Wuckert v Maxson, 2018 MBCA 26

Citation: Wuckert v Maxson, 2018 MBCA 26 Date: 20180309 Docket: AI17-30-08849 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Mr. Justice William J. Burnett Madam Justice Janice L. leMaistre BETWEEN : JAMES TIMOTHY WUCKERT ) F. J. T rippier and ) A. K. Anjoubault (P laintiff) Appellant ) for the Appellant ) - and - ) K. M. B ashutski ) for the Respondent JANICE RAE MAXSON ) ) Appeal heard and (Defendant) Respondent ) Decision pronounced: ) March 9, 2018 HAMILTON JA (for the Court): 1. The plaintiff appealed the

summary judgment dismissing his claim for rectification of a contract to purchase a house and specific performance of the rectified contract. At the end of the appeal hearing, we dismissed his appeal, with brief reasons to follow. These are our reasons. 2. The plaintiff and defendant were neighbours. During a conversation, the defendant said she would sell her house to the plaintiff for $130,000, payable by a $2,000 deposit with the balance on closing. Soon after that conversation, the lawyer for the plaintiff, Larry Crane (Mr.

Crane), tendered the $2,000 deposit with a covering letter to the defendant that stated that the return of a copy of the letter signed by her would bind her to an agreement to sell the house. The defendant signed and returned the letter. 3. Mr. Crane then sent a completed realtors’ standard form of an offer to purchase to the defendant. The name of the purchaser was “Larry R. Crane and/or nominee”. The evidence was that the plaintiff could not arrange financing and Mr. Crane inserted his name as a purchaser to satisfy financing requirements of the bank. The plaintiff signed as witness to Mr. Crane’s signature. 4.

The defendant accepted the offer to purchase. No subsequent notice was provided by Mr. Crane to advise that a nominee would be taking title to the property. Difficulties arose and the defendant returned the $2,000 deposit, which was cashed by the plaintiff. 5. These events occurred in 2005, the same year in which the plaintiff filed a statement of claim seeking rectification of the accepted offer to purchase to show his name as the purchaser, not “Larry R. Crane and/or nominee” and specific performance of that rectified agreement. The plaintiff took no steps to prosecute his claim.

The issues in this appeal arise in the context of the defendant’s motion for

summary judgment to dismiss the plaintiff’s claim. Notwithstanding the extraordinary passage of time, the defendant did not raise the issue of delay before the motion judge. 6. The motion judge found that the parties entered into a binding agreement when the defendant returned the signed letter to Mr. Crane. He noted the parties’ opposing positions as to whether the accepted offer to purchase was binding and concluded that he did not have to decide that issue given his finding that rectification was not available to the plaintiff. He held that specific performance was not available because Mr.

Crane was not before the Court as a party. Finally, he found that, in any event, he would not have exercised his discretion to grant specific performance given the plaintiff has taken no steps to prosecute his claim. 7. The plaintiff takes issue with numerous aspects of the motion judge’s reasoning. Because this appeal can be resolved on the narrow issue of rectification, our reasons are limited to that issue. Our conclusion that the motion judge did not err in granting the defendant’s motion for

summary judgment is not to be viewed as an endorsement of his reasons in their entirety.

8. The plaintiff asserted that the motion judge erred by determining that the plaintiff’s claim for specific performance must fail because the offer to purchase could not be rectified. He argued that the motion judge made palpable and overriding errors in applying the appropriate legal tests to the facts in this case. 9. Rectification is available in narrow circumstances and is “designed to correct errors in the recording of terms in written legal instruments” ( Canada (Attorney General) v Fairmont Hotels Inc , 2016 SCC 56 at para 38 ). Also see Elias et al v Western Financial Group Inc , 2017 MBCA 110 .

The motion judge found that the recording of “Larry [R.] Crane and/or nominee” as the purchaser in the offer to purchase to be “a deliberate act” and not an error. The record supports this finding of fact and it is entitled to deference. Given this finding, the motion judge made no palpable and overriding error when he concluded that the plaintiff was not entitled to rectification of the accepted offer to purchase. Without rectification, the plaintiff’s claim for specific performance failed. 1 0. The plaintiff argued that the motion judge erred when he dismissed his claim in its entirety. We see no such error.

The essence of his claim was for rectification of a contract, and if successful in that regard, specific performance of the rectified contract. His claim for rectification was not successful. The motion judge did not err when he dismissed the claim in its entirety. 11. For these reasons, the appeal was dismissed. The defendant shall have her costs on the appeal. JA JA JA