Babiuk v Elkow, 2021 ABQB 536

Court of Queen’s Bench of Alberta Citation: Babiuk v Elkow, 2021 ABQB 536 Date: 20210713 Docket: 1803 21884 Registry: Edmonton Between: Raymond Babiuk and Linda Babiuk Applicants - and - Dennis Elkow Respondent _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice John T. Henderson _______________________________________________________ 1. Overview [ 1 ] The Applicants are the registered owners of approximately 1,120 acres of farm land in the County of Two Hills, Alberta (the “Lands”).

The current Certificates of Title in relation to the Lands are encumbered, inter alia , by two caveats that were registered by the Respondent, Dennis Elkow (Mr. Elkow) on July 20, 2018 as Instrument Number 182190847 (the “Lease Caveat”) and on January 18, 2019 as Instrument Number 192031894 (the “Ownership Caveat”). [ 2 ] By way of Amended Originating Application, the Applicants seek an order made pursuant to s 141 of the Land Titles Act,

RSA 2000 c L-4 (the “ LTA ”) discharging the Lease Caveat by reason of the failure of the Respondent to show cause why the caveat should not be discharged. Due to an oversight, the Amended Originating Application does not specifically seek an order discharging the Ownership Caveat, however the application proceeded on the basis that this relief was sought. Mr.

Elkow, through counsel, concedes that the issue of the validity of the Ownership Caveat was fully argued before me and invites me to determine this issue as if the Amended Originating Application had sought relief pursuant to s 141 in relation to the Ownership Caveat. [ 3 ] The Applicants also seek damages pursuant to s 144 of the LTA along with other ancillary relief. [ 4 ] The Lease Caveat provided notice of Mr.

Elkow’s interest in the Lands pursuant to an agricultural lease agreement in relation to the Lands made between the Applicants and the Respondent that was executed July 3, 2015, but effective January 2, 2015. (the “Lease Agreement”). [ 5 ] By an Order dated January 21, 2020, Justice Fraser declared that the Lease Agreement was “expired and terminated”. No appeal was brought from the Order of Justice Fraser. The Respondent concedes that in light of Justice Fraser’s Order, the Lease Caveat must be discharged from title.

Accordingly, I direct that the Land Titles Registrar discharge the Lease Caveat, Instrument Number 182190847, from each of the Certificates of Titles to the Lands. [ 6 ] On this application Mr. Elkow asserts that he has shown cause to justify the continued registration of the Ownership Caveat. He argues that his interest in the Lands arises from a “Sale Agreement” that is at least partially in writing, pursuant to which the Applicants are holding the Lands in trust for him as beneficial owner. Mr.

Elkow argues that the Applicants have a trust obligation to hold the Lands for him “until he [is] in a position to complete the purchase”. [ 7 ] Alternatively, Mr. Elkow observes that the record in relation to this application contains conflicting evidence and to determine whether he has shown cause to justify the continued registration of the Ownership Caveat, viva voce evidence is necessary to assess the credibility of witnesses and resolve the conflicts in the evidence. He therefore argues that I should direct a

summary trial to properly address these issues. [ 8 ] The Applicants deny that there was ever a “Sale Agreement” as described by Mr. Elkow. The Applicants argue that filing the Ownership Caveat was strategic. It was only filed after the Applicants filed this Originating Application to seek removal of the Lease Caveat and only after Mr. Elkow realized that he did not have any continuing interest in the Lands because the Lease Agreement had expired. The Applicants argue that Mr. Elkow has failed to show cause why the Ownership Caveat should not be discharged. They seek an order discharging this caveat. 2.

Background a) 2010 Real Estate Purchase Contracts [ 9 ] The Applicants’ predecessors in title were Anne Babiuk (as to most of the parcels that comprise the Lands), Donald Babiuk and Sylvia Babiuk (as to the remaining parcels that comprise the Lands). Ann Babiuk is Applicant Raymond Babiuk’s mother. Donald Babiuk and Sylvia Babiuk are respectively Raymond Babiuk’s brother and sister-in-law.

In these reasons, I will refer to Anne Babiuk, Donald Babiuk and Sylvia Babiuk at the “Prior Owners”. [ 10 ] On or about June 25, 2010, the Prior Owners entered into two Agricultural Real Estate Purchase Contracts (the “2010 Contracts”) with Mr. Elkow pursuant to which the Lands would be sold to Mr. Elkow. The combined purchase price was a total of $1,350,000. A deposit $5,000 for each the two contracts was required.

The closing date was December 1, 2011. [ 11 ] Clause 12.2 of each of the two 2010 Contracts, as amended, contained the following provision: Buyer’s Financing Condition: It is a condition precedent to this offer that the Buyer is able to place new mortgage(

s) and/or assume the existing mortgage(

s) upon terms acceptable to the Buyer in order to fund the purchase of the Property. The Buyer shall have an opportunity to obtain such financing until before 9 p.m. on October 1, 2011 to obtain financing approval. [ 12 ] Mr. Elkow acknowledges that he failed to pay the deposits as required. He was also unable to arrange for financing within the prescribed time. He did not seek an extension. As a result, those transactions were not completed and Mr. Elkow has no further rights arising from the 2010 Contracts. He does not assert any interest in the Lands based on the 2010 Contracts.

b) Further Attempts to Purchase the Lands [ 13 ] When Mr. Elkow was not able to close the purchase of the Lands in accordance with the 2010 Contracts, he entered into discussions with the Applicant Raymond Babiuk. During those discussions Raymond Babiuk explained that he and his wife were willing to purchase the Lands from the Prior Owners for the purchase price of $1.35 million. Mr. Elkow asserts that during the course of these discussions he and the Applicants entered into to the “Sale Agreement” which was partly oral and partly in writing.

He claims that pursuant to the “Sale Agreement” the Applicants became obligated to sell the Lands to him for a purchase price of $1,350,000. Mr. Elkow deposes that “Sale Agreement” contained the following terms: • Mr. Elkow would pay all of the costs associated with the purchase of the Lands. • Mr. Elkow would be responsible for any shortfall. • Anne Babiuk would continue to reside in the house on the home quarter. • Mr. Elkow would be responsible for all mortgage, property tax and other costs associated with the Lands • Any surface lease payments received in relation to the Lands would be credited to Mr.

Elkow as part of the purchase price.

• Mr. Elkow would take possession after the 2012 crop was harvested near the end of September 2012. • Mr. Elkow would also receive credit against the purchase price in relation to any payments he made, other than for payments inrelation to property taxes. • Mr. Elkow “would purchase the Lands from Babiuk and his wife for the fixed sum of $1,350,000 less the aforesaid credits uponbeing able to obtain financing” [14] After the discussion with Mr.

Elkow in late 2011, the Applicants obtained financing from Farm Credit Corporation in theamount of $1.3 million and proceeded with the purchase of the Lands from the Prior Owners. [15] Mr. Elkow deposes that he paid the Applicants $50,000 on December 11, 2011, which was the shortfall between the financingthe Applicants received from Farm Credit Corporation and the purchase price for the Lands. Mr. Elkow also took possession of andfarmed the Lands starting in late 2012. He continued to be in possession of the Lands until early 2020. [16] Paragraph 9 of Mr.

Elkow’s affidavit explains that there was no agreement regarding a specific date on which he wouldpurchase the Lands from the Applicants. That paragraph reads in part: At no time was there a verbal or written Agreement between myself and the Babiuks that I would purchase the Lands on a specific datefrom them as I had no idea when the court actions against me would be concluded.

Indeed due to my being involved in litigation, I wasunable to renew mortgages against other Lands owned by me which in turn resulted in several other foreclosure actions being institutedagainst me and I made the Babiuks aware of same... [17] Mr. Elkow has not taken any steps to close the purchase of the Lands pursuant to the terms of the “Sale Agreement”. Nor hashe taken any steps to identify a closing date.

c) The 2015 Agricultural Lease [18] On July 3, 2015, the Applicants as Lessors and Mr. Elkow as Lessee entered into the Lease Agreement in relation to theLands. The effective date of the Lease Agreement was January 2, 2015 and was for a 5-year term, subject to certain renewal terms. [19] Clause 12 of the Lease Agreement provided the Applicants with a right, on 60 days notice, to terminate the Lease Agreementwith respect to some or all of the Lands, if those Lands were sold “or required for any purpose whatsoever”. During the 60-day noticeperiod, Mr.

Elkow had a right of first refusal to purchase that portion of the Lands that were the subject of the notice. On receiving the60-day notice Mr. Elkow also had the right to purchase all of the Lands for “the total sum of $1,330,000 minus a downpayment of$112,842.59”. [20] At paragraph 11 of his affidavit, Mr. Elkow deposes that he did not read the Lease Agreement before signing it. He alsodeposes that he and Mr. Babiuk had been drinking heavily when the Lease Agreement was signed and he was assured that the Lease wasonly a formality and that Mr. Babiuk would never enforce the lease.

However, during oral submissions on this application, counsel forMr. Elkow confirmed that non est factum is not being raised in relation to the Lease Agreement. [21] The evidence is clear that Mr. Elkow did take the benefit of the Lease Agreement. On July 20, 2018, the Lease Caveat wasfiled to protect Mr. Elkow’s interest in the Lands pursuant to the Lease Agreement. Mr. Elkow continued to assert his rights under theLease Agreement up to and including the appearance before Justice Fraser on January 21, 2020 when the Court confirmed that the LeaseAgreement was “expired and terminated”. [22] Mr.

Elkow has no continuing interest in the Lands pursuant to the Lease Agreement. 3.

Show Cause Why Caveat Should Not be Discharged – s 141 LTA [23] The application to discharge the Ownership Caveat is brought pursuant to s. 141(1) of the LTA which provides: 141(1) In the case of a caveat filed, except a caveat filed by the Registrar as hereinafter provided, the applicant or owner may at any timeapply to the court, by originating notice, subject to the Alberta Rules of Court, calling on the caveator to show cause why the caveatshould not be discharged, and on the hearing of the application the court may make any order in the premises and as to costs that thecourt considers just. [24] In Main v Jeerh, 2006 ABCA 138, the Court of Appeal discussed the test to show cause why the caveat should not bedischarged pursuant to s 141(1).

The Court cited its earlier decision in Thomas C. Assaly Corporation Ltd. v. Alberta IndustrialDevelopments Ltd. (1982), 41 A.R. 436, where Belzil J.A. held at para. 2 that “... it is common ground that the caveator on thisapplication need only show a prima facie claim to an interest in the land” [25] The Court in Main v Jeerh also adopted the reasoning of Hutchinson J. in Acquest/Alberta Mining Inc. v. BarryDevelopments Inc. (1999), 241 A.R. 1, 1999 ABQB 511, with respect to the meaning of a prima facie case.

Justice Hutchinson saidpara. 65: I find the test to be that of a prima facie claim that is to say "on the face of it" or "a fact presumed to be true unless disproved by someevidence to the contrary" (Black's Law Dictionary 5th ed.). A claim must be based upon facts which if they are believed are completeand sufficient to justify the claim (Re Ontario Human Rights Commission et al. v. Simpson-Sears Ltd., (SCC), [1985] 2S.C.R. 536, supra). [Emphasis added.] [26] The test at a show case hearing is the same test that is applied in a non suit application Main v Jeerh at para 12.

As a result,the threshold the caveator must meet is low. See also Sewak v Gill Enterprises Inc v Bedaux Real Estate Inc, 2018 ABQB 823 at para

12 ; Paramount Mortgage Corp v Avenue AH Construction GP Corp , 2014 ABQB 84 at para 31 to 32 . 4. Record Consists of Conflicting Affidavit Evidence [ 27 ] The record before me consists of multiple Affidavits sworn by Mr. Babiuk and one affidavit sworn by Mr. Elkow, who was also cross-examined on his affidavit. The affidavits contain significantly conflicting evidence in relation to material issues. Most fundamentally, Mr. Babiuk deposes the in late 2011 Mr. Elkow was given the right to purchase the lands for $1.35 million provided that the transaction closed and the purchase price was paid by December 1, 2012.

Mr. Babiuk deposes that after that time Mr. Elkow had no right to purchase the Lands other than those rights that were granted via a first right of refusal in the Lease Agreement. Conversely, Mr. Elkow deposes that there was never any agreement that he was required to pay the purchase price by the end of 2012 or at any other specific time. Instead, he deposes that the “Sale Agreement” permitted him to close the transaction and pay the purchase price whenever he was able to do so. He insists that the terms of the “Sale Agreement” have been operative since late 2011 and continue to be operative.

He claims an entitlement to purchase the Lands at a fixed price at some point in the future that he will determine. [ 28 ] Mr. Elkow submits that I should, on the basis of his evidence, conclude that he has demonstrated a prima facie claim to an interest in the Lands. Alternatively, because of the conflicting evidence Mr. Elkow urges me to direct a

summary trial to permit viva voce evidence to be tendered so that credibility assessments can be undertaken and, in this way, determine whether the s 141 test has been met. [ 29 ] A show cause hearing pursuant to s 141 of the LTA is a procedure in which the threshold is low and involves a test similar to that applied in a non-suit application. The show cause hearing is not intended to determine the substantive rights between the parties in the face of conflicting evidence.

Instead, it is a procedure designed to quickly remove a caveat from title where the caveator is not able to establish a prima face entitlement to the continuation of the caveat: Main v Jeerh at para 12 . [ 30 ] I conclude that this application must be determined on the basis described by Hutchinson J. in Acquest/Alberta Mining Inc by assessing the evidence of Mr. Elkow to determine whether the facts deposed to, “... if they are believed are complete and sufficient to justify the claim” . Thus, it is not a matter of weighing the evidence or considering conflicting evidence.

Instead, I will consider the evidence of Mr. Elkow in the most favourable light and assume that what he has deposed to is true and then consider whether that evidence establishes a prima facie claim to an interest in the Lands. [ 31 ] If Mr. Elkow’s evidence establishes a prima facie claim to an interest in the Lands then the application must be dismissed and the Court may give direction as to the manner in which the substantive rights of the parties may be determined.

In this regard, the Court has broad powers under s 141(1) and 142 make to orders that are just, including a direction that a caveator take proceedings on a caveat. Alternatively, where there is conflicting evidence regarding the legitimacy of an interest in land claimed by way of a caveat, the Court may give a direction that the substantive rights be determined through viva voce evidence at trial or

summary trial. [ 32 ] However, if on the basis of Mr. Elkow’s evidence, no prima facie claim to an interest in the Lands is established, the caveat must be discharged. 5. Has Mr. Elkow Demonstrated a Prima Facie Claim to an Interest in the Lands? [ 33 ] Mr. Elkow submits that he has demonstrated a prima face claim to an interest in the Lands though the “Sale Agreement”. As a result, he claims that the Applicants hold the Lands in trust for him. [ 34 ] Mr. Elkow’s assertion that the Applicants hold the Lands in trust for him does not elevate that status of his argument. This is because Mr.

Elkow claims the alleged trust arises as a result of the “Sale Agreement”. His rights are therefore determined on the basis of the “Sale Agreement”.

Furthermore, s 7 of the Statute of Frauds requires that a declaration of trust be in writing: All declarations or creations of trusts or confidences of any lands, tenements or hereditamaments, shall be manifest and proved by some writing signed by the party who is by law entitled to declare such trust, or by his last will in writing, or else they shall be utterly void and of no effect. [ 35 ] Mark Gillen, Lionel Smith & Donovan WM Waters, Waters Law of Trusts in Canada 5th ed (Toronto, Thomson Reuters Canada, 2021) at page 267 explains the requirements of s 7 of the Statute of Frauds : "Though it may be informal in character, the writing is also required to be comprehensive in the information it contains.

As far as s. 7 is concerned, this means that not only must the fact of trusteeship be evidenced by the writing, but the terms of the trust must also appear." [ 36 ] The record on this application does not disclose any evidence of any writing signed by the Applicants disclosing the existence of a trusteeship or the terms of the alleged trust. Therefore, whether Mr.

Elkow has demonstrated a prima facie claim to an interest in the Lands is dependent upon whether the “Sale Agreement” provides him with an interest in the Lands that can properly be the subject of the Ownership Caveat. [ 37 ] The Applicants contend that there is no lawful basis for the Ownership Caveat. They argue that even assuming Mr. Elkow’s evidence is taken as being completely accurate (which they strongly contest), the Ownership Caveat must be removed. There are two grounds for this position.

a) Statute of Frauds [ 38 ] The Applicants argue that there is “absolutely no support, evidence or proof of any written purchase agreement concerning” the alleged “Sale Agreement”. For this reason, they argue that the Statute of Frauds has not been complied with. Thus, even if there was a “Sale Agreement” as alleged, it is unenforceable. The Applicants argue that for this reason, Mr. Elkow has failed to show cause why the Ownership Caveat should not be discharged.

[ 39 ] The Statute of Frauds requires that agreements concerning land be in writing. In modern language, the relevant elements of s. 4 of the Statute of Frauds are as follows: No action shall be brought … to charge any person upon any contract or sale of lands, tenements or hereditaments, or any interest in or concerning them … unless the agreement upon which the action is brought, or some memorandum or note thereof is in writing and signed by the party to be charged therewith or some person thereunto lawfully authorized by the party. [ 40 ] Mr.

Elkow deposes that the terms of the “Sale Agreement” are, at least in part, evidenced by a series of credit and other statements prepared by Raymond Babiuk and which are collectively marked as Exhibit “C” to Mr. Elkow’s affidavit. I have reviewed the contents of Exhibit “C” and am unable to discern anything in writing signed by the Applicants that purports to describe the sale of the Lands or to describe the terms of any sale of the Lands. What is obvious from the whole of the evidence is that Mr.

Elkow was in possession of the Lands for a period of time after 2011 and that there was some sort of an arrangement by which he and Mr. Babiuk each contributed financially to the operation of the Lands. The statements seem to be an attempt to reconcile the payments in some way. However, I am not satisfied that these records provide any evidence of the “Sale Agreement” on the terms deposed to by Mr. Elkow. As a result, despite Mr.

Elkow’ bald statement that the “Sale Agreement” is partly in writing, there is nothing on the record before me that satisfies the requirements of s. 4 of the Statute of Frauds . [ 41 ] Non compliance with the Statute of Frauds renders the oral contract for the sale of lands unenforceable. However, unenforceability under the Statute can in some circumstances be avoided through the doctrine of part performance: Haan v Haan , 2015 ABCA 395 at para 10 . This doctrine was recently explained by Justice Renke in Mitchell v Pytel , 2021 ABQB 403 at para 243 as follows: The doctrine of part performance has three aspects.

First, the plaintiff must establish detrimental reliance. It would be unjust for the defendant to evade obligation by relying on the Statute . Second, the plaintiff must establish that the acts of detrimental reliance sufficiently manifest the contract alleged.

Third, if the link between the acts and the yet-to-be-in-evidence contract is sufficiently strong, “parol” (oral or non-written) evidence of that contract may be permitted to be adduced: Erie Sand and Gravel at para 79; Cappis v Allen , 2016 ABQB 473 at para 27 ; Jordan v Skwarek , 2016 ABQB 380 at para 11 ; Haan v Haan at para 15 (c). [ 42 ] Whether the doctrine of part performance is applicable in this case in not clear on the record available on this application, particularly given its conflicting nature of the evidence. Clearly there was some kind of relationship between the parties which resulted in Mr.

Elkow taking possession of the Lands from approximately late 2012 until early 2020, although for a large part of that time the possession may have been as pursuant to the Lease Agreement that was effective January 2, 2015. Furthermore, there were payments made by Mr. Elkow, including a $50,000 payment in late 2011 to facilitate the purchase of the Lands by the Applicants from the Prior Owners. There is also some evidence that Mr. Elkow made some improvements to the Lands. [ 43 ] There are triable issues in relation to part performance. Those issues can only be resolved at a trial.

For this reason, the Applicants cannot succeed in having the Ownership Caveat removed because of the failure to comply with the Statute of Frauds .

b) The Alleged “Sale Agreement” fails for Lack of Certainty [ 44 ] The Applicants argue that even if the Statute of Fraud does not render the alleged “Sale Agreement” unenforceable, Mr. Elkow has failed to demonstrate a prima facie claim to an interest in the Lands because the alleged agreement fails for uncertainty. The Applicant’s position in this regard is stated at para 93 of the Applicant’s Brief which provides in part as follows: 93. Finally, there is no certainty with respect to the ordinary and essential commercial terms of a real property transaction such as the one alleged by Elkow.

According to the Court of Appeal, the law requires that the “terms given by the parties must be such as show with a reasonable degree of certainty what the parties mean” (citing Ko v Hillview Homes Ltd ., 2012 ABCA 245 at para 87 ) ... [ 45 ] The Applicants argue that even accepting Mr. Elkow’s evidence as being true then, at most, the evidence establishes an invitation to treat or an agreement to agree that is unenforceable at law. [ 46 ] At its most basic level, Mr.

Elkow’s position is that the “Sale Agreement” requires the Applicants to sell the Lands to him for $1.35 million, less adjustments, at some unspecified time in the future but which is entirely within Mr. Elkow’s control. He argues that by virtue of the “Sale Agreement” he is the beneficial owner of the Lands and the Applicants hold legal title in trust for him. He therefore submits that the terms of the “Sale Agreement” demonstrate a prima facie claim to an interest in the Lands.

On this basis he argues that the application should be dismissed and the Ownership Caveat should remain on title to protect his interest. [ 47 ] In his affidavit Mr.

Elkow explains further by deposing at para 9 that: “At no time was there a verbal or written Agreement between myself and the Babiuks that I would purchase the Lands on a specific date from them as I had no idea when the court actions against me would be concluded”. [ 48 ] Accepting his evidence as true for the purpose of this application, the parties did not agree to a date on which the sale of the Lands was to close or when the purchase price was to be paid.

The Applicants argue that these were essential terms and the failure to specify them renders the “Sale Agreement” uncertain and thus unenforceable. [ 49 ] For an agreement to be enforceable, the parties must have reached an agreement on all of the essential terms. Where the parties fail to reach agreement on all the essential terms the agreement will fail for lack of certainty of terms. The parties must make the agreement themselves; the courts will not make it for them: John D.

McCamus, The Law of Contracts, 3d (Toronto: Irwin Law, 2020 Irwin Law) (“McCamus”) at page 97. [ 50 ] The issue of certainty of the terms of a contract must be assessed on an objective basis. The question is whether “it is clear to the objective reasonable bystander, in light of all the material facts, that the parties intended to contract and the essential terms of that contract can be determined with a reasonable degree of certainty:” Semchyshen v Semchyshen , 2016 SKCA 108 , Ryan-Froslie JA at

para 37. [51] Parties, property and price are often said to be the essential terms of an agreement. But depending on the circumstancesadditional terms might also be essential: Ko v Hillview Homes at para 88. At para 101 of that decision, Justice Côté further explainedthe need for certainty beyond parties, property and price in the context of the sale of land. He said: ... where there was an agreement to sell lands, so that the parties, property and price were fixed, but the “terms and deeds etc. to bearranged”, there was no contract.

It was practically necessary to fix when the balance was due, plus how to handle the exiting mortgagesand leases: Williston v Lawson (1891), 1891 CanLII 75 (SCC), 19 S.C.R. 673 (S.C.C.) CF Dobell v Grand Pacific Town & DevelopmentCo. (1910), 15 W.L.R. 149 (Alta C.A.).

A brief contract to sell land either for cash or over time was void because a 10% discount forcash was ambiguous as to whether it was off the whole of the price or the remaining balance: Watson v Jamieson, supra. [52] See also McCamus at page 108. [53] In Mitchell v Pytel, Justice Renke recently reviewed the principles of law in relation to certainty in the context of the sale ofland and summarized as follows para 253: The parties must have agreed on the “essential” terms of the agreement: Milroy v Klapstein at para 14.

See, e.g., McKenzie v Walsh(1920), (SCC), 61 SCR 312 at 313. “Essential” terms are not restricted to “parties, property, and price.” Repayment orperformance terms may be essential as well. Justice Brown wrote in BCI Bulkhaul Carriers Inc v Wallace, 2014 BCSC 885 at para 45that “for a contract to be enforceable, the terms such as the parties, the property, the price, the completion date and the terms forpayment must be clear.” [54] The facts in Mitchell v Pytel are very similar to the facts of the present case. The parties entered into an agreement in January1999 for the sale of a home in Edmonton.

They agreed upon a purchase price of $78,000 plus advances that had been made to renovatethe property. No agreement was reached as to when or how the purchase price would be paid although the parties seemed tocontemplate that the purchase price would be paid from rental revenue, even though there was no agreement that the vendor was entitledto receive the rental revenue. The purchaser took possession of the property and the vendor filed a caveat to protect his unpaid vendor’slien. As at the date of trial in December 2020 the purchaser had not paid any portion of the purchase price.

At para 257 Justice Renkeconcluded as follows: In my opinion, the repayment terms were of vital importance both to Mr. Mitchell and Mr. Pytel. The repayment terms cannot be inferredon the evidence. In my opinion, the arrangement between Mr. Mitchell and Mr. Pytel therefore was void for uncertainty of terms. [55] The facts in Booth v Finch, [1996] B.C.J. 2082 (BCCA) are also very similar to the present case. In Booth the Plaintiffclaimed to be a purchaser of certain lands from the Defendant pursuant to an oral agreement.

The Plaintiff claimed that the purchaseprice was $12,000 and that he had paid $2,000 toward the purchase price and that the balance was payable over time without interest.The Plaintiff took possession of and moved a mobile home onto the lands. He also did improvements to the property. However, therewas no evidence that the parties had agreed to a completion date or a closing date. The Chambers judge concluded that the alleged saleagreement was void for uncertainty and granted

summary dismissal. On appeal the Appellant submitted that “a completion date orclosing date was not an essential term of the agreement and that it was open to the learned judge to infer a term that six months afterpossession the defendants could have demanded payment at any time”. The British Columbia Court of Appeal rejected this argument. The Court agreed that if the real intentions of the parties can be collected from the language within the four corners of the instrument,then the Court may give effect to such intentions by supplying anything necessary to be inferred.

However, in that case the there wasnothing to support an inference that the purchase price was payable on demand. The sale agreement was void for uncertainty. [56] However, the failure to identify a closing date or the date for the payment of the purchase price will not always give rise to asale agreement being void for uncertainty. For example, in 645396 Alberta Ltd. (c.o.b. Aurora Transportation) v Lapointe, 2014ABQB 60 the parties entered into a handwritten agreement for the purchase of a portion of the Defendant’s quarter

section of land for$200,000. The agreement did not contain a closing date, but the parties had agreed to “whatever date would be reasonable in thecircumstances”. The Court concluded that the agreement was not void for uncertainty because some mechanism had been agreed to forthe determination of the closing date.

Similarly in Roswell Group Inc v 1353141 Alberta Ltd, 2020 ABCA 428 at para 50 the Court ofAppeal concluded that the failure to stipulate a closing date or possession date were not essential terms given the relationship betweenthe parties as joint venture partners and where the agreement for the sale of the lands arose from the execution of a shotgun buy/sellprovision in the context of other litigation. [57] I conclude that in the circumstances of this case, the date on which the transaction was to close and the purchase price paidwas an essential term.

The parties were required to either specify a date or provide a mechanism by which the date could be determined. Mr. Elkow’s evidence that there was never a verbal or written agreement between himself and the Applicants and the Babiuks as to thedate on which he would purchase the Lands is an acknowledgement that the agreement fails for lack of certainty. [58] Assuming that this arrangement gave rise to a binding enforceable agreement, it would only be enforceable by Mr. Elkow butcould never be enforced by the Applicants.

Any attempt by the Applicants to enforce the sale of the Lands could always be met by Mr.Elkow’s response that the time for payment has not yet arrived. On his

interpretation of the arrangement, he could tie up the Landsindefinitely. Almost 10 years have now passed since the “Sale Agreement” was entered into and he is not ready to close the transactionor pay the purchase price. He offers no indication that he is prepared to do so at any particular time. It is not possible to infer a termwhich mandates the time that the purchase price must be paid. On any objective assessment of this arrangement the essential termsrelating to the closing date and the time for payment cannot be determined with a reasonable degree of certainty.

I conclude that the“Sale Agreement” is void for lack of certainty of terms. [59] I therefore conclude that Mr. Elkow has not established a prima facie claim to an interest in the Lands. As a result, inaccordance with s 141(1) of the LTA, I direct that the Land Titles Registrar discharge the Ownership Caveat, Instrument Number192031894, from each of the Certificates of Titles to the Lands.

[ 60 ] I conclude that Mr. Elkow has no ongoing interest in the Lands. 6. Have the Applicants Proven Damages Pursuant to s 144 of the LTA ? [ 61 ] The Applicants claim that they have suffered damages as a result of Mr. Elkow filing the Lease Caveat and the Ownership Caveat.

Paragraph 2 of the Amended Originating Application seeks to recover those damages pursuant to s 144 of the LTA which provides as follows: Any person, other than the Registrar, filing or continuing a caveat without reasonable cause is liable to make compensation to any person who may have sustained damage by that filing or continuation, and the compensation may be recovered by action if the caveator has withdrawn the caveat and no proceedings have been taken by the caveator or caveatee as provided in this Act, but if the proceedings have been taken then the compensation is to be decided by the court in the proceedings whether the caveat has been withdrawn or not. [ 62 ] Mr.

Elkow argues that the Applicants have not shown that they have suffered any damages arising from the filing of either the Lease Caveat or the Ownership Caveat. As a result, he argues that this aspect of the application must be dismissed. [ 63 ] Where, as in this case, proceedings have been commenced by Originating Application in relation to a caveat, any damages arising from the filing or continuation of the caveat without reasonable caused must be determined in the context of the Originating Application. However, it should be noted that s 144 of the LTA does not give an open-ended jurisdiction to award damages.

Instead, s 144 only permits the Court to assess and award damages sustained by the filing and continuation of the caveat. [ 64 ] While the Applicants have tendered evidence in relation to various expenses and debts are said to be owing from Mr. Elkow to the Applicants, no evidence has been tendered to show that the filing or continuation of the two caveats have given rise to any damages.

For example, the Applicants have not tendered any evidence of any offers for the purchase and sale of the Lands have failed to close because of the presence of the caveats. [ 65 ] The Applicants claim damages arising from debt obligations incurred by Mr. Elkow during the currency of the Lease Agreement. They also claim for damages for the cost of removing Mr. Elkow’s hay bales and grain from the Lands. Finally, the Applicants seek an Order directing that Mr. Elkow remove 21 grain bins from the Lands.

I conclude that none of these claims relate to the improper filing of a caveat and are therefore not properly recoverable on this Originating Application. Furthermore, some portions of those expenses were incurred long before the caveats were even filed. For example, the Applicants claim for damages of $19,921.96 arising from the failure of Mr. Elkow to repay the purchase price of a Header that had been acquired by the Applicants for Mr. Elkow in 2012. That was long before either of the caveats were filed and thus cannot represent a proper claim for damages pursuant to s 144 of the LTA .

The Applicants also claim for damages arising from the failure of Mr. Elkow to return the Lands in good condition in accordance with is obligations under the Lease Agreement. This is not a claim that arises from the improper filing of a caveat and cannot be recovered pursuant to s 144. Whether damages are properly recoverable can only be determined in a claim advanced by Statement of Claim. 7. Conclusion [ 66 ] Mr.

Elkow had no continuing interest in the Lands. [ 67 ] The Land Titles Registrar is directed to remove the Lease Caveat, Instrument Number 182190847 and the Ownership Caveat, Instrument Number 192031894 from the Certificates of Title to the Lands. [ 68 ] The Applicants claim for damages pursuant to s 144 of the LTA is dismissed. Any claims for damage can only be recoverable in an action commenced by Statement of Claim. [ 69 ] If the parties cannot agree on costs, they may submit brief written argument as to costs within 60 days from the date of the release of this decision. Heard on the 28 th day of May, 2021.

Dated at the City of Edmonton, Alberta this 13 th day of July, 2021. John T. Henderson J.C.Q.B.A. Appearances: Daniel C.P. Stachnik Q.C. for the Applicants

Eugene J. Bodnar for the Respondent