Faxed Transmission - Signed and in Writing; Trespass to Land - Trees #124

By Gerry Neely
B.A. LL.B

Is a contract created by Fax Transmissions a contract in writing signed by the persons transmitting the offer or acceptance? Having been long accustomed to telegram and telex acceptances, the answer must be yes, if the Courts are prepared to accept this further technological advance in communication.

One B.C.S.C. judge has accepted the technology in a case concerning the validity of faxed proxies. They were rejected by the chairman of a meeting of limited partners on the grounds that the faxed proxies were neither signed nor in writing as required by the limited partnership agreement.

The judge supported the argument that they were valid. While the proxies were not themselves signed, it was sufficient that they bore the photographic reproduction of the original signature. The faxed proxies were "in writing', in the extended meaning which can be given to that phrase. This decision should logically be expected to apply to faxed Offers to Purchase.¹

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In the following case which involved an action for damages for trespass to land, one owner gained a new respect for the value of trees. He mistakenly instructed a tree serviceman to cut down an apple tree, an arbutus tree and a Douglas fir without first checking to make sure that they were on his property. There was no doubt as to the trespass but the question was, how were damages to be fixed? The evidence given on behalf of the trespasser by a real estate appraiser was that the market value of the property remained the same whether the trees were standing or not.

The owner had no intention of selling and the loss of the trees deprived her both of privacy and the opportunity to give the apples away annually to her friends. Expert evidence, which was accepted by the judge, put the value of the apple tree at $198.00, the 22 inch diameter arbutus at $2,874.00, and the 42 inch Douglas fir at $13,965.00. Had these trees been isolated and outstanding, the judge would have given damages for those amounts. Instead, they were part of a wooded lot with remaining trees and shrubs in abundance. The damages assessed against both the trespasser and the tree serviceman were reduced to $150.00, $2,000.00 and $6,000.00 respectively.²

Column 121 referred to a decision of the Court of Appeal confirming that an Offer to Purchase which was subject to the purchaser being able to arrange "satisfactory financing" did not make the offer void for uncertainty. The suggestion contained in the last paragraph was that where the purchaser was uncertain as to the mortgage terms he might want or be able to obtain, then only the wording "satisfactory financing" should be used, rather than the other phrases referred to in the last paragraph. The better practice is still to try and obtain all the information necessary in order to use the standard financing clause found in the Clauses and Phrases Manual. If this information is available and the clause is used, the purchaser will have less opportunity to argue uncertainty and the Courts will not be faced with trying to apply the test referred to in Column 121.

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