Ziola v Petrie, 2021 SKCA 97

Court of Appeal for Saskatchewan Docket: CACV3295 Citation: Ziola v Petrie , 2021 SKCA 97 Date: 2021-07-08 Between: Dan Ziola Appellant (Applicant) And Garry Petrie Respondent (Respondent) Before: Ottenbreit, Caldwell and Leurer JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Ottenbreit In concurrence: The Honourable Mr. Justice Caldwell The Honourable Mr. Justice Leurer On appeal from: 2018 SKQB 209 , Yorkton Appeal heard: May 17, 2021 Counsel: David K. Rusnak, Q.C. for the Appellant Jay D. Watson for the Respondent Ottenbreit J.A. I.

INTRODUCTION [ 1 ] Dan Ziola appeals the decision of a Court of Queen’s Bench judge after trial dated July 24, 2018, dismissing his claim against Garry Petrie concerning certain farmland offered for sale by Mr. Petrie: Ziola v Petrie , 2018 SKQB 209 [ Trial Decision ] . [ 2 ] For the reasons hereinafter set forth, I would dismiss the appeal. II. BACKGROUND [ 3 ] In November 2014, Mr. Petrie listed 17 quarter sections of land that he owned for sale to the public on Farmers Post, a farm auction website [website] that had been created by his daughter and her husband.

The website was intended to create an open bidding system to allow farmers to explore the market but not necessarily conclude with a sale of land. The website explicitly provided the following terms and conditions of the bidding process: Sellers: You must have full intention of selling your property if a reasonable offer is received with terms that can be agreed upon, but you are not obligated to sell to the highest bidder, or any bidder, if acceptable deal terms cannot be negotiated.

While Farmers Post introduces you to potential buyers, we accept no responsibility for verifying the bid or for ensuring the deal closes -- it is up to the buyer & seller to negotiate all terms and close the deal with proper legal counsel. Note: you are free to advertise your items with any other service or agent, but you must notify this third party of your cross-listing on Farmers Post. Buyers: You must have full intention of buying the item at the price you bid, and have sufficient funds to make a reasonable deposit (amount & timing to be agreed upon with the seller).

By making a bid, you agree to let Farmers Post share your contact information directly with the seller and the seller is free to contact you about your offer. … [ 4 ] Mr. Petrie listed his land on the website and described it by legal description, minimum price, deposit required and possession date. Among the land posted by Mr. Petrie on the website, the following six parcels are of particular relevance to the present action:

a) SE 30-36-9-W2, SW 30-36-9-W2 and NE 30-36-9-W2 [collectively subject quarters];

b) NW 30-36-9-W2 and SW 31-36-9-W2 [collectively adjacent quarters]; and

c) SW 19-36-9-W2 [unsold quarter]. [ 5 ] Mr. Ziola was a neighbour of Mr. Petrie. He also farmed and wanted to acquire farmland for himself and his son, who was interested in taking over his father’s farm and in expanding the operation. Mr. Ziola registered for an account on the website and made bids on the subject quarters, the adjacent quarters and the unsold quarter. On December 11, 2014, bidding on the parcels closed. An automated email message was sent out to Mr. Ziola indicating that the bidding had ended and that “[t]he seller will contact you within 48 hours if the seller wishes to accept your bid(s)”.

At the close of bidding, Mr. Ziola was the high bidder on the subject quarters (having bid $625,000) and the highest bidder on the unsold quarter (having bid $180,000). He was, however, not the highest bidder on the adjacent quarters (having bid $375,000). [ 6 ] After bidding had closed, Mr. Petrie consulted with his two daughters, although principally with the one who had developed the website, to determine with whom, among the various bidders, sale negotiations might proceed. They discussed certain issues of

concern, including the unsold quarter, which, if sold, would sever it from the home quarter on which they had received no bids. They were also concerned about separating the adjacent quarters from the subject quarters because of accessibility issues if the two blocks were owned by different individuals. Given their concerns, and knowing that Mr. Ziola had stated an interest in the subject quarters and the adjacent quarters, it was decided that Mr. Petrie would call Mr. Ziola and give him two package options [package options] with respect to those quarters. These options were:

a) Mr. Petrie would sell the subject quarters and the adjacent quarters to Mr. Ziola for $1,050,000, a price higher than Mr. Ziola’s last aggregate bid on those quarters; and

b) Mr. Petrie would sell the subject quarters plus one quarter of the adjacent quarters (NW 30-36-9 W2) to Mr. Ziola for $840,000, which was higher than his aggregate bid on these quarters. [ 7 ] On the morning of December 12, 2014, in accordance with the plan discussed with his daughter, Mr. Petrie called Mr. Ziola and the two had a five-minute conversation with respect to the sale of the land [first conversation]. Mr. Ziola’s wife heard this conversation because the phone was on speakerphone mode. [ 8 ] When giving testimony, Mr. Ziola, Ms. Ziola and Mr.

Petrie all generally agreed with the contents of the conversation but differed with respect to one element. All agreed that Mr. Petrie began the conversation by indicating that he would not be accepting Mr. Ziola’s bid on the unsold quarter and that he then proposed and explained the details of the package options to Mr. Ziola. This explanation took up most of the first conversation. Mr.

Ziola indicated that he was not interested in the option that included four quarter sections but that he would speak with his son with regards to the package that included the five quarter sections. [ 9 ] At the close of the first conversation, Mr. Ziola asked Mr. Petrie, in respect of his bid on the subject quarters and the package options, “do I have the three if I don’t take the five” [critical question]. All parties to the first conversation agree that was the phrase used by Mr. Ziola. [ 10 ] Both Mr. Ziola and Ms. Ziola testified they were sure that Mr. Petrie’s response to the critical question was “yes”.

Mr. Ziola interpreted Mr. Petrie’s response as a willingness to accept his bid of $625,000.00 on the subject quarters. [ 11 ] Mr. Petrie understood the first conversation as declining to accept Mr. Ziola’s offer on the subject quarters as a separate sale until he heard back from him on the package options. Mr. Petrie agreed that Mr. Ziola asked if they had a deal for the subject quarters but asserted that his response was “ not at this time” or “not yet”, and that he said something to the effect of “just look at the two options on the table at this time”. [ 12 ] Mr.

Petrie stated he either misunderstood or misheard the critical question or Mr. Ziola misunderstood or misheard his answer. He denied giving any assurance to Mr. Ziola that he would sell the subject quarters to him regardless of his response to the package options. [ 13 ] Following this first phone call between the parties, Mr. Ziola contacted his son to discuss whether they should accept either package option offered by Mr. Petrie. Mr. Ziola told his son that Mr. Petrie had assured him the subject quarters were theirs regardless of whether they accepted the options.

They decided that the adjacent quarters offered in the first package option were too highly priced and that they would buy only the subject quarters. [ 14 ] Later that same day, Mr. Ziola contacted Mr. Petrie and informed him that he was not interested in purchasing the two adjacent quarters. Mr. Ziola testified that during this second telephone conversation with Mr. Petrie, he offered to immediately bring him the deposit for the subject quarters. In response, Mr. Petrie told Mr. Ziola to “hold off” on bringing down the deposit. Mr. Ziola did not take Mr.

Petrie’s comment to “hold off” as indicative that there existed no agreement respecting the subject quarters, but merely that there was no urgency in receiving the deposit. [ 15 ] On December 15, 2014, Mr. Petrie sent an email to Mr. Ziola that read: Hi Danny I won’t be accepting you [ sic ] bid in the land on

section 30. Thank you for participating in the sale. Garry III. DECISION OF THE TRIAL JUDGE [ 16 ] The trial judge turned first to the question of whether there was an agreement respecting the sale and purchase of land. He noted that Mr. Ziola had the burden of proof that a contract existed between him and Mr. Petrie and that the formalities of The Statute of Frauds, 1677 , 29 Cha II, c 3, had been satisfied. [ 17 ] He reviewed the evidence of the bidding activity of Mr. Ziola on the website as well as the evidence of the conversations between Mr. Ziola and Mr. Petrie.

Additionally, he reviewed the conversations between Mr. Petrie and his daughters and between Mr. Ziola and his son. [ 18 ] He then addressed the question of whether a contract was created between Mr. Petrie and Mr. Ziola respecting the subject quarters. He noted that the content of the telephone conversations was a question of fact and the legal characterization of those conversations was a question of law. [ 19 ] He reviewed the germane law. He noted, citing Tether v Tether , 2008 SKCA 126 at para 55 , 314 Sask R 121 , that the test of

whether there is an intention to create a contract and the terms thereof is an objective one. He included, at paragraph 40, this quote from Gerald H.L.

Fridman, The Law of Contract in Canada , 4th ed (Scarborough: Carswell, 1999) at 16–17: It is not what an individual party believed or understood was the meaning of what the other party said or did that is the criterion of agreement; it is whether a reasonable man in the situation of that party would have believed and understood that the other party was consenting to the identical terms. … (Footnotes omitted) [ 20 ] He determined that, if the parties’ words were objectively clear, it may be unnecessary to go beyond the meaning of these words.

However, if the words are unclear or uncertain, then, just as in contractual

interpretation, the court can and should look to the context in which the parties’ words were used. [ 21 ] The trial judge focused on the two telephone conversations between Mr. Petrie and Mr. Ziola on December 12, 2014. He found both agreed that, in the first telephone conversation, Mr. Petrie had said that Mr. Ziola’s offer respecting the unsold quarter would not be accepted and that he thereafter explained the components of the package options. [ 22 ] The trial judge then made the following finding: [43] The court finds as a fact that Mr. Ziola did ask Mr.

Petrie using words to the effect that, notwithstanding the Package Options, he “had the three.” However, neither these words, nor Mr. Petrie’s response, nor the surrounding circumstances prior to and after the telephone conversation lead the court to conclude that a contract was formed. Several explanations might account for how things went wrong in the understanding between Mr. Petrie and Mr. Ziola, other than the inaccurate and dishonest testimony of any of the parties. Above all, the court accepts that Mr. Petrie, Mr. Ziola and Mrs. Ziola were truthful and credible witnesses.

In this specific instance, the court is unwilling to ascribe to dishonesty, embellishment or frailty of memory, that which is explained by miscommunication or misunderstanding. Looking to the words exchanged and the context of the bidding process following Mr. Petrie’s conversation with Jennifer Petrie, the court finds that a misunderstanding could readily and objectively characterize the nature of the telephone conversations so that no consensus ad idem was ever reached between Mr. Petrie and Mr. Ziola. [44] Even if Mr. Petrie and Mr.

Ziola each testified identically to the words that each used, each could easily have taken a starkly different meaning from those words. In [ Cheshire, Fifoot and Furmston’s Law of Contract , 14th ed (New York: Oxford University Press, 2017)], Professor Furstrom wrote at page 135; Of course, there may be no effective dispute as to what was said but still a fundamental disagreement as to what it meant. [ 23 ] The trial judge gave a number of reasons why he concluded that the parties did not reach consensus ad idem respecting the sale of the subject quarters. These were as follows:

a) Mr. Ziola’s question as to whether he “had the three” was vague. The objective observer could reasonably understand that Mr. Ziola was asking if he “had” purchased the subject quarters but, on the other hand, could just as reasonably understand that Mr. Petrie, in responding to Mr. Ziola, was confirming that Mr. Ziola “had” an effective but unaccepted high bid on the subject quarters. The two parties were simply not on the same page and were talking at cross-purposes, each purpose readily understandable, logical and without malice or deceit.

b) Seen objectively and in the context of the entire telephone first telephone conversation, there was nothing prior to the critical question to suggest that Mr. Ziola had an agreement for sale respecting any land. At law, what he “had” at the outset of the conversation was the highest bid on the subject quarters. Nothing said during the first or second conversation altered that position. Therefore, his concluding question as to whether he still “had the three” could not objectively be seen as confirming an agreement of sale.

c) Looked at objectively, Mr. Petrie could not have been prepared to accept the bid on the subject quarters if he had, only minutes earlier, provided to Mr. Ziola the two package options, offering the same land but at a different and higher price. Objectively speaking, Mr. Petrie did not accept Mr. Ziola’s bid on the subject quarters, but was rather presenting two counteroffers. Mr. Petrie would have been acting contrary to his own intentions to bind himself to the sale of the subject quarters while waiting for Mr. Ziola’s decision respecting the package options.

d) Mr. Petrie’s primary objective in using the online auction approach to sell his land was to secure the highest possible price. This approach had been strategized by Mr. Petrie with his daughter. In the phone conversation with Mr. Ziola, he offered the land in the package options for an effectively higher price than Mr. Ziola had bid. To accept that there was an agreement to sell the subject quarters would require the court to conclude that Mr. Petrie had abandoned this strategy and accepted an effectively lower price (Mr. Ziola’s bid) while simultaneously offering, by way of the package options, to sell the same land for an effectively higher price.

e) Mr. Petrie had a reasonable expectation – taking into consideration Mr. Ziola’s bids, the knowledge that he wished to purchase all five quarters and the pricing of the land in the package options – that Mr. Ziola would likely accept one of the package options. This expectation was consistent with there being no agreement with respect to the subject quarters.

f) Prior to talking with Mr. Ziola, Mr. Petrie spoke with his daughter to strategize how to deal with matters of accessibility to the northwest quarter of

section 30 and how to maximize the price beyond what had been offered by either Mr. Ziola or the competing bidders on the two adjacent quarters. The package options were consistent with that strategy because they would alleviate the access problems and also maximize the price while, at the same time, accommodate Mr. Ziola’s desire to purchase all five quarters. [ 24 ] The trial judge then concluded: [54] Having found no consensus ad idem was reached between Mr. Petrie and Mr. Ziola during the first telephone conversation, the court finds that the second telephone conversation did nothing to alter this finding.

During that conversation, Mr. Ziola first told Mr. Petrie that he was unprepared to accept either of the offers within the Package Options. He then offered to bring the deposit for the Subject

Quarters to Mr. Petrie who told him to hold off. An objective view of this exchange shows that the misunderstanding of the earlier telephone conversation tainted the perceptions of both Mr. Petrie and Mr. Ziola as to the meaning of what was being said and heard during the second telephone conversation. Such is [the] nature of many misunderstandings. A frame of reference, once established, is not easily altered. The court finds that Mr. Ziola reasonably believed that by stating his willingness to bring the deposit he was performing the contract of sale respecting the Subject Quarters. The court also finds that Mr.

Petrie reasonably believed that he was telling Mr. Ziola that he was not prepared to accept his bid on the Subject Quarters and to hold off until he further considered his options. Again, in colloquial language, the two men were simply not on the same page; in legal language there was no consensus ad idem and, therefore, no contract. [55] Finally, as further support for the finding that the parties had reached no agreement at the conclusion of the two telephone conversations on December 12 is Mr. Petrie’s email of December 14. He stated he was not accepting Mr.

Ziola’s bid and thanked him for participating in the sale. To accept Mr. Ziola’s characterization of this email as Mr. Petrie reneging on a completed contract of sale would require the court to ascribe deceitfulness to Mr. Petrie. The court finds no evidence and is unprepared to cast this aspersion upon Mr. Petrie when a benign and reasonable explanation is far more likely. [ 25 ] Having come to the conclusion he did, the trial judge did not find it necessary to address The Statute of Frauds argument of Mr. Ziola. Accordingly, he dismissed the claim of Mr. Ziola. IV.

ISSUES [ 26 ] The issues to be determined in this appeal can be summarized as follows:

a) Did the trial judge err by determining whether there was consensus ad idem without making a finding of fact necessary for the proper application of the law with respect thereto?

b) Did the trial judge make a palpable and overriding error in finding that the evidence relating to Mr. Ziola’s critical question and Mr. Petrie’s response thereto could indicate that a misunderstanding occurred? [ 27 ] Although Mr. Ziola raises the issue of whether the contract formed between him and Mr. Petrie complied with The Statute of Frauds , given the reasons that follow, it is not necessary to deal with that issue. V. ANALYSIS A.

Did the trial judge err by determining whether there was consensus ad idem without making a finding of fact necessary for the proper application of the law with respect thereto? [ 28 ] Mr. Ziola acknowledges the trial judge correctly identified that the test for consensus ad idem is an objective test and that the words spoken ought to be considered in the context in which they were used.

He submits the application of this test requires both the context and the actual words used to be considered. [ 29 ] He says that, after acknowledging that making a factual finding of the words exchanged between the parties was critical to a determination of consensus ad idem , the trial judge failed to do so. He argues the trial judge avoided determining what was actually said by Mr. Petrie in response to his critical question and, lacking this finding of fact, he failed to properly analyze the matter. [ 30 ] With respect to this issue, Mr.

Ziola does not challenge the trial judge’s finding that both parties and Ms. Ziola were credible when testifying about the first telephone conversation but submits that, given the incompatibility of the accounts of what was said, not all were reliable witnesses. He submits that the trial judge was obligated to prefer the account of either Mr. Petrie or Mr. Ziola as part of his analysis. [ 31 ] Mr. Petrie submits that it was not necessary for the trial judge to determine the precise words used by Mr.

Ziola or by him because the trial judge concluded that, regardless of the precise words used, there was no consensus ad idem . He submits that even if he had replied exactly as Mr. Ziola said he did, his response is more plausibly construed as evidence of a misunderstanding than as evidence of consensus ad idem ; the immateriality of the exact words used by him are the exact point of the trial judge’s analysis. [ 32 ] Mr. Petrie submits that even if the trial judge was under an obligation to make a factual finding about his exact response, he did so implicitly.

He submits that the lengthy analysis of the trial judge is premised on the presumption that Mr. Petrie effectively answered “yes”, as Mr. Ziola said he did. He argues that this lengthy analysis would hardly have been necessary otherwise. [ 33 ] I begin by noting that I will deal with the reliability argument in my analysis of the next issue. Having considered the arguments of Mr. Ziola, I find they cannot succeed. I will explain. [ 34 ] The trial judge’s analysis proceeded implicitly on the basis that Mr. Petrie had said something to the effect of “yes” in answer to the critical question.

The trial judge determined, based on the evidence as a whole, that such response could not reasonably have been interpreted as an acceptance of Mr. Ziola’s bid of $625,000 on the subject quarters. In substance, the trial judge’s conclusion was that even accepting this version of the conversation, Mr. Ziola did not discharge his burden of proof that a contract existed between him and Mr. Petrie. [ 35 ] The trial judge observed that, at the beginning of the first conversation, Mr. Ziola had, at most, an unaccepted bid on the subject quarters.

The website had made it clear that being the high bidder at the close of bidding did not mean that the bid would be accepted. Added to this was the interjection by Mr. Petrie of the package options into the first conversation. The trial judge found that the

package options were counteroffers by Mr. Petrie to Mr. Ziola’s bid on the subject quarters. [36] The putative “yes” was seen by the trial judge in the context of Mr. Petrie having, minutes before the critical question, laid outto Mr. Ziola the package options that were clearly a more expensive counteroffer to his highest bid for the same land. The fact that Mr.Ziola, after the conversation, was going to consider the package options and speak to his son about them in itself showed the parties werestill negotiating. [37] I cannot fault the trial judge for reaching these conclusions.

There is no other reasonable explanation of what happened. Thereis also no error of law embedded in the trial judge’s analysis. [38] The task of the court is somewhat different when determining whether there is consensus ad idem on the formation of acontract rather than what the terms of the contract are. Admittedly, where there is no dispute about the fact of contracting and it becomesnecessary to interpret the terms or the extent of the terms of an oral contract, it is important to determine exactly what it was that theparties said: see, M.P.

Furmston, Cheshire, Fifoot and Furmston’s Law of Contract, 15th ed (Oxford: Oxford University Press, 2007) at158 [Cheshire]. [39] Mr. Ziola bases his argument that the trial judge erred by failing to make a crucial finding of fact as to what exactly was said onhis inclusion of the Cheshire quote at paragraph 35 of the Trial Decision, to the effect that the court must first decide what statementswere made. However, that quote was merely a starting point for the trial judge and, in any event, is not precisely on point.

It refers to asituation where the parties differ as to the terms or extent of the terms of an oral contract but not necessarily to the issue of whether thereis a contract at all. [40] In this case, the terms of Mr. Ziola’s bid were not in dispute. The issue was very basic: was there an acceptance of Mr. Ziola’soffer by Mr. Petrie? In such a case, the issue of the exact words used in respect of the acceptance becomes only one factor to beconsidered.

The evidence as a whole must be looked at to determine if the offer has been accepted. [41] In determining whether the parties have reached an agreement for legal purposes, the starting point must be the alleged contractitself: Ron Ghitter Property Consultants Ltd. v Beaver Lumber Company Limited, 2003 ABCA 221 at para 8, [2004] 1 WWR 628 [RonGhitter].

If there is a written contract worded so as to reveal a plain and unambiguous intention, that will ordinarily be the end of thematter: Central Service Station Ltd. v Newfoundland Light & Power Co. (1991), (NL SC), 90 Nfld & PEIR 118 (NLSC)at para 16. [42] Where it is unclear whether or not the parties have in fact agreed, the court may resort to evidence beyond the contractuallanguage (Ron Ghitter at para 15).

This includes the factual matrix in existence at the relevant time and the genesis and aim of thetransaction: Guelph Storm Ltd. v Guelph Centre Partners Inc., (ONCA) at para 2. [43] While it is desirable to determine the exact words spoken, it is not necessary in all cases. This is particularly so when it isimmaterial which version of the conversation took place. In the case of determining whether a contract was entered into, the judge’sfact-finding role is expanded beyond the mere words and the court’s obligation to determine the exact wording of the contract is lessonerous.

Context plays a greater role. [44] In Gendis Inc. v Richardson Oil & Gas Ltd., 2000 MBCA 33, [2000] 9 WWR 1 [Gendis], the court noted two situations whereit may be found there is no contract: [22] In G. Scammell & Nephew Ltd. v. Ouston (1940), [1941] A.C. 251 (U.K. H.L.) at 268-69, Lord Wright puts into succinct languagethe circumstances in which a court should interfere and find that a contract between two parties did not exist: There are in my opinion two grounds on which the court ought to hold that there was never a contract.

The first is that the language usedwas so obscure and so incapable of any definite or precise meaning that the court is unable to attribute to the parties any particularcontractual intention. The object of the court is to do justice between the parties, and the court will do its best, if satisfied that there was anascertainable and determinate intention to contract, to give effect to that intention, looking at substance and not mere form. It will not bedeterred by mere difficulties of

interpretation. Difficulty is not synonymous with ambiguity so long as any definite meaning can beextracted. But the test of intention is to be found in the words used. If these words, considered however broadly and untechnically and withdue regard to all the just implications, fail to evince any definite meaning on which the court can safely act, the court has no choice but tosay that there is no contract. Such a position is not often found. ....

But I think the other reason, which is that the parties never in intention nor even in appearance reached an agreement, is a still sounderreason against enforcing the claim. In truth, in my opinion, their agreement was inchoate and never got beyond negotiations. (Emphasis added) [45] The law is clear that an acceptance of an offer must be clear, unambiguous and absolute: Harvey v Perry, (SCC), [1953] 1 SCR 233 at 237 [Harvey].

In Harvey, the Supreme Court of Canada held that even though a contract could have beenfound had the negotiations stopped at an earlier stage, the actions of the parties in continuing to negotiate and settle the terms of thecontract indicated that, at least from the point of view of one of the parties, there had never been a completed agreement. [46] The highly contextualized nature of an inquiry as to whether a contract was entered into at all is illustrated by comparing Pelleyv Morguard Trust Co. (1989), (NL SC), 78 Nfld & PEIR 238 (NLSC), (stating that an offer is “agreeable” does notconstitute acceptance (at para 19)) with Gateway Industries Ltd. v MacMillan Bathurst Inc. (1990), (MB KB), 66 ManR (2d) 210 (QB), reversed in part (1991), (MB CA), 76 Man R (2d) 304 (CA), leave to appeal to SCC refused, [1992]2 SCR vii (acknowledging that an offer that is “agreeable” does constitute acceptance). [47] I find that, based on the governing law, on the facts of this case the trial judge was not obligated to make an explicit finding ofthe words spoken by the parties in order to determine whether a contract was entered into.

This is because formation of a contract must beassessed on the evidence as a whole. Here, the substance of the trial judge’s conclusion was that no matter which version of the

conversation is true, a reasonable onlooker could not find consensus between the parties. Moreover, if the court cannot determine the exact words spoken purportedly accepting an offer, the court can have regard to the conduct of the parties and the general context of the negotiations. Taken together, this evidence may nevertheless allow the trial judge to come to a conclusion seen through a reasonable lens as to whether a contract is formed. [ 48 ] On this basis, the exact words used by Mr. Petrie are immaterial. The trial judge found that the critical question was vague.

The evidence of the critical question of Mr. Ziola along with somewhat different accounts of Mr. Petrie’s response, all taken in the context of the surrounding circumstances, allowed the trial judge to determine that, no matter which version of the conversation was accepted, there was no agreement reached. [ 49 ] I conclude that the trial judge did not err by failing to make an explicit determination of Mr.

Petrie’s response to the critical question. [ 50 ] The trial judge found it unreasonable to conclude that, at the end of the first conversation and after having made a counteroffer where he was requesting more money for the very same land, Mr. Petrie had bound himself to sell the subject quarters for the price Mr. Ziola bid while he waited for him to talk to his son. In the words of Gendis in the excerpt above, “ their agreement was inchoate and never got beyond negotiations” (at para 22, quoting G.

Scammell and Nephew, Limited v Ouston (1940), [1941] AC 251 (UKHL) at 269 ) . [ 51 ] This accords with the principle set forth above that an acceptance of an offer must be clear, unambiguous and absolute. The test for determining whether the parties have reached an agreement is to ask whether an offer has been made by one party and accepted by the other. As stated in Cheshire at 49: … The offeree must unreservedly assent to the exact terms proposed by the offeror.

If, while purporting to accept the offer as a whole, he introduces a new term which the offeror has not had a chance of examining, he is, in fact, merely making a counter-offer. The effect of this in the eyes of the law is to destroy the original offer …. [ 52 ] As the trial judge also observed, Mr. Ziola’s use of the verb “to have” in asking the critical question was vague. Mr. Ziola could have put the question more directly to Mr. Petrie by asking whether he had an agreement to buy the subject quarters at $625,000 if he did not take the package options.

The vagueness of the critical question contributed to the conversation being understood in different ways by each party. This supported the trial judge’s finding that the parties had misunderstood one another. [ 53 ] It was clear that the parties were not on the same page. Mr. Ziola’s question could reasonably be understood as asking if his bid was accepted. Mr. Petrie’s response – even if “yes” – could reasonably have been understood in the context of his strategy to maximize the price for his land, as confirming that he had not rejected Mr. Ziola’s bid.

However, not rejecting a bid is quite different than accepting it. Like the trial judge, I cannot find that Mr. Petrie unreservedly assented to Mr. Ziola’s bid. [ 54 ] Given all the foregoing, Mr. Ziola’s arguments on this issue must fail. B. Did the trial judge make a palpable and overriding error in finding that the evidence relating to Mr. Ziola’s critical question and Mr. Petrie’s response thereto could indicate that a misunderstanding occurred? [ 55 ] As a preliminary point, Mr.

Ziola acknowledges that the standard of review to set aside factual findings is palpable and overriding error and, therefore, the most deferential standard. Mr. Ziola has a heavy onus with respect to the arguments he makes. As I will explain, he has not met it. [ 56 ] Mr. Ziola’s arguments are several. He first argues that the trial judge’s conclusion that consensus ad idem was not reached cannot be reasonably supported by the evidence. He argues that the trial judge’s conclusion that his critical question was vague and that there was a misunderstanding is plainly controverted by the evidence. He submits that Mr.

Ziola, Mr. Petrie and Ms. Ziola all understood the critical question to mean the same thing, i.e., that he was asking if they had a deal for the sale of the subject quarters. [ 57 ] The trial judge found as a fact that Mr. Ziola and Mr. Petrie did not understand the critical question and the response thereto in the same way looked at objectively in the context of the whole evidence. There was, in my view, ample evidence to support this finding of a misunderstanding.

I have detailed the trial judge’s many reasons for concluding there was a misunderstanding in my analysis of the previous issue and I need not say more. That determination is one that he was entitled to make on the evidence before him. I see no palpable and overriding error in that. [ 58 ] Mr. Ziola next argues, contrary to the position on credibility taken by him on the first issue, that the explanation for the difference between Mr. Petrie’s testimony and his is that either (

a) Mr. Petrie does not remember his response accurately, i.e., his testimony is unreliable, or (

b) Mr. Petrie has been truthful in his testimony. He argues that the trial judge should have attributed any discrepancy in the testimony to Mr. Petrie’s dishonesty, embellishment or frailty of memory. [ 59 ] The trial judge found all the witnesses credible and reliable. These are findings of fact that are not lightly disturbed on appeal. This was explained by this Court in R v Schaff , 2017 SKCA 103 : [44] Findings of reliability are factual determinations subject to the same standard of review as findings of credibility.

In R v Sanichar , 2013 SCC 4 , [2013] 1 SCR 54 , the Court adopted the reasons of Laskin J.A., who had dissented in the court below. Laskin J.A. noted at paragraph 72 of his decision:

[72] ... [A]lthough credibility and reliability are distinct concepts, they both involve factual determinations that, as my colleague notes,attract significant deference from a reviewing court: see R. v. R.W.B. (2003), (ON CA), 174 O.A.C. 198, at para. 9. Anappellate court should not interfere with a trial judge’s assessment of the reliability of a complainant’s evidence simply because it wouldhave arrived at a different result. (R v Sanichar, 2012 ONCA 117, 280 CCC (3d) 500) [60] Mr.

Ziola’s argument on credibility and reliability is merely an invitation for this Court to substitute its own determination onthose issues for that of the trial judge. There is no indication in the record that Mr. Petrie was in any way dishonest, was embellishing hisrecollection of the conversation, or that his recollection was unreliable. Moreover, the trial judge had the opportunity to see the witnesses.There is no basis on which to disturb the trial judge’s findings of fact given the standard of review. [61] Mr.

Ziola argues, finally, that the trial judge misapprehended the facts surrounding his bids on the subject quarters and adjacentquarters and this misapprehension was crucial to the trial judge’s finding that there was no agreement. He submits that the trial judge’sconclusion that Mr. Petrie proposed to sell five quarters at an increased price of only five per cent over his highest bid on those quarterswas incorrect and that, in fact, it constituted an increase of over 23 per cent over Mr.

Ziola’s highest bid. [62] Even if the trial judge was factually incorrect about the exact increase of the price proposed in that package option, themisapprehension does not undermine his finding there was no consensus ad idem. His observation about the price differential was onlyone of his six reasons for finding that there was no agreement. His five other reasons fully that support his conclusion. [63] Moreover, even if the price differential in the package options was 23 per cent over Mr.

Ziola’s highest bid for the same land,that fact would have lent further credence to the trial judge’s conclusion there was no agreement; i.e., it more plainly demonstrates thatMr. Petrie was presenting a true counteroffer to Mr. Ziola in the package options and the parties were still negotiating at the conclusion ofthe first conversation. [64] I find that any misapprehension of the price increase had no effect on the trial judge’s conclusion that there was no agreement. VI. CONCLUSION [65] I would dismiss the appeal with costs to Mr.

Petrie in the usual way. “Ottenbreit J.A.” Ottenbreit J.A.I concur. “Caldwell J.A.” Caldwell J.A.I concur. “Leurer J.A.” Leurer J.A.