Verwoerd v Verwoerd, 2017 ABQB 272

Court of Queen ’ s Bench of Alberta Citation: Verwoerd v Verwoerd, 2017 ABQB 272 Date: 20170424 Docket: 1006 00975 Registry: Lethbridge Between: James Dick Verwoerd Plaintiff - and - Della Josephine Verwoerd and Tom Verwoerd Defendants _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice W.N. Renke _______________________________________________________ [ 1 ] The Plaintiff James Verwoerd (Jim) is the brother of the Defendant Tom Verwoerd (Tom) and the son of the Defendant Della Verwoerd (Della). At the time of trial, Jim was 66, Tom was 63, and Della was 95.

The litigation concerned a 5.03 acre parcel of land on the outskirts of Lethbridge (the Lands). The family home, built in the 1960s, is on the Lands. [ 2 ] Jim contended that he was promised the Lands by his father Dick Verwoerd (Dick) or by Della or by both in exchange for work done by Jim and Jim’s promise to look after Della after Dick died. On Della’s death, Jim would receive the Lands. The agreement was not reduced to writing. Dick died in 1976. Della became registered owner of the Lands. In 2000-2001, with Della’s permission, Jim built his own home on the Lands.

To assist with securing construction financing, Della transferred the Lands to herself and Jim in joint tenancy. In October 2010, Della purported to sever the joint tenancy so that she and Jim held the Lands as tenants in common. In 2014, Della transferred her interest in the Lands to herself and Tom in joint tenancy. At present, then, Jim has a 50% undivided interest in the Lands as a tenant in common with Della and Tom, who jointly hold the remaining 50% undivided interest in the Lands. [ 3 ] Jim sued Della and Tom. Jim made four main claims against Della.

First, Jim claimed that he and Della were parties to a contract whereby he was entitled on Della’s death to become the sole registered owner of the Lands. Della’s severance of the joint tenancy and her grant of a beneficial interest in the Lands to Tom breached that contract. Second, Della made an irrevocable gift of the joint tenancy to him. She was not legally entitled to sever the joint tenancy. Third, Della owed fiduciary duties to Jim and breached them by severing the joint tenancy.

On any of these theories, Jim claimed that the joint tenancy between himself and Della should be restored and duly reflected in an amended certificate of title for the Lands. Alternatively, Jim claimed damages. Fourth, Jim made substantial improvements to the Lands. Della’s acts diminished Jim’s interest in the Lands and unjustly enriched Della and later Tom. Jim has claimed a remedial constructive trust confirming that he holds a 100% beneficial interest in the Lands. [ 4 ] Jim sought damages against Tom based on the tort of intentional interference with contractual relations. Jim claimed that

Tom acquired his interest in the Lands through exerting influence on Della. Tom knew that the Lands had been promised to Jim. [ 5 ] Jim applied to amend his Statement of Claim at trial.

The amendments concerned Della’s granting of the joint interest to Tom and additional alleged wrong-doing by Tom. [ 6 ] For the reasons that follow, these are my conclusions: a. leave is granted to Jim to amend the Statement of Claim. b. the tort claim against Tom is dismissed. c. the claims against Della founded on contract, gift, and fiduciary duty are dismissed. d. the claim in unjust enrichment against Della and Tom succeeds. e.

Jim is awarded a constructive trust representing an undivided 32% interest in the undivided 50% tenancy in common held by Della and Tom jointly in the Lands. f. mutual injunctions are granted whereby Della and Tom are restrained from interfering with Jim’s use and enjoyment of his house and the area immediately surrounding it including any garage or out-buildings and any areas of the Lands used for Jim’s business purposes; and Jim is restrained from interfering with Della and Tom’s use and enjoyment of Della’s house and the area immediately surrounding it including any garage or out-buildings. I.

Procedural Issues . 5 A. Amendments to the Statement of Claim .. 5 B. Evidential Import of Read-ins . 8 C. Transcripts . 10 II. The Land Titles Act and the Law of Property Act 10 III. Facts . 12 A. Participants and Witnesses . 13 B. Chronology . 13 1. Dick and his family: 1923 - 1976 . 13 2. After Dick’s Death: 1976 - 2000 . 14 3. Jim’s Return to the Lands: 2000 - 2007 . 15 4. Tom, Della, and the Severance: 2007 - 2014 . 16 C. Jim’s Activities respecting the Lands . 17 1. Payments by Jim .. 17 2. Work by Jim on the Lands . 18 3. Jim’s Buildings . 18 4. Assistance to Della, including renovations . 18 IV.

Breach of Contract 18 A. Are any representations by Dick relevant to the alleged contract? . 19 1. Statements by Dick to Jim .. 19 2. Statements by Dick to Jim in Della’s Presence . 20 B. Did the evidence support a finding that Della agreed to transmit all of her interests in the Lands to Jim? 22 1. Evidence . 22 (

a) Direct Evidence . 22 (

b) Circumstantial Evidence . 22 (

i) Admissibility of After-the-Fact Evidence . 22

(ii) Weight of After-the-Fact Evidence . 24 (iii) The After-the-Fact Evidence . 27 2. Assessment of the Evidence . 28 (

a) Legal Orientation . 28 (

b) Supporting Della . 30 (

c) Work on the Lands . 31 (

d) The Shop and House . 31 (

e) The Transfer and Acknowledgement 37 (

i) The Transfer 37 (ii) The Acknowledgement 38 (

f) Services for Della . 39 (

g) Additional Evidence . 39 (

h) Conclusion . 39 C. Would the alleged contract with Della fail because of lack of certainty of terms? . 39 D. If there were a valid agreement, is it unenforceable because of the Statute of Frauds ? . 43 1. Did the alleged contract with Della fall within the scope of the Statute of Frauds ? . 44 2. Was the contract set out in a memorandum or note signed by Della? . 44 (

a) The Transfer 45 (

b) The Acknowledgement 45 3. Did Jim successfully invoke the doctrine of “part performance”? . 46 (

a) What is the appropriate approach to the doctrine of “part performance”? . 46 (

i) Stages of Proof . 47 (ii) Unequivocal Reference . 48 (

b) Did Jim succeed in avoiding unenforceability through part performance? . 50 V. Gift of Joint Tenancy . 51 A. Severance of the Joint Tenancy as a Retraction of a Gift 51 1. What interest in land did Della give or intend to give? . 53 (

a) Della’s Testimony . 53 (

b) Della’s After-the-Fact Statements to Third Parties . 53 (

c) The March 15, 2001 meeting with Mr. Pocock . 56 (

d) The March 30 meetings and the Acknowledgement 57 (

i) Della’s Independent Legal Advice . 58 (ii) Signature on the Acknowlegement 58 (

e) Actual Relationship . 62 2. Did Della purport to “take back” or retract the gift of the joint interest? . 64 3. Did Della agree not to sever the joint tenancy? . 66 B. “Requisite Intention” to Sever the Joint Tenancy . 66 VI. Breach of Fiduciary Duties . 67

VII. Tom – Tortious Liability . 69 VIII. Unjust Enrichment 70 A. Good Conscience . 70 B. Unjust Enrichment as an “Other Reason” . 72 C. Unjust Enrichment 72 1. Elements of an Unjust Enrichment Claim .. 73 (

a) Enrichment and Deprivation . 73 (

b) No Juristic Reason . 74 (

c) Mutual Benefit 75 2. Della’s Enrichment and Jim’s Deprivation . 75 (

a) Della’s Enrichment 75 (

b) Jim’s Deprivation . 76 3. No Juristic Reason . 76 (

a) Established Categories of Juristic Reasons . 76 (

b) Residual Basis for Denying Recovery . 81 4. Defence – Mutual Benefit 81 5. Remedy . 81 (

a) Conditions for the Imposition of a Constructive Trust 82 (

b) Appropriateness of Constructive Trust 83 (

c) Scope of the Constructive Trust 83 IX. Costs . 84 (

a) the appropriate column in

Schedule C .. 85 (

b) the proportion or percentage of

Schedule C costs payable by Della and Tom .. 85 I. Procedural Issues A. Amendments to the Statement of Claim [ 7 ] Addressing the amendment to pleadings issue before considering substantive issues aligns with the Court of Appeal’s directions in Elbow River Marketing v Canada Clean Fuels Inc , 2011 ABCA 258 . [ 8 ] On day three of the trial, after the Plaintiff’s evidence was in and before the Defendants called evidence, Jim applied to amend his Statement of Claim. The amendments concerned the transfer by Della to Tom. On May 30, 2014, Della conveyed a joint tenancy in her interest in the Lands to Tom.

The certificate of title for the Lands was amended to reflect Jim’s undivided half interest as a tenant in common with Della and Tom as joint tenants of the remaining undivided half interest in the Lands. This transfer was registered subject to a certificate of lis pendens registered by Jim on April 24, 2014 and a caveat registered by Jim on October 28, 2010.

Jim sought to reverse the transfer to Tom and (as originally pleaded) to cause the certificate of title to reflect joint tenancy between himself and Della alone. [ 9 ] Argument on this issue was heard on June 21 as part of the final submissions by the parties. [ 10 ] Jim’s counsel pointed out, correctly, that the rules expressly contemplate amending pleadings at trial (rule 3.65(4)) and, in any event, rule 3.65(1) extends a very broad discretion to the Court to amend a pleading before or after close of pleadings. [ 11 ] There was no dispute respecting the governing principles as described by Chief Justice Wittmann in Dow Chemical Canada Inc v Nova Chemicals Corporation , 2010 ABQB 524 at paras 20 – 21 : [20] Generally, any pleading can be amended no matter how careless or late is the party seeking to amend: Balm v. 3512061 Canada Ltd. , 2003 ABCA 98 , 327 A.R. 149 at para. 43 .

This is referred to in Balm as the “classic rule”. [21] The classic rule is subject to four major exceptions: [citations omitted] Those exceptions are as follows:

1. the amendment would cause serious prejudice to the opposing party, not compensable in costs; 2. the amendment requested is “hopeless” (an amendment that, if were in the original pleadings, would have been struck); 3. unless permitted by statute, the amendment seeks to add a new party or a new cause of action after the expiry of a limitation period; and 4. there is an element of bad faith associated with the failure to plead the amendment in the first instance. Therefore, if no exception applies, the pleadings can generally be amended.

See also: Manson Insulation Products Ltd. v Crossroads C & I Distributors , 2011 ABQB 51 at paras 42 – 46 ; Kwok v Canada (Natural Sciences and Engineering Research Council) , 2013 ABQB 395 at para 30 , affd 2013 ABCA 431 ; Hartwell v Taylor , 2016 ABQB 289 at para 14 . [ 12 ] Justice Tilleman confirmed this permissive approach to the amendment of pleadings in Kent v Postmedia Network Inc , 2012 ABQB 559 at para 14 : As it is written, rule 3.62 places the matter in the judge’s hand and the evolving case law suggests a continued tilt in favour of a liberal amendment of pleadings.

As long as there is some foundation and unless there is a significant prejudice or an injustice, the order to allow amendments should be freely given.

I am not saying that every amendment should be automatically allowed, because factors such as bad faith, unreasonable delay, or questionable motive are always in play and may prove fatal to the Amendment request.... [ 13 ] In Goldhart v Westlake Developments Inc , 2015 ABQB 543 at para 44 , Justice Topolniski discussed the notion of “hopelessness” referred to in the second Dow Chemical Canada exception: [44] A pleading is hopeless only if it is clear and obvious that there is no triable issue, which is something giving rise to a claim recognized in law.

Therefore, the question on amending a pleading is whether the facts, if proven, would constitute the claim. Whether the party can actually prove the claim is irrelevant .... [ 14 ] Justice Eidsvik added the following refinements to the “hopelessness” assessment in 869120 Alberta Ltd v B & G Energy Ltd , 2011 ABQB 209 at para 24 : The other criteria that is generally accepted is that the amendment must raise a triable issue, or otherwise said, not be “hopeless” ( Stolk v. 382779 Alberta Inc. , 2005 ABQB 440 , Marin v.

Rask , 2000 ABQB 931 ), there must be a “modest degree of evidence” if the amendment is beyond trivial or of a clarifying nature, unless the claim to be added is fraud, and there a “stiffer test” is to be used ( Balm at paras. 29 and 63 ). Finally, if the claim against a person to be added, or the cause of action is outside of the limitation period then reference is to be made to

section 6 of the Limitation Act R.S.A. 2000 c. L - 12 to determine if it should be allowed. [ 15 ] The amendments concern two matters – additional alleged misconduct by Tom and Della’s conveyance of a joint interest to Tom. [ 16 ] The amendments do not add a new party. It was not argued that the amendments evidenced bad faith on the part of Jim for failure to plead the matters earlier. [ 17 ] The amendments could have been understood to assert a new cause of action against Tom based on the additional alleged misconduct.

If permitted, the amendments would not have been made outside the limitation period (although the lapse of the limitation period would have been just barely avoided). However, Jim formally abandoned his claim based on “undue influence” against Tom: Supplemental Trial Brief of the Plaintiff, paras 12 – 14.

The amendments, then, would not import a new cause of action. [ 18 ] The surviving point of the amendments is to emphasize or clarify that the Land Titles register in its current state, and not merely not merely its state following the 2010 severance of the joint tenancy by Della, is sought to be corrected, that is, returned to its pre-severance condition. [ 19 ] One might have thought that the amendments were unnecessary. The Statement of Claim had sought the return of the certificate of title to its pre-severance status.

Della was alleged to have been legally disabled from severing the joint tenancy with Jim in 2010. Jim had registered a caveat and certificate of lis pendens prior to the registration of the transfer creating Tom’s joint interest.

There was no suggestion that the 2014 transfer would constitute, by itself, any form of impediment to the remedies sought by Jim. [ 20 ] I find that the amendments, in the circumstances, are at worst trivial and at best merely “clarifying” ( 869120 Alberta Ltd v B & G Energy Ltd at para 24 ) or are merely a “variation” on what was originally alleged ( Goldhart v Westlake Developments Inc at para 59 ). The marginal utility of the proposed amendments is slim but not nil. I cannot find that the amendments are utterly “hopeless” in the sense described by Justices Topolniski and Eidsvik.

In the circumstances, the amendments do not raise any additional claims against Tom, the amendments occasion no prejudice (let alone serious prejudice) to Tom and the amendments do not prejudice Della. [ 21 ] I will permit the amendments.

Taking into account the timing of their proposal (during trial at the close of the Plaintiff’s case), their low marginal utility, their assertion – until formally disavowed – of additional jeopardy to Tom that Tom’s counsel was bound to resist, the impact on the prolongation of proceedings, and rules 3.66 and 10.33, I award no costs to Jim for the successful application to amend. [ 22 ] In accordance with rule 3.65(2), the amended Statement of Claim must be filed within 30 days of the date of this judgment.

Since the Defendants were fully aware of the amendments and responded to them, service of the amended Statement of Claim is dispensed with.

B. Evidential Import of Read-ins [23] In his Supplemental Trial Brief, Jim’s counsel raised concerns about the use of read-ins from Jim’s Questioning. Della’scounsel had read-in Questioning transcript extracts at the close of Della’s case: 5. Jim takes the position that the “Read-ins” from his Questioning are akin to Della admitting the validity or truth of their content.Jim recognizes that such content is not determinative of the issue to which it relates, as that is the purview of the Trial Justice. 6.

However, it is submitted that by “Reading-in” portions of his testimony Della is taken to accept them such that it is not open toher to attempt to contradict the same. [Similar points were made in paras 61 – 64 of the Supplemental Trial Brief.] Jim’s Counsel relied on 581257 Alberta Ltd v Aujla, 2011 ABQB 39 which in turn referred to Mackow v Sood, 1993 ABCA 152, andTschritter v Otto, 2007 ABCA 415. [24] Reading-in is founded on rule 5.31: 5.31(1) Subject to rule 5.29, a party may use in support of an application or proceeding or at trial as against a party adverse in interest anyof the evidence of that other party in a transcript of questioning under rule 5.17 or 5.18 and any of the evidence in the answers of thatother party to written questions under rule 5.28.

(2) Evidence referred to in subrule (1) is evidence only of the questioning party who uses the transcript evidence or the answers to thewritten questions, and is evidence only against the party who was questioned. [25] The appropriate approach to read-in evidence is indeed provided by Justice Topolniski in 581257 Alberta Ltd v Aujla butJustice Topolniski stated neither that the reading-in party “admits” the truth of the evidence read-in nor that the reading-in party cannotcontradict the read-in evidence by other evidence.

Read-in evidence is evidence to be considered with all the other evidence in the caseas determined by the trier of fact in light of the burden of proof. Justice Topolniski stated the following at paras 10 - 13 of 581257Alberta Ltd v Aujla: [10] The use and effect of evidence read in from examinations for discovery has been canvassed in a number of Alberta authorities.

Thelaw concerning the effect of evidence read in from an opposing party’s examination for discovery is concisely stated in Stevenson &Côté, Alberta Civil Procedure Handbook 2002 (Edmonton: Juriliber, 2002) at p. 171: The utmost caution is needed in selecting questions to read in at trial. They do not fully bind the party reading them in; he or she can leadevidence which contradicts them. But when read in, they become evidence for and against all parties (according to their content), so theymight even lose the suit for the party reading them in. [11] As stated in Hayhurst v.

Innisfail Motors Ltd., (AB CA), [1935] 1 W.W.R. 385 at 389 (Alta. S.C.A.D.): Under the Rule a party need not put in more of the examination than he wishes and subject to the right of the Judge to have read anyother part so connected with what is put in as being necessary to make its meaning clear he need not be affected by any part of theexamination other than serves his purpose, but when he puts in evidence any portion of such examination it becomes evidence and itrequires no rule to make it tell against him if it has that effect.

He must take the burden, if any there be, with the benefit he receives. [12] Examination for discovery evidence adopted by a party at trial is like any other evidence. It may be contradicted or qualified byother evidence led by either of the parties and the court may assess its value in the context of all of the evidence presented on the issue. Itdoes not become conclusive evidence when it is read in and the court is not bound to accept and follow it any more than it would interms of other evidence (Michel v.

Lafrentz, 1999 ABCA 21, 232 A.R. 62 at para. 14, leave to appeal to the S.C.C. denied (2000), 255A.R. 400 (note)). In Mackow v. Sood, (1993), 1993 ABCA 152 , 141 A.R. 233 at para. 15 (C.A.), the court explained that: ... when a party reads in extracts from an examination for discovery of an opponent, that becomes evidence which he adopts but he musttake both the benefit and the burden, if any, of that evidence ...

However, where, as here, the parties also give evidence at trial, the trialjudge is free, as he was here, to exercise his normal function of assessing credibility, finding facts, and reaching conclusions from all theevidence, and is not bound to accept those discovery extracts read in (Ure v. Fagnan (1957), (AB CA), 22 W.W.R.(N.S.) 289 (Alta. C.A.) at 308-309; affirmed (SCC), [1958] S.C.R. 377). [13] The evidence in the present case is such that it is open to me to reject the answers read in by the Plaintiff where there is other morereliable evidence to the contrary.

For the reasons discussed, I have done so concerning the examination for discovery evidence aboutadmitted dates of conversions, which I do not find to determinative. [26] Furthermore, the reading-in party is not confined to any particular set of inferences supported by passages read-in. Read-inevidence could support both unfavourable and favourable inferences from the reading-in party’s perspective.

The reading-in party wouldhave the job of showing that the inferences supportive of its position are the inferences that should be drawn by the trier of fact. [27] I therefore find that through reading-in Della neither “admitted” any factual propositions advanced by Jim nor was disabledfrom contradicting any propositions advanced by Jim in the read-ins. Of course, having read-in Jim’s evidence, Della faced the risk thatthe trier of fact would find that the read-ins supported Jim’s position or undermined Della’s.

C. Transcripts [28] Jim’s counsel submitted transcripts of the testimony of Randall Pocock and Della. The other parties did not object. [29] I did not read or rely on these transcripts for the following reasons. [30] First, I did not request transcripts. I had my trial notes. Second, I did not have transcripts of every witness’s testimony. Whileit is not improper for a trier of fact to receive transcripts (see, e.g., R v Quashie, (2005), (ON CA), 198 CCC (3d)337; [2005] OJ No 2694 (QL) at para 46), a reasonable perception could arise that I would over-emphasize the testimony of thesewitnesses.

Third, in argument, no issues turned on competing accounts of Mr. Pocock’s testimony. There were no disagreements aboutthe content of his testimony. II. The Land Titles Act and the Law of Property Act [31] Did Della’s severance of the joint tenancy resulting in a new certificate of title or her transfer of a joint interest to Tomresulting again in a new certificate of title pose impediments to Jim’s claims respecting the Lands through the principle of indefeasibilityof title? Did the transactions preclude remedial amendment to the register?

Or, as the question was put in submissions, is s. 65 of theLand Titles Act “subject to” s. 12(2) of the Law of Property Act? [32] The parties proceeded on the basis that s. 65 of the Land Titles Act was subject to s. 12(2) of the Law of Property Act. If theDella’s severance was wrongful it could be set aside and the register corrected. It followed that the transfer to Tom could similarly bereversed. That approach was, in my view, correct. [33]

Section 65 of the Land Titles Act provides as follows: 65 The Registrar shall not register a transfer that has the effect of severing a joint tenancy unless

a) the transfer is executed by all the joint tenants,

b) all the joint tenants, other than those executing the transfer, give their written consent to the transfer, or

c) the Registrar is provided with evidence satisfactory to the Registrar that all the joint tenants who have not executed the transfer orgiven their written consent to the transfer have by i. personal service, or ii. substitutional service pursuant to a court order, been given written notice of the intention to register the transfer. In this case, the s. 65(

c) procedure was satisfied. [34] The relevant provisions of s. 12 of the Law of Property Act are as follows: 12(1) An interest in real or personal property may be validly conveyed ...

d) by a person who holds the property as a joint tenant to that person as a tenant in common,

e) by joint tenants to themselves as tenants in common, ... to the same extent and in the same manner as the interest might be conveyed to a third party.

(2) Notwithstanding subsection (1), if the persons in whose favour the conveyance is made are by reason of a fiduciary relationship or byany other reason precluded from validly carrying out the transaction, the conveyance is liable to be set aside.

(3) A transfer by a person as a joint tenant to that person under subsection (1)(

d) has, on the registration of the transfer under the LandTitles Act, the same effect of severing the joint tenancy as a transfer to another person. [35] Subsection 62(1) of the Land Titles Act does provide as follows: 62(1) Every certificate of title granted under this Act (except in case of fraud in which the owner has participated or colluded), so long asit remains in force and uncancelled under this Act, is conclusive proof in all courts as against Her Majesty and all persons whomsoeverthat the person named in the certificate is entitled to the land included in the certificate for the estate or interest specified in thecertificate, subject to the exceptions and reservations mentioned in

section 61, except so far as regards any portion of land by wrongdescription of boundaries or parcels included in the certificate of title and except as against any person claiming under a prior certificateof title granted under this Act or granted under any law heretofore in force relating to titles to real property in respect of the same land. [36] Jim wished to rely on s. 12(2) to set aside the severance and return the title to the Lands to its pre-severance state.

The reasonsprecluding Della from carrying out the severance were that the severance would breach her contract with Jim, the terms of her gift to Jim,or fiduciary duties owed to Jim. I discern nothing in s. 65 or in other provisions of the Land Titles Act that would obstruct Jim’s ambitionshould Della, for any legally-cognizable reason, have been precluded from severing the joint tenancy. [37] No third party acquired an interest in the Lands based on the post-severance title. Tom acquired an interest through the

severance but he was a volunteer not a purchaser for value and, on Jim’s theory, a participant in the wrongful conduct that led to theseverance. Correction of the register in these circumstances would be possible under s. 187 (supplemented, if need be, by judicial orderunder ss. 184, 187(2), or 190): 187(1) If it appears to the satisfaction of the Registrar (

c) that any instrument, entry, memorandum or endorsement has been fraudulently or wrongfully obtained, or the Registrar may by written demand, that may be in the prescribed form and that shall be served on the person or be mailed to theperson’s last known post office address, require the person to whom the instrument has been issued, or by whom it has been obtained oris retained, to deliver it up for the purpose of being cancelled, corrected or completed, as the case requires.

(2) If any person refuses or neglects to comply with the written demand or cannot be found, the Registrar may apply to a judge to issue asummons for that person to appear before the judge and show cause why the instrument should not be delivered up to be cancelled,corrected or completed ....

(4) In the case of any instrument that comes within the provisions of subsection (1), the Registrar, whether or not the instrument is in theRegistrar’s custody or has been produced to the Registrar in answer to the Registrar’s written demand, so far as practicable withoutprejudicing rights conferred for value, may do one or more of the following:

a) cancel, correct or complete the register;

b) wholly or partially cancel any instrument .... [38] The traditional line of authority denying indefeasibility protection to volunteers was described by Justice Ross in Bezuko vSupruniuk, 2007 ABQB 204 at para 30: [consistently] with the holding in Kaup v Imperial Oil Ltd, (SCC), [1962] S.C.R. 170, at 182-83, ... the indefeasibilityprovisions of the Land Titles Act protect only bona fide purchasers for valuable consideration, who have relied on the register.

TheAlberta Court of Appeal elaborated on this concept in Re Passburg Petroleums Ltd. and Landstrom Developments Ltd. (1984), 1984ABCA 78 , 8 D.L.R. (4th) 363, at 367 ....

See also Bergman v Bergman, 2002 ABQB 493, Phillips J at paras 24-27, vard. 2004 ABCA 194. [39] Even if, as Justice Slatter (then of the Queen’s Bench) has argued, volunteers should not be excluded from indefeasibilityprotection under the Land Titles Act unless their title is tainted with fraud, demonstration of wrongful conduct at the root of title ascontemplated by s. 187(1) of the Land Titles Act and s. 12(2) of the Law of Property Act permits the retraction of the title of a volunteersuch as Tom: see Darnley v Tennant, 2006 ABQB 575 at paras 25 – 29. [40] Alternatively, the conduct of Della or Della and Tom could be argued to have been land titles fraud: Darnley v Tennant atparas 30 – 33; Nature Conservancy of Canada v Waterton Land Trust Ltd, 2014 ABQB 303, Jeffrey J at paras 446-452.

As this issuewas not pursued by the parties and as the parties did not disagree that wrongful conduct by Della or Della and Tom would supportcorrection of the register, I will not pursue the land titles fraud issue. III. Facts [41] The claims against Della are based on legal characterizations and re-characterizations of a common basic chronology. I willidentify the participants, review the chronology, and outline the activities of Jim respecting the Lands before addressing the legalarguments mounted on this chronology and on additional argument-specific facts. A.

Participants and Witnesses [42] This litigation beset a family. The parents were Dick, who died in 1976, and Della. The children, from oldest to youngest,were Jim, Jack, Tom, and Karen. Judy is Jim’s wife. Karen was involved only as a witness. Jack played no role in the relevant events.

Hedied in 2007. [43] Seven witnesses testified - Jim, Judy, Della, Karen, Tom, Randy Pocock, the solicitor who prepared documents in 2001, andJames Farrington, Della’s lawyer, who prepared Della’s 2010 and 2014 documents. [44] While the parties did not dispute the broad features of events, particular and crucial aspects of events were in dispute. I cannotsimply accept all of the testimony of all of the witnesses as establishing the facts. My fact-finding turned not on “credibility” narrowlyunderstood as encompassing veracity or sincerity or desire to tell the truth.

In my opinion, the witnesses were doing their best to recountwhat they recalled accurately, without deception. None of the witnesses was shaken significantly in cross-examination, none was evasiveor argumentative. Their accounts were stable and without serious inconsistencies (for the most part). Credibility or sincerity, though, doesnot exhaust the testimonial factors that must be considered to determine the facts. Even a credible, sincere witness may be wrong aboutwhat happened.

Reliability, embracing accuracy of observations, memory, and description, must be assessed: see R v Morrissey (1995), (ON CA), 97 C.C.C. (3d) 193, Doherty JA at 205. Reliability is a particularly important factor in this case given thelengthy passage of time and gaps in documentation. I will identify the reliability factors bearing on fact-finding as I proceed through theissues. [45] Della’s testimony had some special features. She was 95 when she testified. She remembered some events going back over 60years. She had no recollection at all of some more recent events.

Nothing in her failure of recollection suggested any tactical

forgetfulness. Nothing in her professed recollections suggested any tactical retrieval of memories. She was already about 80 when some of the important events took place. Again, as I proceed through the issues, I will identify instances when Della’s memory failed her. Given her evident and entirely understandable lack of recall, Della’s testimony could not be given significant independent weight. B.

Chronology [ 46 ] The chronology had four phases: 1923 – 1976, covering the period ending with Dick’s death; 1976 – 2000, covering the period from Dick’s death until just before Jim returned to the Lands to live; 2000 – 2007, covering the initial period of Jim’s return to the Lands; and 2007 to 2014, covering events that preceded the severance of the joint tenancy, the severance, and subsequent events. 1. Dick and his family: 1923 - 1976 [ 47 ] The roots of the litigation traced back to Dick, as Karen suggested. Dick was born in 1905 in Holland.

He came to Canada in 1923 when he was 18 with $24 in his pocket and the shirt on his back. He expected to return to Holland in 3 to 4 months. He never left. [ 48 ] Della was born in 1921. She had a grade 10 education. She worked in a jewelry store before she was married and did some courses with Garbutt Business College. [ 49 ] Della and Dick were married in 1947. Della did not work after the marriage. [ 50 ] Dick acquired 17 acres of land in 1958. He subdivided the land and sold pieces off.

The Lands represent what remains, a little over 5 acres. [ 51 ] The family remained in Lethbridge until 1964 when a house was built on the Lands. The house still stands. Della lives in it. It became the family home. [ 52 ] Dick put the children to work. They did chores when they came home from school. They were not paid. [ 53 ] The family ran a fairly substantial laying-hen operation on the Lands until 1971. They had about 4,000 birds (6,000 at the peak of the operation). Tom and Karen were responsible for gathering, washing, and grading the eggs. The eggs were sold in town.

According to Karen, this kept her busy 7 days a week, 365 days a year, from the time she was about 6 until she was about 13. Tom recalled feeding hogs and shoving manure as well. [ 54 ] At one time, the family had three cows. Jim did the milking. Tom and Karen helped. [ 55 ] After the chicken operation ended, Dick started a calf operation. [ 56 ] The Lands themselves were not used for farming commercial crops. [ 57 ] Dick began farming land rented from a third party in 1964 (the Rented Lands). The Rented Lands were located about 2.5 miles south of the Lands. Jim assisted Dick with the farming.

Jim did cultivating, digging ditches, seeding, irrigation, baling hay, and combining. While Tom helped Jim occasionally, Jim was responsible for most of the farm work. As Dick got older, he contributed less and less to the farm work. [ 58 ] Farming did not take up all Jim’s time. He drove a school bus when he was in high school and after high school. He also did custom bailing and stacked hay around his neighborhood. [ 59 ] Jim was not paid by Dick. Before Dick died, Jim’s earnings went into Dick’s bank account. [ 60 ] Jim lived at home. Jack left home in 1968, although he came and went a few times.

Tom left home when he was 18, in about 1973 or 1974. Karen moved away when she was 16, in 1974. [ 61 ] Dick died on September 10, 1976. 2. After Dick’s Death: 1976 - 2000 [ 62 ] Della was about 55 when Dick died. She had last worked in 1947. She didn’t have a driver’s licence. Karen said “Dad ruled with an iron fist. Mum did not even know how to write a cheque when he passed away.” [ 63 ] Della’s only income on Dick’s death was an $88 per month survivor’s benefit. She was too young for Old Age Pension. [ 64 ] At the time of Dick’s death, the Lands were mortgaged to Farm Credit Corporation.

Two to three years remained on the mortgage. [ 65 ] Jim continued to farm the Rented Lands. He continued to live with Della on the Lands. Tom sometimes helped Jim with the farming (Della would tell him to go help his brother). Tom, though, was working construction and Jim did by far the largest amount of the farm work on the Rented Lands. From 1976 to 1981, Jim put the revenue from the Rented Lands, after expenses and the payment of a one-third crop share to the lessors, into Della’s bank account. The net revenue received by Della was between $10 - 15,000 per year.

The payments to Della allowed the mortgage to be paid off. [ 66 ] Jim continued to do other work, including custom bailing and stacking, and driving a gas tanker. [ 67 ] Tom moved back in after Dick died. He paid Della room and board of $275 per month. He stayed with Della for two to two

and a half years, off and on. [ 68 ] In 1981, Della turned 60. She got Old Age Pension of about $900 per month. Jim then retained the farming revenues from the Rented Lands. According to Jim, “she could hold her own with the pension she got.” After 1981 Jim did not contribute to Della’s income. [ 69 ] Jim lived in the house with Della until 1979. In the fall of 1979, he moved into a home on the Rented Lands. He and Judy married in 1981. Jim said that he was at the Lands “all the time.” [ 70 ] In about 1980, Jim wanted to build a new shop. This would be used for work supporting his various jobs.

He told Della that he wanted to build a new shop. She told him to go ahead and build it on the Lands and that it would not make sense to build it on the Rented Lands. He started building the shop in 1980 but couldn’t afford to finish it until 1985. He ran natural gas, heat, and water to the shop. 3. Jim’s Return to the Lands: 2000 - 2007 [ 71 ] Jim and Judy resided in their home on the Rented Lands for about 20 years, until June 2001. [ 72 ] In about 2000, the lessors had decided to sell the Rented Lands.

Jim and Judy could no longer live on the Rented Lands. [ 73 ] Jim talked to Della about building a house on the Lands. She said that he could and was happy that he’d be living on the Lands. At that time there was no discussion about ownership. [ 74 ] Jim started building his house in October 2000. [ 75 ] He ran out of money. He was $40,000 short. He needed to borrow to complete the house. The lender, CIBC, required security for the loan. Jim was not on title for the Lands. [ 76 ] On March 15, 2001, Jim and Della attended at the law offices of Randy Pocock. Mr. Pocock had been retained by Jim.

Della executed a transfer of the Lands to herself and Jim as joint tenants. [ 77 ] On March 30, 2001, a Memorandum of Charging Lands with Repayment of Loan(s) (Memorandum of Charging Lands) respecting a $40,000 loan was to be executed by Jim and Della. Jim and Della had discussed this transaction earlier. Della was not responsible for the payment of the $40,000 loan. That was Jim’s responsibility only. Jim later paid off that loan entirely by himself. [ 78 ] Jim testified that on March 30, 2001, he and Della were also to sign an agreement among Jim, Della, and Tom (the Acknowledgement).

The Acknowledgement was prepared by Mr. Pocock. The recitals to the Acknowledgement stated the following: AND WHEREAS [the Lands] comprise the most significant portion of the estate of Della Verwoerd; … AND WHEREAS Della Verwoerd has recently transferred Title to [the Lands] into her name and the name of Jim Verwoerd, as Joint Tenants; AND WHEREAS Della Verwoerd is aware of the fact that in the event of her death, [the Lands] will pass into the name of Jim Verwoerd, by right of survivorship …. The terms of the Acknowledgement included the following: 1.

In the event of the death of Della ..., Tom ... shall be entitled to purchase from Jim ... a 40% undivided interest in the said lands upon payment to Jim ... of an amount equal to one half of the value of the residence occupied by Della .... 2. Jim ... and Tom ... undertake and agree that each of them shall pay the sum of $5,000.00 to Jack ... and $5,000 to Karen .... [ 79 ] On March 30, 2001, Della received independent legal advice from Barbara Lamont. Ms.

Lamont had no notes and no independent recollection of the meeting with Della and was not called as a witness. [ 80 ] Della signed the Memorandum of Charging Lands on March 30, 2001. [ 81 ] Jim testified that “mum and I each signed a copy” of the Acknowledgement. Mr. Pocock testified that Della signed the Acknowledgement and that Jim took the signed copies with him. [ 82 ] Jim testified that he then took Della home and the two copies of the Acknowledgement were put in a safe in Della’s house. These documents were not produced at trial. If the documents existed, they no longer exist or could not be located.

In cross-examination, Della denied having taken them from the safe or having asked anyone else to destroy them. [ 83 ] Tom did not sign the Acknowledgement. [ 84 ] Jim finished his house. The total construction cost was about $180,000. 4. Tom, Della, and the Severance: 2007 - 2014

[ 85 ] In about 2007, Jim noticed that Tom was visiting Della frequently. Tom was coming by four to five times a day, “even in the winter.” Judy saw Tom coming to Della’s, “every day,” “two to five or six times a day, most days.” Judy testified that that Tom was not helping Della with anything outside. They stayed mostly in the house chatting (according to Judy). [ 86 ] Della had come to Jim and Judy’s place for Christmas for about 25 years.

In 2006, she started going to Tom’s for Christmas. [ 87 ] In about April 2010, Jim noticed that Della was “acting funny toward me,” and he “didn’t know why.” He “didn’t know what [he] did.” She wasn’t talking to him when he walked by her. Judy did testify to a disagreement with Della sometime after April 2010 although she said that even before that Della was “kind of cold to us” and Jim and Judy could not understand why. [ 88 ] In September or early October 2010, Tom talked to Della about putting his own mobile home on the Lands near Della’s house. Della supported the plan.

Tom went to a bank and got a pamphlet that described the implications of joint tenancy upon death. He told Della what he’d learned. Della talked to Carol (Dick’s daughter from another relationship) who was involved with a local seniors’ residence. Carol alerted Della to an

article in a seniors’ magazine written by Mr. Farrington. Della made an appointment with Mr. Farrington. [ 89 ] Della and Mr. Farrington met twice respecting the status of the title to the Lands. Mr. Farrington satisfied himself of Della’s competence and understanding of what she perceived the difficulties to be and what she proposed as a solution, and satisfied himself that she was not being unduly influenced by anyone. Tom took her to the appointments but was not present during her meetings with Mr. Farrington unless Mr.

Farrington asked him to join them. [ 90 ] On October 7, 2010, Jim received formal notice through Mr. Farrington that Della was severing the joint tenancy and converting it to a tenancy in common. On October 14, 2010, Della’s transfer was registered and the new certificate of title showed Della and Jim as tenants in common. [ 91 ] Jim registered a caveat on October 28, 2010. On April 24, 2014, Jim registered a certificate of lis pendens . [ 92 ] On May 30, 2014, Della transferred her interest in the Lands to herself and to Tom as joint tenants. Mr. Farrington continued to act as her counsel.

A new certificate of title issued showing Della and Tom as joint tenants as between themselves but as tenants in common with Jim. [ 93 ] When asked about what part of the Lands Karen would receive, Della said that “she could have some of what’s left to Tom,” but Karen “is well-fixed.” Karen is now retired and has no desire to have an interest in the Lands. [ 94 ] Della denied that Tom ever “tried to get her land” and denied that Tom ever stole from her. C.

Jim’s Activities respecting the Lands [ 95 ] Jim engaged in four types of activities respecting the Lands: making payments, performing work and making improvements to the Lands (other than Della’s house), building his shop and house, and providing services to Della. 1.

Payments by Jim [ 96 ] As indicated, Jim paid Rented Lands farming revenues of $10 – 15,000 per year to Della from 1976 to 1981, when she began receiving Old Age Pension. [ 97 ] Jim did not make any utility or tax payments respecting the Lands until after he moved onto the Lands in June 2001. [ 98 ] After moving in, Jim and Della agreed that Jim would pay for 2/3 of the taxes. In a read-in from her Questioning (61.1-12), Della stated that Jim figured out how much he should pay and how much she should pay. What Jim figured out was acceptable.

That arrangement appears, for the most part, to have been followed over the years. Since the joint tenancy was severed they have split the taxes 50/50. [ 99 ] Jim and Della split the natural gas and electricity bills. Della paid for irrigation water rights. Jim otherwise paid for water. In a read-in (36.25-6), Della stated that “Jim pays for the water and the electricity. And I pay for the gas.” [ 100 ] Jim has never paid rent to Della. 2.

Work by Jim on the Lands [ 101 ] Jim did work on the Lands over at least a 34 year period, between 1976 and 2010. (I should note that Tom testified that he helped out Della as well, including mowing the grass, planting, and weeding, and doing “little odds and ends repairs.”) [ 102 ] Some work was not associated with a particular date in Jim’s testimony: He took apart and cleaned up some pig pens that were on the Lands. He got rid of an old granary. He got an old CPR watertank and used it to make a new granary. He put a water line in, tied to city line.

He built a fence, taking down barbed wire and replacing it with posts and rails. Tom helped “a little bit” with the fence construction. Jim buried the overhead power lines. He leveled the land on the east side of house so it could be flood irrigated. He put in a new garden near Della’s house, which she continues to use. He fixed all the windows on the east end of the barn. Judy added that she helped Jim plant 150 to 170 trees on the Lands. Judy also added that Jim cut the grass, cleaned the property, and did spraying. [ 103 ] In 1975 Jim put in underground sprinklers.

In 1977 he ran in a new electrical line and ran a natural gas line to the Lands. In the 1990s he fixed a cattle guard that Dick had originally constructed in the 1970s.

[ 104 ] In 1997 he built a greenhouse for Della. He paid for the material, other than the plastic skin, including the furnace, wiring, and rebar. [ 105 ] When he built his house in 2000 - 2001, he put in his own irrigation system. He spent double for the pump so it could service her lawn too. 3. Jim’s Buildings [ 106 ] Between 1980 and 1985, Jim built his shop on the Lands. [ 107 ] Between 2000 and 2001, he built his home on the Lands. 4. Assistance to Della, including renovations [ 108 ] Jim rototilled Della’s garden until about 2000. [ 109 ] Jim put a new garage door on Della’s garage.

In 2010, he “fixed [Della’s] garage up “so she could start her plants.” He changed the studs, installed new wiring, and ran in a gas line for the heater. He changed the door, creating a new passage door on the south end of the garage. He also re-did the wiring in Della’s basement and added two more breakers to the panel box to permit more power to go to the garage. [ 110 ] Jim is a handyman. He does not have any formal certifications for trades, particularly for gas or electrical. He did not get permits for any work.

His work has not been inspected, except for a junction box. [ 111 ] Jim and Judy took Della to town for groceries until 2006/2007. Some others assisted with driving Della, including Carol and Karen. As of 2008, Tom “now does it.” IV.

Breach of Contract [ 112 ] The nature of the contract Jim alleges was made with Della is set out in para 16 of Jim’s Statement of Claim: … an agreement was reached between herself and Jim that if Jim carried on the farming operations and provided her with whatever was required to supplement her meagre revenue, so that she could continue to enjoy a comfortable lifestyle, he would receive full ownership of [the Lands] upon Della’s death. This arrangement was, admittedly, oral only; it was not reduced to writing.

Jim had the burden of establishing on a balance of probabilities that he and Della entered into a contract respecting the Lands: Haan v Haan , 2015 ABCA 395 at para 30 . This burden had two aspects. Jim had to establish the facts relied on to support the finding of a contract and he had to establish that these facts, in law, established a contract. [ 113 ] It is clear that if the alleged contract with Della were established, the severance of the joint tenancy with Jim would breach the contract. Jim would not have received full ownership of the Lands on Della’s death.

Upon severance, the prospect arose of Della’s heirs taking her undivided interest. Upon the transfer of her interest to herself and Tom as joint tenants, Della virtually guaranteed that Tom would acquire an interest in the Lands. [ 114 ] To get to breach, though, there must be a contract. Four questions about the alleged contract must be answered: Are any representations by Dick relevant to the alleged contract? Did the evidence support a finding that Della agreed to transmit all of her interests in the Lands to Jim? If there were such an agreement, does it fail because of lack of certainty of terms?

If there were a valid agreement, is it unenforceable because of the Statute of Frauds ? A. Are any representations by Dick relevant to the alleged contract? [ 115 ] While para 16 of the Statement of Claim is clear enough, the evidence supporting the allegation is less so. Although para 16 refers to a contract with Della, Jim referred throughout his testimony to promises made by Dick. These references were, it appeared, in aid of Jim’s contention of contractual entitlement to the Lands. Dick’s statements were made in two contexts. Some statements were made when only he and Jim were present.

Some were made when Jim and Della were present. The contexts have different legal features. 1. Statements by Dick to Jim [ 116 ] Jim testified that he was promised the Lands, “even when dad was alive.” He was told by Dick from 1972 on that the Lands would “be my place if I looked after mum.” In a read-in from his Questioning, Jim said that “the first discussion was with my dad about changing – putting my name on the title in ‘76” (10.17-18). Dick promised Jim the Lands the day before he died, when Dick was in hospital.

In another read-in, Dick said that “[e]ven my dad on his death bed told me to look after my mother the night before he died, and I told him I would, and I’ve done it” (16.2-4). In cross-examination, Jim confirmed that Dick never said that the farm would be split between his children. [ 117 ] Della disputed the alleged promises. She denied that she and Dick discussed giving Jim all the Lands. Tom testified that he was “never made aware of whatsoever” of the “understanding” that Jim would get the Lands if he looked after Della.

Karen had never heard that Jim would get the whole of the Lands. [ 118 ] One hurdle Jim would have faced in pursuing an action based on Dick’s alleged promises would have been s. 11 of the Alberta

Evidence Act: 11 In an action by or against the heirs, next of kin, executors, administrators or assigns of a deceased person, an opposed or interestedparty shall not obtain a verdict, judgment or decision on that party’s own evidence in respect of any matter occurring before the death ofthe deceased person, unless the evidence is corroborated by other material evidence. Another would have concerned proof of intention to contract: In Orr v.

Orr (1874), 21 Gr. 397, Richards C.J. at p. 425, referring to the same class of case presently under consideration, said:-- .... if they (children) wish to shew that an agreement has been made which is to bind the parent by force of law and not by the betterfeeling of affection, Courts ought to require that such agreements shall be established by the clearest evidence; and it should be held to bean almost invariable rule when a parent tells a child that if he lives with him and works the farm he will give it to him, that the child is tounderstand, unless it is unmistakably shewn that the parent intends to bind himself so that he cannot change that intention, it will beconsidered that all he means to say is, that those are his views and intentions, but he will feel himself perfectly at liberty to alter thatdisposition of his property, if he finds his own altered circumstances or want of kindness or affection on the part of his son induces himto change his views. quoted by Laidlaw JA in Ross v Ross, 1957 CarswellOnt 115, , [1958] OR 49; 11 DLR (2d) 561 at para 20(CarswellOnt). [119] Setting aside issues about contractual formation and validity, statements made by Dick to Jim alone did not support a materialcause of action.

The Statement of Claim asserted a contract with Della, not with Dick and Della, and not with Dick. The pleadingsdoubtless obviate the need for further consideration of promises by Dick alone. [120] Regardless, Jim had no viable claim against Dick or his estate. Dick died in 1976. The Lands were transferred to Della alone.On Dick’s death, the Lands were not transferred to Della and Jim. The Lands were not (for example) transferred to Jim with Dellagranted only a life interest.

There was no evidence or argument that any promise by Dick was somehow testamentary in nature and boundDella (and continues to bind Della) as his personal representative. [121] In any event, the roots of Jim’s sense of entitlement to the Lands ran deep. His sense that he deserved it or that it was owed tohim went back to his time with Dick: “I’m the only one who shows any interest in the farm.” Jim said that Tom and Jack “did not have aninterest in this place.” Dick may have encouraged that sense of entitlement. Karen observed that Dick was from Europe and the boystook precedence.

The oldest son had higher status. 2.

Statements by Dick to Jim in Della’s Presence [122] Representations by Dick could be relevant to Della’s contractual liabilities if Dick made the representations in Della’s presenceand Della personally agreed with Jim to be bound by those representations or, even if the representations were not made in her presence,Della knew about the statements and personally agreed with Jim to abide by what Dick had promised Jim. [123] Jim testified that Dick mentioned the promise of the Lands to Jim “at supper with mum there.” Jim elaborated in a read-in fromhis Questioning (10.2 – 13): Q ...

Can you tell me when the agreement that you refer to in [para 16 of your Statement of Claim] was reached? A My dad died September 10th, 1976, and about a month, five weeks before he died he said right at the supper table with my mom, him,and me, and said that he was going to have the title changed to my mom’s and my name.

He says as soon as we get the farm fall workdone, and that was in maybe August or the end of July of ‘76, but he died September 10th, and I carried on with the fall work by myself,and it never was changed, and my name was never put on the title. [124] Assuming that these facts were established and again setting aside issues about contractual formation and validity, the fact thatDick made these statements in the presence of Della would not entail that Della would be contractually responsible for Dick’srepresentations. Della would not become contractually liable just because Dick promised something.

There was no pleading or argumentthat Dick was Della’s agent. I discerned and counsel made no reference to any sort of duty requiring Della to register disagreement withwhat Dick said on pain of being deemed to have become a party to any agreement he was making: see, e.g., Republic Resources Limitedv Ballem, [1982] 1 WWR 692, (AB QB), Holmes J at para 17 . [125] There are instances in which silence in the face of an accusation could give rise to an inference of an admission.

For example, inMacKenzie v Commer (1973), (NS CA), 44 DLR (3d) 473 (NSCA), Chief Justice MacKeigan wrote as follows at475: His statements, as reported by MacKenzie, are neither specific admissions nor denials of the allegation that the car was a stolen car. Thebest that can be said of the statements is that Commer was silent, that he was silent under circumstances which screamed loudly for himto say something.

One would expect a normal, honest vendor, when told that he had sold stolen goods, to deny the allegation vehementlyand, having regard to his warranty of title, to volunteer eagerly to try to help the purchaser recover the car and to clear his own name.This he did not do but merely told the purchaser “to go pile sand”. Under these circumstances, Commer must be taken to have impliedlyadmitted the truth of the allegations.

While an admission of facts may be inferred from silence and a contract may be inferred from a course of conduct, in my opinion, apromise and a contract cannot be inferred from mere silence. [126] If Dick had somehow established a contract with Jim through the dinner table discussion, Della would be a third partybeneficiary of the contract. That would not entail that Jim would have a cause of action directly against her absent of privity of contract:

Fraser River Pile & Dredge Ltd v Can-Dive Services Ltd, (SCC), [1999] 3 S.C.R. 108, Iacobucci J at paras 36 and 43;375069 Alberta Ltd v 400411 Alberta Ltd, 2000 ABQB 29, Lewis J at para 43. B. Did the evidence support a finding that Della agreed to transmit all of her interestsin the Lands to Jim? 1. Evidence [127] Jim could build an evidential foundation for a contractual claim against Della directly or indirectly. The direct foundation wouldbe based on evidence of an oral agreement with Della, that is, on evidence of Della having made an offer to Jim. The indirect foundationwould be based on circumstantial evidence, relying on inferences from the conduct of the parties. (

a) Direct Evidence [128] Jim testified that “after dad died” he had a “conversation with mum.” She “promised [the Lands] to me.” Jim said the followingin a read-in from his Questioning (15.24 – 16.5): Q ... what was the deal that you made with your mother as far as getting this – the property? A Well, there was no real deal struck. You know, like, it wasn’t etched in stone. We had conversations that I would look after her. Evenmy dad on his death bed told me to look after my mother the night before he died, and I told him I would, and I’ve done it. She says,Well, Jim, somebody has to look after me.

Jim claimed numerous times that “she promised.” [129] In my opinion, Jim’s direct evidence, considered by itself, did not establish that Della entered into a contract with him. Jim’stestimony had no detail of place and time and content of the “conversations.” In particular, there was no detail respecting the terms of anoffer that Della made to him. “Somebody has to look after me” did not, on its own, describe what had to be done and what would beprovided in return.

Indeed, “there was no real deal struck.” Assertions that “she promised” did not prove a contract. [130] There was no roughly contemporaneous documentation corroborating any promises, no statements overheard by third parties.Della provided no corroboration of the discussions purporting to yield contractual liability.

There was no evidence of Della’s estateplanning or any indication from her records that the Lands would go to Jim while (perhaps) any remaining property would go to her otherchildren. [131] Were Jim’s evidence only what he claimed Dick said in the presence of Della or what Della said to him, I would dismiss hiscontractual claim on the grounds that its factual foundations were not established.

I could not be satisfied, on a balance of probabilities,that Della said or did anything that could support her being party to a contract with Jim. [132] However, Jim’s evidence relevant to the alleged contract was not restricted to his direct evidence about Dick and Della. Jim’sdirect evidence must be considered along with circumstantial evidence. That circumstantial evidence is “after-the-fact” evidence,evidence of the conduct of Jim and Della. (

b) Circumstantial Evidence (

i) Admissibility of After-the-Fact Evidence [133] There are restrictions on the admissibility of “extrinsic evidence,” including evidence of parties’ conduct, respecting contractualissues. The restrictions, set by the “parol evidence rule,” concern contractual

interpretation. According to Justice Rothstein in SattvaCapital Corp v Creston Moly Corp, 2014 SCC 53, [2014] 2 S.C.R. 633 at para 59, “[t]he parol evidence rule precludes admission ofevidence outside the words of the written contract that would add to, subtract from, vary, or contradict a contract that has been whollyreduced to writing .....” See also Gainers Inc v Pocklington Financial Corporation, 2000 ABCA 151 at para 15. Extrinsic evidence,including evidence of after-the-fact conduct is admissible if a contract is ambiguous: Shewchuk v Blackmont Capital Inc, 2016 ONCA912 at para 46.

Further, evidence of the “factual matrix” or “surrounding circumstances” of a contract is admissible “as an interpretiveaid for determining the meaning of the written words chosen by the parties, not to change or overrule the meaning of those words:”Sattva Capital Corporation, Rothstein J at para 60. [134] At this point, the issue is not contractual

interpretation. Rather, the issue is whether a contract existed at all, whether there wasa contract between Dick, Della, and Jim or Della and Jim. On this issue, evidence of the conduct of the (alleged) parties, including after-the-fact conduct, is relevant and admissible.

In Fernandes v Goveas, 2016 ONSC 1992, Justice Parfett wrote at para 42 that “[t]heconduct of the parties after the alleged agreement was made can be a strong indication of the existence of an agreement and/or of theterms of that agreement.” The line of authority supporting the admissibility of evidence of after-the-fact conduct on the issue of theexistence of a contract is well-established.

We read the following in the decision of Justice Ritchie in Saint John Tug Boat Co v IrvingRefining Ltd, (SCC), [1964] S.C.R. 614 at 621-622: The test of whether conduct, unaccompanied by any verbal or written undertaking, can constitute an acceptance of an offer so as to bindthe acceptor to the fulfilment of the contract, is made the subject of comment in Anson on Contracts, 21st ed., p. 28, where it is said: The test of such a contract is an objective and not a subjective one, that is to say, the intention which the law will attribute to a man isalways that which his conduct bears when reasonably construed, and not that which was present in his own mind.

So if A allows B towork for him under such circumstances that no reasonable man would suppose that B meant to do the work for nothing, A will be liable

to pay for it. The doing of the work is the offer; the permission to do it, or the acquiescence in its being done, constitutes the acceptance.

In this connection reference is frequently made to the following statement contained in the judgment of Lord Blackburn in Smith v.Hughes ... which I adopt as a proper test under the present circumstances: If, whatever a man’s real intention may be he so conducts himself that a reasonable man would believe that he was consenting to theterms proposed by the other party and that other party upon that belief enters into a contract with him, the man thus conducting himselfwould be equally bound as if he had intended to agree to the other party’s terms.

The American authorities on the same subject are well summarized in Williston on Contracts, 3rd ed., vol. I, para. 91A where it is said: Silence may be so deceptive that it may become necessary for one who receives beneficial services to speak in order to escape theinference of a promise to pay for them.

It is immaterial in this connection whether the services are requested and the silence relatesmerely to an undertaking to pay for them, or whether the services are rendered without a preliminary request but with knowledge on thepart of the person receiving them that they are rendered with the expectation of payment. In either case, the ordinary implication is thatthe services are to be paid for at their fair value, or at the offered price, if that is known to the offeree before he accepts them.

It must be appreciated that mere failure to disown responsibility to pay compensation for services rendered is not of itself always enoughto bind the person who has had the benefit of those services.

The circumstances must be such as to give rise to an inference that thealleged acceptor has consented to the work being done on the terms upon which it was offered before a binding contract will be implied. [135] For a more recent confirmation of the admissibility of after-the-fact evidence on the issue of the existence of a contract, seeUBS Securities Canada Inc v Sands Brothers Canada Ltd, (ON SC), Pepall, J, affd 2009 ONCA 328, whereJustice Pepall stated the following at para 41 (SC): [41] The investigation to determine whether a reasonable observer would think that two parties intended to contract extends to all thecircumstances of the agreement.

This has been held to include words and conduct (Calvan Consolidated Oil & Gas Co. v. Manning[ (SCC), [1959] S.C.R. 253 at 261]), future actions and representations by both parties (Osorio v. Cardona [ (BC SC), 15 DLR (4th) 619, McLachlin J, as she then was at para 34 ]) and reliance (Canada Square v. VS Services Ltd.[ 130 DLR (3d) 205]). This determination frequently involves an assessment of the credibility of witnesses.[footnotes omitted].

See also Jans v Jans, 2016 SKQB 275, Barrington-Foote J at para 195. (ii) Weight of After-the-Fact Evidence [136] While after-the-fact evidence is admissible on the issue of the existence of a contract, it must be approached cautiously in thiscontext as in others: Shewchuk v Blackmont Capital at para 52; see, e.g., R v White, 2011 SCC 13, [2011] 1 S.C.R. 433, Rothstein J atpara 23. In Shewchuk v Blackmont Capital at paras 43 - 45, Chief Justice Strathy pointed out some weaknesses of after-the-factevidence. Chief Justice Strathy was considering after-the-fact evidence as it concerned the

interpretation of an ambiguous contract, butthe weaknesses identified should also be considered when this type of evidence is used to prove the existence of a contract: [43] There are some dangers associated with reliance on evidence of subsequent conduct. One danger, recognized in England wheresuch evidence is inadmissible, is that the parties’ behaviour in performing their contract may change over time. Using their subsequentconduct as evidence of their intentions at the time of execution could permit the

interpretation of the contract to fluctuate over time ....Indeed, in F.L. Schuler A.G. v. Wickman Machine Tool Sales Ltd., [1974] A.C. 235 (H.L.), at p. 261, Lord Wilberforce describedreliance on subsequent conduct as “nothing but the refuge of the desperate.” [44] Another danger is that evidence of subsequent conduct may itself be ambiguous .... As a consequence of the potential ambiguityinherent in subsequent conduct, “some courts have gone so far as to assert that evidence of subsequent conduct will carry little weightunless it is unequivocal”: see Geoff R. Hall, Canadian Contractual

Interpretation Law, 3d ed. (Toronto: LexisNexis, 2016), at p. 105. [45] A third danger is that over-reliance on subsequent conduct may reward self-serving conduct whereby a party deliberately conductsitself in a way that would lend support to its preferred

interpretation of the contract. [137] Chief Justice Strathy clarified that after-the-fact evidence must be used to draw inferences about the parties’ intentions at thetime of contracting and must not be used to infer that what the parties agreed matches the subsequent conduct.

That is, the inference isdrawn from the later conduct back to the time of contracting; the inference is not from the later conduct to a contemporaneous contractthat matches what was done: [50] ... the lesson learned in Canada from the British position is that the parties’ subsequent conduct is relevant only to inferentiallyestablishing their intentions at the time they executed their contract.

Like evidence of post-offence conduct in criminal matters, it is akind of circumstantial evidence that “invokes a retrospectant chain of reasoning”; the trier of fact is invited to infer the parties’ priorintentions from their later conduct: see R. v. Rybak, 2008 ONCA 354, 90 O.R. (3d) 81, at para. 142, leave to appeal to S.C.C. refused,[2008] S.C.C.A. No. 311; and R. v. Vant, 2015 ONCA 481, 324 C.C.C. (3d) 109, at para. 121. As Juriansz J. (as he then was) wrote inDanforth-Woodbine Theatre Ltd. v. Loblaws Inc, [1999] O.J. No. 2059 (Gen.

Div.), at para. 55: [W]here evidence of the conduct of the parties and their method of performance is admissible, it is not admitted so that the contract maybe construed to be consonant with the parties’ conduct, but rather, it is admitted because the parties’ conduct and method of performancemay be of assistance in determining what the signatories intended at the time they entered the contract. [138] The weight of after-the-fact evidence depends on the degree to which the risks it poses are mitigated or its weaknesses arecompensated for by other factors.

Chief Justice Strathy wrote as follows in Shewchuk v Blackmont Capital commencing at para 52:

[52] .... When ascertaining [the] cogency [of after-the-fact evidence], a court should evaluate the extent to which its inherent dangers aremitigated in the circumstances of the case. [53] In the usual course, evidence of subsequent conduct will be more reliable if the acts it considers are the acts of both parties, areintentional, are consistent over time, and are acts of individuals rather than agents of corporations .... [54] Evidence of subsequent conduct will have greater weight if it is unequivocal in the sense of being consistent with only one of thetwo alternative

interpretations of the contract that generated the ambiguity triggering its admissibility: Lewis v. Union of B.C. Performers(1996), (BC CA), 18 B.C.L.R. (3d) 382 (C.A.), at para. 14, leave to appeal to S.C.C. refused, [1996] S.C.C.A. No. 182;and Scurry-Rainbow Oil Ltd. v. Kasha, 1996 ABCA 206 , 39 Alta. L.R. (3d) 153, at para. 44, leave to appeal to S.C.C. refused,[1996] S.C.C.A. No. 391 For instance, in Chippewas of Mnjikang First Nation v. Ontario (Minister of Native Affairs, 2010 ONCA 47, 265 O.A.C. 247, at para. 162, leave to appeal to S.C.C. refused, [2010] S.C.C.A. No. 91, this court found that the parties’subsequent conduct was of assistance in determining which of two reasonable

interpretations of a contract should be accepted becausethe conduct in question was “overwhelmingly consistent only with the trial judge’s

interpretation.” [55] Evidence of subsequent conduct may also be given greater weight in proportion to the proximity of the subsequent conduct to thetime of the contract’s execution: see Union Natural Gas Co. v.

Chatham Gas Co. (1918), (SCC), 56 S.C.R. 253, at p.271; and Hall, at pp. 105-106. [139] Three additional sets of considerations are relevant to the assessment of the after-the-fact evidence of contract in this case. [140] First, because the evidence is circumstantial, it must be considered as a whole and not tested “piece-by-piece.” Elements of theevidential matrix should not be assessed solely in isolation: Haan v Haan at paras 16 and 21; Brownscombe v Alberta (Public Trustee), (SCC), [1969] SCR 658 at p. 664; White, Binnie J (dissenting, but not on this point) at para 132; R v Currie, 2008ABCA 374, Côté JA at para 20.

Nonetheless, the evidence must be examined to determine whether it supports reasonable inferencesother than those urged by the proponent. As Justice Cromwell cautioned in R v Villaroman, 2016 SCC 33 at para 30, [30] It follows that in a case in which proof of one or more elements of the offence depends exclusively or largely on circumstantialevidence, it will generally be helpful to the jury to be cautioned about too readily drawing inferences of guilt. No particular language isrequired.

Telling the jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that suchevidence permits will often be a succinct and accurate way of helping the jury to guard against the risk of “filling in the blanks” by tooquickly overlooking reasonable alternative inferences. [141] Second, the evidence stretched across a lengthy period, about 34 years from Dick’s death in 1976 to Della’s severance of thejoint tenancy in 2010. The temporal expanse of the evidence affects the assessment of the evidence in two ways.

On the one hand,insofar as conduct supports an inference of contract across a lengthy period, the cogency of the evidence is enhanced. On the other hand,given the span of time, the facts relied on to support a contract have been selected from the much broader set of facts and that broader setof facts may be neutral if not inconsistent with contract.

Confirmation bias must be avoided: Daniel Kahneman, Thinking, Fast and Slow(Anchor Canada, 2013) 81. [142] Third, this case poses a civil version of the Arcangioli problem (R v Arcangioli, (SCC), [1994] 1 SCR 129).Justice Rothstein commented in White at para 37 that [37] Arcangioli ... stand[s] for the proposition that a “no probative value” instruction will be required when the accused’s post-offenceconduct is “equally explained by” or “equally consistent with” two or more offences....

This proposition neither complicates nor goesbeyond the basic rule of relevance: to say that an item of evidence is not relevant; that it is not probative of a live issue; or that it is“equally explained by” or “equally consistent with” either determination of a live issue are three ways of saying the same thing. In this case, there was a sort of “admission”, in that there was no suggestion that Jim was not entitled to a share in the Lands. NeitherDella nor Tom sought to dispossess Jim, revoke his co-tenancy, or to make claims respecting the value (in particular) of the house andshop he constructed on the Lands.

The critical issue for Jim was not whether the evidence disclosed some entitlement to an interest in theLands, but whether the evidence supported the conclusion that Jim was entitled to the entire interest in the Lands following Della’sdeath. Put another way, the inferential problem was whether the evidence was more probative of entitlement to some than entitlement toall. (iii) The After-the-Fact Evidence [143] The after-the-fact evidence fell into six groups. This evidence was reviewed in greater detail above.

a) Farming the Rented Lands [144] After Dick died, Jim continued to farm the Rented Lands. No farming occurred on the Lands themselves. [145] Jim paid the farming income to Della until 1981. I should comment immediately that Jim’s labours and the money he earnedwere crucial to Della and the preservation of the Lands. There was no evidence that in 1976 any other sibling had the resources to pay offthe outstanding mortgage. If Jim had not paid the farming income to Della the Lands would have been lost through foreclosure. [146] Jim lived in Della’s house on the Lands until 1979 when he moved with Judy to a home on rented lands he was farming.

b) Work on the Lands [147] As detailed above, Jim’s work on the Lands included • yard work (e.g. mowing the grass, removing snow)

• improving the Lands (e.g. planting trees, putting up a new fence, adding and improving utility connections, installing undergroundsprinklers, installing an irrigation system and pump, leveling a portion of the Lands) • renovating Della’s home, particularly the garage.

c) Building on the Lands [148] In 1980, Jim built a shop on the Lands. The shop supported his various occupations. [149] In 2000-2001, Jim built a house on the Lands. It cost about $180,000. Construction started in October 2000. Jim and Judy havelived in their home on the Lands since 2001.

d) Payments respecting the Lands [150] After Jim and Judy moved back to the Lands, they shared property tax and utility payments with Della.

e) Documentation [151] In March 15, 2001, Della transferred the Lands to herself and Jim as joint tenants. Joint tenancy, of course, included the right ofsurvivorship, so the Lands would devolve to Jim on Della’s death. [152] Jim claimed, supported by Mr. Pocock, that on March 30, 2001 Della signed the Acknowledgement confirming the transfer tojoint tenacy. On that day, she also signed the Memorandum of Charging Lands, allowing the Lands to serve as security for a constructionloan for Jim so that his house on the Lands could be completed.

f) Services for Della [153] Jim performed miscellaneous services for Della, including rototilling, home and garage renovations and driving her to town forgroceries. [154] Thus, Jim provided financial support to Della, worked on the Lands, built not only his shop but his home on the Lands, and afterhe moved back to the Lands contributed to taxes and utilities; furthermore, Della transferred a joint interest in the Lands to him andfollowed that up with an acknowledgement of the transfer and the right of survivorship. Jim also provided some personal services toDella.

Given this evidence, is the most likely inference that Della and Jim in or about September 1976 entered into a contract whereby inexchange for Jim’s services Della agreed to transfer all of the Lands to Jim upon her death? There was no dispute that Jim added value tothe Lands. The questions were whether Jim had a contractual entitlement to the Lands and whether he had a contractual entitlement toall of the Lands on Della’s death. 2. Assessment of the Evidence [155] A critical issue was whether the evidence established an intention to contract in or about September 1976.

I will consider thelegal orientation to the evidence and the inferences to be drawn from the evidence. (

a) Legal Orientation [156] Family members, of course, may enter into contracts with each other. The traditional common law view, though, was that intra-family arrangements were not or were not usually based on contractual intention. These private or personal arrangements fell outsidelegal regulation and governance. As Lord Atkin wrote in Balfour v Balfour, [1919] 2 KB 571 at 579, Agreements such as these are outside the realm of contracts altogether.... The consideration that really obtains for them is that naturallove and affection which counts for so little in these cold Courts....

In respect of these promises each house is a domain into which theKing’s writ does not seek to run, and to which his officers do not seek to be admitted. The traditional approach recognized a rebuttable presumption that family arrangements depended on good faith and not legalenforceability. This presumption applied to dealings between fathers and children or mothers and children: Jones v Padavatton, [1969] 2 All ER 616, Lord Salmon at 621; see John D.

McCamus, The Law of Contracts, 2nd ed. (Toronto: Irwin Law, 2012) [McCamus,Contracts] at 131-132; Beaudoin v Waters, (AB QB), Fruman J, as she then was, at para 45; Sherstenko vSherstenko, 2006 ABQB 481, Veit J at paras 40-43. This “presumption” has been recognized in circumstances like those in this case,when a party makes a claim against a parent based on work done on the farm: Hari v Bariana, 2015 ABQB 605, Robertson M at para61.

Justice Laidlaw wrote the following in Ross v Ross at para 20 (CarswellOnt): With great respect, I express the view that the learned trial Judge failed to give full and proper effect to the principle of law applicable tothe facts of the case at bar. That principle is stated plainly and with great authority by the Honourable th

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