COURT OF APPEAL FOR BRITISH COLUMBIA  
Citation:  
Main Acquisitions Consultants Inc. v.  
Yuen,  
2022 BCCA 249  
Date: 20220715  
Docket: CA47634  
Between:  
Main Acquisitions Consultants Inc.  
Appellant  
(Plaintiff)  
And  
Dana Alexander Yuen aka Alex Yuen, Joseph Charles Arseneau, Prior  
Properties Inc., 1085211 B.C. Ltd., 0783305 B.C. Ltd., and Alice Johansen  
Respondents  
(Defendants)  
Before:  
The Honourable Mr. Justice Goepel  
The Honourable Justice Dickson  
The Honourable Madam Justice DeWitt-Van Oosten  
On appeal from: An order of the Supreme Court of British Columbia, dated July 23,  
2021 (Main Acquisitions Consultants Inc. v. Prior Properties Inc., 2021 BCSC 1449,  
New Westminster Docket S191395).  
Counsel for the Appellant  
(via videoconference):  
S. Lin  
Counsel for the Respondent,  
Dana Alexander Yuen and  
Prior Properties Inc.  
P.M.B. Samarakoone  
(via videoconference):  
Counsel for the Respondent,  
Alice Johansen  
K.A. Davies  
(via videoconference):  
Place and Date of Hearing:  
Place and Date of Judgment:  
Vancouver, British Columbia  
February 7, 2022  
Vancouver, British Columbia  
July 15, 2022  
Main Acquisitions Consultants Inc. v. Yuen  
Page 2  
Written Reasons by:  
The Honourable Mr. Justice Goepel  
Concurred in by:  
The Honourable Justice Dickson  
The Honourable Madam Justice DeWitt-Van Oosten  
Main Acquisitions Consultants Inc. v. Yuen  
Summary:  
Page 3  
The appellant appeals the summary trial judge’s dismissal of its claim for specific  
performance and declarations as to its interest in a commercial property. The  
summary trial application dealt only with the issue of specific performance while  
there were numerous issues raised in this and three other actions brought in relation  
to the purchase and sale of the commercial property. The appellant alleges the  
summary trial judge erred in not granting an order holding it has an equitable interest  
to some or all of the lands, in not granting the remedy of specific performance, and  
in requiring it to amend its pleadings. Held: Appeal allowed. The summary trial judge  
erred as the issue was not suitable for summary determination. Whether the  
appellant is entitled to specific performance is the final question for determination  
and the answer is inextricably interwoven with the remaining issues that are still to  
be resolved. It was not possible on the material to make the necessary findings of  
fact to determine the issues and the summary trial judge erred in doing so.  
Reasons for Judgment of the Honourable Mr. Justice Goepel:  
INTRODUCTION  
[1]  
This appeal arises out of cross applications for summary trial of the claim of  
the appellant, Main Acquisitions Consultants Inc. (“MAC”) for specific performance of  
a contract dated February 25, 2016 (the “Lands Contract”) for the purchase and sale  
of a commercial property located at 200 Front Street, New Westminster (the  
“Lands”) at a price of $1,488,800. The respondents Prior Properties Inc. (“Prior”) and  
Dana Yuen applied to have MAC’s claims for specific performance dismissed and to  
cancel the Certificate of Pending Litigation (“CPL”) that MAC had filed. MAC  
subsequently filed its own application asking for an order for specific performance  
with its remaining claims for damages and breach of trust being adjourned generally.  
[2]  
The parties sought judgments solely on the issue of MAC’s entitlement to  
specific performance. The chambers judge concluded that MAC had no basis at law  
or equity for claiming an interest in the Lands. He held that if he had not reached  
those conclusions, he would have declined to grant judgment to MAC on the basis of  
the unsuitability of the issue for summary determination. The judge’s reasons are  
indexed at 2021 BCSC 1449.  
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[3] MAC now appeals. It continues to seek an order for specific performance.  
Alternatively, it seeks an order that it holds an equitable interest in some or all of the  
Lands, and the matter be remitted to the court below to consider whether specific  
performance be granted.  
[4]  
Despite what the appellant submits, a threshold issue on appeal that this  
Court must determine is whether some or all the issues raised in the trial court were  
suitable for summary determination. We must also consider, assuming some of the  
issues were suitable for summary determination, whether the judge erred in his  
analysis.  
[5]  
For the reasons that follow, I have concluded that the applications were not  
suitable for summary determination and the order of the judge must be set aside.  
BACKGROUND  
A. Overview  
[6]  
The background to this dispute is convoluted and complex. It has given rise to  
four separate actions. It requires the consideration of the terms and conditions of  
several individual contracts. In order to provide proper context to the issues raised  
on the appeal, I will at the outset review the individual contracts and certain of the  
issues that arise from them. I will next review a chronology of events leading up to  
the commencement of this litigation. The chronology will include discussion of  
extensions to some of the contracts. I will then turn to certain events that took place  
subsequent to the commencement of the litigation, including the other actions that  
have arisen and several applications to remove the CPL. Next, I will review the  
applications for summary judgment and the evidence filed in support of those  
applications. I will then review the judge’s decisions and then turn to the issues  
raised on appeal, and the position of the parties.  
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B. The Contracts  
i. The Lands Contract – February 25, 2016  
[7]  
The original parties to the Lands Contract were the defendant, Alice  
Johansen as seller, and 0783305 B.C. Ltd. (“078”) as purchaser. Pursuant to the  
terms of the Lands Contract, the purchaser was to buy the Lands for $1,488,800.  
[8]  
As of the date of the Lands Contract, the Lands consisted of three water lots  
and a wharf with approximately 200 feet of frontage on the Fraser River. The Lands  
are located immediately to the east of Westminster Park. As will be set out in more  
detail below, the wharf was destroyed by a fire on September 13, 2020, which took  
place in the midst of the summary trial application.  
[9]  
I would note at this stage that the Lands Contract erroneously named 078 as  
the purchaser. By an addendum dated August 4, 2016, the parties affirmed that the  
numbered company on the Lands Contract was to be 1085211 B.C. Ltd. (“108”) and  
not 078. The respondent, Joseph Charles Arseneau is the principal of 108.  
[10] The Lands Contract explicitly provided for the assignment of the buyer’s  
interest, in whole or in part without notice to the seller. It also contained two subject  
clauses:  
(1) Subject to the Buyer on or before February 29, 2016 obtaining and  
approving a Property Disclosure Statement with respect to the information  
that reasonably may adversely affect the use or value of the property. This  
condition is for the sole benefit of the Buyer if approved, such statement will  
be incorporated into and form part of this contract;  
(2) Subject to the Buyer on or before May 12, 2016 conducting a feasibility  
study of the subject property and being satisfied with the results at its sole  
discretion. Said feasibility to include an environmental report to detect the  
presence of contaminants and to protect against any remediation work  
required by any government authority on or in the subject property. Seller will  
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allow access for these purposes and cooperate with the Buyer in this regard.  
The above conditions are for the sole benefit of the Buyer.  
[11] By its terms, the Lands Contract was to complete on May 24, 2016.  
[12] The Lands Contract called for a deposit of $135,000 to be paid within 48  
hours of the removal of all subjects. If the Buyer did not complete the transaction,  
the deposit was to be automatically forfeited to the Seller. A further additional  
deposit of $12,127 was to be paid on the behalf of the Buyer’s agents within 48  
hours of removal of all subjects, and released immediately to the Buyer’s agent.  
[13] The first subject clause was removed on February 29, 2016. As discussed  
below, the completion date and second subject removal date became the subject of  
several extensions.  
[14] The Lands Contract contained the following provision concerning allocation of  
risk:  
32. RISK: All buildings on the Property and all other items Included in the  
purchase and sale will be, and remain, at the risk of the Seller until 12:01 am  
on the Completion Date. After that time, the Property and all included items  
will be at the risk of the Buyer. If loss or damage to the Property occurs  
before the Seller is paid the Purchase Price, then any insurance proceeds  
shall be held in trust for the Buyer and 1he Seller according to their interests  
in the Property.  
ii. 108 / Prior Agreement – November 24, 2016  
[15] On November 24, 2016, 108 entered into an agreement to sell its business  
assets to Prior. Mr. Yuen is the principal of Prior (the “108/Prior Agreement”).  
[16] The 108/Prior Agreement was on a form designed for the purchase and sale  
of business assets. Pursuant to its terms, Prior was to buy for $158,200 the business  
assets of 108. Business assets are described in clause 4.3 as including fee simple  
lands and contracts. Neither the lands nor contracts are specified. Section 4.3 also  
indicates that there is to be a share transfer.  
[17] The 108/Prior agreement contained the following handwritten condition  
precedent:  
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The Buyer and Seller agree that solicitor is to be retained and paid by Buyer  
to draft (standard) contract for purchase of shares for numbered company  
(1085211 B.C. Ltd.) acting reasonably. Seller’s lawyer to review and approve  
said (share purchase) contract (also acting reasonably). Buyer and Seller to  
sign said contract (for purchase of shares) upon presentation.  
[18] The 108/Prior Agreement called for a deposit of $54,200 to be provided within  
48 hours of acceptance of the offer. The condition precedent was to be removed by  
December 16, 2016. Completion date was to be January 25, 2017. The agreement  
was accepted by 108 as Seller, and by Mr. Arseneau as principal.  
[19] The 108/Prior Agreement also contained risk provisions:  
8. RISK: (Clause 39) The buyer should arrange for insurance to be effective on the  
earlier of the Completion Date or the date the Buyer pays the balance of the funds  
into trust. The Seller should maintain the Seller's insurance in effect until the later of  
the date the Seller receives the proceeds of sale, or the date the Seller vacates the  
property.  
39. RISK: The Business Assets and all other items included in the purchase and sale  
will be, and remain, at the risk of the Seller until 12:01 am on the Completion Date.  
After that time, the Business Assets and all included items will be at the risk of the  
Buyer. If loss or damage to the Business Assets occurs before the Seller is paid the  
Purchase Price, then any insurance proceeds shall be held in trust for the Buyer and  
1he Seller according to their interests in the Business Assets  
[20] In his first affidavit sworn on September 15, 2017, Mr. Yuen says the intended  
effect of the 108/Prior Agreement was to assign 108’s rights and obligations under  
the Lands Contract to Prior. He says the 108/Prior Agreement contains a number of  
errors including:  
a) The property is listed as an asset of 108; however it was not owned by  
108 and has never been owned by it;  
b) the agreement states that the assets of 108, which include the Property,  
would be sold for $158,200. That was never the intent of the Prior/108  
Agreement;  
c) the agreement calls for the shares of 108 to be sold to Prior; however 108  
has no authority to sell the shares in itself; and  
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d) the agreement calls for a deposit of $54,200 to be paid within 48 hours of  
the acceptance of the agreement. That deposit was not paid within 48  
hours of acceptance, or at all.  
[21] Mr. Arseneau, in his first affidavit, also sworn on the September 15, 2017,  
indicates error in the 108/Prior Agreement. He says it inaccurately represents that  
the business assets of 108 were the Lands, as 108 did not own the lands at that  
time. Further, he notes in his affidavit that the agreement also anticipates the “Buyer  
and Seller” entering an agreement to sell the shares of 108 to Prior. He says 108  
had no legal right to sell its own shares since it did not own those shares.  
iii. Prior/MAC Partnership Agreement – February 10, 2017  
[22] On February 10, 2017, MAC and Prior signed the following agreement (the  
“Prior/MAC Agreement”):  
In consideration of Main Acquisition Consultants Inc. of $10,000 paid to Joe  
Arseneau for 200 Front Street, New Westminster, B.C., February 10, 2017,  
and $10,000 to be paid no later than February 28, 2017, to Joe Arseneau  
specifically for 1085211 B.C. Ltd. for the purchase of 200 Front Street. Prior  
agrees to do a joint venture with Main Acquisitions to enter into a 50/50  
partnership in the purchase of 200 Front Street and the company contracted  
to purchase the property, 1085211 B.C. Ltd.  
Each party agrees that each will share equally the profits and losses of the  
transaction, however that no expenses or agreements will be made unless  
both parties agree in writing before hand of each agreement or transaction.  
Commission on the sales will be split equally between the parties.  
All transactions will be transparent to each party.  
[23] The agreement was signed by Mr. Yuen as the president of Prior Properties,  
and by Mr. Samson Neway and Karim Walji as the representatives of Main  
Acquisition Consultants Inc. I would note that MAC was not incorporated until  
February 17, 2017, some seven days after the Prior/MAC Agreement was signed.  
[24] While the Prior/MAC Agreement appears to indicate that the parties have  
entered into a partnership, the terms of that partnership are not spelled out. In its  
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pleadings, Prior says that pursuant to the partnership agreement, MAC would be  
responsible for:  
i. Obtaining an appraisal of the Property prior to subject removal or as  
otherwise agreed; and  
ii. Securing satisfactory financing for the purchase of the Property, with  
such financing not requiring a personal guarantee of Mr. Yuen.  
iv. Assignment, Amendment, and Release Agreement – July 12, 2017  
[25] A copy of this agreement (the “July 12 Agreement”) is between 108 described  
in the agreement as the “Buyer” and “Assignor”, Mr. Arseneau described as the  
“Share Purchase Seller” and Prior described as the “Share Purchase Purchaser”  
and “Assignee”. It is found in the Appellant’s Appeal Book, is unsigned and from the  
record it is not clear whether it was ever signed. Its significance is in the whereas  
clauses which shed some light on the terms and intent of the 108/Prior Agreement:  
C. By written contract of purchase and sale of business assets (“the Share  
Purchase Contract”) dated November 24, 2016 between the Buyer's principle,  
Joseph Arseneau (the “Share Purchase Seller”) and Prior Properties Inc. and  
attached to this Agreement as “Schedule “B”, Joseph Arseneau agreed to sell  
all of its issued and outstanding shares in the Buyer to Prior Properties Inc.  
on terms and conditions more particularly described in the Share Purchase  
Contract.  
D. Various addendums have followed that extended the completion dates for both  
the Original Contract and the Share Purchase Contract and which also amended the  
amounts of and the terms of the respective deposits (collectively referred to as the  
“Addendums”) and attached to this Agreement as “Schedule “C” and more  
particularly described therein,  
E. The Share Purchaser Seller, and Prior Properties lnc. were under the mutual  
mistaken assumption that such a Share Purchase Agreement would allow the  
purchase take place without the requirement to pay property purchase tax.  
F. Accordingly the parties wish to convert the Share Purchase Agreement in to an  
Assignment Agreement instead so as to assign the Original Contract and all  
related Addendums to Prior Properties (the “Assignee”) and the Assignee desires  
to acquire all the Buyer's right, title and interest in and to the Original Contract.  
[26] The July 12 Agreement goes on to assign 108’s interest in the Lands Contract  
to Prior and cancel the 108/Prior Agreement. As noted the document is unsigned  
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and the record is unclear whether it was ever signed. There is nothing in the record  
to suggest that MAC was aware of the July 12 Agreement.  
v. The 112 Assignment – July 20, 2017  
[27] On July 20, 2017, after the commencement of this proceeding, 108, Prior and  
1127551 B.C. Ltd. (“112”) entered into a written agreement by which 108 and Prior  
in consideration of $170,700 agreed to assign their rights, title and interest in the  
Lands Contract to 112 (the “112 Assignment”). Mr. Yuen has a 33% interest in 112.  
[28] A term of the 112 Assignment was that 108 consented to the cancellation of  
the 108/Prior Agreement and released Prior from any liabilities under that  
agreement. In the preamble to the 112 Assignment, the Prior/108 agreement was  
described as “the share purchase contract” in which 108 agreed to sell all of its  
issued and outstanding shares to Prior. The terms of the 112 Assignment suggest  
that the July 12 Agreement was never executed.  
[29] All parties to the 112 Assignment knew that MAC had commenced these  
proceedings claiming specific performance of the Lands Contact and had filed a CPL  
against the Lands. The 112 Assignment was made without MAC’s knowledge or  
consent. In its amended notice of civil claim MAC alleges that the purpose of the 112  
Assignment was to defeat MAC’s claims against the Lands.  
vi. The 114 Assignment – November 16, 2017  
[30] On November 16, 2017, 112 assigned its interest in the Lands Contract to  
1141536 B.C. Ltd. (“114”) (the “114 Assignment”). Mr. Devinder Grewal is the  
principal of both 112 and 114.  
[31] On November 20, 2017, Ms. Johansen conveyed the lands to 114, with 114’s  
registered transfer of title being subject to the MAC CPL.  
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C. The Contract Extensions  
[32] Both the Lands Contract and the 108/Prior Agreement contained condition  
precedents and dates upon which those condition precedents had to be removed.  
Those dates were extended from time to time. All the extensions were in writing.  
[33] The original 108/Prior Agreement subject removal date and completion date  
of December 16, 2016 and January 25, 2017 mirrored the then-existing extended  
terms of the Lands Contract. On December 16, 2016, mirror addendums extending  
the 108/Prior Agreement and the Lands Contract were agreed, setting a new subject  
removal date of February 1, 2017, and a new completion date of February 22, 2017.  
Ms. Johansen was paid $2,500 in consideration of this extension. Prior subsequently  
paid an additional $2,000 to Ms. Johansen to extend the subject removal date of the  
108/Prior Agreement and the Lands Contract to February 8, 2017.  
[34] Prior’s inability to remove these subjects by February 8, 2017 was an impetus  
for their negotiations with Mr. Walji and Mr. Neway. What followed the Prior/MAC  
Agreement was a series of mirror extensions of the Lands Contract and the  
108/Prior Agreement. The last of those extensions occurred on April 15, 2017 at  
which time for each agreement the subject removal dates were extended from April  
18, 2017 to May 30, 2017, and the completion from May 15, 2017 to June 30, 2017.  
[35] Prior and MAC funded the extensions. Up to May 30, 2017 Prior advanced  
$18,500 and MAC $30,000. All of the advances ultimately flowed through to  
Ms. Johansen. Each extension of the Lands Contract was made between  
Ms. Johansen and 108. Each extension of the 108/Prior Agreement was made  
between 108 and Prior.  
[36] Up until the end of May 2017, MAC and Prior appear to have been working in  
concert to complete the Lands Contract. Thereafter they took steps independent of  
each other.  
[37] On May 29, 2017, MAC’s counsel wrote to Ms. Johansen, Mr. Arseneau, and  
their real estate agents, putting them on notice that MAC was ready, willing, and  
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able to perform the Lands Contract. MAC, while demanding completion of the Lands  
Contract, took no steps to complete the 108/Prior Agreement, and made no  
arrangements for payments of deposits or the subject removal contained in the  
108/Prior Agreement.  
[38] On May 30, 2017, MAC sent a WITH PREJUDICE email to Mr. Yuen  
asserting its authority to take such steps as may be necessary to complete the  
Lands Contract on behalf of the partnership. The email said in part:  
We have commenced our partnership between Prior Properties Inc. and  
Mainland Acquisitions Consultants Inc. on February 10, 2017. That  
partnership agreement very clearly states that the 200 Front Street property  
(and the contract for that property) is part of the partnership. Hence, the 200  
Front Street contract has become partnership property as of that date, which  
belongs to the partnership.  
We are duty bound to protect the interest of the partnership and not let the  
deadlines, including the subject dates to past. We exercised our best efforts  
to contact you for almost two weeks without any result. Given the  
circumstance, we are duty bound to protect all our interests and give written  
notice accordingly. Each partner is an agent for each other and, as a result,  
we have the authority to give that written notice. However, we kindly ask that  
you give further written notice before the deadline today to further confirm the  
subject removals. This will ensure the partnership's interest is protected.  
...  
You should be aware that the partnership will be in breach of the sales  
contract If your 50% contribution cannot be made in a timely manner. Given  
the current impasse, if you are unable to make your contributions, we are  
ready, willing and able to make additional contributions in order to protect and  
secure the partnership's interest in the 200 Front Street property.  
As partners, we have a duty to protect each other's interests in the business  
and partnership property. Please confirm asap whether you will be making  
payments on your 50% contribution or not.  
[39] On May 30, 2017, Prior and 108 executed a further addendum to the  
108/Prior Agreement under which, in consideration for two payments by Prior  
totalling $147,127, the subject removal date under the 108/Prior Agreement was  
extended from May 30 to July 21, 2017, and the completion and adjustment date  
from June 29 to July 21, 2017. MAC was not advised by Prior of the May 30  
addendum and did not contribute to the payment.  
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[40] Concurrently on May 30, 2017, 108 removed the remaining subject clause on  
the Lands Contract and paid the deposit of $147,127 due on the Lands Contract on  
removal of the subject clause. The payment was made from the funds received from  
Prior. 108 and Ms. Johansen also agreed to extend the completion date to July 21,  
2017.  
[41] As a result of the two May 30th addendums, the Lands Contract was now  
unconditional and due to complete on July 21, 2017. The subject removal and  
completion of the 108/Prior Agreement was extended to July 21, 2017.  
[42] As will be set out below in more detail, on June 1, 2017 MAC commenced this  
proceeding.  
[43] On July 20, 2017, Ms. Johansen in consideration of $200,000, which amount  
was not to form part of the purchase price, agreed with 108 to extend the completion  
of the Lands Contract to October 31, 2017.  
[44] Also on July 20, 2017, as noted above, 108, Prior and 112 entered into the  
112 Assignment pursuant to which the Lands Contract was assigned to 112 and  
the108/Prior Agreement was cancelled.  
D. Commencement of Action  
[45] On June 1, 2017, MAC commenced the present action by way of Notice of  
Civil Claim, seeking various forms of declaratory relief, including declarations that  
MAC’s payments created a legal and/or equitable interest in the Lands, and that  
Ms. Johansen holds the Lands in trust for MAC; that the partnership be dissolved as  
of May 31, 2017; and that the partnership’s 100 percent interest in the Lands or  
Lands Contract be vested in MAC as of May 31, 2017. Additionally, MAC sought an  
order that 108, Mr. Arseneau and Ms. Johansen specifically perform their obligations  
under the Lands Contract and deliver the Lands to MAC upon payment of the full  
price. Further or in the alternative, MAC sought damages for breach of contract,  
breach of trust, unjust enrichment and/or conversion. MAC also filed a CPL on the  
subject Lands.  
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[46] The judge summarized the allegation in MAC’s Notice of Civil Claim as  
follows:  
[16]  
The allegations made in the NOCC may be summarized as follows.  
MAC alleges, inter alia:  
a)  
that Prior entered into an agreement with 108 to purchase the  
business assets of 108 on or about November 26, 2016, including the  
Lands Contract;  
b)  
that on or about that same date, 108 assigned the Lands  
Contract to Prior;  
c)  
that MAC and Prior entered into a partnership agreement on or  
about February 10, 2017, under which MAC would make payments for  
the purpose of purchasing the Lands (defined in the NOCC as the  
“Property”), and MAC and Prior would each hold a 50% interest in the  
Lands Contract and the Lands;  
d)  
that the Lands Contract and/or the Lands became property of  
the Partnership on or about February 10, 2017;  
e) that between February 28, 2017 and April 24, 2017, MAC  
made payments, either on its own or through its directors, directly to  
Johansen, as payments for the Lands and/or the Lands Contract, and  
that Johansen thereby became unjustly enriched; and  
f)  
that on or about May 31, 2017, Yuen  
i. attempted to revoke MAC’s 50% interest in the Lands  
and/or the Lands Contract;  
ii.  
refused to pay for its [i.e., presumably Prior’s] 50%  
interest in the Lands;  
iii.  
refused to continue with the purchase of the Lands;  
and/or  
iv.  
otherwise attempted to prevent MAC from protecting its  
interest in the Lands and/or the Lands Contract.  
[47] As noted above, following the commencement of the present action, 108,  
Prior and 112 entered into the 112 Assignment, which was subsequently assigned to  
114. Ms. Johansen subsequently conveyed the Lands on November 20, 2017 to 114  
with 114’s title being registered subject to MAC’s CPL.  
[48] MAC amended its Notice of Civil Claim on February 27, 2019 in respect of the  
112 Assignment, alleging that it was an act of deliberate, unconscionable conduct on  
behalf of the defendants, intended to deprive MAC of its interest in the Lands and  
the Lands Contract, and constitutes a breach of trust.  
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E. Other Proceedings  
[49] The events set out above have spawned other related litigation. On April 30,  
2018, 114 commenced proceedings in the Vancouver Registry No. VLC-S-185269,  
114536 B.C. Ltd. v. Main Acquisitions Consultants Inc. (the “114 Action”). In its  
Notice of Civil Claim, it alleges that the 108/Prior Agreement is void ab initio and as  
such, Prior had no interest in the Lands Contract to pass through to MAC in the  
Prior/Mac Agreement. 114 further alleges that the Prior/MAC Agreement was not a  
binding partnership agreement and MAC never acquired, or if it did, it lost the right to  
purchase the Lands, either alone, or in partnership with Prior. It alleges that if MAC  
ever acquired or retained any right to purchase the Lands, it is not entitled to the  
remedy of specific performance. It seeks declarations that MAC does not have any  
contractual or other right to the Lands and cancellation of the CPL. It also seeks  
various heads of damages including damages suffered by 114 as a result of the CPL  
filed by MAC.  
[50] In its response MAC repeats its allegation that at the time of the 112  
Assignment, Ms. Johansen, 108, Mr. Arseneau, Prior, Mr. Yuen, 112, 114 and  
Mr. Grewal all had notice of MAC’s claims to the Lands. It pleads that the purpose of  
the 112 Assignment was to defeat MAC’s claims against the Lands.  
[51] On May 29, 2018, 108 commenced proceedings under Vancouver Registry  
No. VLC-S-186169, 1085211 B.C. Ltd. v. Prior Properties Inc. (the “108 Action”)  
against Prior, 112 and 114. In its Notice of Civil Claim 108 alleged, inter alia, that  
(a) the 108/Prior Agreement was valid and Prior is in breach of that  
agreement;  
(b) all parties (108, Mr. Yuen, Mr. Arseneau, Prior and 112) entered into the  
112 Assignment with actual knowledge of MAC’s legal claims;  
(c) any rights to the Lands Contract was conveyed to 114 in contravention of  
the Fraudulent Conveyances Act as there was no consideration for such  
transfer and was not purchased in good faith;  
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(d) 112 is in breach of the terms of the 112 Assignment; and  
(e) 108 and Mr. Arseneau had knowledge of the partnership agreement  
between MAC and Prior.  
[52] On August 1, 2019, Justice Macintosh ordered that this action, the 114 Action  
and the 108 Action be tried at the same time with evidence in one being evidence in  
the other. In reaching that decision, he found:  
[6] . . . perhaps more to the point, returning to the factors to be considered as  
referred to in the notice of application, I find that there are factual overlaps in  
the three cases, that multiple proceedings can be avoided with less court time  
overall, that there’s greater inconvenience to most of the central players in  
the case from having three actions rather than two or one and there is some  
concern that there be inconsistent results from at least two of the cases being  
tried separately.  
[53] Subsequent to Justice Macintosh’s decision joining the three proceedings for  
trial, 112 and 114 commenced a fourth action on October 29, 2019 under Vancouver  
Registry No. VLC-S-1912185 (the “112/114 Action”). The defendants in that  
proceeding include Mr. Walji, Mr. Neway, Prior, Mr. Yuen, 108 and Mr. Arseneau.  
Also named as defendants were Anish Pabari and Elite Lending Corp., who are  
alleged to have conspired with Mr. Neway and Mr. Walji, personally and on behalf of  
MAC, to assist Mr. Neway and Mr. Walji to obtain false or fraudulent mortgage  
commitment letters to be used on behalf of MAC to deceive prospective parties,  
demonstrating MAC’s ability to complete the purchase of the Lands Contract.  
[54] 112 and 114’s claims against Mr. Yuen, Prior, Mr. Arseneau and 108 concern  
alleged misrepresentations made to induce 112 to take over the Lands Contract and  
complete the purchase of the Lands. It alleges that Prior, Mr. Yuen, Mr. Arseneau  
and 108 represented that they would resolve the MAC action with MAC before the  
scheduled completion of the Lands Contract, and if unsuccessful in that regard,  
would take the necessary steps to remove the MAC CPL before the completion of  
the Lands Contract. The pleadings in the 112/114 Action allege that 112 entered into  
the 112 Assignment based on those representations, and that 112 paid the  
Main Acquisitions Consultants Inc. v. Yuen  
Page 17  
$200,000 to Ms. Johansen on July 21, 2017 to extend the Lands Contract. 112 and  
114 claim several heads of damage against the defendants.  
F. Pre-trial CPL Applications  
[55] In advance of Prior filing its application for summary trial there were three  
unsuccessful applications brought to have the CPL removed. In the first application,  
which was heard on October 6, 2017, all of the defendants but Ms. Johansen  
applied to cancel the CPL under s. 256 of the Land Title Act, R.S.B.C. 1996 c. 250  
[Land Title Act]. Alternatively, the applicants sought cancellation of the CPL upon  
payment into court of appropriate security. While Ms. Johansen did not attend the  
hearing, she was represented at the hearing by her two adult sons who read into the  
record a statement purportedly written by her voicing her support for the application.  
[56] The judge, who was the same judge who ultimately heard the summary trial,  
dismissed the application. His reasons are indexed at 2017 BCSC 1912.  
[57] He dismissed the application for three reasons, being:  
1) Section 256 of the Land Title Act provides that an application to cancel  
a CPL may be brought by anyone who claims to be entitled to an  
interest in land. As a result of the 112 Assignment, 108 and Prior had  
no remaining interest in the Lands, and accordingly had no standing to  
bring their application;  
2) The applicants had failed to demonstrate hardship; and  
3) The prima facie merits of MAC’s claim for specific performance.  
[58] In January 2019, 114 in the 114 Action sought to have the CPL removed.  
Justice Macintosh, in reasons indexed at 2019 BCSC 158, dismissed the  
application. In dismissing the application, he found that 114 could not demonstrate  
the required hardship and inconvenience. Of import in the judge’s analysis was the  
fact that 114 had elected to proceed with the transaction after the dismissal of the  
original application to cancel the CPL. The application was also dismissed on the  
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Page 18  
technical basis that it was not brought by petition or in the existing action in which  
the CPL had been filed.  
[59] In August 2019, 114 renewed its application in the 114 Action to set aside the  
CPL. Again, they were unsuccessful. In his reasons indexed at 2019 BCSC 1689,  
Justice Macintosh noted that this application was brought not under s. 256 of the  
Land Title Act, but s. 249(1), which concerns the cancellation of a charge. The judge  
concluded that a CPL was not a charge and accordingly, the section did not apply  
and he dismissed the application.  
SUMMARY JUDGMENT APPLICATION  
A. The Applications  
[60] On February 20, 2020, Prior and Mr. Yuen filed an application for summary  
trial in which it sought orders dismissing MAC’s claim for specific performance and  
cancellation of the CPL. Mr. Arseneau and 108 filed a response supporting Prior’s  
application. Ms. Johansen filed a response, but took no position on the application.  
MAC opposed it. MAC subsequently filed its own application asking for an order for  
specific performance with its remaining claims for damages and breach of trust  
being adjourned generally. Ms. Johansen filed a response opposing MAC’s  
application.  
B. Evidence on Summary Trial  
[61] The evidence filed on the summary trial was voluminous. The appeal books  
contain some 852 pages. The material includes 12 affidavits which have attached to  
them some 150 exhibits. I would note that only 97 of the 150 exhibits have been  
reproduced in the appeal books. Attached as exhibits are 184 questions from the  
examination for discovery of Mr. Arseneau, 121 questions from the examination of  
Mr. Yuen and 37 questions from the examination of Ms. Johansen. I will return to the  
evidence when discussing the suitability of deciding the case by summary trial.  
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C. Position of the Parties  
[62] The parties sought judgment solely on the issue of MAC’s entitlement to  
specific performance. Neither party sought on the application any findings,  
declaratory or other relief in respect to the partnership or other claims set out in  
MAC’s Notice of Civil Claim. All parties submitted that the application was suitable  
for summary trial.  
[63] MAC submitted that its entitlement to specific performance arose by operation  
of law and of equitable principles, through MAC’s contribution of payments to  
Ms. Johansen and through MAC’s interest in the 108/Prior Agreement as partnership  
property. The judge summarized MAC’s argument as follows:  
[27]  
1.  
MAC argues as follows:  
There was a valid contract for 108 to purchase the Lands from  
Johansen (i.e., the Lands Contract);  
2. The Lands Contract was assigned by 108 to Prior (i.e., the 108/Prior  
Agreement);  
3.  
Prior subsequently entered into a partnership with MAC to acquire the  
Lands, and by operation of law, the Lands Contract, the 108/Prior Agreement,  
and any equitable interest in the Lands owned by Prior became partnership  
property; and  
4.  
Johansen and 108 should be ordered to perform their bargain under  
the Lands Contract and the 108/Prior Agreement, and to convey the Lands to  
MAC.  
[64] Prior and Mr. Yuen conceded that there was a partnership between Prior and  
MAC, but submit that the May 30th addendum to the 108/Prior Agreement (and the  
parallel addendum to the Lands Contract) were necessitated by MAC’s failure to  
provide the necessary materials and funding for the subject removals. The judge  
summarized their position on MAC’s entitlement to specific performance as follows:  
[28]  
1.  
…
Prior’s interest in the Lands, which MAC claims was property of the  
Partnership, was contingent only, being subject to completion of the 108/Prior  
Agreement. As the 108/Prior Agreement never completed, Prior’s rights never  
crystallized, and there was no interest in the Lands for MAC to lay claim to;  
2.  
MAC was not ready, willing, and able to complete the transaction as  
of May 30, 2017, and therefore is not entitled to specific performance; and  
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Page 20  
3.  
Specific performance ought not to be available as a remedy for any  
breach found, as damages would be an adequate remedy.  
[65] 114, although not a party to this proceeding, was served with MAC’s  
application. It supported Prior’s application to dismiss the claim for specific  
performance. It did not file any material.  
REASONS FOR JUDGMENT  
[66] The judge considered the entitlement of MAC to the order for specific  
performance in respect of the following issues:  
a) The consequences and equity of MAC having made payments to  
Ms. Johansen;  
b) MAC’s legal right to insist on completion of the 108/Prior Agreement and  
the Lands Contract; and  
c) If MAC were entitled to any remedy, MAC’s entitlement to specific  
performance.  
[67] The judge commenced his reasons by examining MAC’s equitable claims or  
remedies arising out of payments it made to extend the various agreements  
(paras. 30–45). He concluded that the payments by MAC did not create any  
equitable interest in the Lands, and did not entitle MAC to an order that  
Ms. Johansen or 108 perform the Lands Contract in favour of either MAC, Prior or  
their partnership.  
[68] The judge then turned to MAC’s right to insist on completion of the Lands  
Contract (paras. 46-73). This required the judge to examine in some detail the  
108/Prior Agreement and the Prior/MAC Agreement. In para. 47, he discusses the  
share purchase provision in the 108/Prior Agreement. In that regard, he says:  
[47]  
Confusingly, the 108/Prior Agreement also included a term that a  
separate contract for the sale of 108’s shares was to be concluded. Yuen’s  
evidence on examination for discovery was that Prior intended to purchase  
Arseneau’s business. However, no steps were taken to affect the sale and  
purchase of shares, as opposed to assets. Arseneau, 108’s principal, was not  
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Page 21  
named as a party to the 108/Prior Agreement (except being described as  
principal of 108), and of course 108 could not sell itself. That share purchase  
provision of the 108/Prior Agreement was a nullity. MAC’s claims are  
dependent on the enforceability of the 108/Prior Agreement. For the purposes  
of this application, I proceed on the basis that the share purchase provision  
was severable from the main body of the 108/Prior Agreement and did not  
adversely affect the enforceability of the 108/Prior Agreement as an  
agreement for the sale and purchase of 108’s assets, and that the 108/Prior  
Agreement was enforceable.  
[69] The difficulty with the judge’s analysis is that he does not appear to  
appreciate that the share purchase provision was not a term of the 108/Prior  
Agreement, but a condition precedent to that agreement. The time to remove the  
condition precedent was the subject of numerous extensions up to the time of the  
112 Assignment, a term of which cancelled the 108/Prior Agreement.  
[70] The judge continued his analysis by assuming that the share purchase  
provision was severable from the main body of the 108/Prior Agreement, and did not  
adversely affect its enforceability. This conclusion is, with respect, problematic. As  
noted, the share purchase provision was a condition precedent to the 108/Prior  
Agreement. Until it was fulfilled or removed the 108/Prior Agreement could not  
complete.  
[71] The judge held that MAC’s right to insist on completion of the Lands Contract  
gave rise to the following issues:  
[55]  
(i)  
…
Had Prior’s interest in the Lands crystallized?  
(ii)  
Did MAC’s position as a partner of Prior give it a right to claim  
performance of a contract for the purchase and sale of real property to which  
Prior, but not MAC, was privy?  
[72] The judge held that any equitable entitlement sufficient to support MAC’s  
claim for specific performance must arise out of its role as a partner of Prior. In that  
regard, he noted that the acts of one partner with respect to third parties may bind  
the other partner, but as between themselves, so long as the partnership exists, one  
partner has no right to act unilaterally without the other’s consent.  
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Page 22  
[73] He found that MAC had no right at common law to deal with the partnership  
property unilaterally as if it were its own separate property. He held moving forward  
with the partnership goal of completing the 108/Prior Agreement and acquiring the  
Lands required the consent of both partners, Prior and MAC. He held that MAC had  
no contractual right to proceed and complete the Land’s Contract without Prior’s  
consent and, if Prior dealt with the Lands inconsistent with MAC’s rights as Prior’s  
partner, MAC’s remedies were against Prior, not against the Lands, 108, or  
Ms. Johansen. In the result, he concluded that MAC had no entitlement to a CPL  
and has no entitlement to claim specific performance of Prior’s contract with 108,  
and 108’s contract with Ms. Johansen. MAC’s claim would fall on both those bases.  
[74] In reaching this conclusion, the judge appears to overlook that both MAC and  
Prior at the end of May acted unilaterally. Prior took steps to facilitate the purchase  
of the lands by extending the 108/Prior Agreement and funding the subject removal  
of the Lands Contract. If the 108/Prior Agreement remained a partnership asset then  
MAC arguably is able to take the benefit of those acts.  
[75] In his analysis, the judge gives no consideration to the fact that at the time of  
the 112 Assignment the parties to that agreement were well aware of MAC’s claim.  
He further gives no consideration to MAC’s allegation that the purpose of the 112  
Assignment was to defeat MAC’s claims against the Lands.  
[76] When 114, whose principal is also the principal of 112, closed on the Lands  
Contract it was well aware of MAC’s claim. Neither 112 nor 114 were bona fide  
purchasers without notice of MAC’s claims to the Lands.  
[77] Having held that MAC was not legally or beneficially entitled to a remedy in  
respect of an interest in the Lands, the judge then turned to consider the question of  
whether, if MAC were entitled to a remedy in respect of an interest in land, MAC  
would have been entitled to the remedy of specific performance. The judge’s  
analysis of this issue is found at paras. 77–86 of his reasons. He concluded it would  
not on the basis that damages would have been an adequate remedy, and in those  
circumstances, there would be no basis for ordering specific performance even if  
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Page 23  
MAC had proven its entitlement to claim a legal or equitable interest in the Lands. I  
note that in his analysis of this issue, the judge gave no consideration to the impact  
of the fire that had destroyed the wharf or whether any of the defendants would be  
able to pay a damage award.  
[78] Only after concluding that MAC’s claim for specific performance must fail did  
the judge turn to the question of whether the applications were suitable for summary  
trial. On the question of the factors the court must consider on an application to  
determine, by summary trial, only a part of an action, he referenced the decisions of  
Justice Groberman as he then was in Coast Foundation v. Curie, 2003 BCSC 1781  
and Justice Griffin as she then was in Greater Vancouver Water District v. Bilfinger  
Berger AG, 2015 BCSC 485.  
[79] Given his conclusions that MAC was not entitled to specific performance, he  
found it just and appropriate to grant summary judgment to the defendants on that  
issue. He believed doing so was likely to promote the efficient resolution of the  
dispute. He noted MAC’s claim to an interest in Lands was central to the present  
action, and all parties would benefit from the issue being resolved, and, as he had  
noted, none of the parties were opposed to summary trial resolution.  
[80] The judge went on to say, however, that if he had not found that MAC had no  
basis in law or in equity for claiming an interest in land or seeking specific  
performance he would not have granted MAC specific performance on the basis of  
the unsuitability of the issue for summary disposition. In that regard, he specifically  
noted that there was insufficient evidence to determine whether MAC had repudiated  
the partnership prior to May 31, 2017. Given the uncertainties on the evidence  
surrounding that issue, and the potential for inconsistent findings in subsequent  
litigation, it would not be in the interests of justice to grant MAC the relief it sought  
through summary trial, even if he had found that MAC’s claim rested on sound legal  
or equitable footing.  
Main Acquisitions Consultants Inc. v. Yuen  
Page 24  
ON APPEAL  
[81] On the appeal, MAC submits that the judge erred in law or principle, or  
alternatively made a palpable and overriding error, in concluding that the appellant  
had not acquired rights to the Lands Contract or a beneficial interest in the Lands by  
virtue of 1) the Prior/MAC Agreement or 2) alternatively, the MAC payments that  
flowed through to Ms. Johansen. It submits the judge erred in finding MAC’s specific  
performance claim to be unsuitable because of Prior’s contention that MAC had  
repudiated the partnership agreement. It submits the partnership dispute is distinct  
from the specific performance claim against Ms. Johansen and 108. It further  
submits the judge erred in law or principle or alternatively made a palpable and  
overriding error in finding specific performance was not the appropriate remedy. On  
the appeal, it seeks an order of specific performance with an abatement of the  
purchase price to take into account the loss and damage caused by the fire. MAC  
further submits that the judge erred in requiring it to amend its pleadings to delete its  
claim of an interest in the Lands when the other remedies remain to be adjudicated.  
[82] Prior submits the judge did not err in determining that a beneficial interest in  
the Lands did not pass to MAC as a result of the non-refundable extension  
payments made by MAC and the partnership. Similarly, the judge did not err in  
finding MAC was not entitled to the remedy of specific performance as no interest in  
the Lands had passed to MAC, and because the Lands were not so unique in nature  
that damages could not be ordered as sufficient compensation. Further, the judge  
did not err in ordering MAC to amend its pleadings to delete its claims of interest in  
the Lands.  
[83] Ms. Johansen similarly submits that the judge did not commit reversible error  
in finding that MAC did not acquire rights to the Lands Contract by gaining an  
equitable interest in the Lands by virtue of its payments to her. Similarly, the judge  
did not err in finding that even if MAC was entitled to specific performance, the  
proposed order could not be granted as there was no justification for depriving  
Ms. Johansen of the full benefit of the sales price she had negotiated.  
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Page 25  
[84] 108 and Mr. Arseneau took no part in the appeal. Neither did 114 who as  
noted above, is not a party to this action.  
DISCUSSION  
[85] The resolution of this litigation requires the judge to make numerous findings  
of fact and law including:  
1. The terms of the 108/Prior Agreement;  
2. The terms of the Prior/MAC Agreement;  
3. Did MAC have the right to act unilaterally in regards to completing the  
Lands Contract;  
4. Did Prior have the right to unilaterally amend the 108/Prior Agreement;  
5. Did Prior have the right to unilaterally cancel the 108/Prior Agreement;  
6. Whether MAC or Prior breached the Prior/MAC Agreement and the  
consequences of any breach;  
7. The validity of the 112 Assignment;  
8. Whether 112 and 114, given their knowledge of MAC’s claims, are  
estopped from relying on the 112 Assignment;  
9. Whether MAC is entitled to the remedy of specific performance; and  
10. Whether damages in lieu of specific performance would be an adequate  
remedy.  
[86] Whether MAC is entitled to specific performance and whether damages in lieu  
of specific performance would be an adequate remedy are the final questions for  
determination. The answer to those questions are largely dependent on how the  
other issues are determined.  
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Page 26  
[87] In addition, there are numerous issues raised in the three other actions which  
have been brought in relation to this transaction. Those issues mirror or are related  
to the issues in this action. As noted by Justice Macintosh, the interaction between  
these various claims makes it desirable that they be tried in one proceeding.  
[88] This case was decided on a summary trial. On a summary trial pursuant to  
Supreme Court Civil Rules, B.C. Reg. 168/2009 Rule 9-7(15) the court may grant  
judgment unless:  
(i) the court is unable, on the whole of the evidence, before the court on the  
application, to find the facts necessary to decide the issues of fact or law, or  
(ii) the court is of the opinion that it would be unjust to decide the issues on the  
application,  
[89] The Rule makes the judge a gatekeeper. It is a crucial role. Notwithstanding  
the wishes or indeed often the vociferous submissions of counsel, judgment should  
not be given if the court is unable, on the evidence, to find the necessary facts or if it  
would be unjust to do so. As noted by Justice Southin in her typically forthright  
language in Bacchus Agents (1981) Ltd. v. Philippe Dandurand Wines Limited, 2002  
BCCA 138 [Bacchus]:  
[28] . . . the judge before whom a proceeding of this kind comes must not think of  
himself or herself as a puppet in the hands of the litigants.  
[90] If the trial court does grant judgment in a summary trial this Court can review  
whether it was appropriate to do so: Bacchus; Prevost v. Vetter, 2002 BCCA 202;  
Parsons v. Finch, 2003 BCCA 409; Castellan v. Muncey Estate, 2004 BCCA 128.  
[91]  
In Gichuru v. Pallai, 2013 BCCA 60 the Court set out the standard of review  
of a decision concerning the suitability of proceeding by way of summary trial:  
[34]  
In summary, the jurisprudence is clear that, subject to certain  
guidelines, the decision as to the suitability of proceeding by way of summary  
trial to determine an action (or issue), is a discretionary one. Appellate  
deference is given to the exercise of discretionary powers in the absence of a  
clear conclusion that the discretion has been wrongly exercised, in that no  
weight or insufficient weight has been given to relevant considerations (see  
Creasey v. Sweny (1942), 57 B.C.R. 457 at 459 (C.A.); Friends of the  
Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3 at  
Main Acquisitions Consultants Inc. v. Yuen  
Page 27  
para. 104; Stone v. Ellerman, 2009 BCCA 294, 92 B.C.L.R. (4th) 203 at  
para. 94, leave to appeal ref’d [2009] S.C.C.A. No. 364; and Bell v. Levy,  
2011 BCCA 417 at para. 75), or it appears that the decision is clearly wrong  
and may result in an injustice (see Taylor v. Vancouver General Hospital  
(1945), 62 B.C.R. 42 at 50, [1945] 3 W.W.R. 510 (C.A.)).  
[92] In this, case the parties did not ask the court to resolve all of the issues  
between the parties. They sought judgment solely on the issue of MAC’s entitlement  
to specific performance. While parties are entitled to seek judgment on individual  
issues“absent good reason, courts should not isolate individual issues in a  
proceeding and decide them separately from the rest of the litigation”: Ferrer v.  
589557 B.C. Ltd., 2020 BCCA 83 at para. 33.  
[93] In the seminal decision on summary trial applications, Inspiration  
Management Ltd. v. McDermott St. Lawrence (1989), 36 B.C.L.R. 2(d) 202; 1989  
229 (BCCA), Chief Justice McEachern exhorted trial judges to be “not timid in  
using R. 18A for the purposes for which it was intended” (at 214). The Chief Justice  
then warned, however, that it was “unfair to scoop-shovel volumes of disjointed  
affidavits and exhibits upon the judge and expect him or her to make an informed  
judgment” (at 216). He also warned that counsel cannot expect to succeed in  
persuading a judge “if they permit confusion in the form of masses of disorganized  
fact and paper to intrude into the decision of process” (at 217).  
[94] That is what has effectively happened on this application. As noted above, the  
appeal books contain 12 affidavits which have attached to them some 150 exhibits.  
Only 97 of the 150 exhibits have been reproduced in the appeal books. Among the  
exhibits are questions and answers from the examinations for discovery of  
Mr. Arseneau, Mr. Yuen, and Ms. Johansen. The excerpts before the court do not  
disclose whether Mr. Arseneau and Mr. Yuen, who are principals of 108 and Prior,  
were being discovered in their personal capacity or as a representative of those  
corporate defendants.  
[95] Although discovery evidence is admissible on a summary trial application,  
and can be an important source of admissions, the selective and fragmented use of  
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Page 28  
discovery testimony makes it of limited value. The comments of Mr. Justice Thackray  
(as he then was) in Advanced Mobile Welding Co. v. Quartz Ventures Ltd. and  
Bright Developments Ltd. (1991), 60 B.C.L.R. (2d) 235 at 236–237; 50 C.L.R. 29  
(S.C.) remain apt:  
When transcripts of examinations for discovery are used in a trial, there are  
checks and balances. The deponent’s counsel can ask to have more of the  
transcript read in. The Court may also “review the whole of the examination”  
and order other parts put in. Hearsay evidence in the examination for  
discovery is not necessarily admissible at trial. A deponent can be called to  
give evidence and may say that the answer was not given or that it was  
improperly transcribed or that it was incomplete or that it needs explanation.  
Counsel’s instructions to a client about to be examined for discovery are very  
different to the instructions given before trial evidence. If discovery transcripts  
are to be turned into trial evidence the whole concept of examinations for  
discovery is changed. The onus will shift to the party being examined to  
ensure that the evidence is exhaustive. This, in my opinion, should not be the  
case. Examinations for discovery are designed to allow one party to obtain  
information by way of responsive answers to questions. As part of the trial  
process they are not meant to force a party to “tell all”. Consequently,  
discovery evidence does not lend itself to summary trials.  
[96] Examination for discovery evidence is admissible only as against the party  
discovered (Rule 12-5(46)). In this case the answers given by Mr. Arseneau,  
Ms. Johansen and Mr. Yuen are not evidence at large. They are only admissible  
against themselves and in the case of Mr. Yuen and Mr. Arseneau possibly their  
companies.  
[97] The fact that exhibits are attached to an affidavit does not make them  
admissible as evidence. Nineteen of the exhibits are identified simply as documents  
on the Prior list of documents. That does not make them admissible. Others were  
correspondence between non-parties, which are clearly hearsay. No attempt was  
made in this proceeding to determine which exhibits were admissible evidence and  
which were not.  
[98] From this mass of material, the judge was expected to make findings of fact  
and decide questions of law. In this case, critical factual issues exist concerning the  
108/Prior Agreement, the Prior/MAC Agreement and the 112 Assignment. Those  
agreements are at the heart of this litigation.  
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Page 29  
[99] MAC’s claim for specific performance is dependent on those findings. Absent  
findings on the terms of those agreements, one cannot determine MAC’s entitlement  
to specific performance.  
[100] The chambers judge, in my view, quite correctly found that MAC’s application  
for summary judgment could not be determined on this record because of  
uncertainties in the evidence, and the potential for inconsistent findings in  
subsequent litigation. In my respectful opinion, the same decision should have been  
made in regard to Prior’s application. MAC’s pathway to specific performance is  
dependent on the terms of the various agreements and findings concerning various  
steps taken by the individual parties. On this record it is not possible to find the facts  
necessary to decide those issues.  
[101] Having found that MAC was not entitled to specific performance, this is not a  
case where the judge should have gone on to determine the suitability of the remedy  
of specific performance. The determination of whether damages will provide an  
adequate or appropriate remedy is largely fact-dependent and requires a close  
examination of the facts: Youyi Group Holdings (Canada) Ltd. v. Brentwood Lanes  
Canada Ltd., 2014 BCCA 388 at paras. 56-57. If damages would be particularly  
time-consuming, difficult, or complex to compete, or if the damages assessment  
exercise will be chiefly speculative and conjectural, this would favour granting  
specific performance: Youyi at para. 35.  
[102] The complexity of the damage assessment is highlighted by the fire that  
destroyed the wharf. The fire fundamentally changed the nature of the property. As a  
result of the fire MAC now seeks specific performance with an abatement of the  
purchase price. As set out above both the Lands Contract and the 108/Prior  
Agreement contained risk allocation provisions. How those contractual provisions  
might apply in the circumstances of this case raise difficult questions. At the hearing  
of the appeal counsel advised that 114 had insured the wharf but its insurer to date  
has declined coverage.  
Main Acquisitions Consultants Inc. v. Yuen  
Page 30  
[103] A further factor in determining whether damages would be an adequate  
remedy not considered by the chambers judge is whether the defendants are in a  
position to pay damages and, thus, whether the plaintiff is likely to recover them:  
UBS Securities Canada, Inc. v. Sands Brothers Canada, Ltd., (2009) 95 O.R. (3d)  
93 (C.A.) at para. 103. There is evidence in the appeal record that suggests that  
some, if not all, of the corporate defendants have few if any assets.  
[104] Whether damages would have been an adequate remedy was inextricably  
interwoven with the remaining issues that are still to be determined in this action and  
the other three actions which are still before the court. Given all of the above, the  
judge was not in a position to find the facts necessary to determine whether specific  
performance was a suitable remedy.  
[105] I should also note that Prior’s application was problematic because Prior,  
pursuant to the 112 Assignment, arguably no longer has any interest in the Lands.  
While there may be parties who can properly challenge MAC’s entitlement to specific  
performance, in my respectful opinion, Prior is not one of those parties. While  
Ms. Johansen in her response opposed MAC’s application she took no position on  
Prior’s. The party most impacted by MAC’s claim for specific performance is 114  
who is not at present a party to this litigation.  
[106] With greatest of respect to the chambers judge, who did the best he could  
with the mass of material that was thrust upon him, he should not have embarked on  
Prior’s application and attempted to resolve it. In my view, given the nature of the  
material, this case was not suitable for summary trial. It was not possible on this  
material to make the necessary findings of fact to determine the issues and it was an  
error to do so. While there might be cases where it is suitable to determine in  
advance of trial whether the remedy of specific performance is appropriate, in my  
respectful opinion this case is not one of them.  
[107] I would allow the appeal, set aside the judge’s order, and dismiss both  
applications. While as a result of the appeal MAC’s claim for specific performance  
remains alive, none of the parties have obtained the orders they sought in this Court  
Main Acquisitions Consultants Inc. v. Yuen  
Page 31  
or the court below. Given those circumstances I would make no order for costs in  
this Court. The costs of the applications will be for the judge who finally determines  
the litigation.  
“The Honourable Mr. Justice Goepel”  
I AGREE:  
“The Honourable Justice Dickson”  
I AGREE:  
“The Honourable Madam Justice DeWitt-Van Oosten”  


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