QUEEN’S BENCH FOR SASKATCHEWAN  
Citation: 2022 SKQB 193  
Date:  
2022 08 24  
Docket:  
Judicial Centre:  
QBG-RG-02092-2012  
Regina  
BETWEEN:  
101034761 SASKATCHEWAN LTD.  
PLAINTIFF  
-and-  
BRUCE MOSSING and CORVIN MOSSING and BRUCE MOSSING AND  
CORVIN MOSSING as REPRESENTATIVES OF THE ESTATE OF  
CHARLES GREEN  
DEFENDANTS  
-and-  
BRIAN TIEFENBACH and NAI COMMERCIAL REAL ESTATE (SASK) LTD.  
THIRD PARTIES  
Counsel:  
Michael S. Scott  
Gordon J. Kuski, Q.C. and Holli Kuski-Bassett  
Deryk J. Kendal  
for the plaintiff  
for the respondent  
for the third parties  
JUDGMENT  
AUGUST 24, 2022  
MITCHELL J.  
2 −  
I.  
INTRODUCTION  
[1]  
101034761 Saskatchewan Ltd., the corporate plaintiff, carries on business  
as BLS Asphalt & Construction Ltd. [BLS]. It sues Bruce Mossing and Corvin Mossing  
[Mossings] for specific performance seeking enforcement of an offer to purchase lands  
owned by the Mossings, and dated December 7, 2010. Alternatively, BLS seeks  
damages arising from this alleged breach of contract.  
[2]  
The Mossings resist these claims asserting the offer to purchase was null  
and void, and this action must be dismissed with costs. Their defence is two-pronged.  
First, they say that the alleged contract of sale is too uncertain. Second, the Mossings  
assert that BLS did not fulfil the conditions imposed upon it by the offer to purchase,  
and the transaction should be voided.  
[3]  
Alternatively, the Mossings assert further that should they be found liable  
for damages resulting from a breach of contract, those damages should be underwritten  
by Mr. Brian Tiefenbach, the realtor involved in this disputed land transaction, and the  
NAI Commercial Real Estate (Sask) Ltd. [NAI], the company with which Mr.  
Tiefenbach was associated at the time. This is because of alleged improprieties  
committed by Mr. Tiefenbach when acting as their realtor, including negligent  
misrepresentations he made to them. For this reason, the Mossings joined Mr.  
Tiefenbach and NAI as third parties to this action.  
[4]  
These reasons will explain why I find BLS has proved on a balance of  
probabilities that the Mossings breached the contract of purchase and sale of their  
property to BLS. However, I would not order specific performance of that contract.  
Rather, I have determined that the Mossings should pay BLS damages in the amount of  
3 −  
$1,500,000. As well, BLS is entitled to the return of its deposit of $100,000. Also, I  
would dismiss the Mossings’ third party claim against Mr. Tiefenbach and NAI.  
II.  
ISSUES  
[5]  
This litigation presents the following general issues for decision:  
1.  
2.  
3.  
Is BLS’s offer to purchase the Mossing property dated December  
7, 2010 a valid contract for the purchase and sale of land?;  
If so, is it unenforceable as a result of the actions of BLS or Mr.  
Tiefenbach?, and  
If the Mossings breached BLS’s offer to purchase the property,  
should specific performance be ordered or are damages an  
adequate remedy?  
III.  
EVIDENCE  
A.  
Witnesses  
[6]  
Eight witnesses testified at the trial. BLS called three witnesses: Mr.  
Jonas Short; Mr. Lynden Penner, P. Eng., and Mr. Brandon Coté.  
[7]  
Four witnesses testified on behalf of the Mossings: Mr. Bruce Mossing;  
Mr. Corvin Mossing; Mrs. Elda Mossing, and Mr. Lorne Schlosser.  
[8]  
Mr. Brian Tiefenbach was the only witness to testify on behalf of the  
Third Parties. However, excerpts from the questioning of Mr. Paul Mehlson were also  
filed. At the time the events forming the substance of this litigation occurred, Mr.  
Mehlson was one of three owners of NAI. Today, this company is no longer active.  
4 −  
[9]  
At the outset, it is helpful to identify these witnesses, their relevance to  
these proceedings, and summarize the scope of their testimony.  
1. Witnesses for BLS  
The principal witness for BLS was Mr. Jonas Short [Jonas Short]. At the  
[10]  
time of trial, he served as Vice-President of BLS. He has been employed by BLS since  
approximately 1999, when his father, the late Mr. Jim Short [Jim Short], purchased the  
company. When the events giving rise to this litigation took place, Jonas Short was a  
project manager and, in his words, his father’s “right hand man”, “responsible for  
getting the job done”.  
[11]  
Sadly, Jim Short died in July 2014, shortly after this lawsuit was  
commenced. Consequently, he was never questioned in pre-trial discoveries.  
[12]  
BLS proffered Mr. Lynden Penner, P.Eng., as an expert witness. Mr.  
Penner holds two degrees in Geological Science from the University of Saskatchewan.  
Currently, he is President of J. D. Mollard and Associates (2010) Limited (Consulting  
Engineers and Geoscientists), a firm located in Regina. He was retained by BLS to  
provide an expert opinion on aggregate located on the Mossing property, its quality,  
and amount. To that end, he filed a formal report dated January 30, 2018, which was  
entered into evidence as Exhibit P-11 [Penner Report].  
[13]  
Counsel for the Mossings have challenged Mr. Penner’s expertise and the  
admissibility of his report. I will deal with counsel’s objections later in these reasons  
for judgment.  
[14]  
The final witness for BLS was Brandon Coté, a civil contractor residing  
in Weyburn, Saskatchewan. He had been acquainted with Jonas Short since  
5 −  
approximately 2013. He testified that sometime in 2013 or 2014, after speaking with  
Jonas Short, he went to the Mossing property and met with Bruce Mossing. Mr. Coté  
inquired whether the property was for sale. Bruce said it was, and the asking price was  
now $4,000,000.  
2.  
Witnesses for the Mossings  
[15]  
Bruce Mossing and his son, Corvin Mossing were the principal witnesses  
for the defendants. Bruce testified that the land in question had been in the Mossing  
family since 1909 when his grandfather came to Saskatchewan to homestead. Since  
then, four generations of Mossings have farmed this land located north of Bengough,  
Saskatchewan. Bruce began farming in approximately 1960. At trial, Bruce was 85  
years old. He testified that he and Corvin had been trying to sell the property at least  
since the 1980’s but without success. He recounted events leading up to the aborted sale  
of the land to BLS in December 2010, and its aftermath.  
[16]  
The evidence given by Corvin Mossing, Bruce’s son, corroborated much  
of his father’s evidence. He explained that he wanted to sell the property as he no longer  
wished to farm the land. His evidence, however, was more detailed than his father’s. In  
particular, Corvin Mossing did not hide his dislike for Jim Short, and the manner in  
which the events leading up to, and occurring on, December 7, 2010, had unfolded. He  
conceded that his decision not to proceed with the sale to BLS was motivated in part by  
animosity towards Jim Short and BLS.  
[17]  
Mrs. Elda Mossing is Bruce Mossing’s second wife, and Corvin  
Mossing’s stepmother. At the time of trial, they had been married for approximately 36  
years. Mrs. Mossing who is quite hard-of-hearing testified tentatively about what she  
6 −  
observed occurring at the Mossing residence during the morning and afternoon of  
December 7, 2010.  
[18]  
The final witness called by the defendants was Mr. Lorne Schlosser. Mr.  
Schlosser who had worked in the construction involving aggregate for more than 30  
years, operated various companies including Big Rock Trucking and L&G Crushing.  
The focus of his testimony related to his visit to the Mossing farm a day or so before  
December 7, 2010; his discussion with Bruce and Corvin Mossing at that time; his  
attempts to reach Mr. Tiefenbach to make what he maintained was an unconditional  
offer to purchase the Mossing land, and his displeasure after learning that the Mossings  
had executed the offer of purchase and sale with BLS which is impugned in this lawsuit.  
3.  
Witness for the Third Parties  
[19]  
As noted, Mr. Tiefenbach was the only witness to provide oral testimony  
on behalf of the Third Parties. Read-ins from Mr. Melansohn’s questioning were  
entered into the record, and represent the only evidence presented at trial on behalf of  
the Third Party, NAI.  
[20]  
At time of trial, Mr. Tiefenbach had been a realtor for approximately 35  
years commencing in 1984. Over the years, he worked with various agencies including  
Lane Realty, a real estate company which dealt primarily with the sale of agricultural  
land.  
[21]  
He became associated with NAI sometime in 2004. A copy of the  
agreement between ICR Commercial Real Estate (Regina) Ltd. [ICR] and Mr.  
Tiefenbach dated March 23, 2004 was entered into evidence as Exhibit P-2. Mr.  
Tiefenbach testified that he believed this document identified him as an independent  
real estate salesperson operating under the umbrella of ICR. ICR was the predecessor  
7 −  
company to NAI. Subsequently, NAI was taken over by Collier Property; however, at  
all times material to this lawsuit, Mr. Tiefenbach was associated with NAI, the other  
Third Party named in this action.  
[22]  
Mr. Tiefenbach testified that he first learned of the Mossings and their  
desire to sell their extensive land holding sometime in 2006. He approached them, and,  
subsequently, entered into a listing agreement with them. At that time the list price for  
the property was $1,850,000. The duration of this agreement was “a year less a day”.  
During that time, however, nobody made an offer to purchase the land.  
[23]  
In 2010, Mr. Tiefenbach came across an internet notice advertising the  
sale of the Mossing land. A copy of this advertisement which appeared on a website  
called Pin.ca was entered into evidence as Exhibit P-1. It stated the list price for the  
land was now $2,500,000.  
[24]  
Again, he reached out to Bruce and Corvin Mossing about the sale of the  
land. On June 10, 2010, Bruce and Corvin Mossing entered into an agreement titled  
“Commercial Listing Authority to Sell” with Mr. Tiefenbach as a representative of  
NAI. This document which was entered into evidence as Exhibit TP1, stipulated it  
would remain in effect until April 15, 2011. It specified the list price to be $2,500,000.  
In Article 4, Mr. Tiefenbach reduced his commission from 5% to 3% in a handwritten  
amendment to the document, not initialled by the other signatories.  
[25]  
Mr. Tiefenbach testified that he “showed” the Mossing property to two  
potential purchasers: representatives of the Pasqua First Nation, near Fort Qu’Appelle,  
Saskatchewan, and an unidentified construction “group” working out of Edmonton,  
Alberta. Representatives of each of these potential purchasers visited the property, and  
8 −  
even conducted tests to determine the amount and quality of the aggregate located on  
the land. Yet, neither entity saw fit to make a formal offer to purchase the property.  
[26]  
In August 2010, Mr. Tiefenbach testified that he met Jim Short at the  
wedding of the daughter of a mutual friend. Jim Short asked Mr. Tiefenbach if he knew  
of any land for sale which had an adequate supply of usable aggregate. As often occurs  
in life, it was this seemingly innocent exchange that served as the catalyst for events  
culminating in the lawsuit currently before the court.  
B.  
Relevant Factual Background  
[27]  
These witnesses testified respecting their perspectives about the events  
giving rise to this lawsuit. I do not intend to rehearse this evidence in detail. Rather, I  
will review only the factual background I deem to be most relevant to the issues I must  
decide.  
1.  
The Land  
[28]  
The land which is at the centre of this dispute is comprised of between 22  
to 24 contiguous quarter sections of land bearing the following legal descriptions:  
RM#70 SW 03-07-23-W2  
RM#40 All Sec 31-06-23-W2  
RM#40 All Sec 32-06-23-W2  
RM#40 West 1/2 33-06-23-W2  
RM#40 West 1/2 28-06-23-W2  
9 −  
RM#40 NW 21-06-23-W2  
RM#40 East 1/2 21-06-23-W2  
RM#40 All Sec 30-06-23-W2  
RM#40 East 1/2 25-06-24-W2  
[29]  
During these proceedings, it came to light that these last two parcels of  
land were held by the Estate of Charles Green of which Bruce Mossing and Corvin  
Mossing were executors. Nothing turns on this, however, because at trial it was  
conceded that the Mossings were entitled to sell those parcels of land.  
[30]  
This land is unusual because it contains both farmland of good quality  
and a sizeable amount of aggregate which is in high demand for road construction  
throughout Saskatchewan. Indeed, it was this source of aggregate which attracted the  
attention of BLS and Jim Short. Additionally, Jonas Short expressed interest in  
continuing the farming operation in which the Mossings, particularly Corvin, had lost  
interest. Indeed, Jonas Short testified he gave thought to planting a crop the following  
spring, if BLS’s offer to purchase the property was accepted.  
2.  
BLS’s First Offer to Purchase and the Counteroffer  
[31]  
Following Jim Short’s discussion with Mr. Tiefenbach in August 2010, a  
visit was arranged for him and Jonas Short to view the property and to see its amenities  
first-hand.  
[32]  
Subsequently, BLS made an offer to purchase the land dated August 24,  
2010, with Mr. Tiefenbach acting as the agent for both BLS and the Mossings [First  
Offer]. The First Offer contained a purchase price of $2,050,00 and included a deposit  
10 −  
in the amount of $50,000. (A copy of this type-written offer was entered into evidence  
as Exhibit P-2.)  
[33]  
Although this was the first serious offer to purchase the property made  
since the Mossings listed it sometime in the 1980’s, they rejected it out-of-hand because  
the purchase price was considerably less than the asking price of $2,500,000. As well,  
the Mossings deemed a deposit of $50,000 insufficient in the circumstances. Instead,  
they wanted the deposit to be no less than $100,000.  
[34]  
Schedule “C” to the First Offer set out the following conditions:  
Buyers Conditions:  
1. Subject to financing accepted to the Buyer on or before September  
30th, 2010;  
2. Subject to due diligence by the Buyer; any contracts, viewing of  
property on or before September 30th, 2010;  
3. Subject to Buyer testing for aggregate available on property by  
November 1st, 2010.  
Sellers Conditions:  
1. Sellers will clean all machinery, tools, and misc. items from  
property by July 31st 2011;  
2. Sellers may store grains until July 31st, 2011;  
3. Sellers agree to remove any materials which may be construed to  
cause a problem, ie: chemical cans etc.  
Buyer and Seller to agree to a mutual arrangement to allow seller  
to remain in residence for a specified time to allow for a reasonable  
transition.  
[35]  
On September 2, 2010, the Mossings made a counteroffer stipulating a  
purchase price of $2,500,000 with a deposit of $100,000 [Counteroffer]. The Mossings  
believed the amount of this deposit would commit a prospective purchaser to  
11 −  
completing the transaction, as it would stand to lose a significant amount of money if it  
reneged on the purchase. This Counteroffer also stated that all conditions set out in the  
First Offer dated August 24, 2010, remained. (A copy of this hand-written counteroffer  
was admitted into evidence as Exhibit P-3.)  
[36]  
BLS did not take up the Counteroffer.  
3. BLS’s Second Offer to Purchase  
Approximately one week later, on September 9, 2010, BLS delivered to  
[37]  
the Mossings a second offer to purchase [Second Offer]. This time BLS offered to  
purchase the land for $2,350,000, an amount still considerably less than the Mossings’  
asking price of $2,500.000. BLS increased the amount of its’ deposit to $100,000. The  
various conditions set out in Schedule “C” remained unchanged from the First Offer. A  
copy of this type-written offer on a standard form document entitled “Offer to  
Purchase” was entered into evidence as Exhibit P-4.  
[38]  
Mr. Tiefenbach presented the Second Offer to the Mossings. The  
Mossings refused it for the same reason they had rejected the First Offer they wanted  
the full asking price. This time, however, the Mossings chose not to make a  
counteroffer. They advised Mr. Tiefenbach that they saw “no point” to countering, as  
they would ask for the full purchase price.  
[39]  
Following this impasse, no further activity occurred respecting the listing  
of the Mossings’ land until early December 2010.  
4.  
Events Leading Up to December 7, 2010  
[40]  
Events occurring in early December 2010 which culminated in the  
12 −  
presentation of BLS’s third offer to purchase by Mr. Tiefenbach to the Mossings on  
December 7, 2010 figure prominently in, and are central to a resolution of, this dispute.  
Not surprisingly, testimony about those events occupied much time at trial, and various  
witnesses gave somewhat differing accounts of the events.  
4.1. Lorne Schlosser’s Evidence  
[41]  
In early December 2010, Mr. Lorne Schlosser entered the picture. He  
testified that he was alerted to the Mossing property by his son, Michael, who had seen  
the online advertisement on Pin.ca. At the time, he was looking for land in  
Saskatchewan which contained aggregate because he wanted to bid on an upcoming  
provincial highway project. The advertisement intrigued him as it described a large  
landholding which included farmland as well as a source of a significant amount of  
aggregate.  
[42]  
Mr. Schlosser testified he then telephoned Bruce Mossing and arranged  
to come to the farm the following day. He thought that he visited the farm on a Monday  
in early December, i.e. December 6, 2010. At that time, Corvin Mossing showed him  
the property because his father was not at home when he arrived. After having viewed  
the property, Mr. Schlosser testified that he and Corvin then went to the house and they  
spoke with Bruce.  
[43]  
Mr. Schlosser said he conversed with Bruce and Corvin in the kitchen of  
Bruce Mossing’s home, a conversation which he estimated lasted between one to two  
hours. During this time, he testified they discussed farming, farmland, and gravel.  
[44]  
However, when the conversation turned to the asking price for the  
property, Bruce and Corvin Mossing told him he should speak to their real estate agent,  
13 −  
Mr. Tiefenbach. Bruce Mossing then gave Mr. Schlosser, Mr. Tiefenbach’s business  
card which contained his contact information.  
[45]  
Mr. Schlosser testified he told both Bruce and Corvin Mossing that he  
was interested in making an offer to purchase the land. He said that before he left the  
house that day, he told Bruce Mossing not to do anything respecting the sale of the  
property until he heard further from him. Bruce agreed and the two men shook hands.  
[46]  
Mr. Schlosser testified that while driving back to Regina, Saskatchewan,  
he called both his son, Michael, and his brother, Doug, to discuss the possibility of  
purchasing the property. According to Mr. Schlosser the three of them agreed that Mr.  
Schlosser should make an unconditional offer to purchase the property for the full  
asking price of $2,500,000.  
[47]  
That afternoon Mr. Schlosser telephoned Mr. Tiefenbach to discuss  
making an offer to purchase the property. However, Mr. Tiefenbach said he could not  
meet with him that day because he was in Wynyard, Saskatchewan, and his vehicle was  
in the garage being repaired. Mr. Tiefenbach told Mr. Schlosser he did not know when  
he would get back to Regina.  
[48]  
Mr. Schlosser said that in the early evening of December 6, 2010, he again  
telephoned Mr. Tiefenbach. Mr. Schlosser still wanted to meet with Mr. Tiefenbach to  
prepare an offer to purchase the Mossing land. He told Mr. Tiefenbach he wished to  
make an unconditional offer for the full purchase price.  
[49]  
Mr. Schlosser testified that Mr. Tiefenbach advised that he could not meet  
with him that day. Mr. Tiefenbach further stated that he was leaving very early the next  
day to present an offer to the Mossings, so it would not be possible for them to meet  
prior to that time.  
14 −  
[50]  
Following this conversation with Mr. Tiefenbach, Mr. Schlosser testified  
that he “got busy on other projects” and did not pursue the matter any further. It was  
only when Bruce Mossing telephoned him a few weeks later, closer to Christmas, that  
he learned the Mossings had accept BLS’s conditional offer to purchase the property  
for $2,500,000. He was angered to learn this.  
4.2. Bruce Mossing’s Evidence  
[51]  
Bruce Mossing testified that Mr. Schlosser telephoned him because he  
was interested in buying some “pit rock”.  
[52]  
Mr. Schlosser came the next day and Corvin Mossing toured him about  
the property. Bruce Mossing testified that they had a conversation afterward during  
which Mr. Schlosser told him he was interested in making an offer on the property.  
According to Bruce Mossing, this conversation took place at the back door of his house,  
and was a short meeting, lasting, in Bruce’s words, “just a few minutes”.  
[53]  
Bruce Mossing testified he told Mr. Schlosser that Mr. Tiefenbach was  
coming to the farm the next day, i.e. December 7, 2010. Corvin Mossing then gave Mr.  
Tiefenbach’s business card to Mr. Schlosser and told him to contact Mr. Tiefenbach if  
he wanted to make a formal offer.  
[54]  
Bruce Mossing stated that before Mr. Schlosser left, he told them not to  
accept any offer on the property until he contacted them again. Then Bruce Mossing  
and Mr. Schlosser shook hands.  
[55]  
Bruce Mossing testified that after his conversation with Mr. Schlosser, he  
heard nothing further from him. He stated that he finally had a telephone conversation  
with Mr. Schlosser “a week or so later”, after he located a contact number for Big Rock  
15 −  
Trucking, one of Mr. Schlosser’s business ventures, in the phonebook.  
4.3. Corvin Mossing’s Evidence  
[56]  
Corvin Mossing testified that Mr. Schlosser came to the farm on or about  
December 6, 2010. He stated that prior to this visit, he had never met Mr. Schlosser.  
[57]  
Corvin Mossing said he showed the property to Mr. Schlosser that day  
because his father was not at home when Mr. Schlosser arrived. They toured the farm  
in Mr. Schlosser’s truck, a tour which Corvin Mossing estimated lasted approximately  
45 minutes.  
[58]  
By the time they returned to the main house, Bruce Mossing had returned.  
The three of them conversed at the back door. During this conversation which Corvin  
Mossing said lasted “a short period of time”, Mr. Schlosser indicated he was interested  
in the property not only because of the aggregate it contained but also the farming  
operation for his son. Corvin Mossing gave Mr. Tiefenbach’s business card to Mr.  
Schlosser.  
[59]  
Corvin Mossing confirmed that the conversation ended with Mr.  
Schlosser telling them not to make any final decision about selling the property until  
they heard from him. At its conclusion, they all shook hands.  
4.4. Brian Tiefenbach’s Evidence  
[60]  
Mr. Tiefenbach testified that sometime in the afternoon of December 6,  
2010, he received a telephone call from Mr. Lorne Schlosser. He thought, but was not  
sure, that Mr. Schlosser’s brother may also have been on the call. Mr. Tiefenbach said  
that they wanted to meet with him to discuss the Mossing property.  
16 −  
[61]  
At the time, Mr. Tiefenbach was in Wynyard, and told Mr. Schlosser that  
he did not know what time he would be returning to Regina. He testified that he advised  
Mr. Schlosser, he may try to telephone him later that day, depending on how late he  
arrived back in Regina. Mr. Tiefenbach stated that Mr. Schlosser did not tell him he  
wanted to make an any offer to purchase the property or what amount he was prepared  
to pay.  
[62]  
On cross-examination by Mr. Kuski, counsel for the Mossings, Mr.  
Tiefenbach reiterated that Mr. Schlosser did not tell him that he wanted to make an offer  
on the property, only that he wanted to talk about the property.  
[63]  
Mr. Tiefenbach stated that although he did not recall a second telephone  
conversation with Mr. Schlosser in the evening of December 6, he admitted it was  
possible such a conversation took place. He did not, however, resile from his testimony  
that at no time did Mr. Schlosser tell him he wanted to make an unconditional offer to  
purchase the Mossing property for the asking price of $2,500,000.  
[64]  
Mr. Tiefenbach testified that Jim Short reached out to him that evening  
and said BLS wanted to make a third offer to purchase the Mossing property for  
$2,400,000. Mr. Tiefenbach stated that would not be acceptable as the Mossings wanted  
nothing less than the full asking price.  
5.  
BLS’s Third Offer to Purchase  
[65]  
Mr. Tiefenbach prepared BLS’s third offer to purchase dated December  
6, 2010 [Third Offer]. The Third Offer stipulated a purchase price of $2,500,000 and  
included a non-refundable deposit of $100,000. (A copy of the Third Offer which was  
handwritten on a standard form document entitled Offer to Purchase, was entered into  
evidence as Exhibit P-5.)  
17 −  
[66]  
In addition to the revised purchase price, this Third Offer erroneously  
identified a closing date of Feb. 15, 2010(emphasis added). Schedule “C” set out the  
same conditions as had appeared in BLS’s previous two offers with required date  
changes. In part, it now provided:  
Buyers Conditions:  
4. Subject to financing accepted to the Buyer on or before Jan  
31st/2011  
5. Subject to due diligence by the Buyer; any contracts, viewing of  
property on or before Dec 31st/2010;  
6. Subject to Buyer testing for aggregate available on property by  
Dec 31st/2010  
Sellers Conditions:  
6. Sellers will clean all machinery, tools, and misc. items from  
property by July 31st 2011;  
7. Sellers may store grains until July 31st, 2011;  
8. Sellers agree to remove any materials which may be construed to  
cause a problem, ie: chemical cans etc.  
Buyer and Seller to agree to a mutual arrangement to allow seller  
to remain in residence for a specified time to allow for a reasonable  
transition.  
[67]  
A further condition appeared in Schedule “C” which proved contentious  
at trial. Written in Mr. Tiefenbach’s hand, it read:  
Seller agrees upon acceptance of offer and time for due diligence the  
seller will not process or sell any product of rock agregate [sic] other  
than what has been agreed to with buyer as of today.  
[68]  
Mr. Tiefenbach testified that Jim Short signed this document early on  
December 7, 2010. Mr. Tiefenbach then drove from Regina to the Mossing farm to  
present the offer to Bruce and Corvin Mossing. He arrived there at approximately 10:00  
18 −  
a.m. The evidence is that as soon as Mr. Tiefenbach arrived at Bruce Mossing’s home,  
both Bruce and Corvin inquired whether he had heard from Mr. Schlosser, and whether  
Mr. Schlosser had made an offer to buy property. (Bruce Mossing testified that he  
believed they could realize more than $2,500,000 for the property were a bidding war  
between or among prospective purchasers to ensue.)  
[69]  
Evidence from these witnesses varies respecting what was Mr.  
Tiefenbach’s exact response; however, it is accurate to say Mr. Tiefenbach advised the  
Mossings that Mr. Schlosser had made no offer to purchase the property.  
[70]  
Mr. Tiefenbach remained at the farmhouse until late that afternoon. He  
testified that he took them through the Third Offer explaining its various terms. He  
stated that Bruce and Corvin seemed somewhat reluctant to accept the Third Offer.  
Corvin Mossing especially was concerned about the degree of drilling which would be  
required for BLS to test for the quality of aggregate.  
[71]  
By the end of the day, however, Bruce and Corvin both executed the  
document. Mr. Tiefenbach left the Mossing property to return to Regina shortly after  
4:00 p.m., the executed document in hand.  
[72]  
Shortly after Mr. Tiefenbach departed, Jim Short showed up at the  
Mossing farmhouse to speak to Bruce Mossing. Apparently, he came to pay Mr.  
Mossing approximately $1,600 for aggregate that he had taken from the property for  
which he had not yet paid.  
[73]  
Corvin Mossing testified that Jim Short’s appearance at the farm so soon  
after he and his father had signed the Third Offer, angered him. He said he believed Jim  
Short had underpaid for the aggregate BLS had used, and he suspected that Jim Short  
had been waiting outside all the while Mr. Tiefenbach had been in the house waiting  
19 −  
for them to execute the documents. Corvin Mossing stated that Jim Short’s appearance  
at the house late on December 7, 2010 was, in his words, when “this nightmare began”.  
6.  
Events Subsequent to December 7, 2010  
[74]  
The next day December 8, 2010 Mr. Tiefenbach returned with a  
document entitled “Amendment of Terms/Conditions” [Amendment] and dated  
December 8, 2010. Again, this document was completed in Mr. Tiefenbach’s hand, and  
signed by Jim Short on behalf of BLS, and Bruce and Corvin Mossing. In its salient  
parts it reads:  
The Seller and the Buyer hereby agree:  
1.Buyer agrees on his testing of rock aggregate on all 30-6-23-W2  
NW-32-6-23 W2 SW-32-6-23-2 shall be done with no larger then [sic]  
36" bucket. Seller want to share all information.  
2. Buyer will arrange through agent on access.  
[75]  
Mr. Tiefenbach testified that it was on December 8, 2010 that he  
explained to the Mossings that earlier he had met with Doug Schlosser, Lorne  
Schlosser’s brother and asked him if he wanted to make an unconditional offer to  
purchase the Mossing property. According to Mr. Tiefenbach, Mr. Doug Schlosser  
declined.  
[76]  
Between December 13 and December 16, 2010, employees of BLS  
conducted testing of the aggregate to determine its amount and quality. With the  
agreement of Bruce and Corvin Mossing, they utilized 42" buckets for this testing,  
instead of the 36" buckets identified in the Amendment.  
[77]  
Jonas Short testified that the Mossings were often present during these  
three days to observe the testing. As well, they assisted BLS’s workers to plug in the  
20 −  
company’s equipment at night due to the frigid temperatures experienced at that time  
of year.  
[78]  
Following the completion of the aggregate testing, the parties executed a  
Notice to Remove Conditions dated December 23, 2010. This document stipulated that  
two conditions set out at Schedule “C” of the Third Offer had been removed, namely  
that BLS had exercised its due diligence to view the property, and had completed its  
testing of the aggregate, all to have been completed by December 31, 2010.  
[79]  
As of December 23, 2010, it appears the Mossings were prepared to see  
the land transaction with BLS through to completion. Although it is unclear when Bruce  
Mossing finally contacted Mr. Lorne Schlosser and told him they had signed an  
agreement to sell the land to BLS, it seems this conversation motivated the Mossings  
to seek legal advice. They believed that Mr. Schlosser had told Mr. Tiefenbach he  
wanted to make an unconditional oral offer to purchase the property for the full asking  
price, and Mr. Tiefenbach had deliberately failed to inform them about it.  
[80]  
On January 21, 2011, Mr. Wayne L. Bernakevitch of McDougall Gauley  
LLP wrote to Mr. Tiefenbach as follows:  
Dear Sir:  
RE: Sale of Farmland Bruce Mossing and Corvin Mossing  
Initially, this letter is to confirm that our firm has been retained to  
represent Bruce and Corvin Mossing with respect to the above-noted  
matter. I had the opportunity to meet with the Mossings on January  
19th to discuss the sale of their farmland and leading up to them signing  
an Offer to Purchase and matters that they subsequently discovered  
following the signing of the Offer to Purchase. I can advise you that  
the Mossings do not feel that they have a binding Offer to  
Purchase on the sale of their land and, accordingly, have no  
21 −  
intention of proceeding with a sale.  
[Emphasis added]  
[81]  
Despite receipt of this letter, Mr. Tiefenbach continued to move this  
transaction along. On January 31, 2011, a second notice to remove conditions was  
executed by Jim Short on behalf of BLS and delivered to the Mossings. BLS had  
obtained the necessary financing to complete the sale from the Business Development  
Bank of Canada [BDC], and this notice advised the Mossings, the third and final  
condition for the buyer had been satisfied. The Mossings never executed this document,  
however.  
[82]  
On February 18, 2011, a second letter from Mr. Wayne Bernakevitch of  
McDougall Gauley LLP was received by the law firm, KMP Law which was now  
representing BLS. The covering letter advised that Mr. Bernakevitch acted on behalf of  
BDC respecting approval of BLS’s financing for purchase of the Mossing property, and  
included the requisite documentation to effect the loan to BLS. It should be noted that  
this letter and documentation were sent to BLS’s lawyer less than a week after the  
closing date identified in the Third Offer.  
[83]  
As a result of BLS’s failed attempt to purchase the Mossing property,  
BLS had to purchase other land as an alternate source of aggregate for its construction  
business. Jonas Short testified that for example in March 2011, the company purchased  
a gravel pit near Ceylon, Saskatchewan which he thought contained only approximately  
5% of the estimated amount of aggregate found on the Mossing property.  
[84]  
On November 27, 2012, BLS issued its statement of claim seeking to  
enforce the Third Offer and directing specific performance of its terms.  
22 −  
IV.  
RELIABILITY AND CREDIBILITY  
[85]  
Issues respecting the credibility and reliability of certain witnesses arise  
primarily because at trial most of them were testifying to events and discussions which  
took place almost a decade earlier. Additionally, Jim Short who, on behalf of BLS, was  
the individual most intimately involved with the negotiations and interactions with the  
Mossings, and with Mr. Tiefenbach, which are at issue in this litigation, had died before  
he could be questioned under oath about them.  
1.  
Law  
[86]  
Credibility and reliability are distinct concepts. Credibility is concerned  
with a witness’ honesty or truthfulness. Reliability, however, focusses on a witness’  
powers of observation, recollection, and communication. A witness who is not credible  
cannot give reliable evidence. Yet, credibility is not a proxy for reliability. A credible  
witness may give unreliable evidence. See: R v Wolff, 2019 SKCA 103 at para 38, 380  
CCC (3d) 223 [Wolff]; and R v H.C., 2009 ONCA 56 at para 41, 241 CCC (3d) 45.  
[87]  
Moreover, credibility and reliability are not all or nothing propositions.  
A judge may believe all, part or none of a witness’ evidence, and may attach different  
weight to different parts of a witness’ evidence. See: R v R. (D.), [1996] 2 SCR 291 at  
para 93; R v Howe (2005), 192 CCC (3d) 480 (Ont CA), at para 44.  
[88]  
Numerous authorities have discussed the principles governing the  
assessment of credibility. In Bradshaw v Stenner, 2010 BCSC 1398, aff’d 2012 BCCA  
296, leave to appeal ref’d [2012] SCCA No 392 (QL), for example, the court explained  
as follows at para. 186:  
[186] Credibility involves an assessment of the trustworthiness of a  
witness’ testimony based upon the veracity or sincerity of a witness  
23 −  
and the accuracy of the evidence that the witness provides (Raymond  
v. Bosanquet (Township) (1919), 59 S.C.R. 452, 50 D.L.R. 560  
(S.C.C.)). The art of assessment involves examination of various  
factors such as the ability and opportunity to observe events, the  
firmness of his memory, the ability to resist the influence of interest  
to modify his recollection, whether the witness’ evidence harmonizes  
with independent evidence that has been accepted, whether the witness  
changes his testimony during direct and cross-examination, whether  
the witness’ testimony seems unreasonable, impossible, or unlikely,  
whether a witness has a motive to lie, and the demeanour of a witness  
generally (Wallace v. Davis, [1926] 31 O.W.N. 202 (Ont. H. C.t.);  
Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.) [Faryna]; R. v. S.  
(R.D.), [1997] 3 S.C.R. 484 at para 128 (S.C.C.)). Ultimately, the  
validity of the evidence depends on whether the evidence is consistent  
with the probabilities affecting the case as a whole and shown to be in  
existence at the time (Faryna at para. 356).  
[89]  
Testimonial demeanour is not the most reliable tool for evaluating  
credibility, however. See: Wolff at para 45. In Cavanaugh v Grenville Christian  
College, 2020 ONSC 1133 at para 40. 58 ETR (4th) 51, for example, the court identified  
a short non-exhaustive list of factors which provides a more dependable measure by  
which a witness’ testimony can be assessed. These factors include: (a) the plausibility  
of the evidence; (b) independent supporting evidence; (c) the external consistency of  
the evidence; (d) the internal consistency of the evidence; and (e) the “balance” of the  
evidence. To similar effect, see: Rajan v Budrugeac, 2020 BCSC 1056 at para 3.  
[90]  
At the end of the day, the issue becomes: is the witness’ evidence  
accurate? See: R v Groshok, 2019 SKCA 39; R v Charboneau, 2019 ABQB 313 at para  
67; and R v Norman (1993), 16 OR (3d) 295 (WL) (Ont CA) at para 47.  
2.  
Analysis  
[91]  
The typical starting point when assessing credibility is to presume  
truthfulness. See, for example: Jung Estate v Jung Estate, 2022 BCSC 1298 at para 28;  
Hardychuk v Johnstone, 2012 BCSC 1359 at para 10 [Hardychuk]. However, if a  
24 −  
witness’ evidence is found to be clearly inaccurate “the challenge from an assessment  
perspective is to identify the likely reason for the inaccuracy in a cautious, balanced  
and contextually sensitive way”: Hardychuk at para 10.  
[92]  
Over the course of the trial, I had the advantage of observing the various  
witnesses giving their evidence. As noted, testimonial demeanour is not the most  
reliable gauge of truthfulness. That said, I did not find any witness to be obviously  
untruthful. All were testifying to events which took place almost a decade earlier, so it  
is understandable that memories of particular events would become clouded. I did,  
however, find certain witnesses less reliable than others.  
[93]  
I begin with witnesses who testified for the plaintiff, BLS. Jonas Short  
was in the unenviable position of having to give evidence about events and happenings  
which he did not witness first hand. He testified forthrightly and was careful to identify  
events about which he did not have first-hand knowledge. As far as it goes, I accept his  
evidence as accurate and reliable.  
[94]  
Mr. Brandon Coté’s evidence was brief. As noted, it pertained to a brief  
visit he paid to the Mossing property, and his discussion with Bruce Mossing regarding  
whether the property was for sale and the purchase price. He testified in a  
straightforward way, and I accept his evidence as accurate and reliable.  
[95]  
Bruce Mossing, and Corvin Mossing were the principal witnesses for the  
defendants. Bruce Mossing was a somewhat tentative, if not reluctant, witness. He  
repeatedly expressed his regret that he had signed the Third Offer, and this sentiment  
ran like a leit-motif throughout his examination-in-chief, and cross-examinations by  
both Mr. Scott, and Mr. Kendall, respectively.  
25 −  
[96]  
I found Bruce Mossing’s evidence respecting the events and negotiations  
which are central to the resolution of this lawsuit to be generally reliable, albeit as seen  
through a prism of regret and sadness that he had initially agreed to BLS’ Third Offer.  
[97]  
Corvin Mossing, Bruce’s son, was, in my view, a more reliable witness.  
Like his father, he was present at all relevant events. He testified honestly about them  
and was open about his dislike for Jim Short, for example. As well, he explained he  
wanted to move off the property because he no longer was interested in farming or the  
farm. When his evidence differs from that given by his father, Bruce Mossing, I prefer  
Corvin Mossing’s evidence.  
[98]  
As mentioned, Ms. Elda Mossing is quite deaf, and had difficulty hearing  
the questions asked by the defendants’ co-counsel, Ms. Kuski-Basset. However, while  
her testimony was brief, she answered the questions to the best of her recollection. I  
will, however, give little weight to her testimony.  
[99]  
The final witness to testify on behalf of the defence was Mr. Lorne  
Schlosser. He presented himself as a confident witness, perhaps a little too much so. I  
would not describe Mr. Schlosser as untruthful. However, as I will explain later in my  
reasons, I found his evidence to be unreliable in some important aspects. Particularly  
respecting the issue of whether he had made a clear verbal offer to Mr. Tiefenbach on  
December 6, 2010. I accept some of his evidence but certainly not all of it.  
[100]  
Mr. Tiefenbach was the sole witness to testify at trial on behalf of the  
Third Parties. I found him to be a somewhat evasive witness, reluctant to answer certain  
questions about his dealings as a realtor, generally, and as the dual agent in this  
transaction, particularly. That said, I did not find him to be untruthful. Like Mr.  
26 −  
Schlosser, I found him to be an unreliable witness, and accept some of his evidence but  
not all of it.  
V.  
DISCUSSION AND ANALYSIS  
A.  
Overview of Position of the Parties  
[101]  
The central issue in this lawsuit is deceptively simple: should I enforce  
the Third Offer and order specific performance against the Mossings. However, the  
various legal issues presented for resolution are extensive and elaborate.  
[102]  
The position advanced by BLS’s counsel is straightforward. First, BLS  
says the Third Offer is a valid contract because there is no uncertainty respecting its  
terms. Second, BLS complied with all conditions imposed upon it by the Third Offer.  
Third, BLS says if Mr. Tiefenbach conducted himself inappropriately or illegally in his  
dealings with the Mossings that is a matter exclusively between the Mossings and Mr.  
Tiefenbach. Fourth, BLS says in all the circumstances, it should be awarded specific  
performance of the contract, or alternatively damages in the amount of approximately  
$48,000,000.  
[103]  
The Mossings strenuously resist BLS’s attempt to force them to comply  
with the Third Offer. First, they assert that the Third Offer is not a valid contract, or  
alternatively is rendered unenforceable due to BLS’s failure to abide by the conditions  
imposed upon it in that offer. Second, they say that the conduct of Mr. Tiefenbach,  
particularly as he failed to tell them about an unconditional oral offer he received from  
Mr. Lorne Schlosser, vitiates the Third Offer. Third, in the event the Third Offer is  
found to constitute a valid contract, the Mossings say that specific performance of this  
contract is not warranted, and BLS has failed to prove it suffered any damages flowing  
27 −  
from this failed land transaction. Fourth, in the event BLS is awarded damages, the  
Mossings assert those damages should be underwritten by Mr. Tiefenbach, and NAI.  
B.  
Is the Third Offer A Valid Contract?  
[104]  
The Mossings impugn the legal validity of the Third Offer on three  
grounds. These grounds are:  
(a)  
(b)  
(c)  
Lack of agreement on essential terms in the contract,  
Essential residential condition not settled, and  
Material alterations made to the contract after its execution.  
[105]  
However, prior to addressing these substantive questions, it is useful to  
identify basic principles of contract interpretation which will assist in the analysis of  
these issues.  
1.  
Fundamental Principles of Contractual Interpretation  
[106]  
The goal of contractual interpretation is “to ascertain the objective intent  
of the parties a fact-specific goal through the application of legal principles of  
interpretation”. See: Sattva Capital Corp. v Creston Moly Corp., 2014 SCC 53 at para  
49, [2014] 2 SCR 633 [Sattva]. To achieve this goal, a court must apply “a practical,  
common-sense approach”, the “over-riding concern” of which is “to determine ‘the  
intent of the parties and the scope of their understanding’”: Sattva at para 47.  
[107]  
The Sattva approach to contractual interpretation was helpfully  
summarized in Weyerhaeuser Company Limited v Ontario (Attorney General), 2017  
ONCA 1007 at para 65, 77 BLR (5th) 175, as follows:  
28 −  
[65] The general principles guiding adjudicators about “how” to  
interpret a commercial contract were summarized in Sattva, at para.  
47, and by this court in two 2007 decisions - Ventas, Inc. v Sunrise  
Senior Living Real Estate Investment Trust, 2007 ONCA 205, 85 OR  
(3d) 254 at para 24, and Dumbrell v The Regional Group of  
Companies Inc., 2007 ONCA 59, 85 OR (3d) 616 at paras 52-56.  
When interpreting a contract, an adjudicator should:  
(i) determine the intention of the parties in accordance with  
the language they have used in the written document, based  
upon the "cardinal presumption" that they have intended what  
they have said;  
(ii) read the text of the written agreement as a whole, giving  
the words used their ordinary and grammatical meaning, in a  
manner that gives meaning to all of its terms and avoids an  
interpretation that would render one or more of its terms  
ineffective;  
(iii) read the contract in the context of the surrounding  
circumstances known to the parties at the time of the  
formation of the contract. The surrounding circumstances, or  
factual matrix, include facts that were known or reasonably  
capable of being known by the parties when they entered into  
the written agreement, such as facts concerning the genesis of  
the agreement, its purpose, and the commercial context in  
which the agreement was made. However, the factual matrix  
cannot include evidence about the subjective intention of the  
parties; and  
(iv) read the text in a fashion that accords with sound  
commercial principles and good business sense, avoiding a  
commercially absurd result, objectively assessed.  
[108]  
The cardinal principle of contractual interpretation holds that as much as  
possible, a court should give effect to the objective intentions of the parties as discerned  
from the words utilized in the contract. See, for example: Dundee Realty Corporation  
v Harvard Developments Inc., 2012 SKQB 73 at paras 29-30, 391 Sask R 153; and  
UMA/B&V Ltd. v SaskPower International Inc., 2007 SKCA 40 at para 23, [2007] 6  
WWR 277.  
29 −  
[109]  
The question of whether the parties intended to enter into a contract, and  
whether the essential terms of the contract can be ascertained with a reasonable degree  
of certainty is to be determined from the perspective of a reasonable, objective  
bystander aware of all material facts. See, for example: Kennett v Diarco Farms Ltd,  
2018 SKQB 179 at para 62; Tether v Tether, 2008 SKCA 126 at para 55, [2009] 4  
WWR 274, and Canadian Northern Shield v 2421593 Canadian Inc., 2018 ONSC 3627  
at para 74.  
[110]  
The subjective intentions and beliefs of the parties are irrelevant and have  
no place in the interpretative process. See: Ko v Hillview Homes Ltd., 2012 ABCA 245  
at para 27, [2013] 2 WWR 52 [Ko], and United Gulf Developments Ltd. v Iskandar,  
2008 NSCA 71 at para 82, 267 NSR (2d) 318.  
[111]  
As well, Sattva confirmed that the background circumstances  
surrounding the formation of the contract under scrutiny the factual matrix can be  
an objective interpretive aid useful for assisting a court to better understand the deal  
achieved by the parties as expressed in the words of the contract. Employing such  
evidence in the interpretive exercise does not conflict with the parole evidence rule.  
See: Sattva at paras 57 and 60.  
[112]  
Generally, where the contract relates to real property, the rule is that, at a  
minimum, there must be sufficient clarity as to the essential terms of the agreement  
respecting the parties, the property, and the price. See: Ko at para 84, and Hoban  
Construction Ltd. v Alexander, 2012 BCCA 75 at para 41, [2012] 7 WWR 239 [Hoban].  
[113]  
In Hoban, for example, the British Columbia Court of Appeal stated at  
para. 47 as follows:  
30 −  
[47]  
There is no question that the documents the parties signed  
were inelegantly and inartistically drafted. They contain typographical  
errors and substantive mistakes. There seems to be little doubt that the  
form of the contracts and the offers from which they arose did not  
strictly comply with the specifications in the USA [Unanimous  
Shareholders Agreement]. However, the inquiry is not whether the  
contracts were competently drafted, but rather whether they  
disclose the parties’ intentions as to the substance of their  
agreement…  
[Underlining in original; bolding emphasis added]  
[114]  
(I pause to observe that the description of the documentation at issue in  
Hoban aptly encapsulates some of the complaints about the deficiencies found in the  
Third Offer made by counsel for the Mossings.)  
[115]  
While it is true that courts will not, and should not, enforce an agreement  
where an essential term is too uncertain, every effort should be made to ascertain its  
meaning looking at the substance, and not mere form, of the term in question. This  
approach was underscored by our Court of Appeal in 101090442 Saskatchewan Ltd. v  
Harle, 2014 SKCA 6, [2014] 4 WWR 783 [Harle] where Jackson J.A. wrote at para.  
51:  
[51] If we return again to the words of Prof. McCamus [John D.  
McCamus, The Law of Contracts, 2nd ed. (Toronto: Irwin Law Inc.,  
2012)] (at pp. 93-94):  
Parties, especially those not advised by lawyers, may be  
unaware of the nature of all the essential terms to be stipulated  
in the particular context. Parties may assume that reasonable  
or “the usual” arrangements will apply to an undetermined  
matter. In all such cases, the parties may intend to enter into  
binding contractual arrangements and believe that they have  
successfully done so. Rigid application of the doctrine of  
certainty, therefore, could produce much mischief, especially  
in cases where the parties detrimentally rely on the  
assumption that a valid and enforceable agreement has been  
created. Accordingly, courts will attempt to fill gaps and find  
meaning in agreements in circumstances where it appears the  
binding agreement was intended by the parties.  
31 −  
The law of certainty of terms, then, reflects this tension  
between a requirement that the parties reach a complete and  
intelligible agreement and a reluctance to defeat the  
expectations of the parties that an enforceable agreement has  
been created.... As we shall see, the leading modern  
authorities tend to place particular emphasis on the need to  
give effect, where possible, to the expectations of the parties  
that they have entered into a valid and enforceable agreement.  
[Emphasis in original]  
[116]  
Almost half-a-century earlier, in Marquest Industries Ltd. v Willows  
Poultry Farms Ltd. (1968), 1 DLR (3d) 513 (BCCA) the British Columbia Court of  
Appeal at pp. 517-18 advocated for a similar interpretive role for a reviewing court as  
follows:  
In the first place, consideration must be given to the duty of a Court  
and the rules it should apply, where a claim is made that a portion of  
a commercial agreement between two contracting parties is void for  
uncertainty or, to put it another way, is meaningless. The primary rule  
of construction has been expressed by the maxim, ut res magis valeat  
quam pereat or as paraphrased in English, “a deed shall never be void  
where the words may be applied to any extent to make it good”. The  
maxim has been basic to such authoritative decisions as Scammell v.  
Ouston, [1941] 1 All E.R. 14; Wells v. Blain, [1927] 1 D.L.R. 687,  
[1927] 1 W.W.R. 223; Ottawa Electric Co. v. St. Jacques (1902), 31  
S.C.R. 636, as well as many others, which establish that every effort  
should be made by a Court to find a meaning, looking at substance  
and not mere form, and that difficulties in interpretation do not  
make a clause bad as not being capable of interpretation, so long  
as a definite meaning can properly be extracted. In other words,  
every clause in a contract must, if possible, be given effect to. Also, as  
stated as early as 1868 in Gwyn v. Neath Canal Navigation Co. (1868),  
L.R. 3 Ex. 209, that if the real intentions of the parties can be  
collected from the language within the four corners of the  
instrument, the Court must give effect to such intentions by  
supplying anything necessarily to be inferred and rejecting  
whatever is repugnant to such real intentions so ascertained.  
[Emphasis added]  
[117]  
These are the legal principles I will employ when addressing the  
Mossings’ arguments that the Third Offer is invalid and unenforceable.  
32 −  
2.  
The Third Offer is Valid Because Essential Terms Are Not  
Uncertain  
[118]  
To begin, there can be no doubt that the principal elements of this land  
transaction are readily identifiable, namely, the parties to the agreement; the lands  
which form the subject matter of the transaction, and the purchase price of $2,500,000  
comprised of a non-refundable deposit of $100,00, plus $2,400,000 payable by the  
closing date, subject to BLS obtaining financing. As noted, BDC did approve financing  
for BLS to complete the transaction on or before January 31, 2011. In short, the Third  
Offer satisfies the minimal requirements of a valid contract for the sale of land. See, for  
example: 101060873 Saskatchewan Ltd. v Saskatoon Open Door Society Inc., 2016  
SKCA 98 at para 31, [2016] 12 WWR 65; Bublish v Turanich, 2017 SKQB 240 at para  
49 [Bublish], and McKenzie v Walsh (1920), 61 SCR 312.  
[119]  
The closing date handwritten into the Third Offer was “Feb. 15, 2010”  
[emphasis added]. Obviously, this was an error. Even Corvin Mossing testified he knew  
it was a mistake, as did Jonas Short. Indeed, this date had long passed even before the  
Third Offer was executed by all parties. Admittedly, this oversight by Mr. Tiefenbach  
in drawing up the document, and the subsequent failure by the parties to discover it,  
was unfortunate. Yet, it would be absurd to conclude that the Third Offer is  
unenforceable due to this obvious drafting error. See, generally: Hoban at para 47.  
[120]  
However, the Mossings have identified three terms they assert are  
essential to the agreement which were not agreed to by the parties. These terms relate  
to:  
(a)  
(b)  
Which party was entitled to keep the crop harvested in 2010;  
The term respecting the timing for payment of the purchase price,  
33 −  
and the date of possession;  
(c)  
(d)  
The responsibility for property taxes, and  
The date BLS was to remove all conditions.  
2.1. The 2010 Crop  
[121]  
The Mossings assert that the fate of the crop harvested in 2010 remained  
uncertain because the Third Offer failed to identify which party the purchaser or the  
vendor could rightfully possess it following completion of the sale. No agreement had  
ever been achieved between BLS and the Mossings on this issue. Consequently, they  
assert that because this term was essential to the transaction, the failure by the parties  
to achieve consensus is problematic.  
[122]  
I would not give effect to this submission as I am satisfied that the  
Mossings were entitled to retain the 2010 crop for the following reasons.  
[123]  
First, at the time the Third Offer was proffered by BLS, the crop had been  
harvested and was secured in grain bins located on the property. The disposition of a  
harvested crop has been held not to constitute an essential term of a contract relating to  
the sale of farmland. See, especially: McKenzie v Hiscock (1965), 55 DLR (2d) 155  
(Sask CA) at 163 [McKenzie], appeal quashed [1967] SCR 781.  
[124]  
Second, Schedule “B” to the Third Offer lists other items such as personal  
property and buildings included in the purchase price, and which would become the  
property of BLS upon closing. As such, the harvested crop could not qualify as a fixture  
attached to the land. See, for example: Skalicky v Baraniski , [1995] 3 WWR 277 (Sask  
QB) at paras 3-6.  
34 −  
[125]  
Notably, there is no reference to the 2010 harvested crop in this Schedule.  
[126]  
Finally, Schedule “C” explicitly includes as one of the Seller Conditions,  
the following:  
Sellers may store grains until July 31st, 2011[.]  
[127]  
A reasonable interpretation of this specific condition reveals that post-  
closing the Mossings could store the harvested crop on the property until July 2011, at  
which time they could dispose of it as they saw fit. If the crop was to become the  
property of BLS, such a condition would not have been necessary.  
2.2. Date Payment is Due and Date of Possession  
[128]  
The Mossings assert that the Third Offer is also deficient because it is  
silent respecting the payment date of the purchase price, as well as the date BLS could  
take possession of the property. They submit these are essential terms of any agreement  
to purchase real property, and the failure of the parties to agree to these terms prevents  
a finding that a binding contract had been created.  
[129]  
[130]  
I would not give effect to this argument for the following reasons.  
To begin, there is ample case law holding that dates of completion,  
payment of purchase price, possession, and apportionment of taxes are all non-essential  
contractual terms: McKenzie at 163; Murison v Popoff, 2007 SKQB 236 at paras 9-16;  
Bublish at para 49, and Ulmer v Ulmer (1980), 5 Sask R 3 (QB) [Ulmer].  
[131]  
Ulmer is particularly apposite. There, the plaintiffs, and the defendant  
who were relatives, entered into a written memorandum to purchase the defendant’s  
farmland for $115,000 with an up-front deposit of $10. The defendant knew the  
35 −  
plaintiffs needed to obtain financing which would likely take some time. In the interim,  
the defendant began pressing for a higher purchase price, and eventually sold a portion  
of the lands to another purchaser.  
[132]  
Following a trial to enforce the agreement, Halvorson J. awarded  
damages to the plaintiffs in lieu of specific performance. He stated at para. 28 it was  
“clear that the parties did not agree, verbally or otherwise, to any other terms normally  
found in an agreement for sale of farmland, such as date of possession, completion date,  
method of payment, clearing of title and adjustments, to name a few”. Yet, despite these  
omissions, he found the memorandum “sufficiently clear, certain and complete as to be  
enforceable, and that all of the necessary terms for carrying out the contract can be  
inferred”: Ulmer at para 42.  
[133]  
In doing so, Halvorson J. relied upon “numerous authorities” which have  
“one common theme”, namely: “terms will only be inferred if they go to the point of  
carrying out the contract, and will not be inferred to alter or make the contract itself”:  
Ulmer at para 39.  
[134]  
Here, the Third Offer stipulated a firm closing date, albeit erroneously  
identified as “Feb. 15, 2010”. It is commercially reasonable to assume that BLS would  
be obliged to pay the purchase price to the Mossings by the expected closing date of  
February 15, 2011. The evidence is that BDC would approve the financing for this  
purchase on or before January 31, 2011. There is no evidence that this financing would  
be subject to conditions occurring after February 15, 2011.  
[135]  
Accordingly, in my view, it is commercially reasonable to infer that BLS  
had to pay the full purchase price on or before February 15, 2011, and that sometime  
on that date or, most certainly, on February 16, 2011, it could take possession of the  
36 −  
Mossing property.  
2.3. Responsibility for Property Taxes  
[136]  
The Mossings assert that the Third Offer is further deficient because it  
fails to address the issue of apportionment of property taxes in 2011.  
[137] I would not give effect to this argument. As set out in the previous section,  
apportionment of tax is not an essential term. See: McKenzie at 163. Accordingly, it is  
reasonable to infer that taxes payable on the Mossing property would be apportioned in  
the usual manner for real estate transactions.  
2.4. Residence Clause  
[138]  
The Mossings strongly pressed the argument that a clause described as  
the “Residence Clause” found in Schedule “C” to the Third Offer was of central  
importance to them. The Residence Clause which was included in all three offers  
presented by BLS reads as follows:  
Buyer and Seller to agree to a mutual arrangement to allow seller  
to remain in residence of a specified time to allow for a reasonable  
transition.  
[139]  
The Mossings assert that determining a specific date by which they were  
to vacate their respective homes on the property was, from their perspective, an  
essential or material term of the Third Offer. They never achieved an agreement with  
BLS on a specific date. Consequently, they assert that as the Residence Clause is  
nothing more than an agreement to agree or negotiate in the future, it renders the Third  
Offer unenforceable in its entirety.  
37 −  
[140]  
Counsel for BLS acknowledges that the Residence Clause was important  
to the Mossings; however, he makes the following submissions. First, he submits the  
evidence does not support a finding that if agreement is not reached respecting when  
the Mossings must finally leave their property, the whole transaction fails. Simply put,  
it is neither a condition precedent to the sale nor an essential term of the contract.  
[141]  
Second, he notes that the Residence Clause did not figure prominently in  
the case until after the Mossings announced they would not complete their sale of the  
property to BLS. It is recognized that the subjective beliefs of one or both parties about  
essential elements of the agreement are not relevant.  
[142]  
Furthermore, counsel for BLS points to evidence which suggests that the  
Mossings neither intended nor wanted to tarry on the property after the closing date.  
For example, counsel points to the testimony of Corvin Mossing who when asked if he  
was interested in remaining on the property and leasing the land back to farm it, bluntly  
said he thought the idea “was nuts”. He stated they wanted to sell the land so that they  
did not have to farm it any longer.  
[143]  
Third, counsel for BLS submits that certain of the sellersconditions  
stipulate that the Mossings were able to keep some items, including the 2010 harvested  
crop on the property until July 31, 2011. He asserts that it is reasonable to infer from  
these conditions that should the Mossings have wanted to remain in their respective  
residences following the closing date of February 15, 2011, they could have done so  
until July 31, 2011.  
[144]  
The submissions advanced by the Mossings respecting the importance to  
them of the Residence Clause, gave me pause. I acknowledge the jurisprudence which  
holds that a contract to contract is not a contract. In support of that principle, counsel  
38 −  
for the Mossings pointed me to the leading authority of Courtney and Fairbairn Ltd. v  
Tolaini Brothers (Hotels) Ltd., [1975] 1 All ER 716, [975] 1 WLR 297 (CA)  
[Courtney].  
[145]  
In Courtney, the agreement at issue failed to stipulate a purchase price or  
any method by which that price was to be determined. Rather, it “was only an agreement  
to ‘negotiate’ fair and reasonable contract sums”: Courtney at 719. As we know, an  
identifiable purchase price is a fundamental term of any contract, especially a contract  
for the sale of real property. This clear deficiency persuaded Lord Denning, and two  
other judges to conclude at p. 720 as follows:  
. . .I think we must apply the general principle that when there is a  
fundamental matter left undecided and to be the subject of  
negotiation, there is no contract. So I would hold that there was not  
any enforceable agreement in the letters between the plaintiff and the  
defendants…  
[Emphasis added]  
[146]  
The facts in this case, and other cases cited by the Mossings, are  
distinguishable, in my view. As noted, unlike Courtney, here the fundamental terms of  
the sale were plainly set out in the Third Offer.  
[147]  
Further, the Residence Clause, assuming it held the significance to the  
Mossings which their counsel asserts, was only one part of a much larger transaction,  
namely the sale of the Mossing property in its entirety to BLS. To this extent then, the  
present case is more akin to Harle where a yet to be drafted lease was but one part of a  
much larger land transaction. In those circumstances, this reality did not defeat the  
transaction. See: Harle at paras 62-64.  
[148]  
Finally, the Residence Clause may be construed in a manner consistent  
with other seller conditions permitting the Mossings to maintain property on the land  
39 −  
post-closing until July 31, 2011. In my view, it is reasonable to infer that they could  
remain in their respective residences until that date as well. No evidence was presented  
which would support a finding that BLS, Jim Short or Jonas Short at that time wanted  
to occupy those residences, even though they were identified under Schedule “B” to the  
Third Offer. Further, there is no evidence which would remotely suggest that either  
Bruce Mossing or Corvin Mossing wanted to continue residing in their respective  
residences after July 31, 2011. Indeed, Corvin Mossing’s testimony is to the contrary.  
[149]  
Accordingly, for these reasons, I reject the Mossings’ arguments that the  
Residence Clause is so uncertain as to render the Third Offer wholly unenforceable. It  
would be neither reasonable nor in keeping with the modern approach to contractual  
interpretation to come to such a conclusion in these circumstances.  
2.5. Material Alteration to the Third Offer  
[150]  
The Mossings next assert that the Third Offer was materially altered after  
it had been executed by Jim Short on behalf of BLS, and the Mossings on December 7,  
2010. Specifically, they point to the following handwritten paragraph which appears in  
Schedule “C”. It reads as follows:  
Seller agrees upon acceptance of offer and time for due diligence the  
seller will not process or sell any product of rock agregate [sic] other  
than what has been agreed to with the buyer as of today  
[151]  
Counsel for the Mossings submits that because this addition was not  
initialled by any of the parties to the Third Offer or, for that matter, by Mr. Tiefenbach,  
the “irresistible conclusion” to be drawn is that it was added only after the Mossings  
signed the document, and without their assent. He invokes the authority of Collins v  
Melfort Credit Union, [1995] 7 WWR 573 (Sask QB) [Collins], aff’d (1996), 144 Sask  
40 −  
R 67 (CA) to argue this finding should render the Third Offer invalid and  
unenforceable.  
[152]  
Collins involved an egregious fact situation. An employee of the Melfort  
Credit Union admitted to altering documents after he learned that the borrower was in  
financial difficulty or, alternatively when it was served with papers concerning the  
borrower’s insolvency. This was done to allow the Credit Union to seize trust money  
of the borrower’s children to repay the mother’s loan. The Credit Union applied to the  
court to rectify the documents in equity. Justice Hrabinsky denied this application  
because the documents in question had been altered after the fact, and without the  
borrower’s assent for the sole purpose of keeping the money out of the bankrupt’s  
assets. Further, he found the documents void, which led to the seized money being  
reinstated to the children’s account.  
[153]  
In the present case, while it is apparent that the handwritten paragraph  
represents an addition to Schedule “C”, it is unclear exactly when it was added. Jonas  
Short testified that his father’s initials are not to be found on this page. Yet, Mr.  
Tiefenbach’s initials, as well as those of Bruce Mossing and Corvin Mossing  
respectively are located at the top of this page but not adjacent to the handwritten  
addition. In his examination-in-chief, Corvin Mossing when questioned whether this  
handwritten addition was on the page when he initialled it, answered: “Maybe not”. In  
other words, he was uncertain.  
[154]  
For his part, while acknowledging that the paragraph was in his  
handwriting, Mr. Tiefenbach testified that he did not add it after the Mossings had  
signed the Third Offer and initialled the page containing Schedule “C”. On cross-  
examination, Mr. Tiefenbach stated it was included at the behest of Jim Short, at the  
41 −  
time he signed the Third Offer. However, it does not appear that Jim Short initialled the  
paragraph.  
[155]  
Based upon the evidence presented, I am not able to determine whether  
this paragraph formed part of Schedule “C” when the Mossings executed the document  
or was added afterwards. However, assuming that it was added later, does this render  
the Third Offer wholly invalid based on the rationale in Collins and similar cases? I  
conclude it does not for the following reasons.  
[156]  
The law regarding the effect of an unauthorized alteration of a legal  
document dates back to Pigot’s Case (1614), 11 Co Rep 26b, [Pigot’s Case]. (It’s  
history was reviewed at some length in Petro Canada Exploration Inc. v Tormac  
Transport Ltd., [1983] 4 WWR 205 (BCSC)). The rule in Pigot’s Case held that “[i]f  
an instrument creating an obligation is altered in any material way while in the hands  
of the party to whom it was given, without the knowledge or consent of the party  
granting the instrument, it will become void”: Bank of Montreal v Riley (1988), 40 BLR  
145 () (Alta QB) at para 8 [Riley].  
[157]  
In Riley, the court acknowledged that in modern times the rigidity of this  
rule has been relaxed, particularly with respect to what amounts to a material alteration:  
Riley at para 11 citing Canadian Imperial Bank of Commerce v Skender, [1986] 1 WWR  
284 (BCCA), and Bank of Montreal v Scott, [1987] 2 WWR 404 (Alta QB), aff’d April  
15, 1987. The court then states, again at para. 11: “These decisions indicate that the  
alteration must make a significant difference in favour of the promisee in the  
fundamental character of the contract or in the legal operation of the document”.  
[158]  
When confronted with such an allegation, a court should engage in a two-  
stage inquiry. First, was the alteration material? Second, what is its effect in relation to  
42 −  
the contract as a whole? See: Riley at para 12.  
[159]  
Adopting this approach here, I am not persuaded that this handwritten  
paragraph qualifies as a material alteration to the Third Offer. Mr. Tiefenbach testified  
that Jim Short requested it because he did not want the Mossings to sell aggregate to  
other potential buyers prior to the closing date. However, no evidence was led to suggest  
the Mossings had any intention of doing so.  
[160]  
Yet, assuming without deciding that this paragraph could be  
characterized as a material alteration, I am not persuaded that it alters the fundamental  
nature of the contract or its legal operation, to paraphrase Riley at para 11. The Third  
Offer was a contract to purchase the Mossing property for the full asking price of  
$2,500,000. The handwritten paragraph under scrutiny here does not significantly alter  
either the nature of this contract for the purchase and sale of real property or its  
operation.  
[161]  
Accordingly, for these reasons, I would not give effect to the Mossings’  
arguments that the handwritten paragraph found in Schedule “C” is a material alteration  
rendering the Third Offer void.  
3.  
The Third Offer Is Not Unenforceable Due to BLS’s Actions  
[162]  
Alternatively, the Mossings assert that the Third Offer is unenforceable  
because BLS failed to comply with certain conditions assigned to it. Particularly, they  
say BLS failed to fulfil the following four Buyer Conditions:  
(a)  
(b)  
The Residence Clause;  
The size of BLS’s aggregate testing bucket;  
43 −  
(c)  
(d)  
BLS would share results of aggregate testing with the Mossings,  
and  
BLS would arrange to access the property through Mr. Tiefenbach.  
3.1. The Residence Clause  
[163]  
I have considered the effect of the Residence Clause in Part V-B-2.4  
above. On this aspect of the case, the Mossings argue that I should find the Residence  
Clause invalid because no agreement was ever reached with BLS in compliance with  
its terms.  
[164]  
I have difficulty in accepting this argument for two reasons. First, as  
determined above, it is reasonable to give effect to the Residence Clause by inferring  
the Mossings could continue to reside in their respective homes on the property until at  
least July 31, 2011.  
[165]  
Second, the Residence Clause was a condition placed upon both the buyer  
and the sellers. However, prior to closing the Mossings advised through counsel that  
they did not intend to complete the transaction. This happened before any discussions  
respecting the Residence Clause could take place. Accordingly, the Mossings must bear  
some responsibility for non-compliance with this condition.  
3.2. Balance of Buyer’s Conditions  
[166]  
The balance of the Buyer’s Conditions appears to relate to BLS’s testing  
of the aggregate on the Mossing property as part of the due diligence process set out in  
Schedule “C”. This testing was conducted between December 13 to 16, 2010. These  
44 −  
conditions were lifted on December 23, 2010 by way of a formal Notice to Remove  
Conditions executed by all parties.  
[167]  
The Mossings allege that the size of the testing buckets used by BLS to  
conduct its testing of aggregate did not comply with the stipulation respecting the size  
of the testing bucket. Yet, Jonas Short, Bruce Mossing and Corvin Mossing all testified  
that despite the reference to a 36" bucket in the Amendment of Terms/Conditions dated  
December 8, 2010, it was agreed by the parties that BLS could conduct aggregate  
testing utilizing a 42" bucket. Jonas Short testified that there was no appreciable  
difference between the size of these buckets. As well, he said the holes created by the  
slightly larger bucket would not create a greater hazard to cattle. In view of the  
subsequent agreement between the parties respecting the use of a 42" bucket, I am  
unable to conclude in these circumstance that BLS breached this condition.  
[168]  
The Mossings also allege that BLS failed to obtain access to the property  
through the auspices of Mr. Teifenbach. It is apparent that representatives of BLS had  
access to the Mossing property with their acquiescence, if not approval. Jonas Short,  
for example, testified that Bruce Mossing was present during part of the testing. As  
well, he stated that both Bruce Mossing and Corvin Mossing assisted BLS’s personnel  
to plug in their vehicles overnight due to the cold temperatures in December. In my  
view, this condition was modified, and complied with, by virtue of the conduct of the  
parties.  
[169]  
Finally, the Mossings allege that the failure by BLS to share with them  
the results of the aggregate testing amounts to a fatal breach of one of the conditions  
set out in the Amendment of Terms/Conditions dated December 8, 2010. The evidence,  
though equivocal, appears to indicate that the testing results were not shared with the  
Mossings prior to closing.  
45 −  
[170]  
In my view, this failure if, indeed, it was a failure cannot defeat the  
transaction. The evidence did not disclose whether the omission was deliberate on  
BLS’s part. Indeed, the Notice to Remove Conditions dated December 23, 2010 related  
to conditions respecting due diligence by BLS in reviewing and assessing the property,  
as well as testing for available aggregate. As the Notice to Remove Conditions was  
executed by all parties, the Mossings effectively signed off on not receiving a copy of  
the final test results. Accordingly, there is no breach.  
4.  
Conclusion Respecting the Legal Validity of the Third Offer  
[171]  
In the previous sections, I have reviewed and analysed the various  
objections levelled by the Mossings against the validity and legal force of the Third  
Offer. As indicated, I conclude that while there is a basis to impugn certain aspects of  
this contract, those deficiencies are not so substantial or sufficient as to render the Third  
Offer invalid and unenforceable.  
[172]  
I now turn to a central issue in this case, namely did the conduct of Mr.  
Tiefenbach in his capacity as the realtor for the Mossings and BLS render the Third  
Offer unenforceable?  
C.  
Is the Third Offer Unenforceable Due to Mr. Tiefenbach’s Conduct  
as a Dual Agent?  
[173]  
On this aspect of this action, the Mossings allege that the Third Offer is  
unenforceable, not because of legal deficiencies in the contract or BLS’s failure to fulfil  
its obligations under it. Rather, they contend that Mr. Tiefenbach negligently  
misrepresented to them his discussions with Mr. Schlosser, and in so doing breached  
his fiduciary obligations to them as their real estate agent.  
46 −  
[174]  
Mr. Tiefenbach who has been joined in this action as a third party denies  
these allegations. He acknowledges that he had at least one conversation with Mr.  
Schlosser respecting the Mossing property just prior to him presenting the Third Offer  
on December 7, 2010. However, he insists that at no time did Mr. Schlosser state he,  
too, wanted to offer $2,500,000 to purchase the Mossing property, an offer to which no  
conditions were attached. Indeed, Mr. Tiefenbach’s evidence is to the effect that Mr.  
Doug Schlosser attended at his office either later that day or on December 8, 2010. At  
that time, Mr. Doug Schlosser declined to make any offer to purchase the Mossing  
property, let alone an unconditional offer for the full asking price.  
1.  
Factual Background One Offer or Two?  
[175]  
Was there one offer to purchase the Mossing property, i.e. the Third Offer  
which was BLS’s conditional offer for the full asking price? Or were there two the  
Third Offer, and Mr. Schlosser’s alleged verbal “unconditional” offer for the full  
purchase price? To resolve these divergent positions and determine the factual matrix  
of this issue, it is necessary for me to assess the credibility and reliability of both Mr.  
Lorne Schlosser and Mr. Tiefenbach on this question. And in doing so, counsel for the  
Mossings assert I must be mindful of the “time-honoured rule” in Browne v Dunn  
(1893), 6 R 67 (HL) as described in Hamm v Metz, 2002 SKCA 11 at para 22, 209 DLR  
(4th) 385.  
[176]  
I have recounted the evidence given by each of these individuals at Part  
III above; however, to assist in appreciating my analysis, I summarize their respective  
testimony beginning with Mr. Schlosser.  
1.1. Summary of Relevant Evidence  
[177]  
Mr. Schlosser testified that he was directed to contact Mr. Tiefenbach by  
47 −  
the Mossings. Either Bruce or Corvin Mossing furnished him with one of Mr.  
Tiefenbach’s business cards. After departing the Mossing property following his visit,  
a day or two before December 7, 2010, he telephoned Mr. Tiefenbach. According to  
Mr. Schlosser, he told Mr. Tiefenbach he wanted to make an offer on the Mossing  
property. Mr. Tiefenbach advised he could not meet with him because he was in  
Wynyard, and his car was in the garage being repaired. He stated that he did not know  
what time he would be returning to Regina because of that.  
[178]  
Mr. Schlosser testified further that “in the early evening” of the same day,  
he again telephoned Mr. Tiefenbach. Mr. Tiefenbach told him he could not meet with  
him that evening, and that he was leaving “very early the next day” to present an offer  
to the Mossings. Mr. Schlosser then told Mr. Tiefenbach he, too, wanted to make an  
offer to purchase the Mossing property. He said he explicitly told Mr. Tiefenbach  
during this initial conversation that his offer would be for the “full asking price” with  
no conditions.  
[179]  
Mr. Schlosser never did meet with Mr. Tiefenbach to formalize a written  
offer to purchase the Mossing property on the terms he testified to in open court.  
[180]  
Mr. Tiefenbach testified that, indeed, he was in Wynyard on business  
when he received a telephone call from Mr. Schlosser. He explained that Mr. Schlosser  
told him he wanted to discuss the Mossing property. Mr. Tiefenbach advised Mr.  
Schlosser it would be difficult to meet with him because he did not know what time he  
would be returning to Regina. If it was not too late, Mr. Tiefenbach said he would  
attempt to contact Mr. Schlosser again.  
[181]  
While Mr. Tiefenbach did not recall a second telephone conversation with  
Mr. Schlosser that day, he admitted it was possible that they did speak again.  
48 −  
[182]  
Mr. Tiefenbach said that he did not tell Mr. Schlosser, his vehicle was in  
the garage being repaired. He also insisted that at no time did Mr. Schlosser tell him he  
wished to make an unconditional offer to purchase the Mossing property for the full  
asking price.  
1.2. The Third Offer Was the Only Serious Offer  
[183]  
The resolution of this issue turns very much on the credibility and  
reliability of these two witnesses Mr. Tiefenbach and Mr. Schlosser.  
[184]  
I begin by observing that the conversations about which they testified  
happened almost a decade earlier. Over the years, it should not occasion surprise that a  
witnessrecollection will become cloudy, and they could persuade themselves that what  
they believe transpired, actually did happen. It is for this reason that the courts have  
identified certain indicia to be employed when assessing a witness’ credibility and  
reliability.  
[185]  
I found neither Mr. Schlosser nor Mr. Tiefenbach to be entirely credible  
or reliable respecting these particular events. The evidence each of them gave, was  
inconsistent with the general tenor of the evidence given by other witnesses respecting  
the same events. I would not go so far as to say that these witnesses wholly lacked  
credibility; however, I found their versions of what transpired to be wanting.  
[186]  
For example, I found Mr. Schlosser’s version to be unreliable. He stated  
that following his tour of the farm with Corvin Mossing, they returned to the farmhouse.  
He said that when he and Corvin arrived, they entered the house and sat in the kitchen  
conversing with Bruce Mossing. He insisted they engaged in a wide-ranging  
conversation. Mr. Schlosser testified that his visit with the Mossings lasted between  
one and two hours.  
49 −  
[187]  
Yet, his version of these events was not corroborated by either Bruce or  
Corvin Mossing. Both testified that their conversation with Mr. Schlosser following his  
tour of the farm was brief; took place on the backstep of the house, and a purchase price  
was never discussed.  
[188]  
Mr. Schlosser’s evidence respecting this visit is consistent with the  
testimony of the Mossings to this extent: just before he left, he and Bruce shook hands,  
and Mr. Schlosser told Bruce not to sign any document related to the sale of the property  
until he talked to him again. I find Mr. Schlosser’s evidence on this point to be notably  
inaccurate, considering the importance he placed on his visit with the Mossings during  
his initial and only visit to their property.  
[189]  
Further, I do not accept Mr. Schlosser’s evidence that he advised Mr.  
Tiefenbach over the telephone that he wanted to make an unconditional offer to  
purchase the Mossing property for the full asking price. I come to this conclusion for  
the following reasons.  
[190]  
First, I do not find it credible that Mr. Schlosser who is experienced in  
the construction business would make a cash offer of $2,500,000 to purchase land with  
aggregate without completing any due diligence whatsoever respecting its potential  
quality and quantity. A cursory tour of the property lasting no more than 45 minutes in  
early December would hardly furnish him with sufficient knowledge about the land to  
warrant making an unconditional offer with a purchase price of this magnitude.  
[191]  
Second, Mr. Schlosser testified that Mr. Tiefenbach advised him that he  
was going out to the Mossing farm the next day to present Bruce and Corvin Mossing  
with a formal offer from another prospective purchaser. Yet, knowing this, Mr.  
Schlosser did not contact Bruce Mossing to advise him that he wanted to make an  
50 −  
unconditional offer to purchase the property for the full asking price. Why? If Mr.  
Schlosser truly wanted to buy the Mossing property, why would he not have contacted  
Bruce Mossing directly and told him of his intention to present an unconditional offer,  
especially in the face of Mr. Tiefenbach’s alleged intransigence.  
[192]  
Third, after his one and only meeting with Bruce and Corvin Mossing,  
Mr. Schlosser made no further effort to contact them. It was only a few weeks later  
when Bruce Mossing reached out to him that he learned the Mossings had entered into  
a contract to sell the property to BLS. If, as he asserts, Mr. Schlosser was truly  
motivated to purchase the land, it would be reasonable to assume that he would have  
contacted the Mossings directly, rather than waited for them to communicate with him.  
[193]  
Mr. Schlosser testified that he did not pursue the matter because “he got  
busy with other projects” – his words. In my view, his actions undermine his strong  
assertion at trial that he wanted to buy the Mossing property, and he advised Mr.  
Tiefenbach of his intention to make an unconditional offer to purchase it.  
[194]  
Fourth, I accept Mr. Tiefenbach’s evidence that Mr. Schlosser did not  
tell him during their telephone conversation(s) that he wanted to make an unconditional  
offer to purchase the Mossing property for the full asking price. As I will explain below,  
I also have concerns about Mr. Tiefenbach’s credibility. Yet, I do not accept that Mr.  
Tiefenbach would have ignored completely a verbal unconditional offer to purchase the  
Mossing property. He had much to gain in commission income from such an offer.  
[195]  
On balance, I conclude that on December 6, 2010, there was only one  
serious offer to purchase the Mossing property for the full asking price, albeit a  
conditional offer. And that was the offer made by BLS and presented to the Mossings  
by Mr. Tiefenbach on December 7, 2010. At its highest, I conclude that Mr. Schlosser  
51 −  
might have signalled to Mr. Tiefenbach that he was very interested in the Mossing  
property and wished to discuss it with him with an eye to making an offer to purchase.  
However, I do not accept his testimony that he made an outright verbal offer to Mr.  
Tiefenbach.  
[196]  
Courts have ruled that a realtor as a fiduciary has an obligation to  
communicate a serious verbal offer to purchase land to a vendor who is his or her client.  
See, for example: Forbes v Morrison, 2014 SKQB 40 at paras 76 and 137, [2014] 6  
WWR 360 [Forbes]; ICR Brokerage Inc. v Crescent Restaurants Ltd., 2010 SKCA 92  
at paras 29 32, 322 DLR (4th) 299; Krasniuk v Gabbs, 2002 MBQB 14 at paras 27  
and 34, [2002] 3 WWR 364 [Krasniuk]; D.E.M. Corp. v Skinner, 2004 PESCTD 62 at  
para 32 , 243 NFLD & PEIR 189 [DEM Corp.], and Young v Harper (1983), 46 BCLR  
87 () (BCSC) at para 24. This obligation is rooted in the common law of  
fiduciary relationships, and augments statutory obligations placed upon realtors by  
provincial legislation such as The Real Estate Act, SS 1995, c R-1.3, s 58. See: Krasniuk  
at para 34, and DEM Corp.  
[197]  
Yet, I conclude the evidence presented at trial does not support a finding  
that Mr. Schlosser advised Mr. Tiefenbach he wished to make a verbal offer to purchase  
the Mossing property let alone, a serious verbal offer as per DEM Corp.  
1.3. Did Mr. Tiefenbach Commit the Tort of Negligent  
Misrepresentation  
[198]  
I must also consider whether at the time he presented the Third Offer to  
the Mossings on December 7, 2010, Mr. Tiefenbach misrepresented to them his  
communications with Mr. Schlosser the previous day. The Mossings testified that when  
Bruce Mossing asked Mr. Tiefenbach if Mr. Schlosser had spoken to him, Mr.  
Tiefenbach told them he had, and Mr. Schlosser was not interested in purchasing the  
52 −  
property. Mr. Tiefenbach’s testimony did not include such an exchange with Bruce  
Mossing.  
[199]  
On this aspect, I accept the evidence of Bruce Mossing respecting the  
exchange between Mr. Tiefenbach and himself in the morning of December 7, 2010.  
Subsequently, and based in part on this information, the Mossings decided to accept the  
BLS’s Third Offer. Simply put, the issue becomes: did Mr. Tiefenbach’s “lie”, as the  
Mossings characterized it, amount to a negligent misrepresentation or a breach of Mr.  
Tiefenbach’s fiduciary obligation?  
[200]  
The leading Canadian authority on the tort of negligent misrepresentation  
is Queen v Cognos Inc., [1993] 1 SCR 87 [Cognos Inc.]. This case arose in the  
employment context where an individual had been actively misled about the nature of  
the position he was being offered, and ultimately accepted.  
[201]  
Three separate opinions were rendered in that case. The principal one was  
authored by Iacobucci J. with the concurrence of Sopinka J. Justice Iacobucci drew  
upon the analysis laid down in Hedley Byrne & Co. v Heller & Partners Ltd., [1964]  
AC 465 (HL) to identify at page 110, the “five general requirements” for establishing a  
successful claim for negligent misrepresentation. Those elements are:  
1)  
2)  
3)  
There must be a duty of care based on a “special relationship”  
between the representor and the representee;  
The representation in question must be untrue, inaccurate, or  
misleading;  
The representor must have acted negligently in making said  
misrepresentation;  
53 −  
4)  
5)  
The representee must have relied, in a reasonable manner, on said  
negligent misrepresentation; and  
The reliance must have been detrimental to the representee in the  
sense that damages resulted.  
[202]  
To succeed on a claim for negligent misrepresentation, the plaintiff must  
establish the existence of each of these five elements on a balance of probabilities. See:  
Cognos Inc. at 110, and Forbes at para 60. In my view, the Mossings have failed to  
prove all five elements.  
[203]  
Respecting the first element of the Cognos Inc. test, it is settled law that  
a realtor, especially one acting as a dual agent in a real estate transaction, qualifies as a  
special relationship as contemplated by this element. See: Forbes at para 61.  
Consequently, in the circumstances of this case, Mr. Tiefenbach had a duty of care to  
be candid with the Mossings and fully and accurately disclose the content of his  
communications with Mr. Schlosser respecting their property. See: Krasniuk at para 34.  
[204]  
Respecting the second element of the Cognos Inc. test, I conclude that  
Mr. Tiefenbach’s representation to the Mossings was inaccurate. According to both  
Bruce and Corvin Mossing, when they asked him if he had spoken to Mr. Schlosser, he  
said he had, and that Mr. Schlosser was not interested in purchasing the property. I  
accept their evidence ultimately to accept the Third Offer based upon this  
misinformation. I accept their evidence.  
[205]  
Respecting the third element of the Cognos Inc. test, I conclude that Mr.  
Tiefenbach was negligent when he advised the Mossings that he had spoken to Mr.  
Lorne Schlosser the day before, and that he told Mr. Tiefenbach he was no longer  
interested in making an offer to purchase the Mossing property.  
54 −  
[206]  
Respecting the fourth element of the Cognos Inc. test, I conclude that the  
Mossings reasonably relied upon this information. I am persuaded that they thought  
there was no potential for another offer. As noted, the property had been listed for many  
years with no serious purchaser coming forward. BLS was the first entity to make a  
firm and feasible offer to purchase the Mossing property.  
[207]  
However, it is on the fifth and final element of the Cognos Inc. test that  
the Mossings’ allegation of negligent misrepresentation against Mr. Tiefenbach falters.  
This element requires proof on a balance of probabilities that a representee relied upon  
the misrepresentation to his or her detriment. On the facts of this case, I am not  
persuaded that the Mossings relied upon Mr. Tiefenbach’s misrepresentation to their  
detriment. As noted, I found that there was no serious unconditional offer to purchase  
the property made by Mr. Schlosser. Consequently, the Mossings agreed to accept the  
only offer they had to purchase the land for the full asking price. It cannot be said then,  
that Mr. Tiefenbach’s misrepresentation resulted in actual damage to the Mossings.  
[208]  
The Mossings, especially Bruce Mossing, believed that should Mr.  
Schlosser make on offer on the property, this would generate a bidding war between  
him and BLS. Presumably, they reasoned, this should yield them a greater profit than  
$2,500,000 from the sale of the land.  
[209]  
While I accept this was Bruce Mossing’s fervent hope, there is no  
evidence whatsoever, which would suggest it had any basis in reality. At best, it is pure  
speculation. Indeed, we shall never know if a bidding war was even a possibility,  
because at trial neither Mr. Schlosser nor Jonas Short on behalf of BLS, was asked if  
he was prepared to pay more than $2,500,000 for the property.  
55 −  
[210]  
Accordingly, I conclude that the Mossings have failed to establish on a  
balance of probabilities, all five elements of the tort of negligent misrepresentation, as  
the governing authorities require. See: Cognos Inc. and Forbes. Consequently, I dismiss  
the Mossings’ claim against Mr. Tiefenbach for negligent misrepresentation, and a  
breach of fiduciary duty.  
[211]  
This finding, together with my earlier finding that Mr. Tiefenbach did not  
fail to present to the Mossings on behalf of Mr. Schlosser a serious verbal offer to  
purchase the property, is sufficient to result in dismissal of the third-party claims against  
Mr. Tiefenbach and NAI for that matter and relieve them of any liability relating to  
the breach by the Mossings of the Third Offer.  
D.  
Is Specific Performance or Damages the Appropriate Remedy?  
[212]  
I have concluded that the Mossings breached the Third Offer, and that no  
liability flows to Mr. Tiefenbach or NAI for this breach. This leaves the issue of what  
is the appropriate remedy where, as here, there has been a breach of contract for the  
sale of land? Is it ordering specific performance of the contract, or are damages an  
appropriate remedy? I turn now to consider this important remedial question.  
1.  
Position of the Parties  
1.1. Position of BLS  
[213]  
BLS submitted that should I find the Mossings breached the Third Offer,  
the only appropriate remedy is specific performance of this contract. In support of this  
submission, counsel for BLS relied upon a number of case authorities particularly:  
Bublish; Raymond v Raymond Estate, 2011 SKCA 58, [2011] 9 WWR 247 [Raymond  
Estate], and Kopec v Pyret and Borys (1987), 36 DLR (4th) 1 () (Sask CA)  
56 −  
[Kopec]. BLS submits that these authorities stand for the proposition that the “remedy  
of specific performance is almost invariably granted to enforce contracts for the  
purchase and sale of land”: Kopec at para 28. As the Mossings still own and reside on  
the property, BLS asserts there is no lawful impediment to them proceeding with the  
original transaction.  
[214]  
BLS further submits in addition to an order for specific performance, it is  
also entitled to a very large award of damages. It bases this amount on the estimates of  
usable aggregate found on the Mossing property made in the report prepared by its’  
expert witness, Lynden Penner the Penner Report. This document estimated that there  
was 13,880,711 cubic metres of granular material on the property or approximately  
23,595,208.7 tonnes. As described in its’ written brief of law at paras. 67(b) and (c),  
the damages should be $47,842,412.00 calculated as follows:  
b.  
Payment in the amount of $188,777,669.00 being the amount  
of the estimated gravel/aggregate in tonnes on the subject  
lands multiplied by the minimum charge for a tonne of  
gravel/aggregate as testified by the Defendants’ witness Lorne  
Schlosser being $8.00 per ton (23,597,208.7 tonnes x  
$8.00). This is the minimum amount that would be charged  
based upon a simple royalty charge where gravel or aggregate  
is sold without any value being added. There was testimony  
of up to $22.00 per tonne but that involved the increased cost  
of the value added by crushing, transport and the like and this  
needlessly complicates the amount. While this amount is  
astronomical, even if one were to reduce the amount of the  
aggregate utilized in a calculation by one-half and reduced the  
$8.00 charge that was testified by the Defendants’ witness that  
he was charging by one-half for the sake of the argument the  
amount would be $47,192,412.40 (11,798,604.35 tonnes x  
$4.00).  
c.  
Payment in the amount of $650,000 being the average  
amount of dividends likely to be paid over the next 20 years  
as calculated by taking the average dividend paid by the  
Defendant’s corporation [Rocky Ridge Enterprises Ltd.]  
during the years the court has evidence for and multiplying it  
57 −  
by 20 years. Jonas Short testified he would have farmed the  
land and seems to have expected working life of  
approximately 20 to 30 years. This ignores the obvious  
possibility of renting the land at a greater profit.  
[Emphasis added]  
1.2. Position of the Mossings  
[215]  
The Mossings submitted firstly that in the circumstances of this case an  
order for specific performance is not appropriate or warranted. They note that in recent  
years, courts have approached the remedy of specific performance differently than in  
the past. The trend in the modern jurisprudence is first to assess the adequacy of a  
damages award prior to resorting to an order for specific performance. See, for example:  
Semelhago v Paramadevan, [1996] 2 SCR 415 at para 22; Raymond Estate at para 10,  
and Harle at para 83.  
[216]  
The Mossings assert further that specific performance is a discretionary  
equitable remedy granted only where damages do not serve as an adequate and just  
remedy in the circumstances. See: Matthew Brady Self Storage Corporation v  
InStorage Limited Partnership, 2014 ONCA 858 at para 29, 379 DLR (4th) 368 [Brady  
Self Storage]. Consequently, delay in pursuing such a claim could defeat it, particularly  
if it would cause prejudice to the defendant. In support, they cite Robert J. Sharpe,  
Injunctions and Specific Performance, loose-leaf (2021-1) 4th ed (Toronto: Thomson  
Reuters, 2021), at §§ 1:820, and 1:840 [Sharpe].  
[217]  
Prejudice from delay, the Mossings assert, would be demonstrated where  
the property in question has increased in value over the time it took to prosecute the  
claim such that it would be unfair to award specific performance. See: Jeffrey  
Berryman, The Law of Equitable Remedies, 2d ed (Toronto: Irwin Law, 2013), at 333-  
4 [Berryman] citing Verheyen v Harrison, [1989] OJ No 1217 (QL) (Ont Ct), and Yan  
58 −  
v Nadarajah, 2017 ONCA 196 at para 21, 82 RPR (5th) 175, aff’g, 2015 ONSC 7614,  
62 RPR (5th) 85.  
[218]  
Turning to the adequacy of damages in this case, the Mossings submit  
that the expert evidence presented by Mr. Penner on behalf of BLS, and upon which it  
relies upon for determining what it alleges to be an appropriate damages award, should  
not be given little, if any weight. They assert that because Mr. Penner performed a  
“desk-top” assessment based upon information provided to him by a third party it  
lacked reliability. They cite Wiegers v Apple Inc., 2020 SKQB 24 as authority for this  
proposition.  
[219]  
The Mossings further assert that should I conclude an award of damages  
is appropriate in this case, it should be for a minimal amount, only. They rely,  
particularly, on Mavretic v Bowman, [1993] 4 WWR 329 (BCCA) [Mavretic] in support  
of this argument. In Mavretic, the British Columbia Court of Appeal relying upon its  
earlier decision in Ansdell v Crowther (1984), 11 DLR (4th) 614 which in turn quoted  
from Wroth v Tyler, [1973] 1 All ER 897 (Ch) stated at para. 8, “the normal rule is  
that the general damages to which a purchaser is entitled for breach of contract for the  
sale of land are basically measured by the difference between the contract price and  
the market price for the land at the date of the breach, normally the date fixed for  
completion(emphasis added).  
[220]  
Utilizing the Mavretic formula, the Mossings say that BLS suffered no  
loss because of its failed purchase of their property which would be compensable in  
damages. They contend that there is no evidence respecting the valuation of the  
property today. And, as well, BLS purchased similar property near Ceylon,  
Saskatchewan for approximately $300,000 which the Mossings submit proved a  
suitable substitute for their property.  
59 −  
[221]  
However, prior to analysing what remedy BLS may be entitled to, it is  
first necessary to address the Mossings’ objections to the Penner Report.  
2. Admissibility of the Penner Report  
2.1. Law  
[222]  
The admissibility of expert testimony in a civil proceeding is now to be  
assessed in accordance with the criteria set out in White Burgess Langille Inman v  
Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 SCR 182 [White Burgess]. It  
mandates a two-stage approach to the admissibility of expert evidence, and the weight  
to be given to such evidence. See also: Hess v Thomas Estate, 2019 SKCA 26 at paras  
32-38, 433 DLR (4th) 60; and R v Chung, 2018 SKCA 70 at paras 31-34.  
[223]  
The first stage is the threshold inquiry. The threshold requirement for the  
admission of expert evidence has four elements: (1) the evidence must be relevant; (2)  
it must be necessary in assisting the trier of fact; (3) no other evidentiary rule applies to  
exclude it; and (4) the expert must be properly qualified. See especially: White Burgess  
at para 19, aff’g R v Mohan, [1994] 2 SCR 9 at 20-25. In White Burgess at para 49,  
Cromwell J. writing for the court stated that the threshold “requirement is not  
particularly onerous and it will likely be quite rare that a proposed expert’s evidence  
would be ruled inadmissible for failing to meet it”.  
[224]  
Once these criteria are met, then the court must execute a gatekeeper  
function. This function invites the court to embark upon a cost/benefit inquiry. The  
court in White Burgess, described the focus of this inquiry at para. 54 as follows: “At  
the end of the day, the judge must be satisfied that the potential helpfulness of the  
evidence is not outweighed by the risk of the dangers materializing that are associated  
60 −  
with expert evidence”. To similar effect, see: R v Abbey, 2009 ONCA 624 at para 76,  
246 CCC (3d) 301.  
[225]  
I will assess the expert evidence sought to be admitted in this case in  
accordance with these governing legal principles.  
2.2. Analysis  
[226]  
I am satisfied that Mr. Penner was properly qualified as an expert witness.  
As noted, he holds two degrees in Geological Science from the University of  
Saskatchewan and is President of J. D. Mollard and Associates (2010) Limited  
(Consulting Engineers and Geoscientists). He has been qualified to give expert opinion  
evidence in other cases.  
[227]  
As well, I am persuaded that his evidence was relevant to issues raised in  
this trial and assisted me somewhat as I addressed them. Furthermore, I am not aware  
of any exclusionary rule which would operate to exclude Mr. Penner’s evidence, nor  
was one cited to me.  
[228]  
Turning to the weight to be accorded to the Penner Report, I acknowledge  
that Mr. Penner admitted he had never visited the Mossing property prior to preparing  
and issuing his report. However, he did testify that preparing a “desk-top” geographical  
survey and report is not uncommon in his profession.  
[229]  
That said, I conclude that the results of this report are only of limited use  
in this case. Apart from accepting Mr. Penner’s opinion that there is a large amount of  
gravel and aggregate located on the Mossing property, it is difficult in my opinion to  
extrapolate from this assessment, a reliable estimate of the quantity of usable aggregate  
or its ultimate value on the open market.  
61 −  
[230]  
Simply put, while I find the Penner Report informative, I will not give  
much weight to its final conclusions for purposes of assessing any damage award in  
this case. These calculations presume all extractable aggregate will be taken from the  
property, an assertion, I might add, which has not been proved on a balance of  
probabilities. Respectfully, I conclude Mr. Penner’s conclusions are too speculative to  
be relied upon heavily in this case.  
3.  
Order for Specific Performance is Not Appropriate  
[231]  
At the outset, I acknowledge that contemporary jurisprudence counsels  
an adjudicator before determining if specific performance is appropriate after finding a  
breach of contract for the sale of land, to determine if damages are a sufficient and just  
remedy. However, I am persuaded that specific performance is not an appropriate  
remedy in this case for the following reasons.  
[232]  
Whether specific performance should be awarded is a question firmly  
grounded in the factual matrix of each case. For example, in Brady Self Storage, the  
court identified three factors bearing on the exercise of the discretionary remedy of  
specific performance, namely “(i) the nature of the property involved; (ii) the related  
question of the inadequacy of damages as a remedy; and (iii) the behaviour of the  
parties, having regard to the equitable nature of the remedy”: Brady Self Storage at para  
32 quoting Landmark of Thornhill Ltd. v Jacobson (1995), 25 OR (3d) 628 (CA) at 636.  
[233]  
Here BLS wanted to acquire the Mossing property principally for  
commercial purposes, i.e. to have a large quantity of gravel at the ready for use in its  
construction business. It is true that Jonas Short testified he would like to farm the land  
as well; however, that patently was not the reason why his father, Jim Short or Lorne  
Schlosser, for that matter was interested in purchasing the property. In such a  
62 −  
circumstance, specific performance is not the obvious remedy. See: Southcott Estates  
Inc. v Toronto Catholic District School Board, 2012 SCC 51 at paras 40-41, [2012] 2  
SCR 675.  
[234]  
When its purchase of the Mossing property was aborted, and, ultimately,  
failed, BLS purchased property at Ceylon. Subsequently, BLS purchased additional  
land near Dysart, Saskatchewan. These properties offered BLS alternate sources of  
gravel and aggregate. It is evident that there were substitute properties readily available  
to BLS. The jurisprudence is clear, however, that an adequate substitute property need  
not be identical to the original property which the plaintiff wished to acquire. See,  
especially: Serebrennikov v Sawyer’s Landing Investments 1 Ltd., 2010 BCSC 1276 at  
paras 31-32, 96 RPR (4th) 312, and Li v Au, 2006 BCSC 671 at para 14.  
[235]  
The question of whether monetary damages are adequate will be  
addressed in the next section.  
[236]  
Fundamentally, what renders the remedy of specific performance  
inappropriate in this case is BLS’s delay in seeking this equitable remedy, a delay which  
prejudices the Mossings because it is more likely than not that the property has  
appreciated over the decade it took for this matter to reach the courtroom.  
[237]  
Sharpe at §840 notes that although delay alone will not necessarily defeat  
a claim for specific performance or injunctive relief, the “combination of delay and  
prejudice to the defendant” could deprive a plaintiff of the remedy of specific  
performance. Justice Sharpe cited many judicial authorities in support of this  
proposition including, most importantly, Gutheil v Caledonia (Rural Municipality) No.  
99 (1964), 48 DLR (2d) 628 () (Sask QB) at para 24.  
63 −  
[238]  
Jonas Short testified that at the outset of this litigation much of the delay  
was attributable to his father’s death and the difficulties this created for the remaining  
family members to ensure BLS stayed in business. As well, he stated he was  
preoccupied by family law litigation precipitated by the dissolution of his marriage, and  
his quest to gain custody of his child.  
[239]  
These are all reasonable explanations; however, it cannot be disputed that  
the statement of claim was not issued in this matter until November 27, 2012, almost  
two years after the Mossings had repudiated the contract of purchase and sale.  
Undeniably, this litigation then proceeded at a languid pace. Jim Short’s death meant  
BLS’s principal witness could not be questioned at all, let alone under oath. These  
delays were further compounded by the global pandemic.  
[240]  
In the result, to now order specific performance more than a decade after  
the Third Offer was repudiated would prejudice the Mossings, even though they caused  
the breach of contract in the first place. This is not a case of penalizing “the indolent”  
to paraphrase Berryman, at 332 quoting Lazard Brothers & Co. v Fairfield Properties  
Co. (Mayfair) (1977), 121 Sol J 793, at 793 (Ch) Rather, in my respectful view, it is a  
case in which ordering, at this time, the Mossings to deliver the property to BLS in  
accordance with the terms of the Third Offer would be unfair, and pose an undue  
hardship, to them.  
4.  
Damages in Lieu of Specific Performance  
[241]  
While I have not granted BLS’s claim for specific performance, it is  
necessary to consider whether an award of damages in lieu should be made. This  
remedy is available at common-law, as well as authorized by statute. Section 66 of The  
Queen’s Bench Act, 1998, SS 1998, c Q-1.01 [QB Act] provides:  
64 −  
66(1) On an application for an injunction against a breach of a  
covenant or an agreement or against the commission or continuance  
of a wrongful act or an application for the specific performance of a  
covenant or an agreement, a judge may:  
(a) award damages to the injured party, either in addition to or  
in substitution for the injunction or specific performance; or  
(b) grant any other relief that the judge considers appropriate.  
(2) Damages awarded pursuant to clause (1)(a) may be ascertained  
in any manner that the judge may direct.  
See also: Jans v Jans Estate, 2016 SKQB 275 at para 240, 21 ETR (4th) 35 [Jans  
Estate].  
[242]  
As this provision makes plain, damages to compensate an aggrieved  
purchaser in lieu of an order of specific performance can be assessed as of the date the  
contract was breached or some other date where justice so requires. That is the  
legislated direction to the court set out in ss. 66(2) of the QB Act. See also: Stewart v  
Ambrosina (1975), 10 OR (2d) 483 (Ont H Ct J) at 491-92, aff’d (1977), 16 OR (2d)  
221 (Ont CA), and 3434273 Manitoba Ltd. v Nowak, 2013 MBQB 214 at para 117, 36  
RPR (5th) 81.  
[243]  
Certain dates have been identified in the jurisprudence, however, and they  
vary considerably. Authorities have identified the relevant date as the date the breach  
of contract occurred (Mavretic at para 8); the date of trial (Jans Estate at para 249), and  
the date of judgment (Kopec at para 38). Common to all these cases is an attempt by  
the court to select a date which is fair to a plaintiff who is denied the remedy of specific  
performance, and to a defendant who reneged on a contract of purchase and sale.  
[244]  
On this aspect of this case, the positions of BLS, and the Mossings could  
not be starker. Relying principally on the Penner Report, BLS submits that an award of  
65 −  
damages should approximate $48,000,000. The Mossings, on the other hand, assert that  
there should be no damages awarded because relying on Mavretic the relevant date is  
the date the breach occurred. They maintain as the asking price of $2,500,000 is an  
accurate assessment of the market value of the property at the time they repudiated the  
contract, and as there is no evidence of a more recent appraisal, BLS suffered no losses.  
[245]  
I find neither of these positions attractive, for the following reasons.  
[246]  
As noted, I found the calculations set out in the Penner Report to be too  
remote and speculative upon which to base an accurate assessment of damages payable  
to the defendant. These calculations are premised on the assumption that all extractible  
aggregate will be taken from the property and sold on the open market. That is a most  
unrealistic assumption. For this reason, I cannot give effect to BLS’s submissions  
respecting the quantum of an appropriate award of damages.  
[247]  
Similarly, I conclude that the Mossings reliance on the Mavretic formula  
is also unrealistic, if not unjust to BLS. They assert that although BLS effectively  
mitigated its damages by purchasing the Ceylon property for approximately $300,000,  
it has not demonstrated that it suffered any further loss because of the aborted sale. At  
most, it seems the Mossings submit that damages should not exceed $300,000. I do not  
accept these submissions as a fair remedy for BLS.  
[248]  
To be sure, no evidence of a formal appraisal of the Mossing property at  
the time of trial was lead. However, there was testimony respecting a market price for  
the property more current than the price the Mossings wanted in 2010. Mr. Brendan  
Coté testified that following the aborted sale of the Mossing property to BLS, he went  
to the farm and spoke to Bruce Mossing. His evidence which was not contradicted was  
66 −  
that Bruce Mossing told him the land was still for sale and the asking price was  
$4,000,000.  
[249]  
Although Mr. Coté was vague about when his encounter with Bruce  
Mossing took place either 2013 or 2014 I acknowledge that today an increase in the  
value of the property of this amount is likely realistic and reasonable, particularly so  
when the current price of aggregate and gravel is taken into account. For purposes of  
assessing an appropriate damages award, then I will use $4,000,000 as the current  
valuation for the Mossing property.  
[250]  
Accordingly, for these reasons, I conclude that BLS is entitled to an award  
of damages in the amount of $1,500,000 ($4,000,000 - $2,500,000) in lieu of an order  
for specific performance. In addition, to this sum payable to BLS by the Mossings, BLS  
is also entitled to the return of its’ deposit of $100,000. BLS is entitled to pre-judgment  
interest on these amounts in accordance with The Pre-judgment Interest Act, SS 1984-  
85-86, c P-22.2. [PJIA]  
E.  
Costs  
[251]  
There remains the issue of costs. BLS, and Mr. Tiefenbach and NAI have  
been successful in this litigation and, consequently, these parties are entitled to their  
costs. See especially: Rule 11-7 of The Queen’s Bench Rules, and British Columbia  
(Minister of Forests) v Okanagan Indian Band, 2003 SCC 71 at paras 20-21, [2003] 3  
SCR 371.  
[252]  
To be clear, Mr. Tiefenbach and NAI are entitled to only one set of costs.  
67 −  
VI.  
DISPOSITION  
For all the foregoing reasons, I make the following orders:  
[253]  
a)  
That BLS’s action for breach of contract is allowed, and BLS is  
entitled to damages in the amount of $1,500,000 in lieu of specific  
performance, as well as the return of its deposit in the amount of  
$100,000;  
b)  
c)  
d)  
That these amounts are subject to pre-judgment interest calculated  
in accordance with the PJIA;  
The Mossing’s third-party claim against Mr. Tiefenbach and NAI  
is dismissed, and  
BLS, and Mr. Tiefenbach and NAI are entitled to their costs. Mr.  
Tiefenbach and NAI shall have only one set of costs.  
J.  
G.G. MITCHELL  

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Rayonier v Unifor, Locals 256 and 89 | Aug 11, 2022
Alberta Workers’ Compensation Appeals Commission | Decision No. 2021-0334 | Jul 14, 2022
Metrowest Developments Ltd v Flynn Canada Ltd | Sep 14, 2022
R. v. Cameron | Jul 15, 2022
Functional Servicing and Stormwater Management | Jul 28, 2022
101034761 Saskatchewan Ltd. v Mossing | Aug 24, 2022
Waste Control Services Inc. v International Union of Operating Engineers, Local No. 115 | Aug 12, 2022
RJM56 Holdings Inc. c. Bazinet | Aug 17, 2022
Sherwood v The Owners, Strata Plan VIS 1549 | Aug 9, 2022
WCAT Decision A2001487 | Aug 8, 2022
City of Hamilton v Ontario Water Employees’ Association | Sep 12, 2022
Century Services Corp. v. LeRoy | Jul 8, 2022
United Food and Commercial Workers, Local 175 v Metro Ontario Inc. | Jul 4, 2022
Langmaid’s Island Corporation v Lake of Bays | Sep 12, 2022
WCAT Decision A2102416 | Jul 22, 2022
Inquiry about McAbee Fossil beds | Jul 14, 2022
1088558 Ontario Inc. v. Musial | Sep 16, 2022
Biogen Canada Inc. v. Pharmascience Inc. | Aug 8, 2022
CIC Management Services Inc. v City of Toronto | Jul 21, 2022
Bonterra Energy Corp v Rosells’ Enterprises Ltd | Aug 31, 2022
WCAT Decision A2100606 | Aug 17, 2022
Leffler v Aaron Behiel Legal Professional Corporation | Jun 30, 2022
Espartel Investments v. MTCC No. 993 | Aug 19, 2022
Onespace Unlimited Inc. v. Plus Development Group Corp. | Sep 19, 2022
Professional Institute of the Public Service of Canada v. Canada Revenue Agency | Jun 23, 2022
Community Savings Credit Union v. Bodnar | Jul 29, 2022
Galperti SRL v F.I.A.L. Finanziaria Industrie Alto Lario S.P.A | Jun 30, 2022
WCAT Decision A2102352 | Jul 6, 2022
WCAT Decision A2102306 | Jul 25, 2022
Thrive Capital Management Ltd. v. Noble 1324 Queen Inc. | Jul 12, 2022
Questor Technology Inc v Stagg | Sep 8, 2022
MediPharm v. Hexo and Hwang | Jul 25, 2022
Immunization rates & vaccine hesitancy | Aug 17, 2022
Morabito v. British Columbia Securities Commission | Aug 12, 2022
Killeleagh v Mountain View County (Development Authority) | Aug 24, 2022
Quality Control Council v Stanley Inspection Canada Ltd. | Sep 9, 2022
British Columbia Investment Management Corporation | Aug 17, 2022
Abbeylawn Manor Living Inc. v Sevice Employees International Union, Local 1 Canada | Jul 5, 2022
Windrift Adventures Inc. et al. v. Chief Animal Welfare Inspector | Aug 18, 2022
Irani and Khan v. Registrar, Motor Vehicle Dealers Act | Jul 14, 2022
CP REIT Ontario Properties Limited v City of Toronto | Aug 12, 2022
Potash Corporation of Saskatchewan Inc. v. The Queen | Jul 7, 2022
Wong v. Pretium Resources Inc. | Jul 22, 2022
Labourers' International Union of North America, Local 183, Union v Mulmer Services Ltd. | Aug 5, 2022
City of Mississauga v. Hung | Sep 22, 2022
Secretary of the Ministry of Health v The New South Wales Nurses and Midwives' Association (28 September 2022)
Orewa Community Church v Minister for Covid-19 Response (16 August 2022)
Yeshiva College Bondi Limited v NSW Education Standards Authority (15 August 2022)
Moreland Planning Scheme Amendment C208more | Heritage Nominations Study | Panel Report | 15 July 2022
New Zealand Tegel Growers Association Incorporated | 2 August 2022
Farrow-Smith and Comcare (Compensation) | 26 September 2022
Evolution Fleet Services Pty Ltd v Allroads Plant Pty Ltd | 14 September 2022
656621 B.C. Ltd. v David Moerman Painting Ltd. | Sep 27, 2022
Fraser Valley Packers Inc. v Raiwal Holdings Ltd | Sep 26, 2022
Parmar v Tribe Management Inc. | Sep 26, 2022
DES Studio inc. c. Shuchat | Sep 26, 2022
Van-Kam Freightways Ltd. v Teamsters Local Union No. 31 | Sep 28, 2022
Rogers Communication Inc. v British Columbia | Sep 28, 2022
Alderbridge Way GP Ltd. | Sep 28, 2022

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