1289892 Alberta Ltd Plaintiff - v. -, 2017 ABQB 688

Court of Queen’s Bench of Alberta Citation: 1289892 Alberta Ltd v Campbell, 2017 ABQB 688 Date: 20171109 Docket: 1709 00075 Registry: Peace River Between: 1289892 Alberta Ltd Plaintiff - and - Dale Campbell Defendant _______________________________________________________ Reasons for Decision of W.S. Schlosser, Master, Court of Queen's Bench of Alberta _______________________________________________________ [1] This is a Defendant’s application for

summary dismissal of the Plaintiff’s claim and a Plaintiff’s cross-application for aspecific performance of a contract for the sale of land. List of Authorities 1. Alberta Rules of Court, Alta Reg 124/2010; 2. Windsor v Canadian Pacific Railway Ltd, 2014 ABCA 108; 3. Attila Dogan Construction and Installation Co v AMEC Americas Limited, 2015 ABQB 120; 4. Girouard v Druet, 2012 NBCA 40, 2012 CarswellNB 227; 5. McKenzie v Walsh, (1920), (SCC), 61 SCR 312; 6. Leoppky v Meston, 2008 ABQB 45; 7. Bohan v Galbraith, 1907 CarswellOnt 451; 8. 1244034 Alberta Ltd v Walton International Group Inc, 2007 ABCA 372, 2007 Carswell Alta 1562; 9. Balderston v Faul, 2014 ABQB 762, 2014 CarswellAlta 2305;

10. Dursol-Fabrik Otto Durst v Dursol North America, 2006 FC 1115, 2006 CarswellNat 2901; 11. Global First Ltd v 1237007 Alberta Ltd, 2008 ABQB 65; 12. Raymond v Raymond Estate, 2011 SKCA 58; 13. Semelhago v Paramadevan, (SCC), [1996] 2 SCR 415, 1996 CarswellOnt 2737; 14. Whitehall Estates Ltd v McCallum, (BC CA), 1975 Carswell BC 389, 63 DLR (3d) 320 (CA); 15. Electronic Transactions Act, SA 2001, c E-5.5. Facts [2] Dale Campbell advertised farmland for sale in the Grimshaw’s ‘Mile Zero News’: FOR SALE: Farmland, 4 miles north of Grimshaw and 2 miles west. Approximately 100+ acres.

Legal land description NW 6-84-23-5.There is a capped gas well on the property with annual lease revenue and property also contains a gravel reserve. ... (December 7/2016) The land is just south of Warrensville on the southeast corner of Cardinal Lake. [3] The Plaintiff searched the title, which was clear, except for the surface lease mentioned in the ad. He, then (on December 15,2016), sent a formal real estate contract via his lawyer with an offer to purchase for $154,000; indicating that a $5,000 deposit was beingheld in trust.

The offer was sent by email. [4] The offer was subject to financing by February 6, 2017, and open for acceptance until December 22, 2016. [5] The offer was rejected by Mr. Campbell with an email response: “Land purchase Need name not no company. Offer is toolow.” [6] There appear to have been two reasons Mr. Campbell wanted to know who was behind the numbered company. First of all,Mr. Campbell did not get along with Allan Martin, the principal of the numbered company.

Second, when if you look at the townshipmap, the Campbell property is like a missing piece of an Allan Martin jigsaw puzzle, made up of quarters that Allan Martin either ownsor rents for his farming operation. If Mr. Campbell knew Mr. Martin was bidding on this quarter the price would probably have gone up. [7] The Plaintiff’s lawyer and the Defendant exchanged further emails. Mr.

Campbell replied: “Counter offer $180.000” [8] The Plaintiff’s lawyer responded at $160,000, saying: “Other than price, this offer is on the same terms as that included withmy December 15, 2016 email.” [9] The December 15, 2016, email was the one that contained the formal Real Estate Purchase Contract. [10] Mr. Campbell replied: “Land counter offer $175000” [11] The Plaintiff’s lawyer’s office then responded at $164,000: ‘same terms as before’. Mr.

Campbell then came back at $171000.Throughout, there was no follow-up about the ownership of the numbered company. [12] The Plaintiff’s lawyer emailed on January 10, 2017. By then then acceptance date (December 22, 2016) and the financingdate were no longer viable: I have instructions to make a counter offer at $168,000. This offer is on the same terms as that included with my December 15, 2016email, except: (1) as to price; and (2) as to the financing condition date and the closing date, both of which would be three weeks laterthan in the original offer.

Please advise if this is acceptable [13] This offer was rejected January 11, 2017; the Defendant saying: “Counter offer 170000” [14] The responding email was: I can confirm that our client accepts your counter offer at $170,000. Our client’s lender requires that the contract be formalized in written contract, not just by their exchange of emails we have thus far.Accordingly, please print and return the attached contract by fax, email or delivery to our office. If you need us to send the contract byfax, or if you want to pick up a copy, please let me know.

I confirm we still hold the deposit of $5,000 in trust. [15] The formal contract changed the price to $170,000 (from the original contract), moved the financing condition to February 3,2017 and the possession/closing date to February 27, 2017; all of which was consistent with the January 10 email (noted in para 12). [16] Clause 1.5 made the Real Estate contract open for acceptance in writing until January 17, 2017. [17] Mr. Campbell’s response, on January 20, 2017, was: “Sorry land bin sold”.

Argument [ 18 ] The Plaintiff says that there was a binding deal and wants the Defendant to give him title. The Defendant argues that there was no deal, that the emails do not satisfy the Statutes of Frauds and, that, in any event, the land is not unique so as to warrant specific performance. [ 19 ] Mr. Campbell also says that it had been his intention to sub-divide a portion of the land for use as a campground; approximately 20 of the 117 acres in the parcel. He also said that his brother had a right of first refusal. But neither of these points came up in the negotiations.

There was nothing about it on title. [ 20 ] As tempting as it is to test the applicability of the 20 th century Electronic Transactions Act (SA 2001), to the 17 th century Statutes of Frauds, to see whether the New Brunswick Court of Appeal decision in Girouard v Druet can be distinguished, or, to comment on the availability of specific performance in these circumstances, this will have to wait for another day. It is my view that this case can be decided on the contract principles of offer and acceptance. [ 21 ] The parties were plainly in agreement about the price.

But about other things: financing and closing, there was only silence from the vendor. The January 11 th email from Mr. Campbell does not accept the moved financing and closing dates but reject the amount. These dates, either from the initial formal contract, or, the revised contract, never came up. And silence cannot be construed to be acceptance. The effect of the January 11 th counter offer is a wholesale rejection of the January 10 th offer. [ 22 ] To put it another way, the formal contract required by Mr.

Allen or, more specifically, his lender, contained two things that were not agreed upon at law; the deadline for the removal of the financing condition and the closing date. Furthermore, the formal contract containing these conditions was expressed to be ‘open for acceptance until January 17 th. It was not accepted. There was only silence. Again, silence cannot be construed to be acceptance. [ 23 ] The vendors’ emails were careless and an inch away from creating a binding deal. The purchaser’s terms were standard and not unreasonable.

In this case, the vendor escapes having to sell the land only on what might be described as a technicality. [ 24 ] If the Plaintiff had simply sent a cheque for $170,000 in response to the January 12 th ‘acceptance’, the outcome may have been different. But, in the circumstances, and with these loose ends that were never tied up, there never was a complete binding deal. Disposition [ 25 ] The Defendant’s application is allowed. The Plaintiff’s application is dismissed. The action is dismissed. I am grateful to counsel for their clear presentation of the issues. Each side will bear their own costs.

Heard on the 2 nd day of November, 2017. Dated at the Town of Peace River, Alberta this 9 th day of November, 2017. W.S. Schlosser M.C.Q.B.A. Appearances: Paul W. Messner Messner Gelineau for the Plaintiff Carter D. Greschner Bryan & Company for the Defendant