should not deny

summary judgment on the off-chance that aparty might, were there to be a trial, present evidence refuting what are undisputed facts at the

summary judgment hearing”); Brown v.Northey, 1991 ABCA 75 , 115 A.R. 321, 324 (C.A. 1991) (“It is not enough ... merely to argue that there may be facts

somewhere which might emerge at trial and might turn out to be relevant”); Suncor Inc. v. Canadian Wire and Cable Ltd., (AB KB), 7 Alta. L.R. 3d 182, 185 (Q.B. 1993) (“If a [respondent] wishes the trial of an action merely in the hopes [sic] that adiscovery and trial will, with luck, produce some evidence that aids it (although it does not know at the time of the

summary judgmentapplication what it would hope to prove through that evidence),

summary judgment should be granted against it”); Transamerica LifeInsurance Co. v. Canada Life Assurance Co., (ON SC), 28 O.R. 3d 423, 434 (Gen. Div. 1996) (“It is clearlyestablished that on a motion for

summary judgment, a party is no longer entitled to sit back and rely on the possibility that morefavourable facts may develop at trial”); Sterling Lumber Co. v. Harrison, 2010 FCA 21, ¶ 8 (“the principle that parties ... must put theirbest foot forward precludes the respondents from saying that other evidence may be adduced at trial that contradicts Mr. Harrison’sstatement against interest”); Walia v. University of Manitoba, 2005 MBQB 278, ¶ 16 (Master) (“To not allow the

summary judgmenthearing to proceed, and to allow the pre-trial procedures to run their course, defeats the purpose of

summary judgment relief”) & Apsleyv. Boeing Co., 722 F. Supp. 2d 1218, 1231 (D. Kan. 2010) (“a party must do more than simply claim that discovery is incomplete”). [71] To conclude,

summary judgment is an important procedure which could be invoked more often than it is. Its proper useexpedites litigation, reduces costs for the litigants, frees up scarce judicial resources and ameliorates access to justice issues. CelotexCorp. v. Catrett, 477 U.S. 317 (1986); Anderson v. Liberty Lobby Inc., 477 U.S. 242 (1986) & Matsushita Electric Industrial Co. v.Zenith Radio Corp., 475 U.S. 574 (1986). C. An Agreement Is Enforceable if the Parties Have Agreed on the Essential Terms [72] An agreement is not enforceable if the parties failed to agree on an essential term. S.

Waddams, The Law of Contracts 34 (6th ed. 2010). How does one know whether a missing term is essential? Professor McCamus provides the following explanation in his text The Law of Contracts 94 (2nd ed. 2012): The determination of whether the parties have agreed to all the essential terms of a particular agreement rests on the assessment ofwhether in a case where there are missing terms, the omitted terms are so important that they warrant the conclusion that the parties havenot yet reached an agreement. In applying this test, much will turn on the commercial context of the agreement. See also S.

Waddams, The Law of Contracts 30-42 (6th ed. 2010); Olivieri v. Sherman, 2007 ONCA 491 , 284 D.L.R. 4th 516,525 (Ont. C.A. 2007) (“the parties reached an agreement on all essential terms of the settlement agreement”) & Fieguth v. Ackland Ltd., (BC CA), 59 D.L.R. (4th) 114, 121 (B.C.C.A. 1989) (“the first question is whether the parties have reached anagreement on all essential terms”). D.

Specific Performance May Be Granted if the Property the Applicant Seeks Is Unique and Money Damages Would BeInadequate [73] The remedy for breach of contract under Anglo-Canadian-American law is intended to put the promisee in the same positionhe would have been in had the promisor discharged his promise. Farnsworth, “Legal Remedies for Breach of Contract”, 70 Colum. L. Rev. 1145, 1148 &1215 (1970) & S. Waddams, The Law of Contracts 524 (6th ed. 2010). See R.

Rowan, Remedies for Breach ofContract: A Comparative Analysis of the Protection of Performance (2012) for a discussion of specific performance in French contractlaw. A court can achieve this goal in two different ways. First, it could order the promisor to do the very thing promised. If A promisedto sell B blackacre for $1000, the court can order A to convey blackacre to B. Second, the court may order the promisor to pay moneydamages to the promisee. Money damages would be a substitute for performance of the subject matter of the promise.

If A defaulted onher promise to teach B how to golf, money damages would allow B to pay someone else besides A to give her golf lessons. There aremany persons who are qualified golf instructors. [74] The common law courts, for a number of historical reasons, developed the practice of ordering the payment of moneydamages as a remedy for breach of contract: The only remedy which the common law court could give was damages.

If a plaintiff wanted specific relief he was obliged to come tothe court of Chancery, The equitable jurisdiction was therefore needed ... because of the inadequacy of the common law remedy forbreach of contract ... . It was not till the eighteenth century that it was settled equity would only grant specific relief if damages were notan adequate remedy - a restriction which has led to the application of this relief chiefly in the case of contracts for the sale of interests in

land. 1 W. Holdsworth, A History of English Law 456-57 (7th ed. rev. 1956 Goodhart & Hanbury eds.) [75] A court’s inclination to compel a promisor to discharge a promise increases as the uniqueness of the subject matter of thepromise escalates. Semelhago v. Paramadevan, (SCC), [1996] 2 S.C.R. 415, 429 (“Specific performance should ... notbe granted as a matter of course absent evidence that the property is unique to the extent that its substitute would not be readilyavailable”) & Kronman, “Specific Performance”, 45 U. Chi. L. Rev. 351, 357-58 (1978).

The absence of a satisfactory substitute in themarket place greatly diminishes the utility of money damages. A promisor who fails to deliver a fungible commodity to a promisee canmeet the promisee’s reasonable expectation associated with the performance of the promise by paying money to the promisee which the promisee can use to purchase the commodity in the market place at a market price. G.

Treitel, The Law of Contract 919 (9th ed. 1995).Money damages place the promisee in the same position she would have been in if the promisor had discharged his promise. [76] If the subject matter of the promise cannot be found anywhere else, a court order compelling the promisee to pay a sum ofmoney will not eliminate the fundamental problem - there is no substitute subject matter the promisee can acquire with money. [77] A court could undertake an inquiry into the interests of the promisee and identify other subject matter which might meet thepromisee’s expectation interest.

If A had reneged on his promise to sell B his one-of-a-kind mint Honus Wagner baseball card for $2.5million, the court could determine the other interests of the promisee and decide whether other exotic items might have met thepromisee’s expectation interest. Such deliberation might have disclosed that the promisee would have been just as content had heacquired a rare Bugatti automobile which was on the market. Professor Kronman explains the negative features of this proposal: Under a money damages rule, a court must calculate the amount ... [the promisor] is required to pay A to give A the benefit of hisbargain.

The amount necessary to fully compensate A is equal to the amount he required to obtain an appropriate substitute.

So in fixingthe amount ... [the promisor] must pay A, the court must first determine what things A would regard as substitutes and then how much ofany particular substitute would be required to compensate him for his loss. ... [I]t would be very difficult and expensive for a court to acquire the information necessary to make these determinations. ... [I]t wouldbe time consuming to produce information this way, and any inference a court might draw on the basis of such information would bemost uncertain. “Specific Performance”, U. Chi. L. Rev. 351, 360-61 (1978). See generally R.

Sharpe, Injunctions and Specific Performance 7.12(looseleaf ed. release no. 21 November 2012). [78] Courts have ordered specific performance of land transfer agreements if this is necessary to ensure that the purchaser derivesthe benefits which she expected to enjoy after the land was hers. Semelhago v. Parmadevan, (SCC), [1996] 2 S.C.R.415, 429. The nature of the benefit which the court protects may be of value to no one other than the purchaser. The key issue is this:does the property have features which make it unique from the perspective of the purchaser? Lalani v.

Wenn Estate, 2011 BCCA 499 , 345 D.L.R. 4th 310, 319 (B.C.C.A 2011) (“The fact that other properties in the area were available in an active market does notnecessarily mean the property was not ‘unique’, at least to the appellants, whose subjective desires may be properly considered”) &Raymond v. Raymond Estate, 2011 SKCA 58 , [2011] 9 W.W.R. 247, 260 (Sask. C.A.) (court expressly recognized the need tovalidate the subjective reasons which caused the plaintiff to purchase the land). [79] Raymond v. Raymond Estate, 2011 SKCA 58 , [2011] 9 W.W.R. 247 (Sask.

C.A.) provides a recent example of acourt enforcing a land transfer agreement to ensure that the purchaser’s reasonable expectation interests were validated. TheSaskatchewan Court of Appeal ordered the estate of the appellant’s parents to transfer their interest in farm land to the eldest son of thedeceased parents. Justice Caldwell held that the purchaser’s “reasons for deciding to acquire his Parents’ Interest at the time he enteredthe agreement for sale are highly material”. [2011] W.W.R. 247, 259 (Sask. C.A.).

Here are the reasons which prompted the eldest sonto purchase his parents’ interest and attracted judicial confirmation: It cannot be said that the Land is, or that Barry treated the Land as, more akin to a commodity than a tract of land having specialattributes not found in any other farm land. The Land is immediately across the road from Barry’s home quarter. Barry already owns an

undivided one-quarter interest in the Land. The Land once belonged to his grandfather and is home to his parents’ yard site. Barry usedthe Land for over 40 years, with his parents, his brother, his deceased son. These factors are cogent and impossible to value precisely.On this basis, I would find that an award of damages cannot restore Barry to the position that he would have been in had the Parents’Estates performed under the agreement for sale of the Parents’ Interests. 2011 SKCA 58 , [2011] 9 W.W.R. 247, 260 (Sask. C.A.).

One will note that Justice Caldwell considered it noteworthy that theland the purchaser bought used to belong to his grandfather. The identity of the owner or a previous owner may make the land unique.See also Ligtermoet v. Rural Municipality of Wellington No. 97, 2002 SKQB 474 , [2003] 3 W.W.R. 339, 351-52 (Sask.

Q.B.)(farm land “held by a family for decades ... acquires a special unique significance which cannot readily be measured in dollar terms orreadily compensated for in damages”). [80] As specific performance is an equitable remedy, a court may exercise its discretion and decline to grant it even though theapplicant has met the criteria for awarding specific performance. Lamare v. Dixon, L.R. 6 H.L. 414, 423 (1873) (the discretion is“governed as far as possible by fixed rules and principles”) & Owens v.

Cunningham, 95 So. 2d 74, 75 (Ala. 1957) (“specificperformance is within the sound judicial discretion of the court, controlled by fixed rules and principles, in view of the special featuresand incidents of each case”). Courts have declined to grant specific performance to relieve against severe hardship and to promote otherimportant values. R. Sharpe, Injunctions and Specific Performance 10-14 (looseleaf ed. release no. 21 November 2012); G. Jones & W.Goodhart, Specific Performance 78-88 (1986) & Patel v.

Ali, [1984] Ch. 283, 288 (the court gave the house vendor who signed the saleagreement before she became disabled and her husband became a bankrupt the benefit of the court’s discretion). Severe hardship doesnot exist just because the sale price does not allow the recalcitrant vendor to purchase a satisfactory replacement home. Montford v.Scott, [1975] Ch. 258, 264 (C.A.) (“it cannot ... be right to deny specific performance to the purchaser because the vendor then finds itdifficult to find a house to buy that suits him and his family”). See also R.

Sharpe, Injunctions and Specific Performance 10-14 (looseleafed. release no. 21 November 2012) (“relief ought not to be granted to a party simply because the bargain proves to be a more onerous orless advantageous than expected”). E. The February 8, 2012 Settlement Agreement Is Enforceable [81] The land transfer agreement was the indispensable component of the February 8, 2012 settlement agreement. It follows thatthe Court must ask if the plaintiffs and defendants agreed on all the essential elements of a land transfer agreement. They clearly did.There are no missing essential terms.

The February 8, 2012 settlement agreement adequately identifies the land the subject matter of theagreement, the vendor, the purchaser, the purchase price, the requirements to convey clear title, the closing date and the other documentswhich had to be prepared. In addition, the defendants agreed not to commit acts of vandalism and sabotage between February 8, 2012 andthe closing date of August 31, 2012. The sale was on an “as is” basis using February 8, 2012 as the measuring stick. [82] As soon as the plaintiffs on February 10, 2012 were informed that Ms.

Saran had signed the February 8, 2012 settlementagreement on February 8, 2012 a binding agreement was in effect. Her signature is objective evidence of her acceptance of the February 8, 2012 settlement agreement on which the plaintiffs can reasonably rely. S. Waddams, The Law of Contracts 20 & 105 (6th ed. 2010) &Schiller v.

Fuller, (SCC), [1981] 1 S.C.R. 593, 598. [83] Nothing happened after February 8, 2012 which altered the legal status of the February 8, 2012 settlement agreement. [84] Defence counsel’s February 14, 2012 letter stating that his clients were selling the settlement lands on an “as is” basis isnothing more than a statement of his clients’

interpretation of the land transfer component of the February 8, 2012 agreement. Thisinterpretation is not unreasonable if it is understood to be limited to the condition of the settlement lands on February 8, 2012. Thedefendants’ express promise not to sabotage or vandalize the property meant that their “as is” position could not apply to any sabotage orvandalism undertaken by the defendants between February 8 and August 31, 2012.

But the risk of other harm caused by persons overwhom the defendants had no control or natural disasters after February 8, 2012 was carried by the plaintiffs. [85] The communications between counsel as they worked through the drafting process does not support the argument that eitherside repudiated the February 8, 2012 settlement agreement and that the other side accepted the repudiation. As Professor Waddamsexplains, the innocent party can refuse to accept the promise breaker’s repudiation and “continue to press for performance”. The Law of Contracts 462 (6th ed. 2010).

[86] The defendants argue that the position the plaintiffs’ counsel took in his March 20, 2012 letter, which forwarded thesettlement documents he had drafted to defendants’ counsel, and his March 28, 2012 email, responding to defendants’ counsel’s March22, 2012 email, are evidence of an intention not to be bound by the February 8, 2012 settlement agreement. [87] I do not agree. [88] These communications are part of the process the parties had to go through in order to finalize the settlement documents.While the lawyers were committed to the preparation of settlement documents which were consistent with their clients’ rights under theFebruary 8, 2012 settlement agreement, they were not unwilling to compromise.

Defendants’ counsel’s March 20, 2012 letter containedthese words: “I kindly ask that you advise us promptly if any changes need to be made so that we can make these changes and send youthe final documents to be executed”. His March 28 email closed with a similar theme: “If you have some alternative mechanism for ourconsideration kindly provide same for our consideration”. [89] The defendant relies on Wile v. Cook, (SCC), [1986] 2 S.C.R. 137 in respect of its argument that theplaintiffs’ repudiated the February 8, 2012 settlement agreement and the defendants accepted the plaintiffs’ repudiation. [90] In Wile v.

Cook, (SCC), [1986] 2 S.C.R. 137 the Supreme Court of Canada held that the purchaser of realproperty in Nova Scotia had repudiated an agreement for the sale of land. A fire which occurred the day before the closing datedestroyed buildings on the land. Under the land sale agreement, this fire gave the purchaser two options. He could cancel the sale andhave his deposit back or complete the sale and receive the insurance proceeds.

Because the purchaser was unsure that the insurer wouldpay the vendor anything - there was some evidence the fire was intentionally set - the purchaser was unwilling to assume the risk that theinsurer would decline to pay the vendor a sufficient sum to cover the loss. He adopted a course not consistent with the land saleagreement.

Without giving the vendor prior notice, the purchaser registered in a public registry a declaration announcing his intention tocomplete the purchase if the vendor restored the destroyed buildings to the same condition they were in when he signed the land saleagreement or the insurer provides the funds needed to pay for the restoration work. The vendor’s solicitor subsequently notified thepurchaser’s solicitor that the land sale agreement was null and void. Justice La Forest came to this conclusion: [T]he right claimed by the [filed] declaration went far beyond what he was entitled to require under the agreement.

Indeed, he wentbeyond requiring that the insurance be collectible but elected to complete the purchase once the premises were restored to the conditionthey were in when he signed the agreement or it was determined that insurance proceeds sufficient for this purpose would be paid withina reasonable time. In a word, he was not making the election provided for under ... the agreement, but was in effect dictating different terms. (SCC), [1986] 2 S.C.R. 137, 144. [91] Several grounds distinguish this case from the fact pattern before this Court.

First, the vendors and purchasers in Wile v.Cook, (SCC), [1986] 2 S.C.R. 137 were not engaged in drafting settlement documents. Second, the purchaser in Wile v.Cook, in effect, concluded that the land sale agreement did not adequately protect his interests and set out to rewrite it. Not so here. Thereis no evidence that the plaintiffs were dissatisfied with the terms of the February 8, 2012 settlement agreement. Third, the purchaser inthe Supreme Court case publically recorded his dissatisfaction with the land sale agreement.

Viewed objectively, there is little doubt thatthe purchaser expressed a refusal to be bound by the terms of the land sale agreement. That never happened in this case. The plaintiffsand defendants were busy drafting post February 8, 2012 settlement agreement documents which each side asserted were consistent withthe February 8, 2012 settlement agreement. [92] There is only one document which merits more consideration.

The defendants’ counsel’s March 28, 2012 email in which hesaid “Given the position you are maintaining, there is no settlement” is some evidence that the defendants repudiated the February 8,2012 settlement agreement . But there is no evidence that the plaintiffs regarded the March 28, 2012 email as a repudiation statement, orif they did, that they accepted the repudiation. And the better views is that the defendants did not intend to repudiate the February 8,2012 settlement agreement when their counsel sent the March 28, 2012 email. Subsequent communications from defendants’ counselsupports this assessment.

If the defendants’ March 28, 2012 email did manifest their intention not to be bound by the February 8, 2012settlement agreement, their subsequent conduct evinces a renewed commitment to discharge their obligations under the February 8, 2012settlement agreement. Pamarta Holdings Ltd. v. Routledge, (ON SC), 52 D.L.R. (3d) 19, 20 (Ont. H.C. 1974). “Thedefendant [justifiably] takes the position that his repudiation of the contract not having been accepted, he is entitled to withdraw his

repudiation and the contract stands in fact as if ... it if had not been repudiated”). Defendants’ counsel’s May 6, 2012 email reveals hisclients’ intention to finalize the settlement documents,

an act consistent with an intention to be bound by the February 8, 2012 settlementagreement. In addition, the May 6, 2012 email states that “Ms. Davies is making arrangements to vacate the property and purchase a newhome based on the settlement”.

As well, the request in the May 6, 2012 communication that a property inspection play an important rolein the implementation process recognizes that the defendants, in the February 8, 2012 settlement agreement, promised not to vandalize orsabotage the settlement lands after February 8, 2012. [93] For the reasons which follow, the plaintiff’s counsel’s August 22, 2012 letter does not assist the defendants. This is the letterby which the plaintiffs delivered a cheque for the purchase price of the settlement lands and other settlement documents to thedefendants.

If the defendants’ counsel took the position that the trust conditions set out in the August 22, 2012 letter were inconsistentwith the terms of the February 8, 2012 settlement agreement, he could have returned the purchase price and set out the trust conditionswhich he considered appropriate. The February 8, 2012 settlement agreement did not stipulate the nature of the trust conditions whichmust accompany the delivery of the purchase price to the defendants’ counsel.

Nor did defendants’ counsel assert that any aspect of thesettlement documents enclosed with the August 22, 2012 letter were deficient for any reason. Two observations are warranted. First, allthe settlement documents, including the trust condition letter, must be consistent with generally recognized commercial practice, which inmost communities, embraces a variety of formats. Any format which falls within the set of practices with this designation is consistentwith the terms of the February 8, 2012 settlement agreement . Cellular Rental Systems Inc. v. Bell Mobility Cellular Inc., 1995CarswellOnt. 4182, ​ 36 (Ct.

J. (Gen. Div.)) (“Subsequent disputes should be resolved by application to the court or by commonsensewithin the framework of the settlement to which the parties have agreed and in accordance with the common practices which prevailamongst members of the bar”). Second, the parties were under an obligation to work in good faith to produce mutually satisfactorysettlement documents and, if good faith efforts bear no fruit, to seek direction from the court.

Chief Justice McEachern, in Fieguth v.Acklands Ltd., (BC CA), 59 D.L.R. (4th) 114, 131 (B.C.C.A 1989), emphasized the obligations both sides have toprepare the documents needed to effect the settlement agreement: The next stage is the completion of the agreement. If there are no specific terms in this connection either party is entitled to submitwhatever releases or documents he thinks appropriate. Ordinary business and professional practice cannot be equated to a game ofcheckers where a player is conclusively presumed to have made his move the moment he remove his hand from the piece.

One cantender whatever documents he thinks appropriate without rescinding the settlement agreement. If such documents are accepted, andexecuted and returned then the contract, which has been executory, becomes executed. If the documents are not accepted then there mustbe further discussion but neither party is released or discharged unless the other party has demonstrated an unwillingness to be bound bythe agreement by insisting upon terms or conditions which have not been agreed upon or are not reasonably implied in thesecircumstances.

See also Newel Post Developments Ltd. v. 1402801 Alberta Ltd., 2010 ABQB 660 , 503 A.R. 334, 346 (Q.B. 2010). [94] I am satisfied that the August 22, 2012 letter is unequivocal evidence that the plaintiffs discharged their obligations under theFebruary 8, 2012 settlement agreement.

They delivered a cheque for the purchase price of the settlement lands and the other documentsrequired by the February 8, 2012 settlement agreement. [95] The conduct of both sides and their counsel, evaluated objectively, in the period after February 8, 2012 and before August 24,2012, the date defendants’ counsel returned the settlement documents, is consistent with a belief that the February 8, 2012 settlementagreement bound the signatories. F. The Defendants Breached the February 8, 2012 Settlement Agreement [96] The defendants breached the February 8, 2012 settlement agreement. Ms.

Davies failed to transfer the settlement lands to Mr.Gessner and to comply with other obligations imposed on her by the February 8, 2012 settlement agreement. The other defendants alsofailed to discharge promises they made in the February 8, 2012 settlement agreement. G. Specific Performance Is the Appropriate Remedy [97] The plaintiffs entered into the February 8, 2012 settlement agreement to accomplish one object. They did not want Ms.

Davies, her daughters and Ms. Saran as neighbours living immediately adjacent to them on the settlement lands. Who the owners of theadjacent land were was very important to the plaintiffs. The plaintiffs had an ongoing feud with the defendants which detracted fromtheir enjoyment of life. It does not matter who was to blame for this Hatfield and McCoy feud. From the perspective of the plaintiffs, thedefendants were rogue neighbours. And it is the perspective of the plaintiffs which is important. The uncontested portions of the materialbefore the Court gives some credence to the plaintiffs’ belief that Ms.

Davies, her daughter and Ms. Saran behaved very badly at times.This is not to suggest that the plaintiffs were model neighbours. There is evidence to support the defendants’ claims that the plaintiffsalso acted inappropriately at times. [98] The plaintiffs could not purchase quiet enjoyment of their existing property by acquiring any property other than thesettlement lands. The defendants, persons the plaintiffs believed were rogue neighbours, owned and occupied the settlement lands. Thesefacts make the settlement lands unique for the purposes of Semelhago v.

Parmadevan, (SCC), [1996] 2 S.C.R. 415,429. [99] If the Court ordered the defendants to pay damages to the plaintiffs for breach of the February 8, 2012 settlement agreement,the reasonable expectations of the plaintiffs would not be met. The plaintiffs agreed to purchase the settlement lands to buy peace andquiet, not to profit from future increases in the value of the settlement lands. Mr. Gessner swore in his January 22, 2013 affidavit that“any remedy of a damage award ... would be of little use to me”.

While he might have more money, he would still have as neighbourspeople who have diminished his enjoyment of life. [100] The plaintiffs also had a second reason which made the acquisition of the settlement lands desirable. Contiguous propertypresented opportunities of a business nature which also warrant specific performance. Morsky v. Harris, (SK KB),[1997] 6 W.W.R. 557, 567 (Sask. Q.B.) (“the Morsky family owns the land in the close vicinity, and the land purchased here wouldenable them to achieve a more economically viable unit”) & Stefan v. Lichter, 2005 SKQB 383 , 270 Sask.

R. 124, 147-48 (Q.B.2005) (the court characterized virgin prairie grass lands with valuable Crown leases situated in close proximity to land the plaintiffalready owned as unique). [101] There is no reason to exercise this Court’s discretion in favour of the defendants. Severe hardship does not exist just becauseMs. Davies may have to acquire a smaller home, and along with her mother and daughters, adjust to a different lifestyle. Montford v.Scott, [1975] Ch. 258, 264 (C.A.) & R. Sharpe, Injunctions and Specific Performance 10-14 (looseleaf ed. release no. 21 November2012). H. The Plaintiffs Are Entitled to

Summary Judgment [102] The plaintiffs are entitled to

summary judgment under the new

summary judgment rule. [103] The facts which caused this Court to conclude that the February 8, 2012 settlement agreement is a binding agreement andenforceable are incontrovertible. The same is also true with respect to the facts which served as the foundation for the Court’s conclusionthat the plaintiffs alone discharged their obligations under the February 8, 2012 settlement agreement and that specific performance isthe appropriate remedy. [104] The plaintiffs’ case is so strong that the likelihood of success is very high. The defendants have no defence to the plaintiffs’claim.

There is no genuine issue to be tried and the plaintiffs are entitled to judgment as a matter of law. I. Specific Performance Order [105] The plaintiffs’ application for

summary judgment filed December 5, 2012 seeks a declaration that the February 8, 2012settlement agreement is valid and binding and an order transferring the settlement lands from Ms. Davies to Mr. Gessner. [106] The Court is prepared to make the requested declaration and to issue an order granting specific performance. A specificperformance order will include a direction that (

a) the plaintiffs deliver to the defendants a cheque for the purchase price of thesettlement lands, releases and a confidentiality agreement signed by each of them, a discontinuance of the 2009 action and a letter setting

out appropriate trust conditions governing the use of these documents and (

b) the defendants deliver to the plaintiffs releases and a confidentiality agreement signed by each of them and take the necessary steps to effect the transfer of the settlement lands to Mr. Gessner no later than October 1, 2013 or a later date if both parties agree in writing. [ 107 ] The parties have twenty business days from the date of these reasons for judgment, or longer if they both agree in writing, to deliver to the Court the draft documents necessary to give effect to the February 8, 2012 settlement agreement, including a proposed order. By making this direction,

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