Executive Summary: Key Legal and Evidentiary Issues

• Dispute centred on whether a binding contract of purchase and sale existed for manufactured home Unit 37 despite the absence of the principal’s signature on the final written contract.

• The court found that Retire West Communities Ltd. made a clear offer to sell Unit 37 by sending the February 8, 2022 contract and promissory note, which the plaintiffs accepted by signing and returning as instructed.

• Earlier alleged oral agreements in late 2021 were treated as negotiations and ultimately unnecessary to decide because a binding agreement arose at the latest upon execution and return of the February documents.

• Objections to summary trial based on partial issues, alleged credibility conflicts, discovery limits, and multiple defendants were rejected, with proportionality and the discrete nature of the ownership issue favouring summary determination under Rule 9-7.

• Defences based on incomplete deposit payment, registry steps, and reliance on a backdated “time of the essence” completion clause failed because the vendor’s own conduct made those timing provisions inoperative.

• The plaintiffs were declared owners of Unit 37, Retire West obtained a registered charge for the balance of the purchase price, the plaintiffs were held liable for pad rent from occupation, and they received their costs of the summary trial.

Facts and background

Monica Ann Choiniere and Michael Joseph Susak were property managers for Retire West Communities Ltd. and Sorrento Place Holdings Ltd., managing manufactured home parks including Sorrento Place on the Lake in Sorrento, British Columbia. Unit 37 at 2932 Buckley Road was previously owned by Mr. Popovich and passed into his estate on his death. Retire West purchased Unit 37 from the Popovich estate in November 2021 for $150,000. The plaintiffs said there was an understanding that Retire West would acquire the unit and then sell it to them for the same price plus $7,000 in pad rent arrears, and that they would occupy it as their home. A November 2021 text message from Mr. Susak to Retire West’s principal referenced agreement on $150,000 “all in” including arrears, a $20,000 cash down payment, and a question about interest, but there was no written reply accepting those terms, and the court treated this as evidence of active negotiations rather than a concluded deal at that time.

Early draft contract, counter-proposal, and January renovations

On December 3, 2021, Retire West sent a draft written contract naming Ms. Choiniere and two other individuals, Steve Cotterill and Sylvie Taylor, as purchasers and requiring an $8,000 deposit. Ms. Choiniere responded by asking that the purchasers be changed to herself and Mr. Susak only and that the deposit be reduced to $5,000, and she later sent a certified cheque for $4,000. The cheque was not cashed but was not returned until months later. The presence of different proposed purchasers and the requested changes to parties and deposit led the court to conclude there was still negotiation and no binding contract in December 2021. On January 1, 2022, while the principal was in Hawaii, Mr. Susak asked by phone if he could begin cleaning and renovating Unit 37 to make it habitable. According to uncontradicted affidavit evidence, the principal said they should “treat it as [their] own” and that he would sort out the paperwork on his return. Relying on this, the plaintiffs undertook extensive renovations and improvements at their own expense, which the court viewed as consistent with their belief they were preparing their own home rather than an employer-owned staff unit.

February contract and formation of binding agreement

On February 8, 2022, Retire West sent a revised written agreement, referred to as the February Contract, together with a promissory note. The February Contract now named only Ms. Choiniere and Mr. Susak as purchasers and reduced the deposit to $5,000, though not to the $4,000 they had requested. Both documents were backdated to January 1, 2022. An email from a Retire West employee instructed the plaintiffs to print two copies, sign “in all spots”, mail both original copies back, and then the principal would sign and return a fully executed copy to them. The plaintiffs followed these instructions and returned signed copies of both the contract and the promissory note. The defendants later said this was merely another draft, but the court held that, viewed objectively, sending the February Contract and promissory note with detailed execution instructions was a clear offer to sell on those terms. When the plaintiffs signed and returned both documents, they accepted that offer. The court found that, at that moment, a binding contract of purchase and sale for Unit 37 came into existence, regardless of the principal’s subsequent refusal to sign.

Move-in, termination, and challenge to summary trial

On March 1, 2022, the plaintiffs moved into Unit 37 after completing renovations and provided post-dated cheques for pad rent and for payments under the promissory note. The defendants did not tell them not to move in or to stop renovations, and the delay in the principal’s signature was attributed to his continuing stay in Hawaii. On April 25, 2022, the plaintiffs’ employment was terminated, and the following day the defendants returned the cheques, including the deposit, but did not return the promissory note. Retire West’s position became that there had never been a binding contract and that matters had remained at a negotiation stage. The plaintiffs applied for a summary trial under Rule 9-7 seeking a declaration that they were the owners of Unit 37. The defendants argued that the matter was unsuitable for summary determination because only part of the claim (ownership) would be resolved while wrongful dismissal claims remained, credibility disputes required a conventional trial, they faced prejudice due to discovery limits on Ms. Choiniere, and the relief was only against Retire West. The court held the contract issue was discrete from the wrongful dismissal claims, that the defendants’ own pursuit of occupational rent under a counterclaim undercut their objection, and that the key questions could be answered on the affidavit and documentary record. Considering the relatively modest amounts at stake and the projected length of a full trial, the court found that proportionality strongly favoured summary trial.

Contract clauses, alleged breaches, and treatment of evidence

The February Contract contained a completion clause stating that completion would occur on or before January 1, 2022, required payment of the balance of the price and lodging of registerable documents in the Manufactured Home Registry by that date, and made time of the essence, allowing the vendor to terminate and forfeit the deposit if completion did not occur. It also contained an “entire agreement” clause stating that there were no representations or agreements outside the written document. The defendants argued that the plaintiffs breached the contract by paying only a $4,000 deposit instead of the $5,000 specified and by failing to provide the necessary registry documentation, and that the time-of-the-essence clause entitled Retire West to treat the contract as at an end. The court held that the vendor could not rely on a January 1, 2022 completion date where the operative contract and promissory note were not even sent to the plaintiffs until February 8, 2022; either the date was an error or the vendor had waived strict compliance, but in any event it could not be invoked for termination. The court also noted that the deposit cheque was held and only later returned after employment ended, and no timely insistence on strict deposit compliance was made. On the registry issue, the court found no persuasive basis to conclude that the plaintiffs were in material breach where the primary obstacle to completion was the principal’s refusal to sign.

Outcome and overall result

The court concluded that a binding contract of purchase and sale for Unit 37 existed by the time the plaintiffs signed and returned the February Contract and promissory note to Retire West, and that subsequent second thoughts by the principal could not undo that agreement. The court therefore granted a declaration that the plaintiffs, Monica Ann Choiniere and Michael Joseph Susak, are the owners of the manufactured home known as Unit 37 at Sorrento Place on the Lake. Retire West was declared entitled to a registered charge against the manufactured home for the balance of the purchase price, in line with the vendor-financing structure contemplated by the promissory note. As a corollary to ownership, the court held that the plaintiffs are responsible for paying pad rent from the date they began occupying Unit 37. The court did not fix specific damages or occupation rent due to insufficient and procedurally defective valuation evidence, but allowed the parties to return to court if they could not agree on amounts within sixty days. The plaintiffs were awarded their costs of the summary trial application, confirming them as the successful party in the ownership and contract dispute over Unit 37.