Canada: Agricultural Law NetLetter - Sunday, August 21, 2016


  • An Alberta Queen's Bench Master in Chambers has summarily dismissed a claim by a son against his mother for specific performance of an oral agreement for ownership of a farm based on the fact that the son had worked the farm for 30 years, and for unjust enrichment. The Master observed that the son had received a two thirds crop share for the farm in the years he had worked it, and had also lived in a house on the farm for free. The Master held that the son's actions were not unequivocally consistent with an agreement that the farm would be conveyed to him and that part performance which would avoid the application of the Statute of Frauds could not be established. The Master also concluded that the son had not established that his mother was enriched, that he was correspondingly deprived, or that there was the absence of a juristic reason for the work he did on the farm. The Master discussed the elements of this type of claim and distinguished Alberta cases in which unjust enrichment claims by a child against a parent had succeeded. (Jordan v. Skwarek, CALN/2016-020, [2016] A.J. No. 708, Alberta Court of Queen's Bench)


Jordan v. Skwarek;


Full text: [2016] A.J. No. 708;

2016 ABQB 380,

Alberta Court of Queen's Bench,

Master J.T. Prowse,

July 6, 2016.

Unjust Enrichment -- Farmland -- Claim by a Child Against a Parent.

The Plaintiff, Glenn Jordan ("Glenn") brought an action against his mother, Esther Skwarek ("Glenn's Mother") for farmland which Glenn had farmed for his grandfather, his grandmother and Glenn's Mother.

Glenn alleged that the farm should have been transferred to him as an inheritance following the death of his grandparents. In the alternative, he advanced a claim for unjust enrichment against his mother.

Glenn alleged that he had worked on the farm for 30 years on the basis of an unwritten understanding with his grandfather, grandmother and his mother that he would be entitled to rent the farm on a crop share basis of two thirds to him and one third to them with crop input expenses initially being borne by the same ratio, but later being paid by Glenn in return for his living in the farm house on the land for free.

Glenn's grandfather, who initially owned the farm, passed away in 1983. His grandmother who then owned the farm, passed away in 2002. The farm then passed to his mother. In 2013, Glenn's mother asked Glenn to sign a lease for the farm. Glenn alleged the terms of the lease were contrary to the prior agreement so he left the farm and sued his mother.

Glenn's Mother brought an application for summary dismissal of Glenn's claim.

Decision: J.T. Prowse, Master in Chambers, summarily dismissed Glenn's claims [at para. 55], commenting that even accepting Glenn's assertions as to the promises made to him, Glenn's Mother's claims are "so compelling that the likelihood that they will succeed are very high."

Master Prowse considered the following issues:

1. The Statute of Frauds and Part Performance

Glenn's Mother asserted that the Statute of Frauds 1677 (29 Car.2) c. 3, which requires any contract for the sale of lands to be in writing and signed the party to be charged, applied. Glenn conceded that the Statute of Frauds applied, but argued that his claim was saved by the doctrine of part performance.

Master Prowse relied [at para. 11] on the decision of the Alberta Court of Appeal in B & R Development Corp. v. Trail South Developments Inc., 2012 CarswellAlta 2016, 2012 ABCA 351 in which the Court stated, at para. 35:

To invoke the doctrine of part performance, the party claiming to have performed a valid contract must demonstrate: (1) detrimental reliance and (2) that the acts of part performance sufficiently indicate the existence of the alleged contract such that the party alleging the agreement is permitted to adduce evidence of the oral argument: Erie Sand & Gravel Ltd. v. Seres' Farms Ltd., 2009 ONCA 709, 312 D.L.R. (4th) 111 at para 79. Acts of part performance must be "unequivocally" referable to the alleged oral agreement: Erie at para 32; Deglman v. Guaranty Trust Co. of Canada, [1954] S.C.R. 725 (SCC), [1954] S.C.R. 725 at 733, [1954] 3 D.L.R. 785 (S.C.C.).

Master Prowse observed [at para. 18] that the onus was on Glenn's Mother to show that even if Glenn's evidence as to what he did on the farm is accepted, Glenn's attempt to establish these acts as part performance of an agreement to acquire the farm is highly likely to fail.

Master Prowse then concluded:

(a) Glenn's evidence that he treated the farm as his own and expended resources in capital accordingly was not sufficient to establish part performance, stating, at para. 21:

[21] These acts are just as consistent with the acts of a long time tenant who was expending funds on the farm in order to maximize income from crops as they are with acts of a prospective owner. There is nothing about Mr. Jordan's expenditure of these funds on farm operations which point to an agreement that the farm would ultimately be conveyed to him.

(b) Glenn's evidence with respect to the capital and maintenance expended on both the house and farm buildings located on the farm which included a long list of items including water wells, renovations to the home, a new hot water tank, new light fixtures and switches and many other items, was not sufficient to establish part performance, stating, at para. 23 and 24:

[23] Were these the types of expenditures that only a prospective home owner would carry out, or are they expenditures consistent with a long term tenant? In my view, they are equally consistent with either scenario. In other words, Mr. Jordan is unable to establish that these acts are "unequivocally" referable to the alleged oral agreement to convey the farm to him.

[24] It would be different if the capital expenditures were so significant and of such obvious long term benefit that an objective outsider would say that only someone with a prospective ownership interest would have made such capital expenditures. This is not what happened.

Master Prowse observed [at para. 25] that when Glenn finally left the house in 2012, the outbuildings were no longer useable, and the farm house was "tired and worn" and that his expenditures resulted in no residual benefit to the land [at para. 29].

Master Prowse concluded [at para. 30] that Glenn's claim to the farm was defeated by the Statute of Frauds and that it was highly unlikely that he would be able to establish the acts of part performance that take the case outside of the Statute of Frauds. He directed a Certificate of Lis Pendens filed against the farm to be discharged.

2. Unjust Enrichment

Master Prowse observed that even though Glenn's claim was unenforceable as it was defeated by the Statute of Frauds, he may still bring a claim for unjust enrichment, relying on the decision of the Alberta Court of Queen's Bench in Valley v. McLeod Valley Casing Services Ltd., 2004 CarswellAlta 498, 2004 ABQB 302, in which the Court stated at para. 136:

While the Courts have applied the principles of unjust enrichment to provide relief in those cases where mistakes relate to ownership in the traditional sense, recent case law has extended the principles of unjust enrichment to situations in which one has improved another's land with the reasonable expectation of either compensation or a future property interest in the land...

However, Master Prowse rejected Glenn's unjust enrichment claim on the grounds that:

(a) Glenn's Mother had not benefitted from any of the alleged capital expenditures in the farm. Although Glenn had paid rent since 1982, Glenn's Mother could have "as easily received those payments from a stranger" [at para. 36] at a "cash rent substantially higher than the average crop share rent which she received from [Glenn] over the years" [at para. 37]. The property had not been improved by any of the capital expenditures Glenn alleged. The farm house was uninhabitable [at para. 38];

(b) Glenn had not suffered any deprivation. He had received a two thirds crop share payment and had lived in the house rent free. Master Prowse observed [at para. 40]:

[40] This is quite unlike cases where the claimant has performed years of work for free instead of earning their own living. Mr. Jordan worked on his own farm, worked on other jobs and collected crop share income for this farm. The evidence does not support a conclusion that Mr. Jordan suffered a deprivation.

(c) There was a juristic reason for Glenn farming the land and providing upkeep - he received crop share income from the land and housing from the farm house [at para. 41].

Master Prowse referred to other unjust enrichment claims by a child against a parent, observing that some of those cases did succeed, but only in completely different circumstances: Seward v. Seward Estate, 1996 CarswellAlta 1043, 194 A.R. 348; Valley v. McLeod Valley Casing Services Ltd., 2004 CarswellAlta 498, 2004 ABQB 302.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.