Glenn Elliott Cohen

The appellant appealed a motion judge's decision finding that the respondent's alleged breach of a confidentiality provision in minutes of settlement did not constitute a fundamental breach.

The appellant conceded there was no fundamental breach but sought a remedy analogous to Rule 49.09 of the Rules of Civil Procedure.

The Court of Appeal dismissed the appeal, holding that Rule 49.09 did not apply because the settlement was reached via minutes of settlement, not an offer to settle, and the rule does not alter substantive contract law.

However, the Court noted the motion judge erred in finding there was no breach at all, preserving the appellant's right to sue for damages for breach of contract.

The appellant, an execution creditor of a respondent who held a 25 per cent interest in a parcel of land as a tenant in common, sought a sale of the entire parcel under the Partition Act.

The application was dismissed at first instance and by the majority of the Divisional Court.

On appeal, the Court of Appeal held that a sheriff holding a writ of seizure and sale has neither a legal interest in the land nor a right to possession.

Consequently, the execution creditor does not qualify under the Partition Act to apply for partition or sale of the entire property.

The appeal was dismissed.