De Jong v. Gechter et al.
- Citation
- [1978] 2 SCR 62
- Status
- Judgment
- Jurisdiction
- Canada
- Court
- Supreme Court of Canada
- Decision
- 27 October 1977
- 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
- Language
- English
More details
- Court
- Supreme Court of Canada
- Decision
- 27 October 1977
- 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
- Language
- English
On this page
Professional case brief
Research organized from the available case record
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. MiskuskiBernhard Gechter and Raymonde Gechter
Defendants/respondents Counsel: D.J. ChernichenAmounts and remedies
- Time Period Months: 1
03
Procedural history
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
- 01
Whether the wife’s refusal to acknowledge consent created an implied condition precedent to the contract
- 02
Whether specific performance should be granted despite lack of spousal consent under the Dower Act
- 03
Whether the remedy may include severance of the home quarter to allow performance
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
Legal principles
- 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
- 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
- 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
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Supreme Court of Canada
Judgment· 27 October 1977
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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