Jordan v Skwarek, 2016 ABQB 380

Court of Queen ’ s Bench of Alberta Citation: Jordan v Skwarek, 2016 ABQB 380 Date: 20160706 Docket: 1306 00352 Registry: Lethbridge Between: Glenn Jordan Plaintiff - and - Esther Skwarek Defendant _______________________________________________________ Reasons for Judgment of J.T. Prowse , Master in Chambers _______________________________________________________ [ 1 ] The type of claim being asserted by Mr. Jordan is not unusual. [ 2 ] A family member, often a son, works on a family farm on the understanding that he will inherit it when the owner, typically his father or grandfather, dies.

If he does not inherit the farm the son brings a claim for the farm, or in the alternative a claim for compensation based on the doctrine of unjust enrichment. [ 3 ] In this case, the family farm is owned by Mr. Jordan’s mother, who asks that his claim be summarily dismissed. For the reasons which follow, I agree that Mr. Jordan’s claim should be dismissed.

Background [4] The plaintiff, Glenn Jordan, worked on a farm near Nanton, Alberta for more than 30 years. First it was owned by hisgrandfather, who passed away in 1983, then it was owned by his grandmother, who passed away in 2002. It is now owned by hismother, the defendant in this action. [5] Mr. Jordan says that the unwritten understanding with each of his grandfather, grandmother and mother was as follows: (

i) He would be entitled to rent the farm on a crop share basis of 2/3 to him and 1/3 to them. Initially the crop input expenseswere to be borne in the same 2/3 to 1/3 ratio, but after his grandmother inherited the farm and then moved into town to live with herdaughter, Mr. Jordan agreed to pay all the crop input expenses in return for his living in the farm house for free. [6] (ii) He would ultimately be provided with ownership of the farm. [7] In 2013 his mother asked him to sign a lease for the farm. He says the terms of the lease were contrary to the priorarrangement, so he left the farm and commenced these proceedings against his mother. [8] The defendant moves for

summary dismissal of the claim. She says that even if I accept Mr. Jordan’s evidence, for thepurposes of this

summary judgment application, it is highly likely to fail and should be summarily dismissed. The Statute of Frauds [9] The defendants assert that, as the alleged agreement for Mr. Jordan to obtain the farm is not in writing, his claim isunenforceable pursuant to the Statute of Frauds 1677 (29 Car.2) c. 3, which provides:

(4) No action shall be brought whereby to charge...upon any contract or sale of lands, tenement or hereditaments or any interest in orconcerning them...unless the Agreement upon which Action shall be brought or some Memorandum or Note thereof shall be in writingand signed by the party to be charged therewith... [10] Mr.

Jordan concedes that the Statute of Frauds applies, but says that his claim to the farm is saved by the doctrine of partperformance, which obviates the need for a memorandum signed by his mother. [11] The Alberta Court of Appeal discussed the doctrine of part performance in B& R Development Corp. v.

Trail SouthDevelopments Inc., 2012 CarswellAlta 2016, 2012 ABCA 351 at para. 35 as follows: To invoke the doctrine of part performance, the party claiming to have performed a valid contract must demonstrate: (1) detrimentalreliance and (2) that the acts of part performance sufficiently indicate the existence of the alleged contract such that the party alleging theagreement is permitted to adduce evidence of the oral agreement: Erie Sand & Gravel Ltd. v. Seres' Farms Ltd., 2009 ONCA 709, 312 D.L.R. (4th) 111at para 79.

Acts of part performance must be "unequivocally" referable to the alleged oral agreement: Erie at para 32;Deglman v. Guaranty Trust Co. of Canada, (SCC), [1954] S.C.R. 725 at 733, [1954] 3 D.L.R. 785 (S.C.C.). Part performance – detrimental reliance [12] Insofar as detrimental reliance is concerned, Mr. Jordan says that he was induced by his grandparents to give up anyopportunities and desires he had for higher education in favour of assisting his grandparents in running the family farm, on the promisethat it would one day be his. [13] Mr.

Jordan says that the defendant, his mother, encouraged him to adopt the career of a farmer with the assurance he wouldreceive the farm in the future. [14] Mr. Jordan acquired his own 480 acre farm in 1987 and has farmed it ever since. He acquired a residential condominium inLethbridge which he rents out. Also, from time to time, he has worked for income in other jobs (part time) besides farming. [15] The issue of detrimental reliance is complicated and fact specific, and would require a trial to determine. In other words, Icannot conclude that the defendant has established that it is highly likely that Mr.

Jordan will fail in his attempt to establish detrimentalreliance. Part performance – acts referable to the promise to convey the farm [16] Where Mr. Jordan’s claim for part performance falters is in the assertion that his conduct in farming and keeping up the houselocated on the farm are acts which are unequivocally referable to the promise that he would ultimately receive the farm. [17] Mr. Jordan had a crop share arrangement with his grandfather, then his grandmother and then his mother. He farmed the landand received two-thirds of the crop proceeds.

Beginning with his grandmother, and carrying on with his mother, in lieu of their payingtheir one-third of the crop input costs, Mr. Jordan would pay their one-third share of expenses as well in return for him, his wife and hischildren living rent free in the house located on the farm. [18] What are the acts of part performance that Mr. Jordan points to? To be clear, on this

summary judgment application it is notMr. Jordan’s onus to establish part performance. The onus is on his mother to show that, even if Mr. Jordan’s evidence as to what he didon the farm is accepted, Mr. Jordan’s attempt to establish these acts as part performance of an agreement to acquire the farm is highlylikely to fail.

Acts of part performance [ 19 ] Mr. Jordan says that he treated the farm as his own and expended resources and capital on it accordingly. Farming expenditures [ 20 ] Firstly, Mr. Jordan points to farming expenditures, such as soil testing, chemical burning, applying fertilizer, plowing and revitalizing alkaline areas, repairing fences and purchasing a combine and swather. [ 21 ] These acts are just as consistent with the acts of a long time tenant who was expending funds on the farm in order to maximize income from crops as they are with acts of a prospective owner. There is nothing about Mr.

Jordan’s expenditure of these funds on farm operations which point to an agreement that the farm would ultimately be conveyed to him. Capital and maintenance expenditures [ 22 ] Next, Mr. Jordan points to capital and maintenance expenditures on both the house and farm buildings located on the farm as follows: (

a) drilling and casing two new water wells; (

b) placing concrete around the house, shop and bins; (

c) renovating the basement plus two bedrooms; (

d) renovating the main bedroom, tub, sink, toilet, cabinet and faucets; (

e) adding a new subfloor in the bathroom, kitchen and laundry room; (

f) adding new plumbing and sewer lines and weeping tile; (

g) putting in a new gas hot water tank; (

h) installing new light fixtures and switches; (

i) graveling the driveway; (

j) putting on new shop doors; (

k) installing a new roof on the house; (

l) adding insulation to the attic; (

m) painting the entire house; (

n) installing an air tight fireplace; (

o) planting trees on the lot; (

p) removing and reinstalled fencing around the yard and perimeter; (

q) replacing two new bin floors; (

r) replacing water lines; (

s) improving the laundry room by removing the tub and ringer; (

t) stippling the celling; and (

u) redoing the living room hardwood flooring by sanding and varnishing. [ 23 ] Were these the types of expenditures that only a prospective home owner would carry out, or are they expenditures consistent with a long term tenant? In my view, they are equally consistent with either scenario. In other words, Mr.

Jordan is unable to establish that these acts are "unequivocally" referable to the alleged oral agreement to convey the farm to him. [ 24 ] It would be different if the capital expenditures were so significant and of such obvious long term benefit that an objective outsider would say that only someone with a prospective ownership interest would have made such capital expenditures. This is not what happened. [ 25 ] It is extremely significant that, when Mr. Jordan finally left the farm in 2012, the outbuildings were no longer usable and the farm house was tired and worn. Mr.

Jordan points out that the farm house could have been brought back into service with relatively minor expenditures, and that may be so, but it was still tired and worn. Mr. Jordan had, commencing 2009, been working on a new residence for himself located on his nearby 480 acre farm. [ 26 ] The magnitude of capital expenditures made is as consistent with a long term tenancy as with prospective ownership.

[ 27 ] Mr. Jordan has receipts for expenditures over 30 years of $60,000. Some of those are quite dubious as being receipts for repairs and upgrades to the farm, for example, the cost of: (

i) pellets used to shoot mice; (ii) garbage bags to clean up; (iii) seeds for a personal family garden; and (iv) batteries for smoke detectors in the farm house. [ 28 ] Mr. Jordan says that other receipts have been lost over the years, but even if he could have proven triple that amount ($180,000), when you spread those expenditures over 30 years they would amount to only $500 per month, an amount consistent with a long term tenancy. [ 29 ] Those expenditures resulted in no residual benefit to the land. By the time Mr. Jordan left the farm the outbuildings were unusable, and the farm house was uninhabitable.

Conclusion regarding Mr. Jordan’s claim to the farm [ 30 ] Mr. Jordan’s claim to the farm is defeated by the Statute of Frauds . I conclude that it is highly likely that Mr. Jordan will be unable to establish acts of part performance to take the case outside of the Statute of Frauds . Accordingly I am dismissing his claim to the farm and directing that the Certificate of Lis Pendens which he filed against the farm be discharged. Mr. Jordan’s claim for unjust enrichment [ 31 ] Again, in evaluating this claim I assume that Mr. Jordan was promised the farm as he alleges. [ 32 ] Where a party such as Mr.

Jordan confers a benefit on another party, such as his mother, on the belief that he has an enforceable claim, and it turns out to be unenforceable (in this case due to the Statute of Frauds ) he may bring a claim of unjust enrichment. [ 33 ] As stated in Valley v.

McLeod Valley Casing Services Ltd. , 2004 CarswellAlta 498, 2004 ABQB 302 at para 136 : While the Courts have applied the principles of unjust enrichment to provide relief in those cases where mistakes relate to ownership in the traditional sense, recent case law has extended the principles of unjust enrichment to situations in which one has improved another's land with the reasonable expectation of either compensation or a future property interest in the land ... [ 34 ] A plaintiff seeking to establish a claim for unjust enrichment must show an enrichment to the defendant, a corresponding deprivation to the plaintiff, and an absence of any juristic reason for the enrichment: Sandu v.

MEG Place LP Investment Corp. , 2015 CarswellAlta 828, 2015 ABQB 297 at para 26 . Enrichment to the defendant Ms. Skwarek [ 35 ] This requirement is not met. [ 36 ] While Ms. Skwarek has owned the property since 2002 and received crop share payments from her son, Mr. Jordan, until 2012, she could have as easily received those payments from a stranger. [ 37 ] Indeed, after Mr. Jordan left the farm Ms. Skwarek rented the farm at a cash rent substantially higher than the average crop share rent which she received from Mr. Jordan over the years. [ 38 ] Ms.

Skwarek has not benefitted from the capital expenditures incurred by Mr. Jordan on the farm. When he left, the farm contained: (

i) Five old wooden graneries that were “rotted” and dismantled. (ii) Old steel grain bins with damaged bottoms. (iii) A damaged Quonset hut filled with old hides and manure from the 1970’s. (iv) The CPR rail house, which was boarded up decades ago. (

v) Numerous unsafe items including the well, cistern and dugout. (vi) The farm house, which was uninhabitable. Deprivation to the plaintiff Mr. Jordan [ 39 ] Mr. Jordan has for years operated the farm under a crop share arrangement, and so has earned his share (2/3) of the crop proceeds. He lived in the farm house for free (subject to maintenance and improvements already discussed) which may have cost him

$500 a month over the previous 30 years. How has this resulted in a deprivation to Mr. Jordan? [40] This is quite unlike cases where the claimant has performed years of work for free instead of earning their own living. Mr.Jordan worked on his own farm, worked on other jobs and collected crop share income for this farm. The evidence does not support aconclusion that Mr. Jordan has suffered a deprivation. An absence of juristic reason [41] There was a juristic reason for Mr. Jordan farming the land and providing upkeep to the farm house. He received crop-shareincome from the land and housing from the farm house.

Cases dealing with unjust enrichment claims by a child against a parent [42] Guidance can be taken from other cases considering unjust enrichment claims by a child against their parent. Some of thosecases have succeeded, but only in completely different circumstances. [43] In Seward v.

Seward Estate, (AB KB), 1996 CarswellAlta 1043, 194 A.R. 348 at para’s 120 to 123, theCourt found that an entitlement to unjust enrichment had been established where the plaintiff, son of the owner of a parcel of landreferred to as Welling Place, had provided labour to his father in the expectation that he would be receiving Welling Place in due courseas compensation for that labour. [44] The father was aware of and in fact created his son’s expectation. In part performance the son received all income fromWelling Place after 1972.

Here is a description of the improvements made to “The Welling Place” by the son at his own expense: These improvements included the installation of a commercial trout farming operation, including the construction of the necessary ponds,tanks, landscaping and related works, changing of the irrigation system from a flood irrigation system to a pressure irrigation system, theinstallation of new power lines, roadways, and natural gas, the construction of a home and shop, the construction of eight steel graineries,two corrals, two pumping sites, and the installation of a water line from the Town of Raymond to the property for utilization by the homeon the property and the livestock that was being fed on the property. [the father] never reimbursed [the son] for any of theseimprovements. [45] Contrast the situation here with the situation in the Seward case, where the son was paid nothing for his work on the WellingPlace lands.

By contrast, Mr. Jordan worked under a crop share agreement with his grandfather, his grandmother and his mother underwhich he earned a 2/3 crop share and was allowed to live in a house rent free. [46] Also contrast the extensive improvements made by the son in the Seward case with the improvements made by Mr. Jordan.His ‘improvements’ were of marginal permanent benefit. They facilitated Mr. Jordan’s farming and living arrangements. By the time Mr.Jordan left the land the outbuildings were unusable and the house was uninhabitable.

The permanent improvements made by the son inthe Seward case were substantial. [47] Another case which can be compared with the current case is Valley v. McLeod Valley Casing Services Ltd., 2004CarswellAlta 498, 2004 ABQB 302. It involved a claim by a son (Morgan) to a quarter

section of land in the name of his father (Victor)and his sister. The son built an industrial shop on the land on the understanding that the land would be willed to him. [48] Morgan testified that he built and paid for the industrial shop on the quarter at an expense of $130,000 with his father'sapproval, or at least with no objection from his father, and at a time when his parents' will gave the land to him. Morgan testified that hiswhole life he understood that he would inherit the southeast quarter.

At trial the Court set the value of the shop at $190,000. [49] The son in the Valley case, supra, built an industrial shop at his own expense while Mr. Jordan simply did some upkeep andalterations on a farm house in return for being allowed to live in it rent free. [50] It is highly likely that Mr. Jordan will fail in establishing any of the three components of an unjust enrichment claim. His casecompares unfavourably with the facts in cases where such claims have succeeded. Is this claim suitable for

summary determination? [51] In my view, this claim is suitable for

summary determination. The present law regarding

summary judgment was accuratelysummarized in Amik Oilfield Equipment & Rentals Inc. v. Beaumont Energy Inc., 2016 ABQB 192, 2016 CarswellAlta 585, asfollows: 5. Alberta has a long history of taking a robust approach to

summary judgment. Our courts strive to craft proportionate means toresolve disputes, and summarily deal with litigation whenever possible. This general approach has now been codified in the foundationalrules that made their debut in the 2010 reboot of the Alberta Rules of Court. 6. The Supreme Court of Canada has recently directed lower courts to be more receptive to

summary judgment applications, in itsreasons in Hryniak v. Mauldin, 2014 SCC 7 (S.C.C.). 7.

Summary judgment is no longer denied solely on the basis that the evidence discloses a triable issue. The court now asks whetherthere is any issue of merit that genuinely requires a trial or, conversely, whether the claim or defence is so compelling that the likelihoodit will succeed is very high such that it should be determined summarily. The court will also consider whether examination of theexisting record can lead to an adjudication and disposition that is fair and just to both parties: Whitecourt Power Limited Partnership v.Elliott Turbomachinery Canada Inc., 2015 ABCA 252 (Alta. C.A.) at paragraph 9, citing Hryniak v. Mauldin and other authorities fromthe Court of Appeal.

[ 52 ] In this case, the only substantive conflict in the evidence is whether or not Mr. Jordan was promised the farm by his grandfather, grandmother and mother. For the purpose of this

summary dismissal application I presume his evidence in that regard to be true. [ 53 ] This approach was adopted by the Alberta Court of Appeal in Sherwood Steel Ltd. v. Odyssey Construction Inc. , 2014 CarswellAlta 1750, 2014 ABCA 320 at para 8 as follows: A judge may, however, still consider whether to grant

summary judgment even if the affidavit evidence clashes. He or she must assume the relevant facts asserted by the party opposing the

summary judgment application and determine whether the law permits judgment on those facts: Peters v. Wilson Estate , 2011 ABQB 665 (Alta. Q.B.) at paras 6-7 , (2011), 528 A.R. 368 (Alta. Q.B.); Goodfellow Inc. v. Woody’s Hardwood Flooring Ltd. , 2003 ABQB 162 (Alta. Q.B.) at paras 20-21 , (2003), 34 B.L.R. (3d) 318 (Alta. Q.B.). [ 54 ] Other than the conflict regarding the promise made to Mr. Jordan, there is no significant controversy in the evidence. Mr. Jordan’s evidence as to what he did on the farm and what he expended on the farm is accepted.

Accordingly, the existing record allows for an adjudication which is fair and just to both parties. There is no reason to believe that viva voce evidence at trial is necessary to adjudicate on the legal issues between the litigants. Conclusion [ 55 ] In my view, there is no merit to Mr. Jordan’s claim. Even accepting Mr. Jordan’s assertions as to the promises made to him, the defences are so compelling that the likelihood that they will succeed are very high. Accordingly I am summarily dismissing his claim.

Costs [ 56 ] If the parties cannot agree with respect to costs they may seek a ruling from me in that regard. Heard on the 12 th day of May, 2016. Dated at the City of Calgary, Alberta this 6 th day of July, 2016. J.T. Prowse M.C.C.Q.B.A. Appearances: R. Frank Llewellyn Stringam Law Office for the Plaintiff Shane Sackman Jensen Shawa Solomon Duguid Hawkes LLP for the Defendant