Howard Jerrold Alpert

This is a costs endorsement following a successful appeal.

The appellant's appeal was allowed, and costs of the appeal were awarded to the appellant.

The parties subsequently reached an agreement on the costs of the proceedings in the Superior Court, fixing them at $30,000 all inclusive, to be paid by the respondent to the appellant.

The appellant, 2484234 Ontario Inc., appealed the dismissal of its application for rectification and specific performance of a transfer agreement with the respondent, Hanley Park Developments Inc. The agreement concerned an easement over parts of the respondent's adjacent property for an access road to a proposed subdivision.

The appellant sought to rectify the agreement to include a fifth part of the property, which was essential for the access road and which the respondent knew was necessary but did not include in the formal agreement.

The application judge had dismissed the claim, finding no prior agreement on the fifth part and that the appellant had "unclean hands." The Court of Appeal allowed the appeal, finding that the application judge erred in interpreting the prior agreement, which, based on business efficacy and the duty of honest performance, implied an an obligation to include the necessary fifth part.

The Court also found the "unclean hands" finding was based on a misreading of the agreement.

Rectification was granted, and specific performance was ordered due to the uniqueness of the property.

The applicant sought rectification of a parts agreement to include an additional land parcel (Part 5) and specific performance of the rectified agreement.

The respondent opposed, arguing the applicant breached the agreement and failed to meet the test for rectification.

The court dismissed the application, finding the applicant had "unclean hands" due to breaches of the agreement and failed to satisfy the requirements for unilateral mistake rectification, specifically that the prior agreement did not include Part 5 and that the respondent's actions did not amount to fraud.