Quinton v Wynder, 2017 ABQB 72

Court of Queen’s Bench of Alberta Citation: Quinton v Wynder, 2017 ABQB 72 Date: 20170201 Docket: 1006 00560 Registry: Lethbridge Between: Terrance George Quinton and Joan Quinton Plaintiffs - and - Helen Wynder, Helen Wynder Personal Representative for the Estate of Cecil Duane Wynder and Nedra Johnson Defendants _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice R.A. Jerke _______________________________________________________ Introduction [ 1 ] Duane and Helen Wynder married and lived on a ranch near Mountain View.

They adopted three children: daughter Joan (Quinton), son Jamie (Wynder) and daughter Nedra (Johnson). Theirs was a traditional marriage where Duane was primarily responsible for the ranching operation and Helen was responsible for the home and children. [ 2 ] Helen’s family started the ranch before 1900 and the Wynders purchased the ranch land, referred to in this action as parcels 2-5, from them.

Duane and Helen lived on the home quarter, parcel 2, on which was also located an old pink house known as "Grandma Webster’s house.” The land was purchased in Duane’s name alone and transferred into the joint names of Duane and Helen in 1984. Duane also purchased other land referred to in this lawsuit as parcel 8, which is adjacent to parcel 2; parcel 6; and the “Parklands.” Parcel

1 was subdivided from the balance of the home quarter in parcel 2 due to road construction. [ 3 ] Joan married Terry Quinton and in 1973 they moved to the ranch, at first into a mobile home placed on parcel 2. From then on both Joan and Terry worked alongside Duane in the ranching operation. Their children also helped out. [ 4 ] In 1981 Terry and Joan built a home on parcel 8. Duane transferred parcel 8 jointly into his and Joan’s names in 1984 by gift. The affidavit of transferee states the value of the land to be $32,000.00.

Parcel 8 was transferred into the names of Terry and Joan in 1995 for $32,000.00: no claim is made to parcel 8 in this action. Access to parcel 8 is currently through parcel 2. [ 5 ] In 1993, Duane sold the Parklands. In 1996 Duane and Helen sold parcels 3, 4, 5 and 6 to Terry and Joan by way of an Agreement for Sale for $135,000.00 payable by annual $10,000.00 payments. Terry and Joan filed a Caveat and made the payments in 1996 and 1997.

The existence and enforcement of the Agreement for Sale is one of the central issues in this litigation. [ 6 ] Duane died suddenly as a result of a motor vehicle accident in May 1998 and Helen took title as surviving joint tenant to parcels 1, 2, 3, 4, 5, and 6. The titles to parcels 3 to 6 remained subject to the Caveat for the Agreement for Sale. [ 7 ] In October 2008 Helen transferred title to parcels 1 to 5 jointly into her and Nedra’s names. The titles to parcels 3 to 5 are all subject to the Caveat for the Agreement for Sale. [ 8 ] In mid-2009 Terry and Joan learned of the transfers.

Serious family discord ensued. The Quintons, the Johnsons and Helen met with their Church Leader, Dr. Low, in early 2010 in an effort to achieve family resolution. Helen transferred parcel 6 to Joan after the meeting. [ 9 ] Some of the claims and counter-claims were not pursued at the trial and were clarified in the written arguments.

The Quintons now seek title to parcels 3, 4 and 5 without further payment under the Agreement for Sale; title to parcels 1 and 2 or a quantum merit award; and damages for loss of use of the lands. [ 10 ] Nedra and Helen seek dismissal of all of the Quintons’ claims; discharge of the Caveat on the Agreement for Sale; possession of all of the lands; and damages. [ 11 ] Resolution of this dispute requires consideration of these questions: • Was there a settlement agreement after the meeting with the Church Leader in 2010? • Are Helen and Nedra estopped from requiring payment of amounts owing under the Agreement for Sale? • How are the rights and obligations of the parties under the Agreement for Sale affected by the Limitations Act ? • What is the appropriate remedy under the Agreement for Sale? • Was there an agreement concerning the home quarter? • Do the Quintons have a claim for unjust enrichment? • Do the Quintons have a claim for adverse possession? • Who is entitled to the reclamation funds held in trust? [ 12 ] At its heart, this dispute is about the expectations of Joan and Terry on the one hand, and Helen’s ability to exercise her own choice about the devolution of her estate on the other. [ 13 ] Helen did not have power over Joan within the context of their adult mother-daughter relationship, and neither Joan nor Terry can be said to be vulnerable to her other than the vulnerability every child has to the free will choices of a parent as to the parent’s estate.

The Wynders chose to invite the Quintons to live and work at the ranch and the Quintons chose to do so. So the relationship is not a fiduciary one. [ 14 ] In

summary, I find that Joan and Terry are entitled to a transfer of parcels 3, 4, and 5 upon payment of the amounts owing under the Agreement for Sale. The amounts owing are the remaining $115,000.00 of the original purchase price; all property taxes and other charges related to these 3 parcels from November 1, 2009 onward; and interest from November 1, 2009. I find that Joan and Terry are not entitled to a transfer of parcels 1 and 2 because they have failed to prove an agreement or that the Wynders have been unjustly enriched. The claim for a quantum meruit or constructive trust award therefore likewise fails.

The Quintons have not shown that they have had exclusive possession of the land so their claim to adverse possession fails. The $15,000.00 in reclamation funds currently held in trust are to be paid in accordance with my directions in paragraph 143. If costs cannot be agreed, they may be spoken to within 30 days. [ 15 ] In light of my finding that Joan and Terry are not entitled to parcels 1 and 2, Helen was entitled to exclude or limit their use of her lands. The Quintons’ claim to loss of use of parcels 1 and 2 is dismissed. The Facts [ 16 ] Terry started work for Parks Canada in 1969.

He held a number of full-time positions at Waterton Park, and was finance officer, a senior management position, when he retired in 2007. He was called back a few times up until 2014. Joan also had work off- ranch. She worked part-time for Parks Canada in the 1970’s and then full-time in the 1980’s, until about 1992. She worked at the

Cardston Hospital from about 1995 on. Joan and Terry have 2 children: Michael, 44, and Travis, 28. [ 17 ] Joan grew up on the ranch. She has fond memories of working with her grandfather and father in many outdoor ranching activities. She and Terry had discussions with Duane and Helen, who invited them to move onto the ranch. At first they lived in a mobile home on parcel 2. Terry and Joan planned to build a home on parcel 2, but could not do so because of land use restrictions. So in 1981 they put in services and built on parcel 8.

The cost of construction was obtained by financing, for which Duane co-signed, but Terry and Joan paid the loan. It was not until 1984 that Duane transferred title jointly to himself and Joan, and 1995 when Duane and Joan transferred title to Terry and Joan. The Wynders paid the taxes related to the land (not the home, the Quintons paid those) until title was transferred to Terry and Joan. [ 18 ] Nedra married Bruce Johnson and in 1985 they moved to the ranch, at first into Grandma Webster’s house on parcel 2.

They thought they would build a house on the Parklands, so Duane and Helen transferred a 17 acre portion from the Parklands to Duane and Nedra in 1986 for $3,000.00. In 1993 Duane and Helen sold the Parklands, including the 17 acre subdivided parcel. About $3,000.00 of the sale proceeds were paid to Nedra’s benefit. [ 19 ] Duane created parcel 7 in 1991. This parcel, about five acres, was subdivided from parcel 2 and transferred to the Johnsons in 1991 by gift. The Johnsons built a home on parcel 7. An easement for access to parcel 7 was granted over parcel 2.

Part of a dog kennel constructed in 2006 by the Johnsons on parcel 7 extends onto parcel 2. No claim is made to parcel 7 in this action. [ 20 ] The Wynders’ ranching operation was commonly referred to as “Duane’s ranch” and the Quintons’ cattle as “Terry’s.” Despite this distinction, the cattle were all co-mingled and the Wynder and Quinton ranches were run together as a joint ranching operation.

Nedra had some cattle which were also comingled in the joint ranching operation. [ 21 ] According to the evidence before the Court the only time Duane worked off-ranch was some seasonal work at Parks Canada from 1976 to 1983. Other than in 1991 (heart problems) and 1993 (prostate cancer) when health issues prevented or restricted Duane from working for a while, he was fully engaged in all aspects of the joint ranching operation right up to the time of his death. [ 22 ] The Wynders kept about 80 head of cattle on the ranch.

The Quintons started with 2 head in 1973, increased to 5 head by 1978, 12 head by 1981, and 16 head by 1991. In 1994 the Wynders reduced their herd to 40 head and the Quintons increased theirs to 40 head. [ 23 ] Like Duane, the Quintons contributed labour to the joint ranching operation from 1973 on. No outside help was hired during Duane’s health problems, and the Quintons kept everything going. And after Duane died, the Quintons provided all of the labour related to the joint ranching operation.

They also continued to mow Helen’s lawn, do her gardening, mow the ditches, plant flowers and plough the jointly used access road to Helen’s home. [ 24 ] From 1973 right up until June 2010 the ranching operation was operated in basically the same way: calving took place on parcel 8, and the cattle were winter-fed on parcel 2 and pastured on parcels 3, 4, and 5. Parcel 6 was used mainly for hay production but so were parcels 1 and 2. Terry also made hay from the ditches. Access to dug-out water for parcel 8 was over parcel 2, and vehicle access to parcel 8 was over parcel 2.

All of the equipment and expenses were shared between the Quintons and Wynders more or less equally until 1998, although each of them paid some of their own expenses. However, sometimes the Quintons paid expenses for the benefit of the Wynders, and sometimes the Wynders paid expenses for the Quintons’ benefit. After Duane’s death, Terry and Joan paid most of the expenses for Helen’s remaining 40 head of cattle until she sold them, mostly to the Quintons, in 2000.

After that Terry and Joan operated their own, expanded cattle operation, in about the same manner that Terry and Duane had done in the shared operation from 1973 to 1998. [ 25 ] Although all the cattle were managed and kept together from 1973 onwards, revenues were kept separate: the Wynders took all the revenue from Duane’s cattle, and the Quintons kept all the revenue from Terry’s. The Quintons did not pay rents for any of the lands, nor did they share any of the profits from excess hay sales.

The Wynders did not pay anything to the Quintons for the use of parcel 8 after it was transferred to the Quintons in 1995. [ 26 ] The Wynders paid the property taxes on parcels 1 to 5 right to today.

The Wynders also paid the taxes on parcel 6, but the Quintons began paying the water taxes on parcel 6 in 2000, and the land taxes after title was transferred to Joan in 2010. [ 27 ] After 2000, and without consulting Helen, Terry tried raising buffalo for a brief time, and allowed his brother to run a few head of cattle on the ranch for a period of time. [ 28 ] Even after her father’s death Nedra continued to own cattle, about 6 head, until her last cow was sold in late 2007 or early 2008.

Terry looked after and provided all the labour and expenses related to Nedra’s cattle from 1998 to 2008, yet Nedra received all of the proceeds from their sale as she always had. [ 29 ] Both Bruce and Nedra testified that they had no real responsibilities on the ranch, although they did help out from time to time. The Johnsons built a pump house and a basic shop on parcel 2 before Duane died. These were used by the Johnsons, the Wynders, and sometimes the Quintons. The dog kennel was built after Duane died. The Quintons did not object to any of these activities.

They did object when the old barn was removed and new corrals and related structures were built in 2009. [ 30 ] Helen was diagnosed with dementia in October, 2011. She was not questioned and did not testify at trial. But several people gave evidence regarding her comments, behaviour and actions: Joan; Terry; Nedra; Bruce; Nadine (Helen’s sister-in-law); Michael, Travis and Lacey, (the children and daughter-in-law of Joan and Terry); and Jesse Wilde, Helen’s solicitor. [ 31 ] Joan testified that Helen found the time after Duane’s passing difficult. She had an abrasion on her leg which required medical treatments.

She lived with Terry and Joan for a week or 10 days. Then she continued to live in the home she and Duane had on parcel 2. Joan thought that she and her mother remained close, and Joan and Terry would take her to Cardston, Calgary, the US, and to various medical appointments. Joan noticed a change in her mother she called “widow’s syndrome”: she was lonely and would call Joan at work

3-4 times a day. In late 2008 or early 2009 the three to four telephone calls per day became less frequent and then stopped. [ 32 ] Joan testified that she and Terry traditionally hosted everyone for Christmas Eve dinner. But something seemed strained to Joan at the 2008 dinner. And she also noticed that Helen seemed to be getting more verbal and demanding, for example she became quite vocal at their son’s volleyball games. Helen also stopped sitting with Terry and Joan in church.

And she stopped having Joan do her hair. [ 33 ] In May 2009 Terry and Joan returned to the ranch after being away a few days to find the Johnsons had torn down the old barn and built a horse corral on parcel 2. Joan went to see her mother to ask what was going on and whether the land had been put in someone else’s name. Joan learned that parcel 2 had been transferred into a joint tenancy between Helen and Nedra.

The conversation went very poorly and that is the last time Joan spoke with Helen alone. [ 34 ] Terry discussed the transfer several times with Helen, who told him she made the transfer because the Quintons would not let others on the land. He still considered his relationship with Helen to be cordial, but I am satisfied there was a detrimental change after Terry saw the barn torn down and the new corrals built. [ 35 ] The Johnsons and the Quintons had always had a good relationship, and they met at Thanksgiving, 2009 to try to work out their differences, but were unsuccessful.

Around this time it became known that more of the land had been transferred into Nedra and Helen’s names. [ 36 ] Helen moved into Nedra’s home in the fall of 2009. Sometime after learning that parcels 1, 2, 3, 4, and 5 had been transferred into the names of Helen and Nedra, Terry spoke with Nedra to seek information and explore a possible resolution. He testified he also spoke briefly with Helen. No resolution was made, and it was then that Terry, Joan, Bruce, Nedra and Helen met with their Church Leader, Dr.

Low, in February, 2010. [ 37 ] After that meeting, Terry had conversations with Helen in March 2010 when Helen transferred parcel 6 to Joan. Terry testified that he understood he was to continue operations as usual, and he did so until he received a letter from Helen’s solicitor in June, 2010 imposing “rules and regulations” related to parcels 1 and 2.

Interpretations, misinterpretations, and misunderstandings prevailed to the point where the RCMP became involved. [ 38 ] Terry and Joan have had no contact at all with Helen since Mother’s Day, 2010. They believe they are not permitted to visit her in the facility in Cardston where she lives. [ 39 ] Helen’s sister-in-law Nadine testified that at first after Duane died Helen would say that she did not know what she would do without Terry and Joan. After she moved in with Nedra, Helen and Nadine’s frequent telephone contact began to reduce, and then it stopped.

Helen and Nadine still visited, and during those visits Helen told Nadine she did not know what she would do without Bruce and Nedra. [ 40 ] Travis is Terry and Joan’s younger son. He recalls his grandmother Helen coming to his volleyball games until about the time Helen moved in with Nedra. Then in 2010 Travis thought a sad thing happened at church. Travis offered Helen a ride home and she said that Nedra would not allow it. A while later Travis observed a neighbour bringing his grandmother home. [ 41 ] Michael is Terry and Joan’s eldest son.

He had a very close relationship with Helen when he was a young boy and into his high school years. Michael married and moved away, but Helen told him that if he ever came back he could live in her house. He did come back in 2009, but she then told him she was not ready to move out. Shortly after that one of Bruce and Nedra’s children and family moved into Helen’s house and a little later she moved out and into Bruce and Nedra’s home. After Michael learned that land had been transferred into Nedra’s name, Helen spoke to him at church and at their home.

She seemed confused and unsettled about what had happened and whose name was on what title. Michael suggested that she see her lawyer, to which she agreed, so Michael booked an appointment for her. Helen later told him she had cancelled the appointment but she agreed she would like an appointment, so Michael booked a second appointment. He understood it too, was cancelled. [ 42 ] Lacey is married to Michael. Lacey testified that she and Michael moved back to the Mountain View area in 2009. She saw Helen often from 2009 to2013 at church, in her own home, and in Helen’s home.

Helen appeared not to know, “what she had done wrong.. She was unsure of whose name various parcels of land were in; she would repeat the same question; and she wanted Joan’s love. By 2012, after she had been diagnosed with dementia, Lacey thought she was particularly confused. [ 43 ] While the Quintons testified that they noticed a change in the relationship with Helen starting around 2008, Nedra testified that she observed that the relationship Helen had with Joan and Terry began to change in about 2002.

In 2002 Helen’s son Jamie died; Nedra thought Helen seemed to take this even harder than Duane’s death and she was very sad. Nedra observed Helen and Bruce became closer after Jamie’s death. [ 44 ] Nedra testified about her observations of Helen. She stated that Helen saw the Quintons take over more and more of the ranch and she would say, “It’s still my land.” Helen perceived there were things going on at the ranch into which she had no input.

She began to become irritated by small things which were unchanged from many years before: she did not like Terry’s tractor plugged in at the pole near the old barn; she did not like quads driving by; she was concerned about the placement of the fuel tanks on parcel 2; she was upset because she was not consulted about haying. From 2002, and increasing to 2010, Nedra helped Helen with laundry, had her for Sunday dinner, and took her to appointments. Joan continued to help out during this time as well. [ 45 ] Helen did not tell Nedra about the transfer of parcels 1 to 5 into her and Nedra’s joint names in 2008.

She also did not tell her about the contents of her Wills. Nedra testified that after it became known to the Quintons that lands had been transferred hard words were spoken. She said the Quintons’ relationship with Helen and hers with them has been fatally harmed. [ 46 ] Nedra also testified that she observed Helen was “getting older” but she did not notice real cognitive changes until 2011 to 2012 when Helen’s memory was more of a problem. She was still driving a little. By October 2011 Dr. Stewart opined that she had anxiety, depression, and dementia.

Nedra did not observe any behavioural issues but Helen moved into a lodge in Cardston in June, 2012,

and in 2015 was moved into a higher level care facility. [ 47 ] Nedra’s husband Bruce testified that he had a good relationship with Duane, Helen, Joan and Terry, and stated that after Jamie died Helen became more involved in the Johnson’s life. Bruce observed that Helen became agitated and frustrated in dealings with Joan and Terry but she did not say why their relationship was strained. She became more vocal about vehicle activity around the house and where Terry was fixing the cutter. Helen was very upset after Joan confronted her following the removal of the old barn.

Bruce testified that Helen did not like that the Quintons thought they owned everything, and Helen did not want to be excluded from the operations of the ranch. [ 48 ] Mr. Wilde and his firm have been Helen’s solicitors for many years. In 2005 Helen made a Will which contemplated a subdivision of parcel 2. There were bequests of the western half of parcel 2 and parcel 1 to Nedra, and the eastern half of parcel 2 plus parcels 3, 4, 5, and 6, to Joan. But in 2007 Helen expressed concern about family discord, and she concluded Joan felt entitled to the land. Mr.

Wilde understood there was some kind of personal conflict between Joan and Helen which strained their relationship but he had no particulars. She made a new Will which gave Joan parcel 1 and gave Nedra all the rest of the land. She was very unhappy and wanted to go to be with Duane. [ 49 ] In April 2008 Helen was still searching for peace in her family. She made a Will which gave Nedra parcels 1 to 5 and Joan parcel 6. It included life-time rights for Joan to graze cattle on parcels 3, 4, and 5. [ 50 ] In August, 2008 Mr.

Wilde received instructions to prepare the transfer of parcels 1 to 5 to Helen and Nedra jointly but he was “fuzzy” on why she wanted to do it. Parcels 3 to 5 were transferred subject to the Caveat on the Agreement for Sale, but Mr. Wilde has no recollection of any discussions concerning the pre-existing Caveat. [ 51 ] In March, 2010, after the family members met with Dr. Low, Mr. Wilde prepared a transfer of parcel 6 to Joan on instructions from Helen. She was embarrassed that a family dispute had to go to her Church Leader. Mr.

Wilde swore the affidavit of transferee on behalf of Joan and the transfer was registered. Mr. Wilde testified that his goal was to protect Helen. [ 52 ] In May, 2010 Helen returned to discuss further changes to her Will. About a week later, before a new Will was made, she came in with further changes. In her May, 2010 Will, she confirms the transfer of parcels 1 to 5 to Nedra in the “hope that she will continue to hold this land in the family and provide my extended family with the opportunity to continue to use these parcels for recreational purposes, and also allow ...

Joan ... the opportunity to continue to graze her cattle on the ... parcels ... within the sole discretion of ... Nedra.” [ 53 ] Mr. Wilde did not have any concerns about Helen’s mental capabilities throughout these dealings. The last time he saw Helen was in 2010. Was there a settlement agreement after the meeting with the Church Leader in 2010? [ 54 ] The Defendants contend a settlement agreement was reached during the February 2010 family meeting with Dr. Low. The onus is on the Defendants to prove an agreement on the balance of probabilities.

The Defendants rely on oral evidence and the fact that Helen transferred parcel 6 to Joan after the meeting. [ 55 ] I find that the Defendants have failed to show that there was an agreement made that the transfer by Helen to Joan of parcel 6 was in full satisfaction of the Plaintiffs’ claims. [ 56 ] The Johnsons, Quintons, and Helen are members of and leaders in the Mormon Church so they all agreed to attend a meeting on February 9, 2010 with their Church Leader, Dr. Low. [ 57 ] No notes were taken at the meeting. No written agreement was prepared after the meeting. A written release was not discussed.

There is no evidence of discussion about a discharge of the Quintons’ Caveat for the Agreement for Sale. Dr. Low did not testify. [ 58 ] At the time of the meeting with Dr. Low parcel 6 was in Helen’s name alone and subject to the Caveat for the Agreement for Sale. At that time Helen’s current Will was the one she made in April of 2008 and it bequeathed parcel 6 to Joan. The Caveat, Agreement for Sale, and the Will were not discussed at the meeting.

Nedra testified that it was decided at the meeting that parcel 6 would be transferred to Joan and she understood that the remaining titles would remain in her and Helen’s names until Helen’s death. She testified that in March when Terry came to pick up Helen to go into Lethbridge to sign the transfer she asked Terry, “If Helen signs, are we over and done with?”, and she says Terry confirmed they would be satisfied. Terry denies saying that. [ 59 ] Bruce testified that the meeting with Dr. Low was about resolution of a family dispute, not legal issues.

He stated that during the meeting they talked about parcel 6 and Helen agreed to transfer parcel 6 to Joan. But after the meeting Helen indicated she was not going to do it and Bruce had doubts that she would actually do so. His

summary of the meeting was that it did not go well, but Helen did transfer parcel 6 to Joan as an attempt to resolve the family dispute. [ 60 ] Both Terry and Joan deny that any agreement was made at the meeting. [ 61 ] After the meeting Helen spoke with Mr. Wilde. He testified that she told him she had been in a meeting and had agreed to transfer parcel 6 to Joan. She said she didn’t like it but would do so as she wanted to create some family peace. [ 62 ] Terry took Helen to Mr. Wilde’s office to sign the transfer on March 11, 2010. The transfer was not made to Terry and Joan

under the Agreement for Sale: it was made to Joan in consideration of the sum of ONE ($1.00) dollar. Mr. Wilde swore the affidavit oftransferee on behalf of Joan but he had no discussions with Terry or Joan concerning the transfer. Mr. Wilde was never instructed toprepare a settlement agreement or release: he testified they were never discussed. [63] Mr. Wilde then sent the Quintons a demand letter on June 1, 2010 in regard to the home quarter. The letter refers to Helen asthe “beneficial owner”, but gives no explanation as to why this type of ownership is mentioned.

The letter makes no mention of asettlement agreement or resolution. The letter imposes rules and regulations about the “little horse pasture”, relocation of gas tanks,parking of equipment, and a rental agreement to pasture cattle. Terry testified that he complied with the letter and continued the ranchand hay operations as usual until the RCMP advised he was not permitted on parcel 2. [64] Considering this evidence as a whole I cannot find that a settlement was reached at the February 9th, 2010 meeting andevidenced or completed by the transfer of parcel 6 to Joan. There are several reasons for this.

First, the evidence of Bruce and Nedracertainly does not point to an unambiguous agreement with clear terms, and in fact, it is not even consistent as to what was discussed andconcluded. The Johnsons’ evidence is also inconsistent with that of the Quintons, both of whom deny any agreement was reached. Third,the Quintons’ actions are consistent with their evidence that no agreement was reached; they continued ranching all the lands just as theyhad the past thirty-seven 37 years.

Fourth, the actions of Helen are consistent with an effort to achieve family accord in the context of on-going discord, as described by Bruce, rather than implementation of a final resolution. And very significantly there is nothing from Mr.Wilde to support the proposition that settlement of all land use and ownership issues was achieved. [65] I must therefore consider the claims made in respect of the individual parcels.

Are Helen and Nedra estopped from requiring payment ofamounts owing under the Agreement for Sale? [66] It was only after the Quintons commenced these proceedings that the Agreement for Sale document was located. Nedra foundit in one of her family’s books. [67] Executed in 1996, the Agreement for Sale required the Quintons to make annual payments of $10,000.00, due on November 1st of each year commencing November 1996. The Quintons made the payments in November 1996 and November 1997. Duane died inMay 1998. At that time there was a balance owing under the Agreement of $115,000.00.

Nothing has been done pursuant to theAgreement for Sale since that time, and the Caveat registered to give notice of its existence still remains on parcels 3, 4, and 5. [68] None of the parties to this action dispute the validity or enforceability of the Agreement for Sale at the time it was made. Theissue is the validity and enforceability of the Agreement for Sale now, more than 19 years after the last step pursuant to the Agreementfor Sale was taken. [69] The Agreement for Sale relates to parcels 3, 4, 5 and 6. Parcel 6 was voluntarily transferred by Helen to Joan in 2010.

BothTerry and Joan knew of this transfer, and accepted it. There is no evidence, and it was not argued, that the transfer was meant to amendany terms of the Agreement for Sale. I find that the transfer did not alter any of the terms of the Agreement for Sale, including the termsfor payment of the remaining purchase price. [70] The Plaintiffs contend that the Defendants are estopped from requiring payment of the balance under the Agreement for Salebecause Helen told Terry in June 1998 that payments were not required, and in reliance on this statement, Terry and Joan made nofurther payments.

I find that the Helen did not forgive the payments owing under the Agreement for Sale such that the Defendants areestopped from requiring the payments to be made.

I find that the evidence falls short of establishing, on the balance of probabilities, thatHelen made a promise intended to affect legal relations. [71] In John Burrows Limited v Subsurface Surveys Limited et al, (SCC), [1968] SCR 607, 68 DLR (2d) 354,the Court at pp 615-616 stated the following: In the case of Combe v Combe, Lord Denning recognized the fact that some people had treated his decision in the High Trees case ashaving extended the principle stated by Lord Cairns and he was careful to restate the matter in the following terms: The principle, as I understand it, is that where one party has, by his words or conduct, made to the other a promise or an assurance whichwas intended to affect the legal relations between them and to be acted on accordingly, then, once the other party has taken him at hisword and acted on it, the one who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relations asif no such promise or assurance had been made by him, but he must accept their legal relations subject to the qualification which hehimself has so introduced, even though it is not supported in point of law by any consideration, but only by his word.

It seems clear to me that this type of equitable defence cannot be invoked unless there is some evidence that one of the parties enteredinto a course of negotiation which had the effect of leading the other to suppose that the strict rights under the contract would not beenforced, and I think that this implies that there must be evidence from which it can be inferred that the first party intended that the legalrelations created by the contract would be altered as a result of the negotiations. [Emphasis added.] [72] In the more recent case of Maracle v Travellers Indemnity Co of Canada, (SCC), [1991] 2 SCR 50, JusticeSopinka, delivering the judgment of the Court, re-affirmed the principles set forth in John Burrows, quoting the above-noted passagefrom Justice Ritchie.

He then went on to state at page 3: This passage was cited with approval by McIntyre J. in Engineered Homes Ltd v Mason, (SCC), [1983] 1 SCR 641 atp 647. McIntyre stated that the promise must be unambiguous but could be inferred from circumstances.

[Emphasis added] [ 73 ] The Plaintiffs’ position depends on the oral evidence of Terry. He testified in chief that at a meeting in June 1998 with the Accountant, Ron Johnson, Helen told him the loan was forgiven. He testified that she said she was not interested in them paying any more on the loan. They talked about capital gains tax which she did not want to pay at that time. Joan was not present at this meeting. Terry testified that the Quintons understood they did not have to continue with payments.

They did offer on a number of occasions to pay the property taxes and to pay Helen rent which Terry said she refused as there were tax consequences and her income related benefits would be affected. Helen never requested any payment on the Agreement for Sale after that. [ 74 ] There is some difference between Terry’s evidence in chief and during cross-examination. In cross-examination he agreed that both he and Helen heard, from Mr. Johnson, that the land was going to the Quintons and any remaining debt was forgiven.

He testified that Helen agreed with that. [ 75 ] Terry’s inconsistent evidence on this meeting is unreliable. I was left unclear whether he meant that Duane ‘forgave’ the payments and Helen later agreed, or Helen ‘forgave’ the payments after Duane died. Beyond that questions remain including what if anything did Duane forgive? What did Mr. Johnson say? What did Helen agree to? [ 76 ] None of the parties argued the significance or effect of the continued registration of the Caveat giving notice of the Agreement for Sale.

And the Quintons never asked for a transfer, nor did Helen ever offer one. [ 77 ] In the result, there are a number of uncertainties and questions raised by the evidence and by the absence of evidence: • It is unclear specifically what Helen was referring to. Was it forgiveness of all the monies owing under the Agreement for Sale? Or just that year’s payment? Or was it deferral of a payment or the payments for some period of time? • Helen never demanded the payments under the Agreement for Sale and she later transferred parcels 3, 4 and 5 to herself and Nedra subject to the Caveat.

It is just as plausible that Helen never demanded the payments because she forgot about the Agreement for Sale, and forgot that any money was owed to her as opposed to her having expressly forgiven payment of the amounts owing. Another possibility is that she wanted the payments to go to Nedra on her death. • Terry testified that he understood that he and Joan were entitled to a transfer under the Agreement for Sale without making any further payments. But the Quintons never requested a transfer until these proceedings were commenced in 2010. Why didn’t they do so if the indebtedness was wiped out?

Is this consistent with the other discussions that they would receive the land, on some basis, once both Duane and Helen died? • The Quintons offer to pay Helen the taxes and rent is inconsistent with full ownership of the land by Quintons. [ 78 ] Here, Helen’s statement as reported by Terry, if it amounted to a promise, is not unambiguous. It is uncertain as to what was actually stated.

And the surrounding circumstances are just as consistent with an inference that Helen was unclear about the status of the legal relations concerning parcels 3, 4, 5 and 6 as they are with an inference that she intended to alter the legal obligations of the Plaintiffs to make payments under the Agreement for Sale. [ 79 ] I find the estoppel argument fails. How are the rights and obligations of the parties under the Agreement for Sale affected by the Limitations Act ? [ 80 ] The Defendants, as vendors under the Agreement for Sale, seek in rem relief.

The statement of defence states, “...in the event parcels 3, 4, and 5... were sold to the plaintiffs pursuant to an Agreement for Sale....the plaintiffs have failed to comply with the provisions for payment...in the Agreement for Sale ...and ...the plaintiffs are in breach of the Agreement for Sale and the defendants seek to have the Caveat ...discharged”.

In the counterclaim the defendants state, “The proper remedy...is an order directing discharge of the Caveat registered in respect of parcels 3, 4, and 5, ...and an order directing the [plaintiffs] vacate the subject lands...” [ 81 ] The Agreement for Sale provides, ‘....at or for the price or sum of ONE HUNDRED THIRTY-FIVE THOUSAND ($135,000.00) DOLLARS...in the manner and on the days and times hereinafter mentioned, that is to say: the sum of TEN THOUSAND ($10,000.00) DOLLAR ON November 1, 1996 and the balance as follows: The sum of $10,000.00 on November 1 st in each and every year hereafter until the said purchase price is fully paid without interest.’ [ 82 ] When the Agreement for Sale was entered, the Quintons acquired legal and equitable rights as purchasers.

They also acquired the right to possession and have been in possession since the agreement was executed. The agreement provides: UPON PAYMENT of all the monies herein agreed to be paid by the Purchaser, and upon performance by him of the other covenants herein by him agreed to be performed, the Vendor covenants and agrees with the Purchaser to convey or cause to be conveyed to the Purchaser, by Transfer under the Land Titles Act, the said parcel of land and privileges and appurtenances thereto belonging, free and

clear of all encumbrances...which transfer shall be prepared by the Vendor’s Solicitor at the expense of the Vendor. [ 83 ] The Wynders, as vendors, retained legal ownership and legal rights against the purchasers.

The Agreement for Sale provides: SHOULD the Purchaser at any time make default in any of the payments herein by him agreed to be paid or any part thereof, or should he otherwise fail to observe any of the covenants by him agreed to be performed, then, in such case or on such default, the Vendor shall be at liberty at his option after such default either to declare this agreement determined and at an end and retain all sums paid and all improvements made on the said lands, or to proceed to sale of the said lands...and pay the surplus to the Purchaser after satisfying the said indebtedness and the costs and charges of the Vendor or his solicitors or agents, and should there be a deficiency the same shall be payable by the Purchaser.

The Vendor shall also be entitled to take possession of the said premises and occupy and enjoy the same and remove the Purchaser therefrom. [ 84 ] The Limitations Act , RSA 2000, c L-12 provides as follows: 3(1) Subject to subsections (1.1) and (1.2) and

section 11, if a claimant does not seek a remedial order within (a) 2 years after the date on which the claimant first knew, or in the circumstances ought to have known, (

i) that the injury for which the claimant seeks a remedial order had occurred, (ii) that the injury was attributable to conduct of the defendant, and (iii) that the injury, assuming liability on the part of the defendant, warrants bringing a proceeding, or (b) 10 years after the claim arose, whichever period expires first, the defendant, on pleading this Act as a defence, is entitled to immunity from liability in respect of the claim. [ 85 ] The limitation period where a mortgagee seeks an in rem remedy is two years. Daniels v Mitchell , 2005 ABCA 271 ; Blair v Desharnais , 2005 ABCA 272 .

The Court of Appeal has applied a two year limitation when a purchaser sought an in rem remedy under an offer to purchase: Another Look Ventures Inc. v 642157 Alberta Ltd ., 2012 ABCA 253 . Applying those principles, I find that vendors by way of an Agreement for Sale are likewise bound by a two year limitation period. The claimant, must seek a remedial order within two years from the date the claimant knew or ought to have known the injury for which the remedial order is sought had occurred. [ 86 ] The Limitations Act does not extinguish a debt: if it applies it makes the debtor immune from liability.

Under this agreement when scheduled payments are not made, that does not affect the fact that the entire balance remains outstanding, it is not extinguished: this is one debt payable by annual payments. Nor does a failure to pay an earlier annual payment extinguish the obligation to pay a later one. And non-payment of an annual installment does not trigger an obligation under the agreement on the Defendants to commence a foreclosure proceeding.

The agreement states, [upon default by the purchasers] ‘the Vendor shall be at liberty at his option....to proceed to sale...’ [ 87 ] The Quintons knew they were not paying the annual payments due under the Agreement for Sale. There was a Caveat registered protecting their interests. They knew they were ultimately entitled to a transfer but they never requested one. They said they trusted that Helen would provide a transfer.

Whatever their understanding of their payment and other obligations under this Agreement for Sale, I find that they ought to have known after the last scheduled payment was due, November 1, 2009, that a transfer would not be provided by Helen. The action was commenced on July 6, 2010, well within the two year requirement. The Plaintiffs’ claim is not barred. [ 88 ] The Defendants argued that the Purchasers believed the payments did not need to be made and believed they were entitled to a registerable transfer of lands so the two year limitation period runs from the date of that belief.

I have found that Helen did not forgive the payments owing under the Agreement for Sale so the Quintons belief they were not payable does not entitle them to a transfer. The payments were required before Helen had the obligation to provide a transfer, so the Quintons belief that they were entitled to a transfer likewise does not entitle them to a transfer. They could not, ‘know or ought to know of a claim’ which does not yet exist. [ 89 ] The statement of defence and counter-claim were filed October 7, 2010.

The Plaintiffs contend that because they made no payments under the Agreement for Sale after November 1997, the Limitations Act bars the Defendants’ claim for relief because more than two years have passed since the Defendants knew or ought to know that payments were not being made. [ 90 ] The flaw in the Plaintiffs’ argument is that it states the test too narrowly. The test is whether Helen knew or ought to know that the injury for which she seeks a remedial order had occurred.

Helen did not forgive the indebtedness, and that was in the context of the earlier indications that if Terry and Joan worked the ranch with the Wynders then the Quintons could take over the ranch, or be allowed the ranch, when both Duane and Helen died.

Other factors are relevant here: for example Joan testified that she understood they were to get the land when her parents died, and because they needed cash to live the Quintons agreed to the payments under the Agreement for Sale. [ 91 ] As I have stated above, under this agreement the entire remaining balance of the purchase price remains outstanding until the final agreed payment is made. None of the required annual payments were made after 1997, but Terry testified that he offered to make some payments, rent and taxes, after the June 2008 meeting with the accountant.

And the Quintons never asked for a transfer of the land. Helen did not accelerate the amount outstanding but nor did she ever request a payment. I find that the evidence does not establish that Helen knew or ought to know that the amount owing under the Agreement for Sale would not be paid if she required it until after Joan

confronted her in 2009 about the transfer of the land to Nedra. At that point it was clear that the Quintons would not be making anypayments. But the counter-claim was filed less than two years after that so the Defendants’ remedial claim is not barred. What is the appropriate remedy under the Agreement for Sale? [92] The Plaintiffs have indicated they are ready, willing, and able to pay all amounts owing under the Agreement for Sale andseek specific performance of the agreement.

I am satisfied that specific performance should be granted in this case. [93] The Supreme Court stated in Semelhago v Paramadevan, (SCC), [1996] 2 SCR 415 at para 22 that specificperformance should not be granted as a matter of course “absent evidence that the property is unique to the extent that its substitutewould not be readily available.” [94] This property is unique. The land has been in the family for many years; it is ranch land in close proximity to the Quintons’home quarter; it has been used as a part of an integrated ranching operation.

The Quintons have had the use of the land, with theWynders and without them, for many years. I find that a substitute for this land would not be readily available. [95] Specific performance of an Agreement for Sale cannot be granted if performance of the whole agreement by the seller isimpossible: Klimp v Meinema, 2015 ABQB 204. The Defendants contend that because the lands were transferred into the joint names ofNedra and Helen performance of the agreement is impossible. The flaw in the argument is that the rights of the Plaintiffs are in remrights, and are protected by Caveat.

Both Nedra and Helen are bound by the Caveat and their own interests are subject to those of thePlaintiffs. Basic principles of the Torrens land titles system make the registered in rem rights of the purchaser enforceable against asubsequent transferee. [96] Under the agreement the Quintons agreed to pay $135,000 for parcels 3, 4, and 5 and the Wynders agreed to transfer the landto the Quintons. The terms of the transaction are clearly stated: the remaining principal balance, payable in full, is $115,000.

Thatamount was fully payable by November 1, 2009 and has not been paid. [97] Interest should be payable from November 1, 2009 until paid in full.

The agreement provides that the annual payments will bemade, “... until the said purchase price is fully paid without interest.” The agreement provides that if the purchasers “... make any defaultin payment of principal ... then ... the whole of the principal monies and interest thereon hereby agreed to be paid shall at the option ofthe Vendor at once become due and payable.” Under either scenario the balance of the purchase price is fully due and payable. [98] But there is no provision that sets out the interest payable once the funds are fully due and payable nor is there any provisionthat there is no interest in such a situation.

I find that in these circumstances interest should be paid by the Plaintiffs as purchasers on thesum of $115,000.00 from November 1, 2009 until paid in full. If counsel are unable to agree on the appropriate interest rate it may bespoken to. [99] The agreement is unclear about when the Purchasers become responsible for taxes, rates, levies and charges.

It provides, ‘...itis agreed that all taxes, rates, levies and charges....shall belong to the Vendor up to but not after the * and from and after that date...shallbelong to the Purchaser...’ The parties had an oral agreement in 1996 that the Wynders would continue to pay them. But under theagreement the Quintons are entitled to a transfer after payment of the entire purchase price, which should have been November 1, 2009at the latest. And the Quintons have had exclusive possession of the lands prior to, and since November 1, 2009.

In such circumstances Ifind that the Quintons should be responsible for all such charges from November 1, 2009 on, with interest. If counsel are unable to agreeon the appropriate charges that may also be spoken to. [100] The Quintons shall have 120 days from the date of this Judgment to pay all such amounts owing. Immediately upon makingsuch payments the Quintons are granted relief from the consequences of the non-payment of the purchase price.

They are thenimmediately entitled to receive a transfer of parcels 3, 4, and 5 failing which an order will be granted directing the Registrar of LandTitles to cancel the certificates of title and issue new titles in the names of the Quintons subject only to existing encumbrances registeredin priority to the Plaintiffs’ Caveat. [101] Even if the Defendants were barred from claiming individual installments due prior to October 7, 2008, two years before thecounter-claim was filed, I find that the Quintons remain obligated to pay the entire balance owing under the Agreement for Sale. [102] As stated above, the Limitations Act does not extinguish a debt; it only provides a debtor with immunity from a claim.

But herethe Quintons seek specific performance of the agreement, an equitable remedy. And the Defendants seek cancellation of the Agreementfor Sale, discharge of the Caveat, and possession; an in rem remedy. [103] Enforcement of Agreements for Sale of land is dealt with in

Part 5 of the Law of Property Act, RSA 2000 c L-7. The law thereseeks to balance the claims of the creditor as mortgagee or vendor under an Agreement for Sale, and the rights of the debtor as mortgagoror purchaser under an Agreement for Sale including the right of possession and the equity of redemption.

In particular the Law ofProperty Act provides: 38(1) The Court has jurisdiction and shall grant relief from the consequences of the breach of a covenant or the non-payment ofprincipal or interest by a mortgagor or purchaser in any case in which the mortgagor or purchaser remedies the breach of covenant orpays all the arrears due under the mortgage or Agreement for Sale with lawful costs and charges in that behalf 39(1) Proceedings for recovery of money secured by a mortgage or encumbrance, or to enforce any provision of the mortgage orencumbrance, or sale, redemption or foreclosure proceedings with respect to mortgaged or encumbranced land, may be taken in any courtof competent jurisdiction in accordance with the existing practice and procedure of the court. 41(1) The time to be fixed for redemption by the order nisi in an action for foreclosure of a mortgage and the time to be fixed for

redemption by the order for specific performance in an action on an Agreement for Sale shall, (

a) in the case of farm land, be one year from the date of the granting of the order, and 48(1) The effect of an order of foreclosure of a mortgage or encumbrance is to vest the title of the land affected by it in the mortgagee or encumbrancee free from all right and equity of redemption on the part of the owner, mortgagor or encumbrancer or any person claiming through or under the owner, mortgagor or encumbrancer subsequent to the mortgage or encumbrance, and (

a) the order operates as full satisfaction of the debt secured by the mortgage or encumbrance, and (

b) the mortgagee or encumbrancee is deemed a transferee of the land and becomes the owner of it and is entitled to receive a certificate of title for it.

(2) An order nisi may at any time prior to the sale of the mortgaged land under an order for sale or to the granting of a final order for foreclosure, whichever first happens, be relieved against by a postponement of the day fixed for redemption.

(3) When a judge has postponed the day fixed for redemption no appeal lies except on the ground that the discretion of the judge was not exercised judicially.

(4) No order of absolute foreclosure made in an action is deemed to deprive any court of any power that the court had immediately before May 17, 1919, to reopen the foreclosure. [ 104 ] Under s38(1) the Court, ‘...shall grant relief from the consequences of the non-payment ...by a purchaser...’ This is relief aimed at protecting the purchaser’s equitable interest in the lands. It applies where the purchaser ‘pays all the arrears due under the ...Agreement for Sale with lawful costs and charges in that behalf’.

So where the vendor retains the ability to obtain a judgment, the purchaser retains the right to redeem. [ 105 ] The facts in Bjornson v Jolyn Consulting Services Ltd , 2014 ABQB 187 , referred to by the Defendants, are distinguishable.

There the Plaintiff purchaser filed a Caveat in October 2009, well after the time of the purported agreement; the Defendant vendor refused to transfer the land in November 2009 and the Plaintiff knew that; the Defendant had possession of the land by the spring of 2010; and the statement of claim was filed more than two years after that. [ 106 ] McDonald Estate v Bradshaw , 2005 ABQB 103 is also distinguishable.

The Court there found that the agreements were terminated in 1984, no payments were ever made, no Caveat was ever filed, and the statement of claim seeking to enforce the agreements, filed in 2002, was barred by the Limitations Act . [ 107 ] In this case, there is a written agreement, protected by Caveat and payments have been made since it was executed. The purchasers have been, since the time the agreement was signed, and are still in possession of parcels 3, 4, and 5. The agreement was never cancelled, and the vendor did not require payments or refuse to provide a transfer nor did the purchasers request one.

The relationship of the parties is familial and their history includes provision of benefits and possible benefits to each other. Was there an agreement concerning the home quarter? [ 108 ] The Quintons contend an oral agreement was made with Duane and Helen that in exchange for their work and labour they would receive the home quarter (parcels 1 and 2) when Duane and Helen were both dead. The onus is on the Plaintiffs to prove an agreement on the balance of probabilities. The Plaintiffs rely on the oral and documentary evidence and inferences or probabilities as corroboration of their oral testimony.

The Quintons’ position is summarized in paragraph 141 of their brief. The evidence is consistent with verbal discussions concerning the Quintons “taking over” the ranch. [ 109 ] But I find that significant uncertainties remain after consideration of all of the evidence about whether there was an agreement, and if so what the terms of that agreement were. I find that the Plaintiffs have failed to show that there was such an oral agreement. Issues concerning sufficiency of consideration, and the Statute of Frauds need not be considered. [ 110 ] Joan and Terry moved to the ranch in 1973.

At that time, all the land was in Duane’s name. Terry testified that it was initially discussed with Duane and Helen that they would eventually buy parcel 2 because they would be living there. That changed when the development permit for their home was made subject to set-back conditions (1981). It was then agreed that Terry and Joan would build on parcel 8 and after that, Terry’s understanding was that he and Joan would acquire parcel 2 but no dollar value was put on it. He understood they would inherit it through the estate.

In exchange they would help purchase equipment and put sweat and equity into the ranching operation. Terry testified that there were discussions on various dates, many with Duane and Helen present, but sometimes when he and Duane were alone. [ 111 ] In January 1996 when they entered the Agreement for Sale there was no real discussion about parcels 1 and 2; it remained his understanding they would inherit parcel 2 and Duane and Helen would occupy it until they died.

Terry testified that when a sale was proposed of the parcels under the Agreement for Sale they were ‘kind of’ of the expectation that sweat and labour was due for them, but it was not surprising that a sale was offered because there were other siblings involved.

Terry testified that both Duane and Helen agreed with Terry and Joan acquiring ownership of parcels 1 and 2 after their death. [ 112 ] Joan testified that in the 1970’s she and Terry discussed with Duane and Helen that if they worked alongside them and did whatever was required as long as Duane and Helen were alive, they were allowed the land for their labour. She says she, Terry, Duane, and Helen had an agreement that they were to work for the land which the Quintons would get at the time of their death.

But a number of the facts are inconsistent with the broad agreement Joan articulated: • In 1981 Joan and Terry built their home on parcel 8 assisted by financing which Duane co-signed for. Title was transferred by

Duane to himself and Joan in 1984 and then in 1995 title was transferred to Joan and Terry in consideration of their payment to Duane of$32,000. • Parcel 7 was sub-divided from parcel 1 in 1990 and transferred in 1991 by way of gift to Nedra and the Johnsons built their homethere. An easement was granted in their favor over parcel 1. Duane never consulted with Terry about his dealings with Johnsons.

TheQuintons made no objection to the sub-division. • The Johnsons made use of and improvements to parts of parcel 2: a shop, pump-house, and tack shed were built, GrandmaWebster’s house was demolished, a cattle guard and culvert were installed, and a dog kennel was constructed on parcel 7 which extendedonto parcel 2. The Quintons made no objection to this. Many of these activities occurred while Duane was alive. • Parcels 3, 4, 5, and 6 were sold to the Quintons by way of the Agreement for Sale in 1996.

They not only did not object to payingfor these parcels; they agreed to do so and actually made payments. [113] Helen could not testify in this lawsuit: her memory become more of a problem after the material events in this action had takenplace. So her actions, particularly those prior to any real concerns about her memory problems, are very relevant circumstances toconsider. Helen may have forgotten about the Agreement for Sale. In her 2007 Will she gave parcels 3, 4, 5, and 6 to Nedra. In 2008 shetransferred parcels 3, 4, 5, and 6 to herself and Nedra subject to the Caveat.

She told Nedra about the transfer at Thanksgiving, 2009, butNedra only learned of the Caveat after the Agreement for Sale document was discovered in December 2010 and Helen told her she hadsigned it. [114] Helen made numerous changes to her Will: in 2005 her Will gave parcel 1 to Nedra, and contemplated a subdivision of parcel 2with ½ going to Nedra and ½ going to Joan; in her 2007 Will parcel 1 was given to Joan, and parcels 3, 4, 5, and 6 were given to Nedra;in her 2008 Will parcel 6 was given to Joan and parcels 1, 2, 3, 4, and 5 were given to Nedra with grazing rights to Joan.

In 2008 Helentransferred parcels 1, 2, 3, 4, and 5 to herself and Nedra. In 2010 Helen transferred parcel 6 to Joan and then made a Will which gaveparcels 1, 2, 3, 4, and 5 to Nedra in the hope Nedra would provide Joan grazing rights. [115] In

summary, the evidence of the Quintons as to what the oral agreement actually was is uncertain or ambiguous. Was it forsome of the land? Or all of the land? Was it to be a gift by inheritance? Or sale? At what price? Or in exchange for services to beprovided? The actions of Duane in sub-dividing and transferring parcel 7 to the Johnsons, requiring payment from the Quintons underthe 1996 Agreement for Sale, and permitting the Johnsons to make improvements to parcel 2 are all inconsistent with a contractualobligation to transfer all the land to the Quintons for consideration or by gift.

Helen’s actions in making changes to her Will andtransferring the lands jointly to herself and Nedra are at best, inferential evidence that she may have forgotten that an agreement hadbeen made that the Quintons were to acquire the land. Her actions are equally consistent with the inference that there was no bindingcommitment. [116] I find that the evidence does show that indications were made, perhaps only by Duane but to which Helen conceded, that ifTerry and Joan worked the ranch with the Wynders then the Quintons could take over the ranch, or be allowed the ranch, when bothDuane and Helen died.

But there was no agreement how or under what terms that was to be. The evidence falls far short of proof thatDuane and Helen contracted to give the Quintons the home quarter, or any other land, on their death in exchange for their labour andexpenditures in the ranching operation. [117] It is not necessary to consider the Quintons’ argument that Helen breached an equitable obligation and a duty of loyalty byconveying an ownership interest to Nedra as joint tenants in the face of an oral agreement: there was no oral agreement.

And Helen’sstatement to Bruce to tear down the old barn while the Quintons were away because ‘there would be hell to pay’ when the Quintons sawit is more consistent with Helen exercising her free choice, knowing her decision would be unpopular, than it is with recognition of someequitable obligation. [118] Further, there is no resulting trust here. The aspirations or expectations of the Quintons may have gone beyond this, but I findthat the only common intention of the Wynders and the Quintons proven here is that the Quintons could take over or be allowed theranch when the Wynders died.

There was no common intention of shared beneficial ownership. The terms or conditions upon which theQuintons could take over the ranch were never clarified. The Quintons have not proven that it was intended by the Wynders that theywould, without condition or payment, receive the land after the Wynders died.

Do the Quintons have a claim for unjust enrichment? [119] A Plaintiff seeking to establish a claim of unjust enrichment must show enrichment to the Defendant, a correspondingdeprivation to the Plaintiff, and an absence of any juristic reason for the enrichment: Rathwell v Rathwell, (SCC), [1978]2 SCR 436, Sorochan v Sorochan, (SCC), [1986] 2 SCR 38.

See also Seward v Seward Estate, [1996] AJ No 1132,Meeser v Meeser, 2012 ONSC 7085. [120] I find that although the Quintons provided labour to and paid expenses for the ranching operation they are unable to show thatDuane and Helen were enriched and that there was a corresponding deprivation to the Quintons.

The Plaintiffs have failed to establish aclaim for unjust enrichment. [121] In Meeser v Meeser the Court, citing Kerr v Baranow, 2011 SCC 10 , [2011]1SCR 269 stated this at para 70: For the first requirement – enrichment – the plaintiff must show that he or she gave something to the defendant which the defendantreceived and retained. The benefit need not be retained permanently, but there must be a benefit which has enriched the defendant andwhich can be restored to the plaintiff in specie or by money. Moreover, the benefit must be tangible.

It may be positive or negative, thelatter in the sense that the benefit conferred on the defendant spares him or her an expense he or she would have had to undertake (Peel,at pp 788 and 790; Garland, at paras 31 and 37).

[ 122 ] Duane and Helen had a traditional relationship: Helen was mainly responsible for the children and the home, Duane was mainly responsible for the farm and ranch. Duane and Helen obtained their livelihood from the ranching operation. Terry and Nedra were both fully engaged in the operation of the ranch alongside Duane, on behalf of Duane and Helen when Duane was sick, and on behalf of Helen after Duane died. [ 123 ] The Wynders and the Quintons ran their cattle together in one ranching operation. But they always kept their profits separate. The Wynders kept about 80 head of cattle on the ranch.

The Quintons started with 2 head in 1973, increased to 5 head by 1978, 12 head by 1981, and 16 head by 1991. In 1994 the Wynders reduced their herd to 40 head and the Quintons increased theirs to 40 head. Terry and Joan worked hard on the ranch, but so did Duane. And except for some seasonal work Duane worked full-time on the ranch until he experienced health issues. Terry always worked full time off-ranch, and Joan had off-ranch work much of the time too. [ 124 ] Both the Wynders and the Quintons contributed all their land to the ranching operation. The Wynders contributed parcels 1, 2, 3, 4, 5, and 6.

Parcel 8, in Duane and Joan’s names until 1995 and then in Joan and Terry’s names, was contributed throughout. After the execution of the Agreement for Sale the Quintons contributed parcels 3, 4, 5, and 6. No rent was paid by anyone, but the Quintons were obligated to make payments under the Agreement for Sale. Overall, this arrangement demonstrates more of a benefit to the Quintons than to the Wynders. [ 125 ] Exhibit 7 provides a

summary of all expenses paid by the Quintons from 1976 to 2004 for the ranching operation and totals $334,437.74. But Terry testified that it was in 1981, after it was decided that he and Joan would build on parcel 8 and when the Quintons had far fewer cattle, that the Wynders stated he and Joan would receive parcel 2. Before that, he understood they were to purchase it.

If there were any expenses paid for the benefit of Wynders from 1976 to 1981 there is no evidence about how they were to be treated. [ 126 ] And the resulting cost does not accurately show only the amount of expenses the Quintons paid for the benefit of the Wynders; it overstates the contribution.

Some, if not most, of the expenses are for the benefit of the Quintons alone; the Wynders paid some expenses for the Quintons, for example all fuel costs to 1985; allocation of the proportionate responsibility for the expenses based on numbers of cattle is a moving target, for example by 1994 the Wynders and the Quintons each had the same size cattle herd; Helen sold all of her cattle in 2000 so she had no expenses after that; some of the expenses must relate to Nedra’s cattle; and some of the expenses are for equipment which still exists.

Overall, the evidence does not show a calculable benefit to the Wynders if there was a benefit at all. [ 127 ] Exhibit 5 provides a

summary of all labour claimed to be provided by Quintons to Wynders for the ranching operation from 1973 to 2000 and totals $348,873.00. Again, labour up to 1981should be considered in the context of Terry’s evidence that prior to 1981 he anticipated purchasing parcel 2. [ 128 ] And the remaining amount does not accurately show only the amount of labour provided by the Quintons for the benefit of the Wynders, it overstates it. The

summary is based on pure estimates of time and allocation of benefit to the Wynders; it includes the labour of the Quinton children who are not parties to this claim; and the

summary uses an arbitrary hourly value for the labour. The supporting chore list is detailed but has similar deficiencies, as is the oral evidence reviewing the details in paragraph 45 of the statement of claim. The

summary overlooks the value of the labour contribution of Duane to the ranching operation. [ 129 ] It does appear that the Quintons contributed increased labour during the times that Duane experienced cancer and heart issues, and while Duane and Helen were away in the winters. And after Duane died Helen continued to receive the revenue from her cattle until they were sold in 2000. The Quintons provided all of the labour and expenses for the ranching operation during that time. Over the years Nedra also had a few cattle, a maximum of six, for which she received all the money.

She paid none of the expenses and did none of the labour. Her last cattle were sold in 2008. [ 130 ] Overall the Plaintiffs have shown that the Wynders received the benefit of labour provided by the Quintons from about 1991- 2000. During that period Duane had health issues and could not work as much on the ranch, the Wynders were away in the winter, and Helen had cattle after Duane died. All of this is a benefit to the Wynders because they were spared expenses for labour, which they would otherwise have had to pay.

Quantifying that benefit is difficult. [ 131 ] In Meeser v Meeser , again citing Kerr v Baranow , the Court stated this at para 70: Turning to the second element – a corresponding deprivation – the plaintiff’s loss is material only if the defendant has gained a benefit or been enriched (Peel, at pp 789-90).

That is why the second requirement obligates the plaintiff to establish not simply that the defendant has been enriched, but also that the enrichment corresponds to a deprivation which the plaintiff has suffered (Pettkus, at p852; Rathwell, at p455). [ 132 ] Doubtless, the Quintons worked very hard in the ranching operation, and gave up holidays, weekends, evenings, and other activities and opportunities.

All three of the Wynder children, Joan, Nedra, and Jamie, received much from their parents, but the Quintons received a number of significant benefits: • While I find that the Quintons were not gifted parcel 8, they did not pay for that land until 1992, nearly 10 years after they built their home on it. And they did not pay the land taxes on it until 1995. • The Quintons purchased parcels 3, 4, 5, and 6 for $135,000.00 in 1996 on advantageous terms: no interest, and no requirement to pay taxes.

The value is considerably less than the appraised value at that time as provided by the Plaintiff’s appraisal: $477,500 for parcels 3, 4, and 5 and $34,000.00 for parcel 6. • The Quintons paid no rent on lands used for their cattle and haying operations in which the Wynders had the legal interest. • The Quintons built up their own cattle herd and received all the profits from their cattle operation. By the time Duane died the Quintons and the Wynders each had 40 head of cattle.

By 2000 the Quintons had 80 head, and Helen had none. • After Helen’s cattle were sold in 2000 the Quintons used parcels 1 and 2 until 2010 without providing her any compensation,

expenses, or labor for ranching. [133] The Quintons suffered deprivation but they also enjoyed considerable benefits. And they have not shown any deprivation since2000. Looking at the overall dealings, and keeping in mind the onus on the Plaintiffs, I cannot find that the Quintons have proven theysuffered deprivation because of their contributions to the ranching operation as claimed. [134] Putting all of these factors together, I conclude that the Plaintiffs have failed to meet the onus on them to establish that theDefendants have gained a benefit or been enriched by the deprivation experienced by them.

Absence of a juristic reason need nottherefore be considered.

Do the Quintons have a claim for adverse possession? [135] The Quintons contend that they are entitled to receive title to parcels 1 and 2 not occupied by Helen’s residence because theyhave been in possession of that land from more than 10 years. [136] To prove a claim of adverse possession the claimant must ‘be in possession and the true owner be out of possession.’ ‘The typeof possession necessary for adverse possession in Canada is “an actual possession, an occupation exclusive, continuous, open or visibleand notorious” for the requisite period.’ Lutz v Kawa, 1980 ABCA 112 . [137] Terry testified that in 1996, when the Agreement for Sale was entered, it was understood that Duane and Helen would continueto occupy parcel 2 until they died. [138] Until 1998, the joint ranching operation between the Quintons and the Wynders used all of the lands, including parcels 1 and 2.The Wynders always paid the taxes on all the land, and the Quintons never have.

After Duane died, the joint ranching operation betweenHelen and the Quintons continued on the same basis. After Helen sold her cattle, Terry continued to operate the ranch in the same way,using all of the land of both the Quintons and the Wynders for the ranching operation. And Nedra’s cattle were run with the rest of thecattle, including on parcel 2, until 2007 or 2008. Helen continued to live in her home on parcel 2 until 2009. The home acreage is notsubdivided or separated from the rest of parcel 2. She had access to her home on the same road used by the Quintons. The road is acrossparcel 2.

The Johnsons lived on parcel 7, with approved access across parcel 2. The Johnsons built and used buildings on parcel 2 anddemolished a barn and corrals and built new corrals on parcel 2 in 2009. [139] Helen continued to have legal dealings concerning parcel 2 and signed Wills in 2005, 2007, 2008, and 2010 which madebequests of land including parcel 2. Helen signed and registered a transfer of parcels 1 and 2 to herself and Nedra in 2008. She consultedwith her Solicitors in late 2009 and finally instructed them to send a letter to the Quintons imposing rules concerning parcel 2 in June,2010.

These are all acts related to an ownership of land. [140] There is no evidence that the Quintons excluded anyone from parcel 2, certainly they did not exclude Helen. They compliedwith the requirements imposed by her solicitors in June, 2010. [141] Considering all of this evidence, I find that the Plaintiffs have failed to satisfy the onus on them to show, on the balance ofprobabilities, that they have had exclusive possession of the land. The claim to adverse possession fails.

Who is entitled to the reclamation funds held in trust? [142] Reclamation costs of $15,000.00 in relation to the gravel pit on parcel 5 were paid and are currently being held in trust pendingresolution of this action.

The Agreement for Sale provides as follows: THE PURCHASER covenants and agrees with the Vendor to pay to the Vendor the said purchase price as aforesaid in the manner andon the days and times hereinbefore provided and it is agreed that all taxes, rates, levies, charges and other outgoings whatsoever rated,charged, assessed, or otherwise imposed howsoever on the said lands and premises shall be discharged and paid by and the rents andprofits from the said lands and premises shall belong to the Vendor up to but not after * and from and after that date all taxes, rates,levies, charges and other outgoings whatsoever on the said lands and premises shall be paid and discharged by and the rents and profitsfrom the said lands and premises shall belong to the Purchaser; and the same shall be apportioned between the Vendor and the Purchaserif necessary. [143] The only information I was provided was that the reclamation funds were paid.

While it may be an oversimplification,proportionality propels a simplified solution. Accordingly, I direct that these funds should be treated in a manner consistent with myruling concerning the Quintons’ responsibility for taxes, and other charges. Therefore, I direct that if the funds were received beforeNovember 1, 2009 they are to be paid to Helen, if afterward they are to be paid to the Quintons. Conclusion [144] In

summary I find as follows: • There was no settlement agreement reached. • Helen and Nedra are not estopped from claiming the amounts owing under the Agreement for Sale. • Neither the Plaintiffs’ claim for specific performance of the Agreement for Sale nor the obligation to pay the balance owing it aremade unenforceable by the Limitations Act. The Quintons are therefore entitled to a transfer of parcels 3, 4, and 5 upon payment of the

sum of $115,000.00 being the balance of the purchase price plus all property taxes and other charges related to these 3 parcels from November 1, 2009 onward and interest from November 1, 2009 to date of payment. • The Quintons’ claim to parcels 1 and 2 is dismissed. • The Quintons’ claim to a quantum meruit award is dismissed. • If the $15,000 held in trust was received before November 1, 2009 those funds are to be paid to Helen, if afterward they are to be paid to the Quintons. [ 145 ] A number of casualties are left in the wake of this dispute.

The once-positive relationship between the Quintons and the Johnsons is soured; Helen is left to die with dementia and the experience that her family is deeply divided; Joan is estranged from her mother; Helen’s grandchildren have been brought into the dispute; two families live within eyesight of their antagonists; a small and close community is subjected to the stress of key leaders in conflict. It is indeed a pity that the efforts of Dr. Low to assist the families to reconcile were unsuccessful.

Perhaps those efforts can be re-kindled. [ 146 ] If costs cannot be agreed they may be spoken to within 30 days from today. Heard on the 2 nd , 3 rd , 4 th , 5 th , 6 th , 9 th , 10 th , 11 th , 12 th , and 13 th , day of May, 2016. Dated at the City of Lethbridge, Alberta this 1 st day of February, 2017. R.A. Jerke J.C.Q.B.A. Appearances: Mr. D. C. Thompson, D. C. Thompson Law Office for the Plaintiffs, Terrance George Quinton and Joan Quinton Mr. K. D. Ronan, Peterson & Purvis LLP for the Defendant, Nedra Johnson Mr. D. Kusick, Craig Law LLP For the Defendant, Helen Wynder