Cappis v Allen, 2016 ABQB 473

Court of Queen’s Bench of Alberta Citation: Cappis v Allen, 2016 ABQB 473 Date: 20160825 Docket: 1001 12229 Registry: Calgary Between: Kathleen Laurel Cappis Plaintiff - and - Leah Maureen Allen and Terrance Keith Allen Defendants _______________________________________________________ Reasons for Judgment of J.T. Prowse , Master in Chambers _______________________________________________________ [ 1 ] This dispute centers over whether an unwritten agreement to sell land was entered into by the plaintiff Kathleen Cappis (“Mrs.

Cappis”) as vendor and Terry Allen and Leah Allen (collectively “the Allens”) as purchasers. [ 2 ] Mrs. Cappis denies that there was an agreement to sell land, and in any event asserts that any agreement is unenforceable pursuant to the Statute of Frauds . Mrs. Cappis seeks the removal of Ms. Allen’s certificate of lis pendens filed against the land and dismissal of the counterclaim pursuant to which Ms. Allen seeks a declaration that she is a beneficial owner of the land. [ 3 ] For the reasons which follow, I dismiss the application made by Mrs. Cappis for

summary judgment in her favour. In my view she has not satisfied the onus on her to demonstrate that it is highly likely that she would prevail if the matter went to trial. Issues [ 4 ] The two key issues to this application are:

(

i) was there sufficient part performance of the alleged agreement to sell to overcome the lack of a written memorandum asmandated by the Statute of Frauds, and (ii) were there sufficient clear terms of sale to constitute a binding agreement. Background to the claim [5] The parties are related. Mrs. Cappis is the sister of Terry Allen. Terry Allen is married to Ms. Allen, however they havebeen involved in in divorce proceedings for the past 7 years, which are still ongoing. [6] In other words, the parties to this litigation are sisters-in-law. [7] Mrs.

Cappis has been the sole owner of the 20 acre parcel, upon which there is a house, since April 24, 1991, when shepurchased it from her mother. From 1991 to 2006, she either lived on the parcel or rented it to tenants. [8] Ms. Allen alleges that in 2006, when Mrs. Cappis had listed the land for sale, a verbal agreement was arrived at to cancel thelisting and to sell the parcel to the Allens for $340,000. [9] Mrs. Cappis responds that she only agreed to rent the parcel to the Allens.

She acknowledges that there were discussionsabout selling the parcel to them but says that those discussions never progressed to the point of an agreement to sell. [10] During the entire time that the parcel was occupied by the Allens, Mrs. Cappis paid all property taxes, insurance, andmortgage payments for the parcel. [11] A document was authored by Mrs. Cappis, apparently in 2007. Ms. Allen points to it as evidence of an agreement to sell. Mrs.Cappis says that it merely represents an outline of a possible arrangement which was never finalized.

I will refer to it as the 2007Statement. [12] The 2007 Statement: - deals with ‘house & 10 acres’ which is only a portion of the 20 acre parcel (the topic of whether the parcel is in fact sub-dividable wasnot raise during argument); - lists a series of credits totalling $16,582.28 to Mrs.

Cappis for things she has paid for while the Allens occupied the house, such asmortgage payments, property taxes, insurance and utilities; - lists a series of payments made in 2006 and 2007 by the Allens, including two large payments of $8,000 and $5,000 and a series ofsmaller payments of $2,000 (made once), $1,500 (made six times) and $1,200 (made four times) totalling $27,300. - indicates that the excess of what the Allen’s had paid ($27,300) less what Mrs.

Cappis had paid ($16,582.28) which was $10,717.72, isa ‘credit to downpayment’. - indicates a price of $312,500, a ‘mortgage as of August 1/06’ of $135,202.85, resulting in a ‘cash to mortgage’ of $177,297.85. [13] On or about March of 2009, Terry Allen moved out of the house and Ms. Allen and their children remained. Terry Allencontinued making monthly payments for a period of time after he moved out. [14] In June 2009, Terry Allen initiated divorce proceedings against Ms. Allen. [15] In March of 2010, Ms.

Allen registered a certificate of lis pendens against the parcel, claiming an interest under theMatrimonial Property Act, RSA 2000, c M-8. [16] In June of 2010, Mrs. Cappis provided the Allens with a notice of her intention to terminate the rental agreement effectiveSeptember 30, 2010. [17] On August 17, 2010, Mrs. Cappis filed an Originating Notice, seeking a declaration that the tenancy was terminated effectiveSeptember 30, 2010, an order directing Ms. Allen to deliver possession of the premises within fourteen days, and other relief. [18] On or about October 19, 2010, Ms.

Allen and her children permanently moved out of the house. [19] As indicated, Mrs. Cappis seeks the removal of Ms. Allen’s certificate of lis pendens filed against the land and dismissal ofthe counterclaim pursuant to which Ms. Allen seeks a declaration that she is a beneficial owner of the land. Conflict in evidence [20] Before proceeding to examine the issues of part performance and certainty of terms, I will comment on the obvious conflict ofevidence that exists on the record. [21] Conflicting evidence cannot be sorted out on a

summary dismissal application. The moving party, Mrs. Cappis, must acceptas true, for the purpose of this application only, the evidence of the non-moving party, Ms. Allen. [22] This is established by the following case law: Clarke v Connell, (AB KB), 1997 CarswellAlta 513, 10C.P.C. (4th) 276, at para 4; Goodfellow Inc. v Woody’s Hardwood Flooring Ltd., 2003 ABQB 162 (Alta. Q.B.) at paras 20-21; Peters vWilson Estate, 2011 ABQB 665 (Alta. Q.B.) at paras 6-7; Sherwood Steel Ltd. V Odyssey Construction Inc., 2014 CarswellAlta 1750,

2014 ABCA 320, at para 8; and 776286 Alberta Ltd. v Ostrowercha, 2015 CarswellAlta 155, 2015 ABCA 49 at para 10. [23] Mrs. Cappis is left to take the position that, even if there was an agreement to sell land as asserted by Ms. Allen, it is notenforceable due to the Statute of Frauds and due to lack of certainty of terms. The Statute of Frauds [24] As indicated, the first issue is whether there was sufficient part performance of the alleged agreement to sell to overcome thelack of a written memorandum as mandated by the Statute of Frauds. [25] The Statute of Frauds contains archaic language. It states that:

(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... [26] The requirement of the Statute of Frauds for a written memorandum is obviated if the claimant can establish partperformance. [27] 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, 312D.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.). [28] In my view, the evidence of Ms. Allen, which is deemed to be true for the purpose of this application, provides sufficientevidence both of detrimental reliance and part performance to give Ms.

Allen an arguable position on the evidence and thus to requirethis issue of part performance to be sent to trial. [29] Specifically, in my view, the making of the lump sum payments of $8,000 and $5,000 are not something one would expect tosee in a mere residential tenancy. Those payments are more consistent with an agreement to purchase than to a tenancy. [30] Additionally, the making of those large payments may well constitute detrimental reliance. [31] I cannot say, on the evidence, that it is highly likely that Mrs. Cappis will succeed on the issues of part performance anddetrimental reliance.

Those issues need to be resolved at trial. Certainty of terms [32] The second issue is whether there were sufficient clear terms of sale to constitute a binding agreement. [33] Ms. Allen was directly involved in discussions with Mrs. Cappis and testifies that an agreement was reached to sell the parcelto the Allens for $340,000. She says that these discussions occurred around the time leading up to the Allens moving into the house inAugust of 2006. [34] The only terms Ms. Allen can point to are the land, the parties, and the price.

That being said, is it “highly likely” that Ms.Allen will not be able to establish a binding contract of sale due to the paucity of terms? [35] This issue was considered in Balderston v Faul, 2014 CarswellAlta 2305, 2014 ABQB 762, where Bensler J. discussed theissue of what terms were needed to constitute an agreement to sell land. She noted the decision of the Court of Appeal in Ko v HillviewHomes Ltd., 2012 ABCA 245, 536 A.R. 93 (Alta.

C.A.), and then observed: However, in light of the Court of Appeal’s decisions subsequent to Ko, it is clear that the analysis must be specific to the facts of theparticular case. [36] It is possible, particularly when dealing with “non-lawyer contracts”, that a binding agreement for sale may be establishedwhere only the parties, land and price have been agreed upon. However, as indicated in Balderston, supra, the analysis must be specificto the facts of the particular case.

In my view, those facts should be determined by a trial judge. [37] It should be left up to a trial judge, on hearing viva voce evidence, to determine whether there were sufficient terms toconstitute a binding contract in August of 2006, whether the “2007 Statement” was an unfinalized discussion to modify an existingcontract, or a modification of an existing contract which Ms. Allen is able to ratify, or perhaps just another manifestation of discussionswhich never resulted in an agreement. [38] Mrs.

Cappis has not met the onus on her to satisfy the court that it is highly likely that she will succeed in defeating Ms.Allen’s claim based on the allegation of uncertainty of terms. Conclusion [39] Mrs. Cappis’

summary dismissal application is hereby dismissed. If the parties cannot agree on costs they may approach mefor a ruling in that regard.

Heard on the 11 th day of August, 2016. Dated at the City of Calgary, Alberta this 25 th day of August, 2016. J.T. Prowse M.C.C.Q.B.A. Appearances: Charles W. Ang Parlee McLaws LLP for the Plaintiff Kathleen Laurel Cappis Erica Pridham Vogel LLP for the Defendant Leah Maureen Allen