Own v Wong, 2017 ABQB 35

Court of Queen’s Bench of Alberta Citation: Own v Wong, 2017 ABQB 35 Date: 20170124 Docket: 1101 05321 Registry: Calgary Between: David Own Plaintiff - and - Elim Wong and Globe Solar Energy (Western) Inc. Defendants _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice C.L.

Kenny _______________________________________________________ [ 1 ] The Plaintiff seeks damages from the Defendants in the sum of $50,000 which he says represents the balance due to him pursuant to an oral contract for the sale of his shares in Global Solar Energy (Western) Inc. (“Western”) and Sun2 Energy Ltd. (“Sun2”). The Defendants have filed a counterclaim, in the alternative, seeking return of the $16,197.08 paid to the Plaintiff in the event that the court finds no contract between the parties.

Background [ 2 ] The Plaintiff (“Own”), the Defendant (“Wong”), and David Lin (“Lin”) (not a party to this action), decided in 2008 to get into the business of selling solar collectors and hot water tanks that were heated and powered by solar energy. They got the idea from a company based in Toronto, GSE Canada, (“Canada”) and a company in Alberta, GSE, (“Alberta”). [ 3 ] Robin Li (“Li”), not a party to this action, was the sole shareholder and director of Alberta. He was given the rights by Canada to sell the solar systems in Western Canada. He was looking for partners to work with him.

Through an ad in a local paper, Own, Wong and Lin contacted him to discuss the business. They then met with the owner of Canada in Toronto to find out more about the business. They ended up partnering with Li and each took a 25% interest in Alberta. [ 4 ] Own, Wong and Lin incorporated Sun2 in April of 2008 but decided almost immediately that they needed a name closer to GSE and therefore incorporated Western in July of 2008. Own, Wong and Lin were all directors of and equal shareholders of Western and Sun2. Sun2 never did any business, never had any bank accounts or any assets.

Western also incorporated in British Columbia so that they could do work there as well. [ 5 ] Own was on parental leave from his employment at the time this all started. He left that employment in the fall of 2008 and

went from part time with Western to full time with Western. In March of 2009, he commenced full time employment again with another company in Calgary and therefore could only work part time with Western. [ 6 ] Generally, Own was responsible for marketing, Wong for operations, and Lin for supervision and financial duties. [ 7 ] British Columbia, at the time, was providing financial incentives to customers to pursue solar energy products which was not the case in Alberta. It became obvious to the three that most of their opportunities were in B.C.

They made trips to Vancouver to check out the market and develop a business plan for the area. In about March of 2009, Wong and Lin moved to Vancouver virtually fulltime through to about October of 2009, marketing, selling and installing solar systems. Own did not want to go to B.C., was working fulltime at another position in Calgary, and felt he could still do some marketing in his spare time from Calgary. [ 8 ] Own, Wong and Lin each put in $10,000 to get Western off the ground. In early 2009, Own says that problems started to arise in the business.

Own felt Li was being pushed aside by the others and was not being properly compensated for the use of his tools, inventory and expertise. No business was flowing through Alberta in which Li was a shareholder and all of the business was going through Western. Own felt there was a great deal of miscommunication between him and Wong and Lin. He also felt that the financial books were a mess. [ 9 ] In about July of 2009, Wong and Lin told Own that they each needed to inject additional money into the company in order to purchase more inventory.

Own refused to do so saying that they should exhaust their current supply of inventory before ordering any more. Wong and Lin who were on the ground working in Vancouver knew that it would take several weeks for a container to come from China with more inventory, and felt they had no choice but to order more inventory at the time so that it was available to them once the last of their supply was used. Wong and Lin each injected another $20,000 into Western in July of 2009 to buy more inventory. [ 10 ] It became clear to Own that he had a very different approach to the company than did Wong and Lin.

Communication stopped, Own stopped receiving information from his partners and he became very unhappy. He had in fact had casual discussions with other acquaintances about selling his shares in the company. [ 11 ] Sometime in late September or early October of 2009, Own and Wong met at a restaurant in Calgary (“the restaurant meeting”). They both say that at that meeting, Own agreed to sell his shares in the companies. They do not agree on the terms of that oral contract. Own says that Wong asked him what he made at his previous employment. Own then said he made $70,000 at his current employment.

He says that Wong then offered to buy his shares in Western and Sun2 for $70,000 but Own would need to wait until the company made money before he could be paid. Own said no, but he would take $16,500 now representing his original $10,000 investment with the rest being an estimate of his expenses, and a further $50,000 to be paid unconditionally.

He used a Chinese phrase to describe this unconditional payment. [ 12 ] Own said he then also told Wong that he did not want Lin to have any of the shares, he wanted Wong to have them so Wong could be in control of the company and protect Li by making sure all Alberta work went through the Alberta company. He told Wong that he would be selling his 25% interest in Alberta to Li. Own says that he suggested a lawyer do the transaction but that Wong said it was unnecessary. They shook hands.

Own considered that they had a contract based on the terms above. [ 13 ] Wong says that he and Lin decided to buy out Own’s shares because Own was working fulltime in Calgary, he could not help at all in Vancouver, and it was not possible to do Vancouver marketing from Calgary. Lin was covering the marketing in Vancouver. He says they decided to pay Own his original investment and his expenses in return for his shares. He said that they also wanted to compensate him, if the company made a profit, for the time he had put into the company to date.

He called this a gratuitous promise and one that was not related to the sale of the shares. [ 14 ] Wong called Own and arranged the restaurant meeting. He says the end result of their discussion was that Own would sell his shares back to the company for approximately $16,500 representing his original deposit and his expenses. He also said that he offered to compensate Own for his efforts in the company if it made a profit in the future. He said that Own told him he was earning $50,000 currently and that was in line with what Wong and Lin considered offering him if the company made a profit in the future.

There was no discussion about an unconditional payment of $50,000 for the shares or any discussion about protecting Li and the Alberta business. They shook hands and agreed. [ 15 ] A cheque was drawn from the Western bank account, signed by Lin and Wong, and dated October 10, 2009 and provided to Own in the sum of $16,500. This represented his initial investment and an estimate as to his expenses incurred on behalf of Western and Sun2. On October 13, 2009, Own says he and Wong met at Tim Horton’s and the cheque for $16,500 was provided to Own. Own also expected the $50,000 at that time as well.

He said that Wong told him he was tight and Own would have to wait until one of his houses sold before there was money to pay him. Own knew that one of Wong’s properties was on the market and so he trusted him and was prepared to wait for the money. Wong says there was no discussion about him paying Wong $50,000 from the sale of a house. It was a gratuitous promise to pay the money when and if the company became profitable. [ 16 ] Own and Wong then attended at the corporate registry and Own’s shares were transferred to Wong. They both had to show identification in order to effect the transfer.

Own says the shares were transferred to Wong rather than surrendered to the company because that is the deal they made so that Wong would have control. Wong says they transferred the shares to him rather than to Wong and Lin because they had to show identification and Lin was not with them. It was on July 20, 2010 that the shareholdings in Western were changed to reflect a 50/50 shareholding between Wong and Lin. [ 17 ] On January 8, 2010, Wong and Own attended the registry again to transfer the shares in Sun2 from Own to Wong.

At that time Own provided to Wong cash in the sum of $302.92 representing an overpayment with respect to his expenses. Own said that although Wong still owed him $50,000, he wanted to return the overpayment so that it was a clean deal. He would then be paid $50,000 rather than an odd amount. Wong says that the overpayment simply reflected the actual amount of the expenses. [ 18 ] Between January 8, 2010 and August 24, 2010, there are several emails between the parties related to this matter. Own says that the emails were to follow up on when he would receive the $50,000.

He knew that a house owned by Wong had been sold and he

expected his money. He was especially frustrated because Wong only responded in curt replies and never indicated in response that thedeal Own thought he had was not the deal Wong thought they had made. He felt Wong was trying to go back on the deal. Wong saysthat he did not respond fully because he was mad that Own got Wong’s wife involved in this transaction and because he knew what thedeal was and felt there was no need to confirm that again with Own. Litigation commenced. The Law of Oral Contracts [19] The parties both agree that the law is appropriately set out in the following decisions: A. Chui v.

Lam, 2016 BCSC 299 [39] The relevant legal principles are conveniently summarized by Mr. Justice Cohen in Clifford v. Flores, 2004 BCSC 358. As inthe case at bar, that case involved a plaintiff attempting to prove and enforce an oral contract, where the evidence concerning the allegedcontract was in dispute as between the parties. Cohen J. stated: 39 As can be seen from the summaries of the parties' testimony and their respective positions on the evidence, Clifford, Flores andCunha have given versions of the dealings between them on the key issues which are irreconcilable.

Thus, the court must decide whoseversion of events is most reliable in order to decide the issues. The credibility of the witnesses must be tested against those facts that arenot seriously in dispute, and with the preponderance of the evidence and the probabilities surrounding the events. 40 Although this task is primarily one of fact finding, some legal principles submitted by defence counsel are of assistance:

a) First, the Plaintiff carries both the legal and evidentiary burden of proving, on a balance of probabilities, that the alleged oral contractwas made.

b) Second, the basic contractual principles of offer and acceptance, and certainty of terms are applicable. These principles aresummarized in Fridman, The Law of Contract in Canada (4th ed.). at pp. 16-17, and 20, as follows: Constantly reiterated in the judgments is the idea that the test of agreement for legal purposes is whether parties have indicated to theoutside world, in the form of the objective reasonable bystander, their intention to contract and the terms of such contract. The law isconcerned not with the party's intentions but with their manifested intentions.

It is not what an individual party believed or understoodwas the meaning of what the other parties said or did that is the criterion of agreement; it is whether a reasonable man in the situation ofthat party would have believed and understood that the other party was consenting to the identical terms. … Sometimes it is a simple matter to decide what the parties have manifested to each other, and consequently, whether they have agreed,and if so, upon what. This is especially true where a document containing their agreement has been prepared and signed by the parties.

Ifthe plain wording of the document reveals a clear and unambiguous intent, it is not necessary to go further. … It is different, however, where the language is not unambiguous but vague and uncertain. In the absence of the requisite certainty andclarity the courts will not declare that a contract exists.

c) Finally, the Court of Appeal has also provided some guidance in how courts ought to assess the evidence of witnesses when credibilityis an issue. In Faryna v. Chorny (1951), (BC CA), 4 W.W.R. (N.S.) 171 (B.C.C.A.) the plaintiff brought an action forlibel contained in a letter. The recipient of the letter gave evidence that he did not know the meaning of the defamatory word or theidentity of the person referred to in the letter. The trial judge found the letter to be defamatory, but did not expressly state in his reasonsthat he disbelieved the evidence of the recipient.

On appeal, the appellant argued that the evidence of the recipient was uncontradictedand the judge in the course of the trial had commented favourably on the demeanour of the witness. The witness's evidence thereforeought to have been accepted by the trial judge.

In dismissing the appeal, at pp. 174 to 175 O'Halloran J.A. commented on how credibilityought to be assessed: If a trial judge's finding of credibility is to depend solely on which person he thinks made the better appearance of sincerity in the witnessbox, we are left with a purely arbitrary finding and justice would then depend upon the best actors in the witness box. On reflection itbecomes almost axiomatic that the appearance of telling the truth is but one of the elements that enter into the credibility of the evidenceof a witness.

Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen andheard, as well as other factors combine to produce what is called credibility... . A witness by his manner may create a very unfavourableimpression of his truthfulness upon the trial judge and yet the surrounding circumstances in the case may point decisively to theconclusion that he is actually telling the truth. I am not referring to the comparatively infrequent cases in which a witness is caught in aclumsy lie.

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether thepersonal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examinationof its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of a story of awitness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person wouldreadily recognize as reasonable in that place and in those conditions.

Only thus can a court satisfactorily appraise the testimony of aquick minded, experienced and confident witness, and of those shrewd persons adept in the half lie and of long and successful experiencein combining skilful exaggeration with partial suppression of the truth. Again, a witness may testify what he sincerely believes to be true,but he may be quite honestly mistaken. For a trial judge to say I believe him because I judge him to be telling the truth, is to come to aconclusion on consideration of only half the problem. In truth it may easily be self-direction of a dangerous kind.

The trial judge ought to go further and say that evidence of the witness he believes is in accordance with the preponderance ofprobabilities in the case and, if his view is to demand confidence, also state his reasons for that conclusion. The law does not clothe thetrial judge with a divine insight into the hearts and minds of the witnesses.

And a court of appeal must be satisfied that the trial judge'sfinding of credibility is based not on one element only to the exclusion of others, but is based on all the elements by which it can betested in the particular case. [My added emphasis] [40] Also helpful are these comments of Dickson J. in Le Soleil Hotel& Suites Ltd. v. Le Soleil Management Ltd. 2009 BCSC 1303: 328 The

interpretation of oral contracts turns on the same essential principles: Lawson Graphics Pacific Ltd. v. Simpson (1987), (BC SC), 12 B.C.L.R. (2d) 126. If the alleged agreement has not been reduced to writing, the Court must consider what theparties said and did and assess objectively whether, in context, their words and actions establish an intention to be bound: PeriscanFinancial Services Inc., supra; Leong & Associates, supra. The genesis and aim of the transaction is an aspect of the relevant context forconsideration: Canada Square Corporation, supra.

The credibility of witnesses will be particularly important and differing versions ofevents will increase the difficulty of establishing that an enforceable bargain was made: Anchorage Management Services Ltd. v. 465404B.C. Inc., 1999 BCCA 771 , [1999] B.C.J. No. 2976, 1999 CarswellBC 2947 (C.A.). B. Ron Ghitter Property Consultants Ltd v. Beaver Lumber Company Limited, 2003 ABCA 221 [8] Regardless of the theories underlying the enforcement of contracts, mutuality of agreement lies at the root of any legally enforceablecontract.

The required degree of mutuality of agreement mandates that the parties reach a consensus ad idem on essential terms. Indetermining whether the parties have reached agreement for legal purposes, the starting point must be the alleged Page: 5 contract itself:Associated Japanese Bank (International) Ltd. v. Credit du Nord S.A., [1989] 1 W.L.R. 255 at 268 (Q.B.). If the wording of thecontract is plain and unambiguous, that will ordinarily be an end of the matter. The accepted test is whether a reasonable observer wouldinfer from the words or conduct of the parties that a contract had been concluded: Smith v.

Hughes (1871), L.R. 6 Q.B. 597 at 607.

Thatis, on an objective basis, have the parties reached consensus ad idem? [9] The common thread running through the cases is that the parties will be found to have reached a meeting of the minds, in other wordsbe ad idem, where it is clear to the objective reasonable bystander, in light of all the material facts, that the parties intended to contractand the essential terms of that contract can be determined with a reasonable degree of certainty: Scammell (G.) and Nephew, Ltd. v.Ouston (H.C. and J.G.), [1941] A.C. 251 at 255 (H.L.); British Columbia (Minister of Transportation and Highways) v.

ReonManagement Services Inc. 2001 BCCA 679 , (2001), 208 D.L.R. (4th) 175 (B.C.C.A.); Langley Lo-Cost Builders Ltd. v. 474835 B.C.Ltd., 2000 BCCA 365 , [2000] 7 W.W.R. 46 (B.C.C.A.); Anchorage Management Services Ltd. v. 465404 B.C. Inc. 1999 BCCA 771 ,(1999), 72 B.C.L.R. (3d) 389 (C.A.); see also, G.H.L. Fridman, The Law of Contract in Canada, 4th ed. (Toronto: Carswell, 1999) at 15-17.

This requires the court to decide whether “a sensible third party would take the agreement to mean what A understood it to mean orwhat B understood it to mean, or whether indeed any meaning can be attributed to it at all”: Cheshire, Fifoot and Furmstom, Law ofContract, 14th ed. (London: Butterworths, 2001) at 272. Otherwise, then, as stated by Lord Maugham in Scammell, supra at 255, “theconsensus ad idem would be a matter of mere conjecture.” [10] There are, of course, many reasons why parties may never reach consensus ad idem. Mistake is one of them.

The manner in whichmistake may prevent formation of a contract was explained by Lord Phillips, M.R. in Great Peace Shipping Ltd. v. Tsavliris(International) Ltd., [2003] Q.B. 679 at 690 (C.A.): A mistake can be simply defined as an erroneous belief. Mistakes have relevance in the law of contract in a number of differentcircumstances. They may prevent the mutuality of agreement that is necessary for the formation of a contract. In order for two parties toconclude a contract binding in law each must agree with the other the terms of the contract.

Whether two parties have entered into acontract in this way must be judged objectively, having regard to all the material facts. It may be that each party mistakenly believes thathe has entered into such a contract in circumstances where an objective appraisal of the facts reveals that no agreement has been reachedas to the terms of the contract. [11] But to prevent the formation of a contract, the mistake must be fundamental, in the sense that it must go to an essential term of thealleged contract.

As explained in Cheshire, Fifoot and Furmstom, Law of Contract, supra, at 270: Translated into the familiar rubric ofoffer and acceptance, this means that the only type of mistake which is ever capable of excluding offer and acceptance is one thatprevents the mistaken party from appreciating the fundamental character of the offer and acceptance. … [13] …But in the case of a mutual or unilateral mistake, the existence of an agreement is rejected.

As explained in Cheshire, Fifoot &Furmston, supra at 253: … [14] The test to determine whether a mutual mistake prevents the formation of an agreement necessarily includes the following: 1. Has there been a mistake? 2. Were the parties, on an objective basis, ad idem notwithstanding any alleged mistake? 3. If not, is the mistake fundamental? … 26] As for whether the lack of consensus ad idem on this element constitutes an essential term of the contract, we have determined that it

does. The nature of the subject matter of a proposed sale, and in particular the material encumbrances on it, may be characterized,depending on the circumstances, as a fundamental error going to the root of the contract. We are satisfied that the mutual mistake heremeets the traditional common law formulation of fundamental mistake. That the RSA constitutes a material and significant encumbrancewhich goes directly to the substance of what was being sold and what was being purchased is beyond dispute. The collective reactions ofthe parties on learning of each other’s position vis-à-vis the RSA speaks for itself.

Ghitter immediately asked for an indemnity andBeaver immediately declined to provide one. Accordingly, without agreement on the fundamental character of Beaver’s leaseholdinterest, and specifically the encumbrances to which it was subject, the parties were never ad idem. Thus, there is no contract betweenthem. C. Moffat v. Royal Bank of Canada, 2010 SKQB 191. 48 In mutual mistake, both parties are mistaken, but do not share their mistake. In that sense, it is quite different from commonmistake.

It arises in situations where the parties are operating at cross purposes and the question is whether they have, in fact, reached anagreement. In other words, has there been a consensus ad idem? Fridman, The Law of Contract in Canada, supra, comments at page250-251: In mutual mistake the issue would seem to be: what would a reasonable person infer from the words and conduct of the parties? If,despite their different mistakes, it would appear to the outside world that the parties were in agreement as to a contract and its terms, thena contract would exist at common law.

As it was put in one Canadian case, “mutual assent is not required for the formation of a validcontract, only a manifestation of mutual assent. ... Whether or not there is a manifestation of mutual assent is to be determined from theovert acts of the parties.” [Walton v. Landstock Invts. Ltd. (1976), (ON CA), 72 D.L.R. (3d) 195 at 198] The source ofthis approach to cases of this kind is the language of Blackburn J. in the English case of Smith v. Hughes [

(1871) L.R. 6 Q.B. 597 at 607],which has frequently been cited and followed in Canadian courts: If whatever a man’s real intention may be, he so conducts himself that a reasonable man would believe that he was assenting to the termsproposed by the other party, and that other party upon that belief enters into the contract with him, the man thus conducting himselfwould be equally bound as if he had intended to agree to the other party’s terms. Such instances of mistake may be regarded in two ways.

In the first place, it could be said that as long as there was an apparentcorrespondence of offer and acceptance, the inward, secret beliefs of one or both parties were irrelevant. Objectively speaking, the partieshave arrived at a consensus ad idem, which is the foundation of contract at common law. Hence, even if parties have been mistaken, acourt may be able to find that they have in effect validly contracted, either by the appearance of agreement, or by some kind of estoppel,arising from the belief that was induced in one party by the language or acts of the other party.

However, if no such consensus can bediscovered, for example, where there is an obvious ambiguity about the terms of the purported contract, no objectively ascertainedagreement can be inferred or concluded. Second, it could be said that, as long as the parties intended to contract in the manner and on theterms indicated by their acts or language, the fact that both had different motives for contracting, based on their mistaken beliefs, albeitthat their mistakes were different ones, would have no effect upon the validity of the apparent contract.

The first approach emphasizesthe connection between mistake and correspondence of offer and acceptance. The second approach underlines what has been said earlieras to the distinction between intention and motive.

With regard to both, the impact of equitable developments has been to give greaterflexibility to the courts to uphold, modify or set aside contracts where there has been a mutual mistake. ... [Emphasis added] … [39] One remedy for a mutual mistake in contract is a declaration there was no contract, no consensus ad idem, then putting the parties inthe same position they were before entering into the contract. Discussion [20] There are five alternatives here:

a) Own had a contract with Wong personally.

b) Own had a contract with Western

c) Own had a contract with Western for the return of his shares in consideration for the return of his initial investment in the sum of$10,000 and payment of his expenses. There was also a gratuitous promise of a further $50,000 if the company was profitable.

d) If the $50,000 was a term of the contract and not a gratuitous promise, then it was only to be paid when the company wasprofitable.

e) There was no agreement at all as there was no meeting of the minds. In that case, the shares would be returned to Own and Ownwould return the sum of $16, 197.08 to the company. [21] The onus is on Own to prove on a balance of probabilities that there is an oral contract. Where there is a contradiction in theevidence, the court must decide which version of the events is the most reliable.

The test of the reliability of the version of events iswhether it is in harmony with the preponderance of the probabilities which a practical and informed person would readily recognize asreasonable in that place and in those conditions. (Chui supra, para 39.). [22] At the time of this restaurant meeting, Western had been in operation for about 15 months or so. No financial statements hadyet been prepared. Each shareholder had invested $10,000 into the business. Each of them had worked for free throughout that period of

time. None of them had received a salary or a dividend from the company. Wong and Lin had been working fulltime in Vancouver from March until about October of 2009. Own had continued to work at his other fulltime employment in Calgary and part-time for Western. About two months before the restaurant meeting, Wong and Lin had asked Own for a further cash injection to buy inventory which request he refused. Wong and Lin each contributed a further $20,000 to purchase more inventory.

Own says he did not know whether Wong and Lin actually had contributed anything further however he was never in Vancouver and so had no idea what work was being done there and what inventory was there. [ 23 ] What was known to Own at the time of the meeting was that he had not received anything from the company in over 15 months including any reimbursement of his expenses.

He had also received a request for a further cash contribution to the company. [ 24 ] The court must determine whether, objectively, the parties had reached consensus ad idem on all of the terms of the oral contract as set out by Own. [ 25 ] I find that the parties did reach consensus ad idem on the following matters: Own would transfer his shares in Western and Sun2 in consideration for reimbursement of his initial investment in Western in the sum of $10,000 and reimbursement of his expenses to date.

This totalled $16,197.08 which he received from Western. [ 26 ] I do not find that the parties reached consensus ad idem on the payment of the $50,000. I am satisfied that there was a mutual mistake. [ 27 ] Objectively, a practical and informed person would not think it reasonable to pay to a minority shareholder, the total sum of $60,000 ($10,000 plus $50,000) for his shares in a company that had made no profit in the previous 15 months, where the shareholders had received no return on their shareholdings, and where the company recently required a further, significant cash injection.

It was also acknowledged that Wong and Lin were doing almost all of the work for the company in Vancouver while Own was doing some marketing from Calgary in his spare time. Own, through counsel, acknowledged that the sum of $50,000 would be generous in the circumstances of the company at that time. Although not relevant to the terms of the sale of shares, the company never did make a profit and eventually ceased operations. [ 28 ] Own argues that he was enticed into selling his shares in the companies by payment of the extra $50,000 and that he would not have sold the shares if that was not part of the deal.

Again, from an objective point of view, from the evidence before the court, it appears that at that time, Own was fortunate to even get the return of his original investment. It appears the other two shareholders did not. [ 29 ] It does seem reasonable, that over a meal at a restaurant, between friends, discussion was had about trying to compensate Own, just as Wong and Lin would hope to be compensated, down the road if and when the company became profitable.

The figure of $50,000 seemed to be agreed upon as roughly reflecting one year’s salary for Own. [ 30 ] Own argues that Wong conducted himself as if he was consenting to the terms put forward by Own surrounding the $50,000 and therefore there is no mutual mistake. That is not at all clear from the evidence. The emails referred to are equivocal. Both versions of the agreement on the $50,000 can be read into those emails. In addition, Wong and Own attended the corporate registry on two occasions to transfer shares in the two companies upon payment to Own of $16,197.08.

There was no refusal to transfer the shares unless Own was paid the $50,000. Own said he trusted that Wong would eventually pay him, and therefore he had no problem transferring the shares at that time. [ 31 ] I cannot find that a consensus was reached with respect to the $50,000 payment. I find that it was a mutual mistake. Each party had a different version of what was to happen and the evidence is consistent with that fundamental difference. [ 32 ] The Amended Statement of Claim is dismissed and the Counter- Claim is dismissed. [ 33 ] Costs may be spoken to only if necessary.

Heard on the 16 th day of January, 2017. Dated at the City of Calgary, Alberta this 24 th day of January, 2017. C.L. Kenny J.C.Q.B.A. Appearances:

Hugh G. Slocombe for the Plaintiff R.J. Daniel Gilborn for the Defendants