1247249 B.C. Ltd. v. 1098212 B.C. Ltd.
The issue of subsequent conduct, specifically in the form of further
negotiations, leads me to consider the issue of repudiation.
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.,  3 S.C.R. 423,  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, 
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,  B.C.J. No. 1061 (QL) (C.A.) at paras. 66-67.
The effect of repudiation depends on the response of the non-
repudiating party. As the Court of Appeal stated in Ginter v. Chapman, 
B.C.J. No. 27 (QL), 1967 CarswellBC 63 at para. 11 (C.A.), aff’d 
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,  B.C.J. No. 2273 (QL) at
para. 109, aff’d 2009 BCCA 126,  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.,  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,  61 S.C.R. 143, 55 D.L.R. 194).
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.
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