IN THE SUPREME COURT OF BRITISH COLUMBIA  
Citation:  
1247249 B.C. Ltd. v. 1098212 B.C. Ltd.,  
2022 BCSC 1230  
Date: 20220720  
Docket: S92866  
Registry: Nanaimo  
Between:  
And  
1247249 B.C. LTD.  
1098212 B.C. LTD.  
Plaintiff  
Defendant  
Before: The Honourable Mr. Justice Veenstra  
Reasons for Judgment  
Counsel for the Plaintiff:  
Counsel for the Defendant:  
Place and Dates of Trial:  
A. Soliman  
T.J. Huntsman  
Nanaimo, B.C.  
November 16-19, 24-26, 2021  
and January 6, 2022  
Place and Date of Judgment:  
Nanaimo, B.C.  
July 20, 2022  
1247249 B.C. Ltd. v. 1098212 B.C. Ltd.  
Page 2  
Table of Contents  
INTRODUCTION ....................................................................................................... 4  
FACTS....................................................................................................................... 5  
Background ............................................................................................................ 5  
Listing the Property and Negotiating the Contract of Purchase and Sale............... 5  
Contract of Purchase and Sale............................................................................... 7  
Due Diligence......................................................................................................... 9  
October 20, 2020 Meeting.................................................................................... 12  
After the Meeting to November 24, 2020.............................................................. 14  
Correspondence of November 26 to 28, 2020...................................................... 23  
Events leading up to and including December 7 .................................................. 28  
ISSUES.................................................................................................................... 33  
ISSUE 1: DID THE PARTIES AGREE TO AMEND THE CONTRACT ON  
OCTOBER 20 2020?............................................................................................... 34  
Positions of the Parties......................................................................................... 34  
Governing Principles ............................................................................................ 36  
Reliability and Credibility................................................................................... 36  
Was there an agreement or an agreement to agree?....................................... 37  
Was any amendment sufficiently recorded in writing? ...................................... 42  
Was there sufficient certainty with respect to the amendment?........................ 44  
Did the plaintiff repudiate any agreement to amend by sending inconsistent  
documents? ...................................................................................................... 45  
Decision ............................................................................................................... 47  
Reliability and Credibility................................................................................... 47  
Was there an agreement to amend the CPS or an agreement to agree?......... 52  
Was any amendment sufficiently recorded in writing? ...................................... 54  
Was there sufficient certainty with respect to the amendment?........................ 55  
Was there sufficient consideration for the amendment?................................... 57  
Did the plaintiff repudiate any agreement to amend by sending inconsistent  
documents? ...................................................................................................... 57  
ISSUE 2: IS THE DEFENDANT ESTOPPED FROM DENYING A DECEMBER 7,  
2020 DEADLINE? ................................................................................................... 59  
Governing Principles ............................................................................................ 59  
Positions of the Parties......................................................................................... 61  
1247249 B.C. Ltd. v. 1098212 B.C. Ltd.  
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Decision ............................................................................................................... 62  
ISSUE 3: DID THE DEFENDANT COMMIT AN ANTICIPATORY BREACH OF THE  
CONTRACT?........................................................................................................... 63  
Governing Principles ............................................................................................ 63  
Positions of the Parties......................................................................................... 64  
Decision ............................................................................................................... 65  
ISSUE 4: WAS THE PLAINTIFF REQUIRED TO PAY THE DEPOSIT TO THE  
AGENT? .................................................................................................................. 65  
Governing Principles ............................................................................................ 65  
Positions of the Parties......................................................................................... 67  
Decision ............................................................................................................... 67  
ISSUE 5: IS SPECIFIC PERFORMANCE AN APPROPRIATE REMEDY?............ 68  
Governing Principles ............................................................................................ 68  
Positions of the Parties......................................................................................... 70  
Decision ............................................................................................................... 71  
CONCLUSION......................................................................................................... 72  
SCHEDULE A.......................................................................................................... 73  
1247249 B.C. Ltd. v. 1098212 B.C. Ltd.  
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Introduction  
[1]  
The plaintiff seeks an order for specific performance of a contract of purchase  
and sale (the “CPS) for a development property in Nanaimo, British Columbia.  
[2]  
The defendant says that the CPS lapsed on its terms and the plaintiff has lost  
all rights to the property. The plaintiff says that the parties agreed to amend the  
contract, that the amendment included an extension of the condition precedent  
removal date (the “CPRD”) to December 7, 2020, that it gave notice on that date that  
it was removing conditions precedent but that the defendant repudiated the CPS that  
day. The plaintiff also argues that the defendant is estopped from denying the  
extension.  
[3]  
For the reasons set out below:  
a) I conclude that there was a valid and binding agreement to extend the  
CPRD to December 7, 2020;  
b) In the alternative, I conclude that the defendant was estopped from  
denying that the CPRD was extended to December 7, 2020;  
c) The defendant anticipatorily breached the CPS by evincing an intention to  
not perform any further obligations under it;  
d) The plaintiff was ready, willing and able to post the required deposit on  
December 7, 2020 but, as a result of the defendant’s anticipatory breach,  
was not required to do so; and  
e) In the circumstances and given the nature of the property, specific  
performance is an appropriate remedy.  
[4]  
As a result, I find that the plaintiff is entitled to an order of specific  
performance.  
 
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Facts  
Background  
[5]  
The action relates to a 90-acre property on Lotus Pinnatus Way (the  
“Property”), which is at the southwest end of the City of Nanaimo, adjacent to the  
Nanaimo Parkway (Highway 19).  
[6]  
Mohammed Doar is a director of the plaintiff numbered company. Mr. Doar  
has been involved in real estate development for several years, with projects in the  
Lower Mainland as well as two prior projects in the City of Nanaimo.  
[7]  
Irene Wenngatz is a director of the defendant company, which has owned the  
Property for 10-14 years. Ms. Wenngatz described her occupation as buying and  
selling real estate, private lending, and some real estate development work  
(although she says that being a developer was something she did not enjoy).  
[8]  
Each of them was represented by an experienced real estate agent: the  
plaintiff, by a Mr. Deleskie, and the defendant, by a Mr. Robinson.  
[9]  
The plaintiff also had the advice and drafting assistance throughout of a  
lawyer, Mr. Rainey, although Mr. Rainey was not directly involved in negotiations.  
[10] The defendant chose to act without legal advice until after the events alleged  
to constitute repudiation on her part.  
Listing the Property and Negotiating the Contract of Purchase and Sale  
[11] The defendant listed the Property for sale with Mr. Robinson’s real estate firm  
on September 25, 2019. Mr. Robinson prepared an MLS listing information sheet  
that described the property as follows:  
Vendor financing available at attractive rates. It is the largest subdivision  
property available in Nanaimo and is in close proximity to Vancouver Island  
University, the Aquatic and Ice Rink Centres all the land is within the  
boundaries of the City of Nanaimo. This parcel of land could easily satisfy the  
demands for affordable multi-family dwellings. (R10) Zoning provides for up  
to 592 units of detached, single family residential dwelling subdivisions and  
clustered multiple family developments, Buyers to verify indedently (sic) with  
     
1247249 B.C. Ltd. v. 1098212 B.C. Ltd.  
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the City of Nanaimo. Attaining sewer and water to the property is possible  
from the Harewood Mines Road side making this an extremely desirable  
piece for future development. This is a rare opportunity to own one of the best  
development pieces on Vancouver Island.” – parcel size 90.69 acres list  
price $5,750,000.  
[12] Ms. Wenngatz said that it is the real estate agent’s job to prepare the  
description, and that she paid no attention to it. She told Mr. Robinson the price, and  
that she was willing to provide vendor financing at attractive rates. All of the other  
information was Mr. Robinson’s for which she accepted no responsibility.  
[13] Mr. Robinson said that the information about the potential number of units  
came from an older engineering study that was in a file he had access to at the time  
he prepared the listing, but is no longer available. The information about this being  
the largest available development site came from his own review of MLS listings for  
Nanaimo.  
[14] Mr. Doar had been looking for another development project in Nanaimo and  
saw the MLS listing. In early 2020, he contacted Mr. Deleskie and began to make  
inquiries.  
[15] Mr. Doar said his interest in the property was in part because developing it  
was a long-term project given its size. His intent was to subdivide the property into  
smaller lots with infrastructure provided over time, and to carry on the project of  
building condominiums and townhouses in stages. Alternatively, he would consider  
selling off some of the smaller subdivided areas to other developers. He was  
contemplating moving to Nanaimo and saw this as a way to employ himself and  
family members in that community over the course of years.  
[16] On February 22, 2020, Mr. Robinson sent an email to Mr. Deleskie confirming  
some of the key business terms for a proposed transaction, following which  
Mr. Rainey was retained to draft a contract of purchase and sale. The draft contract  
was emailed by Mr. Deleskie to Mr. Robinson on March 2, 2020. There followed  
negotiations with respect to the terms, following which the final version of the  
contract (the CPS) was signed by both parties on or about April 26, 2020.  
1247249 B.C. Ltd. v. 1098212 B.C. Ltd.  
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Contract of Purchase and Sale  
[17] The CPS is six pages long and has a one-page schedule. It is not on a  
standard real estate board form. It was drafted by the plaintiff’s lawyer, Mr. Rainey.  
[18] Section 1 provides that the purchase price is to be $5,750,000. It states that  
the purchase price does not include GST, and that the buyer is to make its own  
investigation as to GST applicability. Section 1(b) states that:  
Upon the Buyer removing the Conditions precedent as set out in Section 3 of  
this Offer, the Buyer will increase the Deposit to Four Hundred Thousand  
($400,000) Dollars to be deposited with and held in Trust by the Buyer’s  
Realtor and applied to the purchase price upon completion of this transaction.  
[19] Pursuant to Section 8, the Buyer was to have the right to require the Seller to  
take a mortgage, the Seller Take Back Mortgage (the “STB Mortgage”), the terms of  
which were set out in Schedule A to the CPS. Schedule A is reproduced as a  
Schedule to these reasons for judgment. It provides for a first mortgage registered  
against the Property with a principal amount of $4,750,000, with terms including:  
a) A 25-year amortization, with a term of 5 years and 6 months, open;  
b) Interest of 3.9% for the first three years and 4.9% thereafter;  
c) No payments for the first 20 months, following by amortized payments  
after that time;  
d) The Buyer may obtain a partial release of the STB Mortgage in respect of  
any lots subdivided from the main parcel (which are referred to as “release  
lots) by paying an amount equal to $85,000 per acre.  
[20] Section 3 sets out several conditions precedent, which include:  
a) Completion of a satisfactory (to the Buyer) environmental study which is  
to be provided to the Seller;  
 
1247249 B.C. Ltd. v. 1098212 B.C. Ltd.  
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b) Confirmation with the City of Nanaimo that “the current zoning will permit  
the Buyer’s intended use for the Lands, which intended use includes  
subdivision of the Lands”; and  
c) The Buyer “being satisfied, in its sole discretion, with the economic  
viability and feasibility of redevelopment of the Lands”.  
[21] In connection with the environmental study, Section 3 provides that the  
“Buyer understands that the Seller is not obligated to provide access to the Lands  
until such time as the Buyer provides the Seller with confirmation of $4,000,000  
liability insurance”.  
[22] Section 3 provides that these conditions are for the sole benefit of the Buyer,  
and that:  
The Conditions Precedent are to be removed or waived by the Buyer on or  
before the date that is seven (7) months following the Seller’s acceptance of  
this Offer (the “Condition Precedent Removal Date”). If the Buyer fails to  
notify the Seller, in writing, that the Conditions Precedent have been satisfied  
or waived within the time specified, then this Offer will become null and void  
and the Deposit with accrued interest will be returned in its entirety to the  
Buyer.  
[23] In addition, Section 3 states that the Buyer agrees to “provide Seller with  
copies of any and all studies and reports commissioned by the Buyer pursuant to  
this Section 3, as same become available to the Buyer”.  
[24] Section 6, Additional Terms, includes the following:  
a) Agreement by the seller to sign documents that may be required for the  
Buyer to obtain rezoning, subdivision approval, development permits,  
community plan amendments or building permits to further the Buyer’s  
intended use; and  
b) A covenant that, provided the City agrees:  
… the Buyer will assign the name “Wenngatz” to one street in the  
development, the physical location of which shall be mutually agreed  
upon between the Buyer and the Seller, both acting reasonably.  
1247249 B.C. Ltd. v. 1098212 B.C. Ltd.  
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[25] Section 7 provides that the completion date shall be “that date which is five  
(5) months following the date upon which the Buyer accepts or waives the  
Conditions Precedent”.  
[26] There is a time of the essence clause in Section 10, which also provides that:  
It is understood that there are no representations, warranties, guarantees,  
promises or agreements other than those contemplated in this Offer.  
Due Diligence  
[27] Once the CPS was signed, the plaintiff began a process of due diligence. It  
hired an architect to perform master planning; an environmental consultant to look at  
environmental issues overall, as well as to specifically conduct a landmark tree  
survey and develop a tree management plan; a geotechnical engineer to look at  
issues such as slope and soil stability; a surveyor to prepare detailed plans for the  
site based on the evolving design; a civil engineering firm to begin planning sewer,  
water, lighting and other infrastructure; a traffic consultant to prepare a traffic  
analysis; and a construction estimator to prepare projections for the cost of servicing  
the development.  
[28] At trial, the defendant challenged whether the plaintiff had in fact done any  
development work. The defendant pointed to one document in the materials  
provided that was a proposal containing hourly billing rates for the architectural firm,  
and asserted that all the plaintiff had done was collect information on possible  
consultants. Having reviewed the extensive documentation in the record with respect  
to this due diligence work, it seems clear that significant work was done. The  
documentation includes numerous invoices issued to the plaintiffs many of which  
acknowledge retainers or payment of past accounts, as well as some credit card  
receipts. There are detailed reports and drawings.  
[29] It also seems clear that these various reports were communicated to the  
defendant. Initially, Ms. Wenngatz testified that nothing was provided to the  
defendant other than proposals that hadn’t been acted upon. Ultimately, as  
documents were presented and Mr. Robinson confirmed receipt of them, it became  
 
1247249 B.C. Ltd. v. 1098212 B.C. Ltd.  
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clear that the plaintiff had provided substantial information to the defendant through  
Mr. Robinson including a significant number of documents on August 25 and 26,  
2020.  
[30] Various approximate amounts were stated as to the cost of all of this work. At  
one point, it was suggested that the plaintiff had spent $200,000 by mid-October,  
2020, and another $200,000 between then and early December 2020. I note that  
several invoices were issued to the plaintiff by Hayat Contracting, which apparently  
represent charges for Mr. Doar’s time and effort in advancing the development.  
While there is no suggestion those were not proper charges for accounting  
purposes, in the context of balancing the equities between the parties in an action  
like the present, I see those as a representation of the time and effort of the principal  
of the plaintiff, but substantively different than actual out-of-pocket amounts paid to  
third parties.  
[31] The invoices in the record indicate that by October 20, 2020, the plaintiff had  
been billed $121,000 by external consultants and just over $90,000 by Hayat  
Contracting. By the end of December, the total billed had increased to $207,330  
from external consultants and $127,550 from Hayat Contracting. These invoices do  
not include any charges for legal or accounting fees, and Mr. Doar was never asked  
whether the invoices in the record were complete.  
[32] One of the documents in the record at trial is an appraisal which is dated  
June 4, 2020. This appraisal was not provided to the defendant until it was disclosed  
in this litigation. The defendant argued that it was a study or report “commissioned  
by the Buyer pursuant to” Section 3 of the CPS, in that it was part of the plaintiff’s  
consideration of “the economic viability and feasibility of redevelopment of the  
Lands”, and should have been disclosed in the summer of 2020. Mr. Doar’s  
evidence was that all he received in the summer of 2020 was a draft, which was  
based on what the seller had represented to be the available number of lots, and  
that the final report was not actually issued until early 2021. While the defendant  
cast doubt on that evidence, I do note on reviewing the appraisal that among the  
1247249 B.C. Ltd. v. 1098212 B.C. Ltd.  
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documents the appraiser is said to have relied on is a “project summary and  
massing provided by Boldwing Continuum Architects, dated October 21, 2020”. It is  
clear that the appraisal in evidence was completed no earlier than October 22, 2020  
and most likely some time thereafter.  
[33] The evidence includes an email from the architect to Mr. Doar on  
September 9, 2020, indicating that based on the results of the studies done to that  
point in time and preliminary discussions with city staff, it appeared that the  
maximum achievable number of units was 507, and that the plans he was then  
working on reflected 467 to 496 units. This was significantly less than the 596 units  
referenced in the MLS listing, which led Mr. Doar to consult with Mr. Deleskie about  
the possibility of seeking a reduction in the purchase price, or alternatively looking at  
different ways to structure the transaction. Mr. Deleskie expressed the view that  
Ms. Wenngatz was unlikely to agree to drop the price.  
[34] Mr. Doar also gave evidence that by mid-September, his consultants had  
determined that the city would require sewer and water services to come by way of a  
tunnel from an existing subdivision north of Highway 19, rather than from Harewood  
Mines Road which was the road giving access to Lotus Pinnatus Way. This again  
was different from what had been stated in the MLS listing. Mr. Doar’s evidence was  
that the city’s requirements led the estimates for the cost of servicing the  
development to increase from $9 million to approximately $13 million.  
[35] On September 22, 2020, Mr. Doar emailed Mr. Deleskie and asked him to set  
up a meeting with Ms. Wenngatz, with proposed meeting dates in mid-October. He  
explained to Mr. Deleskie that “We will be completing our analysis and present it to  
the seller.” Mr. Deleskie emailed Mr. Robinson requesting the meeting, using the  
same words as in the email he had received from Mr. Doar.  
[36] Mr. Robinson forwarded this email to Ms. Wenngatz the next day, who  
responded by text saying:  
1247249 B.C. Ltd. v. 1098212 B.C. Ltd.  
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Send Jay Deleskie an email. And ask him to make sure that we have copies  
of all reports one week prior to our meeting on October 20, 2020 so we can  
review everything.  
And I want to make sure that you record everything for me please on voice  
recorder.  
October 20, 2020 Meeting  
[37] Although at one point Ms. Wenngatz indicated she would not attend the  
meeting on October 20, ultimately it went ahead with Ms. Wenngatz, Mr. Doar, and  
the two real estate agents all present. Mr. Robinson did not record the meeting, nor  
were any formal minutes kept. Rather, there was extensive and conflicting evidence  
at trial from each of the four participants as to what occurred at this meeting.  
[38] The meeting took place at Mr. Deleskie’s office. Mr. Deleskie had  
photocopied a number of the reports that the plaintiff had obtained from its various  
consultants, of which there were copies on the table. Most if not all of these reports  
had been previously emailed by Mr. Deleskie to Mr. Robinson. Mr. Deleskie gave a  
few introductory remarks, then Mr. Doar began his presentation.  
[39] Mr. Doar’s presentation involved a high-level review of the engineering that  
had been done, the overall vision for the project, and the plans for servicing the  
proposed new development. Mr. Doar identified the two key issues that were  
concerning him: the number of units that could be developed being significantly  
lower than as represented in the MLS listing, and the fact that the city’s requirements  
for site servicing were going to lead to a significantly higher cost of servicing than  
what Mr. Doar had previously anticipated.  
[40] These issues were cited by Mr. Doar as the basis to request a reduction in  
the purchase price of the Property. Ms. Wenngatz quickly rejected that request.  
Mr. Doar’s recollection was that Ms. Wenngatz told him that she could help with  
other matters but the price was firm.  
[41] Mr. Doar then proceeded to identify three other items that he believed would  
make the deal work for him. First, he requested delaying the deadline for removal of  
 
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the conditions precedent to December 7, 2020. Second, he asked that the amount of  
the down payment be reduced from $1 million to $700,000. Third, he asked that the  
provisions for payment to obtain partial release of subdivided lots from the overall  
STB Mortgage be varied, such that rather than paying $85,000 per acre in order to  
obtain a full release of each lot, the plaintiff would pay $30,000 per acre and grant a  
mortgage in respect of the released lot for $55,000 per acre (being the balance of  
the $85,000 amount) with that mortgage to be postponed to construction financing.  
[42] While Ms. Wenngatz sought to characterize Mr. Doar’s requests as being  
vague and rambling, having reviewed all of the evidence I conclude that the requests  
were specific and there was a common understanding between those at the meeting  
as to what the requests were.  
[43] In addition to these items, Mr. Doar indicated that he was willing to commit to  
use the name Wenngatz Way for the main road in the development.  
[44] Mr. Doar also raised the prospect that he might be able to complete the CPS  
earlier than as provided in the CPS. His evidence was that this was something he  
was proposing to do on a best efforts basis and not a specific commitment.  
[45] The parties do not agree on whether there was acceptance of these proposed  
amendments to the CPS, whether there was sufficient certainty to the amendments,  
or whether there was consideration for the amendments. I will deal with all of those  
issues below.  
[46] There was a discussion at the meeting of the need to reflect any agreement in  
writing. The plaintiff asserts that this related to documenting an agreement that had  
been made; the defendant asserts that this reflected negotiation of an actual  
agreement in light of what was at best an agreement to agree.  
[47] The parties disagreed as to how long the meeting was. No one actually kept  
track of the meeting length. Mr. Doar estimated an hour, Mr. Deleskie estimated 30-  
40 minutes, while Ms. Wenngatz and Mr. Robinson estimated 30-45 minutes. Given  
the nature of the discussions, a time estimate of 45 minutes sounds realistic.  
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[48] During the meeting, Mr. Doar jotted down a few words on a page from one of  
the reports. In my view, those words are vague and of no assistance in determining  
the result of the meeting.  
[49] Ms. Wenngatz and Mr. Robinson left Mr. Deleskie’s office together after the  
meeting. They both said that, while they chatted in the parking lot, Ms. Wenngatz  
expressed the view that the plaintiff might not have the money to go ahead with the  
transaction.  
After the Meeting to November 24, 2020  
[50] At 3:17 pm on the afternoon of October 20, 2020, Mr. Doar emailed  
Mr. Rainey’s paralegal, Ms. Coleman, stating:  
We are amending the followings:  
1. Subject removal and payment of by Dec 7, 2020, and payment of  
400,000 in trust  
2. Second payment is 300,000 to complete the sales transaction Not  
600,000  
3. Partial Release of STB: The amount is 30,000 Per Acre, and she  
wants 50,000 upon the sales of the released LOTS. She wants us to  
secure the 50,000 Per Acre as second mortgage after we get our  
financing, but we advised the seller that most bank would refuse  
second mortgage.  
We kindly ask Richard to advise us of other solution to 100% secure her  
interest. She implied that I can sell the lots and I could be in Mexico and she  
would be at risk by not getting the 50,000 per acre.  
[51] The evidence indicated that the meeting that day had started at noon. Thus,  
this email was sent about two and a half hours after the conclusion of the meeting.  
[52] Mr. Doar followed up with Ms. Coleman on October 21, 2020, stating:  
Can we please try to finish by Friday. The seller is unpredictable and may  
change her mind.  
[53] He followed up with Mr. Rainey directly on October 26, 2020, stating:  
The seller is unpredictable and may change her mind. We need to amend the  
contract as per my below email.  
 
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[54] Ms. Coleman emailed a draft amendment to Mr. Doar on October 28, 2020.  
Mr. Doar provided comments on it. A revised version was provided to Mr. Deleskie  
on October 29, 2020 (the “October 29 Addendum”), which he emailed to  
Mr. Robinson at the end of that day. Mr. Deleskie’s email stated:  
Please see attached addendum as per our meeting that the lawyers  
prepared.  
[55] He concluded by noting that he was “looking forward to closing this one  
together”.  
[56] The October 29 Addendum dealt with the amendment to the CPRD by  
deleting the words in Section 3 that referenced “the date that is seven (7) months  
following the Seller’s acceptance of this offer” and replacing them with “December 7,  
2020”.  
[57] With respect to the reduction in the down payment, the October 29  
Addendum replaced the reference to $4,750,000 in Schedule A of the CPS with  
$5,050,000. This makes sense given that the CPS made no explicit reference to a  
down payment. Rather, the CPS specifically set out the total purchase price, the  
amounts of the deposits, and the amount of the STB Mortgage in Schedule A. The  
parties’ use of the phrase “down paymentin their discussions at the October 20  
meeting was clearly intended to mean the total payment to be made on or before  
closing, which in my view reflects the common use of that phrase. However, the  
CPS did not use those words. Rather, the amount to be paid on closing had to be  
inferred by reference to other amounts set out in the CPS. A $300,000 increase in  
the STB Mortgage amount had the effect of decreasing the down payment by  
$300,000.  
[58] With respect to the partial release of the STB Mortgage on subdivided lots,  
the October 29 Addendum proposed to replace the provisions in Schedule A of the  
CPS for partial release of the STB Mortgage (quoted at para. 19(d) above) with the  
following:  
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Page 16  
In the event the Buyer subdivides the Lands, the Buyer shall have the right to  
release, at any time or times, the STB registered on title to any one of or  
number of individual lots (the “Release Lot”) on the following terms and  
conditions:  
A. The Buyer will deliver to the Seller:  
(i) an amount equal to $30,000.00 per acre as a partial payment of the  
STB, which amount will be apportioned for any lot or lots the area of  
which is less than one acre, plus all accrued interest under the STB  
attributable to the Release Lot (the “Partial Payout Amount”);  
(ii) a Land Title Office Form C, Release of Mortgage (the “Release”)  
completed to include all Release Lots, and  
(ii) a Land Title Office Form B, Mortgage (the “Replacement Mortgage”)  
over the Release Lot, completed to include the following terms:  
Principal Amount:  
An amount equal to $50,000.00 per acre of the  
Release Lot  
Interest Rate:  
0.0%  
Interest Adjust Date: N/A  
Interest Cal Period: N/A  
Payment Dates:  
First Payment Date: N/A  
Periodic Payment: N/A  
N/A  
Interest Act Statm’t: N/A  
Last Payment Date: N/A  
Assignm’t Rents:  
N/A  
Place of Payment:  
Postal Address in Item 4  
Balance Due Date: The Principal Amount shall be repaid on the  
date that is the earlier of (a) the due date of the  
original STB; or (b) the date that the Release  
Lot is sold or transferred.  
[59] The document also included a priority provision, as follows:  
B. If requested by the Buyer, the Seller agrees to sign a priority agreement in  
connection with any Release Lot being mortgaged by the Buyer, the  
proceeds of which are to be used to benefit all or any part of the Lands.  
[60] Mr. Doar said that he hadn’t noticed the 0% interest rate, and agreed that was  
not something he thought had been agreed to. As well, the two numbers ($30,000  
and $50,000 per acre) due in respect of any release lot did not add up to the  
$85,000 per acre release price set out in the STB Mortgage. Mr. Doar confirmed that  
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this was an error as well, as there had been no discussion of a change to the  
$85,000 amount.  
[61] There were various texts between Ms. Wenngatz and Mr. Robinson over the  
next few days, scheduling a time to get together to review the October 29  
Addendum. Ms. Wenngatz noted in a text at 11:39 am on November 2, 2020, that:  
There are changes which need to be made and I just want to make sure I  
have time.  
[62] On November 3, 2020, Mr. Deleskie sent an email following up on the  
October 29 Addendum, and providing some explanation of the priority agreement  
provision:  
You will note that any release on any of the lands of the VTB is solely to be  
able to get construction financing to service the whole site to carry forward  
developing the site, as such every time a construction loan is put on a  
specific property that has the VTB released by way of paying the 30K per  
acre it is solely able to be used to better the whole site as it will be only  
dispersed to pay for offsite servicing which will be increasing the value of the  
whole site which Irene will have covenants against for the VTB and the 50K  
per acre balance from the released lot.  
Just wanting to clarify that there is no risk to Irene by releasing the VTB on  
specific sites as it’s only being done to improve the whole site which is where  
she has all her security etc.  
I’m sure you understand this but I wanted to make sure so we are clear and  
able to process accordingly.  
[63] Shortly thereafter, Ms. Wenngatz texted Mr. Robinson, commenting:  
Because we have a firm dec 7/2020 condition removal date. We now need to  
put a firm possession date in the amendment.  
[64] This presumably reflects Ms. Wenngatz having realized that the completion  
date was defined in Section 7 of the CPS as being five months after the date of  
condition waiver or removal, and thus an extension of the CPRD would indirectly  
result in an equivalent extension of the completion date unless specified otherwise.  
[65] At 5:18 pm on November 3, 2020, Mr. Robinson emailed Mr. Deleskie stating:  
Please see below for what Irene wants to see in the contract in addition to  
amending the Completion Date to January 28, 2021.  
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Financing available only up to the amount taken out of the parcel which is  
a maximum of $30,000 per acre that is removed. The balance of the per  
acre price ($55,000 per acre) is to be registered as a mortgage; by the  
Seller, on to the parcel that has been removed. Interest is to be calculated  
at 4.9% and is to be paid at the point of sale of each parcel. All legal  
consultations, all legal fees, all registration fees of the mortgage, and  
Land Title fees to be paid by the Buyer to the Seller and added to the  
mortgage amount of the parcel removed. The maximum length of this  
mortgage will be 1 year after removal of the land parcel, after which the  
Buyer will have to find their own financing. As the down payment is being  
reduced by $300,000.00 it will repaid by either:  
1. Lump sum payment at the end of the 6 month period or;  
2. Payment of $50,000 per month for the 6 months following.  
[66] As can be seen, the defendant proposed through this document that the  
completion date be moved forward by approximately three months from the end of  
April 2021 to the end of January 2021. Nothing is said in this document about the  
CPRD.  
[67] Mr. Deleskie forwarded this email to Mr. Doar on Friday, November 6.  
[68] Mr. Doar expressed concern in his evidence about these provisions. He was  
not confident he could commit to an earlier completion date, and did not want to  
include that in any agreement. While he had no problem with the 4.9% interest rate,  
he was concerned about the maximum one-year term of the mortgage on the  
release lots given that he anticipated construction on those lots would take more  
than a year to complete, and did not expect to sell any released lot until he had  
completed a development on it. Finally, he had understood that the $300,000  
reduction in the down payment would simply become part of the overall STB  
Mortgage and had not anticipated having to repay it in the first six months after  
completion at a time when there was no anticipated revenue.  
[69] These concerns appear in an email Mr. Doar sent to Mr. Deleskie on the  
morning of November 6, 2020. Mr. Doar begins his email by stating:  
This is not what we agreed on.  
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[70] Mr. Doar obtained a further draft addendum from his lawyer (the  
November 16 Addendum”), which Mr. Deleskie provided to Mr. Robinson on the  
evening of Monday, November 16. The email (which appears to have been drafted  
by Mr. Doar and just pasted into Mr. Deleskie’s email) commented:  
We accepted the seller conditions. However the amendment to change the  
closing, is difficult to meet. We don’t want to change the date.  
I know that I did communicate during our meeting that I want to have the  
option to close earlier, but I have to be on the safe side as part of my funds  
are coming from other projects and overseas. Therefore, I have to allow  
myself enough time just in case, but it is in my best interest to close earlier.  
As for the reduced down payment for the amount of 300,000, it shall be  
repaid on the date of the Release Lot is sold to an arms-length third party.  
Please review the attached and above with the seller so we can finalize by  
early next week  
[71] The November 16 Addendum, was similar to the October 29 Addendum,  
except that:  
a) The principal amount of the Replacement Mortgage was corrected to  
$55,000 per acre of the Release Lot;  
b) The interest rate was set at 4.9%;  
c) The Balance Due Date was changed to provide for repayment:  
… on the date which is the earlier of: (i) the Release Lot is sold to an  
arm’s length third party; or (ii) one (1) year following the day upon which  
the Release Mortgage is executed, in registrable form, by the Seller.  
d) The addendum included provision for payment of the seller’s reasonable  
legal fees associated with the Replacement Mortgage; and  
e) The Buyer was to make a partial payment of $300,000 on the STB  
Mortgage upon the sale of a Release Lot to an arm’s-length third party.  
[72] On the afternoon of November 17, 2020, Mr. Robinson provided  
Ms. Wenngatz with a draft response to the addendum. Ms. Wenngatz responded,  
instructing by email at 7:05 pm that evening to “forget about the possession date”.  
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The next morning there were a series of texts from Ms. Wenngatz to Mr. Robinson,  
one of which stated:  
I also want written in there that buyer agrees to name the Main Street  
WENNGATZ WAY as per the drawings presented to seller on. (What was the  
date of our meeting?)  
[73] Mr. Robinson and Ms. Wenngatz exchanged further emails on November 19,  
2020. At 10:36 am, in response to a draft reply email from Mr. Robinson, she  
commented:  
You gotta put the 85,000$ first then the next is the cash 30,000$ then  
balancing financing is available only up to 55,000$  
[74] At 10:54 am, in response to an email from Ms. Wenngatz stating that  
“Everything is good now”, Mr. Robinson stated “I will send it over”. Ms. Wenngatz  
replied at 10:55 am “Take it or leave it”.  
[75] At 1:02 pm on November 19, Mr. Robinson emailed Mr. Deleski stating:  
As per Irene, she would like the following (see below) into the amendments to  
replace section 3.B b. and the assignment paragraph. She also wants to add  
4, 5, 6 into the agreement. Should be fairly minor changes to what is there  
and it would be great if we did not get any further changes back.  
3.B.b. The total amount payable to the Seller to remove an acre of land is  
$85,000.00. Financing is available only up to the amount taken out of the  
parcel which is a maximum of $30,000 cash per acre that is removed. The  
balance of the per acre price ($55,000 per acre) is to be registered as a  
Seller Take back mortgage; by the Seller at the Buyer’s expense, on the  
parcel that has been removed. Interest is to be calculated at 4.9% and is to  
be paid at the point of sale of each parcel. The maximum length of this  
mortgage will be 1 year after removal of the land parcel, after which the Buyer  
will have to obtain their own financing. The Seller will pay for the initial  
conveyance of the parent parcel only; 103 Lotus Pinnatus Way. Buyer will  
pay for drafting and registration of the mortgage. All other legal consultations,  
all legal fees, all registration fees of the mortgage, and Land Title fees to be  
paid by the Buyer to the Seller and added to the mortgage amount of the  
parcel removed.  
As the down payment is being reduced by $300,000.00 it will be repaid in the  
following installments:  
$100,000 September 1, 2021  
$100,000 March 1, 2022  
$100,000 September 1, 2022  
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4.  
5.  
Completion, possession and adjustment dates will be March 1, 2021.  
As discussed in the meeting on October 20, 2020, the Buyer will  
name the main street of the subdivision “Wenngatz Way” as per the drawing  
presented at the meeting.  
6.  
Buyer must pay their own GST if applicable including, but not limited  
to, land subdivision. …  
[76] While the November 19, 2020 email from Mr. Robinson was framed as setting  
out additional terms to be incorporated into the addendum, on a close reading of this  
email the words “replace 3.B.b” can be read as intending to have Ms. Wenngatz’s  
drafting of the bulk of the addendum replace the drafting that had been done by the  
plaintiff’s lawyer. Ms. Wenngatz gave evidence that she intended this wording to  
communicate her disagreement with the provisions stipulating for the defendant to,  
on request, grant priority for construction financing with respect to the $55,000  
mortgages on the release lots. Nothing in any of the previous correspondence  
indicated any disagreement with respect to that provision, and no request to delete  
the priority provision was ever made expressly. Neither Mr. Doar nor Mr. Deleskie  
understood Ms. Wenngatz to be objecting to the priority agreement. Mr. Doar and  
his lawyer treated the points expressly made in the November 19, 2020 email as  
comments on the November 16 Addendum, changing the document to reflect the  
substance of those points that were accepted, but maintaining the format of the  
addendum.  
[77] Having reviewed the correspondence, it is clear that none of Mr. Doar,  
Mr. Deleskie or Mr. Robinson understood at any time in November 2020 that there  
was any objection to the priority provision.  
[78] At 12:03 pm on November 21, 2020, Mr. Deleskie emailed Mr. Robinson  
commenting:  
Reviewing, are we able to keep the original closing date?  
I know Mohammad would like to close earlier if he can but he is not 100% yet  
that he can move closing up to March 1st so can you go over that with Irene  
and at least have that be the same as original dates as we know 100% we  
can close on those dates, and if anything changes so that we can close early  
we would just send notice to you to request an earlier closing once we are  
100% that we can close earlier.  
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[79] At 10:00 pm on November 22, 2020, Mr. Doar emailed Mr. Deleskie stating:  
[Ms. Coleman] will make the amendments, but the closing date won’t change.  
also, the payment of the 300k will be paid as follows:  
1. 100,000 On or before January 30, 2022  
2. 100,000 on or before April 30, 2022  
3. 100,000 on or before September 30, 2022  
All other terms are acceptable. Please get the verbal approval so [Ms.  
Coleman] can finalize  
[80] Mr. Robinson responded to Mr. Deleskie’s November 21 email at 11:01 am  
on November 23, 2020, stating:  
Irene agreed to keep the closing date at April 26, 2021 which is what the  
original contract points to. She would like to see that concrete date referred to  
in any amended paperwork going forward.  
[81] The plaintiff’s law firm prepared a revised draft amendment on November 23,  
2020. It added some of the terms proposed by Ms. Wenngatz, but no longer had the  
amendment to Section 3 of the CPS that would change the subject removal date to  
December 7, 2020. Mr. Doar emailed Ms. Coleman stating:  
I reviewed it but I can’t find where the subject removal date has been  
extended to December 7th, 2021. Please advise.  
[82] The reference to December 7, 2021, rather than December 7, 2020, was  
inadvertent. However, it did not get picked up by anyone for several days.  
[83] Ms. Coleman quickly sent Mr. Doar a revised addendum (the “November 24  
Addendum”) with a provision to extend the CPRD to December 7, 2021. Mr. Doar  
signed it electronically and provided it to Mr. Deleskie.  
[84] The November 24 Addendum included various other additions reflecting  
matters the parties had been negotiating:  
a) It included various amendments to Section 6 (Additional Terms) of the  
CPS, providing for the naming of the Main Street as Wenngatz Way, for  
the Buyer to pay any applicable GST, and for legal and registration costs;  
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b) A specified completion date of April 26, 2021; and  
c) With respect to the payment of the $300,000, provision for payments of  
$100,000 on each of October 30, 2021, March 1, 2022 and September 1,  
2022.  
[85] At 1:16 pm on November 24, 2020, Mr. Deleskie sent the signed  
November 24 Addendum to Mr. Robinson, stating in the email:  
Attached the amendment signed per the seller request, and I attached the  
previous contract for reference.  
Correspondence of November 26 to 28, 2020  
[86] There was no further correspondence between the parties until November 26,  
2020. Mr. Robinson and Ms. Wenngatz exchanged texts that afternoon, in which  
Mr. Robinson asked Ms. Wenngatz to give him a call “as the contract expires today”.  
Mr. Robinson explained that it was his understanding that November 26, 2020, was  
the CPRD. [The defendant, in closing submissions, accepted that on a proper  
interpretation of the CPS provisions for condition removal, the actual CPRD apart  
from any extension was November 27, 2020.]  
[87] At 4:52 pm that day, Mr. Deleskie emailed Mr. Robinson to follow up on  
getting the signed November 24 Addendum from Ms. Wenngatz. He stated:  
From the last email from Irene the buyers agreed to and added in everything  
requested. They feel they have agreed to everything requested of them and  
are ready to move forward and after spending all the time and money on the  
project certainly are wanting to work with Irene.  
We can remove the word reasonable if you like, but it does state below that  
the buyers are responsible for all legal fees relating to the mortgage being  
registered, etc.  
Let me know as they are wanting to get this finalized.  
[88] It appears this relates to an objection by Ms. Wenngatz, communicated  
verbally, to a contractual provision for the Buyer to pay the Seller’s “reasonable”  
legal fees in respect of the mortgages on release lots. She wanted to have the word  
 
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reasonable removed with a view to avoiding disputes as to whether her solicitors  
fees were reasonable.  
[89] Mr. Robinson replied by text at 4:53 pm as follows:  
Hi Jay Irene does not want to provide the financing she has cited that the  
changes are always a fight and she is reluctant to spend the next 5 years  
arguing about things. I really tried to have her see it another way but to no  
avail.  
[90] Mr. Deleski texted back that:  
She agreed to it originally?  
Then my clients spent a couple hundred thousand dollars.  
to which Mr. Robinson replied “I’m trying”. Mr. Deleskie followed up with:  
The clients had to pay another couple hundred thousand after we met her  
that day after she agreed to these terms  
[91] As this was going on, Mr. Robinson forwarded the 4:52 pm email from  
Mr. Deleskie to Ms. Wenngatz, stating:  
Just came in. I did just text Jay and reiterate your feelings on the financing.  
[92] Ms. Wenngatz replied to this at 5:10 pm, stating:  
I am not doing the financing any longer too much headache  
[93] At 5:38 pm, Mr. Doar sent an email to Mr. Deleskie which was intended to be  
forwarded on to Ms. Wenngatz. It stated:  
I want to confirm to you that I have instructed the lawyer and you were copied  
to accept all Irene’s conditions without any modifications. If there is a minor  
changes, it was due to mistyping and we have no objection changing it back.  
If the first 100k payment is on September 1 2021, we have no objection to  
this request.  
Further, we have no intention to making any further changes on the STB or  
any terms in future. We have spent substantial amount to complete our study  
by October, and we proceeded in detailed surveying and geotechnical  
analysis and hired more consultants since our last meeting. Our cost is  
almost 350k not including our dedicated time to proceed into this project.  
Please note we can pass the 400k Dec 7th, 2021 and are okay for Irene to  
take the $400k from trust providing that we sign option to purchase. We are  
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Page 25  
fine on this. This will be here decision and we are still committed to all the  
terms in the agreement without further changes.  
I confirm no further changes in the future  
[94] The evidence indicates that what Mr. Doar and Mr. Deleski understood at this  
time to be the “minor change” due to “mistyping” was leaving the word “reasonable”  
in with respect to payment of the defendant’s legal fees.  
[95] Mr. Deleskie forwarded this email to Mr. Robinson at 6:13 pm, stating “please  
forward to Irene”, and sent Mr. Robinson a text shortly thereafter stating:  
Email Sent to you. Please send to Irene and you should have lots to work  
with there to help her see moving forward is a great decision.  
[96] At 6:18 pm on November 26, 2020, Mr. Doar sent Mr. Deleski a revised  
addendum (the “November 26 Addendum), which he had also signed, stating:  
Hi Jay,  
I have fixed the mistakes and the terms are according to Irene request.  
[97] Mr. Deleskie forwarded this document to Mr. Robinson at 6:23 pm. He  
followed up with a text saying “Also sent you the corrected contract as per Irene’s  
exact requests.” Mr. Robinson forwarded the document to Ms. Wenngatz at 6:48 pm.  
[98] I have reviewed the November 26 Addendum. It was mostly identical to the  
November 24 Addendum, except that:  
a) The completion date was changed from April 26, 2021 to April 27, 2021;  
and  
b) The date for the first $100,000 payment was changed from October 30,  
2021 to September 1, 2021.  
In particular, the November 26 Addendum still included the word “reasonable” with  
respect to the plaintiff paying the defendant’s legal fees.  
[99] Ms. Wenngatz wrote to Mr. Robinson at 7:04 pm stating:  
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Still Wrong.  
B. I won’t postpone any more than 30,000$ per acre.  
[100] It is clear from the above review of the parties’ correspondence that this was  
the first time Ms. Wenngatz had said that she would not postpone the full $55,000  
that had appeared in all prior versions of the addendum and in the emails sent on  
her behalf.  
[101] She followed up with a second email to Mr. Robinson two minutes later  
stating:  
No there are still too many problems. Just not interested in giving this  
mortgage. I can see nothing but problems. They have words in there like  
reasonable legal fees. Everything could turn into an argument.  
[102] Mr. Robinson replied to Ms. Wenngatz at 7:11 pm stating:  
Jay said he was going to change that and he messed it up, I told him that was  
a huge sticking point! I will tell him the error, I am not sure how the  
postponement clause should be written either actually. Let me know and they  
will change everything, these guys are desperate now and I do believe they  
will bend to whatever you say at this juncture. If there is any demand that you  
have just tell me and I will tell them and work with them to make sure you are  
delivered a document that is completely satisfactory. (There are always a few  
things I need help with like the postponement part.) Thanks, Lee  
[103] One minute later, Ms. Wenngatz replied to Mr. Robinson saying “Lee don’t  
waste your time any more.” Mr. Robinson responded that he had told Mr. Deleskie  
that “he isn’t helping himself sending me another document with incorrect changes”,  
to which Ms. Wenngatz replied at 7:18 pm stating:  
I have cold feet don’t want to do this mortgage.  
[104] Mr. Robinson emailed Mr. Deleskie at 7:19 pm stating:  
I think that the seller is done tonight, I am going to hold off sending anything  
further as she has indicated that she is not willing to look at anything more. I  
will keep trying.  
[105] Mr. Deleskie emailed Mr. Doar at 8:02 pm stating:  
She says it is still wrong, she won’t postpone more than $30,000 per acre, but  
at least I got a response. I am not sure how to write that up, do you have any  
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ideas? You kept the legal fees as reasonable legal fees not all legal fees, that  
isn’t helping me convince Irene. Can you word it that the seller will pay all  
legal fees not all reasonable legal fees.  
Please revise and send back, I sent an email that I would work directly with  
you guys to ensure that she received a document that works without revision.  
She doesn’t want the hassle of having to review and change all the time.  
[106] At 8:14 pm, Mr. Deleskie texted Mr. Robinson stating:  
I’ve got him to make both the changes.  
1; adjusting the postponement to be no more than $30k as per her request as  
well removed the wording reasonable and replaced with all legal fees and  
adjusted the date to October for the payment as previously mentioned,  
As far as we see that would be everything that was missed?  
Let me know as you know they are trying to get this to be exactly what was  
requested,  
I apologize for the clerical errors as that’s all they were,  
Looking forward to finalizing., Thx  
[107] Mr. Robinson replied “Thanks Jay, I will keep at it.”  
[108] At 8:32 pm, Mr. Doar emailed a revised signed addendum (the Revised  
November 26 Addendum”) to Mr. Deleskie. It is the same as the one forwarded at  
6:23 pm, except that:  
a) In the postponement provisions, the references to $55,000 and $30,000  
were reversed, such that the amount to be paid in return for a release lot  
was now $55,000, with only $30,000 to be mortgaged,  
b) With respect to the provisions for legal costs of any mortgage, the word  
“reasonable” was replaced with the word “ALL”.  
[109] Mr. Deleskie forwarded this document to Mr. Robinson at 1:11 am on  
November 27, 2020.  
[110] At 10:35 am on November 27, 2020, Mr. Deleski texted Mr. Robinson saying:  
How you making out today?  
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You received everything updated as per her request, it wasn’t done on  
purpose it was clerical errors that have been rectified and you see from his  
email that he wants no changes etc  
I hope she will see she has everything she asked for and is ready to move  
forward so we can move forward to deposit the funds.  
[111] Mr. Robinson replied that he had not been able to get through to  
Ms. Wenngatz that day.  
[112] On Saturday, November 28, 2020, Mr. Deleskie texted Mr. Robinson advising  
that he had just noticed that the subject removal date in the Revised November 26  
Addendum was December 7, 2021. He continued that he had “the buyer adjusting to  
dec 7, 2020 as per our meeting so that the $400k deposit will be deposited same  
day”. He continued:  
My clients carrying on as if we are still in motion and will make the deposit on  
dec 7th. Let’s do our best to get the latest amendment signed so we can  
remove subjects and firm this deal up  
[113] A few minutes later, he emailed Mr. Robinson a signed addendum corrected  
in accordance with his text (the “Final Addendum”). It is identical to the Revised  
November 26 Addendum, except that the CPRD is December 7, 2020 (rather than  
2021).  
Events leading up to and including December 7  
[114] On Monday, November 30, 2020, Ms. Wenngatz emailed Mr. Robinson at  
3:00 pm saying:  
I have read through this again. There is just way too many problems. With  
these guys. I am simply not interested in carrying a mortgage for this group.  
They should go seek their own financing.  
[115] That message does not appear to have been communicated any further at  
that point in time. On the Wednesday, December 2, 2020, at noon, Mr. Robinson  
texted Ms. Wenngatz stating:  
Give me a call when u can on lots, Deleskie seems to think he has until the  
7th to remove subjects, im not so sure about that.  
 
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[116] On the afternoon of Thursday, December 3, 2020, Mr. Doar emailed his  
lawyers with instructions to wire the $400,000 deposit to Mr. Deleskie’s brokerage  
firm on December 7, 2020. That email was forwarded by Mr. Deleskie to  
Mr. Robinson. They also exchanged texts that day. Mr. Robinson texted  
Mr. Deleskie at 5:35 pm stating:  
… do you have the paperwork regarding the dates for deposit and subject  
removal handy? I am between computers right now and it would save me  
some searching.  
[117] Mr. Deleski responded by re-sending his email of November 28, 2020, with  
the latest revision of the addendum (the Final Addendum) signed by Mr. Doar. Later  
that evening, Mr. Robinson texted Mr. Deleskie to thank him, to which Mr. Deleskie  
replied confirming that he would be sending the subject removals on December 7,  
2020.  
[118] On the morning of Friday, December 4, 2022, at 10:22 am, Ms. Wenngatz  
texted Mr. Robinson as follows:  
I am putting you on notice. That With reference to 103 LOTUS THERE IS NO  
VALID SIGNED AND ACCEPTED OFFER ON THIS PROPERTY. SO I WILL  
NOT BE ACCEPTING A DEPOSIT. Please re lay this to Jay Deleskie on  
Monday. Dec 7, 2020 for me  
[119] At 6:13 pm that evening, Mr. Robinson emailed Ms. Wenngatz stating:  
Jay called today and advised that the $400,000 can and will be made non-  
refundable straight to you if the deal goes. Please see below for deposit email  
he sent me yesterday and there is one other communication I will forward as  
well.  
[120] Ms. Wenngatz replied to the email stating:  
There is no deal and I am not accepting the deposit but let him know on  
Monday.  
[121] Ms. Wenngatz, when asked why she gave the instruction not to let the  
purchaser know of her position until December 7, said it was because it was after  
business hours on a Friday. Of course, her instruction to that effect was the same as  
the instruction she had given that morning.  
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[122] Mr. Robinson replied to the email saying “Gotcha, as discussed”.  
[123] On the morning of Monday, December 7, 2020, Mr. Doar emailed Mr. Rainey  
at 9:59 am advising that “we are removing subjects on the above property now”, and  
confirmed his instructions to deposit the $400,000 payment to the trust account of  
Mr. Deleskie’s real estate firm. He then electronically signed the condition removal  
addendum, which Mr. Deleskie received by email at 10:14 am.  
[124] At some point on the morning of December 7, 2020, Mr. Deleskie sent  
Mr. Robinson a series of texts, stating:  
I wanted to share with you my notes from our meeting on October 20, 2020 at  
my office boardroom with the buyer Mohammad Doar & seller Irene  
Wenngatz, yourself (Lee Robinson) sellers representative and myself Jay  
Deleski the buyers representative met to go over the contract of purchase  
and sale dated March 2, 2020.  
We all met at noon and I grabbed coffee and water for the group. We  
discussed the findings of the reports shared them with each other and  
discussed our challenges. My clients was asking to see if we could get an  
adjustment on the price of property which the seller refused to adjust it. We  
then discussed some alternative options that would assist the buyers in their  
closing of the property.  
As I was at the meeting with you and my clients and the seller the following  
was mutually agreed at the meeting by the buyer and seller as adjustments to  
the contract that were mutually agreed,  
1) subject removal date was moved to December 7th, 2020 so that we would  
make the $400000 deposit the same day was approved by all.  
2) we asked to reduce the amount of the down payment from $1000000 to  
$700000 by way of $400000 at subject removal and $300000 on completion.  
This was also approved by all.  
3) we discussed removing parcels from the VTB mortgage by paying out  
$55000 of the currently agreed $85000 to the seller and the seller would  
postpone the remaining $30000 by the buyer paying to register the remaining  
$30000/acre left on the property by way of a registered mortgage. This was  
mutually agreed by all parties.  
The above were the only mutually & verbally agreed changes to the contract  
at this meeting.  
Can you please confirm to me that this is accurate to what you also  
witnessed happen at the meeting?  
I very much so hope everything works out as agreed to as my clients moving  
forward as if it is.  
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Page 31  
When free give me a should no rush just wanted to go over what I’ve sent  
you.  
I’ll send you subject removals shortly.  
Also before we deposit into my trust account do you know if Irene wants the  
$400k herself by signing the offer to purchase?  
[125] Mr. Robinson responded that “I will get back to you shortly before you do any  
of this Jay”. He then left Mr. Deleskie a voicemail to let him know that an email would  
be coming that Ms. Wenngatz had asked him to relay.  
[126] At 10:38 am on December 7, 2020, Mr. Robinson sent an email to  
Mr. Deleskie stating:  
Hi Jay  
The Seller asked me to send this to you with reference to 103 Lotus Pinnatus  
Way:  
There is no valid signed and accepted offer on this property so I will not be  
accepting a deposit.  
I sincerely hoped that this deal was going to proceed. Cheers Lee  
[127] At 12:02 pm, Mr. Deleskie sent an email to Mr. Robinson that stated:  
Please see attached subject removals for this deal as per the agreed new  
subject removal date extension in our meeting on October 20 at my office in  
Nanaimo.  
The buyers placing the deposit in our trust account today and such is firming  
up our accepted offer from March 2 2020 with no changes to that contract  
although we had agreed to some changes at the meeting the buyers  
prepared to move forward with the deal under the terms and conditions  
agreed to on March 2 2020  
[128] The attachment to this email was a standard real estate addendum form  
confirming removal of the buyer’s conditions precedent in Section 3(a) through (e). It  
was signed by Mr. Doar.  
[129] Mr. Robinson forwarded this email to Ms. Wenngatz at 1:21 pm. He sent a  
follow-up email to her stating:  
Jay Deleskie contacted me this morning regarding subject removal and I sent  
along the message you asked me to him. Jay contacted me saying that they  
would be pushing subject removal based on the agreed upon terms at our  
1247249 B.C. Ltd. v. 1098212 B.C. Ltd.  
Page 32  
meeting of the 20th of October to change the sent over.) They are also  
putting in the deposit today.  
Basically they are intending to move forward on this at the initial agreed upon  
terms (no changes from the meeting will be incorporated in). I realize that you  
don’t want this but it is starting to get to legalities, and I would suggest that  
you consult with your lawyer on how …  
The version of this email that was put in evidence unfortunately was cut off. Attached  
to the email was the lengthy text Mr. Deleskie had sent to Mr. Robinson earlier that  
morning.  
[130] Ms. Wenngatz responded to Mr. Robinson at 2:13 and 2:17 pm, saying in the  
two emails that:  
There were no signed written agreements which were accepted!  
There is no legalities. Subjects should have ben removed on the date of the  
March 2, 2020 accepted offer that was NOT DONE!!  
[131] A few minutes later, Mr. Robinson texted Ms. Wenngatz advising that the  
buyer’s lawyer wanted to be in touch with her lawyer, and asking for that person’s  
name. Ms. Wenngatz replied:  
Nope. Unless he is gong to put up a legal retainer.  
[132] Ms. Wenngatz appears to have operated throughout the time from March 2 to  
December 7, 2020, without legal advice.  
[133] At about 2:30 pm, Ms. Wenngatz placed a call directly to Mr. Deleskie and  
denied that anything had been agreed to at the October 20 meeting. Mr. Deleskie’s  
recollection was that Ms. Wenngatz also told him that everything at the meeting had  
been recorded. Mr. Deleskie sent a text to Mr. Robinson to let him know that  
Ms. Wenngatz had called him.  
[134] The plaintiff retained litigation counsel, Mr. Soliman, who wrote to  
Ms. Wenngatz at 3:31 pm, asserting that the parties had agreed to extend the CPRD  
to December 7, 2020, demanding that the defendant confirm it would abide by the  
terms of the contract, and urging Ms. Wenngatz to obtain legal advice. He stated in  
the letter that:  
1247249 B.C. Ltd. v. 1098212 B.C. Ltd.  
Page 33  
The Buyer is willing, ready and able to proceed with the terms of the  
Amendments and the CPS.  
The Buyer will now increase the Deposit (as defined in the CPS) to $400,000  
CAD (the “Funds”). My client advises that the Funds are available in trust at  
Drysdale Bacon McStravick LLP and are ready to be transferred to the  
Buyer’s agent in trust upon receipt of your confirmation. I copy Richard  
Rainey … to this letter.  
[135] Ms. Wenngatz responded to this letter by emails at 3:37 pm and 3:39 pm,  
stating:  
I the buyer did not enter into any further signed agreements with the buyer.  
There is only one contract of March 2, 2020 and the buyer has missed that  
condition removal date. As it stands there is NO EXISTING CONTRACT IN  
PLACE.  
I will not be closing on any offer that does no longer exist and this one does  
not exist.  
[136] At the time these emails were sent, a courier was en route to deposit the  
$400,000 from the trust account of Mr. Rainey’s firm to the trust account of  
Mr. Deleskie’s agency. However, upon receipt of Ms. Wenngatz’s response, the  
courier was recalled and instead Mr. Rainey’s firm provided written confirmation that  
it was holding the $400,000 in trust.  
[137] This action was commenced, and a certificate of pending litigation filed, on  
December 10, 2020.  
Issues  
[138] The plaintiff seeks an order for specific performance of the CPS, arguing that  
it removed the conditions precedent on December 7, 2020, creating a binding  
contract of purchase and sale which the defendant has repudiated by way of an  
anticipatory breach.  
[139] The defendant argues that the CPRD remained at November 27, 2020, that  
the plaintiff failed to remove conditions that day, and that the contract is thus at an  
end. The defendant also raises further objections to the plaintiff’s claim.  
 
1247249 B.C. Ltd. v. 1098212 B.C. Ltd.  
Page 34  
[140] The positions advanced by the parties give rise to a number of issues which I  
will consider in the following order:  
a) Issue 1: Did the parties agree to amend the CPS on October 20, 2020?  
This requires consideration of several sub-issues:  
i. Was there an agreement to amend the CPS or an agreement to  
agree?  
ii. Was any amendment sufficiently recorded in writing?  
iii. Was there sufficient certainty with respect to the amendment?  
iv. Was there sufficient consideration for the amendment?  
v. Did the plaintiff repudiate any agreement to amend by sending  
inconsistent documents?  
b) Issue 2: Is the defendant estopped from denying a CPRD of December 7,  
2020?  
c) Issue 3: Did the defendant commit an anticipatory breach of the CPS?  
d) Issue 4: Was the plaintiff required to pay the deposit to the agent?  
e) Issue 5: Is specific performance an appropriate remedy?  
Issue 1: Did the parties agree to amend the contract on October 20 2020?  
Positions of the Parties  
[141] The plaintiff says that the parties agreed to amend the CPS on October 20,  
2020, to:  
a) Change the CPRD date to December 7, 2020;  
b) Reduce the amount of the down payment from $1 million to $700,000;  
   
1247249 B.C. Ltd. v. 1098212 B.C. Ltd.  
Page 35  
c) Release any lot upon payment of $30,000 and a seller take back  
mortgage of $55,000, to be subordinated to construction financing; and  
d) Name the main street in the development Wenngatz Way.  
[142] The plaintiff argues that what really happened here is that, after the above-  
noted terms were agreed to, the defendant began asking for additional terms which  
were negotiated over the balance of November until November 26, 2020, when  
Mr. Doar sent an email accepting all of the defendant’s proposed terms. Then,  
because the defendant refused to execute the amendment, the plaintiff removed  
conditions based on the original CPS and relied only on the oral agreement of  
October 20, 2020, to extend the CPRD to December 7, 2020.  
[143] The plaintiff argues that its removal of subject conditions on December 7,  
2020, was in accordance with the CPS as amended, and that as a result the CPS  
was in force and wrongfully repudiated by the defendant.  
[144] The defendant argues that there was no agreement to extend the deadline for  
condition waiver or removal, and as a result the CPS ceased to be in effect as of the  
end of the day on November 27, 2020.  
[145] The defendant further argues that, even if there appeared to be agreement as  
to certain amendments:  
a) Any such amendment would not be valid unless in writing,  
b) Any such amendment was void for lack of certainty,  
c) In any event, there was no consideration for any of the proposed  
amendments, and  
d) The plaintiff repudiated any agreement to amend the original contract by  
subsequently sending documents to the defendant that were inconsistent  
with the alleged agreement.  
1247249 B.C. Ltd. v. 1098212 B.C. Ltd.  
Page 36  
Governing Principles  
Reliability and Credibility  
[146] Reliability and credibility are related but distinct concepts. A concise  
explanation of the distinction can be found in R. v. Morrissey (1995), 22 O.R. (3d)  
514 (C.A.) at 526:  
Testimonial evidence can raise veracity and accuracy concerns. The former  
relates to the witness's sincerity, that is, his or her willingness to speak the  
truth as the witness believes it to be. The latter concerns relate to the actual  
accuracy of the witness's testimony. The accuracy of a witness's testimony  
involves considerations of the witness's ability to accurately observe, recall  
and recount the events in issue. When one is concerned with a witness's  
veracity, one speaks of the witness's credibility. When one is concerned with  
the accuracy of a witness's testimony, one speaks of the reliability of that  
testimony. …  
[147] A frequently cited list of factors to be applied when assessing both the  
veracity of a witness and the accuracy of that witness’ evidence is found  
in Bradshaw v. Stenner, 2010 BCSC 1398 at para. 186, aff’d 2012 BCCA 296. It  
includes:  
a) The ability and opportunity of the witness to observe events;  
b) The firmness of their memory;  
c) Their ability to resist the influence of interest to modify their recollection;  
d) Whether their evidence harmonizes with independent evidence that has  
been accepted;  
e) Whether the witness changes their evidence during cross-examination (or  
between examination for discovery and trial) or is otherwise inconsistent in  
their recollection;  
f) Whether their evidence seems generally unreasonable, impossible or  
unlikely;  
g) Whether the witness has a motive to lie; and  
   
1247249 B.C. Ltd. v. 1098212 B.C. Ltd.  
Page 37  
h) The demeanour of the witness generally.  
[148] In considering credibility, the evidence of a witness must be assessed for “its  
harmony with the preponderance of the probabilities which a practical and informed  
person would readily recognize as reasonable in that place and in those  
conditions”: Faryna v. Chorny, [1952] 2 D.L.R. 354 at 357 (B.C.C.A.).  
[149] Further, a trier of fact may accept none, part or all of a witness’s evidence,  
and may attach different weight to different parts of a witness’s evidence: Gill Tech  
Framing Ltd. v. Gill, 2012 BCSC 1913 at para. 28.  
Was there an agreement or an agreement to agree?  
[150] In Le Soleil Hotel & Suites Ltd. v. Le Soleil Management Inc., 2009 BCSC  
1303 at paras. 321-323, Justice Dickson (as she then was) discussed the underlying  
policy tensions and the role the court plays in a case such as this:  
[321] Courts strive to uphold contractual obligations solemnly and freely  
undertaken. They do not, however, impose them upon parties who have not  
reached agreement on all essential terms: Catalyst Paper Corp. v.  
Companhia de Navegacao Norsul, 2008 BCCA 336.  
[322] For parties to be bound in a contractual relationship there must be a  
manifest meeting of the minds. They must express themselves outwardly in a  
manner that indicates both an intention to be bound and reasonably certain  
mutually agreed terms: Klemke Mining Corporation v. Shell Canada Limited,  
2007 ABQB 176, affirmed 2008 ABCA 257 ().  
[323] These fundamental principles of contract law enable commercial life  
to operate in a fair, predictable and efficient manner. They apply whether the  
purported contract in question is concluded in writing, orally, by conduct, or  
by a combination thereof. The key question in all cases is whether an  
agreement has been reached on all essential terms, regardless of its  
form: Catalyst Paper Corp. supra; Periscan Financial Services Inc. v. 519090  
B.C. Ltd., 2007 BCSC 707; Leong & Associates Actuaries & Consultants Inc.  
v. Watt, 2003 BCSC 1885.  
[151] The specific legal principles that determine whether a contract exists were  
carefully summarized by Justice Williams in Salminen v. Garvie, 2011 BCSC 339 at  
paras. 24-33:  
 
1247249 B.C. Ltd. v. 1098212 B.C. Ltd.  
Page 38  
B.  
Basic Requirements  
A contract is usually the product of negotiation, during which the terms  
[24]  
of a proposed agreement are accepted, without qualification, by one party  
(the offeree) as presented by the other party (the offeror).  
[25]  
For parties to be bound in a contractual relationship, there must be a  
manifest meeting of the minds or consensus ad idem on all the essential  
elements of what that relationship will be: G.H.L. Fridman, The Law of  
Contract in Canada, 5th ed. (Toronto: Thomson Canada Ltd., 2006) [Fridman]  
at p. 14. The absence of a formal signed and properly witnessed agreement  
does not change the binding nature of a contact. What is required is that the  
contracting parties express themselves outwardly in a manner indicating an  
intention to be bound to mutually-agreed and reasonably-certain terms.  
[26]  
The burden of proving consensus is on the party seeking to prove the  
existence of the agreement; the standard to be met is proof on a balance of  
probabilities: Reid v. Reid, 2011 BCSC 231 at para. 27, [2011] B.C.J. No. 298  
(QL), citing Bell v. Bell (1998), 24 E.T.R. (2d) 169, [1998] B.C.J. No. 1457  
(QL) at para. 14 (S.C.).  
[27]  
The test for determining consensus ad idem at the time of contract  
formation is objective: it is “whether the parties have indicated to the outside  
world, in the form of the objective reasonable bystander, their intention to  
contract and the terms of such contract”; it is “whether a reasonable...  
[person] in the situation of that party would have believed and understood  
that the other party was consenting to the identical term”: Fridman, supra,  
p. 15; see also Smith v. Hughes (1871), L.R. 6 Q.B. 597 at 607 adopted in St.  
John Tugboat Co. Ltd. v. Irving Refining Ltd., [1964] S.C.R. 614, 1964  
CarswellNB 4 at para. 19, and Remington Energy Ltd. v. B.C. Hydro & Power  
Authority, 2005 BCCA 191 at para. 31, 42 B.C.L.R. (4th) 31. The actual state  
of mind and personal knowledge or understanding of the promisor are not  
relevant in this inquiry: Hammerton v. MGM Ford-Lincoln Sales Ltd., 2007  
BCCA 188 at para. 23, 30 B.L.R. (4th) 183, citing S.M. Waddams, The Law of  
Contracts, 5th ed. (Toronto: Canada Law Book Inc., 2005) at 103. In short, if a  
reasonable person would find that the parties were in agreement as to a  
contract and its terms, then a contract would exist at common law: Witzke  
(Guardian ad litem of) v. Dalgliesh, [1995] B.C.J. No. 403 (QL), 1995  
CarswellBC 1822 at para. 59 (S.C. Chambers). The test’s focus on objectivity  
animates the principal purpose of the law of contracts, which is to protect  
reasonable expectations engendered by promises.  
C.  
Subsequent Conduct Further Negotiations  
[28]  
To determine whether a binding agreement was created vis-à-vis the  
parties’ manifest intentions, the court may consider their conduct leading up  
to and following the conclusion of the alleged agreement: Cassidy v. Canada  
Publishing Corp. (1989), 41 B.L.R. 223, 1989 CarswellBC 302 at para. 27  
(S.C.), citing Lawrence Management Services Ltd. et al. v. Hartford  
Investments Ltd. (1964), 49 W.W.R. 129, 1964 CarswellMan 30 at para. 3  
(Man. Q.B.). Subsequent conduct is a factor in addition to evidence of the  
discussions and documentation leading to the contract’s formation: Leong &  
Associates Actuaries & Consultants Inc. v. Watt, 2003 BCSC 1885 at  
para. 117, 42 B.L.R. (3d) 128. The parties’ actions, such as the altering of  
1247249 B.C. Ltd. v. 1098212 B.C. Ltd.  
Page 39  
terms after what appeared to be the conclusion of their agreement, may be  
evidence, in some circumstances, that no such agreement was ever reached.  
[29] However, generally, the mere proposal of additional or better terms  
does not negate the existence of a binding contract. Put alternatively, further  
negotiations are not necessarily inconsistent with a fully-formed agreement.  
As noted by Masuhara J. in Norske Skog Canada Ltd. v. Companhia de  
Navegaçāo Norsul, 2007 BCSC 610, [2007] B.C.J. No. 919 (QL) at para. 73  
quoting from Sir Guenter Treitel in The Law of Contract, 11th ed. (London:  
Sweet & Maxwell, 2003) at 17-18, rev’d 2008 BCCA 336, 83 B.C.L.R. (4th)  
226:  
...The court will then look at the entire course of the negotiations to decide  
whether an apparently unqualified acceptance did in fact conclude the  
agreement. If it did, the fact that the parties continued negotiations after  
this point will not normally affect the existence of the contract; it will do so  
only if the continuation of the negotiations can be construed as an  
agreement to rescind the contract. A fortiori, the binding force of an oral  
contract is not affected or altered merely by the fact that, after its  
conclusion, one party sends to the other a document containing terms  
significantly different from those which had been orally agreed.  
[30]  
To similar effect, in Ridgeway-Pacific Construction Ltd. v. United  
Contractors Ltd., [1978] B.C.J. No. 478 (QL) at para. 42, 1978 CarswellBC  
668 (S.C.), Gould J. stated as follows:  
The principle is that once a definite offer has been made and accepted  
without qualification and it appears that all essential terms have been  
agreed between the parties, there exists a contract which cannot be  
affected by subsequent negotiations. Once there is a complete contract  
further negotiations between the parties cannot, without the consent of  
both, get rid of the contract already arrived at. [case references omitted]  
[31]  
Masuhara J. went on to quote from Professor S.W. Waddams in The  
Law of Contracts, 5th ed. (Toronto: Canada Law Book, 2005) at para. 28:  
Where there appears to be a firm agreement at one stage, but  
subsequently negotiations resume, the facts are susceptible of at least  
two analyses. There may be an agreement that remains intact, with  
subsequent negotiations on a supplementary agreement, the failure of  
which is irrelevant to the enforceability of the prior agreement, or the  
subsequent negotiations may show that there is no agreement, either  
because, looked at as a whole, events show agreement never was  
reached, or because the subsequent conduct amounts to a rescission of  
the earlier agreement, or sets up an estoppel. The latter analysis seems  
appropriate where one party, in negotiating for better terms, leads the  
other to believe that there is not yet any firm agreement at all. In those  
circumstances she is attempting to improve her position by threatening to  
back out altogether, and she should not then be allowed to fall back on an  
agreement the existence of which she has by her own conduct denied.  
On the other hand, if both parties know, or should know, that the  
negotiations look to supplement an existing firm agreement, there is a  
strong case for permitting enforcement of that agreement when the  
supplementary negotiations fall through.  
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[32]  
Where the alleged agreement contemplates the execution of a further  
formal contract or where, as here, further negotiations take place after the  
conclusion of the alleged agreement, the court must determine whether the  
parties intended to create a binding contract or simply reached a basis for  
future agreement: Le Soleil Hotel & Suites Ltd. v. Le Soleil Management Inc.,  
2009 BCSC 1303 at para. 329, [2009] B.C.J. No. 1900 (QL) [Le Soleil]. It is  
trite law that “an agreement between two parties to enter into an agreement  
by which some critical part of the contract matter is left to be determined is no  
contract at all”: May & Butcher Ltd. v. The King, [1929] All E.R. Rep. 679,  
[1934] 2 K.B. 17 (H.L.), at 20.  
[33]  
The question for the court is whether the parties reached an  
agreement on all matters that are vital to that agreement or merely intended  
to defer legal obligation until a final agreement has been reached: see, for  
example, Boult Enterprises Ltd. v. Bissett (1985), 67 B.C.L.R. 273, [1985]  
B.C.J. No. 1872 (QL) at para. 13. In Le Soleil at para. 333, Dickson J. said  
this:  
In some cases where execution of a formal contract is contemplated, a  
draft contract containing additional or different contractual terms may be  
produced and delivered. In such circumstances, if the court is satisfied, on  
an objective analysis, that all essential terms were agreed and the new  
terms do not amount to a repudiation or admission that no agreement was  
reached earlier, the agreement will be binding: Perry v. Suffields Ltd.,  
[1916] 2 Ch. 187 (C.A.); Horsnail v. Shute (1919), 27 B.C.R. 474  
(C.A.); Klemke Mining Corporation... [v. Shell Canada Ltd., 2007 ABQB  
176, aff’d 2008 ABCA 257 ()]; Lake Ontario Cement Co. v. Golden  
Eagle Oil Co. Ltd., (1974), 46 D.L.R. (3d) 659. On the other hand, if the  
Court concludes that key terms remained open for negotiation an  
intention to be create legal relations will not be found: "Bay Ridge" (The),  
[1999] 2 Ll.L. Rep 277; Pitt Air Ltd. v. Pitt Meadows Airport Society, [2006]  
B.C.J. No. 1870, 2006 CarwellBC 2031 (S.C.), affirmed [2007] B.C.J.  
No. 36, 2007 CarswellBC 34 (C.A.); Bawitko Investments Ltd. v. Kernels  
Popcorn Ltd. (1991), 79 D.L.R. (4th) 97 (Ont. C.A.).  
[152] Dealing specifically with oral contracts, Dickson J. in Le Soleil noted at  
para. 328 that oral contracts are interpreted using the same principles as written  
contracts, by considering the parties’ words and actions in context and assessing  
whether they establish an intention to be bound. At paras. 328-331, she further  
stated that:  
[328] The genesis and aim of the transaction is an aspect of the relevant  
context for consideration: Canada Square Corporation, supra. The credibility  
of witnesses will be particularly important and differing versions of events will  
increase the difficulty of establishing that an enforceable bargain was  
made: Anchorage Management Services Ltd. v. 465404 B.C. Inc., 1999  
CarswellBC 2947 (C.A.).  
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Page 41  
[329] When the Court considers the parties’ manifest intentions, it may be  
required to determine whether they intended to create a binding contract or  
simply reached a basis for future agreement. This question often arises  
where, as in the Specific Performance Action, the alleged agreement  
contemplates the execution of a further formal contract.  
[330] It is not necessary for every conceivable matter to be resolved  
between the parties before an enforceable contract is created. The law does  
not, however, recognize an “agreement to agree”. The question for  
determination is whether the parties have reached agreement on all matters  
that are vital or fundamental to the arrangement or whether they intended to  
defer legal obligation until a final agreement has been reached: Boult  
Enterprises Ltd. v. Bissett (1985), 21 D.L.R. (4th) 730.  
[331] The classic statement of the law is found in Van Hatzefeldt-  
Wildenburg v. Alexander, [1912] 1 Ch 284 at pp. 288-289:  
It appears to be well settled by the authorities that if the documents or  
letters relied on as constituting a contract contemplate the execution of a  
further contract between the parties, it is a question of construction  
whether the execution of the further contract is a condition or term of the  
bargain or whether it is a mere expression of the desire of the parties as  
to the manner in which the transaction already agreed to will in fact go  
through. In the former case there is no enforceable contract either  
because the condition is unfulfilled or because the law does not recognize  
a contract to enter into a contract. In the latter case there is a binding  
contract and the reference to the more formal document may be ignored.  
[153] In Hoban Construction Ltd. v. Alexander, 2012 BCCA 75 at para. 38,  
Justice Bennett cited the following excerpt from Bawitko Investments Ltd. v. Kernels  
Popcorn Ltd. (1991), 79 D.L.R. (4th) 97, 1991 2734 (Ont. C.A.) at 103-104:  
As a matter of normal business practice, parties planning to make a formal  
written document [of] the expression of their agreement, necessarily discuss  
and negotiate the proposed terms of the agreement before they enter into it.  
They frequently agree upon all of the terms to be incorporated into the  
intended written document before it is prepared. Their agreement may be  
expressed orally or by way of memorandum, by exchange or  
correspondence, or other informal writings. The parties may “contract to  
make a contract”, that is to say, they may bind themselves to execute at a  
future date a formal written agreement containing specific terms and  
conditions. When they agree on all of the essential provisions to be  
incorporated in a formal document with the intention that their agreement  
shall thereupon become binding, they will have fulfilled all the requisites for  
the formation of a contract. The fact that a formal written document to the  
same effect is to be thereafter prepared and signed does not alter the binding  
validity of the original contract.  
However, when the original contract is incomplete because essential  
provisions intended to govern the contractual relationship have not been  
settled or agreed upon; or the contract is too general or uncertain to be valid  
1247249 B.C. Ltd. v. 1098212 B.C. Ltd.  
Page 42  
in itself and is dependent on the making of a formal contract; or the  
understanding or intention of the parties, even if there is no uncertainty as to  
the terms of their agreement, is that their legal obligations are to be deferred  
until a formal contract has been approved and executed, the original or  
preliminary agreement cannot constitute an enforceable contract. In other  
words, in such circumstances the “contract to make a contract” is not a  
contract at all. The execution of the contemplated formal document is not  
intended only as a solemn record or memorial of an already complete and  
binding contract but is essential to the formation of the contract itself...  
[154] At paras. 58-59, Bennett J.A. confirmed the importance of focusing on the key  
legal principles pertinent to determining whether a contract is legally enforceable,  
such as:  
[58]  
whether the parties effectively agreed to enter into binding legal  
relations, and, if so, whether the essential terms of their contracts are so  
vague and uncertain as to be incapable of reasonable interpretation and,  
consequently, meaningless.  
And,  
[59]  
whether a reasonable third-party observer would conclude from all  
of the circumstances, including the documents themselves, the  
circumstances under which they were executed, and the parties’ subsequent  
conduct, that the parties intended to enter into binding legal relations.  
Was any amendment sufficiently recorded in writing?  
[155] The parties framed their submissions in terms of s. 59(3), (4) and (7) of the  
Law and Equity Act, R.S.B.C. 1996, c. 253, which states:  
(3) A contract respecting land or a disposition of land is not enforceable  
unless  
(a) there is, in a writing signed by the party to be charged or by that  
party's agent, both an indication that it has been made and a  
reasonable indication of the subject matter,  
(b) the party to be charged has done an act, or acquiesced in an act of  
the party alleging the contract or disposition, that indicates that a  
contract or disposition not inconsistent with that alleged has been  
made, or  
(c) the person alleging the contract or disposition has, in reasonable  
reliance on it, so changed the person's position that an inequitable  
result, having regard to both parties' interests, can be avoided only by  
enforcing the contract or disposition.  
(4) For the purposes of subsection (3) (b), an act of a party alleging a  
contract or disposition includes a payment or acceptance by that party or  
on that party's behalf of a deposit or part payment of a purchase price.  
 
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(7) A writing can be sufficient for the purpose of this section even though a  
term is left out or is wrongly stated.  
[156] The legal principles required to interpret and apply these provisions of the  
Law and Equity Act were summarized in Le Soleil at paras. 343-345. After setting  
out the provisions of s. 59(3) and (4), Dickson J. commented:  
[343] Section 59(3) is rooted in the Statute of Frauds enacted in England in  
1677. It provides an evidentiary threshold that proven contracts must reach  
before they will be enforced: 387903 B.C. Ltd. v. Canada Post Corp. (1995),  
6 B.C.L.R. (3d) 370.  
[344] Like the original English statute, the Statute of Frauds, R.S.B.C. 1960,  
c. 369 provided that no agreement concerning an interest in land was  
enforceable unless evidenced in writing. Its purpose was to protect parties  
from fraudulent allegations of oral agreements affecting land, trusts or  
guarantees. Following its enactment, however, courts became concerned  
that, restrictively interpreted, it could be used as an instrument of fraud to  
avoid enforcement of an agreement when the plaintiff had already embarked  
upon performance. This concern led to adoption of the “part performance”  
equitable exception to the statute’s writing requirement: The Law Reform  
Commission of British Columbia’s 1977 Report on the Statute of  
Frauds (“LRC Report”), pp. 57-58 and 80-82  
[345] In Schild v. British Columbia (Official Administrator), 1993 CarswellBC  
2678 Cashman J. conducted an extensive review of the jurisprudence  
relating to s. 59(3)(b) of the Act. In so doing, he noted that the statute adopts  
a more liberal approach to what may constitute acts of part performance than  
the common law, which required acts unequivocally consistent with the  
alleged contract. This view was later confirmed by the British Columbia Court  
of Appeal in Olsen v. Gamache, [1995] B.C.J. No. 1614 and Johnson v.  
Breitkreuz, 2006 BCCA 30. The statutory requirement is “to prove acts  
indicating a contract has been made that is not inconsistent with the alleged  
contract and that the party to be charged has done or acquiesced in such  
acts”: Olsen, supra, ¶ 13 & 16.  
[157] The defendant asserts that the parol evidence rule is also applicable to  
prevent the introduction of evidence of an oral agreement to amend a written  
contract. The parol evidence rule was summarized in Gutierrez v. Tropic  
International Ltd. (2002), 63 O.R. (3d) 63, 2002 45017 (C.A.) at paras. 19-20:  
[19]  
Under the parol evidence rule, when the language of a written  
contract is clear and unambiguous, extrinsic evidence is not admissible to  
vary, qualify, add to, or subtract from, the words of the written contract. ….  
However, the rule is not absolute. It admits of numerous exceptions, including  
1247249 B.C. Ltd. v. 1098212 B.C. Ltd.  
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where it is alleged that evidence of a distinct collateral agreement exists,  
which does not contradict, and is not inconsistent with, the written contract …  
[20] Some recent authorities suggest a more relaxed approach to the  
admission of parol evidence. In Power Consolidated (China) Pulp Inc. v.  
British Columbia Resources Investment Corp., [1989] B.C.J. No. 114 (S.C.),  
McLachlin C.J.S.C. (as she then was) stated:  
The starting point in any discussion of when a collateral contract is  
excluded by the words of the main contract must be the rule -- sometimes  
called the parol evidence rule -- that evidence of a collateral contract is  
not admissible unless consistent with the main contract: Hawrish v. Bank  
of Montreal . . . The application of this rule, however, is narrow. Recent  
authorities suggest that it applies only where it is clear that the contract  
sued upon is wholly in writing. If a party can establish that there was a  
pre-contractual stipulation which was not intended to be excluded, then it  
may be relied on even though it is arguably inconsistent with certain terms  
of the written contract: …  
[Citations omitted.]  
[158] The parol evidence rule generally focuses on alleged discussions in  
connection with the formation of the written contract. It appears that the rule does  
not operate to exclude evidence of subsequent oral agreements which may alter or  
nullify a written contract: Barber v. Glen, [1987] 59 Sask. R. 49, 1987 4627  
(C.A.) at para. 9.  
[159] Thus, the proper focus of the Court with respect to this issue is on the  
requirements of s. 59 of the Law and Equity Act.  
Was there sufficient certainty with respect to the amendment?  
[160] In Le Soleil at paras. 339-341, Dickson J. explained that a court cannot  
enforce an agreement that has unclear terms that are “vague, ambiguous or  
incomplete”, as the parties to such an agreement cannot be said to have come to a  
meeting of the minds. Instead, parties’ expressed intentions must be capable of  
being determined with a “reasonable degree of certainty”.  
[161] At para. 340, she also noted that enforceable contracts may leave some  
matters to determined in the future, as long as an agreed upon mechanism is in  
place to do so:  
 
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[340] As noted, however, there are enforceable contracts in which some  
matters are left to be determined in the future. The contract will not fail for  
uncertainty so long as an effective mechanism for their determination is  
agreed. In Hillas & Co., Ltd. v. Arcos, Ltd., [1932] All E.R. 494 the House of  
Lords stated:  
Business men often record the most important agreements in crude and  
summary fashion; modes of expression sufficient and clear to them in the  
course of their business may appear to those unfamiliar with the business  
far from complete or precise. It is, accordingly, the duty of the court to  
construe such documents fairly and broadly, without being too astute or  
subtle in finding defects ... that ..., however, does not mean that the court  
is to make a contract for the parties, or to go outside the words they have  
used, except in so far as there are appropriate implications of law, as for  
instance, the implication of what is just and reasonable to be ascertained  
by the court as a matter of machinery where contractual intention is clear  
but the contract is silent on some detail. Thus in contracts for future  
performance over a period, the parties may not be able nor may they  
desire to specify many matters of detail, but leave them to be adjusted in  
the working out of the contract. Save for the legal implication I have  
mentioned, such contracts might well be incomplete or uncertain; with that  
implication in reserve they are neither incomplete nor uncertain.  
[162] In addition, commercial documents do not need to be drafted with “strict  
precision”, and courts should uphold agreements “if, on close analysis, definite  
meaning can be discerned from their terms: Le Soleil at para. 341. At para. 341,  
Dickson J. noted that this approach is reflected by Justice Morden in Canada Square  
Corp. Ltd. v. Versafood Services Ltd. (1981), 130 D.L.R. (3d) 205 at 218 (Ont. C.A.):  
In this case there is no doubt that the document of October 14, 1969, as an  
agreement to lease, is crudely expressed and contains some very loose  
language. Further, a more sophisticated document would probably have  
covered several other matters in addition to those dealt with in it.  
Nonetheless, accepting that the parties intended to create a binding  
relationship and were represented by experienced businessmen who had full  
authority to represent their respective companies, a Court should not be too  
astute to hold that there is not that degree of certainty in any of its essential  
terms which is the requirement of a binding contract.  
Did the plaintiff repudiate any agreement to amend by sending  
inconsistent documents?  
[163] The impact of ongoing negotiations on an alleged agreement was reviewed in  
Salminen, including at paras. 28-33 cited above. At the conclusion of that  
discussion, Williams J. went on to comment at paras. 34-39:  
 
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[34]  
The issue of subsequent conduct, specifically in the form of further  
negotiations, leads me to consider the issue of repudiation.  
D.  
Repudiation  
[35]  
Repudiation occurs where, without justification, a party, by words or  
conduct, evinces an intention to refuse the performance of the contract and  
not to be bound by it: Fridman, supra, at p. 606; Guarantee Co. of North  
America v. Gordon Capital Corp., [1999] 3 S.C.R. 423, [1999] S.C.J. No. 60  
(QL) at para. 40. The totality of the circumstances must be considered in  
determining whether a party repudiated a contract through conduct that  
amounts to a rejection of his or her obligations under that contract: Terrien  
Bros. Construction Ltd. v. Delaurier, 2006 BCSC 1645 at para. 51, [2006]  
B.C.J. No. 2896 (QL) (Chambers), aff’d 2007 BCCA 623, 75 B.C.L.R. (4th)  
63. The test, as with consensus ad idem, is that of an objective reasonable  
person: Business Depot Ltd. v. Lehndorff Management Ltd. (1996),  
24 B.C.L.R. (3d) 322, [1996] B.C.J. No. 1061 (QL) (C.A.) at paras. 66-67.  
[36]  
The effect of repudiation depends on the response of the non-  
repudiating party. As the Court of Appeal stated in Ginter v. Chapman, [1967]  
B.C.J. No. 27 (QL), 1967 CarswellBC 63 at para. 11 (C.A.), aff’d [1968]  
S.C.R. 560, 1968 CarswellBC 77, “Repudiation of a contract by one party is  
of no consequence in law unless the other party accepts it as such and  
communicates the acceptance to the repudiator within a reasonable time.”  
The party faced with the other’s repudiation has two options: Norfolk v.  
Aikens (1989), 41 B.C.L.R. (2d) 145, 64 D.L.R. (4th) 1 (C.A.). They are, as  
expressed in ASEAN Technology Partners Inc. v. Canada (National  
Research Council), 2007 BCSC 1539, [2007] B.C.J. No. 2273 (QL) at  
para. 109, aff’d 2009 BCCA 126, [2009] B.C.J. No. 561 (QL):  
If the non-repudiating party treats the contract as still being in full force  
and effect then it remains in effect for both sides. However, if the non-  
repudiating party accepts the repudiation, the contract is terminated  
(Guarantee Co. of North America v. Gordon Capital Corp., [1999] 3  
S.C.R. 423, 178 D.L.R. (4th) 1). Acceptance of repudiation can be  
inferred through conduct that indicates that the non-repudiating party  
does not intend to continue with the contract (American National Red  
Cross v. Geddes Brothers, [1921] 61 S.C.R. 143, 55 D.L.R. 194).  
[37]  
These cases provide that the making of a counter-offer, which  
demonstrates objectively a rejection of contractual obligations, effectively  
repudiates an agreement, and that that agreement is extinguished if there is  
sufficient evidence that the non-repudiating party accepted the repudiation.  
[38]  
In Fieguth v. Acklands (1989), 37 B.C.L.R. (2d) 62, 1989 CarswellBC  
88 (C.A.), a case concerning the validity of a settlement agreed upon  
between lawyers, the defendant sent settlement funds to the plaintiff having  
deducted income tax and the plaintiff refused to accept the funds and  
proceeded to litigation on the basis that, by deducting the taxes, the  
defendant varied the terms of the settlement, such that no final agreement  
was reached. The Court of Appeal held:  
39 ...If there was an agreement of settlement, as both courts found, then  
the consequences of subsequent conduct relating to the exchange of  
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Page 47  
funds and documents would not discharge either party unless it could be  
said that the party alleged to have repudiated the contract exhibited an  
unwillingness to carry out its terms. ...  
[para. 40 omitted]  
41 ...One can tender whatever documents he thinks appropriate without  
rescinding the settlement agreement. If such documents are accepted  
and executed and returned then the contract, which has been executory,  
becomes executed. If the documents are not accepted then there must be  
further discussion but neither party is released or discharged unless the  
other party has demonstrated an unwillingness to be bound by the  
agreement by insisting upon terms or conditions which have not been  
agreed upon or are not reasonably implied in these circumstances.  
E.  
Summary Overview  
[39]  
With these principles in mind, it seems to me that the appropriate  
analytical framework to be applied in the present case requires that the first  
question to be asked is whether there was a contract reached at all. If there  
was an agreement, the second question is whether the agreement was  
repudiated by one party insisting on terms that were not agreed to: Lacroix v.  
Loewen, 2010 BCCA 224 at para. 28, 4 B.C.L.R. (5th) 282; applied in Brown  
v. 0821969 B.C. Ltd., 2010 BCSC 989 at paras. 42-43, [2010] B.C.J.  
No. 1410 (QL) and, if so, to determine what results follow.  
Decision  
Reliability and Credibility  
[164] There were four main witnesses at the trial: Mr. Doar, Mr. Deleskie,  
Ms. Wenngatz and Mr. Robinson. Although much of the key evidence can be found  
in the documentary record, their viva voce evidence is important with respect to  
whether any agreements were reached at the meeting that occurred on October 20,  
2020.  
[165] I found Mr. Doar’s evidence to be, for the most part, reliable and credible. His  
recollection was generally good, even as to the complicated sequence of  
negotiations reflected in the documents that took place over the course of November  
2020. His evidence harmonized with that of Mr. Deleskie and with the documents.  
More generally, his actions appear consistent with those of an experienced  
developer who was keen to move forward with the project represented by the CPS.  
He retained experienced consultants, took legal advice with respect to drafting  
agreements, and involved his real estate agent throughout the process. His  
   
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Page 48  
evidence reflected a good degree of objectivity. While he expressed some frustration  
with Ms. Wenngatz and a feeling that she kept making more and more demands  
as they tried to resolve the wording of the addendum that frustration was reflected  
in an appropriate manner. There were few discrepancies with his discovery  
evidence. While I wondered at trial whether Mr. Doar had exaggerated the amount  
invested in the project, having reviewed the documentary record I am satisfied that  
his investment in the due diligence process was significant. While I accept that  
Mr. Doar has a financial interest in proceeding with this transaction, even taking that  
potential motive into account, I find his evidence both reliable and credible.  
[166] The defendant sought to describe Mr. Doar as defensive, confrontational and  
evasive. I found Mr. Doar to be very careful in cross-examination to ensure that he  
understood the question. I did not find him overall to be evasive or confrontational.  
[167] I found Mr. Deleskie to be a reliable and credible witness. Mr. Deleskie was  
thoughtful and careful in his evidence, and he had a good command of the sequence  
of discussions. He frankly acknowledged that he would have earned a commission  
of approximately $100,000 had the deal gone ahead, but I had no sense that this  
impacted on his ability to recount what happened.  
[168] Mr. Deleskie made concessions in cross-examination. One of those  
concessions contradicted evidence of Mr. Doar. Mr. Deleskie, in his lengthy text to  
Mr. Robinson on December 7, 2020, stated the following:  
3) we discussed removing parcels from the VTB mortgage by paying out  
$55000 of the currently agreed $85000 to the seller and the seller would  
postpone the remaining $30000 by the buyer paying to register the remaining  
$30000/acre left on the property by way of a registered mortgage. This was  
mutually agreed by all parties.  
[169] In his direct examination, Mr. Deleskie stated that he inadvertently reversed  
the $55,000 and $30,000 amounts in this text, and that the actual agreement on  
October 20, 2020, had been that the amount paid on release was to be $30,000 and  
the amount to be mortgaged was $55,000. After lengthy cross-examination,  
1247249 B.C. Ltd. v. 1098212 B.C. Ltd.  
Page 49  
Mr. Deleskie accepted that he might have been correct in his text, and that his  
evidence that he was in error may have been incorrect.  
[170] Having reviewed the sequence of correspondence subsequent to the  
meeting, it is clear that all of the correspondence prior to 7:04 pm on November 26,  
2020, was predicated on the payment on release being $30,000. I conclude that the  
evidence given by Mr. Deleskie in his direct examination was correct, and that he did  
in fact reverse the two numbers in his text. His text, of course, was written on  
December 7 some 10 days after Ms. Wenngatz had demanded that the amounts  
be reversed, at a time when the most recent draft of the addenda showed the  
payment on release being $55,000.  
[171] While this was the one area where Mr. Deleskie’s evidence was less reliable,  
his willingness to carefully think through what had occurred and consider the  
propositions put to him by counsel reflected well on his credibility.  
[172] I had more difficulty with Ms. Wenngatz’s evidence. She took every  
opportunity to attempt to disparage Mr. Doar. She asserted repeatedly that the  
plaintiff had done no substantive due diligence work, even in the face of documents  
clearly sent to her agent making clear that the work done had been substantial. She  
said that all that was given to her at the meeting was one or two site plans which is  
different from the evidence of the other witnesses, and contrary to common sense  
given Mr. Doar’s goals for the meeting. She claimed that it was of no importance to  
her that the main road be named as Wenngatz Way yet the emails show her  
insisting that this matter be reflected in the addendum. She insisted that she had  
made it a condition that she obtain legal advice before agreeing to any changes to  
the contract yet it is clear from her conduct that she had no intention to get legal  
advice.  
[173] With respect to her points about naming the main road Wenngatz Way and  
obtaining legal advice, each connected to legal arguments her counsel intended to  
make (lack of consideration, and any agreement being conditional on legal advice). I  
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was left wondering whether the evidence she gave was influenced by what she  
knew about the legal arguments that were to be advanced.  
[174] In her evidence with respect to the October 20 meeting, she at times stated  
that Mr. Doar wanted to tear the entire contract from beginning to end apart in half  
an hour, at times stated the meeting was really, really short and nothing concrete  
was even proposed, and at times stated that numerous different numbers were  
tossed around in a vague and rambling manner. None of these were consistent with  
the evidence of the others at the meeting, and indicated Ms. Wenngatz’s tendency to  
exaggerate when she thought something was to her benefit.  
[175] At her examination for discovery, Ms. Wenngatz had said that no specific  
condition removal date was discussed at the meeting. Her evidence on that changed  
at trial perhaps not surprisingly given what appeared in her text to Mr. Robinson on  
November 3, in regard to a firm dec 7/2020 condition removal date.  
[176] Ms. Wenngatz claimed in her evidence that she had realized at the  
October 20 meeting that, due to the way the CPS was worded, any change to the  
CPRD would also impact on the closing date. She also claimed that she had  
identified the erroneous reference to a CPRD of December 7, 2021, as soon as that  
date first appeared in the November 24 Addendum. In my view, had either of those  
statements been correct, the issues she claims to have identified would have  
appeared in the documents much earlier than they did. She also denied having ever  
called Mr. Deleskie when Mr. Deleskie’s contemporaneous text seems to clearly  
indicate that she did call him on December 7.  
[177] All of these issues raise concerns about both the credibility and reliability of  
Ms. Wenngatz as a witness. I did not find her to have a reliable memory as to what  
issues arose and were dealt with in what sequence, and was very concerned that  
her evidence was coloured by what she felt she needed to say to advance her  
interests in this litigation.  
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[178] Mr. Robinson’s recollection of the details of the October 20 meeting was not  
strong. He expressed difficulty recalling details of the discussion with respect to  
reducing the down payment or changing the provisions for the release lot. He also  
gave evidence very cautiously at points when asked on direct examination whether  
there was anything agreed to at the meeting, Mr. Robinson insisted on using the  
words “specifically”, in terms of saying that “[Ms. Wenngatz] didn’t agree to anything  
at that meeting specifically”, and that he didn’t recall her “specifically agreeing” to  
any of the points allegedly agreed to.  
[179] During a break in Mr. Robinson’s cross-examination, it came to light that  
Mr. Deleskie had recorded a conversation he had with Mr. Robinson in April 2021. I  
was assured that Mr. Deleskie had not shared the recording with anyone prior to  
trial, and that neither the plaintiff nor the plaintiff’s counsel were aware that it existed.  
After hearing submissions from the parties, I agreed to allow Mr. Robinson to be  
cross-examined on the recording, provided that he be given an opportunity to review  
it and to discuss it with the defendant’s counsel before that happened, and provided  
that Mr. Deleskie would be recalled as a witness as well.  
[180] It became clear from listening to the recorded conversation, and from  
Mr. Robinson’s responses to questions asked about the recording in cross-  
examination, that Mr. Robinson understood at the conclusion of the October 20  
meeting that there was agreement in that room at that time as to the items at issue  
in this case, and that Ms. Wenngatz did not say that she needed to go away and  
think about it. While Mr. Robinson accepted in the course of his ongoing cross-  
examination that the terms as alleged were agreed to, he suggested that the  
agreement was just “partial”, then acknowledged that I guess it depends on your  
definition of an agreement. Although Mr. Robinson continued to state that there had  
been “an agreement to agree, he was unable to explain what he understood to be  
the difference between an agreement to move forward and an agreement to agree.  
[181] Mr. Robinson was clearly torn between his loyalty to his client and his desire  
to advance her position, and his recollection as to what happened at the meeting. I  
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read his evidence overall as confirming Mr. Deleskie’s view that an objective  
observer at the meeting would have seen outward manifestations of actual  
agreement on the terms alleged by the plaintiff.  
Was there an agreement to amend the CPS or an agreement to agree?  
[182] The plaintiff argues that the parties reached agreement at the meeting on  
October 20, 2020, that after the meeting the defendant asked for additional terms  
which were negotiated until November 26, 2020, at which time Mr. Doar advised that  
he accepted all of the defendant’s terms, and that the CPS as amended was then  
repudiated by the defendant on December 7, 2020.  
[183] The plaintiff says that the objective, outward manifestation of the parties’  
conduct at the meeting as confirmed by Messrs. Doar, Deleskie and Robinson (on  
cross-examination) was that an agreement had been reached. The plaintiff points  
to Mr. Doar’s October 20 email instructing his law firm and the October 29  
Addendum as confirming the agreement that was reached.  
[184] The defendant, on the other hand, says that at most the parties had an  
agreement to agree, that there were some terms discussed, but that all of their  
discussions were subject to a detailed addendum being produced and signed off by  
the parties. The defendant argues that there was not sufficient certainty as to the  
terms of the addendum for it to be enforceable, which it says reinforces its assertion  
that the parties did not intend to create contractual obligations at the meeting. The  
defendant also argues that any agreement by the defendant was subject to  
Ms. Wenngatz obtaining legal advice.  
[185] Having heard from all four participants at the meeting, I conclude that those  
present understood at the meeting that four key items had been agreed to at the  
time. To use the language of the cases, a meeting of the minds took place that was  
manifested outwardly to those at the meeting.  
[186] There was undoubtedly an understanding that the agreement would be  
reflected in an addendum. Mr. Deleskie agreed on cross-examination that as a  
 
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licensed real estate agent he was bound by the Canadian Real Estate Association’s  
Realtor Code of Ethics to ensure that any agreement was reflected in writing. His  
evidence was that the parties intended to have an addendum drafted and signed,  
and that Mr. Doar agreed to instruct his lawyer to prepare the written document. In  
my view, it is not unusual in a case where all of the contract drafting has been done  
by a lawyer, for the lawyer to be asked to draft an amending document.  
[187] The fact that real estate agents are ethically bound to ensure that agreements  
are in writing does not, in my view, prevent parties to a real estate transaction from  
entering into an oral agreement to amend a contract. It does not answer the question  
whether the parties reached an agreement, or merely intended to defer legal  
obligations until a written agreement had been prepared: see Salminen at para. 33.  
[188] I see Mr. Doar’s October 20, 2020 email to Ms. Coleman as confirmatory of  
an agreement being reached. The defendant argues that the absence of the word  
“agreement” in that email is inconsistent with there having been an agreement.  
However, in my view, the words “we are amending the followings” is more consistent  
with there having been an agreement than with a request to draft a proposal as a  
basis for negotiation.  
[189] Other emails and texts (including Mr. Doar’s email of November 6 and various  
later texts between Mr. Deleskie and Mr. Robinson) confirm that both Mr. Doar and  
Mr. Deleskie understood that the parties had reached an agreement. When read in  
context, the November 3 text from Ms. Wenngatz referring to a firmDecember 7,  
2020 condition removal date, also confirms an agreement rather than a launch of  
negotiations.  
[190] I deal with the certainty issue in a separate section below. As set out in that  
analysis, I conclude that the existing framework of the CPS provides the necessary  
certainty with respect to the terms relating to the reduction of the down payment and  
the payment and mortgage in respect of the release lots.  
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[191] The defendant argues that the plaintiff putting an interest rate of 0% in the  
October 29 Addendum suggests that the plaintiff saw this document as merely a  
launching point for negotiations. This argument finds some support in the manner in  
which the October 29 Addendum sets out a separate set of terms for the release lot  
mortgage, rather than just simply adopting the existing terms for the STB Mortgage  
in Schedule A to the CPS.  
[192] In my view, the question of whether the parties had reached agreement is  
determined as of the conclusion of the October 20, 2020 meeting, and not by what  
the lawyer may have advised as to an appropriate drafting approach when  
attempting to document that arrangement several days later. When the parties met  
on October 20, 2020, they were aware of the existing framework with respect to their  
agreement and would have understood that framework to inform their discussions –  
such that they could focus only on what items were actually changing.  
[193] I conclude that there was an agreement at the meeting on October 20, 2020,  
to amend the CPS.  
Was any amendment sufficiently recorded in writing?  
[194] The defendant argues that none of the requirements of s. 59(3) of the Law  
and Equity Act are met in this case, and that as a result any oral agreement to  
amend the CPS is unenforceable.  
[195] The plaintiff argues that:  
a) The correspondence between the parties including emails from  
Mr. Robinson – contain written confirmation of the parties’ agreement  
sufficient to meet s. 59(3)(a);  
b) The ongoing work of the plaintiff, acquiesced in by the defendant,  
constitutes part performance sufficient to meet s. 59(3)(b); and  
c) The plaintiff’s reliance on the agreement is sufficient to meet s. 59(3)(c).  
 
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[196] In this case, I am of the view that the plaintiff has acted in reasonable reliance  
on the oral agreement made during the October 20 meeting such that s. 59(3)(c) of  
the Law and Equity Act applies. Here, the plaintiff arranged its affairs based on the  
December 7, 2020 CPRD. It arranged to ensure that funds were available by  
December 7, and allowed the original CPRD to pass without signing a condition  
removal document. In the interim period, the plaintiff continued to spend significant  
sums upon due diligence and the finalization of development plans.  
[197] Having come to that conclusion, I do not need to consider s. 59(3)(a) or (b).  
Was there sufficient certainty with respect to the amendment?  
[198] The defendant argues that:  
a) With respect to the delay in the CPRD, there was no discussion at the  
meeting as to what would happen to the completion date which, in the  
defendant’s submission, was an essential matter for decision;  
b) With respect to the postponement of the down payment, there was no  
discussion at the meeting as to when the amount postponed would be  
paid, which the defendant says is an essential term; and  
c) With respect to the changed arrangements for release lots, there was no  
discussion at the meeting about key terms related to the proposed  
mortgages, including interest rate, term, and who would pay the  
defendant’s legal fees – all of which the defendant says are essential  
terms.  
[199] The defendant also argues that there was significant uncertainty as to  
whether the mortgage amount was to be $55,000 per acre or $30,000 per acre, and  
that there had been no discussion about the proposed priority agreement.  
[200] Dealing with this last argument first, I have already concluded that at the  
meeting the parties agreed to a mortgage amount of $55,000 per acre, and that  
 
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there was to be a provision for the defendant to grant priority for construction  
financing.  
[201] In considering the question of certainty, it is important to focus on whether  
there was certainty at the time the agreement was made. While evidence as to the  
parties’ subsequent conduct may shed some light on what they agreed to at the  
October 20, 2020 meeting, uncertainty arising from or reflecting the various  
subsequent efforts (primarily initiated by the defendant) to renegotiate or add to the  
terms of the agreement is not evidence of uncertainty as of October 20, 2020.  
[202] With respect to the delay in the CPRD, I conclude based on the evidence that  
at the time of the October 20 meeting the parties were not aware that a change to  
the CPRD would indirectly impact the completion date. There was no discussion of  
any delay to the completion date. The fact that the parties were unaware of this  
unintended consequence of their agreement did not, in my view, make that proposed  
change to the contract uncertain.  
[203] With respect to postponing the down payment, the plaintiff said that the  
contract clearly sets out how any amounts not paid on or before closing (which is  
what I interpret the reference to “down payment” to reflect) will be paid. They are to  
be paid over time in accordance with the terms provided for the STB Mortgage in  
Schedule A to the CPS.  
[204] I agree with this assertion. While the defendant clearly decided in November  
2020 to seek to negotiate different terms, which would have seen the $300,000  
amount by which the down payment was reduced paid at an earlier date, that does  
not impact my conclusion as to what the parties agreed at the meeting on  
October 20, 2020.  
[205] I turn now to the proposed changes to the provisions governing release lots.  
In my view, the parties’ negotiations must be considered in light of the existing  
contractual framework. In particular, the existing framework in the CPS provided for  
amounts not paid up front to be financed for a term of five years and six months, with  
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interest only payments at 3.9% (increasing part-way through the term to 4.9%).  
Other terms were set out in Schedule A.  
[206] I acknowledge that the plaintiff’s lawyer, in drafting the addendum, provided a  
framework for these provisions to be separately set out and for a different interest  
rate to apply. It is clear that these different terms were not discussed at the  
October 20 meeting.  
[207] In my view, the time at which certainty is required is at the October 20  
meeting. At that time, the parties agreed that an amount of $55,000 per acre from  
the release payment was to be unpaid at the time of release and it was to be  
secured by a mortgage. That agreement, viewed in the context of the existing  
contractual framework, provides sufficient certainty for the agreement to be  
enforceable.  
Was there sufficient consideration for the amendment?  
[208] The defendant submits, without reference to authority, that there needed to  
be consideration for the amendments. While the plaintiff did not dispute the  
proposition that consideration is required, the plaintiff said that this requirement was  
undoubtedly met by the agreement with respect to the naming of the main street of  
the development.  
[209] While the defendant argues that the naming of a street as Wenngatz Way  
was already provided for in the CPS, there is a material difference in the naming of  
the major street (versus any street) as Wenngatz Way. Ms. Wenngatz clearly viewed  
this as significant as she asked that it be expressly referenced in the draft  
addendum.  
[210] In my view, there is no issue as to consideration.  
Did the plaintiff repudiate any agreement to amend by sending  
inconsistent documents?  
[211] The defendant argues that the plaintiff repudiated any agreement that may  
have been made at the October 20 meeting by doing the following: