Bethel United Church v North Pacific Properties

In the Court of Appeal of Alberta

Citation: Bethel United Church v North Pacific Properties, 2022 ABCA 224

Date: 20220622

Docket: 2103-0013AC

Registry: Edmonton

Between:

Bethel United Church of Jesus Christ Apostolic of Edmonton

Appellant

- and -

North Pacific Properties Ltd.

Respondent

_______________________________________________________

The Court:

The Honourable Justice Thomas W. Wakeling

The Honourable Justice Frederica Schutz

The Honourable Justice Kevin Feehan

_______________________________________________________

Memorandum of Judgment

Appeal from the Decision of

The Honourable Justice A. Loparco

Dated the 16th day of December, 2020

(2020 ABQB 791; Docket: 110318278Q1)

_______________________________________________________

Memorandum of Judgment

_______________________________________________________

The Court:

I.

Introduction

[1]

Bethel United Church of Jesus Christ Apostolic of Edmonton appeals¹a judgment ordering

it to pay North Pacific Properties Ltd. $5,770,000 in damages²following a failed land-sale

agreement.

II.

Questions Presented

[2]

Bethel United Church promised to sell West Jasper Properties Inc. land west of Edmonton

“not less than 55 acres” in size for $3,500,000. In turn, West Jasper Properties promised to

reconvey fourteen of the fifty-five acres to Bethel United Church for $1.

[3]

West Jasper Properties subsequently assigned its interest in the Bethel United Church land

to North Pacific.

[4]

[5]

[6]

West Jasper Properties and North Pacific are residential developers.

A problem arose because the Bethel United Church land consisted of only 52.65 acres.

To make matters worse, Alberta Infrastructure subsequently expropriated 2.86 acres of the

Bethel United Church land.

[7]

Bethel United Church and North Pacific were unable to resolve the issues these two facts

created.

[8]

North Pacific commenced an action against Bethel United Church for breach of the land-

sale agreement. It claimed specific performance.

[9] Justice Loparco held that Bethel United Church breached the land-sale agreement and

determined that damages should be calculated as at the date North Pacific abandoned its claim for

specific performance and not the date Bethel United Church breached the land-sale agreement.

[10] Was the land-sale agreement sufficiently certain to be enforceable?

¹Civil Notice of Appeal. Appeal Record 96.

²Judgment. Appeal Record 94. See North Pacific Properties Ltd. v. Bethel United Church of Jesus Christ Apostolic

of Edmonton, 2020 ABQB 791, ¶ 426.

Page: 2

[11] Did Bethel United Church promise that the land the subject of the land-sale agreement

consisted of “not less than 55 acres”?

[12] Was North Pacific entitled to specific performance of the land-sale agreement? Was the

Bethel United Church land unique because it was adjacent to a parcel North Pacific already owned

and that North Pacific planned to develop as one project, reaping economies of scale?

[13] Did Bethel United Church’s breach – its inability to transfer “not less than 55 acres” to

North Pacific – result in substantial nonperformance of the land-sale agreement and entitle North

Pacific to refuse to perform its promise – pay the balance of the purchase price – if it concluded

this was in its best interests and sue for damages?

[14] Was North Pacific entitled to abandon its claim for specific performance when it sold lands

adjacent to the Bethel United Church land that it had originally intended to develop as one

community, and claim damages?

[15] If North Pacific is entitled to damages for breach of contract, at what date should the

damages be calculated? Is it August 1, 2011, the land-sale agreement closing date? This option is

beneficial to Bethel United Church. As of August 1, 2011, the value of the land was $125,000 per

acre or $5,125,000 for forty-one acres, substantially less than it was on November 13, 2014, the

date North Pacific abandoned its claim for specific performance – the value of the land was

$220,000 per acre or $9,020,000 for forty-one acres. Is North Pacific entitled to benefit from the

growth in the land’s value between August 1, 2011 and November 13, 2014?

[16] Is it necessary to consider whether Bethel United Church failed to perform any other

promises it made in the land-sale agreement?

[17] Bethel United Church now argues for the first time that Justice Loparco failed, when

assessing damages, to take into account interest charges that are referred to in Article 11.4 of the

land-sale agreement, and other facts. Is the record on this subject complete? Should this Court

entertain this argument without having the benefit of Justice Loparco’s opinion?

III.

Brief Answers

[18] Bethel United Church promised to sell to West Jasper Properties an identified parcel of

land of “not less than 55 acres” for a stipulated price and subject to other clear terms. It was an

enforceable agreement.

[19] The vendor’s obligation to convey “not less than 55 acres” was most certainly a term of

the land-sale agreement, breach of which entitled the purchaser to take the position that it was

relieved of the burden to discharge its promises to the vendor. Bethel United Church’s breach of

this term resulted in substantial nonperformance.

Page: 3

[20] The Bethel United Church land was unique from the perspective of North Pacific. North

Pacific planned to use the Bethel United Church land and the adjoining land it owned for a

residential development. The cost per acre for a project consisting of the Bethel United Church

land and the adjoining property would be less than that for a project without the Bethel United

Church land.

[21] Because the Bethel United Church land was unique, North Pacific was entitled to specific

performance.

[22] But North Pacific, as it was entitled to do, also pleaded a claim for damages, and, as it was

also entitled to do, elected to abandon its claim for specific performance when it sold the adjoining

land.

[23] North Pacific’s damage claim must be assessed as of the date it abandoned its specific

performance claim. Damages are the difference between the value of forty-one acres of the Bethel

United Church land on November 13, 2014 and the purchase price of the land. Justice Loparco set

damages at $5,770,000. This determination is sound.

[24] We will not entertain Bethel United Church’s argument that the trial judge’s damage

calculation was flawed for reasons not advanced before Justice Loparco. As North Pacific argues,

and Bethel United Church appears to concede, the record is not complete, and it would not be

appropriate for us to undertake this task. In addition, we would be working without the benefit of

Justice Loparco’s considered opinion on this subject.

[25] There is no need to determine whether Bethel United Church breached any other terms of

the land-sale agreement.

IV.

Key Contract Provisions

[26] The key parts of the Offer to Purchase³dated September 1, 2006 follow:

Offer To Purchase

To: Bethel United Church of Jesus Christ Apostolic of Edmonton

…

³Appellant’s Extracts of Key Evidence 5 (emphasis added). We have altered the text by substituting lower case letters

for upper case letters on occasion.

Page: 4

The undersigned, The West Jasper Properties Inc. … (… “Purchaser”) hereby offers

to purchase from Bethel United Church of Jesus Christ Apostolic of Edmonton (…

''Vendor''), the Property subject to the terms and conditions herein contained:

Article 1 Interpretation

1.1 Defined Terms. As used in this Offer to Purchase, the following terms shall

have the following meanings:

…

(c) “Closing” means the completion of the transaction of purchase and sale

provided for in this Offer and, where the context so requires, the time and

date at which the same shall occur pursuant to Article 11 and “Time of

Closing” shall have a corresponding meaning.

(d) “Condition Period” means until April 30, 2007, provided however, if

prior to the expiration of such period, the Purchaser notifies the Vendor in

writing that the Condition Period is to be extended for up to … 30 days,

then upon the provision of such notice, the Condition Period shall be

deemed to be extended.

…

(g) “Property” means, collectively, those lands outlined in black in Schedule

“A” and which are legally described as set out in Schedule “B” attached to

this Offer, which contains not less than 55 acres, located within the City of

Edmonton, together with any and all buildings, structures and other

improvements, constructed thereon or thereunder as well as any and all

rentals, license fees or any other income derived from the use of the

Property by any third party whatsoever.

…

1.6 Entire Agreement. This Offer, upon acceptance by the Vendor, constitutes the

entire agreement between the parties pertaining to the subject matter hereof and

supersedes all prior agreements, understandings, negotiations and discussions,

whether oral or written, of the parties. There are no representations, warranties,

conditions or other agreements, express or implied, statutory or otherwise, between

the parties in connection with the subject matter of this Offer, except as specifically

set forth herein and therein.

Page: 5

1.7 Amendments. This Offer may only be amended, modified or supplemented by

a written agreement signed by the Vendor and Purchaser.

…

Article 2 Purchase and Purchase Price

2.1 Purchase. Subject to the terms and conditions herein contained, upon

acceptance of this Offer by the Vendor, the Vendor agrees to sell, assign and

transfer all rights, title and interest in the Property free and clear to the Purchaser

and the Purchaser agrees to purchase the Property from the Vendor, as, at and from

the time of Closing.

2.2 Price. The purchase price (the “Purchase Price”) for the Property shall be …

$3,500,000.00 …, exclusive of GST, if any, plus additional interest and amounts as

may be payable under section 2.3.

2.3 Payment. The Purchase Price shall be payable by the Purchaser to the Vendor

as follows:

(a) The sum of … $50,000.00 … as a deposit to be paid by the Purchaser to

McLennan Ross LLP …, at the time of the Purchaser's execution of this

Offer, which shall be held in an interest bearing trust account, interest to

follow principal … .

(b) The sum of … $200,000.00 … as an additional deposit to be paid by the

Purchaser to McLennan Ross LLP … on or before May 30, 2007 … , which

shall be held in an interest bearing trust account, interest to follow principal,

on behalf of the parties as their respective interests appear and shall be

disposed of in accordance with the terms and conditions of this Offer.⁴

(c) The sum of … $3,250,000.00 … shall be paid pursuant to the terms of

an Agreement For Sale … plus interest of 6% per annum on unpaid

amounts, to be paid on August 1, 2011 or earlier at the sole discretion of the

Purchaser.

…

Article 3 Representations and Warranties

⁴As amended in Amending Agreement dated April 6, 2007, art. 3. Appellant's Extracts of Key Evidence 41.

Page: 6

3.1 Representations and Warranties of the Vendor. The Vendor represents and

warrants to the Purchaser as follows and acknowledges and confirms that the

Purchaser is relying upon such representations and warranties for the purposes of

entering into this Offer:

…

(k) There has been no expropriation or condemnation and, to the knowledge

of the Vendor, no notice of any proposed expropriation or condemnation,

of the Property or any part thereof;

…

Article 4 Title and Inspections

4.1 Documents. The Vendor shall, within … 5 days following acceptance of this

Offer, make available to the Purchaser, the Purchaser's Solicitors and other

authorized representatives of the Purchaser, all title documents, real property

reports, … and other documents in its possession or under its control relating to the

Property, all of which shall upon successful completion of this transaction become

the property of the Purchaser at the Time of Closing.

Article 5 Covenants of The Vendor

5.1 Vendor Covenants. The Vendor covenants with the Purchaser as follows and

acknowledges that such covenants are being relied upon by the Purchaser:

…

(c) The Vendor shall lend reasonable assistance to the Purchaser in fulfilling

any or all of the Conditions Precedent referred to herein, including

executing such documents, disclosing such information concerning the

Property and providing access to the Property as may be necessary or

desirable in connection therewith …

…

Article 6 Covenants of The Purchaser

6.1 Purchaser Covenants. The Purchaser covenants with the Vendor as follows and

acknowledges that such covenants are being relied upon by the Vendor:

(a) The Purchaser, at its expense, making application to and having the City

of Edmonton approve the re-zoning of the Property …

Page: 7

…

Article 7 Mutual Covenants

7.1 Mutual Covenants. The Purchaser and the Vendor hereby mutually covenant:

(a) The Purchaser shall make application to and have the City of Edmonton

approve the subdivision of the Bethel Retention lands out of the Property⁵

…

If these mutual covenants are not satisfied or notice of satisfaction is not delivered

by the Purchaser to the Vendor by the expiry of the Condition Period, then this

Agreement shall be null and void whereupon neither the Vendor nor the Purchaser

shall have any continuing rights or obligations hereunder.

Article 8 Conditions

8.1 Conditions Precedent. The obligation of the Purchaser to proceed further with

the transaction of purchase and sale of the Property shall be conditional … until the

expiration of the Condition Period and subject to the Purchaser satisfying itself, at

the Purchaser's sole discretion and cost, that the Property is suitable and viable in

all respects for the Intended Uses … .

…

Article 9 Bethel Property Retention Entitlement

9.1 Fourteen … Acres Retained by Bethel. The Purchaser agrees to provide the

Vendor with …14 … net acres in the location as noted on attached Schedule “D”

for the sum of … $1.00 … plus GST. The parties acknowledge that the actual

location in attached Schedule “D” may change due to drainage and City of

Edmonton Planning Department requirements and such changes will be

acknowledged and agreed upon by both parties acting reasonably. …

…

Article 11 Closing

⁵As amended in Amending Agreement dated April 6, 2007, art. 4. Appellant's Extracts of Key Evidence 41.

Page: 8

11.1 Date. The Closing of the transaction of purchase and sale of the Property …

shall be effected at 12:00 noon on the 30th day after the Condition Period … or at

such other time as may be agreed upon by the parties hereto … .

…

11.4 Interest. All money due to the Vendor shall be paid to the Vendor's lawyer on

or before Closing, with overdue funds payable at Alberta Treasury Branches prime

rate plus … 3 per cent.

…

Article 14 Miscellaneous

…

14.7 Caveat. The Purchaser may file a caveat against the Property based upon this

Agreement and the privileges hereby granted.

…

Dated at the City of Edmonton, Province of Alberta, this 1st day of September,

2006.

The West Jasper Properties Inc.

Vendor's Acceptance

The undersigned Vendor of the above described property, hereby accepts the above

and agrees to complete the sale on the terms and conditions as set out above.

…

Dated at Edmonton the Province of Alberta, this 1st day of September, 2006.

Bethel United Church of Jesus Christ Apostolic of Edmonton

Statement of Facts

V.

A.

West Jasper Properties and Bethel United Church Entered into a Land-Sale

Agreement

Page: 9

[27] In 2003 and 2004 Bethel United Church purchased a parcel of land that was advertised as

approximately fifty-five acres for $1,300,000.⁶It planned to use part of the land and sell the rest

to finance this purchase.⁷

[28] West Jasper Properties owned a 91.75-acre parcel of land adjacent to the Bethel United

Church land that it intended to turn into a residential development.⁸

[29] On September 1, 2006 West Jasper Properties offered⁹to purchase from the Bethel United

Church its newly acquired property for $3,500,000.¹⁰“Property”, in West Jasper Properties’ offer

to purchase, was defined this way: “‘Property’ means, collectively, those lands outlined in black

in Schedule ‘A’ and which are legally described as set out in Schedule ‘B’ attached to this Offer,

which contains not less than 55 acres, located within the City of Edmonton”.¹¹In the same

agreement, West Jasper Properties promised to resell fourteen of the fifty-five acres to Bethel

United Church for $1.¹²

[30] Bethel United Church accepted the offer.¹³

[31] Prior to September 1, 2006 both West Jasper Properties and Bethel United Church obtained

appraisals.

[32] West Jasper Properties’ appraisal estimated Bethel’s land to be “55 acres, more or less”

with a market value of $3,850,000.¹⁴West Jasper Properties provided Bethel United Church with

a copy of the appraisal.¹⁵

⁶North Pacific Properties Ltd. v. Bethel United Churches of Jesus Christ Apostolic of Edmonton, 2020 ABQB 791, ¶

20.

⁷Id.

⁸Id. ¶¶ 28 & 29.

⁹Id. ¶¶ 21 & 27. Offer to Purchase dated September 1, 2006. Appellant’s Extracts of Key Evidence 5.

¹⁰Offer to Purchase dated September 1, 2006, art. 2.2. Appellant’s Extracts of Key Evidence 6.

¹¹Id. art. 1.1(g). Appellant's Extracts of Key Evidence 5.9.1. Appellant’s Extracts of Key Evidence 11.

¹²Id. art. 9.1. Appellant’s Extracts of Key Evidence 11.

¹³North Pacific Properties Ltd. v. Bethel United Churches of Jesus Christ Apostolic of Edmonton, 2020 ABQB 791,

¶ 21.

¹⁴Id. ¶ 23. See Appraisal by Alois Holland as at June 21, 2006, attached to Letter from David Gibson (Baywest

Properties) to Michael Grange (Bethel United Church) dated June 28, 2006. Appellant’s Extracts of Key Evidence

151. Mr. Gibson acted on behalf of West Jasper Properties.

¹⁵Id. ¶ 23.

Page: 10

[33] Bethel United Church’s appraisal¹⁶estimated the land to be “52.67 acres (more or less)”

with a market value of just over $4,740,000.¹⁷Bethel United Church did not disclose this appraisal

to West Jasper Properties.¹⁸Justice Loparco understandably noted that she was “dumbfounded ...

that Bethel [United Church] did not feel it was necessary to share this information with [West

Jasper Properties] while negotiating a price for the sale”.¹⁹

[34] Bethel United Church also represented and warranted in the land sale agreement²⁰that there

has been no expropriation or notice of proposed expropriation.²¹It promised to assist the purchaser

in fulfilling the conditions precedent. ²²There was also a mutual covenant that the purchaser will

apply for, obtain and register a subdivision approval from the City of Edmonton by the defined

“condition period”, failing which the agreement would be null and void and neither party would

have any continuing rights or obligations.²³The “condition period” date was originally April 30,

2007, later changed to December 30, 2007, and then August 1, 2011.²⁴

B.

West Jasper Properties Assigned Its Interest in the Land-Sale Agreement to

North Pacific

¹⁶Appraisal by James Wall as at June 11, 2006. Appellant’s Extracts of Key Evidence 101.

¹⁷Id. Appellant’s Extracts of Key Evidence 103-04.

¹⁸North Pacific Properties Ltd. v. Bethel United Churches of Jesus Christ Apostolic of Edmonton, 2020 ABQB 791,

¶ 25 (“During his testimony at trial, Mr. Grange [a representative of Bethel United Church] acknowledged that he did

not raise the fact that the Lands were less than 55 acres with West Jasper prior to accepting the Offer to Purchase”),

note 12 (“Note that Mr. Grange believes North Pacific received the Wall Appraisal but there is no evidence of this”)

& ¶ 205 (“The actual land size could have been discovered prior to acceptance of the Offer to Purchase had Mr. Grange

shared the Wall Appraisal with Mr. Gibson [a representative of West Jasper Properties]. The latter was never shared

with Mr. Gibson [representative of West Jasper Properties] even after the acceptance of the Offer”). The parties

continue to dispute whether Bethel United Church shared the Wall appraisal with West Jasper Properties. Bethel

United Church says evidence was “to the opposite effect”. Appellant's Factum ¶ 47(c). The respondent points to Mr.

Grange’s testimony that they “could have very well shared” the appraisal but agrees that it was not mentioned in any

communications. Respondent's Factum ¶ 22.

¹⁹Id. ¶ 201.

²⁰The trial judge summarized the key terms at North Pacific Properties Ltd. v. Bethel United Churches of Jesus Christ

Apostolic of Edmonton, 2020 ABQB 791, ¶ 27.

²¹Offer to Purchase dated September 1, 2006, art. 3.1(k). Appellant’s Extracts of Key Evidence 26.

²²Id. art. 5.1(c). Appellant’s Extracts of Key Evidence 28.

²³Id. art. 7.1, amended in Amending Agreement dated April 6, 2007, art. 4. Appellant’s Extracts of Key Evidence 28

& 41.

²⁴Offer to Purchase dated September 1, 2006, art. 1.1(d); Amending Agreement dated April 6, 2007, art. 2 & Second

Amending Agreement dated November 6, 2007art. 1. Appellant's Extracts of Key Evidence 5, 41 & 43.

Page: 11

[35] In December 2007 West Jasper Properties sold the land²⁵adjacent to the Bethel United

Church land to North Pacific and assigned the land-sale agreement²⁶to North Pacific.²⁷

[36] West Jasper Properties represented to North Pacific that the two parcels together consisted

of 150 acres,²⁸fourteen acres of which Bethel United Church would ultimately retain.

[37] North Pacific later discovered that this total acreage included 6.16 acres that belonged to

the City and not West Jasper Properties.²⁹

[38] An appraisal North Pacific obtained dated November 21, 2007 revealed that the Bethel

United Church land consisted of 52.66 acres.³⁰

[39] West Jasper Properties and North Pacific agreed to reduce the purchase price from

$20,000,000 to $14,260,000 based on a per-acre price of $146,886.01 accounting for the two

deficiencies in land size.³¹

C.

Alberta Infrastructure Expropriated Part of the Bethel United Church Land

[40] In 2009 Alberta Infrastructure informed North Pacific that it may require part of the Bethel

United Church land for a right of way.³²

²⁵Offer to Purchase dated September 19, 2007 and Letters from North Pacific to West Jasper Properties and to Miller

Thompson LLP dated October 1, and October 31, 2007. Appellant’s Extracts of Key Evidence 271, 287 & 288.

²⁶Assignment and Sale Agreement effective December 13, 2007. Appellant’s Extracts of Key Evidence 321.

²⁷North Pacific Properties Ltd. v. Bethel United Church of Jesus Christ Apostolic of Edmonton, 2020 ABQB 791, ¶¶

32-40.

²⁸Id. ¶ 32.

²⁹Id. ¶¶ 35 & 40.

³⁰Id. ¶¶ 36, 340 & 341 & note 20. See Gettel Appraisals Ltd. Short Narrative Valuation effective November 20, 2007,

at page 2. Appellant’s Extracts of Key Evidence 296 & North Pacific Properties Ltd. v. Bethel United Church of Jesus

Christ Apostolic of Edmonton, 2020 ABQB 791, ¶¶ 64-65. North Pacific’s representative was also in a position to –

and the trial judge found he likely did – calculate the acreage of the Bethel land in November 2007, when it obtained

a valuation at the time it purchased the adjoining land and the Bethel land by assignment. Id. ¶¶ 340-41 & note 20.

³¹North Pacific Properties Ltd. v. Bethel United Church of Jesus Christ Apostolic of Edmonton, 2020 ABQB 791, ¶¶

37 & 38. See letter from North Pacific to West Jasper Properties dated November 22, 2007. Appellant’s Extracts of

Key Evidence 312.

³²Id. ¶¶ 53-54.

Page: 12

[41] North Pacific subsequently notified Bethel United Church of this troubling development.³³

[42] Bethel United Church granted North Pacific a power of attorney to negotiate with Alberta

Infrastructure in relation to the expropriation.³⁴

[43] North Pacific tried to convince Alberta Infrastructure that an expropriation would not be

necessary if the adjacent and Bethel United Church lands had the same owner once the sale

closed.³⁵

[44] These attempts failed.

[45] Bethel United Church was of the view that it would retain its fourteen acres, the

expropriated land would be deducted from North Pacific’s portion, and its agreement for North

Pacific to take over negotiations with Alberta Infrastructure relieved it of its representation that

there would be no expropriation before the sale closed on the basis that North Pacific would obtain

a high value for the expropriated land.³⁶

[46] Alberta Infrastructure obtained an appraisal from Brian Gettel dated January 11, 2010. It

revealed that the Bethel United Church lands totalled 52.66 acres. ³⁷North Pacific’s owner

“testified that this was the first time he was aware that the Bethel Lands included less than 55

acres”.³⁸

[47] Alberta Infrastructure signed a Notice of Intention to Expropriate on February 12, 2010.³⁹

[48] Discussions between North Pacific and Bethel United Church throughout February 2010

to close the sale early did not yield an agreement.⁴⁰

³³Letter from Ron Burek (North Pacific Properties Ltd.) to Bethel United Church dated March 20, 2009. Appellant’s

Extracts of Key Evidence 389.

³⁴North Pacific Properties Ltd. v. Bethel United Church of Jesus Christ Apostolic of Edmonton, 2020 ABQB 791, ¶

56.

³⁵Id. ¶¶ 54 & 57.

³⁶Id. ¶¶ 58 & 59.

³⁷Id. ¶ 64.

³⁸Id. ¶ 65 & Appraisal by Brian Gettel effective December 31, 2009. Appellant's Extracts of Key Evidence 404.

³⁹Id. ¶ 71.

⁴⁰Id. ¶¶ 67-77.

Page: 13

[49] On February 17, 2010⁴¹North Pacific stopped representing Bethel United Church in the

expropriation discussions with Alberta Infrastructure.

[50] Bethel United Church continued negotiations with Alberta Infrastructure.

[51] During negotiations Alberta Infrastructure provided an option that could have avoided the

expropriation.⁴²North Pacific was prepared to proceed with this proposal but Bethel United

Church did not, thinking it was out of time.⁴³

[52] On June 11, 2010 Alberta Infrastructure expropriated 2.86 acres of Bethel United Church’s

land for which it paid Bethel United Church $327,980.⁴⁴

D.

The Parties Could Not Agree To Amend the Land-Sale Agreement to Account

for the Shortfall

[53] On February 25, 2010, once North Pacific realized the expropriation was likely, it raised

with Bethel United Church for the first time the issue of the acreage shortfall.⁴⁵

[54] In December 2010 North Pacific obtained another survey of the Bethel United Church land.

It confirmed that the Bethel United Church land was 52.65 acres before and 49.79 acres after the

expropriation.⁴⁶

[55] In January 2011 North Pacific asked Bethel United Church to either reduce its fourteen-

acre retention to 8.79 acres or reduce the purchase price by $1,500,000 per acre, or a combination

of the two.⁴⁷Bethel United Church did not want to reduce its fourteen acres or reduce the purchase

price by that amount.⁴⁸

⁴¹Letter from Len Taschuk (North Pacific) to Alberta Infrastructure dated February 17, 2010. Appellant’s Extracts of

Key Evidence 522.

⁴²North Pacific Properties Ltd. v. Bethel United Church of Jesus Christ Apostolic of Edmonton, 2020 ABQB 791, ¶¶

81 & 82.

⁴³Id. ¶¶ 84 & 85.

⁴⁴Id. ¶¶ 86 & 87.

⁴⁵Id. ¶¶ 78-80.

⁴⁶Id. ¶¶ 89 & 90.

⁴⁷Id. ¶¶ 92-93.

⁴⁸Id. ¶ 112.

Page: 14

[56] In the meantime North Pacific continued to work on the subdivision approvals that it was

required to obtain under the land-sale agreement. This required the parties to agree on the size of

Bethel United Church’s retention.⁴⁹

[57] By April 2011 North Pacific was concerned about meeting the looming August 1, 2011

deadline.⁵⁰

[58] In June 2011 North Pacific proposed several options to Bethel United Church, including

extending the deadline to allow time for dispute resolution, entering into a new agreement, or

terminating the agreement and allowing North Pacific to pursue damages against Bethel United

Church for its breach.⁵¹Bethel United Church opted to terminate but revoked this decision, with

North Pacific’s concurrence, once it realized North Pacific would seek significant damages.⁵²

[59] On July 28, 2011 North Pacific’s counsel sent a letter to Bethel United Church’s counsel

proposing that they enter into an amending agreement to extend the condition period and closing

date, enclosing a draft.⁵³

[60] Bethel United Church’s counsel did not reply promptly.⁵⁴

[61] On July 29, 2011 North Pacific’s representative sent a letter to Bethel United Church’s

representative reiterating the proposal and proposing binding arbitration.⁵⁵

[62] On July 29, 2011 Bethel United Church’s counsel agreed to an extension of the closing

date in a voicemail to North Pacific’s counsel it confirmed in a letter on August 3.⁵⁶On August 4,

2011 Bethel United Church’s representative agreed to an extension of the condition period and

closing date on the terms in North Pacific’s July 29, 2011 letter.⁵⁷

⁴⁹Id. ¶¶ 99-104.

⁵⁰Id. ¶ 104.

⁵¹Id. ¶ 106.

⁵²Id. ¶¶ 107-109.

⁵³Id. ¶ 114.

⁵⁴Id. ¶ 115.

⁵⁵Id. ¶¶ 116-18.

⁵⁶Id. ¶¶ 119 & 120.

⁵⁷Id. ¶ 121.

Page: 15

[63] However, the parties could not agree on the terms of the third amending agreement, which

in Bethel United Church’s view included terms – particularly arbitration – not previously discussed

or agreed upon.⁵⁸

[64] On September 1, 2011 Bethel United Church informed North Pacific that Bethel United

Church would not extend the closing dates and that the land-sale agreement was null and void.⁵⁹

[65] Throughout September 2011 North Pacific gave Bethel United Church the opportunity to

proceed to arbitration and extend the closing dates.⁶⁰

[66] On October 5, 2011 Bethel United Church rejected North Pacific’s most recent proposal

and offered to settle matters if North Pacific paid the agreed-upon purchase price of $3,500,000

and either gave Bethel United Church fourteen acres and got the expropriation payment or reduced

the fourteen-acre retention by the amount of the expropriated land but Bethel kept the expropriation

payment.⁶¹

[67] North Pacific did not accept this offer.⁶²

E.

North Pacific Sued Bethel United Church

[68] On November 18, 2011 North Pacific filed a claim⁶³in the Court of Queen’s Bench of

Alberta against Bethel United Church seeking specific performance of the land-sale and extension

agreements, damages for breach of contract in the amount of $60,000,000, and special damages of

$4,350,000.

[69] North Pacific also filed a certificate of lis pendens.⁶⁴

[70] On January 31, 2012 Bethel United Church defended.⁶⁵It alleged that North Pacific

breached the land-sale agreement and sought the dismissal of North Pacific’s claim. It also pleaded

that “[i]n the alternative, the Agreement was void for lack of certainty as the location and size of

the Bethel Retention, as that term is defined in the Agreement, could not be ascertained”, void ab

⁵⁸Id. ¶¶ 122 & 123.

⁵⁹Id. ¶¶ 124 & 125.

⁶⁰Id. ¶¶ 126-28.

⁶¹Id. ¶ 129.

⁶²Id. ¶ 132.

⁶³Amended statement of claim filed May 13, 2013. Appeal Record 15.

⁶⁴Id. ¶ 132.

⁶⁵Statement of Defence filed January 31, 2012. Appeal Record 9.

Page: 16

initio because the parties did not reach consensus on the size and location of the retention, or

“frustrated by North Pacific’s inability to secure subdivision approval”. Bethel United Church

counterclaimed⁶⁶against North Pacific seeking unpaid municipal property taxes of $90,003.11,

damages of $50,000 for slander of title and an order that North Pacific discharge the caveat it

registered on title.

[71] On November 13, 2014⁶⁷North Pacific accepted Bethel United Church’s repudiation and

abandoned its claim for specific performance after it sold the land adjacent to the Bethel United

Church land.⁶⁸

F.

The Trial Judge Granted Damages to North Pacific and Dismissed Bethel

United Church’s Counterclaim

[72] Justice Loparco presided over an eleven-day trial commencing March 2, 2020.

[73] North Pacific argued that Bethel United Church breached the land-sale agreement before

August 1, 2011, including its obligation to transfer “not less than 55 acres” and support its

subdivision application diligently and in good faith.⁶⁹

[74] Bethel United Church denied that it represented or warranted that the property it agreed to

sell consisted of not less than fifty-five acres, arguing that these terms were a typographical error

rather than a warranty. It maintained that the land-sale agreement when read as a whole, including

the legal descriptions of the lands in the schedule that included their area, supports its position. It

alleged that the agreement terminated in accordance with its terms after August 1, 2011 when

North Pacific failed to finalize subdivision or tender the cash to close.⁷⁰

1.

Bethel United Church Breached the Land-Sale Agreement by Failing

To Be in a Position To Transfer Fifty-Five Acres and Failing to Assist

North Pacific Obtain Subdivision Approval

⁶⁶Counterclaim filed January 31, 2012. Appeal Record 12.

⁶⁷Letter from Robert Grant (North Pacific) to Matt Pruski (Bethel United) dated November 13, 2014. Appellant’s

Extracts of Key Evidence 653.

⁶⁸North Pacific Properties Ltd. v. Bethel United Churches of Jesus Christ Apostolic of Edmonton, 2020 ABQB 791,

¶ 134.

⁶⁹Id. ¶ 173. North Pacific also argued that the parties had entered into a valid extension agreement, which Bethel

United Church denied. Id. ¶¶ 135-36. Justice Loparco concluded that they were not ad idem with respect to the

extension agreement. Id. ¶ 137. These findings are not subject to appeal. Appellant's Factum ¶ 5.

⁷⁰Id. ¶ 174, 175 & 182.

Page: 17

[75] Justice Loparco concluded that Bethel United Church promised that the land it offered to

sell to North Pacific contained “not less than 55 acres” and that this was a fundamental term of the

agreement:⁷¹

The term [definition of Property] is unambiguous and a fundamental term of the

Land Agreement for the sale of land. To see it otherwise in light of all the

surrounding circumstances is untenable.

….

Given the passage of time, and particularly the fact that the Land Agreement was

assigned, the Court must … read the terms of the contract as a whole, objectively

based on the words used, in light of the overall commercial purpose of the

agreement. It must not inquire into the parties’ subjective states of mind … .

In the case at bar, objectively and in light of the overall purpose of the contract, the

description of the Property is clear: West Jasper would acquire title to not less than

41 acres, being the difference between the 55 acres in the definition of the Property

and the 14-acre Bethel Retention.

….

… I conclude that the Land Agreement, which was prepared and reviewed by

competent legal counsel, intended that the 7 words “which contains not less than

55 acres” form a fundamental term. This was not a term that was buried; it was

front and centre in the description of Property.

….

All of the words in the Land Agreement are deliberate and should be given

meaning. The transfer of 55 acres was the essence of the contractual subject, and

those words should not be struck to give favour to an attached schedule unless there

is some paramountcy indicated by the text. The deliberate addition of the words,

“not less than 55 acres,” suggests that the vendor is certain to provide at least that

many acres, even if the schedules are not clear.

[76] The trial judge noted that Bethel United Church did not object to West Jasper Properties

inserting these words into the land-sale agreement despite knowing that the land contained 52.65

⁷¹Id. ¶¶ 181, 191, 192, 194 & 203. See also ¶¶ 210 & 288.

Page: 18

acres.⁷²She rejected Bethel United Church’s argument that a reader would understand this was an

“oversight” based on reading the schedule that provided the land’s legal description.⁷³The

schedules, the trial judge found, were not easy to understand, and the term in the contract’s body

took precedence given the conflict with the schedules in the absence of contractual terms as to

which prevails.⁷⁴

[77] For the same reasons, Justice Loparco held that the provision that Bethel United Church

retain fourteen acres was also a fundamental term.⁷⁵The parties’ failure to agree on who should

take less land and the associated compensation once the shortfall and expropriation became issues

made it impossible to close on the agreement.⁷⁶

[78] The trial judge rejected Bethel United Church’s alternative arguments. She did not accept

that the agreement was void for uncertainty and ab initio because there was uncertainty regarding

the size and location of Bethel’s fourteen-acre retention – the contract addressed this and there was

no uncertainty or disagreement on this point, as confirmed by parties’ subsequent conduct until

the land size deficiencies were discovered.⁷⁷Nor did North Pacific’s inability to secure subdivision

frustrate the agreement – this was a direct result of Bethel United’s conduct, from which it cannot

now benefit.⁷⁸

[79] Justice Loparco did not lend any weight to North Pacific’s knowledge of the acreage

shortfall before the time when it first raised this with Bethel, its conduct around obtaining a

neighbourhood structure plan in 2007 and attempting to close without objecting to the acreage in

February 2010, rejecting these as suggesting a waiver by North Pacific of its contractual rights.⁷⁹

[80] The trial judge found that the parties had no agreement regarding the expropriation,

contrary to Bethel United Church’s argument that North Pacific took on that risk and waived any

contractual breach when it engaged in discussions with Alberta Infrastructure under the power of

attorney Bethel United Church provided.⁸⁰Such an agreement was never put in writing.⁸¹Bethel

⁷²Id. ¶¶ 199-202 & 204-05.

⁷³Id. ¶¶ 207, 209 & 211.

⁷⁴Id. ¶¶ 212, 214 & 215.

⁷⁵Id. ¶ 225.

⁷⁶Id. ¶ 230.

⁷⁷Id. ¶¶ 219-21.

⁷⁸Id. ¶¶ 222-23.

⁷⁹Id. ¶¶ 233, 238, 243, 244-45 & 248-49.

⁸⁰Id. ¶¶ 250, 258 & 259.

⁸¹Id. ¶¶ 259-61 & 265.

Page: 19

United Church remained responsible for its representation and warranty that it was the sole owner

and there would be no expropriation and is accordingly responsible for damages arising from the

expropriation causing the land-sale agreement to be breached.⁸²

[81] Justice Loparco held that Bethel United Church failed to provide North Pacific reasonable

assistance in respect of the subdivision process as it covenanted to do.⁸³The expropriation required

North Pacific to prepare a new neighbourhood structure plan – an earlier plan was no longer usable

as the expropriated lands were on Bethel United Church’s fourteen-acre retention in that plan.⁸⁴

The trial judge took the view that, on the facts before her, Bethel United Church did not cooperate

– its representative was “dragging his feet” and its conduct was “obstructive”, with the apparent

intent “to run out the clock by making it impossible for North Pacific to satisfy the Mutual

Covenant”.⁸⁵

[82] The trial judge concluded that Bethel United Church repudiated the land-sale agreement,

that North Pacific accepted the repudiation, and that North Pacific was entitled to pursue

damages.⁸⁶She also found that Bethel United Church breached the land-sale agreement by failing

to be in a position to transfer at least 55 acres, representing it was the sole owner and there would

be no expropriation, and failing to cooperate and assist towards satisfying the conditions precedent

and the mutual covenant regarding subdivision.⁸⁷

2.

The Trial Judge Awarded Breach of Contract Damages to North

Pacific as at the Time when North Pacific Abandoned Its Claim of

Specific Performance

[83] Justice Loparco rejected Bethel United Church’s argument that the Court should grant

specific performance as a remedy.⁸⁸She determined that Bethel United Church cannot insist on

specific performance at trial given that North Pacific was no longer entitled to it at that time – the

claim for specific performance stopped being feasible when North Pacific sold the adjacent lands

that made Bethel United Church’s lands unique by virtue of the economies of scale from

developing both land parcels together.⁸⁹

⁸²Id. ¶¶ 264 & 288.

⁸³Id. ¶ 288.

⁸⁴Id. ¶¶ 266 & 270.

⁸⁵Id. ¶¶ 272, 279-80, 283 & 286.

⁸⁶Id. ¶ 224.

⁸⁷Id. ¶ 288.

⁸⁸Id. ¶¶ 297 & 311.

⁸⁹Id. ¶¶ 305, 311 & 315.

Page: 20

[84] The trial judge then determined that the appropriate date at which to calculate North

Pacific’s damages is when North Pacific abandoned its claim for specific performance – November

13, 2014 – rather than the date when Bethel United Church breached the contract – August 31,

2011.⁹⁰Courts, she concluded, have discretion to fix damages as at the time they consider best puts

the plaintiff in the position it would have been in had the contract been performed. If a party has a

valid claim for specific performance, the appropriate date is when specific performance is no

longer viable.⁹¹Calculating damages at the time of breach would require the incorrect assumption

that North Pacific would have sold the land at that date, rather than develop it as was its plan all

along.⁹²As a result, Justice Loparco held that North Pacific is entitled to benefit from the changes

in prices between the date of breach and when it abandoned the specific performance claim.⁹³

[85] The trial judge rejected Bethel United Church’s argument that North Pacific was

compensated for its losses because it paid West Jasper Properties a reduced price for the

assignment of the land-sale agreement to reflect a shortfall in the acreage for the adjacent and

Bethel United Church lands. She concluded that an assignee is, at law, entitled to step into the

shoes of the assignor – a court will not limit the available damages based on the pricing of the

assignment, which could reflect associated risks or uncertainty.⁹⁴

[86] Justice Loparco likewise dismissed Bethel United Church’s argument that North Pacific

should have closed the transaction for the land excepting Bethel United Church’s fourteen acres

and then sued for the deficiency⁹⁵or obtained lands alternative to the adjacent parcel.⁹⁶North

Pacific had no duty to mitigate while it sought specific performance⁹⁷and otherwise its duty to

mitigate did not include accepting an offer from the breaching promisor that would require

litigation to enforce its remaining rights, particularly when, as here, it might be prevented from

doing so by the principle that a party cannot sue for a deficiency after a conveyance is completed

⁹⁰Id. ¶¶ 317, 326 & 327.

⁹¹Id. ¶¶ 328, 332, 334 & 336.

⁹²Id. ¶ 336.

⁹³Id. ¶¶ 332 & 335-37.

⁹⁴Id. ¶¶ 345, 350-52, 355 & 357.

⁹⁵Id. ¶ 358.

⁹⁶Id. ¶ 368. The trial judge previously accepted that North Pacific could not have mitigated its damages by obtaining

alternate land that could provide the same economies from developing alongside Bethel United Church’s land because

no other adjacent property in the area was suitable. Id. ¶ 312.

⁹⁷Id. ¶ 367.

Page: 21

if it had the opportunity to raise an objection absent a warranty or covenant that survives after

conveyance.⁹⁸

[87] The trial judge then calculated North Pacific’s damages as the difference between the

purchase price for forty-one acres in the land-sale agreement and the value of the land on

November 13, 2014.⁹⁹

[88] Both parties’ experts¹⁰⁰valued the land at $220,000 per acre as of November 13, 2014.¹⁰¹

The trial judge calculated damages for the forty-one acres that North Pacific would have received

after deducting Bethel United Church’s fourteen-acre retention from the fifty-five acres

represented in the land-sale agreement at $5,770,000, after deducting the balance of the

outstanding purchase price of $3,250,000.¹⁰²

[89] Had damages been calculated as of January 4, 2011 – when North Pacific was prepared to

waive the requirement that Bethel United Church transfer fifty-five acres if it reduced its fourteen-

acre retention by 5.21 acres to make up for the shortfall and expropriation¹⁰³– the difference in the

land’s value would have been $1,875,000¹⁰⁴based on the experts’ agreed-upon valuation of

$125,000 per acre at that time.¹⁰⁵

⁹⁸Id. ¶¶ 371-373 & 375.

⁹⁹Id. ¶ 408.

¹⁰⁰Id. ¶¶ 381, 382, 409 & 410. Expert Report of Ed Jackson (North Pacific) & Expert Report of Brian Gettel (Bethel

United). Appellant’s Extracts of Key Evidence 657 & 855.

¹⁰¹North Pacific Properties Ltd. v. Bethel United Church of Jesus Christ Apostolic of Edmonton, 2020 ABQB 791, ¶

409. The trial judge accepted North Pacific’s expert’s valuation and rejected Bethel United Church’s expert’s

arguments that soil conditions required a downward adjustment. Id. ¶¶ 389, 394 & 401-04.

¹⁰²Id. ¶ 410. $220,000 per acre × (55 acres represented as available − 14 acres Bethel retained) = $9,020,000 (land

value of 41 acres as at November 13, 2014). $9,020,000 − $3,250,000 (the unpaid balance of the purchase price for

land represented as 55 acres in the September 1, 2006 land-sale agreement) = $5,770,000.

¹⁰³Letter from Len Taschuk (North Pacific) to Michael Grange (Bethel United) dated January 4, 2011. Appellant’s

Extracts of Key Evidence 569. See also North Pacific Properties Ltd. v. Bethel United Church of Jesus Christ

Apostolic of Edmonton, 2020 ABQB 791, ¶¶ 91-93.

¹⁰⁴$125,000 per acre × (49.79 acres actually available – 8.79 acres that Bethel retained) = $5,125,000 (land value of

41 acres as at January 4, 2011). $5,125,000 − $3,250,000 (the unpaid balance of the purchase price for land represented

as 55 acres in the September 1, 2006 land-sale agreement) = $1,875,000.

¹⁰⁵Expert Report of Ed Jackson & Expert Report of Brian Gettel. Appellant’s Extracts of Key Evidence 666 & 888.

Both experts’ valuations at various point in time were aligned. On September 1, 2006, they put the land at $75,000

per acre; on January 4, 2011, at $125,000 per acre; on November 13, 2014 at $220,000 per acre, and on July 1, 2016,

at $190,000 per acre. Appellant’s Extracts of Key Evidence 666 & 886, 888, 890 & 891.

Page: 22

[90] Had damages been calculated as at the date of breach – when the land-sale agreement went

into effect – North Pacific suffered no damages given its own expert’s valuation at that time of

$15,000 less per acre than the pricing in the land-sale agreement.¹⁰⁶

3.

The Trial Judge Dismissed Bethel United Church’s Counterclaim

[91] Justice Loparco found no merit in Bethel United Church’s counterclaim and dismissed it.¹⁰⁷

With respect to the claim for damages for slander on title resulting from the purchaser’s caveat

and certificate of lis pendens,¹⁰⁸she held that North Pacific had a right to file to preserve its specific

performance claim.¹⁰⁹

G.

Bethel United Church Appeals

[92] On January 14, 2021 Bethel United Church filed a civil notice of appeal against the part of

the judgment granting North Pacific relief against Bethel United Church.¹¹⁰It did not appeal the

dismissal of its counterclaim.

[93] Bethel United Church raises three main grounds of appeal.¹¹¹

[94] First, it argues that Justice Loparco erred in finding that Bethel United Church promised to

sell to West Jasper Properties “not less than 55 acres” and that this was a fundamental contract

term. Bethel United Church asserts that the trial judge failed to consider the contractual definition

of “Property” with reference to the schedules that described the lands and made improper

inferences regarding its significance not supported by evidence from the subjective intentions of

the initial contracting party before assignment.

[95] Second, Bethel United Church maintains that specific performance was not available to

North Pacific – there was nothing unique about the lands aside from the efficiencies it would reap

in developing it together with the adjacent land, which could be compensated for in damages – so

¹⁰⁶North Pacific Properties Ltd. v. Bethel United Church of Jesus Christ Apostolic of Edmonton, 2020 ABQB 791 ¶

388.

¹⁰⁷Id. ¶¶ 411, 412, 413 & 417.

¹⁰⁸The caveat and certificate were vacated on consent by order filed December 11, 2014. Appeal Record 27. North

Pacific gave its consent when it abandoned its claim for specific performance on November 13, 2014. Id. ¶ 133 &

Letter from Robert Grant (North Pacific) to Matt Pruski (Bethel United Church) dated November 13, 2014. Appellant's

Extracts of Key Evidence 653.

¹⁰⁹North Pacific Properties Ltd. v. Bethel United Church of Jesus Christ Apostolic of Edmonton, 2020 ABQB 791, ¶

424.

¹¹⁰Appeal Record 96.

¹¹¹See Factum of the Appellant ¶ 30.

Page: 23

damages should have been calculated as at the time of breach, being the closing date in the land-

sale agreement. It also claims that North Pacific failed to mitigate – it could have entered into a

different purchase agreement with Bethel United Church and pursued a reduction in the sale price.

[96] Third, the appellant claims that Justice Loparco calculated damages incorrectly:¹¹²

If the lower Court did take the proper approach to calculating damages, she

neglected to consider all of the relevant factors and deductions. In particular:

a.

Pursuant to Article 11.4 of the Agreement, any amounts owed by …

[North Pacific] after the closing date accrue interest at the rate of ATB prime

+ 3%. The lower Court did not account for any interest that accrued on the

purchase price between January 4, 2011 and November 13, 2014 and did

not make any finding that the Church was not entitled to receive these

amounts. This interest would have been payable had specific performance

been awarded at the damages date and should have been calculated and

deducted from the value of the Church Lands; and

b.

Had specific performance been awarded on November 13, 2014 and

the Agreement been performed, [North Pacific] … would have been

required to incur costs relating to the ownership and maintenance of the

Church Lands, including property taxes and financing costs, up to the date

of trial. [North Pacific] … receives a windfall if these amounts are not

deducted from the damages award.

[97] Bethel United Church also reiterates its position that the inconsistencies in defining

“Property” rendered the agreement void for uncertainty or the agreement ended on its own terms

when North Pacific did not pay the purchase price at closing.

VI.

Analysis

A.

Justice Loparco’s Determination that Bethel United Church Promised To

Convey Not Less than Fifty-Five Acres to the Purchaser Is Correct

1. Governing Contract Interpretation Principles

¹¹²Id. ¶ 94 (footnotes omitted).

Page: 24

[98] A contract is the product of decisions made by more than one actor.¹¹³It is not, like a will,¹¹⁴

a unilateral act.

[99] This fundamental difference explains why “[t]he sense of the testator is ... the ultimate

criterion of interpretation”.¹¹⁵What did the testator mean? This is a subjective orientation.¹¹⁶It

would be inappropriate to adopt any other perspective.

[100] But an objective focus is adopted in interpreting a contract to give meaning to text the

product of the consensus of two or more actors.

[101] Professor Waddams, one of Canada’s preeminent contract scholars, opined that “[t]he

principal function of the law of contracts is to protect reasonable expectations engendered by

promises”.¹¹⁷This is an objective assessment. Justice Scalia and Professor Garner, in Reading Law:

The Interpretation of Legal Texts, assert that “[o]bjective meaning is what we are after”.¹¹⁸“In

short, a court must ask what a reasonable person familiar with the context that produced this

¹¹³9 J. Wigmore, Evidence in Trials at Common Law 229-31 (J. Chadbourn rev. 1981).

¹¹⁴Id.

¹¹⁵Id.

¹¹⁶Re Lubberts Estate, 2014 ABCA 216, ¶ 56; [2014] 10 W.W.R. 41, 66 per Wakeling, J.A. (“Ascertaining the

testator’s intention is a subjective undertaking”) & Smith v. Bell, 31 U.S. 68, 84 (1832) per Marshall, C.J. (“the

intention of the testator [is] the polar star ... in the construction of wills”).

¹¹⁷S. Waddams, The Law of Contracts 97 (8th ed. 2022). See Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC

53, ¶¶ 58 & 60; [2014] 2 S.C.R. 633, 661-62 (“[an adjudicator may consider] objective evidence of the background

facts at the time of the execution of the contract ... that is, knowledge that was or reasonably ought to have been within

the knowledge of both parties at or before the date of contracting. .... Such evidence ... is used as an interpretive aid

for determining the meaning of the written words chosen by the parties, not to change or overrule the meaning of those

words”); Reardon Smith Line Ltd. v. Yngvar Hansen-Tangen, [1976] 1 W.L.R. 989, 995-96 (H.L.) per Lord

Wilberforce (“In a commercial contract ... the court should know the commercial purpose of the contract and this in

turn presupposes knowledge of the genesis of the transaction, the background, the context, the market in which the

parties are operating”) & Sealy (Western) Ltd. v. Upholsterers’ Int’l Union, Local 34, 20 L.A.C. 3d 45, 48 (Wakeling

1985) (“The parties … expect [an adjudicator] to be familiar with the entire contents of the … [collective] agreement

and the realities of the work place”).

¹¹⁸A. Scalia & B. Garner, The Interpretation of Legal Texts 30 (2012). See also G. Hall, Canadian Contractual

Interpretation Law 50 (3d ed. 2016) (“It is a fundamental precept of the law of contractual interpretation that the

exercise is objective rather than subjective”) & J. McCamus, The Law of Contracts 802 (3rd ed. 2020) (“Inescapably,

... the process of construction or interpretation of agreements must have an objective component, enabling the

interpreter to attribute meaning to the agreement even in the absence of ‘true intentions.’”).

Page: 25

agreement – in a commercial case, a reasonable business person – would conclude the contested

term means”.¹¹⁹

[102] The objective interpretation model makes good sense. Adoption of a subjective

interpretative tool would promote uncertainty and unpredictability.¹²⁰The likelihood that multiple

actors with different needs and different representatives would attach conflicting interpretations to

abstract text is not insignificant.¹²¹

122

[103] The Supreme Court of Canada in Sattva Capital Corp. v. Creston Moly Corp.

unambiguously declared that “the goal of ... [contract interpretation] is to ascertain the objective

¹¹⁹Harco Enterprises Ltd. v. Knelsen Sand and Gravel Ltd., 2021 ABCA 385, ¶ 126. See Mount Bruce Mining Pty

Ltd. v. Wright Prospecting Pty Ltd., [2015] HCA 37, ¶ 47; 256 C.L.R. 104, 116 per French, C.J. & Nettle & Gordon,

JJ. (“In determining the meaning of the terms of a commercial contract, it is necessary to ask what a reasonable

businessperson would have understood those terms to mean”) & Rainy Sky SA v. Kookmin Bank, [2011] UKSC 50, ¶

21; [2012] 1 All E.R. 1137, 1146 per Lord Clarke (“the court must consider the language used and ascertain what a

reasonable person, that is a person who has all the background knowledge which would reasonably have been available

to the parties in the situation in which they were at the time of the contract, would have understood the parties to have

meant”).

¹²⁰Unifor, Local 707A v. SMS Equipment Inc., 2017 ABCA 81, ¶¶ 69 & 71; 47 Alta. L.R. 6th 28, 50 & 51 per

Wakeling, J.A. (“In short, while a subjective interpretation must be the orientation for an adjudicator tasked with

interpreting a unilateral declaration, an objective analysis must be the medium through which meaning is attached to

a contract. .... Any other standard would introduce uncertainty and unpredictability. While it is understandable that

the parties to a bilateral or multilateral agreement might adopt inconsistent interpretations of an abstract provision,

based on their unique perspectives shaped by their assessment of the negotiations and their distinct precontractual

experiences, the law cannot legitimize unique perspectives unless validated by an objective assessment that declares

the promisor’s or the promisee’s expectations reasonable”).

¹²¹J. McCamus, The Law of Contracts 802 (3rd ed. 2020) (“the parties might have quite different intentions at the

time of contracting, with respect to the meaning or significance of various aspects of their arrangements”) & L/3

Communications/Spar Aerospace Ltd. v. International Assoc. of Machinists and Aerospace Workers, 127 L.A.C. 225,

247-48 (Wakeling Q.C. 2004) (“A review of collective agreements shows that there are some important subjects which

are regularly dealt with at a very abstract level and that some predictable fact patterns are not resolved. Discipline is

a good example. Thousands of arbitral awards document the forms of alleged misconduct which have been presented

to arbitrators. These cases would lead prudent negotiators to conclude that some employees may fail to report for work

without a reasonable explanation, leave work early, report for work late, work in an incompetent manner ... or act in

a disrespectful manner. Yet very few collective agreements specifically state that the employer may terminate an

employee who engages in misconduct of these forms. Why? The parties invariably agree that an employer may

terminate the employment relationship for cause and accept this abstract standard as sufficient because they know that

the arbitration process will provide a case-by-case determination they are prepared to abide by. They decline to provide

more detailed rules either because they cannot agree on the outcome of particular issues or they are not satisfied that

a consensus on a less abstract set of rules is of sufficient importance to warrant devoting the necessary time to the

task”).

¹²²Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, ¶ 49; [2014] 2 S.C.R. 633, 658 per Rothstein, J.

(emphasis added). See G. Hall, Canadian Contractual Interpretation Law 58-59 (4th ed. 2020) (“Since interpretation

Page: 26

of the words of a contract is objective, meaning must therefore be assessed from the perspective of a reasonable

person”).

Page: 27

intent of the parties”. So do all the other leading common law jurisdictions – the United States,¹²³

England,¹²⁴Australia,¹²⁵New Zealand,¹²⁶and Hong Kong.¹²⁷

¹²³De Sloovère, “Textual Interpretation of Statutes” 11 N.Y.U.L.Q. Rev. 538, 541 (1934) (“the demand for certainty

and predictability requires an objective basis for interpretation which can be attained only (1) by a faithful reliance

upon the natural or reasonable meaning of the language; (2) by choosing always a meaning that the text will sensibly

bear by the fair use of language; and (3) by employing a thoroughly worked out by rational method for choosing

among the several possible meanings”).

¹²⁴Wood v. Capita Ins. Services Ltd., 2017 UKSC 24, ¶ 10; [2017] A.C. 1173, 1179 per Lord Hodge (“The court’s

task is to ascertain the objective meaning of the language which the parties have chosen to express their agreement. It

has long been accepted that this is not a literalist exercise focused solely on a parsing of the wording of the particular

clause but that the court must consider the contract as a whole and, depending on the nature, formality and quality of

drafting of the contract, give more or less weight to elements of the wider context in reaching its view as to that

objective meaning”) & Rickman v. Carstairs, 110 Eng. Rep. 931, 935 (K.B. 1833) per Denman, C.J. (“in ... cases of

construction of written instruments [the question], is not what was the intention of the parties, but what is the meaning

of the words they have used”).

¹²⁵Mount Bruce Mining Pty Ltd. v. Wright Prospecting Pty Ltd., [2015] HCA 37, ¶¶ 46 & 47; 256 C.L.R. 104, 116

per French, C.J. & Nettle & Gordon, JJ. (“The rights and liabilities of parties under … a contract are determined

objectively, by reference to its text, context (the entire text of the contract …) and purpose. In determining the meaning

of the terms of a commercial contract, it is necessary to ask what a reasonable businessperson would have understood

those terms to mean”) & Toll (FGCT) Pty Ltd. v. Alphapharm Pty Ltd., [2004] HCA 52, ¶ 40; 219 C.L.R. 165, 176

per Gleeson, C.J. & Gummow, Hayne, Callinan & Heydon, JJ. (“What matters is what each party by words and

conduct would have led a reasonable person in the position of the other party to believe”).

¹²⁶Firm PI 1 Ltd. v. Zurich Australian Ins. Ltd., 2014 NZSC 147, ¶ 60; [2015] 1 N.Z.L.R. 432, 453 per McGrath,

Glazebrook & Arnold, JJ. (“the proper approach [to contractual interpretation] is an objective one, the aim being to

ascertain ‘the meaning which the document would convey to a reasonable person having all the background knowledge

which would reasonably have been available to the parties in the situation in which they were at the time of the

contract’”) & Bathurst Resources Ltd. v. L & M Coal Holdings Ltd., [2021] NZSC 85, ¶ 46; [2021] 1 NZLR 696, 718-

19 (“The objective approach in Firm PI is one grounded in the policy objectives …: the desirability of providing the

certainty needed to facilitate the efficient conduct of commerce; of holding people to the bargains they make; and of

supporting access to justice through the efficient and just conduct of proceedings. Giving primacy to the written words

of the agreement accords with the policy of providing commercial certainty. It also recognises that since the written

contract contains the words the parties chose to record their agreement, the language used to do so has to be important.

But by allowing a contextual reading of those words, the Firm PI approach recognises both that words have to be read

in context and that the promotion of commercial certainty should not be allowed to defeat what the parties actually

meant by the words in which they recorded their agreement. The objective approach to this contextual assessment is

a legal construct designed as the best way of reliably determining the true agreement as recorded in the words of the

contract. It rejects the parties’ subjective evidence of intent as irrelevant to what both parties meant and as generally

unreliable. Rather, the court (embodying the reasonable person) assesses the evidence reasonably available to both (or

all) of the parties at the point of contract which could bear upon the meaning of those words. Overall, this is a test

which best supports the aim of the efficient and just conduct of proceedings”).

¹²⁷Jumbo King Ltd. v. Faithful Properties Ltd., [1999] HKCFA 38, ¶ 59; [1999] 2 H.K.C.F.A.R. 279, 296 per Lord

Hoffman, N.P.J. (“The construction of a document ... is an attempt to discover what a reasonable person would have

understood the parties to mean”).

Page: 28

[104] A tribunal must read the instrument in its entirety and ascertain the purpose that accounts

for its existence.¹²⁸

[105] Words in legal text – a statute or a contract – “must not be given meanings ... [the words]

cannot possibly bear”.¹²⁹

[106] An adjudicator must determine if the text, taking into account the entire instrument, bears

more than one plausible meaning – one that “a reasonable reader who uses the language correctly

would give the text at the time of its production”.¹³⁰

[107] If there is only one plausible meaning, the interpretive inquiry is over.¹³¹

[108] Suppose a collective agreement stipulates that the employer may not allow an employee to

enter the workplace and commence work before 6:00 a.m. Some workers want to start early so that

they can go golfing in the early afternoon. The employer agrees to open the doors at 5:30 a.m. to

accommodate the early bird golfers. The union grieves. An arbitrator must conclude that the

employer has violated the collective agreement. The collective agreement compels the employer

128

Burton v. Fitzgerald, 104 Eng. Rep. 944, 948 (K.B. 1812) per Lord Ellenborough, C.J. (“It is a true rule of

construction that ... every part of [an instrument] ... may be brought into action in order to collect from the whole one

uniform and consistent sense, if that may be done”) & G. Hall, Canadian Contractual Interpretation Law 11 (4^thed.

2020) (“the context of the document … is important because words are never used in isolation. As a result,

interpretation of a word or group of words must have regard for the way language is used in the document as a whole.

… [C]ontracts must be read as a whole with meaning given to all provisions”). See Sealy (Western) Ltd. v.

Upholsterers’ Int’l Union of North America, Local 34, 20 L.A.C. 3d 45, 50 (Wakeling 1985) (“we will review the

entire … [collective agreement] in order to gain some insight into the reasons why the parties utilized singular or

plural forms. We are anxious to determine with what care the document has been drafted. Have the parties followed

any particular pattern with respect to the use of the singular or plural forms? Our search suggests that they have not.

Frequently, the singular form has been used when the plural would be more appropriate. And on occasion the plural

has been used when the singular would have been the better choice”).

¹²⁹Zuk v. Alberta Dental Ass’n and College, 2018 ABCA 270, ¶ 159; 426 D.L.R. 4th 496, 539, leave to appeal ref’d,

[2018] S.C.C.A. No. 439. See A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 31 (2012) (“A

fundamental rule of textual interpretation is that neither a word nor a sentence may be given a meaning that it cannot

bear”) & H. Hart & A. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 1375 (1994)

(“a court ought never to give the words of a statute a meaning they will not bear”).

¹³⁰Alexis v. Alberta, 2020 ABCA 188, ¶ 47; 8 Alta. L.R. 7th 314, 336, leave to appeal ref’d, [2020] S.C.C.A. No. 227

per Wakeling & Greckol, JJ.A.

¹³¹Unifor, Local 707A v. SMS Equipment Inc., 2017 ABCA 81, ¶ 82; 47 Alta. L.R. 6th 28, 56 per Wakeling, J.A. (“If

this endeavor produces only one ... [plausible] meaning the interpretation process comes to an end”). The same

principle applies to statutory interpretation. Thomson v. Canada, [1992] 1 S.C.R. 385, 399 per Cory, J. (“when the

words used in the statute are clear and unambiguous, no other step is needed to identify the intention of Parliament”)

& Alexis v. Alberta, 2020 ABCA 188, ¶ 49; 8 Alta. L.R. 7th 314, 337, leave to appeal ref’d, [2020] S.C.C.A. No. 227

per Wakeling & Greckol, JJ.A. (“If the statutory text supports only one plausible or permissible meaning, the inquiry

is complete. In this scenario there is no need to take into account the enactment’s purpose”).

Page: 29

to refuse an employee entrance into its workplace before 6:00 a.m. Plain and simple. No need to

be asking why such a contract provision exists.¹³²

[109] If there are multiple plausible meanings, an adjudicator must then determine which “best

advances the purpose that accounts for the text”.¹³³

[110] Suppose a collective agreement stipulates that the employer, a railway, must equip all

railway cars with defibrillators. The railway took the position that a locomotive was not a railway

car and refused to place defibrillators in locomotives. The union grieves. Both sides have an

argument. A railway car could plausibly mean rolling stock that does not supply power¹³⁴or all

stock that rolls on rails.¹³⁵An arbitrator would probably side with the union and select the option

that best advances the safety objects of the provision.¹³⁶

[111] Adherence to these propositions promotes certainty – a fundamental value in the

commercial community.¹³⁷

[112] Justice Rothstein recorded the key elements of the contract-interpretation methodology

currently in force in Canada:¹³⁸

[A] decision-maker must read the contract as a whole, giving the words used their

ordinary and grammatical meaning, consistent with the surrounding circumstances

¹³²One of us dealt with such a provision as a labor arbitrator.

¹³³Humphreys v. Trebilcock, 2017 ABCA 116, ¶ 109; [2017] 7 W.W.R. 343, 375-76, leave to appeal ref’d, [2017]

S.C.C.A. No. 228. See Consolidated-Bathurst Export Ltd. v. Mutual Boiler & Machinery Ins. Co., [1980] 1 S.C.R.

888, 901 (1979) per Estey, J. (“an interpretation which defeats the intentions of the parties and their objective in

entering into the commercial transaction in the first place should be discarded in favour of an interpretation of the

policy which promotes a sensible commercial result”); Rainy Sky SA v. Kookmin Bank, [2011] UKSC 50, ¶ 21; [2012]

1 All E.R. 1137, 1146 per Lord Clarke (“If there are two possible constructions, the court is entitled to prefer the

construction which is consistent with business common sense and to reject the other”) & A. Scalia & B. Garner,

Reading Law: The Interpretation of Legal Texts 63 (2012) (“A textually permissible interpretation that furthers rather

than obstructs the document’s purpose should be favored”).

¹³⁴The American Heritage Dictionary of the English Language 1030 (2016) (“[locomotive] ... n. 1. A self-propelled

vehicle, usually electric or diesel powered, for pulling or pushing freight or passenger cars on railroad tracks”).

¹³⁵Id. 278 (“car ... n. ... 2. A vehicle, such as a streetcar, that runs on rails: a railroad car”).

¹³⁶See Johnson v. Southern Pacific Co., 196 U.S. 1, 14-15 (1904) (the Court interpreted “any car” in railway safety

legislation to include locomotives in order to promote safe working conditions for railway workers).

¹³⁷Chartbrook Ltd. v. Persimmon Homes Ltd., [2009] UKHL 38, ¶ 37; [2009] A.C. 1101, 1118 per Lord Hoffmann

(“the law of contract is an institution designed to enforce promises with a high degree of predictability and that the

more one allows conventional meanings or syntax to be displaced by inferences drawn from background, the less

predictable the outcome is likely to be”).

¹³⁸Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, ¶¶ 47-48; [2014] 2 S.C.R. 633, 657-58.

Page: 30

known to the parties at the time of formation of the contract. Consideration of the

surrounding circumstances recognizes that ascertaining contractual intention can be

difficult when looking at words on their own, because words alone do not have an

immutable or absolute meaning … .

The meaning of words is often derived from a number of contextual factors,

including the purpose of the agreement and the nature of the relationship created

by the agreement … .

2.

Application of the Governing Contract Interpretation Principles

[113] We can find no fault¹³⁹in Justice Loparco’s conclusion that the text of the land-sale

agreement unequivocally states that Bethel United Church promised to sell West Jasper Properties

a described parcel of land that contained fifty-five or more acres.¹⁴⁰

[114] The text of the land-sale agreement allows no other interpretation.

[115] First, Bethel United Church offered “to sell, assign and transfer all rights, title and interest

in the Property free and clear to the Purchaser”. “Property” is a defined term. It is a very important

provision. Both parties would or should have understood this. Section 1.1(g) of the agreement

states that “‘Property’ ... [is] collectively, those lands outlined in black in Schedule ‘A’ and which

are legally described as set out in Schedule ‘B’ ... which contains not less than 55 acres, located

within the City of Edmonton”.¹⁴¹

[116] Suppose H wanted to take his wife to an upcoming Rolling Stones concert to celebrate their

tenth wedding anniversary. The concert was sold out. But H knew that B, a coworker, had two

tickets. H asked B what it would take for B to sell H his tickets. B responded, “not less than

¹³⁹The standard of review for contract interpretation, absent an extricable question of law, is palpable and overriding

error. Was the original court’s interpretation of the text clearly wrong? Sattva Capital Corp. v. Creston Moly Corp.,

2014 SCC 53, ¶¶ 50, 53 & 54; [2014] 2 S.C.R. 633, 658-60 per Rothstein, J. (“Contractual interpretation involves

issues of mixed fact and law as it is an exercise in which the principles of contractual interpretation are applied to the

words of the written contract, considered in light of the factual matrix. …. [I]t may be possible to identify an extricable

question of law from within what was initially characterized as a question of mixed fact and law … . … However,

courts should be cautious in identifying extricable questions of law in disputes over contractual interpretation”) &

Housen v. Nikolaisen, 2002 SCC 33, ¶ 36; [2002] 2 S.C.R. 235, 262 per Iacobucci & Major, JJ. (“Where the legal

principle is not readily extricable, then the matter is one of ‘mixed law and fact’ and is subject to a more stringent

standard. The general rule … is that, where the issue on appeal involves the trial judge’s interpretation of the evidence

as a whole, it should not be overturned absent palpable and overriding error”). Needless to say, a judgment that is

correct is not clearly wrong.

¹⁴⁰See North Pacific Properties Ltd. v. Bethel United Church of Jesus Christ Apostolic of Edmonton, 2020 ABQB

791, ¶¶ 192-194, 203 & 215.

¹⁴¹Appellant’s Extracts of Key Evidence 5 (emphasis added).

Page: 31

$3,000”. H would reasonably conclude that B would not accept an offer of $2,000 and that the

likelihood B would sell H the Rolling Stones tickets would increase if H offered B $3,500 for B’s

tickets as opposed to $3,000. H did just that and B sold H his Rolling Stone tickets.

[117] The plain and ordinary meaning of “not less than 55 acres” is not in doubt.

[118] Second, the size of the parcel of land was important to West Jasper Properties.¹⁴²This is,

in part, because West Jasper Properties promised “to provide Bethel with a net fourteen ... acre

parcel of land in the location attached ... as Schedule ‘D’ for the sum of $1.00 + GST”. West Jasper

Properties would need to know the size of the parcel it would have for its own use after it

discharged its promise and provided Bethel United Church with a fourteen-acre parcel. No prudent

purchaser planning to use the land for a residential development would not consider the size of the

property a vital consideration.¹⁴³

[119] Third, nothing in the other segments of the land-sale agreement remotely supports the

argument that the plain and obvious meaning of section 1.1(g) must be modified. Given the fact

that Schedule ‘B’ provided the legal description of the land, it is obvious that the words “not less

than 55 acres” was not needed to identify the land being sold. The words were there for a different

purpose – the acreage was a critical factor to the purchaser.

[120] Fourth, there is nothing in Schedule ‘B’, the document that sets out the legal descriptions

of the land being sold, that brings into question the accuracy of the statement in the definition of

“Property” of “not less than 55 acres”. Justice Loparco directly addresses this point:¹⁴⁴

Moreover, Schedule B attaching the legal descriptions to the Land Agreement does

not, in my view, obviously set out the acres being purchased; one must know how

to read legal descriptions and be able to piece together the information, some of

which is missing. Mr. Jackson testified that the legal descriptions are not easy to

decipher as they provide a mix … [of] hectares and acres, which need conversion.

¹⁴²North Pacific Properties Ltd. v. Bethel United Church of Jesus Christ Apostolic of Edmonton, 2020 ABQB 791,

¶¶ 196 & 197 (“At trial, Mr. Grange was shown his own email that attached a proposal made by Mr. Gibson with a

reference to receiving a net 41 acres. He admitted that West Jasper understood that the Bethel Lands consisted of not

less than 55 acres and that it would receive a net 41 acres. ... I infer that the calculation of land size was critical to the

determination of the price”).

¹⁴³See Rainy Sky SA v. Kookmin Bank, [2011] UKSC 50, ¶ 21; [2012] 1 All E.R. 1137, 1146 per Lord Clarke (“If

there are two possible constructions, the court is entitled to prefer the construction which is consistent with business

common sense and to reject the other”).

¹⁴⁴North Pacific Properties Ltd. v. Bethel United Church of Jesus Christ Apostolic of Edmonton, 2020 ABQB 791, ¶

212.

Page: 32

[121] There is no doubt that a reasonable business person familiar with the facts leading up to

the execution of the land-sale agreement would conclude that Bethel United Church promised to

sell a parcel of land that contained at least fifty-five acres. There is no other plausible meaning.

And while this finding precludes the need to consider the purpose of the transaction, it is

completely consistent with the business purpose underlying this land-sale agreement.

[122] The focus on objective considerations explains why the understanding of Bethel United

Church’s representative that the vendor never intended to promise that the land it sold to West

Jasper Properties was not less than fifty-five acres is irrelevant.¹⁴⁵This proposition recognizes that

third parties – shareholders and assignees, for example – may rely on the text of a contract when

making important commercial decisions.

B.

Justice Loparco Correctly Held that Bethel United Church’s Breach

Constituted a Substantial Failure of Performance

1.

Governing Principles Identifying Significance of a Performance Deficit

[123] Not all a promisor’s breaches of a promise made in a contract are of sufficient importance

to justify a promisee declining to discharge its obligations under the contract. Some breaches are

of such a minor nature as not to relieve a promisee of the burden of its promises. A promisee must

honor its commitments and sue the promissor for damages.

[124] Suppose V promises to convey V’s mansion on a two-acre property to P on a certain date

for $5,000,000. V also promises to remove a twelve-foot pole that is set in concrete to which is

attached a basketball backboard and net. V discharges all V’s obligations but one – V fails to

remove the basketball equipment. V’s failure to spend $5,000 to have the basketball fixture

removed does not relieve P of the obligation to pay V $5,000,000 as P promised under the home-

sale agreement. V’s performance deficit is too minor to relieve P of P’s obligations to pay V

¹⁴⁵Rickman v. Carstairs, 110 Eng. Rep. 931, 935 (K.B. 1833) per Denman, C.J. (“in ... cases of construction of written

instruments [the question], is not what was the intention of the parties, but what is the meaning of the words they have

used”); Bank of Credit and Commerce Int’l S.A. v. Ali, [2001] UKHL 8, ¶ 8; [2002] 1 A.C. 251, 259 (H.L.) per Lord

Bingham (“the court does not ... inquire into the parties’ subjective states of mind but makes an objective judgment

based on the materials already identified”) & Arnold v. Britton, 2015 UKSC 36, ¶ 15; [2015] A.C. 1619, 1627-28 per

Lord Neuberger (“When interpreting a written contract, the court is concerned to identify the intention of the parties

by reference to ‘what a reasonable person having all the background knowledge which would have been available to

the parties would have understood them to be using the language in the contract to mean’... . And it does so by

focussing on the meaning of the relevant words, in this case clause 3(2) of each of the 25 leases, in their documentary,

factual and commercial context. That meaning has to be assessed in the light of (i) the natural and ordinary meaning

of the clause, (ii) any other relevant provisions of the lease, (iii) the overall purpose of the clause and the lease, (iv)

the facts and circumstances known or assumed by the parties at the time that the document was executed, and (v)

commercial common sense, but (vi) disregarding subjective evidence of any party’s intentions”) (emphasis added).

See G. Hall, Canadian Contractual Interpretation Law 59 (4th ed. 2020) (“There is an obvious but profound implication

to the requirement that the words of a contract must be interpreted objectively: the parties’ subjective intentions are

irrelevant, and evidence of them is inadmissible”) (emphasis added).

Page: 33

$5,000,000 if V discharges its other promises. P must sue V for damages if P wishes to recover

the cost of removing the basketball equipment.

[125] The result would be different if V had failed to remove, as promised, a large underground

concrete swimming pool and related apparatus that occupied one-half acre and landscape the old

pool area in the manner set out in attached architectural drawings. This is a $750,000 project. For

some, a home with a pool is a liability and not an asset. V’s unfulfilled promise constitutes a

substantial failure of performance.

[126] A court must assess the significance of the promisor’s performance deficit taking into

account the nature of the agreement, the importance of the other promises that the promisor has

discharged, the reasonable expectations of the parties, and the impact of the performance deficit

on the promisee. Only if the court concludes that the promisor’s performance deficit is substantial

will the promisee have the option to treat the promisor’s performance deficit as a substantial breach

justifying the promisee’s refusal to discharge the promisee’s end of the bargain. If the performance

deficit is not of this magnitude, the promisee must discharge its obligations under the contract and

sue the promisor for the deficiencies.

2.

Application of Governing Principles

[127] We are also not in doubt about the correctness¹⁴⁶of Justice Loparco’s characterization of

the “not less than 55 acres” provision as a term the breach of which constitutes substantial failure

of performance and relieved the purchaser of the obligation to pay the agreed upon purchase

price:¹⁴⁷“I conclude that the Land Agreement, which was prepared and reviewed by competent

legal counsel, intended that the 7 words ‘which contains not less than 55 acres’ form a fundamental

term. This was not a term that was buried; it was front and centre in the description of Property”.

[128] Bethel United Church’s breach was anything but trivial. It is clearly a substantial

performance deficit. Both Bethel United Church and West Jasper Properties needed parcels of

specific minimum sizes to justify their decisions to enter into the land-sale agreement. West Jasper

Properties owned adjoining property and was contemplating a residential development that

consisted of both the Bethel United Church land and the adjoining property it already owned. Both

sides would have understood that the land-sale agreement was part of a commercial transaction.

¹⁴⁶This is a question of mixed fact and law. An appeal court may set aside this determination only if it is clearly

wrong. Justice Loparco was not clearly wrong on this point.

¹⁴⁷North Pacific Properties Ltd. v. Bethel United Church of Jesus Christ Apostolic of Edmonton, 2020 ABQB 791, ¶

194. See S. Waddams, The Law of Contracts 419-20 (8th ed. 2022) (“A variety of expressions has been used to define

the sort of term that, if broken by one party, will excuse the other. ... ‘[B]reach going to the root of the contract’, ...

‘repudiation’, ... ‘breach of an entire contract’ are among the expressions used. Behind them all, it is suggested, lies a

single notion – that of substantial failure of performance”).

Page: 34

The failure of Bethel United Church to convey land with at least fifty-five acres adversely affected

the purchaser in a significant manner.

C.

Justice Loparco Correctly Held that the Bethel United Church Land Was

Unique

1.

Governing Principles on the Uniqueness Concept

[129] Justice Sopinka, in Semelhago v. Paramadevan,¹⁴⁸declared that “[s]pecific performance

should ... not be granted as a matter of course absent evidence that the property is unique to the

extent that its substitute would not be readily available”.

[130] The party alleging that property is unique bears the burden of proof.¹⁴⁹

[131] A court determining whether property is unique must apply the legal standard – a substitute

is not readily available – against the facts. The promisee claiming specific performance will want

to prove the use to which the property the promisee sought to acquire will be put and the

nonexistence of other property that will serve the same purpose. “Uniqueness is ... a factual inquiry

made by the court on a case-by-case basis”.¹⁵⁰

2.

Application of the Governing Principles

[132] Justice Loparco correctly¹⁵¹held that North Pacific proved that the Bethel United Church

land was unique. She could not have come to any other rational conclusion.

[133] West Jasper Properties’ and North Pacific’s later ownership of the adjoining lands meant

that the acquisition of the Bethel United Church lands would allow either developer to construct

its residential development at a lower cost per acre:¹⁵²

¹⁴⁸[1996] 2 S.C.R. 415, 429.

¹⁴⁹Id. See S. Waddams, The Law of Contracts 484 (8th ed. 2022) (“the buyer [must] ... demonstrate that the land was

unique and that damages were an inadequate remedy”) & Lavoie, “Canada’s ‘Unique’ Approach to Specific

Performance in Contracts for the Sale of Land: Some Theoretical and Practical Insights”, 12 Oxford U. Commw. L.

J. 207, 208 (2012) (“In placing the burden of proving uniqueness on the purchaser seeking specific performance in

contracts for the sale of land, common law Canada may have staked out a position that sets it apart from every other

jurisdiction in the Western world”).

¹⁵⁰Lavoie, “Canada’s ‘Unique’ Approach to Specific Performance in Contracts for the Sale of Land: Some Theoretical

and Practical Insights”, 12 Oxford U. Commw. L. J. 207, 210 (2012).

¹⁵¹This is a question of mixed fact and law. An appeal court may set aside this decision only if it was clearly wrong.

Our determination that she answered the question correctly obviously means that she was not clearly wrong.

¹⁵²2020 ABQB 791, ¶ 305.

Page: 35

There were economies of scale that could be achieved by the plan to develop the

Prodor and Bethel Lands together as part of the Stewart Greens residential

development. If they were not adjacent, overhead and input costs could not be

easily shared, zoning efficiencies could not be achieved, and scheduling work crews

is less efficient, resulting in downward pressure on profit margins.

[134] There was no other proximate forty-one-acre parcel for sale that would serve the same

purpose as the Bethel United Church land.¹⁵³

[135] This was the case for a considerable period preceding November 13, 2014, the date North

Pacific sold the property adjoining the Bethel United Church land and abandoned its claim for

specific performance.

D.

Justice Loparco’s Holding that North Pacific Was Entitled to Damages

Assessed as of the Date It Abandoned Its Claim for Specific Performance Was

Correct

1.

Governing Principles Regarding the Date Damages Are Assessed

[136] A promisee that abandons a valid claim for specific performance after commencing a civil

action is entitled to have its alternate damages claim assessed as of the date of abandonment.¹⁵⁴

This remedy puts the promisee in roughly the same position the promisee would have been in had

the promisor discharged the promise that the promisee asks the court to enforce.¹⁵⁵Obviously, a

promisee that benefits from a specific performance order will take possession of the land much

later than it would have if the promisor discharged its promise on the performance date.

[137] Justice Sopinka explained in Semelhago v. Paramadevan¹⁵⁶why the damage calculation

takes place as of the date the promisee abandons the claim for specific performance.

¹⁵³Id., ¶ 306 (“Mr. Burek further explained … that he had explored alternate adjacent lands and that none could be

used as a substitute for the Bethel Lands”).

¹⁵⁴Semelhago v. Paramadevan, [1996] 2 S.C.R. 415, 429; Wroth v. Tyler, [1974] Ch. 30 (Ch. 1973) (the Court

awarded the plaintiffs damages, their alternative claim to specific performance, calculated as of the date of trial, not

the date of failed performance) & Johnson v. Agnew, [1980] A.C. 367, 401 (H.L. 1979) per Lord Wilberforce (“In

cases where a breach of a contract for sale has occurred, and the innocent party reasonably continues to try to have

the contract completed, it would to me appear more logical and just rather than tie him to the date of the original

breach, to assess damages as at the date when (otherwise than by his default) the contract is lost”).

¹⁵⁵Fidler v. Sun Life Assurance Co. of Canada, 2006 SCC 30, ¶ 44; [2006] 2 S.C.R. 3, 19 per McLachlin, C.J. &

Abella, J. (“The aim of compensatory damages is to restore the wronged party to the position he or she would have

been in had the contract not been broken”).

¹⁵⁶[1996] 2 S.C.R. 415, 425-28.

Page: 36

[138] First, a promisee that has not received unique property the promisor promised to deliver to

the promisee may ask a court either to compel the promisor to discharge the promise made¹⁵⁷–

deliver the unique property to the promisee – or compel the promisor to pay the promisee a sum

of money as a substitute for the nonperformance of the promisor’s promise or both.¹⁵⁸

[139] Second, a promisee that has asked for specific relief – enforcement of the promise the

promisor made – or, in the alternative, substitute relief – a damage award – may, on notice to the

promisor, abandon its claim for specific relief.¹⁵⁹

[140] Third, a promisee that asks for specific performance has not accepted the promisor’s

repudiation of the contract and, instead, insists that the promisor honor its obligation to transfer

the unique property, the subject of its promise.¹⁶⁰This means that the contract remains in force and

the promisor may subsequently transfer ownership of the unique property to the promisee and

discharge its promise to the promisee.¹⁶¹“[A] claim for specific performance has the effect of

postponing the date of breach”.¹⁶²

¹⁵⁷S. Waddams, “The Date for the Assessment of Damages”, 97 Law Q. Rev. 445, 452 (1981) (“Specific Performance

is available, in theory, only when damages are inadequate, i.e. where no market exists for the plaintiff reasonably to

obtain a substitute”). In civil law jurisdictions specific relief is generally available for breach of contract. See Dawson,

“Specific Performance in France and Germany”, 57 Mich. L. Rev. 495, 524 (1959) (“So what is the French law of

specific performance? As to one class of promises–to transfer land or goods that can be reached by a bailiff–specific

relief is available, it seems, to any promisee who wants it if rights of third parties have not intervened. This is a large

percentage of the potentially enforceable promises”). Not so in common law jurisdictions. E. Farnsworth, Contracts

739 (4th ed. 2004) (“The common law courts did not generally grant specific relief for breach of contract. The usual

form of relief at common law was substitutional, and the typical judgment declared that the plaintiff recover from the

defendant a sum of money”).

158

Semelhago v. Paramadevan, [1996] 2 S.C.R. 415, 423 per Sopinka, J. (“A party who is entitled to specific

performance is entitled to elect damages in lieu thereof”); Johnson v. Agnew, [1980] A.C. 367, 392 (H.L. 1979) per

Lord Wilberforce (“in a contract for the sale of land ... if the ... [vendor] fails to complete, the ... [purchaser] can either

treat the ... [vendor] as having repudiated the contract, accept the repudiation, and proceed to claim damages for breach

of the contract, both parties being discharged from further performance of the contract; or he may seek from the court

an order for specific performance”) (emphasis in original) & McKenna v. Richey, [1950] V.L.R. 360, 372 (Sup. Ct.)

per O’Bryan, J. (“The apparent inconsistency of a plaintiff suing for specific performance and for common law

damages in the alternative arises from the fact that, in order to avoid circuitry of action, there is vested in the one Court

jurisdiction to grant either form of relief”).

¹⁵⁹Semelhago v. Paramadevan, [1996] 2 S.C.R. 415, 423. See Johnson v. Agnew, [1980] A.C. 367, 392 (H.L. 1979)

per Lord Wilberforce (“the ... [purchaser] may proceed by action for ... specific performance or damages ... in the

alternative. At trial he will however have to elect which remedy to pursue”).

¹⁶⁰Semelhago v. Parmadevan, [1996] 2 S.C.R. 415, 425.

¹⁶¹Id.

¹⁶²Id. 426.

Page: 37

[141] Fourth, a promisee that never asks for specific relief or subsequently abandons a claim for

specific relief and demands substitute relief accepts the promisor’s repudiation of the agreement

and brings the agreement to an end.¹⁶³Neither side has an obligation to discharge unfulfilled

promises or accept the subsequent discharge of a promise. This means that if the promisor

subsequently offers to deliver the unique property to the promisee, the promisee is not obliged to

accept the offer as it would if the agreement was still in force.¹⁶⁴

[142] Fifth, if the promisee abandons a claim for specific relief and claims damages, the date for

the assessment of the promisee’s damages is the date the promisee accepts the promisor’s

nonperformance.¹⁶⁵This is because at common law substitute relief is awarded as at the date of the

breach.¹⁶⁶So if a vendor defaults on a promise to deliver to a purchaser 100,000 grade A apples

for $100,000 on September 1, 2021, the purchaser’s damages are assessed as of September 1, 2021

or shortly thereafter.¹⁶⁷If on September 4, 2021 the purchaser expends $150,000 to acquire 100,000

grade A apples, the vendor must pay the purchaser $50,000 in damages, the difference between

¹⁶³Id. 425. See McDonald v. Dennys Lascelles Ltd., 1933 HCA 45; 48 C.L.R. 457, 477 (1933) per Dixon, J. (“when

a contract ... is dissolved at the election of one party because the other has not observed an essential condition or has

committed a breach going to its root, the contract is determined so far as it is executory only and the party in default

is liable for damages for its breach”).

¹⁶⁴Johnson v. Agnew, [1980] A.C. 367, 392 (H.L. 1979) per Lord Wilberforce (“if the … [purchaser] treats the …

[vendor] as having repudiated the contract and accepts the repudiation, he cannot thereafter seek specific

performance”).

¹⁶⁵See Lavoie, “Canada’s ‘Unique’ Approach to Specific Performance in Contracts for the Sale of Land: Some

Theoretical and Practical Insights”, 12 Oxford U. Commw. L. J. 207, 210 (2012) (“The combined effect of these rules

is to allow a purchaser in a contract that has been repudiated by the vendor to continue to insist on performance, secure

in the knowledge that they are under no obligation to mitigate their losses by purchasing a substitute property. If the

purchaser ultimately elects to receive damages instead ... damages will only be assessed from the later date on which

it becomes clear to the purchaser that specific performance will not be awarded”).

¹⁶⁶Semelhago v. Paramadevan, [1996] 2 S.C.R. 415, 426. See Johnson v. Agnew, [1980] A.C. 367, 400 (H.L. 1979)

per Lord Wilberforce (“the innocent party is to be placed, so far as money can do so, in the same position as if the

contract had been performed. Where the contract is one of sale, this principle normally leads to assessment of damages

as at the date of breach”) & Robinson v. Harman, 1 Ex. 850, 855 (1848) per Parke, B. (“The rule of the common law

is, that where a party sustains a loss by reason of a breach of contract, he is, so far as money can do it, to be placed in

the same situation, with respect to damages, as if the contract had been performed”).

¹⁶⁷A promisee must buy replacement goods in a rising market within a reasonable time after the time for performance

the promisor committed has passed without performance. See S. Waddams, The Law of Contracts 482 (8th ed. 2022)

(“A rule that a buyer of ordinary goods or shares could always obtain specific performance would be inconsistent with

the principle that damages crystallize at the date of the breach, often stated as a rule that a buyer must mitigate loss on

a rising market by buying a substitute within a reasonable time”) & S. Waddams, “The Date for the Assessment of

Damages”, 97 Law Q. Rev. 445, 446 (1981) (“On this view the amount of the plaintiff’s claim ‘crystallizes’ at the

time of the loss (or shortly afterwards) and subsequent delay affects only the amount of interest”).

Page: 38

the $150,000 expended to replace the 100,000 grade A apples and the $100,000 it would have cost

the purchaser to acquire 100,000 grade A apples under the contract.

2.

Application of the Governing Principles

[143] Justice Loparco correctly¹⁶⁸held that North Pacific was entitled to damages assessed as of

November 13, 2014, the date North Pacific informed Bethel United Church that it abandoned its

claim for specific relief:¹⁶⁹

While I have no hesitation finding damages should be calculated from the date

specific performance was rightfully abandoned, I also note that there is also no issue

of a windfall in this case. … North Pacific would have been developing the land at

the date they received possession of it, and they are entitled to rely on increases and

decreases in the market. In this case, the last date that possession could have

happened was on November 13, 2014, when North Pacific abandoned … [its] claim

for specific performance.

[144] North Pacific acquired West Jasper Properties’ interest in the Bethel United Church lands

because it intended to construct a residential development on the Bethel United Church lands and

the adjoining property. It was essential that the development be large enough to introduce some

economies of scale.

[145] This business plan remained in place until November 13, 2014 when North Pacific sold the

land adjoining the Bethel United Church land and no longer needed the Bethel United Church land.

[146] On November 13, 2014 North Pacific informed Bethel United Church that it abandoned its

claim for specific performance. This is the date North Pacific accepted Bethel United Church’s

repudiation of the land-sale contract and the date damages must be assessed.

[147] The parties agreed that the value of the forty-one acres of Bethel United Church land as of

November 13, 2014 was $9,020,000.¹⁷⁰The difference between this amount and the unpaid balance

of the purchase price – $3,250,000 – is $5,770,000. Damages of this magnitude puts North Pacific

in roughly the same position it would have been in had Bethel United Church discharged its

promises under the land-sale agreement.

¹⁶⁸This is a question of law. An appeal court may set aside an original court’s determination of questions of law if it

disagrees with the original court’s determination.

¹⁶⁹2020 ABQB 791, ¶ 335.

¹⁷⁰North Pacific Properties Ltd. v. Bethel United Church of Jesus Christ Apostolic of Edmonton, 2020 ABQB 791,

¶¶ 382 & 385.

Page: 39

[148] This is the amount Justice Loparco awarded.

[149] We see no reason to interfere with this determination. It is consistent with Semelhago v.

Paramadevan¹⁷¹and Wroth v. Tyler,¹⁷²a decision of Justice Megarry of the Chancery Division. In

both cases, the plaintiff abandoned his specific performance claim at trial and the Court awarded

damages as at the date of trial – the plaintiff having, in essence, accepted the defendant’s contract

breach at that time. The damages represented the difference in the values of the homes at the date

of the plaintiff’s acceptance of the breach – the date of trial – and the contract sale price.¹⁷³

[150] Bethel United Church argues¹⁷⁴before us that Justice Loparco’s damages analysis failed to

take into account a number of relevant facts.¹⁷⁵It did not advance these arguments before Justice

Loparco.

[151] Appeal courts are reluctant to entertain arguments that are advanced for the first time on

appeal. This is most certainly the case if the factual record needed to resolve new arguments is

incomplete¹⁷⁶and to proceed with this lacuna “may prejudice the adversary. This certainly is a

¹⁷¹[1996] 2 S.C.R. 415.

¹⁷²[1974] 1 Ch. 30 (Ch. 1973).

¹⁷³Semelhago v. Paramadevan, [1996] 2 S.C.R. 415, 427 per Sopinka, J. (“in the circumstances of this case, the

appropriate date for the assessment of damages is the date of trial as found by the trial judge. Technically speaking,

the date of assessment should be the date of judgment. That is the date upon which specific performance is ordered.

For practical purposes, however, the evidence that is adduced which is relevant to enable damages to be assessed will

be as of the date of trial”) & Wroth v. Tyler, [1974] 1 Ch. 30, 62 (Ch. 1973) per Megarry, J. (“I ought to award damages

to the plaintiffs of the order of £5,500 [the difference between the value of the house at trial and the same price under

the breached contract], in substitution for decreeing specific performance”).

¹⁷⁴Bethel United Church argues that the trial judge neglected to consider two items that should have been deducted

from the damages award. One is interest on the amounts North Pacific owed after the closing date, that accrued at a

rate of ATB prime plus three per cent according to the land-sale agreement, and interest that accrued on the purchase

price between January 4, 2011 and November 13, 2014, that it says would have been payable if specific performance

had been awarded at the damages date and that should have been deducted from the value of the lands. Another is

ownership and maintenance costs for the lands, including property taxes and financing costs, that North Pacific would

have incurred since from the date specific performance could have been awarded on November 13, 2014 and up until

the date of trial, that it says are a windfall for North Pacific. Appellant's Factum ¶ 94.

175

See S. Waddams, The Law of Damages § 1:7 (looseleaf rel. 2021-1) & R. Sharpe, Injunctions and Specific

Performance (looseleaf rel. 2021-1) § 11.8.

¹⁷⁶Bell Express Vu Ltd. v. Rex, 2002 SCC 42, ¶ 58; [2002] 2 S.C.R. 559, 595 per Iacobucci, J. (“A respondent, like

any other party, cannot rely upon an entirely new argument that would have required additional evidence to be adduced

at trial”); Athey v. Leonati, [1996] 3 S.C.R. 458, 478 per Major, J. (“The general rule is that an appellant may not raise

a point that was not pleaded, or argued in the trial court, unless all the relevant evidence is in the record”); Lamb v.

Kincaid, 38 S.C.R. 516, 539 (1907) per Duff, J. (“A court of appeal ... should not give effect to such a point taken for

the first time in appeal, unless it be clear that, had the question been raised at the proper time, no further light could

have been thrown upon it”); Alberta v. Nilsson, 2002 ABCA 283, ¶ 172; 320 A.R. 88, 132, leave to appeal ref’d,

Page: 40

very real risk if the adversary would have supplemented the record had it known another issue was

before the court”.¹⁷⁷Or the issue is such that it would be advantageous for the appeal court to have

the benefit of the trial judge’s opinion.¹⁷⁸

[152] In short, “[a]n appeal court should not hear a new issue on appeal unless it is satisfied that

the factual record needed to resolve the new issue exists and no other party is prejudiced”.¹⁷⁹

[153] We are satisfied, based on the arguments of both the appellant and the respondent, that the

record for the new issues the appellant asks us to consider is incomplete. Counsel for the appellant

expressly states that “further findings of fact are necessary to arrive at the proper measure of

[2003] 2 S.C.R. xi (note) (“The party [seeking to raise a new issue] must prove beyond a reasonable doubt that all the

facts relevant to the new argument are before the appellate court, and no satisfactory answer to the new argument

could have been given by the opposing parties if the argument had been raised at trial”); Connecticut Fire Ins. Co. v.

Kavanagh, [1892] A.C. 473, 480 (P.C.) (Que.) per Lord Watson (“When a question of law is raised for the first time

in a court of last resort, upon the construction of a document, or upon facts either admitted or proved beyond

controversy, it is not only competent but expedient, in the interests of justice, to entertain the plea. The expediency of

adopting that course may be doubted, when the plea cannot be disposed of without deciding nice questions of fact, in

considering which the Court of ultimate review is placed in a much less advantageous position than the Courts

below”); Owners of the Ship “Tasmania” v. Smith, 15 App. Cas. 223, 225 (H.L. 1890) per Lord Herschell (“a Court

of Appeal ought only to decide in favour of an appellant on a ground there put forward for the first time, if it be

satisfied beyond doubt, first, that it has before it all the facts bearing upon the new contention, as completely as would

have been the case if the controversy had arisen at the trial; and next, that no satisfactory explanation could have been

offered by those whose conduct is impugned if an opportunity for explanation had been afforded them when in the

witness box”) & Kirkfield Park & Arthur Oliver Residents Assoc. v. Winnipeg, 132 D.L.R 4th 448, 453, leave to appeal

ref’d, 138 D.L.R. (4th) vii (note) (Man. C.A. 1996) per Helper, J.A. (“In order to succeed in its preliminary motion,

the association was required to satisfy this Court that on each of the three new issues: a) it had a meritorious argument;

b) the respondents would not be prejudiced by having to address new legal arguments for the first time at the appellate

level; and, c) all the evidence on each issue forms part of the record to enable this Court to canvas that issue fully”).

See Burrell v. The Queen, [2008] HCA 34, ¶ 16; 238 C.L.R. 218, 223 per Gummow, A.C.J. & Hayne, Heydon,

Crennan & Kiefel, JJ. (“the principle of finality serves not only to protect parties to litigation from attempts to

re‑agitate what has been decided, but also has wider purposes. In particular, the principle of finality serves as the

sharpest spur to all participants in the judicial process, judges, parties and lawyers alike, to get it right the first time.

Later correction of error is not always possible”).

¹⁷⁷St. Paul-Butler v. City of Leduc Subdivision and Development Appeal Board, 2018 ABCA 3, ¶ 77; 70 M.P.L.R.

5th 1, 22 (chambers) per Wakeling, J.A.

¹⁷⁸Roman Catholic Separate School Trustees For Tiny v. The King, [1928] A.C. 363, 390 (P.C.) (Can.) per Viscount

Haldane (“It is a satisfaction to have had the advantage in a case so important and complicated as this, of judgments

so thorough and exhaustive as these, both in the Supreme Court of Canada and in the Ontario courts”) & Wal-Mart

Canada Inc. v. United Steelworkers of America, 36 C.L.R.B.R. 2d 159, 160, leave to appeal ref’d, [1997] O.L.R.B.

Rep. 963, leave to appeal ref’d, [1998] 1 S.C.R. xv (Ont. (Gen. Div.) Div. Ct. 1997) per Campbell, J. (“The applicant’s

Charter arguments were not raised before the Board. We do not have the benefit of the Board’s labour relations

expertise on this issue ... . Fundamental issues such as the constitutional validity of s. 11 of the Labour Relations Act,

1995 ... should not be decided by this court without the assistance of a considered decision of the Ontario Labour

Relations Board”).

¹⁷⁹Canada v. Runkle, 2015 ABCA 233, n. 30; 30 Alta. L.R. 6th 59, n. 30 (chambers) per Wakeling, J.A.

Page: 41

damages should liability exist”.¹⁸⁰The respondent occupies the same ground:¹⁸¹“[T]he claim for

deductions from the damage award must be supported by admissible evidence. No evidence was

tendered regarding ownership costs during this period, maintenance costs, municipal taxes,

prevailing interest rates, present value discounting of funds, or any other potential deduction from

the award”.

[154] Addressing these subjects – question of law and mixed fact and law – without having the

advantage of the trial judge’s opinion would also be a considerable handicap for this Court. Justice

Loparco presided over an eleven-day trial and prepared a 427-paragraph judgment. She knew this

file inside out. It would be imprudent for us to regard the insights she had developed as anything

but invaluable to an appeal court in our position.

[155] For these reasons, we will not address the new damage questions the appellant presents.

VII. Conclusion

[156] We uphold the judgment in its entirety. It was comprehensive, clear and compelling, and

easily withstood appellate review.

[157] Counsel provided us with considerable assistance for which we are grateful.

[158] The appeal is dismissed.

Appeal heard on February 1, 2022

Memorandum filed at Edmonton, Alberta

this

day of June, 2022

Wakeling J.A.

Schutz J.A.

¹⁸⁰Factum of the Appellant ¶ 95.

¹⁸¹Factum of the Respondent ¶ 142.

Page: 42

Feehan J.A.

Page: 43

Appearances:

M.A. Pruski, S.A. Roberts and S.B.A. Bachelet

for the Appellants

R. Grant, Q.C. and D. Penner

for the Respondents