January 25 , 2022

Enforcing Land Sales Becomes Easier

January 5 , 2022

Proving a Settlement After a Mediation

November 16, 2021

Types of Injunctions

October 1, 2021

Orders After Litigation is Over

August 11, 2021

Discoverability for Limitation Periods

August 5 , 2021

Releases of Claims

June 7 , 2021

Language Used Still Matters

May 17 , 2021

Serving Uncooperative People

April 15 , 2021

Death and After-Life of Contingency Agreements

February 22 , 2021

Legal Analysis

February 2 , 2021

Costs Clarified at Last

January 4 , 2021


December 10, 2020

Traps and Confusion in Service Times

November 24, 2020

Don't Cut Corners

October 2 , 2020

Consent Orders

August 4 , 2020

Electronic Hearings

July 21, 2020

Ceasing to Act

June 29, 2020

Writing Skills

June 29, 2020

Keeping Up With the Law

June 22, 2020

Assets as a Test for Security for Costs

June 19, 2020

What is This Case About?

June 11, 2020

Cross-Examining Child Witnesses

May 20 , 2020

Formal Offers

May 13 , 2020

Vexatious or Self-Represented Litigants

January 7, 2020

G.S.T. and Costs

December 20 , 2019

Electronically Navigating the

October 7 , 2019

Questioning is a Bad Word

July 29 , 2019

Dismissal for Delay

May 7 , 2019

Rule 4.31 Fallacies

March 18 , 2019

More Dangers in Oral Fee Agreements

February 11 , 2019

Weir-Jones Decisions

January 9 , 2019

Discouraging Settlements

November 30, 2018

European Court Helps You Twice?

November 23 , 2018

Courts Overruling Tribunals

November 16 , 2018

New Evidence on Appeal

October 30 , 2018

Schedule C's Role

July 17 , 2018

Loopholes in Enforcing Settlements

May 7 , 2018

Enforcement of Procedure Rules

April 16, 2018

Limping Lawsuits are Often

April 3 , 2018

Court of Appeal Tips for
Summary Decisions

March 19, 2018

Serious Dangers in Chambers

February 13 , 2018

Court Backlog

December 18 , 2017

Lowering the Status of Courts

September 15 , 2017

Access to Court Decisions

July 4 , 2017

Strictissimi Juris

June 14 , 2017

Why Don't Your Clients Settle?

June 5 , 2017

Gap in Rules About Parties

June 5, 2017

Personal Costs Against

April 26, 2017

Clogged Courts

April 11, 2017

Dismissal for Want of

January 6, 2017

Incomplete Disclosure

December 15, 2016


November 23, 2016

Is Contract Interpretation Law?


Côté’s Commentaries

© 2016-2022 J.E. Côté


A long-standing mystery for solicitors and barristers has largely disappeared, thanks to a recent Court of Appeal decision.

In the 1930s, Alberta started the fashion of thwarting enforcement of contracts by creditors. The Legislature extended Chancery’s traditional protection of land mortgagors, to purchasers under “agreements for sale.” The legislation also often bars a personal judgment for the money owing. That is now s. 40 of the Law of Property Act.

That legislation stops a vendor from quickly enforcing an “agreement for sale” whose purchaser does not pay on time. Obviously that legislation applies where the agreement gives possession now but lets the purchaser pay in monthly or annual instalments extending over some years. That is an “agreement for sale”. It is usually a well-known formal multi-page contract with traditional terms. As the Court of Appeal says, it is a financing arrangement.

But how about a case where the balance of the purchase price is to be paid on a closing date about three weeks after the written purchase agreement? Or where the parties agree to postpone the closing date a few weeks or months, with a temporary lease in the meantime? Does the Law of Property Act require a foreclosure suit, redemption period, and public sale of the land, for any ordinary realtor’s interim agreement for sale of a house, if it does not close on the closing date? Does giving any purchaser possession before he or she pays the last dollar, require months or years of foreclosure proceedings?

Most solicitors would answer “probably not”; but no one was sure.

Now the Court of Appeal holds that not every purchase agreement is an “agreement for sale”. An agreement with one big payment and transfer, intended to close soon, is not an “agreement for sale”, so the unpaid vendor can use any contractual rights to terminate it or have it declared terminated.

Since a foreclosure suit is not then needed, when is it needed? What is the definition or borderline of an “agreement for sale”? It is still not spelled out expressly, but the facts of the recent decision are instructive. There the Court of Appeal points out that its initial sale agreement never was replaced by any formal new agreement for payment over time (¶ 27). And the trial judge in that case says that the vendor was merely patiently accommodating the purchaser’s delays and assurances and promises about closing, and the vendor never waived the initial “time is of the essence” clause (¶’s 38 ff., 52).0

See Kathryn Farms v. 1572548 Alta. 2022 ABCA 21, Calg 2101 0093 AC (Jan 20) (¶’s 21 ff), affg 2021 ABQB 245.

P.S. Sonny Mirth has pointed out that two other earlier decisions on this topic should also be noted: Luscombe v. Mashinter (DC Jan 24) 1978 CanLii Alta 640 (Edm 209947); Greschuk v. Bizon (CA) [1977] 2 WWR 262, 1 Alta LR(2d) 163.

– Hon. J.E. Côté

The Commentaries are intended to call the attention of lawyers to promising or threatening developments in the law, in civil procedure, in developing their skills, or simply to describe something curious, funny or intriguing.

Justice Côté recently retired from the Court of Appeal of Alberta and currently acts as an arbitrator, mediator, or referee under Rules 6.44 and 6.45 of the Alberta Rules of Court.

He may be contacted through Juriliber at email: or phone 780-424-5345.