nan THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2009 SKCA 40 Date: 20090317 Between: Docket: 1580 Theresa Nadeau and Clayton Clement, Homer Clement and Blaine Clement and Hugh McLaughlin, Glenn Forrester and Robert Heinrichs Respondents Coram: Gerwing, Jackson and Richards JJ.A. Counsel: Ian D. McKay, Q.C. for the Appellant Rod J. Rath for McLaughlin, Forrester and Heinrichs Tyler McCuaig for the Clements Appeal: From: 2008 SKQB (CanLII) Heard: March 17, 2009 Disposition: Dismissed (Orally) Written Reasons: March 23, 2009 By: The Honourable Madam Justice Gerwing In Concurrence: The Honourable Madam Justice Jackson The Honourable Mr Justice Richards Gerwing J.A. [1] This is an appeal from a judgment in which the trial judge held that the sale of farm land by the then 79-year-old appellant was valid and that her solicitor in the transaction was not negligent. [2] The appellant sought below to set aside the transaction under various heads of contract law including duress, undue influence, unconscionability, equitable fraud and mistake. [3] The facts briefly are that the appellant, widow, agreed to sell four quarters of farmland, including residence and some grain bins on the land, to the respondents, the Clements, by lease option agreement. The total price was $120,000.00 allocated $100,000.00 for the land and $20,000.00 for the house. The terms were indeed favourable to the purchasers, the monies being paid over seven years with most deferred until the final year. There was no interest. [4] However, the appellant was permitted to reside in the house for her lifetime if she paid the utilities and the property taxes until December 31, 2006. [5] It is not necessary for us to comment on the analysis the trial judge did of each of the potential attacks to the validity of the contract as against the Clements. The issues raised in the grounds of appeal are factual and the sole matter of significance before us was whether the standard of review in H.L. v. Canada (Attorney General)[1] had been met. [6] The trial judge concluded that the plaintiff, when she entered the contract, had full capacity. He saw no reason on the evidence to doubt her competence and that is fully supported by her testimony at the trial when she was in her late 80’s.[2] [7] He further concluded that the contract was advantageous to the Clements. He was not satisfied with the valuation of the residence and particularly with occupancy rights thereof from the testimony of either appraiser but concluded that the total price probably reflected the land value. He further concluded: [70] Clayton Clement was more knowledgeable as to the value of the land than the plaintiff. One only needs to look at the 1999 rural municipality map to observe that Clayton Clement’s name appears in the municipal records as the owner of many sections of land in the immediate vicinity. There is evidence to suggest that Clayton Clement was motivated to acquire the Nadeau land for his own purposes, not just to help out the plaintiff by taking it off her hands and thus relieving her of the burden of owning it. [71] It is understandable that at the time of the agreement neither Therese Nadeau nor Clayton Clement gave much consideration to the value of the residence and yardsite. Clayton Clement said he had no use for it, so it had no value to him. From the plaintiff’s viewpoint, the fact that she had the right to keep the residence and yardsite for as long as she wanted could easily have led her to exclude or disregard the value of the residence and yardsite as separate component of the value of the asset she was selling.[3] [8] The appellant in the course of her testimony indicated that she was aware that it was good deal for the Clements and did intend to benefit the Clements. [9] The trial judge further found that there was no evidence of any pressure or deception by the Clements with respect to her entering into the contract; they were not in position of presumed undue influence and did not in fact exercise such influence. The appellant had independent legal advice, the quality of which will be discussed below, and the Clements had their own lawyer. [10] In concluding that there was no pressure and that the appellant, competent and fully capacitated adult, had entered into the contract with the intention of conferring benefit and fully understanding it, the trial judge noted the fact that the contract was implemented and the appellant resided on the land for two years. There was no complaint made until her daughter, from whom the contract had been concealed by joint agreement between the appellant and the Clements, found out what had happened. [11] In our view these central facts negate any attempt to overturn what is on its face valid contract. The trial judge entered into legal analysis of each of the points raised and we should not be taken as having approved all of these; that is, in our view in some instances he was overly generous to the appellant in even embarking on an analysis of the potential weapon to invalidate the contract. [12] In the end result the sole matter of significance in this is whether the central facts on the terms of the contract, the competence of the appellant and the relationship with and conduct of the Clements was supported by probative evidence. There is no doubt that it was. In those circumstances it is impossible for us as a court of appeal to interfere with these findings, even had we wished to. On these facts no possible attack on the contract exists. [13] As noted, the appellant also sought relief against her solicitor for negligence. Again the trial judge made findings of fact which negate this claim and again the evidence amply supports his conclusions. His findings of fact in this regard are as follows: [88] As to the position of the solicitors, the following facts are important: 1. Generally, McLaughlin was professionally competent and highly regarded by his peers, who recognized his ability to handle transactions of this kind. 2. McLaughlin knew Therese Nadeau quite well and for long time from his previous dealings with her, in particular as to the Noel Nadeau estate. 3. Therese Nadeau placed her trust in McLaughlin to the extent that even after she became unhappy with regard to the Clements transaction she engaged McLaughlin to represent her in connection with the purchase of her condominium in Swift Current. 4. It is clear from McLaughlin’s May 2, 2002, memorandum that he was not “overly enthusiastic about the agreement”, but that Therese Nadeau was “gung hoe [sic] to sign it and to sell the land”. Certainly McLaughlin had reservations, but it is not clear whether his reservations had to do with the price, the fact that there was no provisions for interest on deferred payments, the fact that Therese Nadeau was paying the taxes, some combination of these factors, or other factors entirely. Quite properly, though, he deferred to the wishes of his client because he regarded her as competent and she made it clear what she wanted and her determination to proceed.[4] [14] There was expert evidence on behalf of the appellant at trial suggesting that in the end result the critical thing was for the solicitor, once he had determined his client had capacity, to be sure that the nature of the contract was understood. Here it is of significance that the contract was drawn in very simple terms easily comprehensible to lay person. The trial judge found that, although the senior Mr. Clement was present at the initial interview when the terms of the contract were explained to the solicitor for the appellant, there was no convincing evidence that the subject of the value of the land was not appropriately and adequately discussed. The trial judge noted this and then accepted the testimony of the appellant’s expert in legal practice that it is the buyer’s decision how much to pay and that the lawyer’s duty with respect to his client is to ensure that she has directed her mind to the subject and is satisfied to proceed. The trial judge found that the respondent McLaughlin was not shown to have breached or failed any professional obligation. After the simply worded contract was drawn it was forwarded to her with cover letter suggesting she read it carefully. [15] When she returned to sign the contract, some 10 days later, after her signature was affixed to it, she met with McLaughlin privately and was prepared to proceed. As noted the parties then lived with the contract for period of at least two years. [16] The appellant in this Court made much of the fact that she signed the contract before the private meeting with McLaughlin. The trial judge in dealing with this point concluded that the contract was not in force until after the meeting when it was delivered to the Clements. In our view there was probably insufficient evidence to conclude whether or not the contract was indeed effective on her signature or when delivered but in the end result we are of the view that question is irrelevant. First, contrary to what the appellant suggests, an independent meeting is not absolutely necessary for the solicitor to ensure comprehension of the contract. It is of course desirable but the critical matter is for the solicitor to satisfy himself that the client comprehends the transaction. The trial judge found that the appellant understood all aspects of the contract. Secondly, the matter of the timing of the private meeting is not relevant, given that the appellant after the meeting continued to be prepared to enter into and perform the contract. If she had manifested some unease after the signature and meeting but before the delivery, other issues and no doubt other evidence would have been considered in determining when the contract became effective in the circumstances. Here that matter is of no moment in determining the issue of the solicitor’s negligence. [17] Again, as with the attempts to set aside the contract, the claims against the solicitor are without a factual basis. The trial judge again made the critical findings of fact. These findings, including comprehension and desire to provide benefit to the Clements, are amply supported in the evidence, including the candid admissions of the appellant in her testimony at trial. [18] Accordingly, the appeals against both the Clements and the solicitors are dismissed. Each will have costs against the appellant, but all of the Clements will receive one set of costs as will all the named solicitors. [1] 2005 SCC 25 (CanLII), [2005] S.C.R. 401. [2] Trial judgment, 2008 SKQB (CanLII) at para. 68.
This is an appeal from a judgment in which the trial judge held that the sale of farm land by the then 79 year old appellant was valid and that her solicitor in the transaction was not negligent. The appellant widow agreed to sell four quarters of farmland, including residence and some grain bins on the land, to the respondents by lease option agreement. The total price was $120,000. The terms were favourable to the purchasers, the monies being paid over years with most deferred until the final year. There was no interest. However, the appellant was permitted to reside in the house for her lifetime if she paid the utilities and the property taxes. The trial judge noted that the appellant resided on the land for years and there was no complaint made until the appellant's daughter, from whom the contract had been concealed by joint agreement between the appellant and the purchasers, found out what had happened. The sole issue on appeal was the applicable standard of review in H.L. v. Canada (Attorney General) [2005] 1 S.C.R. 401. HELD: Appeal dismissed. 1) There is no doubt that the central facts as found by the trial judge regarding the contract, the competence of the appellant and the relationship with and the conduct of the purchasers was supported by probative evidence. It is impossible for an appeal court to interfere with those findings, even if the Court had wished to. 2) With regard to the allegation of negligence against appellant's lawyer, contrary to what the appellant suggest, an independent meeting is not absolutely necessary for the solicitor to ensure comprehension of the contract. It is of course desirable, but the critical matter is for the solicitor to satisfy himself that the client comprehends the transaction. The trial judge found that the appellant understood all aspects of the contract. The matter of the timing of the private meeting between the appellant and her lawyer is not relevant, given that the appellant after the meeting continued to be prepared to enter into and perform the contract. If she had manifested some unease after she signed the agreement and then met with her lawyer but before the delivery of the contract to the purchasers, other issues and no doubt other evidence would have been considered in determining when the contract became effective in the circumstances. The claims against the appellant's solicitor are without a factual basis.