The appellant appealed the dismissal of his application for specific performance of an option to repurchase land.
The appellant had sold two lots to the respondent in 2012 for $1,160,000, with the respondent taking back a mortgage of $800,000.
The agreement included an option clause requiring the respondent to construct an industrial building within 30 months, failing which the appellant could repurchase at the original price.
The respondent failed to build and the appellant exercised the option in September 2016.
The application judge dismissed the claim, finding the option had expired and the appellant was not ready, willing and able to close.
The Court of Appeal allowed the appeal, finding the application judge erred in law regarding the "time is of the essence" clause, misapprehended the facts regarding the appellant's financial capacity, and incorrectly required tender when the respondent had clearly repudiated the agreement.
The court granted specific performance as the property was unique to the appellant's subdivision development plan.