WINSLOW v THIVIERGE

The Defendants applied to strike the Statement of Claim or, in the alternative, to dismiss it summarily. The underlying claim concerned an alleged breach of contract stemming from a real estate transaction; with the Plaintiff as the purchaser and the Defendants as the sellers. During negotiations, the Defendants sent a written counter-offer to the Plaintiff. The Plaintiff made changes to this counter-offer, signed it, and returned it to the Defendants.

The Plaintiff contended that the offer signed and returned to the Defendants was not a counter-offer, but was a clarification on a previously agreed upon offer, and as such it was binding on the parties. Defendants disagreed and characterized the Plaintiff’s revised offer as a counter-offer that was not accepted. The Plaintiff sued to direct the sale of the property in accordance with the terms of the exchanged offer.

Although the Defendants applied to strike the Plaintiff’s claim, the Court noted that they did not substantively address that aspect of their Application in their submissions. In any event, Justice Marion noted that striking the claim would not be appropriate. In canvassing the relevant caselaw and consideration of the requirements of Rule 3.68, Justice Marion noted that a claim should only be struck if it is “plain and obvious” that the claim does not disclose a reasonable cause of action. In this case, the Plaintiff disclosed a valid claim for breach of contract, and as such, it would not be appropriate to strike the claim.

In considering the Defendants’ Application for summary dismissal, the Court noted that the matter was appropriate for summary disposition; the facts were largely uncontested and the only matter in dispute was the legal determination of the validity of the contract itself and the issues surrounding that determination. The Plaintiff raised a number of issues which they submitted amounted to genuine issues for trial, such as whether the counter-offer was properly accepted by the parties, and the relevance of oral conversations between the realtors surrounding the counter-offer.

In reviewing the facts and evidence, the Court determined that there was no genuine issue for trial. Although the Plaintiff alleged that they had accepted the Defendants counter-offer, Justice Marion noted that this position was rebutted by the fact that the version of the agreement that they had initialed contained revisions from their realtor; the version of the agreement that was ‘accepted’ was not the same on that was provided by the Defendants.

Further, the Plaintiff’s position that the oral conversations between the realtors amounted to a genuine issue for trial was similarly rejected. The terms of the proposed agreement were unambiguous in that the written contract was the entirety of the agreement between the parties. If the parties intended the surrounding written discussions to form parts of the agreement, they would have included those terms in the written agreement.