Robertson v. Beauvais

Robertson v. Beauvais
Court (s) Database
Federal Court Decisions
Date
2014-03-04
Neutral citation
2014 FC 208
File numbers
T-1236-10
Decision Content
Date: 20140304
Docket: T-1236-10
Citation: 2014 FC 208
Ottawa, Ontario, March 4, 2014
PRESENT: The Honourable Madam Justice Gleason
BETWEEN:
CHARLES ROBERTSON
Plaintiff
and
KYLE BEAUVAIS AND MOHAWK COUNCIL OF KAHNAWAKE
Defendants
and
HER MAJESTY THE QUEEN
Third Party
REASONS FOR JUDGMENT AND JUDGMENT
[1] The plaintiff, Charles Robertson, operated a garage on the Mohawk Reserve at Kahnawake for over 30 years. The garage was located on two plots of land that Mr. Robertson possessed under the land management regime established under the Indian Act, RSC 1985, c I-5 [Indian Act].
[2] Mr. Robertson eventually leased the lots and garage to the defendant, Kyle Beauvais, who ran a cigarette manufacturing operation there between 2007 and early 2011. In the spring of 2010, Mr. Robertson, who was then 70 years old, decided to sell the garage and had discussions with a number of potential buyers, including Mr. Beauvais. What happened thereafter is the subject of dispute between the parties and gives rise to this action.
[3] Mr. Robertson claims that he and Mr. Beauvais reached a verbal agreement for the sale of the garage and transfer of possessory rights to the lots for a purchase price of $350,000.00 and that Mr. Beauvais paid him only $5,000.00 as a deposit toward the sale price. Despite this, Mr. Robertson went to the Land Management Office of the defendant, the Mohawk Council of Kahnawake [the Council], and signed two Transfer of Land documents [the Transfers] that purported to confirm the transfer of the land on which the garage was situated to Mr. Beauvais. Mr. Robertson claims he signed the Transfers in error, alleging that he was confused and unable to read them.
[4] Mr. Beauvais, on the other hand, claims that he and Mr. Robertson reached an agreement to transfer the possessory rights to the lots and the garage for a total purchase price of $225,000.00 and that he paid the entire amount to Mr. Robertson, in cash. He therefore alleges that Mr. Robertson is trying to renege on the agreement, despite having been paid in full.
[5] Although the Council forwarded the two Transfers signed by Mr. Robertson to the Minister of Indian Affairs and Northern Development [the Minister], the Minister has not issued Certificates of Possession for the lots in favour of Mr. Beauvais and has deferred the issue of the validity of the Transfers to this Court for determination. Thus, the Certificates of Possession for the land at issue in this action remain in the name of Mr. Robertson.
[6] In this action, Mr. Robertson has sued both Mr. Beauvais and the Council. Her Majesty was named as a Third Party but took no part in the action and did not appear at trial.
[7] Mr. Robertson claims the following relief in this action:
(a) A declaration that the Certificates of Possession, issued to him under section 20 of the Indian Act, are valid “à toutes fins que de droit” and that he is therefore entitled to possessory title to the two lots in question;
(b) A declaration that the Transfer of Land documents that he signed in favour of Mr. Beauvais are annulled, cancelled and of no effect “à toutes fins que de droit”;
(c) A declaration that that these Transfers of Land are unenforceable and unconscionable;
(d) A declaration that the decision of the Third Party, as represented by the Minister, to defer the approval or refusal of the Transfers is valid “à toutes fins que de droit” and that the Transfers be refused;
(e) Orders against both defendants for moral damages in the amount of $50,000.00, each, and for exemplary damages in the amount of $100,000.00, each, for breach of sections 6 and 49 of the Charter of human rights and freedoms, CQLR c C-12 [the Québec Charter], for breach of their duties under the Civil Code of Québec, LRQ, c C-1991 [Québec Civil Code or CCQ], and also, in the Council’s case, for the alleged breach of its fiduciary duties towards Mr. Robertson;
(f) An order that Mr. Beauvais pay the rent that Mr. Robertson claims to be owing, namely $4,500.00 per month from May 1, 2010 to the date Mr. Beauvais vacates the garage and the two lots;
(g) A declaration that the agreement of purchase and sale for the two lots in question be “resiliated”, cancelled and declared to be of no effect “à toutes fins que de droit”;
(h) A declaration that the lease agreement between Mr. Robertson and Mr Beauvais be “resiliated” and cancelled;
(i) An order that Mr. Beauvais vacate the premises and leave them in the condition that they were in at the beginning of the lease, reasonable wear and tear excepted, within three days of the date of judgment;
(j) An order for provisional execution notwithstanding appeal, under article 547 of the Code of Civil Procedure, CQLR c C-25 [the CCP]; and
(k) Costs against both defendants on a solicitor-client basis.
[8] The two defendants, on the other hand, seek to have the actions against them dismissed, with solicitor-client costs. Counsel for Mr. Beauvais additionally requested during closing argument that I find there to have been a valid contract between his client and Mr. Robertson, that Mr. Beauvais be found to have paid the entire purchase price and that the determination of whether new Certificates of Possession should be issued be remitted back to the Minister, who possesses discretion under the Indian Act as to whether or not to issue such certificates.
[9] During the course of a five day trial, seven witnesses testified, and much of their evidence was conflicting. Thus, the following legal and factual issues arise in this action:
1. What transpired between Mr. Robertson and Mr. Beauvais, and, more particularly, did they conclude a verbal agreement for the transfer of possessory rights to the garage and the lots and, if so, what were its terms? How much money did Mr. Beauvais pay Mr. Robertson?
2. Did Mr. Robertson understand what he was signing when he signed the two Transfer of Land documents that purported to transfer the lots in question to Mr. Beauvais?
3. Did the Council breach any duty it owes Mr. Robertson?
4. Does this Court have the jurisdiction to grant the remedies sought? If so, what remedies are appropriate in this case?
5. In considering an appropriate remedy, what is the legal effect of the two Transfers signed by Mr. Robertson, and if he was confused as to their effect, can he rely on his mistake or is he prevented from doing so by article 1400 of the Québec Civil Code, which categorizes some errors as “inexcusable”?
6. Should interest be awarded although it was not claimed in the Statement of Claim?
and
7. What costs award is appropriate?
[10] Prior to examining these issues, it is useful to review the provisions of the Indian Act applicable to reserve lands and the evidence tendered regarding land ownership on the Mohawk Reserve, as land is held differently on an Indian reserve than elsewhere in the country, which, as will be seen, has important implications for this case.
The provisions of the Indian Act relevant to land ownership on an Indian reserve and application of those provisions in Kahnawake
[11] By virtue of section 18 of the Indian Act, land that comprises an Indian reserve is held by Her Majesty for the use and benefit of the Indian band for which it was set apart. The legislation sets up a system by which the Minister possesses discretion to issue “Certificates of Possession” to members of Indian bands. A Certificate is evidence of the bearer’s right to possess the land described in the Certificate. Subsections 20(1) and (2) of the Indian Act provide as follows in this regard:
Possession of lands in a reserve
20. (1) No Indian is lawfully in possession of land in a reserve unless, with the approval of the Minister, possession of the land has been allotted to him by the council of the band.
Certificate of Possession
(2) The Minister may issue to an Indian who is lawfully in possession of land in a reserve a certificate, to be called a Certificate of Possession, as evidence of his right to possession of the land described therein.
Possession de terres dans une réserve
20. (1) Un Indien n’est légalement en possession d’une terre dans une réserve que si, avec l’approbation du ministre, possession de la terre lui a été accordée par le conseil de la bande.
Certificat de possession
(2) Le ministre peut délivrer à un Indien légalement en possession d’une terre dans une réserve un certificat, appelé certificat de possession, attestant son droit de posséder la terre y décrite.
[12] Section 21 of the Indian Act requires the Minister to maintain a register, called the “Reserve Land Register”, which details the particulars in respect of the Certificates of Possession issued by the Minister under section 20 of the Indian Act.
[13] By virtue of sections 18.1, 20, 24 and 25 of the Indian Act, only members of the Indian band for whom the reserve lands are held may be granted a Certificate of Possession for land on the reserve. Section 24 of the Indian Act recognises the right of Indians who are lawfully in possession of reserve lands to transfer those lands to the band or to another member of the band. Section 24 provides in this regard:
Transfer of possession
24. An Indian who is lawfully in possession of lands in a reserve may transfer to the band or another member of the band the right to possession of the land, but no transfer or agreement for the transfer of the right to possession of lands in a reserve is effective until it is approved by the Minister.
Transfert de possession
24. Un Indien qui est légalement en possession d’une terre dans une réserve peut transférer à la bande, ou à un autre membre de celle-ci, le droit à la possession de la terre, mais aucun transfert ou accord en vue du transfert du droit à la possession de terres dans une réserve n’est valable tant qu’il n’est pas approuvé par le ministre.
[14] Mr. Jean Boucher, Manager, Lands and Resources in the Québec regional office of the Department of Aboriginal Affairs and Northern Development Canada [AANDC] and Ms. Cheryl Diabo, a former employee at the Land Management Office [LMO] operated by the Council, both testified as to how these provisions are applied on the Kahnawake Reserve. They confirmed that the Council has chosen to use the Certificate of Possession system established under the Indian Act to manage land transfers at Kahnawake. (Mr. Boucher indicated that the choice as to whether to use this system is optional and a matter for each First Nation to determine.)
[15] The Reserve lands at Kahnawake (or at least the lands in issue in this action) are divided into lots, and surveys have been conducted to delineate their parameters. Under the procedure established by AANDC and used by the Council, those in valid possession of lots are granted a Certificate of Possession by the Minister. When a band member wishes to transfer lands for which he or she holds a Certificate of Possession, the band member must go to the Council’s LMO and sign a document entitled “Transfer of Land on an Indian Reserve”. The member’s signature is witnessed by an LMO employee, who completes an affidavit, attesting to the identity of the signatory and authenticity of the signature.
[16] The Transfer of Land document signed by a transferor is a one page document, which identifies the transferor, confirms that he or she is a member of the Mohawks of Kahnawake Indian Band and in lawful possession of the land to be transferred, contains a description of the land being transferred and then contains a short paragraph confirming the transfer of the land. This paragraph confirms there has been consideration for the transfer, sets out the name of the transferee, confirms receipt by the transferee of the named consideration and then states that the transferor has transferred to the transferee all of his or her “estate and interest in the said parcel of land granted to [the transferor] under the Indian Act”.
[17] On the template Transfer of Land forms contained in AANDC’s Indian Land Registration Manual, no amount is specified for the consideration to be paid for a transfer, and any amount could thus be filled in when the transfer document is completed if the template is used. Mr. Boucher testified, however, that approximately ninety percent of the transfers received in his office show only a single dollar as being the amount of the consideration for the transfer.
[18] The pre-printed Transfer of Land forms used by the Council at the times material to this action stipulated one dollar as being the amount of the consideration for the transfer, and Ms. Diabo testified that all the transfers signed during her tenure at the LMO adopted this form. She thus stated that the actual amount (if any beyond $1.00) paid by a member of the band for a plot of reserve land was purely a private matter between the transferor and transferee and is not recorded on the Transfer of Land form.
[19] Ms. Diabo also testified that the work of her office consisted principally of verifying that the transferor was in valid possession of the land to be transferred (which requires verification of the Register maintained by the Minister), verification that both the transferor and transferee were members of the Mohawks of Kahnawake Indian Band and that the forms were appropriately completed. She indicated that the LMO did not inquire as to whether the agreed-upon purchase price had been paid for any transfer of land. The Council’s procedures manual, applicable to the transfer of lots on the Reserve, contemplates that once these verifications are completed and the Transfer of Land form and affidavit of execution are completed at the LMO, the documents should then be sent to the Chairperson of the Band’s Land Management Committee for approval. Ms. Diabo testified that at the end of the process, the completed forms are typically sent on Friday of each week to AANDC, for registration and issuance of Certificates of Possession.
[20] Mr. Boucher testified as to the procedures used by AANDC and confirmed that it verifies the documents submitted before issuing a Certificate of Possession to the transferee and listing the transferee in the Register maintained by the Minister under the Indian Act. Among the matters that AANDC verifies are that the documents are legible and appropriately completed and that the transferor is in valid possession of the land to be transferred. Mr. Boucher indicated that this requires verification of the Register to confirm that the transferor held the Certificate of Possession for the land at the time of the transfer. This, however, does not prevent the immediate transfer by a transferee to someone else (without the intervening step of the issuance of a new Certificate of Possession in the name of the transferee). Mr. Boucher testified in this regard that the documents submitted in this case were suitable for registration and would have resulted in the issuance of Certificates of Possession in favour of Mr. Beauvais but for the intervention of counsel for the plaintiff, who objected that Mr. Robertson had signed the Transfer of Land documents in error.
[21] As is more fully discussed below, for one of the lots in question, Mr. Robertson was not the holder of a Certificate of Possession when he signed the Transfer of Land document in favour of Mr. Beauvais as that lot had been transferred to Mr. Robertson the same day that he signed a transfer in favour of Mr. Beauvais. Mr. Boucher, however, indicated that this sort of transaction would qualify for approval by the Minister, thereby indicating that, at least as far as he is concerned, one need not necessarily be the holder of a Certificate of Possession to be recognised by the Minister as having the right to transfer a lot on an Indian reserve so long as there is a valid chain of transfer to the final transferee.
[22] Both these witnesses’ testimony, the excerpts of the manuals filed and the Indian Act, itself, establish that Transfer of Land documents are not akin to deeds that are registered to transfer title to land outside a reserve. These transfers differ from deeds in three principal respects: first, the Transfer of Land documents do not convey title; second, they do not necessarily list the consideration actually paid for a lot on an Indian reserve; and third, they do not, of themselves, convey rights to possess reserve land, as the Minister has discretion as to whether or not to issue a Certificate of Possession under the Indian Act and the Certificates are merely evidence of the right of the person named in the Certificate to possess the land mentioned in the Certificate. Indeed, the jurisprudence has recognised that the regime applicable to reserve lands established under the Indian Act is sui generis (Delgamuukw v British Columbia, [1997] 3 SCR 1010, 153 DLR (4th) 193; R v Vanderpeet, [1996] 2 SCR 507, 137 DLR (4th) 289).
[23] With this backdrop in mind, it is now possible to review what occurred between Mr. Robertson and Mr. Beauvais.
Background to the agreement between Mr. Robertson and Mr. Beauvais
[24] In 1972, Mr Robertson acquired the land that is the subject of this action, which was then described as the Whole of Lot 3-8 Block B, Kahnawake Indian Reserve No. 14 and the Whole of Lot 3-10 Block B, Kahnawake Indian Reserve No. 14 [hereafter called, simply, Lots 3-8 and 3-10]. A few years later, Mr. Robertson constructed a garage on the two lots where, until 2005, he operated an auto body shop, an auto repair business and bought and sold used cars. In 1995, Mr. Robertson hired Nathalie Leduc, who worked for him until 2005. In 2001, she and Mr. Robertson commenced a romantic relationship and became – and still are – common-law spouses. Ms. Leduc resides with Mr. Robertson at his house on the Kahnawake reserve.
[25] Both Ms. Leduc and Mr. Robertson testified that Ms. Leduc did all the reading and writing associated with running the garage and the auto repair/sale business because Mr. Robertson found reading difficult and had problems with transposing characters. They also testified that even after he ceased operating the garage in 2005, Mr. Robertson still had Ms. Leduc do his reading and writing for him by, for example, paying all the household bills.
[26] In addition to experiencing difficulty with reading, Mr. Robertson also developed vision problems and in 2007 underwent surgery on one of his eyes for glaucoma, secondary to diabetic retinopathy. A note from the ophthalmologist who treated him that was filed on consent indicates that as of 2008 (when he was last examined), Mr. Robertson had unimpaired vision in one eye but that his vision in the other eye was significantly impaired. During the trial, Mr. Robertson was able to read very large print, namely the large heading on Transfer of Land documents, but stated he could not decipher any of the rest of the document in smaller print. Despite this, he admitted to still driving a car on the reserve and thus is able to see to a certain extent.
[27] In 2005, as part of the settlement of previous litigation with one of his daughters in respect of monies that Mr. Robertson owed her, Mr. Robertson transferred Lots 3-8 and 3-10 to his daughter, Shelly Robertson. In 2007, she and her husband, Lester Norton, rented a portion of the garage situated on the Lots to Kyle Beauvais. Mr. Beauvais, along with his brother, Chris, and another individual, Davis Rice, set up a cigarette manufacturing business in the premises and paid $2,500.00 per month in rent to Mr. Norton.
[28] In 2008, Mr. Robertson borrowed $40,000.00 from one of his sons-in-law, Clive McComber, to repay the monies Mr. Robertson owed to Shelly. After the repayment was made, Shelly signed two Transfer of Land documents at the LMO, to transfer Lots 3-8 and 3-10 back to Mr. Robertson.
[29] A brief written agreement was prepared by Ms. Leduc and Mr. McComber to indicate that the $40,000.00 was being loaned for only 30 days and that if it were not repaid Mr. Robertson would transfer the whole of Lot 3-8 to Mr. McComber. Mr. Robertson signed this agreement. Thereafter, he and Mr. McComber went to the LMO, where the Council’s employees witnessed their signatures on the agreement and Mr. Robertson signed a Transfer of Land document to transfer the whole of Lot 3-8 to Mr. McComber.
[30] In their testimony, Mr. Robertson and Ms. Leduc explained that Mr. McComber required that the land be transferred as security for the loan, the agreement being that if monies were repaid, Mr. McComber would transfer all but a small part of Lot 3-8 back to Mr. Robertson. In lieu of interest, Mr. Robertson agreed to transfer a small portion of Lot 3-8 to Mr. McComber that was contiguous to other lands owned by Mr. McComber.
[31] The Council forwarded the Transfers of Land documents signed by Shelly for Lot 3-10 and for Lot 3-8 to AANDC. On December 15, 2008, the Minister issued a Certificate of Possession for Lot 3-10 to Mr. Robertson and issued a Certificate of Possession for Lot 3-8 to Mr. McComber.
[32] A little after the 30 day time period to repay the $40,000.00 had elapsed, Mr. Robertson repaid Mr. McComber the $40,000.00, this time with money borrowed from Angela, another of his daughters. On November 25, 2008, Mr. Robertson and Mr. McComber signed another brief written agreement, confirming the repayment of the monies and providing that the portion of Lot 3-8 that was to be returned to Mr. Robertson would be transferred back to him by Mr. McComber. Ms. Leduc also prepared this agreement and Mr. Robertson merely signed it.
[33] Mr. Robertson testified that he believed Mr. McComber had signed a Transfer of Land document to return the portion of Lot 3-8 that was to be transferred back to him. However, as it turned out, Mr. McComber did not actually do so until 2010 after Mr. Robertson determined to sell his garage, as is discussed below.
[34] Before any transfer could be accepted by the LMO in respect of the transfer back of the bulk of Lot 3-8 to Mr. Robertson, it was necessary that a plan of subdivision be prepared to delineate what part of the lot was being retained by Mr. McComber. It was also necessary that a fee be paid to the Council for the preparation of the plan of subdivision. The plan was prepared in February 2009 by a surveyor, but it was not filed with the LMO until 2010.
[35] From 2008 forward, however, Mr. Beauvais paid rent to Mr. Robertson. The rent was first $2,500.00 per month, the same amount that Mr. Beauvais had been previously paying to Mr. Norton. In mid-2008, Mr. Beauvais expanded his cigarette manufacturing operation and rented the entire garage from Mr. Robertson and, consequently, the rent increased to $4,500.00 per month. Both Mr. Robertson and Mr. Beauvais confirmed that this amount was paid each month in cash and that typically no receipts were given for the amounts paid. (Mr. Robertson did file two receipts that he claims were issued by Mr. Beauvais’ employee, Garth Cross. It would appear, though, that it was the exception for receipts to be issued for the rent payments.)
[36] In late 2009 or early 2010, Mr. Robertson determined that he wished to sell his garage and to transfer possession of Lot 3-10 and the portion of Lot 3-8 that was supposed to have been returned to him by Mr. McComber. Mr. Robertson had a number of discussions with several potential buyers, where a purchase price of $400,000.00 was discussed, during which Mr. Robertson claims that none of the potential buyers balked at the price. This claim was corroborated by Darcy Lazore, another of Mr. Robertson’s sons-in-law, who testified that he had attempted to broker a deal for third parties to acquire the premises to run a cigarette operation there. (This venture did not get off the ground as Mr. Lazore and the potential purchasers were from Akwesasne in New York State and therefore could not obtain Certificates of Possession for the lots under the Indian Act as they were not members of the Kahnawake Band. However, Mr. Lazore confirmed that the individuals he was involved with might have been willing to pay $400,000.00 for the garage and the lots.)
[37] Both Mr. Robertson and Mr. Beauvais concur that they had initial discussions regarding the sale of the garage and transfer of the lots in approximately February or March of 2010 and that Mr. Robertson initially indicated that he wanted to obtain $400,000.00 for the lots and garage.
[38] Mr. Beauvais testified that sometime prior to on April 1, 2010, he went to the LMO to review the state of the register with respect to Lots 3-10 and 3-8 and learned that Lot 3-8 was still in Mr. McComber’s name. Mr. Robertson and Mr. Beauvais concur that some time before April 1st Mr. Beauvais informed Mr. Robertson of the fact that Mr. McComber had not transferred any portion of Lot 3-8 back to Mr. Robertson.
What transpired Between Mr. Robertson and Mr. Beauvais and how much money did Mr. Beauvais pay Mr. Robertson?
[39] The versions of events offered by Mr. Robertson and Mr. Beauvais from that point forward diverge.
[40] Mr. Robertson claims that sometime in March 2010, he went to the garage and had a discussion with Mr. Beauvais and that during this discussion Mr. Beauvais asked Mr. Robertson to agree to a lower price, reminding Mr. Robertson that his father had been a close friend of Mr. Beauvais’ father. Mr. Robertson claims that during this conversation he agreed to sell the garage and to transfer the lots to Mr. Beauvais for $350,000.00 but that no closing date was agreed to. He also claims that Mr. Beauvais indicated to him that he would need financing to complete the purchase.
[41] Mr. Robertson testified that he went to the LMO on April 1, 2010 to sort out the right to possession of Lot 3-8, which had not been transferred back to him by Mr. McComber. At the LMO, Mr. Robertson spoke with Ms. Diabo. In his evidence, Mr. Robertson offered little detail regarding what he discussed with Ms. Diabo on that day, other than indicating that he learned from her that a transfer to him from Clive McComber of part of Lot 3-8 could not be processed as there was an outstanding $500.00 fee to be paid for the survey done to subdivide Lot 3-8 between the part to be retained by Mr. McComber and the part to be transferred back to Mr. Robertson.
[42] Ms. Diabo offered a bit more detail regarding her discussion with Mr. Robertson on April 1, 2010 and, in addition to confirming that she told him about the outstanding $500.00 fee, also indicated that Mr. Robertson told her that he intended to sell Lot 3-10 and his portion of Lot 3-8 to Mr. Beauvais. The documentary evidence bears this out as Ms. Diabo went ahead to prepare the paperwork to complete the two Transfer of Land documents for the two lots. She indicated that Mr. Beauvais did not come into the LMO after April 1st, so she must have learned of Mr. Robertson’s intention to sell the lots to Mr. Beauvais from Mr. Robertson when he came to the LMO on April 1, 2010.
[43] Mr. Robertson went to the Council’s main office on April 1, 2010 to pay the outstanding $500.00 and received a receipt for doing so, which he gave to Ms. Leduc when he returned home. Once the fee was paid, it was possible for the LMO to process the transfer from Mr. McComber to Mr. Robertson of the portion of Lot 3-8 that was to be returned to Mr. Robertson. (After it was subdivided the portion of Lot 3-8 that was to return to Mr. Robertson was designated as the Whole of Lot 3-8-1 Block B, Kahnawake Indian Reserve No. 14 [hereafter called Lot 3-8-1]).
[44] Ms. Diabo testified that she called Mr. McComber on April 7, 2010 to request that he come in and sign a Transfer of Land for Lot 3-8-1 in favour of Mr. Robertson. She indicated that during that conversation Mr. McComber told her that he had business he needed to clear up with Mr. Robertson before he would sign the transfer. Both Mr. Robertson and Ms. Leduc corroborated this, indicating that Mr. McComber wanted to obtain some tools that were in a locked storage bin on the lots before he would sign the transfer. The documentary evidence also corroborates that Ms. Diabo called Mr. McComber on April 7th.
[45] Mr. Robertson stated that he went back to the LMO on April 12th, possibly following a call from Ms. Diabo. (She testified that she had called him to come in.) Mr. Robertson stated that when he arrived at the LMO on April 12th, he asked Ms. Diabo if Mr. McComber had signed the Transfer of Lot 3-8-1 and spoke with Carol Goodleaf, Ms. Diabo’s supervisor. According to both Mr. Robertson and Ms. Diabo, who overheard their conversation, Ms. Goodleaf first told Mr. Robertson that Mr. McComber had come to the LMO and had indeed signed the Transfer of Land document for Lot 3-8-1 to convey it back to Mr. Robertson. Ms. Goodleaf then explained to Mr. Robertson that he was required to grant Mr. McComber a right-of way over Lot 3-8-1 to allow Mr. McComber access to the portion of Lot 3-8 that he retained. The right-of-way was mentioned in the transfer from Mr. McComber to Mr. Robertson. Both Mr. Robertson and Ms. Diabo confirmed that Mr. Robertson became upset about the need for there to be a right-of-way. Ms. Diabo and Mr. Robertson, however, differ as to what happened next.
[46] Ms. Diabo testified that Mr. Robertson next spoke with her and asked to sign the documents to transfer Lots 3-10 and 3-8-1 to Mr. Beauvais. Mr. Robertson, on the other hand, claims he asked no such thing and says he thought he was being given paperwork regarding the transfer back to him of Lot 3-8-1. However, he did proceed to sign the two Transfers for Lots 3-10 and 3-8-1 in favour of Mr. Beauvais. He claims that Ms. Diabo gave him two originals and two copies that she told him were for Mr. Beauvais, to use in connection with getting financing from the Caisse Populaire on the Reserve. He maintains, though, that he thought the Transfers merely documented the transfer back to him of Lot 3-8-1 by Mr. McComber.
[47] Ms. Diabo, on the other hand, testified that while she gave one set of originals to Mr. Robertson and one copy to Mr. Robertson to give to Mr. Beauvais, she made no mention of Mr. Beauvais’ needing financing. She also testified that she read to Mr. Robertson the names of the transferor (Mr. Robertson) and the transferee (Mr. Beauvais) and the description of the lots to be transferred shown on the two Transfers before Mr. Robertson signed them. Mr. Robertson does not deny that this may have occurred but maintains that he simply did not understand what he was signing.
[48] Having heard both testify, and considering their evidence in light of the relevant documents filed as exhibits, I do not find there to be much real conflict between Mr. Robertson’s and Ms. Diabo’s versions of what transpired on April 12th at the LMO. They simply had a mis-communication about why Mr. Robertson was there. Ms. Diabo believed that Mr. Robertson had come in to get a copy of the transfer from Mr. McComber and to sign the Transfers in favour of Mr. Beauvais. Given the passage of time, it is likely impossible for her to recollect the exact words Mr. Robertson used, but she certainly understood him to be requesting that he be given the Transfers in favour of Mr. Beauvais so he could sign them. Mr. Robertson, on the other hand, believed he was there to simply confirm the transfer back to him of land from Mr. McComber. He was upset about what Ms. Goodleaf had told him about the right-of-way and did not – and possibly could not – read the documents he signed. However, he signed them and was given a set of originals and a set of copies by Ms. Diabo. I find it unlikely, though, that she would have said anything about Mr. Beauvais’ going to the Caisse Populaire as she had no idea whether Mr. Beauvais might have needed financing. Importantly, both Mr. Robertson and Ms. Diabo concur that Mr. Robertson did not mention that he could not read the documents he signed and did not indicate any confusion as to what was transpiring.
[49] Mr. Robertson claims that he did not give the Transfers to Ms. Leduc when he returned home on April 12th, but instead put the envelope containing the originals into his briefcase and left the copies in his car. He stated, though, that he told Ms. Leduc that he had received the transfer of Lot 3-8-1 back from Mr. McComber and that he was taking copies of the documents he had received to Mr. Beauvais to complete the transaction with him. He claims, moreover, that he had Ms. Leduc prepare a letter of reference for Mr. Beauvais, to confirm that Mr. Beauvais had always paid his rent, for Mr. Beauvais to use in connection with his application for a loan. Ms. Leduc corroborated this testimony and confirmed that she prepared a letter of reference, a copy of which was filed as an exhibit.
[50] Mr. Robertson then claims that he went to see Mr. Beauvais on April 13th to give him the letter of reference and copies of what he thought were documents confirming the transfer of land from Mr. McComber to him. (In actuality, they were copies of the Transfers in favour of Mr. Beauvais that Mr. Robertson claims he signed in error.) Mr. Robertson further testified that he asked for a deposit during the meeting, that Mr. Beauvais directed Mr. Cross to see how much money they had in the safe at the garage, discovered that there was at least $5,000.00 and that Mr. Beauvais and Mr. Robertson agreed that Mr. Beauvais would provide a $5,000.00 deposit towards the purchase price of $350,000.00 that they had agreed upon. He also stated that they left the closing date undetermined as Mr. Beauvais still needed to go to the Caisse Populaire and indicated he would need some time to get the financing in place as there had been a death in the family. Ms. Leduc testified that once Mr. Robertson returned home from the meeting with Mr. Beauvais, she saw the receipt and counted the $5,000.00 deposit, which she put into the safe located in their home.
[51] The next event that transpired according to Mr. Robertson and Ms. Leduc is that Mr. Beauvais called Ms. Leduc on April 21, 2010 to request a meeting with Mr. Robertson. Mr. Robertson went to the garage on the 21st and claims Mr. Beauvais told him that Mr. Robertson had signed the Transfers, which transferred the land to Mr. Beauvais, that Mr. Beauvais did not intend to pay more because Mr. Robertson owed at least $400,000.00 to Mr. Beauvais’ father and that Mr. Beauvais directed him to get off his property. Mr. Robertson claims that Mr. Beauvais’ brother, Chris, then threatened him, saying that Mr. Robertson should not complain as “they had the muscle”. Mr. Robertson says that he then went home, that he and Ms. Leduc read the original Transfers that he had in his briefcase, confirmed the error that he made, consulted a lawyer and went to the LMO to try and undo the transaction.
[52] While there is a certain divergence in the testimony from Ms. Diabo, Mr. Robertson and Ms. Leduc regarding what occurred at the LMO on April 21st, nothing turns on this. Suffice to say that Mr. Robertson and Ms. Leduc were very upset, tried to get the Transfers reversed and were told by Ms. Diabo that there was nothing that could be done. Ms. Diabo volunteered that after they left she was so upset that she went into the bathroom to weep.
[53] After that, Ms. Leduc and Mr. Robertson went to the Peacekeepers’ station on the Reserve to file a complaint against Chris Beauvais. In connection with that complaint, Ms. Leduc wrote a statement, which Mr. Robertson signed, that corroborates their version of events. They also left with Officer Stacey a copy of the Transfers that Mr. Robertson claims to have signed in error as well as a copy of the receipt that he claims Mr. Beauvais gave him.
[54] Mr. Robertson thus alleges that he has been paid only $5000.00 of the agreed-upon $350,000.00 purchase price and that he has been wrongfully denied possession of Lots 3-10 and
3-8-1.
[55] Mr. Beauvais, on the other hand, testified to completely opposite effect. He claims that he offered Mr. Robertson only $225,000.00 for the garage and that Mr. Robertson was initially unwilling to accept this amount. Mr. Beauvais further says that he learned from Clive McComber some time in the morning of April 12th that Mr. McComber had been to the LMO to sign a Transfer of Land document for Lot 3-8-1 in favour of Mr. Robertson, that Mr. Robertson came by the garage later on the 12th, told him that he was then willing to sell for $225,000.00 and that Mr. Robertson then agreed to this amount and that Mr. Beauvais then paid Mr. Robertson $225,000.00, in cash for the land and the garage. Mr. Beauvais claims that he regularly had between $300,000.00 to $500,000.00 in cash in the safe at the garage from the sale of cigarettes and that in this instance Garth Cross counted the cash and gave it to Mr. Robertson immediately after they agreed to the purchase price on April 12th. He stated that his brother, Chris, was also there when the payment was made.
[56] Mr. Beauvais claims that he went to the LMO later that day to verify that Mr. Robertson had signed the Transfers to transfer the property to him. Mr. Beauvais moreover stated that he did not give Mr Robertson a deposit and that no receipt or letter of reference was given to him by Mr. Robertson.
[57] Mr. Beauvais agrees that he called Ms. Leduc to have Mr. Robertson come and see him on April 21st, but testified that he did so as he had learned that Mr. Robertson had made several attempts to contact him while he was away. He claims that when Mr. Robertson showed up at the garage on April 21st, he asked for more money, that Mr. Beauvais told him he was not willing to pay any more and that he asked Mr. Robertson to leave his property. He claims that he then went back into the garage so did not hear if his brother threatened Mr. Robertson but did confirm that his brother was upset.
[58] It is common ground between Mr. Robertson and Mr. Beauvais that Mr. Beauvais continued to occupy the garage until early 2011, when he ceased his cigarette manufacturing business. Mr. Beauvais then rented the property to another tenant or tenants, to run a heat exchanger service. As of the date of trial, the other tenant(s) were still renting the garage. No evidence was offered as to how much the other tenant(s) have paid Mr. Beauvais in rent since early 2011. Mr Beauvais claims that he made significant improvements to the garage, spending in excess of $50,000.00 to repair it, to make it suitable for rental to the other tenant(s).
[59] Of these two versions of events, I prefer Mr. Robertson’s for several reasons.
[60] First, there is an important contradiction between what Mr. Beauvais testified to at trial and his testimony during his examination for discovery. In this regard, he made no mention during his examination for discovery that he had verified with Mr. McComber that Mr. McComber had re-conveyed the land to Mr. Robertson before he paid the $225,000.00 to Mr. Robertson. During cross-examination at trial, however, when he was pushed as to the unlikelihood of his paying out $225,000.00 without having even verified if Lot 3-8-1 was back in Mr. Robertson’s name, Mr. Beauvais stated that he verified this with Mr. McComber before he paid the money on April 12th.
[61] Second, in one key respect, Mr. Beauvais’ testimony was contradicted by Ms. Diabo, who is a largely independent witness as she no longer works for the Council. More specifically, when once again faced in cross-examination with the unlikelihood of his version of events, Mr. Beauvais claimed that he went to the LMO to check that Mr. Robertson had in fact signed the Transfers, shortly after he paid him the cash. Ms. Diabo, though, testified that Mr. Beauvais did ever not return to the LMO after his initial inquiry that was made before April 1, 2010.
[62] Third, Mr. Beauvais failed to call any witness to