Mottram v Gingerich, 2023 ABKB 80

Court of King’s Bench of Alberta Citation: Mottram v Gingerich, 2023 ABKB 80 Date: 20230214 Docket: 1710 01129 Registry: Red Deer Between: Aaron Mottram Plaintiff - and - Bradley Gingerich Defendant Corrected judgment: A corrigendum was issued on February 14, 2023; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment of the Honourable Justice B.B. Johnston _______________________________________________________

[1] This action involves a dispute over a property located in Marina Bay in Sylvan Lake, Alberta (the “Property”). The Plaintiff,Aaron Mottram, claims he entered into an agreement for sale of the Property with the Defendant, Bradley Gingerich, which wasbreached by the Defendant. He asks for specific performance of the agreement. [2] The Defendant denies the parties entered into an agreement for sale and asserts instead that the parties entered into aresidential tenancy agreement that included an option to purchase, commonly referred to as a “rent to own agreement,” the terms ofwhich expired in February 2014.

He seeks dismissal of the claim and advances a counterclaim. Background [3] The Defendant is the owner of the Property. The Defendant is a sophisticated commercial realtor and property developer. InMarch 2012, the Plaintiff was renting another unit at Marina Bay and approached the Defendant regarding a potential purchase of theProperty. At the time, the Plaintiff had poor credit so was unable to qualify for financing on the Property.

Although the nature of theagreement is in dispute, the following is not in dispute: • the Plaintiff moved into the Property in April 2012; • the Plaintiff provided an initial payment to the Defendant, which included a cheque dated April 4, 2012, for $25,000 paid to theDefendant from Aaron’s Oilfield Services Ltd. and signed by the Plaintiff and one cash deposit of $10,000; • the Plaintiff paid the Defendant at least $3,800 a month from April 2012 until May 31, 2017; • the Plaintiff paid the Homeowners’ Association (HOA) fees in respect of the Property from mid 2012 though to and including2016; • the Plaintiff paid the property taxes in respect of the Property from mid 2012 through to and including 2016; and, • the Defendant issued a notice of eviction on July 10, 2017.

The Plaintiff vacated the Property, and the Defendant has retained theProperty. [4] On August 8, 2017, the Plaintiff filed a Statement of Claim, which was amended on October 31, 2018, and further amendedon October 28, 2022, seeking amongst other things specific performance of the agreement for purchase of the Property. [5] The Defendant filed a Statement of Defense on August 16, 2017, which was amended on October 28, 2022. [6] The Defendant also filed a Counterclaim on August 18, 2017, seeking damages for unpaid utilities, deposits and rent for July2017, removal of appliances, and for the cost to restore the Property to its former condition. [7] The Plaintiff filed a Statement of Defence to Counterclaim on August 25, 2017.

Issues [8] This action raises the following issues for determination: 1) Was the agreement between the parties an agreement for sale or a residential tenancy agreement with an option to purchase (a “rentto own agreement”)? 2) Does the Statute of Frauds render the agreement unenforceable? 3) Was there a breach of the agreement? 4) What is the appropriate remedy? Analysis [9] The Plaintiff testified and called two additional witnesses, Ms. Lori Donovan and Ms. Karen Lesser. The Defendant testifiedand called Mr. Bradyn Arth as a witness. An agreed statement of facts was also entered into evidence.

Credibility [10] In this case, there were significant conflicts in the evidence. As a result, it useful to start with an assessment of the credibilityand reliability of the evidence presented at the trial. [11] In Vestby v. Galloway, 2020 ABQB 361 at para 57, Justice Feth noted: When assessing credibility and reliability, the whole tapestry of the evidence is considered, both in scope and nature. The Court mayaccept all, some, or none of a witness's evidence: R. v. S. (J.H.), 2008 SCC 30 (S.C.C.), Binnie J at para 10.

The inquiry includes areview of the story's "harmony with the preponderance of the probabilities which a practical and informed person would readilyrecognize as reasonable in that place and in those conditions": Faryna v. Chorny, , [1952] 2 D.L.R. 354 (B.C. C.A.) at

357. Several factors are utilized including: internal consistency, consistency over time, compatibility and incompatibility with other evidence, corroboration, plausibility, quality of memory, admissions against interest, evasiveness, exaggeration, bias, motivation, and demeanour. [ 12 ] I find that the Plaintiff was a credible witness. His evidence was plausible. Although there were some gaps in his evidence, on balance, I found his evidence to be internally consistent and largely compatible with the other evidence. [ 13 ] In contrast, I have concerns about the credibility of the Defendant.

I found his evidence to be implausible in many respects. His evidence was often inconsistent with the documentary evidence and full of contradictions. Some of these concerns will be reviewed below. The Agreement [ 14 ] The Plaintiff argues that there was an agreement for sale between the parties. He asserts he made a $70,000 down payment and made monthly mortgage payments of $3,800. There was no set timeline to complete the purchase and transfer of the land.

The Plaintiff argues that by entering into an agreement for sale and making the initial payment, the Plaintiff acquired an equitable interest in the Property and that the Defendant, although remaining on title, had a legal obligation to transfer title to the Plaintiff once the purchase price had been paid. [ 15 ] Conversely, the Defendant argues the parties entered a residential tenancy agreement that contained an option to purchase, which agreement expired in February 2014.

The Defendant asserts that the payments made constitute rents and deposits as opposed to down payments or payments towards the purchase price and do not give rise to an equitable interest in the land. [ 16 ] Disputes of this nature are not uncommon. A potential buyer who may not have sufficient funds for a down payment or who is unable to qualify for a mortgage will often look to alternate arrangements to purchase a home. Both an agreement for sale and rent to own agreement could look attractive for such a buyer and yet, they have significant differences that are exemplified by this case.

An agreement for sale favours a buyer in that it gives the buyer an equitable interest in the property from the first payment towards the purchase of the property until closing of the purchase. A rent to own favours the seller since the potential buyer does not get an equitable interest in the property as the payments are characterized as option payments and not payments applied towards the purchase of the property. [ 17 ] Both types of agreements can be effective when things go right and the purchase and sale closes as expected.

However, there is a significant difference between agreements for sale and rent to own agreements when things do not go according to plan. In a rent to own agreement, a buyer that fails to exercise the option forfeits the monies paid as deposits or option payments.

Conversely, when a buyer defaults in an agreement for sale, they still enjoy a right of redemption given they have an equitable interest in the lands. [ 18 ] In Kathryn Farms Ltd v. 1572548 Alberta Ltd ., 2022 ABCA 21 at paras 22 to 24 , the court described a purchase agreement this way: An "agreement for sale" in this context is a contract for the sale of an interest in land under which one party agrees to pay the purchase price over time, and on full payment, the other party is obliged to convey the title to the buyer: Lutheran Church Canada (Re) , 2017 ABQB 307 at para 35 .

Under an agreement for sale, title to the land remains with the vendor: Francis C R Price & Marguerite J Trussler, Mortgage Actions in Alberta , (Calgary: The Carswell Company Ltd, 1985) at 417. However, upon entering into the agreement, and making the initial payments as required under the contract, the purchaser is granted an equitable interest in the land. Once all the conditions of the contract are met, the purchaser is entitled to have the title transferred to them from the vendor: Lutheran Church Canada (Re) at para 37 ; Price & Trussler at 434-435.

Agreements for sale are, in essence, a financing arrangement between the vendor and purchaser. There is, practically and procedurally, little difference between the sale of land under an agreement for sale and a mortgage back to the vendor: Price & Trussler at 433. The purchaser's right to enforce the agreement through specific performance is "akin to, and synonymous with" the right to redemption held by mortgagees: Lutheran Church Canada (Re) at para 46 , and the enforcement mechanisms under

Part 5 of the Law of Property Act refer both to mortgages and agreements for sale. [ 19 ] Was the agreement between the parties an agreement for sale or a rent to own agreement? Neither the Plaintiff nor the Defendant have put into evidence a fully executed agreement. [ 20 ] The Defendant argues that the parties entered a rent to own agreement with a term of March 31, 2012, to March 31, 2014. He had legal counsel draft the agreement as he had “just come through a foreclosure process, and just wanted everything tickety-boo”.

He testified that the Plaintiff signed the rent to own agreement when they met at a coffee shop in Edmonton. There was no other witness to the Plaintiff’s signature. The Defendant’s colleague Mr. Arth testified that he witnessed the Defendant’s signature on the rent to own agreement on March 31, 2012. The Plaintiff argues that because the Defendant purported to sign the agreement on a Saturday, a non- workday, I should not accept this evidence. I put little weight on the day the agreement was signed. I accept the evidence of Mr.

Arth that he often worked on Saturdays. [ 21 ] The Defendant testified the Plaintiff signed the rent to own agreement. The Plaintiff testified that he never signed any such agreement. As between these two witnesses, I accept the evidence of the Plaintiff. [ 22 ] I find it implausible that someone as sophisticated as the Defendant would have a law firm draft the rent to own agreement, have someone witness his signature on the agreement but not insist the Plaintiff do the same and then lose the fully signed agreement. [ 23 ] The Defendant’s evidence for why he lost the signed agreement is also problematic.

Although he testified that he moved

offices and he could not access his documents and he changed employers, this does not explain why the document was never recovered. The statement of claim was filed in 2017. Mr. Arth testified he and the Defendant did not move firms until February 2019.

Surely, by the time the Defendant received the Statement of Claim he would have known how important the rent to own agreement was to this dispute and the need to preserve it and produce it. [ 24 ] I also find that the conduct of the parties is inconsistent with the terms of the rent to own agreement thereby raising even more doubt about the existence of a rent to own agreement signed by both parties. The rent to own agreement contemplates a deposit of $48,000. Neither party asserts this amount was paid.

The evidence of the Defendant was that $35,000 was paid, however there was no evidence that the Defendant ever raised concerns about a $13,000 deficiency, until filing his Counterclaim. [ 25 ] The rent to own agreement contemplates monthly payments of $5,763.33 with $3,763.33 payable on the 1 st of the month. It then stipulates that the $48,000 which was paid by way of deposit was to be applied and credited against the rent at a rate of $2,000 a month. [ 26 ] The monthly payments that were made by the Plaintiff were $3,800; an amount very close the monthly mortgage payments on the Property.

Additionally, although the rent to own agreement contemplated post dated cheques, none were provided. The rent to own agreement also required a security deposit of $2,000 but the Defendant could not confirm any such deposit was made. [ 27 ] Further, the Defendant testified that there was to be a credit to the purchase price for the mortgage paydown but acknowledged he could not find this term in the rent to own agreement.

Indeed, the terms of the rent to own agreement provide for no such credit. [ 28 ] I note that in a couple of text messages the Defendant asks the Plaintiff if he has a signed copy of the agreement, and the Plaintiff answers he will have a look. The Defendant suggests that this is an acknowledgment that the Plaintiff did sign the rent to own agreement. I do not agree.

I accept that evidence of the Plaintiff that by this point he was saying and doing anything to get the Defendant to close the sale of the Property. [ 29 ] The Plaintiff continued to make the monthly payments well beyond the end of the purported term of the rent to own agreement. The Defendant testified he granted an extension of the two-year term. I do not accept this evidence. In cross-examination, the Defendant confirmed there was nothing in writing confirming any extension.

Further, he could not say what if any conversations took place regarding an extension. [ 30 ] For the reasons above, I find that there was never a signed rent to own agreement as claimed by the Defendant. [ 31 ] Even in the absence of a signed rent to own agreement, it is open to the Defendant to argue that the terms of the unsigned rent to own agreement were agreed to and represent the agreement that the parties reached as opposed to an agreement for sale.

Separate and apart from that argument, I have not lost sight of the fact that the Plaintiff bears the onus of proof in the case and must establish on the balance of probabilities that the parties entered into an agreement for sale. [ 32 ] Notwithstanding the absence of a signed agreement, there is more than ample evidence to find on the balance of probabilities that the parties did not enter into a rent to own agreement but did enter into an agreement for sale. [ 33 ] There is no dispute that the Plaintiff agreed to purchase the Property for $750,000. [ 34 ] On April 20, 2012, the Defendant sent an email to the Plaintiff attaching a copy of the mortgage disclosure statement and the renewal confirmation.

The statement showed a monthly payment of $3,679.87 with a principal balance of $669,277.31 as of March 1, 2012. [ 35 ] In the April 2012 email, the Defendant stated: This is a copy of the mortgage, as discussed, at the time you purchased the price was $750,000, any principal paydown from April 1, 2012, will be your credit. As at April 1, 2012 the mortgage is $670,000. Let me know if you have any questions. [Emphasis added]. [ 36 ] The Defendant’s own words suggest that the Plaintiff had “ purchased ” the Property.

If this were the rent to own agreement tendered by the Defendant, then there is no purchase until the point in time that the option is exercised. [ 37 ] Beginning on April 1, 2012, the Plaintiff paid the Defendant $3,800 a month. The Plaintiff did not miss a single payment. His last payment was June 2017. The Plaintiff also made extra payments including a payment of $8,800 on March 1, 2013, and $4,000 on May 25, 2013, and September 3, 2013, respectively. He often rounded up the property tax and HOA payments to build some credit.

If this were the rent to own agreement tendered by the Defendant, it would defy logic that the Plaintiff would make any extra payments of rent, whether by rounding up or by doubling up on the monthly rent or the HOA payments because the agreement by its terms does not credit the rent payments being made under

section 3.1(

i) of the agreement to the purchase price. The only credit to the purchase price is the rent payment under

section 3.1 (ii) of the agreement, being the $48,000 amount. [ 38 ] As stated above, the Defendant acknowledges that the Plaintiff was to get credit to the purchase price for the amounts by which the mortgage principal was paid down. Hence, every month that the Plaintiff made his monthly payment he was contributing to the purchase price of the Property. This would also explain why the Plaintiff had no issue with paying more than the mortgage payment and often making extra payments that are not found anywhere in the rent to own agreement.

Under an agreement for sale, the situation is as we see here, payments are being credited to the purchase of the property. [ 39 ] Although the parties dispute the amount of the deposit/down payment, they agree there was a large deposit/down payment. The Plaintiff claims he made a down payment of $70,000. The Defendant asserts the payment was $35,000 and suggests it was prepayment of rent as contemplated in the rent to own agreement. Regardless of whether the amount was $35,000 or $70,000, this is a significant amount of money to subject to forfeiture.

The larger the sum paid up front, the more likely it would be a down payment on an

agreement for sale (which would not be subject to forfeiture) than a deposit on a rent to own (that may be subject to forfeiture). [ 40 ] During the time the Plaintiff resided in the Property, the Plaintiff paid the HOA fees and the property taxes. He did renovations on the Property including painting, new countertops, a new window, and floors. The Plaintiff also asked the Defendant if he could do exposed aggregate concrete work outside and to rebuild the deck. The Defendant submitted the request to the Board of Directors for the HOA.

This work was approved by the Board on June 23, 2014. [ 41 ] The Defendant claims he was not aware the Plaintiff was doing renovations except for the concrete work. I find this highly improbable. First, there were at least two instances where the Plaintiff allowed the Defendant to stay in the Property. Following one such instance, on August 31, 2015, the Plaintiff texted the Defendant “you probably noticed we are going to do a bit of work to the back of the house yet... The guy is going to finish the siding in the back”.

The Defendant replied that “the house looked great...”. [ 42 ] It is unlikely that the Plaintiff would have undertaken significant renovations if this was not an agreement for sale. It is equally unlikely that the Defendant would have allowed the Plaintiff to undertake such significant renovations if it was merely a rent to own agreement. [ 43 ] I also note that before the relationship between the parties broke down, the correspondence between them supports there being an agreement for sale.

There were also multiple discussions between the parties regarding the transfer of title to the Plaintiff and the attempts made by the Plaintiff to obtain financing. Although I have not set out the entire history of correspondence between the parties, I have carefully considered it as part of this decision. [ 44 ] Finally, the Plaintiff testified that he was previously renting a unit in Marina Bay for $1,650 a month. Upon entering into the agreement with the Defendant, the Plaintiff started paying significantly more per month.

I find it unlikely the Plaintiff would agree to pay more than double the rent plus all expenses related to the Property unless those increased amounts were being credited towards his purchase of the Property. The Statute of Frauds [ 45 ] The Defendant argues there can be no agreement to purchase as there is no signed purchase agreement. The Statute of Frauds , 29 Car. c. 3 (1677),

section 4, ordinarily requires a signed and formalized agreement for the purchase and sale of land. [ 46 ] The Plaintiff argues that the doctrine of part performance is an exception to the Statute of Frauds and in this case, there was part performance of the agreement. I agree. [ 47 ] The requirements for “part performance” were outlined in Haan v Haan , 2015 ABCA 395 at para 15 : The discussion in particular cases is invariably influenced by the facts before the court.

In some cases the requirement of evidence about a contract is emphasized, and in other cases the requirement in the forefront is that the part performance be "unequivocally" related to the alleged agreement. Thus, the case law hints at a multi-part analysis: (

a) First, the claimant has to "prove the acts relied upon": McNeil at p. 611. The claimant must prove, on a balance of probabilities, what the parties said and did up to and after the time of the alleged agreement, as well as the acts said to constitute part performance. (

b) Secondly, the claimant must show that the acts proven are "referable in their own nature to some dealing with the land": McNeil at p. 611; Booth at para. 27. In other words, the acts must not be equally explainable as being merely a coincidence, the product of social interaction out of natural love and affection, or possibly an agreement of some kind that did not relate to the land itself. This must be done otherwise than by relying on the part performance. As noted, the claimant cannot argue backwards by saying that there was part performance, and therefore there must have been an antecedent agreement, as that would unacceptably undermine the operation of the Statute. (

c) Thirdly, at this point "evidence of the oral agreement becomes admissible for the purpose of explaining those acts": McNeil at p. 611; Booth at para. 27; Erie Sand & Gravel Ltd. v. Seres' Farms Ltd. , 2009 ONCA 709 (Ont. C.A.) at paras. 75 , 87, (2009), 312 D.L.R. (4th) 111 (Ont. C.A.). Once the essential background facts have been proven on a balance of probabilities, the parol evidence about the agreement becomes admissible to explain the nature of the agreement, and to show how the background facts and the part performance relate to it.

At the second and third level the test is strict: the claimant has to prove that the part performance was "unequivocally" related to the very type of contract alleged. Part performance that is "consistent with" several different types of contractual arrangement is insufficient: Booth at paras. 18-9. Thus, for example, the test is not met if the part performance is equally consistent with a transfer of ownership, a lease for a term of years, or a loan with the land given as security.

If the test is met, there is sufficient part performance to dispense with the need for a note or memorandum in writing. [ 48 ] The conduct of the Plaintiff was consistent with an agreement for sale and inconsistent with a rent to own agreement. There was a significant initial payment, ongoing monthly payments were made beyond what was required, property taxes and HOA fees were also overpaid by the Plaintiff, and the Plaintiff undertook renovations at his own expense. Therefore, I find such conduct by the parties in the performance of the contract objectively supports an agreement for sale.

Further, I am satisfied, the part performance was "unequivocally" related to the agreement for sale. I do not find such conduct to be equally consistent with a rent to own agreement. [ 49 ] I find there was partial performance and therefore the “part performance” exception to the Statute of Frauds applies. Breach of the Agreement

[50] The evidence establishes that once the Plaintiff had improved his credit rating, he attempted to obtain financing for thetransfer of the Property in the summer of 2016. Because the Plaintiff was unable to provide documentation supporting all the payments,including bank statements showing the $70,000 going into the sellers account, he was only approved for financing with B lenders at highrates with significant fees. Notwithstanding the Plaintiff’s efforts to obtain documents from the Defendant to support the payments, nonewere provided by the Defendant.

The Plaintiff also tried to follow up with the Defendant, starting as early as 2015 but the Defendantfailed to provide any assistance to the Plaintiff or to facilitate the transfer of the Property. [51] Finally, through the efforts of CIBC in confirming the payments that were made to the Defendant, the Plaintiff was able toqualify for a mortgage with CIBC. The Defendant asserts that the way the information was collected was inappropriate. This courtmakes no determination on that matter. Regardless, the Plaintiff finally received approval for financing from CIBC to complete thepurchase.

When the Plaintiff notified the Defendant on June 14, 2017, that he had a full approval for a mortgage from CIBC, thePlaintiff was issued a 14-day eviction notice shortly thereafter. [52] The Defendant additionally alleges the Plaintiff was engaging in fraud in 2016 when the mortgage broker suggested sincethere was no paper trail for the down payment, they transfer the house for a reduced purchase price. The Plaintiff’s explanation was thathe was following the advice of a mortgage broker. He was desperately trying to qualify for financing and was getting little to noassistance from the Defendant.

Although the approach was ill advised, I do not find the Plaintiff was engaging in fraud. I also note thatthe Defendant himself changed the deposit amount shown on the purchase agreement from $110,000 to $185,606, which amountsexpressly including a $70,000 initial down payment. The Defendant testified; this was to “help out” the Plaintiff.

He also testified heconfirmed to the mortgage broker that he was “just giving [her] some ammunition to get financing” but he did not receive $70,000 as adown payment. [53] The Court must therefore consider whether the failure of the Defendant to convey title after receiving notice that the Plaintiffhad mortgage approval from CIBC was a wrongful repudiation of the contract.

The Defendant argues that the Plaintiff lacked theobjective intention to close the transaction, arguing that he had placed a lien on the home and was attempting to close on anotherproperty at the time. [54] The Plaintiff argues that the Defendant had placed a second mortgage on the Property, in the amount of $275,000, defeatingthe implied condition that the Defendant convey clear title to the Property at the time of closing. The Defendant testified this blanketfinancing could be removed at anytime.

At the time of trial, the blanket financing was still on title to the Property, although theDefendant asserted this must be a mistake. [55] I find that based on an objective assessment, the Plaintiff was ready, willing, and able to perform the contract and tender thepurchase money at the date of closing (see, 364021 Alberta Inc. v. 361738 Alberta Ltd., 1994 ABCA 89). The Defendant’s failure andrefusal to accept the money and convey title, and placing an additional encumbrance against the Property, constitutes a failure to performthe contract according to its terms.

Therefore, the Plaintiff has established a breach of contract based on unlawful repudiation. Remedy [56] The Plaintiff seeks specific performance. The Defendant argues specific performance is not available as the Plaintiff has notestablished the uniqueness of the property which is a requirement that must be met for specific performance to be an appropriate remedy.I find specific performance is the appropriate remedy in this case. [57] This Court is not required to find a property to be unique to make an order for specific performance.

In Lutheran ChurchCanada (Re) 2017 ABQB 307 at para 46, Justice Romaine opined: A purchaser's equitable right to enforce the transfer of property by way of specific performance with respect to an agreement for sale isakin to, and synonymous with the equitable right of redemption that applies to mortgages, with the result that the equitable right ofredemption of title to property applies to both agreements for sale and mortgages.

Section 41 of the Law of Property Act applies thestatutory right to redeem title to agreements for sale as it does to mortgages: Law of Property Act, RSA 2000, c L-7,

Part 5 sections 37 to50.1; Triangle Lumber & Supply Co., Re, [1978] 3 A.C.W.S. 196 (Ont. H.C.) [1978 CarswellOnt 182 (Ont. H.C.)], at para 7; OscarFech Construction Ltd. v. 509211 Alberta Ltd., [1994] A.J. No. 764 (Alta. Q.B.) at paras 32 and 33; Morguard Mortgage InvestmentsLtd. v. Faro Development Corp., (AB CA), [1974] A.J. No. 286 (Alta. C.A.), at para 16. [58] Having found this to be an agreement for sale, the Plaintiff acquired and holds an equitable interest in the Property and enjoysthe right of redemption which is achieved through the court granting him specific performance of the agreement.

I find that I am notrequired to find that the Property is unique to grant specific performance in this case. However, if I am wrong on this point, I will alsoconsider the uniqueness argument. [59] The Defendant asserts that the uniqueness of the home must be argued at the time of the breach: 1534818 Alberta Ltd v TissotManagement Ltd., 2011 ABQB 75 at para 75. The Defendant argues that the Plaintiff indicated as early as 2016 that the Property wasinadequate for his purposes. In 2017, the Plaintiff purchased a much larger home.

In addition, the purpose of wanting the home changefrom a residence to a recreational property. [60] I disagree that the Plaintiff has not established the uniqueness of the Property. [61] To establish “uniqueness” in the context of a residential home, it is sufficient if the Plaintiff establishes that he attachedsignificant value to the Property. In Lees v.

Ahmadi I et al, 2022 ONSC 1114 at para 37, the court stated: . . . [U]niqueness is not used literally, but in the sense that there is no readily available substitute for the property in question . . .Uniqueness is more readily established where residential property is in issue given the highly subjective nature of the selection of one'shome and the financial significance of a such a purchase for most people . . .

[Citing, inter alia, Semelhago v. Paramadevan, (SCC), [1996] 2 S.C.R. 415 at para 22]. [62] In this case, the Property was on the beach in Sylvan Lake. There was a marina, tennis courts, boat storage, a club house, anda green space. The Property was in a higher end neighborhood that was like a gated community on the water. The Defendant describedthe Property like a cottage. Maintenance, upkeep, and planting were done by the HOA.

Although the Plaintiff testified that his familywas expanding and they needed more room, he confirmed he wanted to keep the Property as a cottage. [63] A vendor can challenge the presumption of uniqueness of real property by providing evidence that the property can bereplaced for the purchaser's purposes: Yan v. Nadarajah, 2015 ONSC 7614 at para 49. However, the Defendant did not providesufficient evidence that such a substitute was readily available.

There is no reason that because the Property was intended to be used as arecreational property at the time of the breach that the requirements for uniqueness cannot be met: Roy v. 1216393 Ontario Inc., 2016BCSC 1635. [64] I am satisfied that the requirement for uniqueness of this Property has been met. Amount of Down Payment [65] The parties dispute the amount of the down payment paid by the Plaintiff to the Defendant. [66] The Plaintiff asserts he made a down payment of $70,000. The Defendant claims it was only $35,000.

Both parties agree$25,000 was paid via cheque on April 1, 2012, and that the remaining amount was paid in cash. They disagree, however, on the amountof the cash that was paid. [67] The Plaintiff testified that he paid $25,000 in cash and $25,000 by cheque both during a meeting at a coffee shop inEdmonton. He then paid $10,000 in cash on the side of the road in Redwater, Alberta with the final $10,000 being paid to the Defendantat the Defendant’s duplex in Edmonton. [68] The Defendant acknowledged cash payments were made by the Plaintiff at the coffee shop and in Redwater.

However, hecould not recall the exact amount of the cash payment, other than it was close to $10,000. The Defendant denies the third meeting andthat any further case down payment was made. [69] I note that the documentary record is consistent with a $70,000 down payment. Of note, the two residential purchase contractsprepared by the Defendant dated July 26, 2016, and August 4, 2016, list the initial deposit as $70,000. Additionally, in an e-mail fromthe Defendant to Ms.

Lori Donovan on August 4, 2016, the Defendant confirmed that the Plaintiff “gave $70,000 and is getting credit formortgage pay down.” [70] I accept the evidence of the Plaintiff that a down payment of $70,000 was provided to the Defendant. Conclusion [71] Judgment is granted in favour of the Plaintiff. [72] The Plaintiff is entitled to specific performance at the purchase price of $750,000.

The Plaintiff shall be entitled to a credit onthe purchase price of the deposit of $70,000 and the sums by which each monthly payment appearing in paragraph 7 of the AgreedStatement of Facts (other than the April 1, 2012, deposit payment of $25,000) exceeds the monthly interest having accrued on theDefendant’s mortgage against the Property.

Put another way, the Plaintiff shall be entitled to a credit of all amounts by which hispayments would have paid down the principal of the Defendant’s mortgage. [73] If the parties are unable to agree on the mechanics of how the remedy of specific performance will be implemented, they maybring the matter back before me and I will address a formal vesting process. [74] The Defendant’s counterclaim is dismissed. [75] The parties may speak to costs within 30 days.

Heard on the 14, 15& 16 th day of November 2022 and by written submissions dated the 12th of December 2022, the 22nd of December2022, and the 15th day of January 2023. Dated at the City of Red Deer, Alberta this 13th day of February 2023. B.B. Johnston J.C.K.B.A.

Appearances: Imran A. Bhutta for the Plaintiff Heidi N. Besuijen for the Defendant _______________________________________________________ Corrigendum of the Reasons for Decision of Honourable Justice B.B. Johnston _______________________________________________________ Corrected paragraph 37: [37] His last payment was June 1, 2016 2017 .