Herr v Bourne, 2021 ABQB 478

Court of Queen’s Bench of Alberta Citation: Herr v Bourne, 2021 ABQB 478 Date: 20210618 Docket: 1603 00385 Registry: Edmonton Between: Cody Herr Plaintiff - and - Barrie Bourne and the Estate of Regina Bourne, Deceased Defendants _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice N.J. Whitling _______________________________________________________ 1. Introduction and Overview [ 1 ] The Plaintiff, Cody Herr, applies for

summary judgment with respect to his claim for specific performance of an agreement for the sale of certain land (the “Lands”). In response, the Defendants apply for

summary dismissal of the Plaintiff’s claim. Although the parties agree on little else, they do agree that their issues may be finally determined in the context of the present application, and that a

full trial is not required. [ 2 ] The Lands are comprised of some 16 parcels of farm land located in the Municipal District of Greenview, near Valleyview, Alberta. The legal descriptions of these parcels take up several pages. The Defendant Barrie Bourne is currently the Lands’ sole registered owner. Mr. Bourne formerly held the Lands in joint tenancy with his late wife Regina Bourne, whose estate is the other Defendant in this action. The Plaintiff claims an ownership interest in the Lands pursuant to his attempted exercise of an option to purchase in June, 2014.

The Plaintiff has been the exclusive occupier of the Lands and operator of the farm since approximately the summer of 2010. [ 3 ] The agreement at issue in this action is contained in two handwritten documents dated July 21, 2010, and July 30, 2010. Throughout these reasons I use the term “agreement” advisedly. It seems that the parties decided to save money on legal fees by preparing their own agreement. Years of expensive litigation later, the Defendants now argue that the resulting agreement is not legally enforceable since the parties failed to agree upon a number of essential terms.

The terms said by the Defendants to be absent and essential include those of a vendor take-back mortgage contemplated by the parties, including the principal amount, repayment schedule, amortization period, and interest rate. [ 4 ] Additionally, and in the alternative, the Defendants argue that the Plaintiff is not entitled to specific performance since he failed to exercise any enforceable option to purchase the Lands in accordance with its terms.

In particular, it is argued that the Plaintiff failed to make a semi-annual rental payment, and failed to tender the required down payment. [ 5 ] Having carefully considered this matter, I find that the Plaintiff’s application must be granted and specific performance of the agreement ordered. This relief flows from the following conclusions. [ 6 ] The agreement between the parties is legally enforceable. The parties were ad idem respecting the parties, the property, and the price.

The essential terms of the vendor take-back mortgage contemplated by the parties, such as the applicable interest rate, the principal amount, and the amortization period, were either agreed upon by the parties, or are supplied by operation of law. Since the remaining details of the vendor take-back mortgage are merely subsidiary terms, the Court may complete the agreement by imposing terms that are reasonable. [ 7 ] The Plaintiff exercised his option to purchase the Lands in accordance with its terms. Since the Plaintiff notified Mr.

Bourne of his exercise of that option prior to May 1, 2014, he was not required to make a rental payment on May 1, 2014. Further, Mr. Bourne’s express and repeated repudiation of the agreement prior to July 1, 2010, negated the Plaintiff’s obligation to tender the down payment. [ 8 ] It is appropriate in all the circumstances of this case to grant the Plaintiff the equitable remedy of specific performance.

Taking into account the unique features of the Lands, notably their size and close proximity to other farm lands owned and jointly operated by the Plaintiff and his father, as well as the improvements to the Lands made by the Plaintiff since taking possession, an award of damages would not be an adequate remedy for the Defendants’ breach of the agreement. 2. Factual Background [ 9 ] The factual background to the present applications is comprised largely of written correspondence between the Plaintiff and Mr. Bourne. Spelling, grammar, and formatting irregularities have been carried forward into this

summary. [ 10 ] In June, 2010, the Bournes decided that it was necessary to sell the Lands. Their reasons were personal and the circumstances were somewhat urgent. A neighbour told Mr. Bourne that the Plaintiff might be interested in purchasing the Lands. Acting on that advice, Mr. Bourne placed a call to the Plaintiff on or about July 6, 2010. During that call, Mr. Bourne introduced himself and outlined his wish to sell the Lands as soon as possible. In response, the Plaintiff expressed a willingness to consider Mr. Bourne’s proposal. On July 6, 2010, Mr.

Bourne sent a follow-up email to the Plaintiff respecting their initial discussion: Hi Cody: My wish is to sell my farm land as soon as possible. I will offer you the S.E. 1/4

section 4; sections 2,3,10,11(excluding N.E. 1/4

Section 11) for one million dollars. The mobile home site and related services on N.E. 1/4

Section 3 is included in this offer. The sale date would be Jan. 01, 2011. You would have the right to occupy the land during 2010, rent free. I would not require a deposit, and the mortgage interest rate would be 4% per annum for 5 years. The Rocky Mountain House Credit Union pays me 4% for a 5 year G.I.C. and so I would extend this rate to you. After 2015, the mortgage rate would be what I can get for a 5 year G.I.C. from a Canadian financial institution. The above offer excludes the 2 & 1/2 bush quarters ( S.W. 1/4

Section 14 and South 1/2

Section 15) which my Son wishes to retain for hunting purposes. Your thoughts? Sincerely Barrie. [ 11 ] On July 17, 2010, the Plaintiff provided the following email in response to Mr. Bourne’s of July 6, 2010: Hi Barrie: After some long discussions, we have come to a decision of trying to work with your offer. I have so many thoughts going on just wanted to make sure that I’m thinking along the same lines as you. The land is Section’s 2,3,10. The NW 11, S1/2 11, SE 4.

The land will be rent free until date of purchase, July 1, 2011/2010 I will manage weed control, start of pasture rejuvenation, other projects I deem of immediate in nature. I would like to control land access of Bee-keeper, hunters, other public looking to access. Also would like right to apply for government grants, programs that may come up that are associated with the property. I will assume the electricity bill when there is an agreement in place.

July 1, 2011 purchase of said land for $1,000,000 with no down payment, interest rate of 4% for five years ammortized for 25 years. First payment due July 1/2012 $ 64,011.96, will continue until July 1/2016, at which time interest rate may change aligning to a 5 year GIC. At time of purchase transfer title of lands, assume entire tax bill for 2011 not arrears if any. I would like to have a clause allowing lump-sum payments with re-ammortization, or complete payout of the note.

In our discussions at home the question of, “what happens in the event of you becoming deceased?”, we don’t want the note to be called because of it. I think these are most of my thoughts, and I’m sure you will have some to add to this. Thank you for the opportunity to explore this as an option. I was not quite prepared for this at the time.

Cody [ 12 ] The annual payment amount of $64,011.96 proposed in the Plaintiff’s email of July 17, 2010, had been calculated by the Plaintiff using an online mortgage amortization program with a $1,000,000 loan amount, a 25 year amortization period, and a 4% interest rate compounded annually, not in advance. [ 13 ] On July 18, 2010, Mr. Bourne sent the Plaintiff the following email: Hi Cody: When thinking again of your offer; one concern emerged; namely what happens if, because of financial constraints, you don’t make the payment owing of $64,012 on July 1, 2012.

The effect on me is: I would not receive a pasture payment for 2011. I would not be able to rent my land for 2012 because farmers usually have secured their cattle pasture by July 01. Therefore I ask: The sale date be changed from July 01, to May 01, 2011. The May 01, 2012 payment of $64,012 be divided into two parts of $32,000; one part due on signing of the land transfer on May 01, 2011; the other part due May 01, 2012. The annual mortgage payment of $64,012 will resume on May 01, 2013. I hope you get this message before you phone on Monday. Barrie [ 14 ] On July 21, 2010, Mr.

Bourne, or someone working with him, prepared an agreement respecting the sale of the Lands. The document is two pages long, and handwritten in capital letters. It does not appear to have been prepared with the assistance of legal counsel. Its contents read as follows: WE, BARRIE BOURNE AND REGINA BOURNE AGREE TO SELL TO CODY HERR THE FOLLOWING LANDS: [Legal description omitted] FOR ONE MILLION CANADIAN DOLLARS PLUS G.S.T. THIS OFFER IS MADE FOR THE FOLLOWING DATES: NAMELY JULY 01, 2011 AND JULY 01, 2012. BOURNES AGREE TO CARRY THE MORTGAGE WITH A DEPOSIT OF TWENTY-FIVE THOUSAND DOLLARS.

IF CODY HERR DOES NOT PURCHASE THE ABOVE LANDS, ON THE ABOVE DATES; BOURNES AGREE TO LEASE THE LANDS FOR 2011 AND 2012 TO HERR FOR THE SUM OF TWENTY-FIVE THOUSAND DOLLARS PLUS G.S.T. PER YEAR. $12,500 + GST WILL BE DUE ON MAY 01; AND $12,500 + GST WILL BE DUE ON SEPTEMBER 1 FOR EACH YEAR. IF HERR LEASES THE SAID LANDS, HE AGREES TO CONTROL WEEDS, MAINTAIN FENCES AND PAY ALL UTILITIES ASSOCIATED WITH TRAILER SITE ON NE ¼

SECTION 3-72-21-W5. BOURNES AGREE TO PAY THE PROPERTY TAXES ON ABOVE LANS. SIGNED THIS 21ST DAY OF JULY, 2010. [ 15 ] After receiving the above agreement of July 21, 2010, and prior to signing it, the Plaintiff placed a telephone call to Mr. Bourne and the two had a further discussion. As a result of that discussion, Mr. Bourne prepared a second handwritten document dated July 30, 2010, which reads as follows: FURTHER TO THE AGREEMENT DATED JULY 21, 2010, THE BOURNES AGREE: 1.

TO OFFER CODY HERR THE RIGHT TO PURCHASE THE SAID LANDS ON JULY 01, 2013 AND JULY 01, 2014 FOR ONE MILLION DOLLARS PLUS GST.; AND FAILING THIS TO LEASE THE LANDS FOR 2013 AND 2014 FOR TWENTY - FIVE THOUSAND DOLLARS PLUS GST. PER YEAR. THE CONDITIONS STATED IN THE JULY 21, 2010 LETTER ALSO APPLY. FOR 2013 AND 2014. 2. TO DIVIDE INTO TWO EQUAL PARTS ALL INCOME RELATED TO THE PETROLEUM INDUSTRY; INCLUDING BUT NOT LIMITED TO PIPE - LINING AND SEISMIC ACTIVITY. ONE PART TO BE DISTRIBUTED TO THE BOURNES AND THE

OTHER EQUAL PART TO CODY HERR. DATED THIS 30 TH DAY OF JULY; 2010. [ 16 ] Each of the handwritten documents of July 21, 2010, and July 30, 2010, were signed by Mr. Bourne and Ms. Bourne, as well as by the Plaintiff. However, they were not signed by all the parties on the dates indicated. The Plaintiff signed the two agreements at the same time, which was sometime in August, 2010. [ 17 ] The evidence is unclear as to when the Plaintiff first entered into occupation of the Lands. It is agreed, however, that this occurred sometime in 2010, not long after the execution of the written agreements.

The Plaintiff also occupied and leased the Lands throughout 2011, 2012, and 2013. He did not exercise any option to purchase the Lands during those years. However, on April 21, 2014, he sent an email to Mr. Bourne which states in relevant part as follows: Hello Barrie […] We were looking at the contract and realized this year we needed to activate the purchase of the land. For some reason I thought there was still one more year of rent available before purchase. The land sure needs alot of work, we have tried a number of ideas to improve the condition of things there… Look forward to hearing from you.

Regards Cody [ 18 ] By email dated April 22, 2014, Mr. Bourne advised the Plaintiff that Ms. Bourne had passed away the previous Fall. The email also stated in relevant part as follows: Hi Cody: […] If you don’t wish to buy the land, I will give it to my sons. They would continue renting to you if you wished. Barry [ 19 ] The following day, April 23, 2014, the Plaintiff responded by email as follows: Barrie: So sorry to hear about Regina’s passing… We would like to initiate the purchase of the land with how we discussed in the start.

Using you as the financier, $25,000 down, interest of a 5 year GIC, and a term of 25 years. Cody [ 20 ] That same day, April 23, 2014, Mr. Bourne responded by email as follows: Hi Cody: I would appreciate if you secure financing with an institution other than me. I think you can get more competitive rates at for example The Farm Credit Corp. I can get between 5% and 6% in the Philippines for Deposits. The beauty of these investments is that Canadian dollar keeps going down relative to the Philippine peso. Asian economies are very robust now in comparison to Canada. Thailand is also very good.

Since last fall, the peso appreciated 10%. Barry [ 21 ] The Plaintiff’s next email to Mr. Bourne was sent on April 29, 2014. In brief, the Plaintiff advised that he was looking into the possibility of acquiring financing from a financial institution, but that doing so was not an attractive option for him since a larger down payment would be required. He also wrote as follows: Hi Barrie I am looking at other institutions… Monies have been put into improvements rather than savings unlike the land abusers before me. I

understand that global finances have greatly improved since our agreement began and there are tempting investment opportunities. I am hopeful that you will honor the terms which you set forth to get a sale for your land. Regards Cody [ 22 ] There followed two emails from Mr. Bourne to the Plaintiff dated April 30, 2014, and May 1, 2014, in which Mr. Bourne advised that he was happy that the Plaintiff was looking into lending institutions, that he could obtain a high rate of interest on a GIC at an Indian bank, and that his mailing address had changed.

By email dated May 4, 2014, the Plaintiff responded to these emails as follows: Hi Barry Thanks for updating your address, not sure if that is the one I have on file. Just wondering if you can clarify the terms of our agreement as they seem to have now changed. I recall you using your institution [ The Credit Union] to set the GIC interest rate, curious where the Philippine or Indian banks now enter the arrangement. I have much on the go now and am trying to deal with things promptly. Cody [ 23 ] It bears noting at this point that the Plaintiff did not pay Mr.

Bourne the semi-annual rental amount of $12,500 on May 1, 2014. The Plaintiff stated during questioning that this was because the first rental payment for that year was to be applied towards the $25,000 down payment of the purchase price. In other words, he suggested that his exercise of the option to purchase negated his obligation to also pay rent during that year. [ 24 ] In response to the Plaintiff’s request of May 4, 2014, that Mr. Bourne “clarify the terms of our agreement”, Mr.

Bourne sent the following email of May 5, 2014: Hi Cody: The terms are the same as you stated in your April 23 e-mail to me; namely $25,000 down, interest of a 5 year G.I.C.; and a term of 25 years. I have been investing in international money markets for over 25 years. I have not limited my investing to the local, provincial, or national markets ever. Money always goes to the arena which offers the best rate of return; in the same fashion as you borrow money at the lowest rate you can obtain. The terms or our agreement have not been altered by me.

I suggest you obtain your financing from a source other than me; as my perception is you [indecipherable] feel you are being ill done by. Business done with bad feelings never works. Barry [ 25 ] The next day, May 6, 2014, Mr. Bourne sent a further email to the Plaintiff. In this email, Mr. Bourne asserted that Ms. Bourne’s passing had invalidated the Plaintiff’s option to purchase the Lands in 2014. Consequently, Mr.

Bourne would only consider leasing the land to the Plaintiff for that year: Hi Cody: In July, 2010 Regina and I gave you the right to purchase our farmland on the first day of July, 2011, 2012, 2013, and 2014. Failing that we gave you the right to lease the land. You never exercised your right while Regina was alive in 2011,2012, and 2013.If you had, a real estate purchase contract would have been drawn up by the Bournes. Unfortunately Regina died on September 30, 2013. She willed her half interest in the farm to her grandchildren, with her sons administering their affairs until they reached adulthood.

I have discussed your interest in buying their land using the 2010 agreement as a basis. They do not wish to sell the land under those terms. They wish to go to the open market. Therefore do you wish to rent the land this year with a payment of $12,500 now, followed by a payment of $12,500 September 1? Barry. [ 26 ] Contrary to the representations contained in the above email of May 6, 2014, Ms. Bourne’s interest in the Lands had not, in fact, been devised to her grandchildren by her will. Since the Lands had been held jointly by Mr. Bourne and Ms. Bourne, Mr. Bourne had actually acquired Ms.

Bourne’s interest in the Lands by right of survivorship. Mr. Bourne was aware of this fact because in December, 2013, he had sworn an Affidavit of Surviving Joint Tenant and caused it to be registered against title to all of the parcels which comprise the Lands. [ 27 ] Not having received a response from the Plaintiff by May 15, 2014, Mr. Bourne sent the following email of that date: Hi Cody: Do you wish to rent our land for the 2014 crop year? If I don’t hear from you by May 20, 2014; I will make other arrangements.

Barry [ 28 ] On May 20, 2014, the Plaintiff responded by the following email: Hi Barry In order for us to conduct our farm operation for 2014 we will use the land and make settlement. Cody [ 29 ] In his next email, Mr. Bourne continued to assert that any future occupation of the Lands by the Plaintiff would only be by way of lease rather than purchase. On May 22, 2014, he wrote: Hi Cody: The Bournes will lease the Valleyview farm lands, as described in the agreement dated July 21, 2010 and signed by Barrie Bourne and R. Bourne, to you from May 01, 2014 until September 30, 2014: with the following conditions: 1.

Bournes will pay property taxes on farm lands. 2. C. Herr controls the weeds and maintains fences of said land. 3. C. Herr immediately pays Bournes $12,500 plus G.S.T. 4. C. Herr pays Bournes $12,500 plus G.S.T. on September 1, 2014. 5. C. Herr pays all utilities associated with trailer site on N.E.3-72-21-W5th. Please indicate that you either accept or reject these terms. If you Do Not accept these terms, Do Not place your cattle on the Bourne lands. [Closing line omitted from exhibit copy] [ 30 ] On May 28, 2014, the Plaintiff responded as follows: Barry I have reviewed your latest emails.

In April we contacted you to exercise the purchase option of the contract not the rental. Today our position is still to exercise the purchase option. Cody [ 31 ] That same May 28, 2014, Mr. Bourne responded by facsimile: Please be advised that the above lands will not be leased to you during 2014. Do NOT trespass on these lands. [Signature] Barrie Bourne. [ 32 ] Mr. Bourne reiterated his position in an email of the next day, May 29, 2014: Cody: All 19 parcels of land in Valleyview are for sale. You are welcome to draw up a Purchase Contract for these lands.

The contract will consist of: A. an offer,with conditions, along with your signature and date. The contract shall enure to the benefit of and be binding upon the heirs.and successors of all the parties. B. an acceptance by the Bournes along with their signatures and date. In the meantime, you are advised not to trespass on these lands until there is a signed acceptance. The land will be sold to the first party that satisfies the above conditions. Barrie. [ 33 ] At this point in the parties’ dealings, the Plaintiff retained a lawyer, who sent a letter on firm letterhead to Mr.

Bourne dated June 5, 2014, stating as follows: Dear Sir: Re: Notice of Exercise of Option to Purchase

We act on behalf of Cody Herr and have been retained to protect his interests in relation to a lease with an option to purchase dated July 21 st and 30 th , 2010 and made between you as the registered owner/ vendor, and Cody Herr as purchaser.

In accordance with the terms of the agreement between the parties dated July 21, 2010 and as amended by agreement dated July 30, 2010, this letter shall constitute written notice of Mr Herr’s election to exercise his option to purchase the following lands: [Legal description] …for the sum of 1 million Canadian dollars plus GST, with the closing to occur on June 30, 2014. [ 34 ] Also, on June 5, 2014, the Plaintiff’s counsel caused a caveat to be registered against title to the Lands, which caveat claimed an interest in the Lands pursuant to the handwritten agreements of July 21, 2010, and July 30, 2010. [ 35 ] the Plaintiff now argues that when he exercised his option to purchase the Lands in June, 2014, he made it clear that he was then prepared to waive his right to have Mr.

Bourne finance his purchase through a vendor take-back mortgage. Consequently, he argues, any lack of certainty with respect to that mortgage is incapable of invalidating the entire agreement. I do not accept this argument on the part of the Plaintiff. the Plaintiff’s correspondence, notably the words “Using you as the financier” in his email of April 23, 2014, evinced an intention to invoke his right to enter into the mortgage. The subsequent letter from the Plaintiff’s lawyer was silent on this point. [ 36 ] Since taking possession of the Lands, the Plaintiff has conducted farming operations on them.

Since other farm lands owned by the Plaintiff and his parents are nearby, the farms have been operated co-operatively. the Plaintiff has also made significant improvements to the Lands in the decade or so since taking possession. [ 37 ] For the purposes of the present application, the Plaintiff has waived any right he may have to enter into a vendor take-back mortgage with Mr. Bourne. That is, the Plaintiff seeks specific performance of the sale and purchase agreement, but does not seek specific performance of the vendor take-back mortgage.

He is now prepared to finance his purchase of the Lands through alternative means. 3. Issues [ 38 ] This application raises the following issues:

(1) Is this an appropriate case for

summary judgment or

summary dismissal?

(2) Is the agreement of July, 2010, a legally enforceable contract?

(3) Did the Plaintiff exercise the option to purchase in accordance with its terms?

(4) Should the equitable remedy of specific performance be granted? 4. Is this an appropriate case for

summary judgment or

summary dismissal? [ 39 ] As noted above, all of the parties to this application seek to have it resolved on a

summary basis. No party has argued that these matters require a full trial. I have nevertheless considered the test in Weir-Jones Technical Services Inc. v Purolator Courier Ltd. , 2019 ABCA 49 in light of the facts and circumstances surrounding this application. [ 40 ] I find that it is appropriate to finally resolve the issues between the parties in the context of the present applications. The relevant evidence consists almost entirely of correspondence between the parties. The other relevant evidence, such as that relating to the features of the Lands, are not in dispute.

There is no reason to believe that additional evidence of significance would come to light in the context of a trial, and there appear to be no significant credibility issues between the parties. 5. Is the agreement of July, 2010, a legally enforceable contract? 5.1 Legal Principles Respecting Certainty of Contractual Terms [ 41 ] The formation of a legally enforceable contract requires an offer and an acceptance of all the essential terms of the agreement. Those essential terms must be sufficiently certain. Where the essential terms are absent or overly vague, the purported agreement will be unenforceable.

In Ron Ghitter Property Consultant Ltd v Beaver Lumber Co , 2003 ABCA 221 , Fraser C.J.A summarized the applicable principles as follows: Test for consensus ad idem 8 Regardless of the theories underlying the enforcement of contracts, mutuality of agreement lies at the root of any legally enforceable contract. The required degree of mutuality of agreement mandates that the parties reach a consensus ad idem on essential terms. In determining whether the parties have reached agreement for legal purposes, the starting point must be the alleged 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 the

contract 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), 2001 BCCA 679 , 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), 1999 BCCA 771 , 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 meanwhat A understood it to mean or what B understood it to mean, or whether indeed any meaning can be attributed to it at all”: Cheshire,Fifoot and Furmstom, Law of Contract, 14th ed. (London: Butterworths, 2001) at 272.

Otherwise, then, as stated by Lord Maugham inScammell, supra at 255, “the consensus ad idem would be a matter of mere conjecture.” [42] Many Canadian cases have addressed the issue of consensus ad idem in the specific context of options to purchase land wherepart of the purchase price is to be financed on poorly-defined terms. The net effect of these cases is summarized by S.M. Waddams, The Law of Contracts, 7th ed. (2017, Thomson Reuters Canada Ltd.) at pp. 33-34: Where terms other than the price are left open, there is again no simple rule.

Where fundamental aspects of an agreement appear to thecourt to be missing, enforcement will be refused. A common case is an agreement to sell land or other property on credit terms, forexample, at a certain price with an agreed cash payment, “balance to be arranged”.

Some cases have enforced such agreements; moreappear to have refused enforcement; perhaps the most useful test is as was stated in a Canadian case, whether a further “meeting of theminds” is anticipated. [Footnotes omitted] [43] In Ko v Hillview Homes Ltd., 2012 ABCA 245, Côté J.A. was less equivocal than Professor Waddams on this subject, andwrote: Where not all the price is to be paid at once and the rest, the balance, is “to be arranged”, that makes the contract void for uncertainty.

One of the leading cases cited by both Professor Waddams and Côté J.A. on this point is Murphy v McSorley, (SCC),[1929] S.C.R. 542, where Mignault J. found an option to purchase to be unenforceable since the balance owing after the purchase pricewas to be “arranged”.

As Professor Waddams explains, an enforceable contract is particularly difficult to find under such circumstancessince words like “to be arranged” are not merely vague, but also suggest that the parties have deliberately reserved to themselves theright to conduct further negotiations towards a future meeting of the minds. [44] Purchase agreements become more certain, and therefore more enforceable, when they contain greater specificity regardingthe credit terms.

In particular, many cases address agreements which state that the balance of the purchase price is to be financed by wayof a mortgage, while failing to specify all the terms and conditions of that mortgage. The courts have been more willing to enforcecontracts of this nature, and to imply or otherwise impose missing details where necessary.

An early Canadian case on point isLightbound v Warnock (1882), 4 OR 187 (QBD) at p. 196, where Armour J. (as he then was) wrote: The mortgage in the case in judgment was to be given as security for the debt, and whether it was to bear interest or not, there being noagreement on the subject, or when it should be payable, there being no agreement as to this, were details which the law would supply,and the agreement being silent as to them would not render it incapable of being enforced. [45] The above passage in Lightbound was adopted by Kellock J.A. in his majority decision in Thomson Groceries Ltd. v Scott, (ON CA), [1943] OR 290 (CA) at p. 294.

In that case, the agreement contemplated an option to purchase certainbusiness premises by way of a cash down payment, with “balance 1st Mortgage Interest at 5% per annum” and no stipulation as to thetime of redemption. Given the absence of any evidence that the parties had agreed upon or otherwise addressed their minds to thatmissing term, Kellock J.A. concluded that it could be implied that the mortgage was payable on demand.

In doing so, he stated at p. 295that the situation might have been different if the parties “had designedly left their agreement incomplete with respect to this term, whichwas to be the subject of subsequent negotiation”. [46] Lightbound and Thomson were adopted by Moshansky J. of this Court in Kazakoff v Milosz (1977), (ABKB), 3 AR 275 (ASCTD).

In that case, Moshansky J. found that since the parties had verbally agreed during their negotiations that thepayments on a mortgage were to be paid monthly, this term was to be implied into an agreement that was otherwise silent on that point. [47] For a number of years, the courts of British Columbia exhibited greater reluctance in enforcing agreements contemplatingmortgage financing on vague or absent terms.

In Diamond Developments Ltd. v Crown Assets Disposal Corporation, (BC SC), [1972] 4 WWR 731 (BCSC), Wilson C.J.B.C. declined to follow Thomson, and in doing so commented that “[i]t is obviousthat there is a very real divergence of opinion between our Court of Appeal and the Ontario Court of Appeal on this question”. WilsonC.J.B.C. then proceeded to adopt the following more demanding approach to this issue at p. 740: ...A mortgage must include many other terms than dates of payment -- would there, again for instance, be an acceleration clause ondefault of payment of an instalment?

Must the mortgagor pay taxes and would failure to pay taxes or rates constitute a default? Must themortgagor insure buildings in favour of the mortgagee? Will the mortgagee have immediate possession on default?

The problem thusposed cannot be disposed of by saying that the mortgage would be in the usual form, even if that had been agreed to... [48] However, the above approach in Diamond Developments was overruled in First City Investments Ltd. v Fraser Arms HotelLtd., (BC CA), [1979] 6 WWR 125 (BCCA) at paras. 26-29 in favour of the following more forgiving approach ofBull JA in Marquest Industries Ltd. v Willows Poultry Farms Ltd. (1968), (BC CA), 66 WWR 477 (BCCA) at p. 482:

... if the real intentions of the parties can be collected from the language within the four corners of the instrument, the Court must giveeffect to such intentions by supplying anything necessarily to be inferred and rejecting whatever is repugnant to such real intentions soascertained. [49] The most recent decision of the Court of Appeal of Alberta on this point is Hepas v Gosine, 2010 ABCA 118, whichaddressed a lease and option to purchase agreement respecting residential property, and which contemplated a vendor take-backmortgage to secure part of the purchase price.

The interest rate on the mortgage and a number of other terms had not been specificallyagreed upon. In approaching the issue of the enforceability of the agreement, the Court adopted the following statement of the law byMurray J. in Fuhr Farms v Melcor Developments, [2005] AJ No 854 (QB) at paras. 26-27: …When parties agree on all essential terms, their intention to create a contract is evident: Williston v. Lawson (1891), 1891 CanLII 75(SCC), 19 S.C.R. 673; Bawtiko Investments Ltd. v. Kernels Popcorn Ltd. (1991), (ON CA), 53 O.A.C. 314.

Whilethese terms must be expressed with sufficiently reasonable certainty to allow a Court to give them practical meaning and bind the parties,the fact that the parties fail to reach agreement on collateral or subsidiary aspects of their proposed arrangement is not fatal to itsenforcement: see Aga Heat (Canada) Ltd. v. Brockville Hotel Co., (SCC), [1945] S.C.R. 184. Depending upon thecircumstances, a Court may resolve unsettled matters by implied terms or may enforce the certain terms and sever and ignore theunsettled minor or collateral matters: S.M.

Waddam, The Law of Contracts, 2d ed. (Toronto: Canada Law Book, 1984) at p. 36 quoted inBoult Enterprises Ltd. v. Bissett (1985), (BC CA), 67 B.C.L.R. 273 (C.A.) at 281; leave to appeal to S.C.C. refused[1986] S.C.C.A. No. 33, (1986) 68 B.C.L.R. xliv. The surrounding circumstances of a contract, including the parties' conduct in carrying out their informal agreement, may allow a Courtto conclude that the execution of a formal document is not required.

As well, conduct after an interim agreement including thesubsequent exchange of correspondence can be considered by a Court when determining whether there was a binding contract betweenthe parties: Zmyndak v. Acton Real Estate & Insurance Co. Ltd. (1978), 1978 ALTASCAD 44 , 10 A.R. 469 (C.A.) [50] In finding the agreement at issue in Hepas to be legally enforceable, the Court of Appeal stated at para. 12: Although the letter does not set out every term or condition of the vendor take-back mortgage, its crucial terms can either be ascertainedby mathematical calculation or implied by operation of the Interest Act.

If agreements regarding sale and purchase of land failed everytime that a term of a vendor take-back mortgage was not set out in the agreement, very few agreements that include such a mortgagewould be enforced. [51] The Court of Appeal in Hepas then directed the parties to prepare and execute a form of mortgage, and even went so far as todefine the basic terms and conditions of that mortgage, subject to any alternative agreement by the parties. [52] The above

summary of the applicable case law is not intended to suggest that there exists a uniform approach to theenforcement of the type of agreement at issue in the present case. However, the applicable cases do agree that where the parties haveagreed upon the parties, the property, and the price, and have also agreed that a portion of the price is to be financed by way of an ill-defined mortgage, the courts may supply at least some of the missing details. Missing essential terms may be supplied, where possible,by operation of statute, by the common law, by traditional methods of contractual

interpretation, and by the introduction of impliedterms. Missing minor or subsidiary terms may be supplied on the basis of what is reasonable in all the circumstances. 5.2 Application of Legal Principles to the Present Case 5.2.1 The Interest Rate [53] The Plaintiff argues that the parties agreed in their negotiations that the interest rate to be charged by the Defendants was arate of 4% for the first five years, and that after 5 years the rate would be adjusted to the interest rate payable on a 5-year GIC availablefrom Rocky Credit Union in Rocky Mountain House, Alberta.

These were the terms discussed in the parties’ initial email exchange ofJuly 6 and 17, 2010. [54] In response, the Defendants argue that the parties’ lack of agreement on the interest rate renders the entire agreementunenforceable. The Defendants point out that the preliminary emails of July 6 and 17, 2010, were written in specific contemplation of asale of the Lands in 2011.

The parties did not ultimately agree to a sale at that time, and when the later written agreements createdoptions to purchase on July 1, 2012, 2013, and 2014, the original interest rate terms were not revisited or otherwise extended to thoselater dates. [55] The parties did at least agree that interest would be payable to the Defendants on the vendor take-back mortgage. But I agreewith the Defendants that the parties never reached a consensus ad idem on the applicable interest rate. Mr.

Bourne’s original email offerof July 6, 2010, addressed interest in the following terms: ...The sale date would be Jan. 01, 2011. You would have the right to occupy the land during 2010, rent free. I would not require adeposit, and the mortgage interest rate would be 4% per annum for 5 years. The Rocky Mountain House Credit Union pays me 4% for a5 year G.I.C. and so I would extend this rate to you.

After 2015, the mortgage rate would be what I can get for a 5 year G.I.C. from aCanadian financial institution... [56] The Plaintiff’s July 17, 2010, response to the above email stated: July 1, 2011 purchase of said land for $1,000,000 with no down payment, interest rate of 4% for five years ammortized for 25 years.First payment due July 1/2012 $ 64,011.96, will continue until July 1/2016, at which time interest rate may change aligning to a 5 yearGIC... [57] As the language of the above email exchange confirms, the parties were, at that time, contemplating a sale date in 2011. The

4% interest rate they referred to was derived from the rate that was then available to Mr. Bourne from his Credit Union. The parties didnot then contemplate options to purchase in 2012, 2013, or 2014, and did not know what rate might be available to Mr. Bourne duringthose subsequent years. [58] Further, the parties’ subsequent communications in 2014 did not reflect an agreement that the interest rate applicable to apurchase in 2014 would be the same as that contemplated by the parties in their email exchange of July, 2010.

In his email of April 23,2014, the Plaintiff attempted to exercise his option to purchase for that year on the following terms: “We would like to initiate thepurchase of the land with how we discussed in the start. Using you as the financier, $25,000 down, interest of a 5 year GIC, and a termof 25 years.” [59] When the Plaintiff subsequently asked Mr. Bourne to clarify the terms of their agreement, Mr.

Bourne responded on May 5,2014, stating that: “The terms are the same as you stated in your April 23 e-mail to me; namely $25,000 down, interest of a 5 year G.I.C.;and a term of 25 years.” [60] Despite this apparent agreement, the parties’ emails of April 23, 2014, or May 5, 2014, are inconsistent with their initialemails of July 6 and 17, 2010.

This inconsistency further supports the view that the parties did not reach an agreement on the interest rateto be applied to a purchase of the Lands in 2014. [61] Although the parties never reached an agreement as to the interest rate that would be payable in respect of a purchaseoccurring in 2014, many cases hold that where the parties to an agreement have failed to agree upon an applicable rate of interest, s. 3 ofthe Interest Act, RSC 1985, c.

I-15, cures the ambiguity by supplying an annual rate of 5%: Peterson v Blitzer (1921), (SCC), 62 SCR 384; Royal Bank of Canada v Larry Creighton Professional Corp 1989 ABCA 53 , [1989] 3 WWR 561(ABCA) at p. 564; A St.

Albert Trail Liquor Cellar Ltd. v 1105849 Alberta Ltd., 2017 ABQB 361 at paras. 22 and 28; LaChance vTranswest Financial Services Corp., 2008 ABQB 402 at paras. 37-43. [62] On the subject of whether interest payable pursuant to the Interest Act is compound interest or simple interest, Yamauchi J. inCanbar West Projects Ltd (Can-West Projects Ltd) v Sure Shot Sandblasting & Painting Ltd, 2013 ABQB 292 ordered at para. 35 thatthe interest to be imposed under the Interest Act was to be compounded monthly given that the contracting parties had negotiatedcompounding on that basis.

However, in British Pacific Properties Ltd. v British Columbia (Minister of Highways and Public Works), (SCC), [1980] 2 SCR 283 at p. 290, Laskin C.J.C. stated: “I agree with Craig J.A. that if s. 3 of the Interest Act wasapplicable so that the rate of interest was five per cent, there could be no compounding because s. 3 fixes that rate as a rate per annum.” [63] The parties’ failure to agree upon an interest rate payable on a purchase in 2014 does not render their agreementunenforceable since the resulting contractual gap is filled by s. 3 of the Interest Act, which imposes an annual interest rate of 5%.

Sincethe parties did not turn their minds to the issue of compound or simple interest, the 5% annual rate represents simple interest. 5.2.3 The Amortization Period [64] The Defendants also rely upon an absence of any clear agreement respecting the amortization period of the vendor take-backmortgage. The Plaintiff argues that the parties agreed upon an amortization period of 25 years.

In reply, the Defendants argue that, liketheir communications respecting the interest rate, the parties’ initial discussions were limited to a contemplated purchase in 2011, whichdid not occur. [65] I agree with the Plaintiff that the parties agreed upon a 25 year amortization period. The antecedent and subsequentcommunications by both the Plaintiff and Mr. Bourne consistently contemplated an “ammortization” or “term” of 25 years.

Whether theimposition of this term results from interpreting the words “Bournes agree to carry the mortgage” in light of the surrounding factualmatrix in accordance with Sattva Capital Corp. v Creston Moly Corp., 2014 SCC 53, from imposing an implied term on the basis of the“officious bystander” test in accordance with Canadian Pacific Hotels v. Bank of Montreal (SCC), [1987] 1 SCR 711,or from imposing a reasonable subsidiary term in accordance with Hepas, the result is the same. The parties’ agreement does not fail forwant of a consensus ad idem as to the amortization period of the mortgage.

The applicable amortization period is 25 years. 5.2.4 The Principal Amount [66] The Defendants also argue that the agreement is invalid since the parties failed to agree upon the principal amount of thevendor take-back mortgage. However, the written agreement of July 21, 2010, specifies a purchase price of $1,000,000 and a downpayment of $25,000.

From these figures it may be safely inferred that the principal amount of the mortgage was agreed to be $975,000. 5.2.5 The Payment Dates [67] The Defendants argue that the agreement is invalid since the parties failed to agree upon the frequency of the mortgagepayments to be made by the Plaintiff, and the dates upon which those payments were to be made. In my view, these terms are subsidiaryto the essential terms of the agreement, such that the Court may impose terms that are reasonable in all the circumstances as occurred inHepas. A review of Mr.

Bourne’s correspondence, notably his email of July 18, 2010, confirms that he was content with annualmortgage payments on May 1 of each year. Had it been necessary to order specific performance of the mortgage, I would have imposedthese subsidiary terms on the basis of what is reasonable in all the circumstances.

Hence, the agreement does not fail for the lack ofcertainty respecting these terms. 5.2.6 The Amount of the Mortgage Payments [68] The Defendants also rely upon the absence of an agreement respecting the amount of the payments to be made by the Plaintiffpursuant to the vendor take-back mortgage contemplated by the parties. The Plaintiff argues that the parties agreed in their emailexchange of July 17 and 18, 2010 that the Plaintiff was to make annual payments of $64,012.

[69] I do not accept that the parties agreed upon annual payments in the amount of $64,012. That amount was calculated by thePlaintiff based upon the interest rate of 4% compounded annually and not in advance. As stated above, the parties never agreed upon theinterest rate applicable to an option to purchase exercised in 2014. [70] Although the parties did not agree upon the amount of the mortgage payments to be paid by the Plaintiff, the quantum of thesepayments may be determined by “standard mortgage arithmetic” as in Hepas, para. 11.

Given a principal amount of $975,000, an annualsimple interest rate of 5%, and annual mortgage payments, the applicable payments were readily ascertainable.

Consequently, theagreement does not fail for a lack of certainty respecting this term. 5.2.7 The Rental Payments in the Option Exercise Year [71] Finally, and as a separate matter from the terms of the vendor take-back mortgage, the Defendants argue that the parties failedto agree upon whether or not the Plaintiff was required to make rental payments during any year in which he chose to exercise his optionto purchase. [72] I find that the parties did reach an agreement upon this aspect of their deal; The operative language of the written agreementof July 21, 2010, reads: IF CODY HERR DOES NOT PURCHASE THE ABOVE LANDS, ON THE ABOVE DATES ; BOURNES AGREE TO LEASE THELANDS FOR 2011 AND 2012 TO HERR FOR THE SUM OF TWENTY-FIVE THOUSAND DOLLARS PLUS G.S.T.

PER YEAR [73] As the above language confirms, the Plaintiff’s obligation to lease the lands and make the rental payments in any given yearonly arose if he did not purchase the Lands in that year.

Since the Plaintiff exercised his option to purchase no later than his email ofApril 23, 2014, he was not required to lease the Lands and to make two rental payments of $12,500 on May 1 and September 1, 2014.Instead, he was required to make a down payment of $25,000 against the purchase price on July 1, 2014. [74] Since the parties were ad idem on this point, it is unnecessary for the Court to impose or imply a term, and the agreement doesnot fail for any lack of certainty on this point. 5.3 Conclusions on Consensus Ad Idem [75] In conclusion, I find that the parties’ option to purchase agreement of July, 2010, is not void due to a lack of agreement uponessential terms.

The parties reached an agreement as to the parties, the property, and the price. The remaining terms were either agreedupon or are imposed by operation of law. [76] As noted above, the Plaintiff is presently prepared to waive his contractual right to enter into a vendor take-back mortgagewith the Defendants. Consequently, it is unnecessary to consider the advisability of directing specific performance of that aspect of theagreement, as the Court of Appeal did in Hepas. Had it been necessary to do so, however, the agreement respecting the mortgage issufficiently certain as to be legally enforceable. 6.

Is the Plaintiff’s option to purchase void for a lack ofconsideration? [77] The Defendants argue that the Plaintiff’s option to purchase the Lands in 2014 is void since no additional consideration wasextended by the Plaintiff in the second written agreement of July 30, 2010, which contains the option to purchase for the year 2014.

Insupport, the Defendants cite Mark 7 Development Ltd. v Peace Holdings Ltd. (1991), (BC CA), 53 BCLR (2d) 217(CA) at paras. 35-38 where a certain option to purchase was found to be void since it was unsupported by consideration. [78] The Plaintiff responds that that the July 21, 2010, and July 30, 2010, agreements cannot fairly be construed as two separateagreements each requiring their own consideration. Since the Plaintiff signed both of these agreements on the same day, they have to beconsidered as two parts of the same whole. [79] I agree with the Plaintiff on this point.

The Plaintiff deposes that he initially declined to sign the written agreement of July 21,2010, pending a further discussion, and then signed both written agreements on the same date. This confirms that he was only willing tosign the agreements if he received the additional options to purchase as part of the overall package deal. The Defendants do not disputethis evidence.

Consequently, the written agreements of July 21, 2010, and July 30, 2010, must be construed as a single agreement, andthe promises made by the Plaintiff in the earlier document provide the consideration which supports the options to purchase in the laterdocument. 7. Did the Plaintiff exercise the 2014 option to purchase inaccordance with its terms? 7.1 The Parties’ Positions [80] The Defendants argue that the Plaintiff is not entitled to specific performance of the agreement of purchase and sale since hefailed to exercise his 2014 option in strict compliance with its terms.

More specifically, the Defendants rely upon the Plaintiff’s failure tomake a rental payment of $12,500 by May 1, 2014, and his failure to tender the down payment of $25,000 by July 1, 2010.

[81] The Plaintiff argues that, given his exercise of his option to purchase in 2014, he was not required to make rental paymentsduring that year. Further, the Plaintiff was relieved from his obligation to tender the down payment since Mr. Bourne had expresslyrepudiated the agreement. 7.2 Applicable Legal Principles [82] In order to enforce an agreement triggered by the exercise of an option to purchase, the Plaintiff is required to demonstratethat he strictly complied with the terms of that option unless he was excused from doing so on some equitable ground.

This subject wasaddressed by Duff C.J. in Pierce v Empey, (SCC), [1939] SCR 247 at p. 252: It is well settled that a plaintiff invoking the aid of the court for the enforcement of an option for the sale of land must show that theterms of the option as to time and otherwise have been strictly observed.

The owner incurs no obligation to sell unless the conditionsprecedent are fulfilled or, as the result of his conduct, the holder of the option is on some equitable ground relieved from the strictfulfilment of them… [83] The above passage from Pierce was quoted and applied by Bastarache J. in Sail Labrador Ltd. v Challenge One (The), (SCC), [1999] 1 SCR 265 at para. 37.

And as Major J. stated in Mitsui & Co. (Canada) Ltd. v Royal Bank of Canada, (SCC), [1995] 2 SCR 187 at para. 27, the exercise of an option to purchase “must be unconditional, must only be made once,and must be made in accordance with the terms of the option.” [84] However, as Mr.

Justice Sharpe explains in Injunctions and Specific Performance, looseleaf (Toronto: Canada Law Book,2006) at §10.630: “... it is also well established that where the defendant has made it clear that performance will not be forthcoming andthe formal tender would be futile, the plaintiff’s failure to tender will not be fatal to the specific performance claim.” A similar statementwas made by the Supreme Court of Canada in Kloepfer Wholesale Hardware and Automotive Company Limited v Roy, (SCC), [1952] 2 SCR 456 at p. 472: A tender was not required when as was apparent from the actions of the appellant and from the proceedings and evidence at the trial, theappellant never intended to perform the contract.

The above authorities were quoted and applied by Macleod J. in Roma Construction Ltd. v Excel Venture Management Inc., 2007ABQB 396 at para. 41. 7.2 Application to the Present Case [85] Regarding the Plaintiff’s failure to make a rental payment on May 1, 2014, I have previously found that the obligation tomake rental payments in any given year only arose if the Plaintiff did elect to purchase the Lands in that year. Since the Plaintiff advisedMr.

Bourne of his intention to exercise the option to purchase on April 23, 2014, he was not required to make two rental payments of$12,500 on May 1 and September 1 of that year. Instead, he was required to make a single $25,000 down payment of the purchase priceon July 1. Hence, the Plaintiff’s non-payment of $12,500 on May 1, 2014, did not constitute non-compliance with the agreement. [86] Regarding the Plaintiff’s failure to tender the down payment of $25,000 prior to July 1, 2014, this failure is excused by thefact that, prior to that date, Mr.

Bourne had advised the Plaintiff in writing that he was refusing to go ahead with the deal. [87] I agree with the Plaintiff on this point. In his correspondence of May 6, 15, 22, 28, and 29, 2014, Mr. Bourne repeatedly andexpressly advised the Plaintiff that Mr. Bourne was refusing to honour the deal he had made. After first attempting to deceive thePlaintiff into believing that the late Ms. Bourne’s interest in the Lands had devolved to her grandchildren, Mr. Bourne then stated that thePlaintiff could only occupy the Lands in the future as a lessee and not as an owner.

These efforts having failed to deter the Plaintiff, Mr.Bourne then attempted to pressure the Plaintiff into abandoning the Lands by asserting that the Plaintiff was trespassing. This conduct onthe part of Mr. Bourne excused the Plaintiff from his obligation to tender the down payment. Doing so in the face of suchcommunications would have been futile.

Despite this, the letter from the Plaintiff’s lawyer dated June 5, 2014, confirmed that thePlaintiff was ready, willing, and able, to close the deal on June 30, 2014. [88] In conclusion, the Plaintiff’s non-payment of the rental payment of May 1, 2014, and his non-tender of the down payment byJuly 1, 2014, do not preclude the Plaintiff from claiming specific performance of the sale and purchase agreement. 8. Should the equitable remedy of specific performance begranted? [89] By refusing to convey the Lands to the Plaintiff and by repudiating the agreement, the Defendants committed a breach ofcontract.

As a remedy for this breach, the Plaintiff seeks specific performance rather than damages. In other words, he seeks an ordercompelling the Defendants to convey the Lands to him in accordance with their agreement. [90] The test for specific performance was stated by Sir John Leach, V.C. in Adderley v Dixon (1824), 1 Sim & St 607, 57 ER 239at p. 240: Courts of Equity decree the specific performance of contracts, not upon any distinction between realty and personalty, but becausedamages at law may not, in the particular case, afford a complete remedy.

Thus a Court of Equity decrees performance of a contract forland, not because of the real nature of the land, but because damages at law, which must be calculated upon the general money value of

land, may not be a complete remedy to the purchaser, to whom the land may have a peculiar and special value. [91] The above passage was quoted with approval by Sopinka J. in Semelhago v Paramadevan, (SCC), [1996] 2SCR 415 at para. 21. Sopinka J. went on to hold that not all breaches of agreements for the purchase of real property will warrant specificperformance as a remedy.

In order to obtain this remedy, the claimant must establish that the subject property has a “peculiar and specialvalue”, such that an award of damages would be inadequate. [92] The evidence in the Plaintiff’s Affidavit, which is undisputed, establishes that the Lands have a “peculiar and special value” tohim, and that an award of damages would be an inadequate remedy. [93] I find that the following considerations warrant the remedy of specific performance. The Plaintiff is not a real estate investorand did not buy the Lands as a mere financial investment.

The Plaintiff is a farmer, and he entered into occupation of the Lands in orderto farm the Lands himself. In anticipation of future ownership, he has farmed the Lands for over 10 years. The Lands are in closeproximity to other land that he owns, as well as land that his parents own. The Plaintiff and his father farm all of these lands co-operatively. The Plaintiff has made extensive efforts to find other suitable land in the same area, but found the other land in the area to beunavailable, prohibitively expensive, or much less suitable.

The Lands are unique in that they consist of over 2,400 total acres in oneblock and over 1,400 total arable acres in another block. Other parcels of farmland in the area are not nearly as big as the Lands. Beforeoccupying the Lands, the Plaintiff was required to graze his herd of some 400 cattle across 9 different pastures, including one which wasover an hour’s drive away. Now he can graze his entire herd in one area and can check the entire herd in about an hour.

The Plaintiff hasmade significant improvements to the Lands including the installation of fencing and a “wet well”, and has improved the yield of theLands through crop rotation, fallowing and pasturing techniques, and by controlling weeds. When the Plaintiff first started farming onthe Lands, it contained very little grass and could only sustain about 200 of the 400 cattle.

Now the entire herd can be sustained by onlyhalf the Lands. [94] I conclude that the circumstances of this case, notably the Plaintiff’s close connection to the Lands, and the unique attributesof the Lands, call for an award of specific performance. An award of damages would not be an adequate or appropriate remedy. 9. Judgment Granted [95] The Plaintiff’s application for

summary judgment is granted and the Defendants’ application for

summary dismissal isdenied. [96] The Plaintiff is granted the remedy of specific performance of the purchase and sale agreement between himself and theDefendants. The Defendants are ordered to convey the Lands to the Plaintiff in exchange for a purchase price of $1,000,000. Since theoriginal closing date has passed, I direct that the transaction shall close on the date that is 60 days from the date of this decision. Sincethe Plaintiff has waived his right to obtain financing from Mr.

Bourne, the parties are not required to enter into a vendor take-backmortgage. [97] The parties may address costs in writing within 30 days of this decision. Heard on the 21st day of April, 2021. Dated at the City of Edmonton, Alberta this 18th day of June, 2021. N.J. Whitling J.C.Q.B.A. Appearances: Richard Hajduk and Roger Gibbs for the Plaintiff Sean E.D. Fairhurst

for the Defendants