Girouard v. Druet 2012 NBCA 40
Contracts - Formation of contract - Signing - Electronic signature
The plaintiff expressed an interest in purchasing the defendant’s (vendor’s) condo. The parties agreed to carry on their discussions through e-mail. Following an exchange of e-mails, the plaintiff claimed that the defendant was contractually bound to sell the condo unit to him. The plaintiff commenced an action against the defendant/vendor seeking specific performance or damages for breach of contract. Following examination for discovery, the plaintiff brought a motion under rule 23.01(a) of the Rules of Court for an interpretation as to whether the e-mails constituted a binding agreement for sale of the condo.
The New Brunswick Court of Queen’s Bench, Trial Division, in a decision reported 379 N.B.R.(2d) 1; 978 A.P.R. 1, determined that there was a binding agreement of purchase and sale respecting the condo. The e-mails constituted, in this case, a written document, as required under the Statute of Frauds and the “signatures”, as indicated on the e-mails constituted a signature for the purposes of the Statute of Frauds. The defendant/vendor appealed.
The New Brunswick Court of Appeal allowed the appeal and set aside the decision below. The record before the motions judge disclosed no binding agreement of purchase and sale. The court assumed, without deciding that the signing requirements of the Statute of Frauds/Electronic Transactions Act were met, and accepted that the writing requirement (Statute of Frauds) was also met. However, the parties lacked the requisite intention to enter into a binding contract for the purchase and sale of the condominium unit.