Thakur v Savanna Condos (Calgary) Inc., 2023 ABCJ 247

In the Alberta Court of Justice Citation: Thakur v Savanna Condos (Calgary) Inc., 2023 ABCJ 247 Date: 20231121 Docket: P2290101735 Registry: Calgary Between: Rajdev Thakur and Meenakshi Thakur Plaintiffs - and - Savanna Condos (Calgary) Inc. and Joel Johnson Defendants Reasons for Decision of the Honourable Assistant Chief Ju stice D.B. Higa [ 1 ] Savanna Condos (Calgary) Inc. (“Savanna”) seeks transfer of this action to the Court of King’s Bench submitting that the Alberta Court of Justice does not have jurisdiction to grant declaratory relief. [ 2 ] At paragraph 26 of its Dispute Note Savanna, “...seeks a declaration that the termination clause in

section 29 of the Purchase Contract is valid and enforceable, and therefore seeks transfer of the Action to the Court of Queen’s Bench of Alberta” (as it then was). Applicable Law [ 3 ] Section 56(1) of the Court of Justice Act, RSA 2000 c.

C-30.5 states, If at any time a claim, counterclaim or defence involves a matter that is beyond the jurisdiction of the Court, the Court may order that the matter be transferred to the Court of King’s Bench. [ 4 ] Justice Graesser in Hnidan v Shpeley , 2012 ABQB 686 states, “It is obvious from the Act that the decision to transfer the action is discretionary.” [ 5 ] However, Justice Jones in Atrium Square Investments Ltd v John Barlot Architect Ltd , 2014 ABQB 327 stated at paragraph 18 , The use of the words, “may order” suggests that the decision to transfer a matter is discretionary, however, this has been interpreted differently in the case law.

If the Provincial Court Judge is satisfied on a balance of probabilities that a matter is not within the jurisdiction of the Provincial Court, it must transfer the matter. [ 6 ] And at paragraph 21,

In the end, transfer applications will turn on whether the judge decides the Provincial Court does or does not have jurisdiction over the matter. In making this decision, the judge must look at the “true nature of the claim”. [ 7 ] If the Court determines a matter is within the Court’s jurisdiction, the Court may then exercise its discretion.

In that scenario, Justice Devlin states in Dragon HCPS v Turcan & Associates Ltd, 2023 ABKB 367 at para. 36 , In applying s. 56 to this situation, the motions Judge was entitled, and indeed obligated, to consider the procedural stage and history of the matter, together with any other factors shown to bear on the proper administration of justice. Material Facts and Court Record [ 8 ] The parties entered into a contract on December 19, 2021 for the purchase and sale of a condominium unit developed by Savanna (the “Purchase Contract”).

Section 29 of the Purchase Contract reads, THE VENDOR IS THEREBY GRANTED THE UNRESTRICTED RIGHT, AT ITS OPTION, TO CANCEL AND TERMINATE THIS AGREEMENT AT ANY TIME PRIOR TO FINAL CLOSING UPON WRITTEN NOTICE TO THAT EFFECT TO THE PURCHASER, IN ITS SOLE AND ABSOLUTE DISCRETION, FOR THE FOLLOWING REASONS: CONSTRUCTION DELAYS, ECONOMIC VIABILITY OF THE PROJECT, CHANGES IN CONSTRUCTION OR MATERIALS COSTS, CHANGES IN MARKET CONDITIONS OR FAILURE TO OBTAIN REGISTRATION OF THE CONDOMINIUM PLAN(

S) AND IN SUCH INSTANCE THIS AGREEMENT SHALL BE TERMINATED WITHOUT LIABILITY WHATSOEVER TO THE VENDOR, EXCEPT TO RETURN ANY AND ALL DEPOSITS PAID PURSUANT TO THIS AGREEMENT WITHOUT INTEREST. [ 9 ] In the Affidavit in support of the application, Mr. Trutina deposes, 3. Savanna and other related entities sharing common ownership with Savanna use, for the purchase and sale of real property in Alberta, contracts substantially similar to the Contract. Notably, the other contracts used contain provisions identical to

section 29 in the Contract. 4. Savanna and its related entities rely on that

section 29 language to cancel and terminate the contracts, for the reasons set out in the section, including economic viability, change in material costs, and change in market conditions. 7. I believe that only a formal declaration by a court that the particular language used in

section 29 of the Contract is valid and enforceable can give Savanna the assurance and certainty it requires. [ 10 ] In its Dispute Note Savanna pleads at paragraph 7, The Unit was inadvertently sold to a second buyer. When Savanna realized that the unit had been “double sold” it swiftly advised the plaintiffs and, on February 9, 2022, terminated the Purchase Contract for reasons of economic viability and changes in market conditions (and in any event in accordance with

section 29 of the Purchase Contract). [ 11 ] Further at paragraph 14 of the Dispute Note, Savanna asserts, Savanna was entitled to terminate the Purchase Contract and did so on February 9, 2020 in accordance with its terms. [ 12 ] It is noted that the Civil Claim filed by the Plaintiffs has been withdrawn.

Accordingly, Savanna’s application in relation to the main action is moot. [ 13 ] Savanna filed a Counterclaim seeking damages of $16,749.00 and punitive damages in a sum “necessary to bring the total award up to the Provincial Court maximum of $50,000.00”, the Court’s monetary jurisdiction when the Counterclaim was filed. Accordingly, it is only the Counterclaim that Savanna seeks to have transferred to the Court of King’s Bench.

Analysis [ 14 ] Adjudicating claims for general and punitive damages, in amounts within the Court’s monetary jurisdiction and arising from a contract, are matters within the Court’s jurisdiction. [ 15 ] However, although not specifically plead in the Counterclaim’s prayer for relief, Savanna repeated and adopted the Dispute Note seeking a declaration that

section 29 of the Purchase Contract is valid and enforceable. [ 16 ] The Court agrees that the Alberta Court of Justice does not have jurisdiction to grant a declaratory judgment specifically defining the rights of the parties, in circumstances where no further relief is sought.

For example, a declaration that a statute is ultra vires . [ 17 ] However, as stated by Justice Jones in Atrium in considering whether this Court has jurisdiction, the judge “...must look at the “true nature of the claim”.” Accordingly, the Court must assess the true nature of the Counterclaim and determine whether a declaratory judgment is required to resolve the issues before the Court. [ 18 ] As a result of the withdrawal of the Civil Claim, the remaining substantive issues requiring adjudication by the Court are Savanna’s claim for re-payment of the deposit and punitive damages; matters clearly within the Court’s jurisdiction.

[ 19 ] The primary issue before the Court is whether Savanna had a right to terminate the Purchase Contract pursuant to

section 29. Determination of that type of issue and matters relating to

interpretation of contracts and applicability of contractual terms are matters the Court addresses daily. The Court of Justice would be unable to adjudicate in any action relating to contracts, if contract

interpretation decisions were categorized as making a declaratory judgment. [ 20 ] Upon assessing the true nature of the Counterclaim, determination of the issues raised by the pleadings does not require the Court to make a declaratory judgment. [ 21 ] Mr. Trutina states that he believes only a formal declaration can give Savanna the “assurance and certainty it requires”. No doubt parties to any agreement would like certainty and assurance that the application or

interpretation of contractual terms will be determined in advance in their favour. Unfortunately, that is not realistic. Disputes relating to

interpretation and applicability of contractual terms are a staple of civil court dockets and decided on a case-by-case basis. [ 22 ] Although one party may use a standard form contract, the facts are specific to each case and contractual

interpretation will depend on those facts. [ 23 ] This action results from a failed attempt by the Thakurs to purchase a condo unit and return of a deposit. Savanna claims that a specific provision of the Purchase Contract allowed it to terminate the contract between the parties. The Thakurs disagree and assert that Savanna terminated the Purchase Contract without a contractual entitlement to do so.

That issue and the true nature of the Counterclaim are matters that can be heard by the Alberta Court of Justice. [ 24 ] Having found that this Court has jurisdiction, the Court is also to consider the procedural state and history of the matter and other factors relating to the proper administration of justice. This action has proceeded through the close of pleadings, document production, attendance at a pre-trial conference and the setting of a trial date. [ 25 ] There are no further litigation steps required to be performed in this Court.

If this action was transferred, the Thakurs would certainly be inconvenienced having to submit to the process of the Court of King’s Bench, with the unavoidable time delay and increased costs. That would defeat the legislative intent of having matters within the jurisdiction of the Court of Justice dealt with in an efficient and cost-effective manner. [ 26 ] The application to transfer this action to the Court of King’s Bench is dismissed. [ 27 ] The Thakurs are awarded costs of $300.00 in accordance with the Court’s Tariff of Recoverable Costs. Heard on the 3 rd day of November, 2023.

Dated at the City of Calgary, Alberta this 21 st day of November, 2023. D.B. Higa Justice of the Alberta Court of Justice Appearances: Counsel, Michael Geib for the Plaintiffs Counsel, Josh Dial for the Defendant – Savanna Condos (Calgary) Inc.