Kroetsch v Chick, 2023 ABKB 326

Court of King’s Bench of Alberta Citation: Kroetsch v Chick, 2023 ABKB 326 Date: 20230530 Docket: 1703 10713 Registry: Edmonton Between: Michael J. Kroetsch Plaintiff/Defendant by Counterclaim - and - Larry Glenn Chick Defendant/Plaintiff by Counterclaim Corrected judgment: A corrigendum was issued on June 1, 2023; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Judgment of the Honourable Justice S. N. Mandziuk _______________________________________________________ I. Introduction [ 1 ] This is a

summary judgment application concerning a contractual dispute about the purchase and sale of farmland and related

issues. II. Facts [ 2 ] There are two parcels of farmland adjacent to one another in the Killam, Alberta area.

I will refer to them as the Southwest Quarter and the Northwest Quarter respectively. [ 3 ] Prior to 2014, both quarters were owned by the Defendant. [ 4 ] In January or February, 2014, the Plaintiff and the Defendant began having discussions about the Plaintiff buying the Southwest Quarter. [ 5 ] The Plaintiff wanted to buy both quarters from the Defendant, stating that he would pay $10,000 more than the highest bidder at that time for the Southwest Quarter and $450,000 for the Northwest Quarter. [ 6 ] The parties disagree about what exactly occurred during the negotiations that ensued with respect to the Northwest Quarter.

The Plaintiff says that the Defendant agreed to subdivide approximately 10 acres of land out of the Northwest Quarter and sell the remainder to the Plaintiff for $422,000. The Defendant says the sale of the Northwest Quarter was conditional on him deciding to subdivide the property.

Both parties agree that the Defendant was involved in matrimonial property proceedings at the time and was not able to subdivide or otherwise deal with the Northwest Quarter until those proceedings resolved. [ 7 ] The parties also do not dispute that they executed a written “ Offer to Purchase and Interim Agreement”, which the Plaintiff executed on February 18, 2014, and the Defendant executed on February 20, 2014 (the “Agreement”). [ 8 ] Under the terms of the Agreement, the Plaintiff would buy the Southwest Quarter from the Defendant for $450,000 cash.

The majority of the Agreement sets out the terms for the sale and purchase of the Southwest Quarter. [ 9 ] Paragraph 3 of the Agreement says “[t]his offer is subject to the following conditions”, and paragraph 3(

e) reads: Seller agrees to sell [the Northwest Quarter] to Buyer for $422,000 upon completion of yardsite subdivision (10 acres more or less). [ 10 ] Additionally, the Agreement provides that the Plaintiff would rent the Northwest Quarter from the Defendant during the 2014 crop year for cash rent of $3000 plus GST. [ 11 ] The closing date of the sale was on or about March 24, 2014. The Plaintiff paid the purchase price and took possession of the Southwest Quarter.

In 2014 and 2015, the Plaintiff rented the Northwest Quarter from the Defendant. [ 12 ] On January 6, 2016, the Defendant’s counsel sent a letter to the Plaintiff’s counsel that states: Further to your inquiries, we advise that the subdivision will be able to proceed now as the matrimonial property issues have been resolved.

We expect the application to be made in due course. [ 13 ] Just over a year later, on January 13, 2017, the Defendant’s counsel wrote to the Plaintiff’s counsel, stating: Our client has contacted us to advise that he will not be subdividing the above described property and as such will not be selling the remaining portion to [the Plaintiff]. Our client may be interested in selling the whole quarter to [the Plaintiff], but since the number of acres is higher and due to the improvements our client has made to the land, the price will be higher.

As such, our client would be willing to sell the complete quarter for $650,000 plus applicable GST. Kindly advise as to whether your client is interest[ed] in purchasing the above land. [ 14 ] The Defendant has never applied to subdivide the Northwest Quarter. III. Issues [ 15 ] The parties raise three issues to be determined on this application: 1. What is the correct

interpretation of clause 3(

e) of the Agreement? Has the Defendant breached the Agreement? 2. If the Defendant has breached the Agreement, is the Plaintiff entitled to specific performance? 3. If the Defendant has breached the Agreement, is the Plaintiff entitled to compensation for lost profits? [ 16 ] Since this is an application for

summary judgment, the Court must consider the question of whether these issues can be resolved in a

summary fashion or if a trial is necessary. IV. Analysis and Disposition

Summary Judgment [ 17 ] Rule 7.3 states: 7.3

(1) A party may apply to the Court for

summary judgment in respect of all or part of a claim on one or more of the following grounds: (

a) there is no defence to a claim or part of it; (

b) there is no merit to a claim or part of it; (

c) the only real issue is the amount to be awarded.

(2) The application must be supported by an affidavit swearing positively that one or more of the grounds described in subrule (1) have been met or by other evidence to the effect that the grounds have been met.

(3) If the application is successful the Court may, with respect to all or part of a claim, and whether or not the claim is for a single and undivided debt, do one or more of the following: (

a) dismiss one or more claims in the action or give judgment for or in respect of all or part of the claim or for a lesser amount; (

b) if the only real issue to be tried is the amount of the award, determine the amount or refer the amount for determination by a referee; (

c) if judgment is given for part of a claim, refer the balance of the claim to trial or for determination by a referee, as the circumstances require. [ 18 ] In Hyrniak v Mauldin , 2014 SCC 7 [ Hyrniak ], the Supreme Court described the overarching principles that govern this type of application, underlining the necessity of a “culture shift” in the judicial approach. The court declared that “[o]ur civil justice system is premised upon the value that the process of adjudication must be fair and just. This cannot be compromised” (para 23) and that

summary judgment processes – which are “available where there is no genuine issue for trial” – are an efficient and less expensive alternative to a trial (at para 34). [ 19 ] In Hryniak , the Supreme Court set out a three-part test for

summary judgment at para 49: There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for

summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result. [ 20 ] In Alberta, the leading case on this Rule remains Weir-Jones Technical Services Incorporated v Purolator Courier Ltd , 2019 ABCA 49 [ Weir-Jones ]. In Weir-Jones at para 47 , Slatter JA explained the correct methodology applicable to

summary judgment applications: The proper approach to

summary dispositions, based on the Hryniak v Mauldin test, should follow the core principles relating to

summary dispositions, the standard of proof, the record, and fairness. The test must be predictable, consistent, and fair to both parties. The procedure and the outcome must be just, appropriate, and reasonable. The key considerations are:

a) Having regard to the state of the record and the issues, is it possible to fairly resolve the dispute on a

summary basis, or do uncertainties in the facts, the record or the law reveal a genuine issue requiring a trial?

b) Has the moving party met the burden on it to show that there is either “no merit” or “no defence” and that there is no genuine issue requiring a trial? At a threshold level the facts of the case must be proven on a balance of probabilities or the application will fail, but mere establishment of the facts to that standard is not a proxy for

summary adjudication.

c) If the moving party has met its burden, the resisting party must put its best foot forward and demonstrate from the record that there is a genuine issue requiring a trial. This can occur by challenging the moving party’s case, by identifying a positive defence, by showing that a fair and just

summary disposition is not realistic, or by otherwise demonstrating that there is a genuine issue requiring a trial. If there is a genuine issue requiring a trial,

summary disposition is not available.

d) In any event, the presiding judge must be left with sufficient confidence in the state of the record such that he or she is prepared to exercise the judicial discretion to summarily resolve the dispute. To repeat, the analysis does not have to proceed sequentially, or in any particular order. The presiding judge may determine, during any stage of the analysis, that

summary adjudication is inappropriate or potentially unfair because the record is unsuitable, the issues are not amenable to

summary disposition, a

summary disposition may not lead to a “just result”, or there is a genuine issue requiring a trial. [ 21 ] In Hannam v Medicine Hat School District No 76 , 2020 ABCA 343 at paras 147-151 , leave to appeal to SCC refused, the Majority (per Wakeling JA) confirmed Weir-Jones as the “new way” to address

summary judgment . First, this

interpretation allows a

summary judgment court to make contested findings of material facts. This is corollary of Justice Slatter’s statement that “[s]ummary judgment is not limited to cases where the facts are not in dispute”. This is a departure from the traditional understanding that a dispute about a material fact disqualifies an action from the

summary judgment process. Second,

summary judgment courts should not be reluctant to make material fact findings: Justice Slatter encouraged

summary judgment adjudication to hear oral testimony: “[W]here possible findings of fact can and should be made on a

summary disposition application”.

Third, before a

summary judgment court resolves a material factual dispute, it should ask if it constitutes a genuine issue requiring a trial. Justice Slatter explained it this way: “A dispute on material facts, or one depending on issues of credibility, can leave genuine issues requiring a trial”. Fourth, the moving party must prove the facts on which it relies on a balance of probabilities. This is consistent with the general trial principle that the plaintiff must prove the facts on a balance of probabilities that establish the elements of the action. Fifth, “if there is a genuine issue requiring a trial,

summary disposition is not available”. [Footnotes Deleted] [ 22 ] With this foundation in place, I will turn to the Plaintiff’s application. 2. Contractual

Interpretation [ 23 ] In essence, this case is about the

interpretation of the Agreement and, specifically, whether the Agreement requires the Defendant to apply for subdivision of the Northwest Quarter and sell it to the Plaintiff after subdivision is effected. [ 24 ] The Plaintiff argues that the wording of the Agreement was clear and unambiguous insofar as it imposed an obligation on the Defendant to subdivide the Northwest Quarter and then sell the remaining unsubdivided portion of that parcel to the Plaintiff for $422,000. [ 25 ] The Plaintiff states that his intention throughout was to buy both Quarters, not one.

The Defendant was aware of this intention, and the Agreement reflects their mutual understanding. The Plaintiff argues that the Defendant had an implied obligation to apply for subdivision, and the Defendant breached the Agreement by not doing so. [ 26 ] The Defendant argues there is not a sufficient factual record to decide the matter in a fair and just manner.

Specifically, the Defendant argues the Plaintiff and the Defendant have deposed to different understandings of whether the Defendant was required to subdivide the property, and the language of the Agreement is not sufficiently clear to decide the matter. [ 27 ] In the alternative, the Defendant argues the Agreement did not create a binding obligation for him to subdivide the Northwest Quarter.

The Defendant’s position is that the Agreement does contain clear and unambiguous language that requires him to subdivide the Northwest Quarter, and it is not possible to infer an obligation to subdivide from the overall context. The Defendant points to the absence of any specific deadline or time frame for the subdivision to be effected. [ 28 ] In the further alternative, the Defendant argues the parties were not ad idem about whether the Defendant was required to subdivide the property.

Thus, in the Defendant’s view, there was no obligation on him to take steps to effect the subdivision. [ 29 ] To ascertain the meaning of the Agreement, the Court must look for “ the objective meaning of the words chosen by the parties, understood in their proper context”: Bidell Equipment LP v Caliber Midstream GP LLC , 2020 ABCA 478 at para 22 . [ 30 ] The leading case on contractual

interpretation is Sattva Capital Corp v Creston Moly Corp , 2014 SCC 53 [ Sattva ]. That case emphasized “the factual matrix” or “surrounding circumstances of the contract” (at para 46). The Supreme Court explained at para 47: [T]he

interpretation of contracts has evolved towards a practical, common-sense approach not dominated by technical rules of construction. The overriding concern is to determine “the intent of the parties and the scope of their understanding” ( Jesuit Fathers of Upper Canada v. Guardian Insurance Co. of Canada , 2006 SCC 21 , [2006] 1 S.C.R. 744, at para. 27 , per LeBel J.; see also Tercon Contractors Ltd. v. British Columbia (Transportation and Highways) , 2010 SCC 4 , [2010] 1 S.C.R. 69, at paras. 64-65 , per Cromwell J.).

To do so, a decision-maker must read the contract as a whole, giving the words used their ordinary and grammatical meaning, consistent with the surrounding circumstances known to the parties at the time of formation of the contract. Consideration of the surrounding circumstances recognizes that ascertaining contractual intention can be difficult when looking at words on their own, because words alone do not have an immutable or absolute meaning: No contracts are made in a vacuum: there is always a setting in which they have to be placed... .

In a commercial contract it is certainly right that the court should know the commercial purpose of the contract and this in turn presupposes knowledge of the genesis of the transaction, the background, the context, the market in which the parties are operating. ( Reardon Smith Line , at p. 574, per Lord Wilberforce) [ 31 ] The Court in Sattva went on to say that “[t]he meaning of words is often derived from a number of contextual factors, including the purpose of the agreement and the nature of the relationship created by the agreement”: at para 48.

Further, the Supreme Court stated at para 58: The nature of the evidence that can be relied upon under the rubric of “surrounding circumstances” will necessarily vary from case to case. It does, however, have its limits. It should consist only of objective evidence of the background facts at the time of the execution of the contract ( King , at paras. 66 and 70), that is, knowledge that was or reasonably ought to have been within the knowledge of both parties at or before the date of contracting.

Subject to these requirements and the parol evidence rule discussed below, this includes, in the words of Lord Hoffmann, “absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man” ( Investors Compensation Scheme , at p. 114). Whether something was or reasonably ought to have been within the common knowledge of the parties at the time of execution of the contract is a question of fact. [ 32 ] On its face, the Agreement reflects an offer by the Plaintiff to purchase the Southwest Quarter from the Defendant.

An express condition of that purchase and sale of the Southwest Quarter is the Defendant’s agreement to sell the Northwest Quarter for

$422,000 “upon completion of yardsite subdivision”. [33] In my view, the language in the Agreement is clear and unambiguous. Had the parties wished to include language ofwithdrawal, or a time limit, or a “best efforts” qualification, or some other “conditional” language, they easily could have done so. Theycould have said “if there is a yardsite subdivision” the Plaintiff could buy the Northwest Quarter. This discretionary language is notpresent. [34] Further, the parties put a value on the Northwest Quarter.

There would be no reason to include the Northwest Quarter in theAgreement as a part of the sale, with a price agreed, if subdivision and sale were discretionary. This makes no business sense, and is,frankly, illogical and inefficacious. [35] The Defendant argues that he thought it was his decision whether to subdivide and that the Agreement should be interpretedbased on this understanding. However, subjective evidence of a party’s intentions does not determine the proper meaning of a contract:Sattva at paras 59-60; SA v Vancouver Housing Corp, 2019 SCC 4 at para 30.

The question is what the Agreement means in light ofwhat parties knew or reasonably ought to have known at the time the contract was entered into, not the subjective intentions of one of theparties. [36] In a similar vein, the Defendant relies on his evidence that the parties only discussed the sale of the Southwest Quarter inreaching the terms of the Agreement.

However, while the Defendant now denies asking the Plaintiff if he wanted to purchase bothquarters and says they only talked about the Southwest Quarter, the Northwest Quarter is specifically referenced in the Agreement, andevidence of the surrounding circumstances cannot be used to modify the wording of the Agreement: Sattva at para 57. [37] In the alternative, the Defendant argues that the obligation to subdivide was not binding, because there was no expressrequirement in the Agreement for him to apply to subdivide the Northwest Quarter.

However, on a balance of probabilities, I find thatthe Defendant was required to apply for the subdivision based on the objective meaning of the Agreement and to use his best efforts tofulfill the condition. That is the most plausible and logical

interpretation of the Agreement on its face and in its context. [38] In Dynamic Transport Ltd v OK Detailing Ltd, (SCC), [1978] 2 SCR 1072, subdivision approval from thelocal planning authority was required to complete the sale of a piece of land, but the sale agreement was silent on which party to thetransaction would seek and obtain approval. This ambiguity did not result in an unenforceable agreement.

Dickson J (as he then was)noted at 1084-85: The common intention to transfer a parcel of land in the knowledge that a subdivision is required in order to effect such transfer must betaken to include agreement that the vendor will make a proper application for subdivision and use his best efforts to obtain suchsubdivision. This is the only way in which business efficacy can be given to their agreement.

In the circumstances of this case, the onlyreasonable inference to be drawn is that an implied obligation rested on the vendor to apply for subdivision. [39] This duty to take reasonable steps to complete contractual requirements – in this case to seek subdivision approval – was morerecently confirmed by the Supreme Court in Bhasin v Hrynew, 2014 SCC 71 at para 89. In that case, the Supreme Court recognized thatthere is a general duty of honest contractual performance and that the particular requirements of that duty can be determined by lookingto existing applications of the doctrine: ibid at paras 92-93.

Following Dynamic Transport, this means that where subdivision approvalis a condition precedent to conveying part of a parcel of land, there is an implied term that the vendor will apply for and in good faithseek subdivision approval: see also Carruthers v Tioga Holdings Ltd, 1999 ABCA 73 at para 4. [40] In this case, the only way to give effect to the Agreement would be for the Defendant to apply to subdivide the property.Therefore, the condition obligates the Defendant to apply for subdivision to complete the sale of the Northwest Quarter.

At theminimum, this would require a good faith application for subdivision that is designed for success. More than that, however, it wouldrequire the pursuit of all reasonable steps to effect the subdivision. [41] As a final argument, the Defendant points to the lack of a specific timeframe for the subdivision as evidence that there was nostrict obligation to apply for subdivision. However, both parties agree the Defendant was not able to deal with the Northwest Quarter atthe time that the Agreement was executed because of ongoing matrimonial property issues.

In this context, it would not be possible to setan exact timeframe for the subdivision. Furthermore, under the Agreement, the Plaintiff rented the Northwest Quarter from theDefendant for a one-year term. This is evidence of an expectation that the sale would complete after subdivision and within a year, if notsome other reasonable period of time. [42] In my view, the Agreement is clear.

However, even if the Agreement were ambiguous, I would come to the same conclusiongiven the evidence of the parties’ post-contract conduct: see IFP Technologies (Canada) Inc v EnCanada Midstream and Marketing,2017 ABCA 157 at para 87. It is notable that nearly two years after the Agreement was signed, the Defendant acknowledged that thesubdivision was a binding obligation on the Defendant and not something he could unilaterally choose not to do.

The Defendantacknowledged this through the January 6, 2016 letter sent by his counsel to the Plaintiff’s counsel, where he indicated that he planned tobegin the subdivision process because the matrimonial proceedings had resolved. That letter confirms the Defendant’s intention tosubdivide, which is an acknowledgement of what the Agreement requires from the Defendant and what the Plaintiff is entitled to. Theinference to be drawn from it is that only the matrimonial proceedings were delaying the application for subdivision, which could now“be made in due course”.

This evidence, more likely than not, confirms the mutual understanding of the parties. [43] Similarly, the parties both acknowledged that the Plaintiff made a number of improvements to the Northwest Quarter,including breaking 80 acres of the land, removing fences, and so forth. This is evidence that the Plaintiff acted on his expectation that hewould purchase both parcels by renting, farming, and improving the Northwest Quarter in anticipation of purchasing it.

So, even if theAgreement were ambiguous, the parties’ post-contract conduct makes it clear that they both expected the Defendant to apply tosubdivide the Northwest Quarter and then sell it to the Plaintiff. [44] On the evidence, I am satisfied that I am able to come to a fair and just determination on the merits. Considered in its factualcontext, the language of the Agreement is clear. The fact the Defendant may have changed his mind about selling the Northwest Quarter

does not release him from a binding contractual obligation. As Labrenz J has stated, an agreement that “may not be commercially ideal”does not by itself invite the court to “revise the express language agreed to by the Parties”: Ghali v Jordahl USA Inc, 2022 ABQB 248 atpara 67. [45] Therefore, applying the law to the facts, the Defendant has breached the Agreement by not complying with the subdivisioncondition. 3. Specific Performance [46] The Plaintiff seeks the remedy of specific performance, which would compel the Defendant to subdivide the yard portion ofthe quarter

section and sell the remainder of the Northwest Quarter to the Plaintiff for $422,000. [47] As the Court explained in Roman Catholic Episcopal Corp of the Diocese of London in Ontario v AXA Insurance Canada,2016 ONSC 4061 at para 47: Specific performance is an equitable remedy. When used in its traditional sense, it is a remedy by which the court compels a person toperform a contractual obligation...

However, the remedy of specific performance involves the exercise of discretion and typically, is notappropriate where another remedy, including damages, will suffice. [48] Whitling, J recently discussed the specific performance remedy in Herr v Bourne, 2021 ABQB 478 at paras 89-91: By refusing to convey the Lands to the Plaintiff and by repudiating the agreement, the Defendants committed a breach of contract. As aremedy for this breach, the Plaintiff seeks specific performance rather than damages.

In other words, he seeks an order compelling theDefendants to convey the Lands to him in accordance with their agreement. The test for specific performance was stated by Sir John Leach, V.C. in Adderley v Dixon (1824), 1 Sim & St 607, 57 ER 239 at 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 ofland, may not be a complete remedy to the purchaser, to whom the land may have a peculiar and special value. The above passage was quoted with approval by Sopinka J. in Semelhago v Paramadevan, (SCC), [1996] 2 SCR415 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. [49] In 1244034 Alberta Ltd v Walton International Group Inc, 2007 ABCA 372 at para 3, the Alberta Court of Appeal clarifiedthat the presumption that real property is unique has not been replaced with a presumption of replaceability. Instead, Semelhago vParamadevan, (SCC), [1996] 2 SCR 415 should be read as opening the door into a critical inquiry into the nature andfunction of the property to determine if it is unique.

In Bethel United Church of Jesus Christ Apostolic of Edmonton v North PacificProperties Ltd, 2022 ABCA 224 at para 131, the Court of Appeal explained further that a property will be sufficiently unique for thepurpose of awarding specific performance if no substitute is readily available. This is a factual question that must be decided on a case-by-case basis. [50] The Plaintiff argues that damages will not suffice here, asserting that: (

a) The Northwest Quarter is unique. It adjoins the Southwest Quarter which was purchased by the Plaintiff. Part of the reasonthat the Southwest Quarter was purchased was because of the availability of the Northwest Quarter. The special value of the NorthwestQuarter is that it connects to the Southwest Quarter. (

b) Flowing from this adjacency, the Plaintiff points to the efficiency of farming two adjacent quarters – a half

section –particularly given the size of machinery required and the economic and temporal benefits of not having to travel on the highway betweenquarter sections. (

c) There was no other quarter adjacent to the Southwest Quarter that was for sale. (

d) The Plaintiff has already made improvements to the Northwest Quarter in anticipation of the Agreement’s condition beingfulfilled and the Northwest Quarter becoming his. He has: removed fencing; cleared brush, a slough, and trees; prepped the NorthwestQuarter for planting; and has fertilized and applied chemicals to the Northwest Quarter.

He estimates the value of the improvements at$80,000. [51] The Defendant argues that the Northwest Quarter is not unique, because the Plaintiff already farms 10,000 acres within a 10-mile radius of the Northwest Quarter, and the Plaintiff could purchase other property adjoining some of this other land. Further, theDefendant argues that the Plaintiff was already compensated for the improvements to the land through decreased rent. [52] In my view, the unique characteristics of this land merit a specific performance declaration.

The evidence is compelling andclear that this is a unique property from the Plaintiff's perspective given the various farming requirements that are in evidence,economies of scale, and improvements made by the Plaintiff to the lands, and, thus, an award of damages does not truly compensate forthe harm that flows from the breach. [53] The Northwest Quarter, on all of the evidence, possesses the “peculiar and special value” referenced in the jurisprudence. Anaward of damages would not adequately replace the advantages that ownership of the Northwest Quarter would give to the Plaintiff,

would not reflect the bargain that was struck, and would not recognize the expenditure of money and effort that the Plaintiff has already undertaken in reliance on the Agreement. [ 54 ] Specific performance is the appropriate remedy here. 4. Plaintiff’s Other Claims [ 55 ] With respect to the Plaintiff’s claim for lost profits, this relates to the fact that the land could not be farmed by the Plaintiff for a period of approximately eight years.

The Plaintiff claims $316,225 up to and including the 2022 crop year. [ 56 ] The only evidence for this claim is the Plaintiff’s assertion in his Affidavit that this is the value of his lost profits. This is insufficient. This issue cannot be decided summarily. It will have to go to trial where expert evidence perhaps can be called or further and better evidence in any event. V. Conclusion and Disposition [ 57 ] The Defendant breached the Agreement. The legal requirements for the Court to grant

summary judgment in favour of the Plaintiff have been met. The only rational remedy is to put the Plaintiff in the position he would have been had the Agreement not been breached. This requires the remedy of specific performance. [ 58 ] The Defendant shall take immediate steps to apply to the applicable governing authority for the subdivision of the Northwest Quarter as required by the Agreement with complete transparency to the Plaintiff.

The Defendant will include the Plaintiff, through his counsel, on all communications with the subdividing authority, the Land Titles Office, and any other third party which is involved in the subdivision.

The Defendant will execute any document necessary to allow the Plaintiff to have full access to information about the subdivision and the Defendant’s actions (or inaction) in that regard. [ 59 ] Upon the completion of the subdivision, the Defendant will transfer title to the remaining portion of the Northwest Quarter to the Plaintiff in exchange for the sum of $422,000.00 plus any applicable tax, all in accordance with the terms of the Agreement. [ 60 ] If either party encounters any difficulty with giving effect to the foregoing remedy, they have leave to appear before me if judicial intervention is required. [ 61 ] The Plaintiff has been successful on this application and shall have his costs.

Heard on the 13 th day of January, 2023. Dated at the City of Edmonton, Alberta this 30 th day of May, 2023. S. N. Mandziuk J.C.K.B.A. Appearances: Travis Lidstone and Mark Miller for the Plaintiff/Defendant by Counterclaim Martin West for the Defendant/Plaintiff by Counterclaim _______________________________________________________

Corrigendum of the Judgment of The Honourable Justice _______________________________________________________ Changes reflected to add counsel, Mark Miller, for the Plaintiff/Defendant by Counterclaim.