RONALD KERRY BAKKEN, PLAINTIFF - v. -, 2020 SKQB 127

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2020 SKQB 127 Date: 2020 05 07 Docket: QBG 942 of 2010 Judicial Centre: Regina _____________________________________________________________________ BETWEEN: RONALD KERRY BAKKEN, PLAINTIFF - and - SHARON BAKKEN AND KIMBERLY EDWIN BAKKEN, DEFENDANTS Counsel: Hal B. Wellsch for the plaintiff Kenneth J. Brodt for the defendants _____________________________________________________________________ JUDGMENT HILDEBRANDT J. May 7, 2020 _____________________________________________________________________ INTRODUCTION [ 1 ] One quarter of land. A divided family.

These are the sad components of this action, commenced by Ronald Kerry Bakken [Kerry], claiming compliance with Minutes of Settlement negotiated and signed following a mediation session conducted on August 4, 2010. [ 2 ] The Minutes of Settlement, marked as Exhibit P-2, pertained to two actions: 1) QBG 522 of 2010 , an action Kerry had commenced against his brother, Kimberly Edwin Bakken [Kim], for partition and sale of certain lands and; 2) this claim, QBG 942 of 2010, which at the time the Minutes of Settlement were signed had only one defendant, Sharon Bakken [Sharon], their mother. [ 3 ] Kerry seeks transfer to him of the NW ¼ of 16-24-26 W2nd [NW16].

In addition, there is a claim for damages against Kim, who was subsequently added as a defendant, for the alleged conversion of the 2010 canola crop on the NW16.

The alternative claim, according to the May 26, 2011 amended statement of claim, is for general damages for breach of the Minutes of Settlement “if the Defendants cannot comply with the Minutes of Settlement”. [ 4 ] The Minutes of Settlement reference purchase of the NW16 from Sharon by Kerry. However, Kerry subsequently learned that six months prior to the mediation, in February of 2010, Sharon had transferred the NW16 to Kim.

Hence the need for an amended statement of claim. [ 5 ] A brief time line of the pleadings assists in understanding the claim: May 20, 2010 Statement of Claim is issued against Sharon August 4, 2010 Mediation September 20, 2010 Amended Statement of Claim adds Dellene Church and Kim as defendants November 9, 2010 Statement of Defence on behalf of Sharon and Kim is filed May 26, 2011 Statement of Claim is amended pursuant to order of May 25, 2011 March 15, 2017 Discontinuance of Claim against Dellene Church [ 6 ] A non-suit application, pursuant to Rule 9-26 of The Queen’s Bench Rules , was brought on behalf of the defendants at the close of the plaintiff’s case.

I dismissed that application. While that decision, as noted therein, was not a final consideration of the merits of the claim, a number of the observations I made then were unchallenged by the evidence proffered by the defendants, Sharon and Kim, who both testified. FACTUAL BACKGROUND AND FINDINGS [ 7 ] The Bakken family dynamics have been unsettled for some time. Both Kerry and Kim claim to have been more involved in the family farm than the other.

Kerry appears to have had a closer relationship with their father, Ron Bakken [Ronnie], and has suggested that Ronnie made commitments to Kerry regarding land transfers upon Ronnie’s death, which never materialized. Apart from a six-year period when he resided in Craik, Kerry has lived on the farm.

Kerry describes his relationship with Ronnie as one of “best friends” and says they “worked non-stop together” before Ronnie’s illness and ultimate demise. [ 8 ] Kim, on the other hand, encountered some financial difficulties earlier in his farming efforts, but became more involved in farming with his mother, Sharon, after Ronnie’s death in November of 2005. Ronnie, regrettably, left Sharon with considerable debt upon his death, and their retirement savings had been depleted some 10 years prior to his passing.

This financial burden undoubtedly added to the tension among the parties. [ 9 ] Kerry had farmed the NW16 for a number of years. He says that in February of 2007 he and Sharon had reached an agreement, through their respective counsel, for sale of the NW16 from Sharon to Kerry.

Previously, in 2006, Kerry and Sharon had entered an agreement regarding the home quarter (NE ¼ of 16-24-26 W2nd) and Kerry asserts that they had talked about him also acquiring the quarter adjoining the home quarter, namely the NW16. [ 10 ] The statement of claim in this action, which Kerry commenced against Sharon, was issued May 20, 2010. Kerry claimed specific performance of the agreement to purchase the NW16.

Alternatively, he claimed damages for breach of the agreement. [ 11 ] The agreement referenced in the May 20, 2010 statement of claim was the one which Kerry claims was completed through counsel in February of 2007. In this regard, Kerry relies upon Exhibit P-3, the February 22, 2007 letter from Charlene Richmond, as she then was, to Dellene Church. It states: Please find enclosed the executed Memorandum of Agreement. This document is sent to you on the trust condition that your client will forward the transfer of the other ¼ (NW 16-24-26 W2) as per your facsimile dated January 29, 2007.

Please confirm with our office that the above condition is acceptable and that we may commence transferring the title for NE 16-24-26 W2. [ 12 ] An earlier letter from Ms. Richmond to Ms. Church, dated January 26, 2007, marked as Exhibit D-4, is also informative. It states: Further to your facsimile dated January 24, 2007, apparently the arrangement you refer to is that Sharon has agreed to transfer the other quarter (NW 16-24-26 W2) once she received funds for NE 16-24-26 W2.

Please provide our office with the transfer documents under the appropriate trust conditions so that we may finalize the sale of this land. [ 13 ] It is evident from this correspondence that the transfer of the NW16 from Sharon to Kerry had indeed been

contemplated. This contradicts Sharon’s evidence that she had “never” offered the NW16 to Kerry. However, Sharon’s evidence cannot be considered reliable. [ 14 ] Sharon was born February 27, 1944. She and Ronnie were married in 1961, when she was only 17 years old. The two worked as farm labourers from 1963 – 1972, then started purchasing land. [ 15 ] It is evident that Sharon has worked hard all her life, but she is not in good health. Her health has deteriorated since the mediation of August 4, 2010, but even at that time she was unable to attend the session.

She references her “health problems” and says that “probably” at that time she had fallen down stairs and cracked her pelvis and shoulder. Sharon also indicates that she has had multiple strokes, with “one main one” in 2010. [ 16 ] Sharon’s lawyer, Dellene Church, attended the August 4, 2010 mediation session and consulted with Sharon by telephone prior to signing the agreement as Sharon’s “solicitor and agent”. It is also noteworthy that Kim attended the mediation.

While he asserts that he was only attending in his personal capacity as defendant in QBG 522 of 2010, Kim did hold power of attorney for Sharon at the time. [ 17 ] Sharon’s testimony during direct examination was presented with the assistance of many leading questions. Despite this assistance, Sharon struggled to remember some things and at times appeared confused. For instance, Sharon claims to have never seen the

schedule to Exhibit D-3, which is the March 2008 agreement for Kerry’s purchase of the N ½ of 15-24-26. The

schedule to Exhibit D-3, however, bears Sharon’s initials. It also references Kerry’s interest in the NW16. [ 18 ] During cross-examination, I observed Sharon’s confusion increase.

For instance, while Sharon confirmed that Dellene Church was acting for her at the mediation, saying “She wouldn’t have gone if I didn’t tell her” , when shown the Minutes of Settlement (Exhibit D-2), Sharon said, “I don’t believe I’ve seen that.” This is hard to accept as accurate, given that it is the key document in the litigation. [ 19 ] Sharon also testified that “in 2006, 2007 or earlier” she was having discussions with Kim regarding purchase of the NW16.

This, at best, indicates confusion on Sharon’s part and, at worst, suggests duplicity on the part of the defendants several years prior to the August 4, 2010 mediation.

In any event, it does not even accord with Kim’s testimony, as he indicated that transfer of the NW16 from Sharon to him came about in 2009-2010, at a time when the estate debts had dwindled and Sharon expressed her desire to reward Kim for his contribution to farming input costs. [ 20 ] In light of these and other inconsistencies, as well as Sharon’s inability to recall events and documents, I cannot consider Sharon’s evidence to be reliable. [ 21 ] The mediation of August 4, 2010 proceeded in Sharon’s absence, with Dellene Church authorized to act in her stead. Signed Minutes of Settlement resulted.

These were marked Exhibit P-1 and, in their entirety, provide: Minutes of Settlement #522 of 2010 and QB #942 of 2010 Whereas Kerry Bakken has commenced an action against Kim Bakken for partition and sale of NE 3-25-28 W2nd, SE 3-25-28 W 2nd, NE 10-25-28 W2nd And whereas Kerry Bakken has commenced an action against Sharon Bakken to recover the NW16-24-26 W2nd; The parties hereby agree as follows: Kim shall purchase Kerry’s interest in NE3, SE3 and NE10 for the sum of $75,000. The parties shall share equally the tax arrears for 2009 and 2010.

This agreement shall be conditional on Kim’s approval for financing to be obtained within two weeks. Kerry shall be responsible for the cost of preparing the transfer authorizations and Kim shall be responsible for the cost of registration. Provided however the parties will share the costs of transfer of the Grandmother’s share of the property.

Kerry shall purchase the NW16-24-26 W2nd from Sharon free and clear of all encumbrances for the sum of $16,000.00 Provided, however, Kim shall have the option of assuming this debt to reduce his payment to Kerry from $75,000 to $59,000.00. Kim shall immediately arrange for Carl Erlandson to pick up the 283 Chev motor, 1948 Chev truck, set of 38” tractor duals & hardware, Willcar harrows at a time to be arranged between Kerry and Carl. Kim shall arrange to have the bin removed (3300 Westeel Roscoe on skids) at a date and time to be arranged with Kerry.

The parties shall close the within transactions within 30 days. In the event Kim does not obtain financing for the purchase of the NE3, SE3 and NE10, Kim shall transfer his interest in NE3 and SE3 to Kerry and Kerry shall transfer his interest in the NE10 to Kim. Dated this 4 th day of August, 2010. Dellene S. Church Kim Bakken Solicitor and Agent for Sharon Bakken Kerry Bakken [ 22 ] The second paragraph of the Whereas clause references the NW16. Then the fourth full paragraph of the Minutes of Settlement outlines the purchase of the NW16 by Kerry.

Notably, there is an option for Kim to make the $16,000 payment to reduce the amount he owes to Kerry for purchase of the NE3, SE3 and NE10. On the face of the Minutes of Settlement, there is a written agreement respecting the transfer of the NW16 to Kerry. [ 23 ] Kim, however, testified that the NW16 “should never have been an issue at mediation”. He further claimed that he thought any mention of $16,000 had to do with rent which, presumably, he considered may be owing from Kerry to Sharon.

This, however, is difficult to believe since neither the word nor the concept of rent is in the written Minutes of Settlement. [ 24 ] Even more unbelievable is Kim’s assertion that he did not fully read the Minutes of Settlement on the day of mediation. He testified that he “skimmed some of it” but did not have his glasses on. He was only concerned with the parts that pertained to him and he had only attended the mediation for the purposes of dealing with his pasture land.

Kim further testified that the words “Kerry shall purchase” in the Minutes of Settlement meant “nothing” because the land was already in Kim’s name. [ 25 ] I find that Kim’s position regarding the Minutes of Settlement is disingenuous. It is inconceivable that he would not have read the entire document, as provisions impacting him were interspersed throughout it. After the

preamble, five of the seven paragraphs contain Kim’s name. The only two paragraphs which do not expressly name Kim, but which relate to him as a party, reference the shared costs of transfer of the grandmother’s property and the obligation to close the transactions within 30 days. [ 26 ] As it is incomprehensible that Kim failed to read the Minutes of Settlement, this begs the question of whether his failure to clarify the status of the NW16 was simply inadvertent or in furtherance of an intent to defeat Kerry’s claim to that land.

Appropriately no evidence was led regarding the discussions which occurred at the August 4, 2010 mediation, in keeping with s. 43 of The Queen’s Bench Act, 1998, SS 1998, c Q-1.01 . Thus, what representations were made regarding the NW16 at that time are not known. [ 27 ] What is known is that by a memorandum of agreement dated February 3, 2010, marked as Exhibit D-6, Sharon sold the NW16 to Kim for the stated price of $40,000. Kim, however, was not required to pay anything out of pocket as subparagraph 1.

a) of Exhibit D-6 states: The purchase price has been paid in full by the Purchaser from funds owed by the Vendor to the Purchaser for farm inputs applied to the Estate and the Vendor’s property. [ 28 ] Title to the NW16 was issued to Kim on February 5, 2010, according to Exhibit D-7, the Province of Saskatchewan Land Titles Registry title for the property. [ 29 ] Kerry maintains that neither he nor his counsel was aware of this transfer of the NW16 to Kim until after the mediation. The wording and timing of the various iterations of the statement of claim support this.

So does the correspondence filed as exhibits, including the letter of August 19, 2010 from Dellene Church, the last line of which states:

Please discuss the issues surrounding the removal of the bin and advise if the settlement agreement in regards to the NW 16-24-26 W2nd SK can be put back on track. [ 30 ] Ms. Church’s letter of August 30, 2010, filed as Exhibit D-9, is somewhat self-serving. Yet it, too, supports Kerry’s position that the February 2010 transfer of the NW16 to Kim was not known to Kerry earlier. [ 31 ] Kim maintains that he had notified Kerry that the NW16 had been transferred from Sharon to Kim in the spring of 2010. Kim testified that he had seen Kerry in town in “I think April 2010 at the Coop service station”.

Kim added, “I said ‘the land is mine; don’t seed it’”. Later, in May or June of 2010, when Kerry had already commenced seeding canola on the NW16, Kim contacted the RCMP. He understands they went to talk with Kerry. [ 32 ] Kerry, in cross-examination, confirmed that it was only later, after the mediation, that he learned the NW16 had been transferred to Kim. Kerry said that in June of 2010 he had received a call from the RCMP regarding the NW16 indicating that Kim wanted him off the land as it belonged to Kim.

Kerry testified that he did not believe the land was in Kim’s name and Kerry told the RCMP that the NW16 had been entrusted to him. [ 33 ] Although Kerry acknowledges that he called his lawyer shortly thereafter, and he suspects she sent a letter to Ms. Church, Kerry reiterated that “we didn’t know until after mediation” that Sharon had transferred the land to Kim. [ 34 ] Kerry also responded “I don’t think so” when asked in cross-examination if it was possible that the RCMP call was in May and not June of 2010.

He did, however, acknowledge that “maybe” he and Kim had talked in May and Kim indicated then he was “claiming it [the land]”. [ 35 ] Kerry was then asked as to why it was not mentioned in the original Statement of Claim, issued May 20, 2010, that Kim owned the land. Kerry responded: “I didn’t know.

I didn’t believe it.” [ 36 ] Given that Kerry had been farming the NW16 for a considerable period of time and had what he understood to be an agreement with Sharon for its purchase, his incredulity at Kim’s stated claim to the land is reasonable. [ 37 ] As noted previously, that original statement of claim only names Sharon as a defendant.

It seeks specific performance of the February 2007 agreement for sale of the NW16 reached between counsel. [ 38 ] Later, on September 20, 2010, over a month after the mediation and execution of Exhibit P-2, the first amendment of the statement of claim was made, without the necessity of leave.

That amendment added both Dellene Church and Kim as defendants and sought judgment “in accordance with the Minutes of Settlement and February 2007 Agreement,” “Judgment for specific performance of the Minutes of Settlement and the February 2007 Agreement,” as well as the vesting of title in the NW16 in Kerry. [ 39 ] Kerry did not exhibit the anger and impatience that Kim did under questioning.

Kerry was forthright in his responses, acknowledging where he did not fully understand things or may have been mistaken, and I consider his testimony to be both credible and reliable. [ 40 ] Indeed, where the evidence diverges, I must prefer the evidence of Kerry to that of either Sharon or Kim.

This is due to the cumulative effect of my concerns regarding the reliability of Sharon’s evidence, my disbelief of Kim on key issues such as his assertion that he had not read the Minutes of Settlement in their entirety, my observations of Kerry, and the consistency between Kerry’s testimony and the dates and contents of the pleadings and other documents. [ 41 ] In light of my assessment of Kerry’s evidence, even under cross-examination, as well as the timing of the amendments to the statement of claim, I find that Kerry was not aware at the time Exhibit P-2 was signed that Sharon had already transferred the NW16 to Kim.

ISSUES [ 42 ] Although the amended statement of claim dated May 26, 2011 still alleges an agreement for sale of the NW16 from Sharon to Kerry in February of 2007, and testimony on this was provided, particularly by Kerry, the focus of the plaintiff’s claim is on the more recent Minutes of Settlement, signed August 4, 2010. By their statement of defence, Sharon and Kim claim frustration of contract and/or mistake with respect to the agreement regarding sale of the NW16 to Kerry reflected in the Minutes of Settlement. [ 43 ] The issues for this court’s consideration, therefore, are: 1.

Was there an agreement regarding the sale of the NW16 from Sharon to Kerry? 2. If so, was the contract frustrated? 3. Are the defendants entitled to rely on contractual mistake to render the contract unenforceable? 4. If there has been no frustration or mistake of contract, to what remedy is Kerry entitled? [ 44 ] For the reasons that follow, I find that the Minutes of Settlement do reflect an agreement for sale of the NW16 to Kerry.

This agreement was not frustrated, as the suggested frustrating event, namely transfer of the property to Kim, occurred prior to the mediation and not after formation of the contract. Further, the defendants are not able to rely on the doctrine of mistake. They are therefore liable to Kerry for breach of contract. [ 45 ] Specific performance is an equitable remedy, the award of which is not supported in the circumstances. Kerry is

entitled to damages, albeit such have been difficult to calculate given the paucity of evidence on this issue. Assistance in the calculation was provided through Kim’s evidence. 1. Was there an agreement regarding the sale of the NW16 from Sharon to Kerry? [ 46 ] The correspondence between counsel filed as Exhibits P-3 and D-4 is indicative of an agreement between Sharon and Kerry in 2007. There are letters in the exchange that were not filed in evidence, so the court does not have a complete picture.

Nonetheless, it is evident that the transfer of the NW16 from Sharon to Kerry was not only discussed, but steps were underway to complete the transaction. [ 47 ] In addition to Exhibits P-3 and D-4, the January 29, 2007 letter marked as Exhibit D-5 reinforces the commitment that Sharon made to finalizing the transfer of the NW16 to Kerry, albeit after the remaining three creditors of Ronnie’s estate were paid: . . .

Once the remaining Estate creditors are paid and the Estate finalized then Sharon would proceed with the transfer of the additional ¼ to Kerry. . . [ 48 ] Notably, the estate debts were paid, as confirmed by Kim in the excerpts of the examination for discovery dated December 14, 2012 read in by Kerry’s counsel. In cross-examination, Kim acknowledged that the debts were paid by February of 2010. As such, the condition imposed regarding delay in the transfer of the NW16 to Kerry, in the letter of January 29, 2007, had been met.

Kerry had reason to believe that Sharon would complete the transfer to him of the NW16 in early 2010 and it is therefore not surprising that he issued the statement of claim against her in May of 2010 when the transfer to Kerry had not been completed. [ 49 ] With these precursor negotiations and commitments by Sharon, the

preamble to the Minutes of Settlement, which indicates Kerry’s action against Sharon as being one to “recover” the NW16, is understandable. Further, the Minutes of Settlement, quoted above at paragraph 21, are clear in their terms: Kerry shall purchase the NW 16-24-26 W2nd from Sharon free and clear of all encumbrances for the sum of $16,000.00. . . [ 50 ] As previously noted, I do not find Kim’s contention that he was not aware of all the terms of the Minutes of Settlement as credible.

The very next sentence in the same paragraph demonstrates Kim’s participation in this transfer of the NW16 to Kerry, should such ease Kim’s financial burden: . . .Provided, however, Kim shall have the option of assuming this debt to reduce his payment to Kerry from $75,000 to $59,000.00. [ 51 ] In light of the evidence, I find that there was an agreement regarding the sale of the NW16 from Sharon to Kerry.

This agreement was reflected in the Minutes of Settlement, of which Kim was not only aware but had potential involvement in how the purchase price would be paid to Sharon. [ 52 ] Further, although Sharon was unable to attend the mediation in person, both Kim, who held power of attorney for her, and Dellene Church, whom Sharon had authorized as her solicitor and agent, were in attendance and could make the agreement regarding the NW16 on her behalf. All parties confirmed that Ms. Church had spoken with Sharon by telephone prior to signing the Minutes of Settlement. 2.

If so, was the contract frustrated? [ 53 ] Having found that there was an agreement regarding the sale of the NW16 to Kerry, it is necessary to consider the doctrine of frustration, on which the defendants pled reliance. In closing argument, further emphasis was placed on the doctrine of mistake by defendants’ counsel. However, the two concepts were linked in written argument. [ 54 ] The plea of frustration to render the Minutes of Settlement unenforceable cannot succeed.

The doctrine of frustration renders a contractual obligation incapable of being performed due to an unforeseeable event that was not contemplated by the parties at the time they entered into the contract. The frustrating event must have occurred after the formation of the contract. In this case, the suggested frustrating event, which was the transfer of the NW16 from Sharon to Kim, occurred prior to the Minutes of Settlement being signed. [ 55 ] The principles regarding frustration were succinctly summarized in Kreway v Kreway, 2016 SKQB 115 .

The court canvassed the jurisprudence and, at para 36, outlined the principles applicable to the doctrine of frustration: [36] The court finds that the general principles regarding the frustration of a contract are contained in KBK No. 138 Ventures Ltd. v Canada Safeway Ltd. , 2000 BCCA 295 , 18 DLR (4th) 650 ; and Korol v Saskatchewan Federation of Police Officers Inc. , 2000 SKQB 367 , 198 Sask R 181 . Those principles can be summarized as follows: (

a) A contract becomes frustrated if it is incapable of being performed because the performance is radically different from the obligations that were undertaken in the contract; (

b) The frustrating event must have occurred after the formation of the contract and not have been foreseen;

(

c) The frustrating event cannot be self-induced; (

d) There is a distinction between complete fruitlessness and mere inconvenience; (

e) The disruption must be permanent or protracted, not temporary or transient; (

f) The change must totally affect the nature, meaning, purpose, effect and consequences of the contract; (

g) If there was a mistaken assumption about a current or future event the unexpected event must be so far outside of the range of therisks allocated by the contract that it undermines its very substance; and (

h) From a policy perspective, the values favouring non-enforcement must outweigh those favouring enforcement of the contract. [Emphasis added] [56] Additionally, in PSI International Canada Corp (Seaboard Specialty Grain and Goods) v Palimar Farms Inc.,2017 SKCA 78 at para 38, [2018] 2 WWR 90, the Saskatchewan Court of Appeal made the following comments on the doctrine offrustration: [38] The essential features of the doctrine of frustration are not in dispute.

They were explained as follows in Naylor Group Inc. v.Ellis-Don Construction Ltd., 2001 SCC 58 at para 53, [2001] 2 SCR 943: Frustration occurs when a situation has arisen for which the parties made no provision in the contract and performance of the contractbecomes "a thing radically different from that which was undertaken by the contract": Peter Kiewit Sons' Co. v. Eakins ConstructionLtd., (SCC), [1960] SCR 361, per Judson J., at p. 368, quoting Davis Contractors Ltd. v.

Fareham Urban DistrictCouncil, [1956] AC 696 (H.L.), at p. 729. [57] As demonstrated in the above-noted case law, frustration occurs when a situation has arisen after the contracthas been formed that renders the contract incapable of being performed, or radically changes the essence of the contractual obligations.Frustration does not occur when the alleged frustrating event occurs before the contract was formed, as is claimed by the defendants,Sharon and Kim. If the frustrating event occurred prior to the agreement, it would be a foreseeable contingency to consider whendrafting the document.

In this situation, the alleged frustrating event, the transfer of land from Sharon to Kim, occurred months prior tothe contract formed by the Minutes of Settlement. This renders the doctrine of frustration inapplicable. 3. Are the defendants entitled to rely on contractual mistake to render the contract unenforceable? [58] The pleadings frame the litigation.

Paragraph 10 of the May 26, 2011 amended statement of claim, as well as theSeptember 20, 2010 version of the claim, asserts: [10] Both Sharon Bakken, through her counsel, and Kimberly Edwin Bakken were party to all business conducted at the mediation.Minutes of Settlement were executed by Kimberly Edwin Bakken in his own right and by Dellene Church on behalf of Sharon Bakken. [59] In response, paragraph 5 of the statement of defence on behalf of Sharon and Kim indicates the mistake onwhich they rely to suggest the agreement is unenforceable: [5] The Defendants deny paragraph 10.

The Defendant, Sharon Bakken was not present at the mediation. The Defendant, KimberlyEdwin Bakken, admits to signing the Minutes of Settlement but states he believed he was signing a settlement document purporting tosettle litigation under Q.B.G. 522 of 2010, not the current file of Q.B.G. 942 of 2010. Had Kimberly Edwin Bakken understood thepurpose of the Minutes of Settlement, he would not have signed it, as the land in question had already been transferred a number ofmonths previously.

The Defendants therefore plead and rely on mistake and frustration of contract. [60] As discussed previously, although Sharon was not present at the mediation, Dellene Church attended and wasauthorized as Sharon’s solicitor and agent. Ms. Church was also observed to have consulted with Sharon by telephone prior to signing theMinutes of Settlement, and Sharon acknowledges that telephone call took place. [61] Regarding Kim, as noted above, I do not accept that he did not know the full contents of the Minutes ofSettlement.

The document marked as Exhibit P-2 clearly indicates both action numbers and Kim’s obligations are interspersedthroughout. It is inconceivable that Kim was unaware that the Minutes of Settlement embodied an agreement to sell the NW16 to Kerry. [62] As Sharon had an authorized solicitor and agent, Dellene Church, present at the mediation, and as I have foundKim’s assertions regarding his lack of knowledge of the terms of the Minute of Settlement to not be credible, I could dispense with adetailed analysis of the doctrine of mistake, as was the case in Wang v Laura W.

Zhao Personal Real Estate Corporation, 2019 BCSC

1624 [Wang]. There, despite the defendant’s contentions, the court found that there was no mistake as the defendant understood thedocuments that were signed. As in this case, the court in Wang had to make assessments regarding credibility because, as noted at para.12 of Wang, “the parties were in separate evidentiary universes regarding the content of virtually every one of their interactions”.

Withthe conclusion that Kim was aware of the agreement pertaining to the NW16, the mistake that he and Sharon seek to rely on as the basisfor rendering the Minutes of Settlement void or voidable is eliminated. [63] This is sufficient to determine the matter, particularly as in neither the pleadings nor the closing argument wasthe type of the alleged contractual mistake specified.

Nonetheless, I will address the three types of mistake, none of which operate toassist the defendants in this case. [64] In Ron Ghitter Property Consultants Ltd. v Beaver Lumber Company Limited, 2003 ABCA 221, at paras 12-13,[2004] 1 WWR 628 [Ron Ghitter], the Alberta Court of Appeal succinctly described contractual mistakes: [12] There are three types of mistake: common, mutual and unilateral: see Cheshire, Fifoot & Furmston, Law of Contract, supra at 252-53 for a

summary of each. Common mistake occurs when the parties make the same mistake. For example, one party contracts to sell avase to another when unbeknown to both, the vase was destroyed and no longer exists. Mutual mistake occurs when both parties aremistaken, but their mistakes are different. In this event, the parties misunderstand each other and are, to use the vernacular, "not on thesame page". Unilateral mistake involves only one of the parties operating under a mistake.

If the other party is not aware of the oneparty's erroneous belief, then the case is one of mutual mistake but if the other party knows of it, of unilateral mistake. What adds to theconfusion is that the distinction between mutual and common mistake is sometimes blurred when courts use the two termsinterchangeably. [13] The presence or absence of an agreement is one of the foundational differences amongst the three types of mistake. With commonmistake, the agreement is acknowledged.

What remains to be determined is whether the mistake was so fundamental as to render theagreement void or unenforceable on some basis. But in the case of a mutual or unilateral mistake, the existence of an agreement isrejected. As explained in Cheshire, Fifoot & Furmston, supra at 253: Where common mistake is pleaded, the presence of agreement is admitted. The rules of offer and acceptance are satisfied and the partiesare of one mind.

What is urged is that, owing to a common error as to some fundamental fact, the agreement is robbed of all efficacy.Where either mutual or unilateral mistake is pleaded, the very existence of the agreement is denied. The argument is that, despiteappearances, there is no real correspondence of offer and acceptance and that therefore the transaction must necessarily be void.

a) Common Mistake [65] As noted in Ron Ghitter, “common mistake occurs when the parties make the same mistake.” [See alsoLawrence M. Olivio & Jean Fitzgerald, Fundamentals of Contract, 3rd ed (Toronto: Edmond Montgomery Publications, 2013) at 105.] [66] The evidence in this case does not establish a common mistake. Kim contends that he did not read, and thus didnot understand the purpose of, the Minutes of Settlement and Sharon argues that she was not there at the time. Kerry, on the other hand,was aware of the purpose and effect of the Minutes of Settlement.

He, however, did not have an understanding of who held title to theNW16 at that time. Kim and Sharon did not have that same misunderstanding. [67] The parties did not make the same mistake. As a result, the doctrine of common mistake does not apply.

b) Unilateral Mistake [68] Authors Olivio and Fitzgerald discuss unilateral mistake at pages 102-104 of Fundamentals of Contract. Such amistake occurs when one party is mistaken about some fundamental element of the contract. What follows from that may depend onwhether the unmistaken party knew or ought to have known about the mistake. However, at page 104, the authors noted that courts aremore inclined in cases of a unilateral mistake to resort to “flexible remedies that maximize opportunities for keeping the contract alive”.

i) Lack of Awareness [69] A pre-condition to succeeding on the basis of a unilateral mistake is the unmistaken party’s awareness that theother contracting party made a mistake. In this case, Kim’s alleged mistake was signing the Minutes of Settlement which pertained to theNW16.

It is not reasonable to conclude that Kerry knew or ought to have known of such mistake on Kim’s part. [70] In Jardine v Mann, 2013 SKQB 30 at para 36, 416 Sask R 154, the Saskatchewan Court of Queen’s Bench heldthat for the plaintiff to rely on the doctrine of unilateral mistake, he was required to show a mistake with respect to the agreement andthat the sellers knew of his mistake.

Additionally, the Saskatchewan Court of Appeal in Montreal Trust Co. v Maley (1992), (SK CA), 105 Sask R 195 at para 16 (Sask CA), quoting Alampi v Swartz (1964), (ON CA), 43DLR (2d) 11 (Ont CA), noted that to succeed on a plea of unilateral mistake, the defendant must establish: 1. that a mistake occurred; 2. that there was fraud or the equivalent to fraud on the plaintiff’s

part in that she knew or must be taken to have known when theagreement was executed that the defendant misunderstood its significance and that she did nothing to enlighten the defendant…

[71] There is no evidence that Kerry was aware of Kim’s mistake. Even if I accepted that Kim had failed to fully readthe Minutes of Settlement, or at least those portions pertaining to the NW16, Kim would not succeed on the plea of unilateral mistake,given Kerry’s lack of awareness of such alleged mistake. [72] In Iverson v Iverson, 2009 SKQB 246 at para 52, 334 Sask R 299, Popescul J. (as he then was), held that thelaw is clear that a party cannot rely upon her own mistake as a basis to hold the contract invalid or unenforceable.

A similar conclusionwas reached in Mykytyshyn v Mykytyshyn, 2003 SKQB 291, 237 Sask R 122 where a party neglected to insert a provision in a separationagreement exempting his Canadian Pension Plan [CPP] contribution from division on the basis that he never would have agreed to theterms of the agreement if he knew he was obligated to split his CPP credits. In upholding the Court of Queen’s Bench Decision, theCourt of Appeal in Mykytyshyn v Mykytyshyn, 2004 SKCA 10, 241 Sask R 134, held: [2] The offer to settle was clear and unequivocal. It made no mention of CPP contributions.

The reference to the appellant’s pensionclearly meant his employment pension and not CPP contributions because the offer went on to refer to the value of the pension. The offerwas accepted. There was no mistake on the part of the respondent, nor any fault, nor deception, nor concealment. If there was a mistakeas alleged by the appellant it was unilateral and he must look elsewhere for any remedy which he may have. [73] Finally, in McNeill v Vandenberg, 2010 BCSC 582, the defendant argued that the consent order should be setaside on the basis of a unilateral mistake.

He submitted that he did not understand the legal effect of executing the document. The courtheld, at para. 20, that his evidence was “belied by both the wording of the consent order itself and the emails leading up to the signing ofthe consent order”. The court went on to note that the consent order was written in plain English and the topic at issue was clearlyoutlined in the document. It was therefore clear that Mr. Vandenberg knew that to which he was agreeing. [74] The same conclusion is reached here. The Minutes of Settlement Kim signed were written in plain English andare clear and unequivocal.

They clearly set out the purchase price for the NW16 and the options for how Sharon was to be paid in orderfor the sale was to be completed. [75] The Minutes of Settlement were signed by Kim and Dellene Church, Sharon’s solicitor and agent. Kim’scontention that he did not understand the document as it pertained to the sale of the NW16 land belies the wording of the Minutes ofSettlement and the discussions that had to have taken place during the mediation.

While, appropriately, this court does not know thedetails of those discussions, for the matter of the sale of the NW16 to have such a prominent place in the Minutes of Settlement, it had tohave been discussed. Kim had every opportunity to avail himself of clarification as to the terms of the Minutes of Settlement. If he didnot take the opportunity to do so, the fault cannot be placed on Kerry. [76] Unilateral mistake is not available to assist either Kim or Sharon. This is not a situation where Kerry knew orought to have known that Kim made the mistake he alleges he did.

Further, by the pleadings, Sharon seems to be suggesting her mistakewas not attending the mediation session. Again, however, Dellene Church was present on Sharon’s behalf and had the same knowledgethat Kim and Sharon had regarding the ownership status of the NW16. Given that there was no fault, deception or concealment onKerry’s behalf, Kim and Sharon cannot rely on their own mistake as a basis to hold the contract invalid or unenforceable. ii) Non Est Factum [77] Intertwined with the doctrine of unilateral mistake is a plea of non est factum, which is a plea of mistake as tothe nature of the agreement.

It was not expressly pled in this case but, giving a liberal

interpretation to paragraph 5 of the statement ofdefence, I will consider it. [78] In Cozart v Cozart, 2007 SKQB 160 at para 45, 296 Sask R 183 [Cozart], the court held that “when a partyinvokes non est factum, he comes to court essentially pleading that he misunderstood what he was signing and the contract should be setaside”.

At para. 47, the court added that merely “making an error does not ground a successful plea of non est factum”. [79] In London Guarantee Insurance Co. v Naber Seed & Grain Co., 2003 SKQB 264 at para 14, [2003] 10 WWR328 [London Guarantee], the court reiterated the view found in Bank of Montreal v McIntosh, (SK KB), [1995] 10WWR 726 (Sask QB), that “unless the document was obtained by fraud or misrepresentation, the party asserting non est factum must, ona balance of probabilities, show its lack of carelessness in signing the document.” The London Guarantee decision also, at para. 15,accepted the Manitoba decision of Canadian Imperial Bank of Commerce v Shotbolt, (MB KB), [1981] 5 WWR 738at para 37 (Man QB), that a defence of non est factum will not succeed where a “defendant failed to understand the precise meaning andcontent of a document, but did have a good idea as to its nature and purpose”. [80] Kim argues that that he did not understand the purpose of the Minutes of Settlement because he knew that theNW16 had been transferred from Sharon to him months previously.

However, Kim knew the nature of the document and the purpose ofthe Minutes of Settlement generally. He was well aware that the purpose of the mediation was to resolve disputes between Kerry andKim and Sharon. While Kim suggests that he only attended the mediation to deal with QBG 522 of 2010, both court numbers wereclearly indicated on the Minutes of Settlement. Further, both Kim and Sharon knew that Sharon was participating through her solicitorand agent, Dellene Church.

Finally, as noted previously, Kim’s name and commitments are interspersed throughout the entire document.In such circumstances a plea of non est factum is not available to assist the defendants. [81] In Outwest Enterprises Limited v Timms, 2007 BCSC 560 at para 21, the court held that “a party cannot rely onthe non est factum defence if she has been careless in signing the document by not informing herself of its meaning”.

An earlierSaskatchewan decision, McDonald v McDonald, 2003 SKQB 549 [McDonald], had similarly held, at para. 68, that the plea of non estfactum is not available to anyone who was content to sign a document without taking the time to find out the general effect of thedocument and that carelessness is sufficient to defeat a claim of non est factum. [82] The Minutes of Settlement consist of only two and a half pages. They are not difficult to read. If Kim was

honestly confused as to the purpose of the document, which is not believable in the circumstances, he could have taken steps to clarifythe effect of the document. As in McDonald, Kim’s carelessness in failing to seek clarification defeats any potential claim of non estfactum.

c) Mutual Mistake [83] The final category of mistake is known as mutual mistake. In Boechler v Boechler, 2019 SKCA 120, theSaskatchewan Court of Appeal noted, at para. 47, that a mutual mistake occurs when parties are mistaken about an issue but in differentways. The Court of Appeal referenced Cozart, where Smith J. held, at para. 48, that the doctrine of mutual mistake comes into playwhere parties are operating at cross purposes. [84] Kim’s position is that he did not know the Minutes of Settlement constituted a contract for sale of the NW16.

Heis arguing that had he known, he would not have signed the Minutes of Settlement. Kerry, on the other hand, argues that there was anagreement pertaining to the NW16. Kerry was unaware of Kim’s alleged mistake regarding the contents of the Minutes of Settlement. [85] As previously noted, neither the statement of defence nor the submissions at trial specified on which branch ofthe doctrine of mistake the defendants were relying. Presumably, however, if the defendants are relying on mutual mistake, their positionis that the parties were operating at cross purposes. [86] However, such does not end the analysis.

Further in para. 48 of Cozart, Smith J. described the principlespertaining to mutual mistake, including the objective element. That is, citing G.H.L. Fridman, The Law of Contract in Canada, 5th ed(Toronto: Carswell, 2006), he held that the issue is: “what would a reasonable person infer from the words and conduct of the parties?

If,despite their different mistakes, it would appear to the outside world that the parties were in agreement as to the contract and its terms,then a contract would exist at common law.” He emphasized that even if a party’s subjective intentions differ from the terms of thecontract, if the party conducts himself in a manner that a reasonable person would believe that he assented to the terms proposed by theother party and the other party enters into the contract, the mistaken party is equally bound as if he had intended to agree to the otherparty’s terms. [87] Cozart also cites passages from Staiman Steel Ltd. v Commercial & Home Builders Ltd. (1976), (ON SC), 13 OR (2d) 315 (WL) (Ont HC) [Staiman Steel], in which the plaintiff’s claim that a contract ought to be upheld based onhow a reasonable observer may have viewed the contract was successful.

At para. 53 of Cozart, the plaintiff’s position, from para. 24 ofStaiman Steel, is outlined: [24] Counsel for the plaintiff, on the other hand, relied on the basic rule of contract law that it is not a party's actual intention thatdetermines contractual relationships, but rather the intention manifested by the words and actions of the parties. [88] This basic rule of contract law was accepted in both Stailman Steel and Cozart. It is noteworthy that Cozart dealtwith Minutes of Settlement achieved through a pre-trial conference.

The closing comments of Smith J. are apropos here: [71] The minutes of settlement reached by the Cozarts are not in any way unclear or ambiguous. No one was rushed to sign. Both partieshad a lawyer. Everyone had an opportunity to read the document. Any reasonable observer, trained in the law or otherwise, would haveregarded the parties as having reached an agreement. [72] We are now met with evidence from the petitioner that the parties may well have been negotiating at cross purposes. However, thatfact would not be self-evident to any reasonable observer. As noted in Walton v.

Landstock Investments Ltd., supra, at para. 9, “...mutualassent is not required for the formation of a valid contract, only a manifestation of mutual assent...”. What can be more manifest than asigned agreement? Objectively speaking, the parties have arrived at a consensus ad idem as reflected in the written document, i.e. theContract. [73] The petitioner will complain my analysis operates as a hardship as she did not intend to enter into the obligations reflected in theContract. Case authority is laden with strong policy reasons for the court’s approach and analysis to be rigorous in this regard.

Theadministration of justice and, perforce, the larger good, is not served by facilitating the setting aside of written agreements because oneparty subsequently realized they were not as attentive as they should have been. [89] Kim’s actions manifest an intention to agree to the sale of the NW16 to Kerry as contemplated by the Minutes ofSettlement. So, too, do Sharon’s actions. Kim was present throughout the mediation as a party. He held power of attorney for his mother,who was not present, and he signed the Minutes of Settlement.

Sharon, albeit not in attendance at the mediation, had the benefit of legaladvice and was consulted by Dellene Church, whom Sharon had authorized to act on her behalf. Although there is some dispute in theevidence, it appears that Kim had the opportunity and may also have participated in the call between Ms. Church and Sharon. This wouldnot be surprising. Kim was certainly familiar with Dellene Church, Sharon’s solicitor and agent, having attended on Ms. Church’s officewith Sharon in relation to Ronnie’s estate.

Kim also testified of “working with” his mother in the years following Ronnie’s death suchthat he had knowledge of her business affairs. [90] In such circumstances, a reasonable person would conclude that the parties were in agreement as to the sale ofthe NW16 to Kerry. [91] It was also a tri-partite arrangement. The method of payment of the $16,000 for the NW16 was dependent onKim’s financial position regarding the other lands.

Further, as Sharon, Kim and Dellene Church would have had the knowledgeregarding the February 3, 2010 transfer from Sharon to Kim, it would have been quite feasible for Kim, in caucus, to discuss with Ms.Church and Sharon how to return that land to Sharon to enable her transfer to Kerry, or to effect the transfer to Kerry from Kim directly. [92] What would not have been a reasonable option for Kim was to lay in the weeds and later feign a lack of

understanding of the Minutes of Settlement in order to prevent Kerry from taking possession of the land. The question alluded to earlier, as to whether Kim’s failure to clarify the status of the NW16 at the mediation was an intentional attempt to defeat Kerry’s claim or an inadvertent error, lurks in the background.

Regrettably, the argument by counsel for the defendants made in the context of the non-suit application, that Kerry’s claim is based on having been “duped” at mediation, supports the view that more than carelessness was at play. [ 93 ] Nonetheless, Kim’s carelessness in failing to clarify matters before signing the Minutes of Settlement is sufficient to put him at fault for the alleged mistake.

Had he sought such clarification, or informed those present that title to the NW16 was no longer in Sharon’s name, the Minutes of Settlement would likely have been drafted very differently. [ 94 ] A party who seeks to rely on the doctrine of mutual mistake to render an agreement unenforceable must not be at fault for the mistake. See , for example, Wang v Chen, 2013 BCSC 1138 , at para. 18 .

If Kim honestly was unaware or misunderstood the contents of the Minutes of Settlement pertaining to the sale of the NW16, he was at fault for that mistake as it arose as a result of him being inattentive to the terms of the Minutes of Settlement and the content of the mediation. As such, the doctrine of mutual mistake does not operate to assist the defendants. [ 95 ] In light of all of the above, none of the three facets of mistake operate to assist Kim and Sharon in rendering the Minutes of Settlement unenforceable. They are therefore liable for breach of the agreement. 4.

If there has been no frustration or mistake of contract, to what remedy is Kerry entitled? [ 96 ] Having concluded that there was a valid agreement pertaining to the NW16 set forth in the Minutes of Settlement and that neither frustration nor mistake render that agreement unenforceable, Kerry is entitled to judgment against the defendants. Paragraph 16 of the amended statement of claim dated May 26, 2011 outlines the remedies sought by Kerry: 16. The Plaintiff claims as against the Defendants the following: a. Compliance with the Minutes of Settlement; b.

If the Defendants cannot comply with the Minutes of Settlement, general damages to be proven at trial for the breach of the Minutes of Settlement; c. General damages against the Defendant Church for her failure to advise that the retransfer of land was a condition precedent to the Minutes of Settlement, acting in her capacity as agent for the Defendant Sharon; d. Damages against the Defendant Kimberly for conversion of canola in an amount to be proven at trial; e. Specific damages in an amount to be proven at trial; f. Punitive damages; g. Interest pursuant to the Prejudgment Interest Act ; h.

Costs of this action. [ 97 ] The claim, as noted previously, was discontinued as against Dellene Church. The Minutes of Settlement, however, were tri-partite in nature, and as I have concluded that Kim was fully aware of all the terms outlined therein, retransfer of the NW16 to Sharon, as contemplated by subparagraph 16. c., remained feasible. Indeed, plaintiff’s counsel argued that the transfer of the NW16 in February of 2010 from Sharon to Kim did not frustrate the ability of this court to direct compliance with the Minutes of Settlement.

That is, mandating a transfer to Kerry or a vesting order were still available as remedies. In this regard, Kerry’s counsel noted that the 2010 transfer from Sharon to Kim was not one to a third party and was not an arm’s length transaction. Counsel described it as “a contrived transaction, done to defeat Kerry’s claim.” [ 98 ] While the circumstances do hint at such a contrivance, I am again mindful that the pleadings frame the litigation. The May 26, 2011 amended statement of claim does not expressly plead a claim of specific performance, although the earlier iterations of the claim did.

Similarly, a request for an order vesting title of the NW16 in Kerry was deleted in the May 26, 2011 amendment. Accordingly, Kerry’s counsel frankly acknowledged that the latest version of the claim was operative. [ 99 ] Even if I were to give the pleadings a liberal reading, Kerry faces a further obstacle to receiving an award of specific performance. The plaintiffs in Salim Rana Inc. v Maduck, 2000 SKQB 318 , 196 Sask R 54 [ Salim Rana ] , faced a similar challenge. In a dispute regarding the

interpretation of a lease and option to purchase relating to a hotel complex, the court considered the plaintiff’s entitlement to specific performance at para. 96 of Salim Rana : [96] The last potential equitable claim is the claim for specific performance. Salim Rana Inc. argues that it should be able to exercise its option and complete the purchase of the hotel complex on equitable grounds.

The availability of specific performance with respect to contracts for real property is discussed by Victor Di Castri, in Law of Vendor and Purchaser, 3rd ed., vol. 2 (looseleaf; updated March, 1998, Rel. 2) (Toronto: Carswell, 1989)) at 16-56, §788 as follows: The granting of equitable relief by way of specific performance rests in the judicial discretion of the court and is exercised as far as possible by fixed rules and principles, yet the discretion is more elastic than in the administration of other judicial remedies; an important element to which the court gives particular attention is the conduct of the plaintiff.

He will not be granted specific performances if he approaches equity with unclean hands or unable to show that he has performed all his own obligations under the contract, or has tendered performance, or is ready and willing to do so. The plaintiffs in this case failed to keep up payments in the agreement. In fact, even after they were found in default and sought an order

granting relief from forfeiture, the conditions of the forfeiture order were not followed. Further, there was no evidence which confirmedthey were ready to tender performance at trial. The plaintiffs did not perform their obligations and the remedy of specific performance isunavailable to the plaintiffs. [Emphasis added] [100] Pursuant to the Minutes of Settlement, Kerry was to pay $16,000 for the NW16, unless Kim assumed thisobligation to Sharon in order to reduce the amount Kim would have to pay to Kerry for the other land referenced in the Minutes ofSettlement.

According to Exhibit D-8, the August 19, 2010 letter from Dellene Church to Kerry’s counsel, Kim was unable to obtainfinancing to purchase those other lands from Kerry. This confirmed that the $16,000 was payable to Sharon from Kerry. This amount,however, was never tendered by Kerry. [101] Kerry’s counsel submitted that there was no point in Kerry tendering the purchase money as by then neither Kimnor Sharon were prepared to honour the terms of the Minutes of Settlement. Tendering, however, may well have assisted in Kerry’sclaim for specific performance.

It would also have assisted Sharon in retiring her personal loans, which she had taken out to payRonnie’s creditors, thereby generating goodwill. [102] Exhibit D-8 does confirm that items were removed from Kerry’s land, in keeping with the Minutes of Settlement.The letter raises only the failed arrangements regarding removal of the bin as the grounds for Sharon’s refusal to sign the transfer toKerry of the NW16. [103] Regarding the bin, Exhibit D-8 must have limited evidentiary weight. Dellene Church is no longer a party to thisaction. Her letter purports to describe conversations to which she was not privy.

Further, her description contradicts the evidence Kerryprovided on cross-examination. Kerry confirmed that on one occasion there was still grain in the bin such that it could not be moved.Kerry further testified that he got the grain removed right away so Kim and Sharon could access it, but “[Kim] never showed up”. This isvery different from the suggestion in Exhibit D-8 that Kerry “was not going to allow the removal of the bin, and had never intended to”. [104] Kim testified that “the bin was the main issue; it was mom’s”. He also noted that the bin had been an issue whenthe home quarter was sold to Kerry.

While I have concerns regarding the accuracy of Kim’s assertions regarding Kerry’s conduct withrespect to the bin, I do accept that had Kerry taken further positive steps in ensuring the removal of the bin it would likely have gone along way to salvaging the agreement regarding transfer to him of the NW16. [105] In the absence of such steps, and having failed to tender the purchase amount, the equitable remedy of specificperformance is not available to Kerry. [106] Removal of the bin was, however, not a condition for the transfer of the NW16 to Kerry.

Bin relocation was tooccur “at a date and time to be arranged”. This was unlike the transfers of property referenced in the Minutes of Settlement, whichtransactions were to close “within 30 days”.

Further, given my assessment of the relative credibility of the parties’ testimony, I preferKerry’s evidence over that of Kim and accept that the bin was available for removal, albeit not in the first instance. [107] Kerry is therefore entitled to damages for the loss of bargain, albeit not for the loss of profits over the ensuingyears, other than those encompassed in the damages for conversion of the 2010 canola crop. [108] In Kopec v Pyret and Borys, (SK CA), [1987] 3 WWR 449 (Sask CA) [Kopec], the Court ofAppeal, at para. 40, explained the calculation of damages in lieu of specific performance: [40] In my opinion, the trial judge erred in assessing damages for loss of profit for the years 1981-82.

The respondent’s real loss was aloss of bargain and to award him loss of profit would be not to place him in the same position he would have enjoyed had the breach notoccurred. The respondent is not entitled to both loss of profit and loss of bargain. The damages for loss of bargain are in substitution forthe order for specific performance.

The measure of damages, the loss of bargain--the difference between the sale price and the value ofthe land at the day of trial--is made in contemplation of the purchaser not having had the use of the land during the term of the breach.Just as the defendant would not be entitled to set off its costs of holding the land during the term of the breach, the respondent should notbe entitled to loss of anticipated profit for the use of the land during that period of time. See 306793 Ontario Ltd. v.

Rimes, [(1979), (ON CA), 100 DLR (3d) 350]. [109] The purchase price for the NW16 was set at $16,000 in the Minutes of Settlement. From Exhibit D-6, theFebruary 3, 2010 memorandum of agreement regarding the sale of the NW16 from Sharon to Kim, the price was set at $40,000. This islikely a low value, even for 2010, considering that Kim testified that both the $80,000 Kerry had paid for the N ½ of 15-24-26 W2nd andthe $60,000 he had paid for the NE 16-24-26 W2nd [NE16] were too low. Kim’s evidence was that the value of those three quartersought to have totaled $250,000, not $140,000.

Kim based this on a neighbour’s sale of a home quarter for $200,000, which sale hadoccurred at around the same time as the sale from Sharon to Kerry. [110] The NE16 is, of course, next to the NW16. Thus the soil would be similar. Kerry testified that there wereapproximately 30 more arable acres on the NW16 than the NE16. The NE16, which is the home quarter, would have the house andoutbuildings, potentially adding to its value. Thus, an adjustment based on only home quarters would not be appropriate in valuing theNW16.

For instance, a $60,000 home quarter which, in keeping with Kim’s suggestion, might be valued at $200,000 would yield a$40,000 quarter having a value of $133,333, using the same proportionate increase. [111] However, using the same proportionate increase suggested by Kim’s testimony, whereby $140,00 for the threequarters ought to have been $250,000, the $40,000 value for the NW16 would be $71,428.57. [112] It is likely that the value would be higher than $71,428.57 today. However, evidence of the price of farmland in

the Craik area at the time of trial was not provided. [113] In the context of a personal injury claim, the Supreme Court of Canada in Lindal v Lindal, (SCC), [1981] 2 SCR 629, at page 641, noted: A Court may take judicial notice of the fact than an inflationary trend exists, but I should not think that the precise monthly or yearlyinflation rate is normally a fact of which such notice may be taken. [114] As such, judicial notice of the prime rate of interest over the years or the inflation calculator based on theConsumer Price Index used by Statistics Canada, is not available to assist me. [See also R v Find, 2001 SCC 32, [2001] 1 SCR 863; Cyrv Saskatchewan (Attorney General), 2014 SKQB 61, at paras 47-49, 439 Sask R 159; and Bank of Montreal v Mercer (2000), 193 NFLD& PEIR 88 at paras 89-91 .] [115] Following the formula in Kopec, although I do not have evidence of the value of the land today, the $16,000purchase price would be deducted from the $71,428.57, yielding an award of damages for loss of bargain in the amount of $55,428.57,payable to Kerry from Sharon and Kim, jointly and severally. [116] With respect to Kerry’s claim for damages for conversion of the 2010 canola crop on the NW16, his testimonywas that he had seeded and sprayed that spring prior to the RCMP attending at the land at Kim’s request.

Kerry’s recollection is quitespecific and I find it to be more reliable than Kim’s suggestion that “only a fifty acre chunk of canola had been put in”. Kerry’srecollection is also reasonable given the time frames. [117] Kerry testified that seeding had commenced about May 4, 2010. Kerry had paid for the seed, the fertilizer, andthe spraying and fuel costs.

However, when it came time for harvest, Kerry said, “Kim came out and swathed my canola; he took it”.This was also confirmed in the excerpts of the examination for discovery of Kim which were read in as part of the plaintiff’s case. [118] Kerry had been farming the NW16 for years and had no indication that he ought not to do so in 2010.

Indeed, hisexpectation, based on the previous discussions with Sharon, and the correspondence between their respective counsel, was that theNW16 would be transferred to him when Ronnie’s estate creditors were paid, which occurred in early 2010. [119] Under cross-examination, Kerry was asked whether Kim had told Kerry not to seed the NW16. Kerry respondedthat Kim had not. According to Kerry, Kim had said that he would not honour what Kerry regarded as the trust agreement of 2007, madebetween counsel. When Kim suggested the NW16 was his, Kerry did not believe him and responded that it was not Kim’s land.

Noconfirmation of the title transfer was provided by Kim. [120] In such circumstances, Kerry had a reasonable expectation that he could proceed with farming the NW16 asalways. Further, with the finding that Sharon and Kim breached the Minutes of Settlement, Kim did not have a right to the 2010 canolacrop. Kerry is therefore entitled to damages for conversion. [121] Kerry’s testimony was that the NW16 is nearly all arable, apart from the slough. He does a crop rotation ofwheat, canola, and flax.

In those years when canola is planted, 30 bushels per acre would be what Kerry considers “a good averageyear”, although the yield varies from year to year depending upon the weather. Kerry estimates an average yearly income from a quarterplanted to canola in the range of $30,000 - $35,000.

Using the lower end of the range as a conservative measure of damages, Kerry isentitled to $30,000 from Kim for conversion of the 2010 crop. [122] No evidence was proffered by the plaintiff regarding special damages. [123] Regarding punitive damages, the suggestion was raised that the actions of Kim and Sharon, both prior to and inthe context of the mediation, were designed to defeat the interest Kerry had in the NW16.

While such suspicions linger, particularly inlight of the suggestion by counsel for the defendants that Kerry was duped or deceived at the mediation, the evidence falls short ofjustifying an award of punitive damages. [124] Kerry is entitled to pre-judgment interest pursuant to The Pre-judgment Interest Act, SS 1984-85-86, c P-22.2calculated from August 5, 2010. ORDER [125] For the reasons outlined in the foregoing, Kerry is entitled to judgment as follows: 1. For breach of the Minutes of Settlement, Kim and Sharon are jointly and severally liable to Kerry for damages in the amount of$55,428.57; 2.

Kim shall pay to Kerry $30,000 as damages for conversion of the 2010 canola crop on the NW16; 3. Kerry shall be paid interest on all of the foregoing in accordance with The Pre-judgment Interest Act, calculated from August 5,2010; 4. Kerry shall be paid party and party costs in this matter, calculated from August 5, 2010 under Column ​​​​​​​​​​​​​I.

J. B.R. HILDEBRANDT