Court of Appeal for Ontario
Before: Laskin, Sharpe and MacFarland JJ.A.
Between:
Alfred Dyck
Plaintiff (Appellant)
and
Dacon Corporation Limited, Lucia Maria Ruthland and Taras Kowalczyszyn
Defendants (Respondent)
Counsel:
Jason Dutrizac and D. Kenneth Gibson, for the appellant
John R. Crouchman, for the respondent
Heard: August 28, 2009
On appeal from the judgment of Justice Alan D. Sheffield of the Superior Court of Justice dated April 14, 2008.
APPEAL BOOK ENDORSEMENT
1In our view, the claim asserted in this action arises solely under the July 19, 1988 agreement. That is how the claim is pleaded and that is how it was dealt with by the trial judge.
2The rights under the 1988 agreement were all predicated on the registration of the new plan of a subdivision. The trial judge found that Dacon made reasonable efforts to get the plans registered. Despite those efforts, the new plan of subdivision was never approved. Dacon therefore was never in breach of the agreement.
3Even if the steps Dacon took in 1993 made compliance with paragraph 4 of the agreement more difficult, its obligations under that paragraph was never triggered.
4For these reasons, we see no error in the trial judge’s conclusion that Dacon did not breach the agreement.
5Accordingly, it is unnecessary to deal with the issue of damages.
6The appeal is dismissed, with costs fixed at $12,460, inclusive of disbursements and GST.