101034761 Saskatchewan Ltd. v Mossing

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

30^th, 2010;

2. Subject to due diligence by the Buyer; any contracts, viewing of

property on or before September 30^th, 2010;

3. Subject to Buyer testing for aggregate available on property by

November 1^st, 2010.

Sellers Conditions:

1. Sellers will clean all machinery, tools, and misc. items from

property by July 31^st2011;

2. Sellers may store grains until July 31^st, 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

31^st/2011

5. Subject to due diligence by the Buyer; any contracts, viewing of

property on or before Dec 31^st/2010;

6. Subject to Buyer testing for aggregate available on property by

Dec 31^st/2010

Sellers Conditions:

6. Sellers will clean all machinery, tools, and misc. items from

property by July 31^st2011;

7. Sellers may store grains until July 31^st, 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

19^thto 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, 2^nded. (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 31^st, 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 sellers’ conditions

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

witness’ recollection 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