Fraresso v. Wanczyk

2000 BCCA 594 Citation: Fraresso v. Wanczyk Date: 20001030 2000 BCCA 594 Docket: CA025314 Registry: Vancouver COURT OF APPEAL FOR BRITISH COLUMBIA ORAL REASONS FOR JUDGMENT Before: The Honourable Mr. Justice Lambert October 30, 2000 The Honourable Madam Justice Southin The Honourable Mr. Justice Finch Vancouver, B.C. BETWEEN: JULIA FRARESSO PLAINTIFF (APPELLANT) AND: STEFAN WANCZYK and THOMAS J. CARTER DEFENDANTS (RESPONDENTS) R.B.T. Goepel, Q.C. appearing for the Appellant S.R. Schachter and J. MacInnis appearing for the Respondents [1] LAMBERT, J.A.: This is an application by the respondents for an order varying the order that was made by this division of the court in our reasons for judgment released on 11 May 2000. [2] The litigation involves questions about the purchase and sale of shares. There is an issue about the terms of an agreement for the purchase and sale of shares that was made through a "put" agreement and an acceptance of the "put" that may have been subject to questions in relation to that acceptance. It was contained in a letter of 11 March 1994. There were issues in the lawsuit about the proper interpretation of the "put" agreement and that acceptance. There are also issues in the lawsuit that I will describe as fraud issues though they may encompass other defences than fraud in the true sense. [3] Rule 18A applications were made by both parties and when they were heard an order was made by a Supreme Court judge to direct that a question be determined as a separate issue under Rule 18A. The trial judge who heard that separate question stated it in this way: On a summary application for judgment, an order was made for the trial of one very narrow issue: whether, as is alleged by the plaintiffs, the defendants agreed on 11 March 1994 to buy certain shares which were put to them by Ms. Fraresso under the terms of one of the agreements. [4] The trial judge decided that question on the basis that there was no such agreement. In his reasons he said this: There is disagreement over what if anything was said by Mr. Wanczyk when he handed the letter to Mr. Keast, but I do not consider that to be of any consequence. What is important is that the money was not paid to Ms. Fraresso unconditionally, but was paid to her solicitor to be held in trust until the transaction was completed. That could only have been when the balance of the purchase price was paid. [5] The decision expressed in that paragraph from the reasons of the trial judge was at the heart of the appeal to this court from his decision. This court, through a majority decision of Madam Justice Southin and myself, allowed the appeal on the basis that the March 11 agreement with the "put" terms and the terms on which the "put" was made constituted a concluded contract and a payment of the deposit as contemplated by the "put" agreement. We were not asked to decide at that time whether, if we were to allow the appeal, the terms of what was said, if anything, when the letter was handed over had any consequence in law in relation to the concluded agreement or what we took to be the concluded agreement. Mr. Justice Finch dissented and would have upheld the reasons of the trial judge, I say substantially for the reasons that the trial judge gave, but as expressed by Mr. Justice Finch in his separate reasons. [6] The request that comes before us this morning relates to the question of whether anything of consequence was said as a matter of fact which would constitute a variation of what we decided was a concluded agreement. That question, as is apparent from the paragraph that I have set out from the trial judge's reasons, was not decided by the trial judge but it was argued before him and evidence was led before him. When he says he did not consider that to be of any consequence, he could mean either that it had no effect in law or he could have meant that, because he was deciding the question before him on the basis of the documents and whether a trust had been created, it was not necessary for him to decide whether what was said, if anything was said, had any legal effect in relation to the agreement. I think it is correct to say that this court did not deal with that question in deciding the appeal. While we were not invited to, it is understandable why we were not invited to, and I would not like to be thought that we were depriving the defendants of a proper defence which they had raised before the trial judge through the fact that, having been successful before the trial judge, it did not seem necessary to them to argue the alternative consequence if they were to fail in the appeal. [7] For those reasons, I think that there is a question to be tried that relates to the finding of fact of whether anything was said, what was said, and whether it was of any legal consequence. If the plaintiff is successful in his contention that nothing was said that varies the agreement, she will still have to litigate the questions that I have encompassed within the word "fraud". At this stage it seems undesirable to send back the limited issue of fact of whether anything was said at the time of the delivery of the March 11 letter that had effect on the legal consequences of that letter separately from the question of fraud. The witnesses will be much the same, and the questions relating to their credibility will be much the same. In my opinion, the orderly administration of justice requires that the factual question that was separated out, tried and brought before us separately from the legal question that was tried and brought before us should now be encompassed with all other questions of fact and dealt with in one hearing in the Supreme Court of British Columbia. [8] It follows that I would grant the application brought before us this morning. I would order that, of course, our decision on the effect of the agreement as contained in the documents which were exchanged must stand. The factual issue of whether anything was said at the March 11 agreement or at any other time that would vary the effect of the agreement that we have decided was made should be tried along with the issues in relation to what I have called fraud and that they all be tried together in the Supreme Court of British Columbia to which this part of the matter I would refer. [9] SOUTHIN, J.A.: I agree. [10] FINCH, J.A.: I agree. [11] LAMBERT, J.A.: So ordered. On the question of costs, the costs of the appeal that was decided earlier this year should go to the appellant. There should be no costs of the proceedings today. "The Honourable Mr. Justice Lambert"