Executive Summary: Key Legal and Evidentiary Issues

• Winslow claimed a binding contract existed for the purchase of land in Rocky View County from the Thivierge defendants, but no valid offer and acceptance was ever completed in writing.

• The plaintiff's realtor modified the defendants' Counter-Offer by adding "Saw and Saw Table" to the unattached goods, which the Court found constituted a new counter-offer rather than an acceptance.

• Under the AREA standard form contract, acceptance had to be in writing, and neither the Counter-Offer nor the Disputed Document was ever accepted in writing by the required 2:00 p.m. deadline.

• Oral discussions between the realtors could not form a binding agreement for the sale of land, consistent with the Statute of Frauds and the AREA contract's entire agreement clause.

• Winslow's arguments regarding bad faith, adverse inference from the absence of realtor Nickel's evidence, and disputed material facts were all rejected as failing to establish a genuine issue requiring trial.

• The Court ordered summary dismissal of the claim and cancellation of the certificate of lis pendens registered against the Property, with costs presumptively awarded to the defendants.

The background to the dispute

In October 2023, Daun C. Winslow sought to purchase a property in Rocky View County, Alberta, for retirement. He engaged Weiping Sun as his realtor. The defendants, Marteen Thivierge and Bryan Thivierge, had the Property listed for sale through a RE/Max brokerage. Heather Nickel was one of their real estate agents. Winslow toured the Property with Bryan Thivierge and observed a 5,000-square-foot shop organized into various components, including a mechanical room, offices, a tool room, a tool crib, a woodworking room, a lay down room, and a welding room. The building contained many tools and saws. At least some of the tools were not owned by the defendants but by a numbered corporation. Other than meeting Bryan Thivierge during the tour, there was no contact between Winslow and the defendants regarding the formal negotiation of an agreement. The negotiations were handled on their behalf through Sun and Nickel.

The initial offer and counter-offer

On October 25, 2023, at 9:49 a.m., Sun emailed a written offer to Nickel for Winslow's purchase of the Property using the Alberta Real Estate Association (AREA) Country Residential Purchase Contract form. The offer was signed and initialed electronically by Winslow. The purchase price was $825,000, and clause 1.1 included as unattached goods "All the equipment in the workshop room including compressor, saw table and a dust sucker etc." The offer was not acceptable to the defendants, including due to the description of the included unattached and attached goods. The defendants wanted clarity on what Winslow intended to include in the proposed contract. Sun and Nickel then had some communications about the offer, both orally and through texts. According to Sun, around 11:00 a.m. or 12:00 p.m., she and Nickel had an oral conversation during which they discussed whether Winslow wanted a saw included in the sale; Sun confirmed he did. At 1:04 p.m. that same day, Nickel emailed Sun a revised version of a proposed contract — the Counter-Offer — which included several revisions, including revisions to the included unattached and attached goods and a revised Completion Day of January 12, 2024. The Counter-Offer changed the time for acceptance in clause 17.2 and provided that "This offer/counteroffer will be open for acceptance until 2:00 p.m. on October 25, 2023." It did not include any changes regarding a saw.

The disputed document and breakdown of negotiations

According to Sun, after receiving the Counter-Offer, she communicated with Nickel and noted that Nickel had not included the saw. Sun testified that she told Nickel she would add it, and Nickel responded: "you put it on, and I will let my client get his initial." Sun confirmed that this was "just oral voice conversations." According to Winslow, he advised Sun that he accepted the Counter-Offer and did not instruct Sun to make a further counter-offer. However, Sun prepared another version of the AREA purchase contract by making changes to the Counter-Offer. At 1:32 p.m., Sun emailed Nickel a document stating: "Hi Heather, Signed offer attached. One place I need initial." The Court referred to this attachment as the "Disputed Document." The Disputed Document added "Saw and Saw Table" to the unattached goods, with Winslow's new initials next to the change. The Disputed Document did not change the time for acceptance; however, Winslow specifically added his initials to clause 17.2, which continued to provide the offer/counteroffer would be open for written acceptance until 2:00 p.m. In questioning, Winslow acknowledged he was aware of and initialed the changes, describing it as a "clarification to include a saw." The defendants did not further initial or sign the Disputed Document. Bryan Thivierge interpreted it as adding more items to the offer for the same price, and he was not sure what kind of saw was being referenced. At 2:28 p.m., Sun reminded Nickel to have the document initialed. The Disputed Document was never returned by the defendants or Nickel to Sun or Winslow. On October 26, 2023, at 10:26 a.m., Sun followed up advising she had not "received the contract yet." Sun deposes that Nickel "gave me the go ahead for Mr. Winslow to pay the deposit." At some point on October 26, 2023, Winslow attended the RE/Max office and left a cheque as a $20,000 deposit at reception. The cheque was never cashed, and a few days later Winslow was asked to retrieve the cheque but refused to do so. On October 26, 2023, at 2:19 p.m., Nickel confirmed in a text that she had not received the initialled Disputed Document from the defendants, that the parties were well past the expiry date, and that in the meantime the defendants had received another offer. At some point before November 1, 2023, Sun offered to waive her entire commission, which she admitted in questioning was to induce the defendants "to agree with" the Disputed Document. On November 1, 2023, Nickel advised Sun that the defendants had decided to go with the other offer. Winslow filed the claim on November 2, 2023. On November 6, 2023, Winslow filed a certificate of lis pendens, and on November 28, 2023, it was registered against the Property's title.

The AREA contract terms and their significance

The Court placed considerable emphasis on the provisions of the AREA standard form contract used by the parties in their negotiations. Clause 17.2 required that the offer or counteroffer be open for "written acceptance" by a specified deadline. Clause 3.1(1) stated that contract changes that are "agreed in writing" will supersede the pre-printed clauses. Clause 13.1 defined a notice under the contract as "a written document, including notices required by this contract, and this contract when accepted." Clause 16.1 stipulated that "The legal obligations in this contract begin when the accepted contract is delivered in person or sent by fax or email." Clause 15.1 further provided that the contract was the entire agreement between the parties and that, unless expressly made part of the contract in writing, verbal or written collateral or side agreements, representations, or warranties were not part of the contract and any pre-contractual representations that induced either party into the contract were of no legal force or effect. The Court noted that although clause 15.1 never became operative as part of a contract because there was no offer and acceptance, its use by the parties in their negotiations was important. There was no reasonable expectation by Winslow or Sun that any offer could be accepted to create a binding contract unless it was accepted in writing in accordance with its terms. The Court further observed that the AREA form unambiguously requires written offers and written acceptance before binding contracts are formed, creating certainty so everyone knows where they stand during the negotiation process.

The Court's analysis on summary dismissal

The defendants applied to strike the statement of claim and, alternatively, for summary dismissal under Rule 7.3(1)(b) of the Alberta Rules of Court. The Court declined to strike the claim, finding that as pleaded, the statement of claim disclosed a valid and reasonable claim for breach of contract. However, turning to summary dismissal, the Court applied the framework from Weir-Jones Technical Services Incorporated v Purolator Courier Ltd and Hryniak v Mauldin, which require the moving party to prove the factual elements of its case on a balance of probabilities and that there is no genuine issue requiring a trial. The Court found on a balance of probabilities that the defendants' Counter-Offer was never validly accepted by Winslow. Rather, before the Counter-Offer expired on its terms at 2:00 p.m., Sun provided the Disputed Document to Nickel, which was a revised version of the Counter-Offer on materially different terms. The addition of an unspecified "Saw" in this context was not a trivial change, as evident by both realtors' acknowledgment that further initials were required. The Disputed Document therefore constituted a rejection of the Counter-Offer and a further counter-offer by Winslow to the defendants. The Counter-Offer ceased to exist when the Disputed Document was provided by Sun to Nickel. The Disputed Document expired, unaccepted, on its terms at 2:00 p.m. on October 25, 2023. No binding contract was formed.

Winslow's arguments and the Court's rejection of each

Winslow provided the Court with a 57-page written brief and advanced several arguments to resist summary dismissal. He contended that he and Sun had accepted the Counter-Offer before its deadline. The Court found this to be a bald, conclusory statement providing at best an inadmissible opinion about the legal effect of what transpired, and that the documented evidence illustrated Winslow did not accept the Counter-Offer but instead rejected it by providing his own counter-offer through the Disputed Document. Winslow also argued that the Disputed Document was an amendment to an already accepted Counter-Offer. The Court rejected this, noting it was founded on the premise that Winslow had already accepted the Counter-Offer, which the Court found to be a hopeless position; an offeree cannot accept an offer while simultaneously introducing new terms. Winslow further argued that an adverse inference should be drawn against the defendants for not presenting evidence from Nickel. The Court found no reasonable basis for such an inference, noting that Sun had provided her evidence, which the Court treated as unchallenged, and that evidence did not establish a genuine issue requiring trial; Nickel's oral testimony would only potentially add to the content of the realtors' oral conversations but would not affect whether there was a written offer and a written acceptance. Winslow also argued the defendants acted in bad faith, relying on Bhasin v Hrynew. The Court held that bad faith was not pleaded in the statement of claim, and that "Malice or ill will" must be specifically pleaded under rule 13.6(3)(f). Further, Alberta law does not recognize a general duty of good faith and fair dealings in contract negotiations between non-fiduciary private parties of roughly equal bargaining power, and the Bhasin principle relates to the performance of a contract, not to the negotiation or terms of a contract. Winslow's remaining arguments concerning disputed material facts, mistake, and res judicata were similarly dismissed as not raising genuine issues for trial. The Court noted there was no material factual dispute on the record about what actually happened, and it was able to fairly make findings about the legal effect of those facts.

The ruling and outcome

Justice M.A. Marion of the Court of King's Bench of Alberta granted summary dismissal of Winslow's claim, finding there was no merit to the claim and no genuine issue requiring a trial. The certificate of lis pendens registered by Winslow against the Property, registered as instrument number 231 367 666, was ordered cancelled. The summary dismissal was made effective one month from the date of the reasons — April 9, 2026 — to give the defendants an opportunity to commence a process to seek compensation under section 149 of the Land Titles Act for the registration of the certificate of lis pendens against the Property. The Court made no finding on entitlement or quantum of compensation under section 149. The defendants, as the substantially successful parties, are presumptively entitled to their costs of the action to date. The parties were encouraged to resolve any compensation claim and costs; failing agreement, a written costs submission process was directed. No exact monetary amount was awarded or ordered at this stage.