Canada Judgment

Supreme Court of Canada

De Jong v. Gechter et al.

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Professional case brief

Research organized from the available case record

Source document

01

Holding and result

The Appellate Division’s finding of an implied condition precedent was not supportable in light of this Court’s authority in Senstad v. Makus; consequently the trial judge’s order for specific performance (with severance of the home quarter) must be restored subject to a one‑month adjustment for completion and costs awarded to the appellant.

Court disposition

Appeal allowed; Appellate Division judgment set aside; trial judgment restored with variation.

Orders

  • Appeal allowed
  • Judgment of the Appellate Division set aside
  • Judgment at trial restored except that the time period in paragraph 4 is altered to one month from October 27, 1977
  • Specific performance granted with severance of the home quarter as ordered at trial
  • Appellant entitled to costs in this Court and in the Court below

02

Material facts

Parties

Nick De Jong

Plaintiff/appellant Counsel: E.W.N. Macdonald and R.B. Miskuski

Bernhard Gechter and Raymonde Gechter

Defendants/respondents Counsel: D.J. Chernichen

Amounts and remedies

  • Time Period Months: 1

03

Procedural history

  1. Posture

    Appeal to the Supreme Court of Canada From Alberta Concerning Property Contract (sale of Farm Lands) and Specific Performance Against Objection Under the Dower Act / Final Appeal to Supreme Court of Canada; Disposition of Appeal and Restoration of Trial Judgment With Variation

04

Questions and positions

Legal issues

Party arguments

Applicant
The appellant argued there was no implied condition precedent preventing performance; the trial judge correctly ordered specific performance with severance of the home quarter and that the Appellate Division erred in inferring an implied condition; the judgment at trial should be restored with a revised time for performance.
Respondent
The respondents argued the wife’s refusal to acknowledge consent should be treated as an implied condition precedent preventing performance and relied on the Dower Act to resist specific performance; they sought to uphold the Appellate Division’s finding that prevented enforcement of the contract.

05

Court’s reasoning

  1. 01

    Senstad v. Makus, [1978] 2 S.C.R. 44; Supreme Court reasoning

    A court will not infer an implied condition precedent where earlier authorities and the facts do not support it; appellate finding of such a condition must be sustainable on authority and reasoning

  2. 02

    Principles of equity as applied by the trial court and affirmed by this Court

    Specific performance is an available equitable remedy in appropriate land sale cases and may be granted with modification such as severance of a homestead to accommodate spousal interests

  3. 03

    The Dower Act, R.S.A. 1970 c.114 s.6

    Statutory spousal protections (Dower Act s.6) affect disposition of homestead interests but do not automatically create an implied condition precedent to contractual performance absent clear legal basis

06

Ratio, limits and disposition

Ratio decidendi

The Appellate Division’s finding of an implied condition precedent was not supportable in light of this Court’s authority in Senstad v. Makus; consequently the trial judge’s order for specific performance (with severance of the home quarter) must be restored subject to a one‑month adjustment for completion and costs awarded to the appellant.

Obiter and limits

  • The Court noted Senstad v. Makus provides controlling guidance on inferring implied conditions and limited the circumstances in which such conditions may be recognized.
  • The Court observed severance of the homestead is an appropriate equitable modification to allow specific performance where spousal statutory protections would otherwise impede transfer.

Court disposition

Appeal allowed; Appellate Division judgment set aside; trial judgment restored with variation.

  • Appeal allowed
  • Judgment of the Appellate Division set aside
  • Judgment at trial restored except that the time period in paragraph 4 is altered to one month from October 27, 1977
  • Specific performance granted with severance of the home quarter as ordered at trial
  • Appellant entitled to costs in this Court and in the Court below

Source and reliance status

Supreme Court of Canada · 27 October 1977

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Judgment reading view

Judgment text

The complete available source text.

Source document

Supreme Court of Canada

Judgment· 27 October 1977

[1978] 2 SCR 62

De Jong v. Gechter et al. Collection Supreme Court Judgments Date 1977-10-27 Report [1978] 2 SCR 62 Judges Martland, Ronald; Ritchie, Roland Almon; Spence, Wishart Flett; Pigeon, Louis-Philippe; Dickson, Robert George Brian; Beetz, Jean; Pratte, Yves On appeal from Alberta Subjects Property law Decision Content Supreme Court of Canada De Jong v. Gechter et al., [1978] 2 S.C.R. 62 Date: 1977-10-27 Nick De Jong (Plaintiff) Appellant; and Bernhard Gechter and Raymonde Gechter (Defendants) Respondents. 1977: October 27. Present: Martland, Ritchie, Spence, Pigeon, Dickson, Beetz and Pratte JJ. ON APPEAL FROM THE SUPREME COURT OF ALBERTA, APPELLATE DIVISION Real property—Contract for sale of farm lands—Wife’s refusal to acknowledge consent to disposition of homestead—Specific performance granted with severance of home quarter—The Dower Act, R.S.A. 1970 c. 114, s. 6. [Senstad v. Makus, [1978] 2 S.C.R. 44, referred to] APPEAL from a judgment of the Supreme Court of Alberta, Appellate Division[1], allowing an appeal from a judgment of MacDonald J. Appeal allowed. E.W.N. Macdonald and R.B. Miskuski, for the plaintiff, appellant. D.J. Chernichen, for the defendants, respondents. The judgment of the Court was delivered orally by MARTLAND J.—We are all of the opinion that the basis on which the Appellate Division found the existence of an implied condition precedent cannot stand,

particularly in the light of the reasons of this Court in Senstad v. Makus[2], which were delivered after the judgment of the Appellate Division in the present case. The appeal is allowed the judgment of the Appellate Division is set aside and the judgment at trial is restored except that the time period fixed in para. 4 of that judgment is altered so as to provide for a period of one month from October 27, 1977. The appellant is entitled to costs in this Court and in the Court below. Judgment accordingly. Solicitors for the plaintiff, appellant: McClung, Frohlich & Rand, Edmonton. Solicitors for the defendants, respondents: Harradence & Co., Calgary. [1] (1976), 1 Alta. L.R. (2d) 82. [2] [1978] 2 S.C.R. 44.

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Senstad v. Makus, [1978] 2 S.C.R. 44

Case cited

De Jong v. Gechter et al., [1978] 2 S.C.R. 62

Case cited

(1976), 1 Alta. L.R. (2d) 82 (App. Div.)

Case cited

The Dower Act, R.S.A. 1970 c. 114 s. 6

Legislation

Legislation referenced in the available case record.

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