2014 MBCA 21, 2014 MBCA 21

Citation: Kirchner et al. v. Dielmann Holdings Ltd., Date: 20140204 2014 MBCA 21 Docket: AI 13-30-08041 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Madam Justice Diana M. Cameron Mr. Justice William J. Burnett BETWEEN: ) KARL HEINZ KIRCHNER and ) C. C. SantosOLD OAK FARMS LTD. ) for the Appellant ) (Plaintiffs) Respondents ) T. A.

McMahon ) for the Respondents- and - ) ) DIELMANN HOLDINGS LTD. ) Appeal heard and ) Decision pronounced: (Defendant) Appellant ) February 4, 2014 ) BURNETT J.A. (for the Court): [1] The defendant (Dielmann Holdings Ltd.) appeals the decision of the learned motion judge dismissing its motion for anorder declaring a land purchase agreement null and void and for an order discharging a pending litigation order. [2] The motion judge’s decision was a discretionary decision, and this court can only interfere if the motion judgemisdirected himself as to the applicable law or the facts, or if his decision is so clearly wrong as to amount to an injustice (Arero Corp. v.Erb (G &

D) Holdings Ltd. et al., 2008 MBCA 88 at para. 8, 228 Man.R. (2d) 286). [3] In his decision, the motion judge referred to this court’s decision in Arero for the test on an application to discharge apending litigation order. In the Arero decision, Hamilton J.A. said (at para. 6): The judge correctly explained the test on an application to discharge a pending litigation order (at paras. 17-18): The test for discharging a pending litigation order pursuant to this Rule is analogous to the test under Rule 20 on a

summary judgmentapplication, namely whether there is a triable issue that the plaintiff has ‘a reasonably [sic] claim to the interest in land claimed’ (MellcoDevelopments Ltd. et al. v. Portage la Prairie (City) et al. (2002), 2002 MBCA 125 , 166 Man.R. (2d) 285; 278 W.A.C. 285;2002 MBCA 125, @ para. 93). ... [I]t is not for the court at this stage to find whether or not the plaintiff has or does not have that reasonable claim, but rather only todetermine whether there exists a triable issue in that regard.

[ 4 ] The motion judge specifically identified the following triable issues:

a) whether the purchase agreement is sufficiently uncertain because there is no date by which the subdivision must be complete;

b) why the subdivision was stalled; and

c) whether the appellant is now refusing to complete the subdivision despite the ability to obtain approval of it. [ 5 ] The motion judge concluded that it had been demonstrated that there are triable issues as to whether the plaintiffs have a reasonable claim to the interest in the land claimed.

He also observed that determinations will be required relating to credibility, inferences and weight. [ 6 ] The defendant raises four grounds of appeal in its factum; namely: 1. the motion judge erred in concluding that an email from the defendant’s solicitor dated October 19, 2012, stated that the subdivision of the property was completed; 2. the motion judge erred in failing to conclude that the agreement for the purchase of the property was null and void due to uncertainty; 3. the motion judge erred in not finding the agreement null and void for uncertainty and in finding that there was an implied term that the closing date for the agreement would occur once subdivision approval was obtained from the rural municipality; and 4. the motion judge erred in finding that there was a triable issue that would support an issuance of a pending litigation order. [ 7 ] In our view, there is no merit to the first ground of appeal.

The motion judge did not conclude that the subdivision of the property was completed. He simply paraphrased an email dated October 19, 2012, from the defendant’s solicitor to the plaintiffs’ solicitor which reads as follows: I spoke with Ray Miller at the RM of Headingley and he advised me that the subdivision has been approved, a Development Agreement is being prepared and should be completed by the middle of November and that once the Mylars are prepared and the Security deposit is paid the subdivision will go through.

Subject to the forgoing, he believes that the subdivision could be completed before the new year. [ 8 ] The defendant’s arguments with respect to the second and third grounds are essentially the same. The defendant argues that because no dates were specified for obtaining approval of the subdivision and closing, the agreement is null and void due to uncertainty. The plaintiffs acknowledge that such dates were never agreed upon. In his affidavit affirmed on May 13, 2013, the plaintiff, Karl Heinz Kirchner, deposes: ....

There was never any agreed upon date for closing the sale, rather it was agreed that closing would occur after approval of the subdivision was obtained. [ 9 ] In its factum, the defendant points to authority for the proposition that “courts are reluctant to find contracts void for uncertainty” ( Johnson v. BFI Canada Inc. et al. , 2010 MBCA 101 at para. 74 , 258 Man.R. (2d) 268 ).

As well, the defendant concedes that a court can imply a term that a subdivision was required, and that both parties must act in good faith and take all reasonable steps to complete the subdivision and the sale in order to give the purchase agreement business efficacy.

If that is so, surely there are triable issues here as to whether the agreement is null and void due to uncertainty, whether a term or terms should be implied, what those terms are, whether such terms have been breached and whether the plaintiffs have reasonable claims to the interest in land in question. [ 10 ] Finally, the defendant argues that there is no triable issue that would support the issuance of a pending litigation order because there is no issue relating to an interest in land.

The individual plaintiff claims an interest based on the agreement, and the corporate plaintiff claims an interest based on improvements made to the land that it has rented and farmed since 2005.

In our view, such claims constitute triable issues as to whether the plaintiffs have reasonable claims to the interest in land claimed. [ 11 ] We are not persuaded that the motion judge misdirected himself as to the applicable law or the facts, or that his decision is so clearly wrong so as to amount to an injustice. [ 12 ] We would, therefore, dismiss the appeal with costs to the plaintiffs in this court and in the Court of Queen’s Bench. J.A. J.A.

J.A.