Hello again, everyone. Below are summaries of this week’s civil decisions of our Ontario Court of Appeal (non-criminal). Topics covered include: costs on a civil contempt motion, rights of first refusal in commercial leases, interpretation of the Ontario New Home Warranty Plan Act, certification of a securities class proceeding and an action under the Securities Act, judicial review of a decision of the Consent and Capacity Board, a claim for damages for contaminated groundwater, compliance with disclosure orders in matrimonial litigation, and the interpretation of an agreement of purchase and sale of land.
As next Friday is Boxing Day, there will be no OCA Summaries released next week, but we plan to resume posting to our blog the following week. Thank you for taking an interest in our blog. Wishing you all the very best for the holiday season and a Happy New Year.
Blaney McMurtry LLP
email@example.com Tel: 416.593.2953
Bank of Nova Scotia v 124155 Canada Inc., 2014 ONCA 894
[Weiler, Feldman and Benotto JJ.A.]
A.M. McLennan, for the appellants
D.A. Bourassa, for the respondent
Appeal Dismissed as Abandoned.
This was an appeal from the order of Justice David L. Edwards of the Superior Court of Justice, dated April 29, 2014 and costs endorsement, dated May 16, 2014.
On consent, the appeal was dismissed as abandoned. No costs.
Ever Fresh Direct Foods Inc. v. Jamia Islamia Canada Ltd., 2014 ONCA 898
[Laskin, Cronk and Pepall JJ.A.]
R. Birken, for the appellant
A. Farooq, for the respondent
Contempt; Costs; Substantial Indemnity
(Facts taken from lower court judgment)
On February 1, 2008, the appellant, Ever Fresh entered into a lease agreement with Jamia Islamia Canada Ltd., the respondent, for a period of ten years. The sole purpose of the lease was for Ever Fresh to operate a food manufacturing, distribution and warehouse business. On August 28, 2012, the respondent alleged that Ever Fresh was in breach of the lease agreement and provided a remediation period of 15 days. When the 15 days expired, the respondent served a Notice of Eviction, terminated the lease and changed the locks. This occurred on September 2012. On June 13, 2013, the Ontario Superior Court of Justice heard a contempt motion. The respondents alleged that Ever Fresh had wilfully breached eight separate orders. This court concluded that Ever Fresh had wilfully breached five of those orders and found Ever Fresh in contempt.
The court found that Ever Fresh’s actions demonstrated a pattern of complete disregard for court orders and ordered that Ever Fresh pay Jamia Islamia $40,000 in costs within 30 days; comply with the order of Gray J., dated February 8, 2013, and pay Jamia Islamia $20,000 as contemplated in the order. Ever fresh appealed to this court.
(1) Did the motion judge err in finding Ever Fresh in contempt?
(2) Did the motion judge err in its award of costs in favour of the respondent?
Appeal allowed in part.
(1) No. The court found there was no basis for interference with the motion judge’s contempt findings. The challenged findings were supported by the evidentiary record before the motion judge and, in significant part, were grounded on his adverse credibility findings.
(2) Yes. The respondent acknowledges that the amount sought by it and awarded by the motion judge was on the full indemnity scale. The court found that the amount awarded was in excess of the respondent’s claimed costs and almost four times the amount of the appellant’s costs on the contempt motion. Therefore, some reduction of the motion judge’s $40,000 award in favour of the respondent for the costs of the contempt motion is necessary. In the circumstances, the costs awarded to the respondent on the contempt motion were reduced to the total amount of $25,000.
1440825 Ontario Inc. v. Lenco Investment Ltd., 2014 ONCA 903
[Cronk, Juriansz and Epstein JJ.A.]
M.S. Shapiro and M. Mednick, for the appellant
W.C. Kort, for the respondent
Commercial Leases; Right of First Refusal; Contract Interpretation
Pursuant to a commercial lease, the appellant tenant was granted a right of first refusal to purchase the leased premises in the event that a third party made an offer to the respondent landlord offer to purchase the leased premises.
When the respondent received such an offer from a third party, it unconditionally accepted the offer on the same day it was received, and entered into an agreement of purchase and sale. The respondent never gave the appellant notice of the offer.
Approximately one month later, the respondent delivered a copy of the agreement of purchase and sale to the tenant, together with a notice of termination purporting to terminate the lease. The notice stipulated that the tenant would have to vacate the leased premises in approximately three months’ time, and provide vacant possession of the property to the landlord.
The application judge held that the right of first refusal was qualified in that it permitted the landlord to extinguish the right by terminating the tenancy in compliance with the lease mechanism for termination. The landlord complied with the termination provisions.
Did the application judge err in ruling that the respondent landlord properly terminated the commercial lease, which included a right of first refusal in favour of the tenant?
Appeal is allowed. Declarations are granted that: (1) the right of first refusal under the lease was not terminated by the landlord’s purported termination of the lease; and (2) the tenant exercised its right of first refusal in accordance with the terms of the lease.
It is further ordered that the landlord enter into an agreement of purchase and sale with the tenant on the same or similar terms as the agreement of purchase and sale with the third party.
It cannot be the case that compliance with the right of first refusal clause was entirely at the discretion of the respondent. This would effectively denude the right of any meaning. The right of first refusal and the termination clauses must be read together and, to the extent possible, meaning must be given to each in accordance with the intentions of the parties as reflected in the language of the lease. It was not the intention of the parties to render a key provision of the lease valueless. Such an interpretation would be inconsistent with the landlord’s obligation of good faith dealings with the tenant.
Commercial Leases, Right of First Refusal, Contract Interpretation
Tarion Warranty Corporation v. Latreille, 2014 ONCA 904
[Cronk, Juriansz and Epstein JJ.A.]
D.R. Adams, for the appellants
N. Abbott, for the respondent
Statutory Interpretation; Section 15 of the Ontario New Home Warranty Plan Act; Condominium Corporation
The motion judge found that Mr. Latreille, the appellant, as indemnifier for the builder was personally liable for any deficiency in the monies paid out of the guarantee fund under the Ontario New Home Warranty Plan Act (the “Act”) regarding the warranty claims processed by the respondent, Tarion Warranty Corporation, for the common elements at Ottawa Carleton Standard Condominium Corporation No. 737.
The appellant argued that the definitions of “home” and “owner” in s. 1 of the Act did not apply to a condominium corporation and consequently, a condominium corporation would not be entitled to receive payment out of the guarantee fund. The appellant also argued that s. 15(a) of the Act did not deem a condominium to be an owner of a home and the provision was befuddling and thus should not apply.
Whether the motion judge erred by concluding that a corporation is a homeowner for the purpose of the warranty provisions of the Act.
No. The Court held that as per the principle of statutory interpretation, all of the Act’s provisions should be read together and each should be given a meaning. It is clear that when enacting s. 15 of the Act, the legislature intended to make warranties under the Act available to a condominium corporation in respect of common elements.
Bayens v Kinross Gold Corporation, 2014 ONCA 901
[Hoy A.C.J.O., Cronk and Pepall JJ.A]
K.M. Baert, C. Poltak and G. Myers, for the appellants
M.A. Gelowitz, A.D. Coleman and R. Carson, for the respondents
Class Action Proceeding; Certification of Class Action; Class Proceedings Act 1992; Securities Act; leave motion; Common Law Misrepresentation; Statutory Misrepresentation; s. 138.3 Securities Act
The appellants, the trustees of the Musicians’ Pension Fund of Canada, are representative plaintiffs in a putative class proceeding against the respondents, Kinross Gold Corporation, a Toronto-based international mining company, and four of its current or former officers. In their capacity as trustees for the pension fund, the appellants purchased Kinross shares. In 2012, they commenced a class action against the respondents on their own behalf, and on the behalf of other specified persons who acquired Kinross shares between February 16, 2011 and January 16, 2012. They claimed damages in the amount of $4 billion for alleged common law and statutory misrepresentations under s. 138.3 Part XXIII.1 of the Ontario Securities Act, pertaining to two gold mines owned by Kinross: the “Tasiast” mine in West Africa and the “Chirano” mine in Ghana. The appellants asserted that Kinross’ public disclosure concerning the mines was misleading because Kinross overstated the value of goodwill for the mines by failing to record a goodwill impairment charge relating to the Tasiast mine on a timely basis (Goodwill Impairment Claim), and wrongly represented that its planned expansion project for the Tasiast mine remained on schedule (Expansion Claim).
The appellants brought a motion for an order granting them leave under s. 138.8(1) of the Securities Act and for an order certifying their action as a class proceeding under the Class Proceedings Act, 1992. The motions judge dismissed the leave and certification motion. He ruled there was no possibility that the Goodwill Impairment Claim would succeed at trial as the expert accounting evidence was fatally flawed, as a result there was no factual basis for the claim. The motions judge declined to consider the Expansion Claim as it was not pleased by the appellants. He also refused to certify the statutory or common law misrepresentation claims under the CPA.
The appellants appeal the motion judge’s leave and certification rulings. They make three submissions. First, the motions judge erred by finding there was no reasonable possibility that the Goodwill Impairment Claim could succeed. Second, the motion judge erred by refusing to consider the Expansion Claim. Third, the motions judge erred in denying certification of the common law negligent misrepresentation claims solely on the basis of his refusal to grant leave to proceed with the statutory claims.
(1) Did the motion judge err in finding that there was no possibility, let alone a reasonable possibility, that the Goodwill Impairment Claim would succeed at trial?
(2) Did the motion judge err by failing to consider the Expansion Claim?
(3) Did the motions judge err by denying certification of the common law misrepresentation claims on the basis that the denial of leave to proceed with the statutory claims was dispositive of the certification issue concerning the common law claims?
Appeal dismissed, costs to the respondents of $85,000
(1) No. Under s. 138.8(1) of the Securities Act leave of the court is required to proceed with a statutory misrepresentation claim under s. 138.3. The court must be satisfied that the action was bought in good faith and that there is a reasonable probability that the action will be resolved at trial in favour of the plaintiff. The reasonable possibility requirement of the leave test is a relatively low threshold, merits-based test. The determination whether a plaintiff’s statutory action will have a reasonable possibility of success at trial requires a critical evaluation of the merits of the action. The standard applied to the evidentiary record is the same standard applicable to a certification determination under s. 5(1)(a) of the CPA or a motion to strike. However the standard is applied to different records, for different purposes. The court was not persuaded that the motions judge misapprehended the test in any material way. Read as a whole, the court held that his reasons confirmed that he appreciated the essential nature of the leave test and the reasonable possibility requirement. The court held that the motions judge applied a proper level of scrutiny to the evidence and the conclusions drawn were squarely within his domain. Scrutiny of expert evidence was required to determine reliability and are common where an asserted claim depends on expert evidence. Additionally the court held that the motions judge did not misconceive or misstate the nature of the appellants’ Goodwill Impairment Claim. It was the appellants’ own characterization of the claim that framed the motion judge’s analysis of the reasonable possibility requirement.
(2) No, it is central to the litigation process that issues in a civil action be within the boundaries of the pleadings. Where the plaintiffs elect not to plead a potential claim, they cannot be heard to complain when a late-breaking claim is not considered on a leave motion. In this case the Expansion Claim was not pleaded, nor did the appellants amend their pleadings before the leave motion or seek leave to amend their leave notice of motion to include it. They advanced the claim for the first time in their factum on the leave motion. The motion judge held it would be procedurally improper and unfair to allow them to advance this claim for the leave motion and the appellants failed to establish a basis for interference with this discretionary ruling.
(3) While the motion judge’s certification analysis was held to be tainted with error, the court agreed with the ultimate finding that the certification of the common law negligent misrepresentation claims should be denied. On the motion judge’s approach the statutory and common law misrepresentation claims are combined, on this basis he concluded that if leave to proceed with the statutory claim is denied, the refusal of certification for the common law claims is effectively self-evident. The court held this was an error in principle and it did not automatically flow from the denial of leave for the statutory claims that there would be no basis in fact for all the class definition, common issues and preferable procedure certification criteria. In this case the motion judge’s evaluation of the s. 5(1)(b),(c) and (e) certification criteria was flawed.
In light of the error in approach, coupled with the failure of his analysis to comport with the Supreme Court Fischer case, the deference normally owed to a certification analysis was not engaged. Therefore the court had to evaluate whether the common law claims were appropriate for certification under the CPA. The respondents agreed that the proposed class action for negligent misrepresentation meets the certification requirements of the CPA, except for the contested issue whether a class action is the preferable procedure. The respondents argued that the common questions did not meet the preferable procedure criterion, they argued that if the action were certified it would result in a vast number of individual trials on the critical issues of reliance, causation and damages. The court agreed, and held that this would undermine the goals of a class action and impose an unmanageable, inefficient and unfair process on the parties and the courts. The court held that in this case, proof of reliance, causation and damages posed particular difficulties and to establish these elements, individualized inquiries would be unavoidable. Additionally, it had already been determined that the statutory misrepresentation claims had no reasonable prospect for success and the courts have recognized that reliance-based claims are particularly unsuitable for resolution in a class proceeding. The motion judge’s leave decision was a relevant consideration in determining the preferable procedure and favoured the conclusion that a class action was not the preferred method.
Gajewski v. Wilkie, 2014 ONCA 897
[Laskin, Rouleau and Epstein JJ.A.]
S. Fraser, for the appellant
K. Naidoo, for the respondent
Criminal Law; Administrative Law; Assault; Kidnapping; Not Criminally Responsible on Account of Mental Disorder; Consent and Capacity Board; Incapable with Respect to Treatment; Test for Incapacity; Amicus Curiae
The appellant, Bartosz Gajewski, was detained at the Centre for Addiction and Mental Health in Toronto by order of the Ontario Review Board, following a verdict of not criminally responsible on account of mental disorder at his trial on charges of assault and attempted kidnapping. After the appellant refused medication recommended for his delusional disorder, a physician, the respondent, Dr. Treena Wilkie, found him incapable with respect to treatment. At a subsequent review hearing, the Consent and Capacity Board (the “Board”) confirmed this incapacity finding. Mr. Gajewski appealed the decision of the Board to the Superior Court. Whitaker J. appointed an amicus curiae to assist Mr. Gajewski, who advanced Mr. Gajewski’s arguments and made additional submissions. In her endorsement dated February 6, 2013, Pollak J. found the Board’s decision reasonable and dismissed the appeal.
Mr. Gajewski appealed that decision. He submitted that the evidence did not support the test for incapacity. He further alleged ineffective assistance of the amicus and sought to introduce fresh evidence to support this ground of appeal.
(1) What standards of review apply to the Board’s and the Superior Court judge’s decisions?
(2) Did the judge err in concluding that the Board’s decision of incapacity was supported by the evidence and within the reasonable range of possibilities?
(3) Should the appeal judge’s decision be overturned based on the allegedly ineffective assistance of the amicus?
(1) This was a situation of mixed fact and law that was reviewable on a standard of reasonableness.
(2) No. The appellant submitted that the Board erred by not considering s. 14 of the Evidence Act, which requires corroboration of evidence in the current fact situation. The Court found that the evidence in question had in fact been corroborated by a number of sources.
The appellant also submitted that the Board erred in its application of the statutory test for incapacity because the respondent failed to adduce sufficient evidence of incapacity. The test for incapacity is set out in section 4(1) of the Health Care Consent Act, 1996, which establishes two criteria for capacity. To be “capable with respect to a treatment”, a person must be “able to understand the information that is relevant to making a decision about the treatment” and must be “able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.” Section 4(2) provides that a person is presumed to be capable with respect to treatment. This presumption of capacity is displaced only if one or both of the s 4(1) criteria for capacity are not met.
In Starson v. Swayze, 2003 SCC 32,  1 S.C.R. 722, Major J., writing for the majority, explained the two criteria for capacity to consent to a treatment, as follows:
First, a person must be able to understand the information that is relevant to making a treatment decision. This requires the cognitive ability to process, retain and understand the relevant information…. Second, a person must be able to appreciate the reasonably foreseeable consequences of the decision or lack of one. This requires the patient to be able to apply the relevant information to his or her circumstances, and to be able to weigh the foreseeable risks and benefits of a decision or lack thereof.
Major J. further added that “… if the patient’s condition results in him being unable to recognize that he is affected by its manifestations, he will be unable to apply the relevant information to his circumstances, and unable to appreciate the consequences of his decision.”
The Court held that in the present case, the evidence supported the Board’s findings that the appellant: 1) was suffering from the manifestations of a mental disorder, including entrenched false beliefs, persecutory delusions and religious preoccupation; and 2) was unable to see that he was suffering from these manifestations at the time of the hearing. The Court found that there was sufficient evidence to make a finding of incapacity based on the second branch of the test.
(3) No. The Court found that this issue did not need to be addressed in order to determine the appeal because it had reviewed the Board’s decision on the same standard of review that the Superior Court applied – standard of reasonableness – and had independently concluded that there was no reason to interfere with the Board’s decision. Nonetheless, the Court noted that it had seen nothing in the record that gave rise to any concern about the assistance amicus provided the appellant.
SEP Holdings Limited v. Cambridge (City), 2014 ONCA 907
[Weiler, Feldman and Benotto JJ.A.]
E.K. Gillespie and G. Andrews, for the appellant
J.H. Bennett and R. Weber (student-at-law), for the respondent
Civil Litigation; Dismissal of Action; Dismissal of Claim for Damages; Credibility of Witness; Rejection of Expert Evidence
The appellant appealed the decision of Flynn J., who dismissed its claim for damages and awarded costs to the respondent. The appellant’s claim for damages is based on alleged losses incurred after the respondent’s neighbouring property, which contained winter road salt, contaminated the groundwater underneath the appellant’s property. Consequently, the appellant claimed that it was no longer able to develop this property into an underground parking facility and medical office building, because the contamination prevented it from penetrating the water table to carry out the necessary construction.
(1) Did Flynn J. err in dismissing the appellant’s claim for damages and awarding costs to the respondent?
The appeal was dismissed and costs fixed in the amount of $18,000 were awarded to the respondent.
(1) No. Flynn J. did not err in dismissing the appellant’s claim for damages. It was open to him on the evidence to completely reject all evidence given by one of the appellant’s witnesses Mr. McCash, with the exception of his testimony that the appellant, several years after the contamination, was no longer interested in developing its property as a medical office building with underground parking. It was accepted at trial that the appellant no longer intended to develop its property as such after a nearby property also developed a medical building.
In terms of the argument that Flynn J. erred in excluding all of the appellant’s proposed expert evidence, his exercise of discretion to exclude it discloses no error in principle. Specifically, all of the expert opinion evidence of both experts was entirely based on the information that they were provided by Mr. McCash, which was already rejected.
In sum, the appellant’s entire theory of damages was based on its alleged actual loss of the opportunity to construct the medical office building with underground parking. Since Flynn J. was entitled to conclude that the appellant failed to prove, on a balance of probabilities, that it had any true intention of developing the property in a way that would penetrate the water table, there was no evidence before him on which he could award damages. Therefore, he was entitled to dismiss the claim for damages as well as the action. Regarding costs, the appellant did not contest at trial the number of hours the respondent’s lawyers spent on legal services, and Flynn J. did not commit any error in principle in his cost award of $231,000 to the respondents.
Brisson v Gagnier, 2014 ONCA 909
[Weiler, Rouleau and Pardu JJ.A.]
C.A. Burdet, for the appellant
C. Pilon, for the respondent
Family Law; Disclosure Order; Substantial Compliance
This was an appeal from the order of Charbonneau J. of January 21, 2014 providing, “[t]he order of Justice Maranger dated 18 October 2013 is hereby confirmed and the Defence and pleadings of the Respondent Daniel Gagnier are struck” and granting temporary orders for custody, child and spousal support. The basis for the order of Charbonneau J. was the appellant’s failure to comply with the disclosure order of Maranger J. of October 18, 2013.
The motion judge did not err in concluding that the appellant had failed to comply with the order of Maranger J. Some three months after the order of Maranger J., the appellant filed little evidence before Charbonneau J. to demonstrate any degree of compliance with the order, despite the appellant having ample opportunity to do so.
On appeal, the appellant claimed that he had produced a good deal of the missing material. The respondent contended that he had not and that vital information had still not been provided. The Court of Appeal held that the state of the record did not permit it to assess the present extent of compliance with the disclosure orders. However, this did not foreclose the possibility that a motion judge could grant an indulgence to the appellant and reopen pleadings to allow him to defend the proceedings provided that he demonstrated substantial compliance. Substantial compliance would mean disclosure of all material reasonably necessary to permit the matter to be tried.
High Tower Homes Corporation v. Stevens, 2014 ONCA 911
[Hoy A.C.J.O., Epstein and Hourigan JJ.A.]
R. Allan, for the appellant
C.E. Reed, for the respondents
Real Estate; Contract Law; Standard of Review on Appeal; Agreement of Purchase and Sale; Notice Provisions; Personal Delivery; Waiver; Promissory Estoppel
A vendor was mistaken as to the terms of an agreement of purchase and sale. Completion of the sale transaction would result in the purchaser’s acquisition of the property at an unintended price below market value.
Brett Stevens (“Vendor”) owned a property (“Blue Water”) in Burlington. He and his then spouse owned the adjacent property (“Avondale”). Stevens and his spouse concluded that selling the two properties together would maximize their value. For tax planning purposes, they wished to allocate as much of the aggregate purchase price for the properties as possible to Avondale.
High Tower Homes Corporation (the “Purchaser”) expressed interest in the properties and submitted offers for both. The offers were not simply standard form documents. The Purchaser added Schedule A – consisting of two typed pages of additional provisions – to the Ontario Real Estate Association standard form of Agreement of Purchase and Sale.
The Purchaser’s first offers for the two properties were presented together. Schedule A to each of the Purchaser’s first offers included a clause entitled “CONDITION FOR SALE OF ADJACENT PROPERTY” to the effect that the sale of each property was conditional on the sale of the other. A series of further offers and counter-offers ensued. In a subsequent, fully re-typed offer for Blue Water, the Purchaser revised the text of the clause under the heading “CONDITION FOR SALE OF ADJACENT PROPERTY” to provide that the sale of Blue Water was not conditional on the sale of Avondale. The change was not “black-lined” and the Purchaser did not otherwise draw the change to the Vendor’s attention. No change was made to the corresponding clause in the Avondale offer.
On January 25, 2013, the Vendor accepted the Purchaser’s counter-offers to sell the properties. The agreement of purchase and sale for Blue Water (the “Agreement”) was in the form prepared by the Purchaser – that is, without the clause making the closing of the sale of Blue Water conditional on the purchase of Avondale.
Over the course of the negotiations, the price offered for Avondale increased from $3.5 million to $4.5 million.
Clause 71 to Schedule A of the Agreement contained a clause – entitled “CONDITION FOR BUYER’S BENEFIT” – outlining conditions for the Purchaser’s benefit that could be waived “by notice in writing to the Seller, within the time period stated herein” (on or before February 22, 2013). If the conditions were not so waived, the Agreement would become null and void.
Clause 3 of the standard terms of the Agreement, entitled “Notices”, provided that “any notice to be given or received pursuant to this Agreement or any Schedule hereto (any of them, “Document”) shall be deemed given and received when delivered personally or hand delivered to the Address for Service provided in the Acknowledgment below, or where a facsimile number or email address is provided herein, when transmitted electronically to that facsimile number or email address, respectively, in which case, the signature(s) of the party (parties) shall be deemed to be original.”
The Purchaser’s solicitor gave notice to the Vendor’s solicitor, by fax, purporting to waive the conditions for the Purchaser’s benefit in clause 7 of Schedule A to the Agreement and seeking an extension of time for the waiver of conditions with respect to its purchase of Avondale. The notice waiving the conditions was never delivered to the Vendor personally. The Vendor’s lawyer advised that the Agreement was at an end because the Purchaser had not given notice waiving the conditions for its benefit within the required time period in the manner required by the Agreement. The Purchaser sued for specific performance and, in the alternative, damages in the amount of $5 million for breach of contract. The Vendor counter-claimed for a judgment rectifying the Agreement and a declaration that the Agreement and the agreement of purchase and sale for Avondale were both null and void.
The Purchaser brought a motion for partial summary judgment declaring the Vendor liable for breach of the Agreement. The motion judge declared the Agreement unenforceable and dismissed the Purchaser’s motion. He found that the Agreement was clear: notice should have been delivered personally to the Vendor and the Purchaser did not deliver its notice personally. Further, the “entire agreement” clause in the Agreement precluded the implication of terms to the contrary and was a complete answer to the Purchaser’s argument that the Vendor had waived the requirement that notice be given by personal delivery. The Purchaser appealed the dismissal of its motion. The Vendor cross-appealed.
Did the motion judge err in concluding that the Vendor could avoid completing the sale transaction by relying on the Purchaser’s failure to give notice of its waiver of conditions personally to the Vendor?
- Did the motion judge err in concluding that fax delivery to the Vendor’s solicitor constituted delivery in accordance with the Agreement?
- Did the motion judge err in finding that by leaving the notice at Blue Water, the personal delivery requirement was not satisfied?
- Did the motion judge err in concluding that that other provisions as to notice should not be implied? And did the motion judge err in concluding that the wording of the entire agreement clause precludes the implication of such implied terms?
- Did the motion judge err in concluding that the “entire agreement” clause in the Agreement precluded a party from asserting waiver, or that the Agreement was subsequently amended by conduct?
- Did the motion judge fail to consider and apply the doctrine of promissory estoppel?
The court states that the standard of review for questions of contractual interpretation comes from Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, 373 D.L.R. (4th) 393. The motion judge’s conclusions are entitled to deference, absent an extricable question of law.
No. The Agreement included a specific spot where a fax number – if any – at which the Vendor could be given notice was to be specified. No fax number was specified in the spot in the Agreement designated for that purpose. Faxing the notice to the Vendor’s solicitor did not constitute notice via facsimile transmission in accordance with the Agreement.
- No. Purchaser’s evidence that it had delivered the notice to Blue Water was contradicted by the Vendor and his former spouse. The motion judge did not make a finding that the Purchaser had delivered the notice to Blue Water, and the court was reluctant to make such a finding. Also, the facts of this case are distinguished from 1376273 Ontario Inc. v. Knob Hill Farm Ltd. (2003), 34 B.L.R. (3d) 95 (Ont. S.C.) – the Vendor in this case is an individual, not a corporation as in Knob Hill, and Blue Water was not a place of business, as in the case of Knob Hill, where the notice “would be surely found” by a responsible person. The Vendor did not live at Blue Water and the Vendor’s evidence was that no notice was found at Blue Water.
- No. The motion judge’s interpretation of the “entire agreement” clause is entitled to deference. The court found that there is no basis for interfering with the motion judge’s conclusion that other provisions as to notice should not be implied.
- No. The court stated that the “entire agreement clause” does not necessarily bar a claim that the Vendor waived a provision of the Agreement after the Agreement was concluded. However, on the facts of the case, the evidence does not establish waiver or amendment of the Agreement by post-agreement conduct. The facts do not demonstrate that the Vendor had an “unequivocal and conscious intention” to abandon his right to insist on strict compliance with the requirement that the Purchaser give notice in writing of its waiver of notice of conditions personally to the Vendor.
- No. Promissory estoppel is an equitable relief. Therefore, the party seeking to invoke it must show that its “past record in the transaction is clean”. The court concluded that while the motion judge concluded that the Purchaser’s conduct was not equivalent to fraud, he also characterized the Purchaser’s conduct as “hard and pointed”. As a result the court found that the Purchaser’s “past record in the transaction” was sufficient to deny relief on this equitable basis.
Dibiase v Spensieri Estate, 2014 ONCA 913
[Sharpe, van Rensburg and Pardu JJ.A.]
R. Anka, for the appellant
M. Marchioni and A.J. Marchioni, for the respondent
Summary Judgment; Fraudulent Conveyance; Quit Claim; Limitation Period
This was an appeal from the judgment of Justice C.A. Gilmore of the Superior Court of Justice, dated April 3, 2014.
The motion judge did not err in granting summary judgment dismissing the claim. There was no basis to interfere with the motion judge’s finding that when the appellant executed the 1996 quit claim, her intention was to make the title reflect the true ownership as she understood it. Her claim to set aside the 1988 conveyance had no prospect of success.
Any other claim for damages was barred by the two-year limitation period. Fraudulent concealment could not toll or extend the limitation period and the fact that the appellant only obtained the corroborating evidence in 2007 did not mean her claim would only be discovered at that time.
Zeppieri & Associates v Cascio, 2014 ONCA 915
[Hoy A.C.J.O., Simmons and Tulloch JJ.A.]
A. Pyper and J.A.D. Bousquet, for the appellant
G. Gryguc, for the respondent
Courts of Justice Act; Appeal; s. 19(1.2)(a);
This was an appeal from the order of David L. Corbett of the Superior Court of Justice, dated June 10, 2014, setting aside the Consent Certificate of Assessment dated June 7, 2013, declaring the associated Minutes of Settlement void and directing an assessment of costs.
The motion judge’s decision was a final order of a judge of the Superior Court of Justice for a single payment of not more than $50,000, exclusive of costs. Pursuant to s. 19(1.2)(a) of the Courts of Justice Act, the appellant’s appeal lay to the Divisional Court.
The information contained in our summaries of the decisions is not intended to provide legal advice and does not necessarily cover every matter raised in a decision. For complete information or for specific advice, please read the decision or contact us.