Aarbo Ranching Ltd v Aarbo Estate, 2020 ABQB 772

Court of Queen’s Bench of Alberta Citation: Aarbo Ranching Ltd v Aarbo Estate, 2020 ABQB 772 Date: 20201210 Docket: 2014 00301 Registry: St. Paul Between: Aarbo Ranching Ltd. Applicant - and - Murray Victor Aarbo and Donald Marvin Aarbo, Executors for the Estate of Victor Aarbo Respondents _______________________________________________________ Endorsement of the Honourable Mr. Justice Robert A.

Graesser _______________________________________________________ [ 1 ] The application to declare Caveat 982056493 filed by Aarbo Ranching Ltd to protect its equitable interest in the lands (Section 4, Township 57, Range 6, West of the 4 th Meridian) by virtue of a Right of First Refusal granted to Aarbo Ranching Ltd by Victor Aarbo (deceased) is declared valid and subsisting. [ 2 ] No issue was taken in the application before me with the execution or validity of the Agreement between Victor Aarbo and Aarbo Ranching Ltd dated February 3, 1998 as it relates to the Right of First Refusal granted in it.

[ 3 ] It is clear from

Section 63 of the Law of Property Act , RSA 2000 c L-7 that a right of first refusal is an equitable interest in lands and can be caveated. [ 4 ] The Estate of Victor Aarbo took the position that the Agreement did not bind Victor Aarbo’s estate and was in the nature of a personal contract. No authority was cited in that regard although counsel for the Estate fairly put Benzie v Hania , 2012 ONCA 766 before me. That case holds that “death does not terminate a contract unless the contract is based on personal consideration, skill or confidence (a personal contract)”, at para 13. [ 5 ] That is an accurate statement of the law. I reference the

section on assignment of contracts by operation of law in Fridman’s The Law of Contract in Canada, Sixth Edition at page 661 (Toronto: Carswell, 2011). [ 6 ] The Right of First Refusal here is clearly not a personal contract. It relates to the lands in question, not some attribute of Victor Aarbo’s that was important to Aarbo Ranching Ltd.

It is arguable that the Agreement by Harvey Aarbo and Aarbo Ranching Ltd. in favour of Victor Aarbo is a personal contract as it relates to Victor Aarbo farming the lands, but that issue is not before me. [ 7 ] I do not see the absence of a specific clause in the Agreement to the effect that the Right of First Refusal was to be binding on Victor Aarbo’s Estate as being significant. While that is common boiler-plate, the absence of such wording is not fatal to the obligations being binding on the Estate.

I was advised that a contemporaneous share sale agreement between the parties contained such a clause, but that does not persuade me by itself that the parties intended that the Right of First Refusal would die with Victor Aarbo. [ 8 ] Aarbo Ranching Ltd sought costs in the Notice of Application on a solicitor and client basis. In his response to Mr. Holeton’s submissions, Mr. Yesdresyski seeks “normal” costs under Column one of

Schedule C. Mr. Holeton’s submissions argued against solicitor and client costs, but having regard to Mr. Yesdresyski’s response, I need not deal with that. [ 9 ] The Applicants are entitled to one set of costs for the application under Column 1 (no extra fee for written argument). If they cannot agree on those costs, I retain jurisdiction to fix them. Heard on the 30 th day of November, 2020. Dated at the Town of St. Paul, Alberta this 10 th day of December, 2020. Robert A. Graesser J.C.Q.B.A. Appearances: David B. Yesdresyski, David B. Yesdresyski Professional Corporation (Yesdresyski Law) for the Applicant Richard R. Holeton, Richard R. Holeton Professional Corporation for the Respondents