In order that the appellant (“Westcan”) could be assisted in building a malting plant near the Village of Alix, Alberta, the Village received federal and provincial grant money of $3.1 million and agreed with Westcan to pay the grant money to Westcan after Westcan had constructed the effluent facilities for the Village (which, in form, would be responsible for running them.)
In finding that this arrangement did not constitute a joint venture for s. 273 purposes, Teskey J first quoted (at para. 52) from an extended extract from Central Mortgage & Housing Corporation v. Graham, 43 D.L.R. (3d) 686 (N.S.S.C.) including the following passage from Williston on Contracts:
[T]he decisions are in substantial agreement that the following factors must be present:
(a) A contribution by the parties of money, property, effort, knowledge, skill or other asset to a common undertaking;
(b) A joint property interest in the subject matter of the venture;
(c) A right of mutual control or management of the enterprise;
(d) Expectation of profit, or the presence of “adventure”, as it is sometimes called;
(e) A right to participate in the profits;
(f) Most usually, limitation of the objective to a single undertaking or ad hoc enterprise. …
Teskey J then stated (at para. 55):
I do not find there existed the right to participate in profits nor an expectation of profit, from the infrastructure for either party. The benefit accruing to Alix from the infrastructure would not be in the form of profit, but rather a decreased tax rate available to its citizens should the Appellant locate in the municipality. The benefit accruing to the Appellant from the infrastructure is that it gets its water and sewage disposal at cost with very little capital outlay. There does not exist the element that a financial interest is at stake, nor is there an assumption of risk in the overall success or failure of the joint utilities program. I am not convinced that both parties had a joint property interest in the infrastructure necessary to constitute a joint venture.