SUPREME COURT OF Nova Scotia
Citation: Parker v. Burridge Estate, 2019 NSSC 171
Date: 20190611
Docket: ANT No. 429554
Registry: Antigonish
Between:
Manfred Parker
Applicant
v.
The Estate of Stewart Augustus Burridge
Respondent
Decision
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Judge: |
The Honourable Justice Denise Boudreau |
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Heard: |
October 29, 30, 31, November 1, 2018, in Antigonish, Nova Scotia
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Final Written Submissions:
Counsel: |
March 18, 2019
Matthew J. Fraser, for the Applicant John T. Rafferty, QC, for the Respondent |
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By the Court:
[1] Stewart Augustus Burridge of Canso died suddenly on February 25, 2014. A few days prior to his death, on February 23, 2014, Mr. Burridge signed an agreement to sell his fishing enterprise, including a lobster licence, crab allocation, and associated gear, along with his fishing vessel, to the applicant Manfred Parker, for the sum of $350,000.
[2] Following the death of Stewart Burridge, his estate (through his executrix and sole heir, his daughter Rosetta) was advised of the existence of this agreement. The estate has refused to recognize it.
[3] The applicant therefore brings this application for confirmation that the agreement between he and Stewart Burridge was valid, and further seeks an Order enforcing the terms of that agreement, requiring the estate to proceed with the sale.
[4] The respondent estate contests this application, arguing that the agreement should not be enforced. It is the view of the estate that at the time the agreement was signed, Mr. Burridge was suffering from an advanced stage of cancer and did not have the mental capacity to contract for the sale of such valuable assets. The estate further/in the alternative submits that the applicant took advantage of Mr. Burridge’s weakened physical and mental state, in order to obtain valuable assets at a reduced and unreasonable price.
Evidence of Real Parker, Manfred Parker and Rosetta Burridge
[5] Real Parker testified that he is the brother of the applicant, Manfred Parker. In or around July 2013, the applicant began looking for a lobster licence for sale in the 31A (fishing) area. Mr. Parker wanted to help his brother, and felt he could be helpful on the “business” side of things.
[6] Mr. Parker testified that he and the applicant began looking, although they quickly realized that lobster licences were hard to come by. Mr. Parker noted that licences in this area are not normally openly advertised, as they often transferred from parent to child, or from captain to crewmember. The Parkers found little for sale. However, in or about February 2014, Mr. Parker was told by Everett Bouchie that a local fisherman, Stewart Burridge, was interested in selling his licence(s).
[7] Mr. Parker noted that both he and the applicant knew Mr. Burridge from living in the community. The Parkers attended at Mr. Burridge’s home in Canso. Mr. Parker testified that during that visit they discussed the possible sale of Mr. Burridge’s entire operation, including boat, gear, lobster licence, groundfish licence, and crab allocation. Mr. Parker testified that, at this meeting, Mr. Burridge expressed interest in selling, but he wanted to think about it. No price was discussed at that time.
[8] The next day the Parker brothers returned to Mr. Burridge’s home. Mr. Parker testified that, on that occasion, he asked Mr. Burridge if he would accept $350,000 for “everything”. Mr. Burridge replied that he would think about it. Later that day, according to Mr. Parker, Mr. Burridge called the applicant to ask if his interest was in the entire outfit. According to Mr. Parker, the applicant confirmed it was.
[9] Mr. Parker testified that he and the applicant returned to Mr. Burridge’s that evening for another visit and for further discussion.
[10] Mr. Parker, the applicant, and Mr. Burridge then met a third time at the home of Mr. Burridge (no date was given for this visit). Mr. Parker testified that he then asked Mr. Burridge, “So do we have a deal for $350,000?” According to Mr. Parker, Mr. Burridge agreed to that amount at that time.
[11] A few days later, Mr. Parker prepared some documents for signature to give effect to this transfer. On February 23, 2014, Mr. Parker, the applicant, and Mr. Burridge all went to the home of Anthony Baker, another local resident. The documents were signed by Mr. Burridge and the applicant; Mr. Baker witnessed their signatures.
[12] There were two documents signed that day: firstly, an Agreement of Purchase and Sale which read as follows:
I Stewart Burgess Fin# 7-021147-01 of 532 Tickle road Canso Nova Scotia (902-366-2969) agree to the sale of my licences: Lobster #101330 Area 31A, Snow Crab Quota #152743 Area 24, Ground Fish #101330 Area 4vs, 4w, 4x, 5y, Herring #105062 Area 17-21, Mackerel #106511 to Manfred Parker of 850 union street Canso Nova Scotia (902-366-3016) for the agreed selling price of $350,000.oo.
Dated Feb 21 2014 @ 532 tickle road Canso Nova Scotia
Stewart Burgess ____<signed>____________
Manford Parker ____<signed>____________
2013 Gross Stock Vessel Grosstock – 64,000 Lob + 23,000 Crab
Witnessed ______<signed>__________
AREA Gross Stock – Lobster 101,000 + 23,000 Crab (handwritten)
[13] Mr. Parker acknowledged that he had misspelled Mr. Burridge’s name in the document. Mr. Parker testified that this was because, within their community, Mr. Burridge’s name was pronounced “by everyone” as “Burgess”; and was even pronounced that way by Mr. Burridge himself.
[14] There was a second document signed by all that day, a “gift note” again drafted by Real Parker, in specific relation to Mr. Burridge’s boat. Mr. Parker testified that he was concerned that the Nova Scotia Fisheries Loan Board would not loan funds to the applicant for the purchase of a vessel that was over ten years old. Therefore, Mr. Parker felt that in order to expedite this transfer, it would be best to transfer the vessel as a “gift”. The actual document reads:
I Stewart Burgess of 532 Tickle road Canso Nova Scotia am gifting the Lady Rosetta 99 Official, #10114 to Manford Parker of 850 union street Canso Nova Scotia with the purchase of Licenses. Dated Feb 21 2014.
Stewart Burgess ______<signed>_______
Manford Parker ______<signed>________
Witnessed _______<signed>_______
[15] Mr. Parker testified that during all of these discussions, in his view, Mr. Burridge was of sound mind, although Mr. Parker was aware that Mr. Burridge was ill with cancer. Mr. Parker further testified that neither he nor the applicant exerted any pressure or coercion on Mr. Burridge during these proceedings.
[16] After these documents were signed, Mr. Parker testified that he went on to make efforts to complete the remaining paperwork, required by the federal and provincial governments, in order to effect the transfer. One of those documents was a business plan (required for financing), which required a valuation of all the assets sold/purchased. Although the document was signed by the applicant, Mr. Parker confirmed that he himself was the person who provided the estimates that were listed in the document:
Lady Rosetta (vessel) $25,000
Lobster $250,000
Crab (Snow) Quota $145,000
Long Line $15,000
Lobster traps – number
280 + lines + buoys $26,600
Other fishing gear
Mackerel nets $800.00
[17] In relation to the crab allocation, in particular, as well as some of the other assets, Mr. Parker testified that he overvalued these on purpose, in order to strengthen the application for the financing. The loan was approved in May 2014.
[18] Following the death of Stewart Burridge, Mr. Parker testified that he waited a short period of time, and then approached Mr. Burridge’s daughter, Rosetta Burridge, to discuss the finalization of the sale of the fishing business. At that time, Ms. Burridge told Mr. Parker that she would not honour the agreement. Since that time, in fact, Ms. Burridge has designated an operator to fish the licence.
[19] The applicant testified that he has been a fisherman since 1975. He confirmed his longstanding wish to become a licence owner, and further confirmed the events leading to the agreement between he and Mr. Burridge in February 2014. The applicant testified that after a few meetings with Mr. Burridge, an agreement was reached for the selling price of $350,000. The applicant further confirmed the meeting where the documents were signed, and that Mr. Burridge in his view was “alert”; further, that no pressure or coercion was applied to Mr. Burridge.
[20] Rosetta Burridge testified that she is the only child of Stewart Burridge, and is the administrator of his estate. She resided in Canso with her parents during her childhood, but soon after high school (and some further education) Ms. Burridge moved to Alberta where she lived until 1997. She then moved to British Columbia, and continued to live there until the time of her father’s death, following which she moved back to Canso. She has remained there since.
[21] Ms. Burridge testified that her father was an alcoholic all his life. She testified that her mother died in 2005 and, after that point, her father’s situation deteriorated; in her view, he did not care for himself very well.
[22] Ms. Burridge advised that during her time in Western Canada, she spoke by phone with father every few days, and that she would come home three or four times a year (although at times the family would gather at their property in Newfoundland). Ms. Burridge further noted that her father’s fishing boat was purchased in 1999, and it was named the “Lady Rosetta”. Ms. Burridge notes that this name was in her honour.
[23] In February 2014, Ms. Burridge testified that her conversations with her father became more frequent. She also noticed that her father was having trouble communicating because of the cancer in his tongue. She also noticed that he would ask the same questions repeatedly.
[24] Ms. Burridge was aware that her father was to start radiation treatment for his cancer on February 24, 2014. She therefore made arrangements to leave British Columbia on February 25, 2014, in order to be present for the treatments.
[25] Ms. Burridge testified that she last spoke to her father on February 25. She described his speech at that time as unintelligible, he was only “grunting”. Later that day, Ms. Burridge received a call from the doctor who told her that her father’s radiation treatment could not proceed, and that palliative care was now being provided. Mr. Burridge died later that same day.
[26] Ms. Burridge then travelled to Nova Scotia and attended her father’s home in Canso. She testified that, in her view, the house was in deplorable shape. There was no food in the fridge, there were no pills in any of the pill bottles. She found multiple empty liquor bottles, and she found the home very dirty. Ms. Burridge provided the Court with some photographs of the home (although it was noted that none of the photographs show liquor bottles; Ms. Burridge indicated that, for some reason, she removed those prior to taking the photographs). Ms. Burridge expressed being very upset at the thought that her father had been living in that home.
[27] Ms. Burridge testified that while making funeral arrangements for her father, she was visited at the home by Real Parker and the applicant, who advised her of the deal for the sale of her father’s fishing enterprise. She told them to leave. She was, and continues to be, of the view that this agreement is invalid and should not be enforced.
[28] She confirmed that she since her father’s death, she has fished her father’s licence with a captain and crew.
[29] The Court heard from a number of other witnesses who gave evidence relevant to various specific issues raised by one or both of the parties. I will be addressing evidence of these other witnesses within the context of each issue.
Issues Raised by Respondent
[30] The respondent argues that this agreement should not be binding upon the estate for a number of reasons:
1. That Stewart Burridge did not have the mental capacity to enter into such a contract, at the time it was made, due to his illness;
2. That even if the Court finds that Mr. Burridge had the mental capacity to contract, that it should exercise its discretion and refuse to uphold the contract due to breaches of equitable principles such as undue influence; suspicious circumstances; unconscionability; and/or misrepresentation; and
3. That specific performance of the agreement should not be granted as the applicant has not come to court with “clean hands”.
[31] I shall deal with each of these submissions, in that order, in this decision.
[32] Prior to that, I further note that in her Notice of Contest, the respondent had raised some issues that were not argued or referred to in her brief (non est factum; contra proferentum; contract being vague, uncertain and/or ambiguous); therefore, I consider those arguments abandoned.
[33] Furthermore, in her written submission the respondent briefly raised a few additional issues relating to the contract itself. Firstly, the respondent submits that this contract is unenforceable since it is for the “sale of fishing licence” when in fact only Department of Fisheries and Oceans (DFO) can approve the transfer of a fishing licence. Secondly, the respondent points out that this sale was without a closing date; and that such, coupled with a need for financing, might unduly delay its execution, to the point of relieving the respondent from respecting the contract.
[34] These arguments were raised in summary fashion by the respondent, and were not fleshed out to any extent. In my view, they are easily dealt with.
[35] Obviously the “sale” of a fishing licence is, of necessity, subject to DFO approval. Clearly if any such sale was not approved by the appropriate authorities, the contract for that sale would fail. I see no reason to believe that such would occur in this case. As to the closing date, again, nothing before me would cause me to believe that this contract would fail to be executed within a reasonable time.
Mental Incompetence to Contract
[36] This is the respondent’s primary submission: that at the relevant time, Mr. Burridge was not mentally competent to enter into a contract of such a serious nature, that is, the sale of his fishing enterprise. The test for mental competence to contract was discussed in Bank of NS v. Kelly [1973] PEIJ No. 7:
4 The general rule, as I understand it, as to the contract of a mentally incompetent person, who by reason of his mental state is unable to understand its terms or of forming a rational judgement of its effect upon his interests is that such a contract is voidable at his option but only if his defective mental state is known to the other party. [See: Kerr v. Petrolia (1921) 51 O.L.R. 74; Hickman v. King (1869) 12 N.B.R. 336; Conrad v. Halifax Lumber Co. (1918) 52 N.S.R. 250]
5 The contract of a mentally incompetent person is not void per se, but only voidable on its being shown that the other party had knowledge actual or constructive of such mental incompetency failing which such contract if fair and bona fide is binding [See: Fyckes v. Chisholm (1911) 3 O.W.N. 21; and Imperial Loan Co. v. Stone [1892] 1 Q.B. 599]
[37] And also in Fowler Estate v. Barnes [1996] N.J. No. 206:
25 A contract or deed purportedly entered into by a mentally incompetent person is voidable at the option of that person or somebody acting on his or her behalf, if the following conditions can be established:
(1) That at the time of execution, she was mentally incompetent;
(2) By reason of such mental incompetence, she was not capable of understanding the terms of the document and of forming a rational judgement of its effect upon her interests; and
(3) The other party had knowledge, actual or constructive, of such mental incompetence.
[38] As a first step, the person claiming incompetence of a party to a contract bears the burden of showing that such is the case. The respondent would need to establish that Stewart Burridge was mentally incompetent to enter into a binding agreement to sell his fishing enterprise in February 2014.
[39] Furthermore, if this is made out, the Court must then consider whether that incompetence prevented Mr. Burridge from understanding the agreement, and of forming a rational judgment about it.
[40] Finally, I must question whether the applicant had knowledge of such incompetence, either actual or constructive.
Medical Evidence
From the medical reports provided (Joint Exhibit Book 1), I glean the following:
1. Mr. Burridge was an inpatient at local hospitals from December 19, 2013 to January 2, 2014 and again from January 5 - 9, 2014. He presented with difficulty swallowing. During his time in hospital and through testing, he was diagnosed with cancer of the larynx which had spread to the base of the tongue and left submandibular gland. The tumour was noted to be very large;
2. During the period Mr. Burridge was home, he was prescribed various medications, including hydromorphone and apo-ketorolac;
3. Mr. Burridge met with oncologist Dr. Hollenhorst on January 21, 2014, at which time it appears a treatment plan of radiation over seven weeks was suggested and agreed upon by Mr. Burridge;
4. Mr. Burridge arrived at the hospital in Halifax for the start of his radiation treatments on February 24, 2014. Unfortunately, the treatment could not proceed, as complications arose with Mr. Burridge’s airway;
5. Mr. Burridge died (unexpectedly) at the hospital in Halifax on February 25, 2014 at approximately 6:45 p.m.
[41] In regard to medications, the respondent notes that according to the amount of pills provided by the prescriptions, as well as the date(s) they were filled, they should have lasted well beyond Mr. Burridge’s trip to the hospital on February 24. However, following the death of Mr. Burridge, his daughter Rosetta noted that while she found pill bottles in his home, all of them were empty.
[42] I was provided with a report from Dr. Helmut Hollenhorst, radiation oncologist, dated April 20, 2018. Dr. Hollenhorst was asked to review Mr. Burridge’s medical charts and opine as to Mr. Burridge’s capacity to contract from February 18 - 21, 2014. Dr. Hollenhorst offered the following:
Mr. Burridge, a 67 year old gentlemen was diagnosed with an advance head and neck cancer (stage IVA). At the time of his initial consultation on January 21, 2014, his general performance status and stage of disease determined that he was not a candidate for surgery. He however was still a candidate for radiation therapy and possible chemotherapy in potential curative intent (20-30%) despite his general poor performance status. He has been a heavy smoker and drinker, he was known to have gastroesophageal reflux diseases and he was also known to not seek medical attention for any health issues he may have had.
He was taking a number of medications, including those that could have an impact on his mental capacity like lorazepam, however, clinically there were no severe interactions or mental deficiencies noted. After thorough assessment and discussion of the proposed treatment Mr. Burridge consented to go ahead with treatment planning.
The next time Mr. Burridge was seen in the cancer center, on February 24, 2014, his condition had significantly worsen, as documented in multiple assessment tools on his chart. In fact, his performance status was so poor, that he could not proceed with the outlined plan for treatment, his condition kept getting worse within a very short time period to the point where Mr. Burridge passed away on February 25, 2014, only one day after his admission to the hospital.
Without any doubt the decline in his physical and mental health must have occurred over time, since he was last seen on January 21, 2014, as there was no other acute event encountered that would suggest otherwise to explain the change in his physical and mental performance status.
These changes must have been very significant for at least the preceding month. In more detail the following findings were documented at the time of his admission on February 24, 2014:
- Patient not capable of managing treatment as an outpatient
- 9% weight loss, unable to manage his own secretions, unable to maintain oral intake, requiring nutritional support
- Frequent coughs, sputum green and blood
- Difficulties coping with the illness, overwhelmed by present circumstances
- Does not listen to his caregivers
- Suicidal thoughts
- Severe confusion and disorientation for weeks
- Not capable of moving around by himself, unsteady gait, high risk for falls
- Moderate risk for developing pressure ulcers
- Significant difficulties in understanding the situation, resistance to accept help
In addition to the physical and mental decline Mr. Burridge was under the influence of heavy pain killers and tranquillizers which may have possibly caused moderate to severe side effects (see attachment 1 for details):
Drowsiness, dizziness, tiredness, blurred vision, insomnia, muscle weakness, lack of balance and coordination, amnesia, forgetfulness, trouble concentrating, confusion, mood changes, spinning sensations, personality changes, psychic disorders, anxiousness, hallucinations. Many of these side effects could be caused by multiple medications Mr. Burridge was taking, aggravating the symptoms.
Considering all the above listed factors, including Mr. Burridge’s advanced stage of cancer, his past history of being a long term smoker and drinker who only very rarely did seek medical attention, which made him a borderline candidate for any treatment to start with; considering the rapid decline in his physical and mental health over a one month period between January 21, the day of initial consultation and February 24 of 2014, the day of admission to hospital, and considering the fact of Mr. Burridge being under the influence of strong pain killers, tranquillizers and other medications, provide evidence for a very high likelihood, if not undebatable certainty, that at the time when Mr. Burridge entered a contract, he lacked mental capacity to enter this contract and his poor strength or will, or susceptibility to persuasion such that he entered an agreement he would not otherwise have done.
[43] I was also provided with evidence from Dr. Dominique Bourget, a forensic psychiatrist at the Royal Ottawa Mental Health Centre. She also reviewed medical records for Mr. Burridge and provided a report. She specifically disagreed with Dr. Hollenhorst’s conclusions:
Dr. Hollenhorst provided an opinion where he considered medical information but his conclusion that Mr. Burridge lacked the capacity to enter a contract is not supported by the evidence at hand. When Dr. Hollenhorst, a radiation oncologist, met for the first time with Mr. Burridge on January 21st, 2014, he deemed his patient was capable to make treatment decisions, a process that requires understanding, analysing, and decision-making capacity. In the interim period between January 21st and February 24th, 2014, at which time Mr. Burridge was admitted for his treatment, there was no contact between Dr. Hollenhorst and Mr. Burridge that could have allowed a timely assessment of capacity. Dr. Hollenhorst provided his comments on “probable” mental capacity of his deceased patient 4 years after his last contact with him. There is nowhere in the clinical file where he documented any observation on mental incapacity with respect to Mr. Burridge. The extent of the confusion noted in the medical record is also not known prior to February 24th. It was also noted to be occasional. It appears, from the records, that Mr. Burridge was able to consent to his admission of February 24th, as there is no documentation to the contrary (i.e. did not need to be admitted involuntarily or under substitute decision-maker consent).
In medical practice, there is a presumption of capacity to make a decision until it is established that the person cannot. The principles are to protect individual autonomy and preserve freedom of choice. An unwise or risky decision does not mean an adult is unable to decide for themselves.
To establish incapacity requires a careful assessment of the person and of the capacity at play, since each specific capacity requires distinct abilities and skills. Competency is not viewed as a global characteristic and is situation dependant. A person may be competent for one type of decision but not another. Each capacity with respect to a specific task must be assessed independently. Mental capacity to contract follows similar principles to other types of capacity where the person must be capable to understand the nature of the contract and the consequences of making a decision. It is also important to note that the level of capacity may fluctuate and that capacity may need to be assessed at different times. There is nothing in the records that provides any insight as to whether Mr. Burridge may not have been competent to enter into a contract.
With regards to the medication Mr. Burridge was prescribed, Dr. Hollenhorst provided a list of home medications but makes no mention of the dosage and frequency. I reviewed the attachment to Dr. Hollenhorst’s report, which lists monograph’s or instructions to patient pamphlets with possible side effects to several medications. The occurrence of the vast majority of the listed side effects is rare, as stated in those documents. In fact, it would be very unlikely for medications such as rabeprazole (inhibitor of gastric acidity), sulfa/trimethoprim (antibiotics), furosemide (diuretic), vitamin B12, or Tylenol to cause mental confusion to the point of rendering a person incapable of decision-making. In any event, it appears that Mr. Burridge was already taking these medications at the time of the first consultation, including low dose of lorazepam and dexamethasone, and he was found capable to understand and provide informed consent as to his future treatment. We have no specific information as to the amount of hydromorphone contin he may have taken to combat pain and whether this may have contributed to occasional confusion, which in itself would not necessarily equate to incapacity to make decisions, from a psychiatric perspective.
For all the above reasons, I disagree with the opinion rendered by Dr. Hollenhorst. I am of the view that Dr. Hollenhorst failed to perform any clinical testing in 2014, to support a finding of Mr. Burridge being incompetent or susceptible to influence of others. The medical file refers to Mr. Burridge as strong willed, moody, irritable, and occasionally confused, none of which could lead Dr. Hollenhorst to conclude with “undebatable certainty” that Mr. Stewart Burridge lacked capacity to sign a contract. Chart notes that suggest confusion were based on the comments of family members or his partner Celine; they were not based on any psychiatric assessment or mental status examinations performed by Dr. Hollenhorst.
[44] It must be understood that neither expert actually assessed Mr. Burridge’s mental status while he was alive. Both have simply reviewed medical charts and have provided their opinions on that basis. Therefore, in my view, neither report is entirely determinative of the issues before me.
[45] Having said that, it must be acknowledged that the issue of mental functioning or psychiatric analysis is the area of Dr. Bourget’s specialty. Dr. Hollenhurst, while obviously quite knowledgeable in his field of oncology, does not have any expertise in mental health or psychiatry. For that reason alone I would be inclined to place more weight on Dr. Bourget’s opinion as to Mr. Burridge’s cognitive functioning.
[46] Furthermore, there are certain deficiencies with the opinion put forward by Dr. Hollenhorst. His discussion related to medications is not entirely helpful, since we do not know the dosage Mr. Burridge was taking at any relevant time; nor, in fact, do we know that he took them at all. The list of “possible” side effects, as noted by Dr. Bourget, is certainly not evidence that Mr. Burridge experienced any of these symptoms.
[47] Mr. Burridge was taking some or all of these medications in January as well. While it appears that Mr. Burridge’s physical health deteriorated from January to February, his mental deterioration is less clear.
[48] The fact that Mr. Burridge, for example, showed resistance to accepting help, or felt overwhelmed by a cancer diagnosis, is not necessarily evidence that he was mentally incompetent. One could perhaps infer, that since Dr. Hollenhorst and hospital staff accepted Mr. Burridge’s consent to medical procedures in both January and February, they did not identify any significant concerns with his mental status at the relevant times.
[49] In the final analysis, I cannot place much, if any, weight on Dr. Hollenhorst’s opinion as to Mr. Burridge’s mental capacities. The opinion is simply too hypothetical, and not sufficiently grounded in any real facts or analysis. In the simplest of terms, I must say that I agree with the concerns raised by Dr. Bourget about Dr. Hollenhorst’s conclusions.
[50] I was provided with evidence from lay witnesses, who purported to opine as to their impressions of Mr. Burridge’s mental capacity during the relevant times. Although obviously none of these people are experts capable of saying whether Mr. Burridge was of the mental capacity to be able to contract, they testified as to their observations of Mr. Burridge’s day to day functioning and general demeanor.
[51] Everette Bouchie testified that he was a friend of Stewart Burridge. In the late fall of 2013, Mr. Burridge told him he was interested in selling his fishing licence and retiring, and asked if he knew anyone looking to buy. Mr. Bouchie knew the applicant was interested. He told Real Parker to give Mr. Burridge a call.
[52] Mr. Bouchie testified that although he knew that Mr. Burridge had cancer at this time, he found Mr. Burridge to be “of sound mind”. Again, this is entirely a lay opinion.
[53] Patricia Rhynold and Virginia Boudreau are/were both employees of the Guysborough County Inshore Fishermen’s Association. They were both, also, friends of Mr. Burridge. Both Ms. Rhynold and Ms. Boudreau testified that they always found Mr. Burridge to be of sound mind; they indicated that he would sometimes stop by the office to chat with them. It is unclear to me when their last interaction with Mr. Burridge would have been.
[54] Robert Jamieson testified that he was a crew member for Mr. Burridge from 2010 until his death. He considered Mr. Burridge a good friend. Mr. Jamieson agreed that Mr. Burridge was an alcoholic.
[55] Mr. Jamieson described concerns he had about Mr. Burridge during February 2014. He described speaking to Mr. Burridge on February 21, 2014; Mr. Burridge on that date seemed confused. Mr. Jamieson had previously been told that Mr. Burridge had been at a certain location the day before, and asked Mr. Burridge about that; Mr. Burridge denied being there. On February 22, 2014, Mr. Jamieson went to visit Mr. Burridge and found him lying on the couch, which Mr. Jamieson found very unusual; also, when asked, Mr. Burridge did not recall seeing Mr. Jamieson the previous day.
[56] Mr. Jamieson further testified that, during that February 22 visit, Mr. Burridge told him they would start “working on the fishing gear” when Mr. Burridge got back from the hospital.
[57] I found Mr. Bouchie, Ms. Rhynold, Ms. Boudreau, and Mr. Jamieson all to be reliable and credible witnesses on these issues. None of them have any interest in this proceeding and nothing was raised which would cause me to doubt their credibility or reliability.
[58] Anthony Baker testified to being a longtime good friend of Stewart Burridge. Mr. Baker was, in fact, the witness to the agreement signed on February 23 at his home. Mr. Baker testified that during the signing of the agreement, Mr. Burridge seemed alert and his usual self. The document was read to Mr. Burridge (sitting at the kitchen table) by Real Parker (half kneeling by Mr. Burridge); also present were the applicant (standing over by the counter), Mr. Baker, and Celina (who did not participate).
[59] Mr. Baker testified that he was aware Mr. Burridge was interested in selling his fishing enterprise during this time, due to his health. Mr. Baker testified to his belief that Mr. Burridge willingly sold his enterprise at that time, and that the Parker brothers put no pressure or influence on him. Mr. Parker disagrees with Rosetta Burridge’s claim that Mr. Burridge was not of sound mind during his last few months of life.
[60] Mr. Baker testified that he drove Mr. Burridge to the hospital in Halifax on February 25, 2014, in order for him to undergo cancer treatment, and that while Mr. Burridge’s speech was not 100% at that time, he could still communicate.
[61] The respondent argued that Mr. Baker’s demeanor before the Court should be taken into account as affecting the strength of his testimony. In my view, while Mr. Baker was a somewhat aggressive and impatient witness, this did not materially affect his credibility.
[62] Mr. Baker, also, appeared to be supportive of the applicant’s position. That does not affect his credibility either; that is simply his opinion. Mr. Baker had no interest in this proceeding or its outcome. I consider his evidence to be credible.
[63] Real Parker testified that during his discussions with Mr. Burridge, he appeared to be of sound mind, although Mr. Parker was aware that Mr. Burridge was sick with cancer. The applicant agreed with that assessment. Although the applicant (and perhaps Real Parker) could be said to have an interest in these proceedings, I see no reason to disbelieve their evidence. It is corroborated by others who observed Mr. Burridge in person during the relevant times.
[64] Rosetta Burridge (the only child of Stewart Burridge) testified that she was residing in British Columbia in late 2013 and early 2014. Her communication with her father was mainly by telephone during those years. It was not clear to me how often Ms. Burridge spoke to her father from November 2013 to January 2014. However, by February 2014, Ms. Burridge noticed that her father was having great trouble communicating with her because of the cancer in his tongue. She also noticed that he would ask the same questions repeatedly.
[65] Ms. Burridge testified that she was aware that her father was to start radiation treatment on February 24, 2014. She testified that her father was aware of her upcoming visit, and they would often talk about it during their telephone conversations.
[66] Ms. Burridge testified that she last spoke to her father on February 25. She described his speech during that call as unintelligible, he was only “grunting”.
[67] Ms. Burridge followed through with her planned travel to Nova Scotia after her father’s death, and attended her father’s home in Canso. She testified that in her view, the house was in deplorable shape. There was no food in fridge, there were no pills in any of the pill bottles, she found multiple empty liquor bottles, and she found the home very dirty.
[68] David Bishara is a marine broker, who had heard that Mr. Burridge was interested in selling his fishing enterprise, and attended at Mr. Burridge’s home approximately two weeks before his death. Mr. Bishara testified that on that occasion Mr. Burridge’s house was a mess; there were people in the home drinking alcohol. Mr. Bishara noted that Mr. Burridge appeared to be in pain. Mr. Bishara testified that Mr. Burridge expressed wanting the most he could get for his fishing licences and gear “for the benefit of his daughter”.
[69] The Court’s first task is to assess all of this evidence relating to Mr. Burridge’s mental or cognitive state, to determine whether he had the capacity to contract in late February 2014; keeping in mind that the onus is on the party who claims incompetence (in this case, the respondent).
[70] On February 23, 2014, Mr. Burridge was ill with cancer. Obviously, that fact does not automatically render him mentally incompetent to contract.
[71] For the reasons I have already provided, I do not consider the opinion of Dr. Hollenhorst to be determinative of the issue either.
[72] The lay witnesses’ evidence, while useful, does not definitively establish anything. For the most part, the lay witnesses found Mr. Burridge to be lucid and “his normal self”. Of course, I note the evidence of Mr. Jamieson, who testified that Mr. Burridge was forgetful or distracted during February 2014; but that is a far cry from incompetence. Let us remember that Mr. Burridge had much to contend with during that time: his recent diagnosis of cancer; the associated symptoms; his upcoming radiation treatments; the sale of his business; and so on.
[73] Furthermore, I can easily accept that Mr. Burridge was having difficulty speaking in February 2014, as was testified to by various witnesses. However, that is not evidence of mental incapacity either. By that point, Mr. Burridge was living with a very large tumour at the base of his tongue. I am entirely unsurprised that Mr. Burridge was having difficulty speaking, and/or having difficulty controlling his saliva. But such physical observations do not lead me to the conclusion that Mr. Burridge’s mental capacities were affected.
[74] Obviously, we cannot and must not jump to the conclusion that a person, simply because s/he is ill, cannot make decisions for him/her self.
[75] The onus of showing mental incapacity on the part of Stewart Burridge is, in this case, on the respondent. In the final analysis, I find that the respondent has not met her onus. I simply cannot conclude, on the basis of what is before me, that Stewart Burridge was mentally incompetent at the time of the contract between himself and the applicant.
[76] Furthermore, even if I am incorrect about that, it is also clear to me that the respondent has not met the third branch of the test: that is, whether the other party had knowledge, actual or constructive, of such mental incompetence. There is nothing before me to show that the applicant either knew Stewart Burridge was mentally incompetent to contract, or should have known.
Undue Influence
[77] It is the contention of the respondent that the applicant exercised undue influence over Mr. Burridge: that is, that he (and/or others on his behalf) exerted pressure over Mr. Burridge in circumstances where Mr. Burridge was prevented from exercising independent judgement:
“The use by one contracting party of any form of oppression, coercion, compulsion or abuse of power or authority for the purpose of obtaining the consent of the other party may result in avoidance of the resulting contract on the ground of undue influence. For this to occur it is insufficient to prove mere persuasion; the influence exercised on the victim must amount to coercion.” Law of Contract in Canada, Fridman, p. 312.
[78] The caselaw asserts that “undue influence” can either take the form of “actual” influence, involving the use of pressure of coercion; or influence can be presumed, in cases of relationship of trust between parties (for example, family relationships, doctor/patient relationships, and so on) (Allcard v. Skinner (1887) 36 Ch. D. 145). In the case at bar, there has been no suggestion that the relationship between the applicant and Mr. Burridge was one of trust. In such circumstances, actual influence must be shown:
[39] If the facts fall within the first class of cases mentioned by Cotton, L.J., in Allcard v. Skinner, it is necessary for the party seeking to set aside the transaction to establish on a balance of probabilities not only that the other party had the opportunity to exercise undue influence but also that that opportunity was exercised: Bishop v. Fleet (1989) 76 Nfld. & P.E.I.R. 197 at p. 211; Campbell v. Campbell, supra. (Fowler Estate v. Barnes [1996] N.J. No. 206)
[79] As noted in Bank of NS v. Kelly [1973] PEIJ No. 7, undue influence requires a consideration of the “fairness” of a transaction:
8 However, it is my view that fairness of the transaction is material not in a case such as this where the defence is that there is mental incompetence amounting to incapacity to contract known to the other party, but only in cases where there is a lesser degree of mental incompetence (not amounting to incapacity to contract) of which the other party has taken advantage. In a case where the defence of mental incapacity is defeated by failure to establish knowledge of the other party, fairness may only be relevant where the Defendant pleads undue influence or fraud. If the defence of insanity is established the fairness or unfairness of the bargain may well be immaterial…
[80] Although fairness must be considered, it would not be enough to show that a party has made a “bad bargain”. As noted by Fridman in Law of Contract in Canada, at p. 312:
…But courts will not relieve a party from his contractual obligations merely because the party in question has been foolish. Some unconscionable conduct by the other party must be shown. (p. 318)
[81] It is a fact that when Real Parker and the applicant discovered that Mr. Burridge was interested in selling his fishing enterprise, they wasted no time in approaching him. Both Mr. Parker and the applicant knew Mr. Burridge, from living in the community. They attended at Mr. Burridge’s home in Canso to discuss the possible sale of Mr. Burridge’s entire operation. Mr. Burridge expressed interest in selling, but he wanted to think about it. No price was discussed at that time.
[82] The next day, the Parker brothers returned to Mr. Burridge’s home. Mr. Parker testified that, on that occasion, he asked Mr. Burridge if he would accept $350,000 for “everything”. Mr. Burridge replied that he would think about it. Later that day, Mr. Burridge called the applicant to inquire about some details. Real Parker and the applicant returned to Mr. Burridge’s that evening for another visit and further discussion.
[83] Real Parker, the applicant, and Mr. Burridge then met a third time at the home of Mr. Burridge. At that time Mr. Parker asked Mr. Burridge, “So do we have a deal for $350,000?” According to Mr. Parker, Mr. Burridge then agreed to that amount.
[84] A few days later, Mr. Parker prepared some documents for signature. On February 23, 2014, Mr. Parker, the applicant, and Mr. Burridge went together to the home of Anthony Baker, another local resident. The documents were signed and Mr. Baker witnessed their signatures.
[85] The witnesses to that meeting were Real Parker, the applicant, and Anthony Baker. All agree that while Mr. Burridge was somewhat frail physically, he was still “himself”. He had difficulty speaking but could be understood. Neither the Parkers, nor Mr. Baker, held any authority or influence over Mr. Burridge that I am aware of.
[86] The respondent points to the “quick” nature of this transaction as evidence of pressure, as well as the fact that Mr. Burridge was by then quite ill, living with a large cancerous tumour.
[87] While this transaction happened quickly, I do not necessarily accept that the Parkers took advantage of Mr. Burridge. All the evidence shows, in my view, is that the Parkers made him an offer which, after a few days, Mr. Burridge accepted.
[88] There may be all manner of reasons why Mr. Burridge accepted the offer of the applicant at that time. Perhaps he was interested in selling quickly, to ensure that the money would be available as soon as possible. Perhaps he wished to sell to the applicant in particular, or perhaps he wished to sell to a resident of Canso in particular. We cannot know what was in Mr. Burridge’s mind; all I can assess is the evidence I have. There is, quite simply, no evidence before me of “oppression, coercion, compulsion or abuse of power or authority”, and nothing that would have overwhelmed Mr. Burridge’s ability to exercise independent judgment.
[89] I turn to the issue of the “fairness” of the deal.
[90] I heard evidence from various witnesses, in an effort to approximate the fair market value of Mr. Burridge’s fishing enterprise in February 2014.
[91] Berkley Dixon is a lobster fisherman in Canso. He testified that he used to own an Area 24 crab allocation. He sold it in the summer of 2013 for $100,000.
[92] Shane MacDonald is a lobster fisherman (Area 31A) from Dover, in Nova Scotia. Mr. MacDonald purchased his lobster fishing enterprise, including licence, boat, and gear, in July 2014 for $260,000. The enterprise he purchased did not include an Area 24 snow crab allocation.
[93] Following a voir dire as to his experience, I qualified Mr. MacDonald to give opinion evidence as to the valuation of certain fishing assets, in particular, the fair market value of a district 31A lobster licence enterprise, including a boat, with attached Area 24 crab licence allocation, in February 2014.
[94] Mr. MacDonald testified that in the approximately eight years prior to his 2014 purchase, he did extensive research as to fishing enterprises for sale in the areas of Eastern Guysborough County, including lobster licences and/or crab allocations. Mr. MacDonald confirmed that such fishing licences in this area are rarely put on the open market; they are normally transferred to family, friends, or crewmembers. Mr. MacDonald opined that, in his view, based on the research that he did, the price of $350,000 for Mr. Burridge’s entire enterprise in February 2014 would represent fair market value for those assets at that time.
[95] Mr. MacDonald agreed that he was neither a marine broker, nor had he taken any courses in marine evaluation. However, as a local person involved in the local fishing industry for 20 years, he knows the area and its residents. He noted that the people involved in the fishery in Area 31A (of which Canso is included) are “old school”; they are not apt to use the internet or brokers for their sales. He noted that these communities are very “tightly knit” and that deals are made “fisherman to fisherman”.
[96] Mr. MacDonald was of the further view that “fair market value” would not be the same as the “open market value”. He noted that, in his experience, licences for sale on the open market often result in bidding wars, which artificially inflate the price of the licence beyond its true value. He also noted that brokers charge commissions, which also means an increase in price. As a result of all this, it is Mr. MacDonald’s view that his opinion as to price would be more reliable than that of a broker.
[97] I have some reservations about Mr. MacDonald’s opinion evidence. I do appreciate that he did extensive research in the area of the selling price of lobster and crab licences and associated gear in the eight years preceding 2014; however, he did not provide me with any examples of other prices that he became aware of during that time. In other words, although Mr. MacDonald affirmed that the $350,000 price offered to Mr. Burridge was fair, he did not give me any other examples (other than his own purchase) that would allow me to assess that conclusion. Therefore, it is difficult for me to determine what weight to give Mr. MacDonald’s opinion.
[98] Having said that, I do accept that as a long-time local fisherman, who actively sought his own lobster/crab enterprise from 2006 to 2014, he would be intimately aware of the local market. I also accept that, due to his particular circumstances, he might very well be more knowledgeable than a marine broker, particularly one from outside the area. Therefore I do give some weight to his opinion that $350,000 was not unreasonable as a value.
[99] Quite apart from Mr. MacDonald’s opinion, it is a fact that he bought a similar fishing enterprise (excluding the crab licence), in the same fishing area, for $260,000. This purchase occurred only a few months after the transaction between Mr. Burridge and the applicant. That is a significant and important point in my view. When one couples that with the evidence of Mr. Dixon, it provides significant support for the suggestion that the $350,000 figure in the case before me is not unreasonable.
[100] Witness Jamieson Theriault was qualified as an expert in the field of estimating fair market value of marine assets, comprising a fishing enterprise with licences for lobster, crab, groundfish, herring, mackerel, bait and boat. Mr. Theriault is based in Digby Nova Scotia.
[101] Mr. Theriault testified that, in his opinion, Mr. Burridge’s enterprise was worth a total of $577,679 as of February 1, 2014. He came to this conclusion by breaking down a value for each portion of Mr. Burridge’s assets.
[102] It must be said that in the case of the physical assets (the boat and gear), Mr. Theriault provided very careful and evidence-based estimates. In the case of the licences, however, Mr. Theriault’s opinion is based on less information. As to the lobster licence, he believes it to have been worth $350,000 in February 2014. This opinion is based on conversations with two local fishermen (one unidentified), as well as listings he found with brokers. The crab licence he estimated being worth $150,000; the groundfish licence, $15,000; and the herring and mackerel licences, $6,000. Again, these estimates were largely based on conversations with fishermen.
[103] As to these licence estimates, Mr. Theriault’s methodology is not different than Mr. MacDonald’s. In fact, Mr. Theriault confirmed that, in his view, such is an excellent way to get any true sense of the value of a licence:
While “wharf talk” with an unidentified fisherman may seem like an odd valuation tool, it has been my experience that information from fishermen in the field is invaluable in determining the true value of commercial fishing licenses…
[104] All things considered, I would have to give Mr. MacDonald’s opinion somewhat more weight, given that he is a local person with a more intimate knowledge of the local industry.
[105] David Bishara is a marine broker, who was also qualified to give opinion evidence in the same areas as Mr. Theriault. Mr. Bishara acts as a sales agent for the sale of fishing licences, boats, and gear. He works in Yarmouth.
[106] Mr. Bishara testified that he heard, in February 2014, that Stewart Burridge was interested in selling his enterprise. Mr. Bishara met with Mr. Burridge on February 3, 2014, and this was discussed. Mr. Bishara suggested to Mr. Burridge a listing price of $600,000, but said he would do more research in the area. Mr. Bishara then left paperwork with him.
[107] Mr. Bishara was of the view that Mr. Burridge’s lobster licence alone was worth $350,000 to $375,000. Mr. Bishara noted that he was involved in a sale in that same area in 2014 for lobster and groundfish licence, for the price of $380,000 (the groundfish licence would be worth $10,000 to $15,000).
[108] Mr. Bishara testified that Mr. Burridge eventually told him that he wanted to sell. Mr. Bishara returned to Mr. Burridge’s home to visit him; this occurred approximately two weeks before his death. Mr. Bishara testified that Mr. Burridge expressed wanting the most he could get for the benefit of his daughter. Mr. Bishara testified that he and Mr. Burridge agreed to list the enterprise for $700,000. However, this listing agreement was never signed.
[109] Mr. Bishara was of the opinion that a fair market value for the fishing enterprise of Mr. Burridge in 2014 was between $550,000 and $650,000. He pointed to other sales: in 2014, a small older vessel and groundfish licence - $420,000; also in 2014, a similar enterprise (but with a larger vessel, 40’) sold for $600,000. Mr. Bishara further noted that his office received an offer for Mr. Burridge’s enterprise of $575,000, without it ever being listed on the open market.
[110] In the final analysis, it appears that a fishing licence is an asset that is difficult to value, by any measure. It is subject to many variables, some directly related to the asset, some more remote.
[111] For example, it is significantly affected, in this particular fishing area, by the fact that owners normally sell their enterprises privately. I accept Mr. MacDonald’s evidence that fishermen in Area 31A are not prone to the use of brokers, or the “open market”, to sell their licences. This would seem counterintuitive, since Mr. MacDonald also acknowledges that an open market sale would typically result in a higher sale price. Despite that, it appears that in Area 31A, people still prefer to sell through word of mouth, or to family or friends. This will result in lower sale prices, which affect values.
[112] In the final analysis, I accept that a broker clearly would have valued Mr. Burridge’s assets at a higher price, and would have listed them at a higher price on the open market. Furthermore, there is certainly a possibility, perhaps even a probability, that had Mr. Burridge listed with a broker, he would have obtained a higher sale price.
[113] However, this asset belonged to Mr. Burridge, to do with as he pleased. He was aware of Mr. Bishara’s opinion as to value on the “open market”. He knew that Mr. Bishara would have listed the enterprise for $700,000. Mr. Burridge chose, for whatever reason, to not list with Mr. Bishara. He chose to sell privately.
[114] The respondent notes in her brief the following at p. 33:
Stewart Burridge was a lifelong fisherman and alcoholic. Manfred and Real Parker teamed up to try and negotiate a favourable agreement to purchase Mr. Burridge’s fishing enterprise. Real Parker is well educated and worldly. Stewart Burridge was gravely ill, heavily medicated and isolated. (Emphasis is mine.)
[115] In my view, the evidence does not support those statements that I have underlined. I heard no evidence that Real Parker was “educated or worldly”. While Mr. Burridge was certainly ill, there is no evidence that he was “heavily medicated” at the time of the agreement. I also do not know his level of “isolation” in the community. The evidence has certainly shown him interacting with various people in the weeks and months preceding his death.
[116] In the context of considering whether there was any “undue influence” upon Mr. Burridge, I must consider whether the agreement between the applicant and Mr. Burridge was a “fair” one. In my view, the question to be answered is: was the agreed upon price within an acceptable range of “fair market value” for the asset?
[117] Having considered all of the evidence on this point, I conclude that it was. The amount agreed upon in February 2014 between Mr. Burridge and the applicant was, at the very least, within an appropriate range. While it is possible that a sale on the open market would have resulted in more money, the offer of $350,000 was reasonable under the circumstances. In particular, the evidence of Mr. MacDonald and Mr. Dixon as to their own purchases of fishing licences in 2004, satisfies me that $350,000 was within a reasonable range.
[118] In the final analysis, I find that Mr. Burridge was well aware of the options for the sale of his enterprise, and he specifically chose to sell to the applicant. I do not see that he was treated unfairly.
Unconscionability
[119] The respondent argues the “unconscionability” of this contract, which has been defined as “an improvident bargain arrived at as a result of inequality in the positions of the contracting parties”:
4 The equitable principles relating to undue influence and relief against unconscionable bargains are closely related, but the doctrines are separate and distinct. The finding here against undue influence does not conclude the question whether the appellant is entitled to relief against an unconscionable transaction. A plea of undue influence attacks the sufficiency of consent; a plea that a bargain is unconscionable invokes relief against an unfair advantage gained by an unconscientious use of power by a stronger party against a weaker. On such a claim the material ingredients are proof of inequality in the position of the parties arising out of the ignorance, need or distress of the weaker, which left him in the power of the stronger, and proof of substantial unfairness of the bargain obtained by the stronger. On proof of those circumstances, it creates a presumption of fraud which the stronger must repel by proving that the bargain was fair, just and reasonable: (authorities omitted). (Morrison v. Coast Finance Limited [1965] B.C.J. No. 178)
[120] The author Fridman (The Law of Contract in Canada, at p. 320) notes that such cases would include cases where a contracting party was “under the influence of drink or drugs”, or “feeble-minded (although perhaps not technically insane or mentally or intellectually incompetent), or illiterate, ignorant, or uneducated or otherwise mentally or intellectually disadvantaged”. Another example provided in the caselaw involved a party in severe pain and of limited formal education in an insurance agreement: Woods v. Hubley [1995] N.S.J. No. 128.
[121] In my view, the case at bar is certainly not such a circumstance. Apart from being ill with cancer, none of the circumstances apply to Mr. Burridge. He was a lifelong fisherman and was certainly not ignorant as to his assets and his livelihood. Nothing in the evidence leads me to conclude that Mr. Burridge and the applicant (as well as Real Parker) had any appreciable differences in terms of their education or “sophistication”. I fail to see how this situation would be termed unconscionable.
Misrepresentation
[122] The respondent further asserts that the applicant and/or Real Parker misrepresented the value of the assets, in offering $350,000. While the respondent acknowledges that such might have been an innocent misrepresentation, the respondent submits that even an innocent misrepresentation should result in either the recession of the contract, or the refusal of the court to order specific performance.
[123] As I have already stated, I do not think the value offered to Mr. Burridge was unreasonable. Nor do I find it to be a misrepresentation. This argument is rejected.
Specific Performance
[124] The applicant seeks relief in the form of specific performance; that is, he submits that damages alone will not suffice to alleviate the harm caused by the refusal of the respondent to execute the terms of this contract. He seeks an order requiring the respondent to follow through with the terms of the agreement between himself and Stewart Burridge.
[125] The generally accepted principle is that specific performance can be granted where the evidence shows that the asset in question is “unique” and cannot be compensated for by way of damages: Semelhago v. Paramadevan 2 SCR 415. It is also appropriate to consider whether a claiming party has mitigated his losses by seeking an alternative to the property in question.
[126] In this case, the applicant has noted his efforts to locate another fishing enterprise, both before and after the events involving Mr. Burridge. No other similar fishing enterprise within Area 31A has become available. As noted by Real Parker, and opined upon by Mr. MacDonald, transactions involving fishing licences are normally conducted in private. Often one only hears about them after they have already been transferred.
[127] There can be no doubt that the asset sold by Mr. Burridge was unique. It was noted by a number of witnesses that such licences/enterprises have now increased in value by significant amounts. Furthermore, even if one could find the additional money to buy such an asset today, I accept that they are rarely, if ever, for sale on the open market.
[128] The respondent submits that the applicant should not be granted specific performance in this case as he has not come before the court with “clean hands”. He bases this submission on the same concerns he has raised in his other submissions, which I have already dealt with.
[129] I have, at length, dealt with the arguments of the respondent. I see nothing in the applicant’s actions that should bar him from seeking or obtaining specific performance of the agreement he made with Mr. Burridge.
[130] I therefore grant the Order for specific performance sought by the applicant. I do not find that Stewart Burridge was incompetent to contract for the sale of his fishing enterprise. I do not accept that this contract was the result of undue influence, unconscionability, or misrepresentation. The asset contracted for was a unique asset, and its purchase/sale simply cannot be replaced by damages alone. The estate is hereby ordered to proceed with the sale of the fishing enterprise of Stewart Burridge to the applicant as provided for in the agreement.
[131] This decision contains one caveat: I acknowledge that such a transaction involves the approval of the federal DFO authorities. I also acknowledge that the transaction was dependent upon the applicant’s securing of the appropriate financing. Should neither of those things come to be, then clearly this transaction could not and would not proceed.
Damages
[132] The applicant seeks special damages for the lost earnings from the year of the transaction (2014 fishing year) to the present.
[133] During the hearing I understood from counsel that they had reached an agreement on this issue. The amounts were to be based on the earnings of Rosetta Burridge in fishing her father’s licences since his death.
[134] Having said that, the applicant provided the following in his brief:
That being said, the damages for loss fishing income will be as follows:
2014 - $33,390.47
2015 - $40,902.79
2016 – $54,913.79
2017 - $87,773.27
2018 - $79,552.24
Plus prejudgement interest.
[135] The respondent, in his brief, deducted the applicant’s own fishing income, as well as yearly amounts for loan payments that the applicant would have had to make. The respondent concludes as follows in relation to damages:
2014 – Nil
2015 – Nil
2016 – Nil
2017 – $22,848
2018 – $18,350
Aggregate loss = $41,198
[136] Clearly the amounts provided by counsel do not match. Neither spoke of this issue in their reply submissions. I therefore seek further submissions from counsel as to damages. They are to be provided within 60 days of this decision.
Costs
[137] I ask counsel to discuss whether an agreement on costs is possible. Should there be no agreement, I seek submissions within 60 days of this decision.
Boudreau, J.