COURT OF APPEAL FOR ONTARIO
Strathy C.J.O., Brown and Huscroft JJ.A.
BETWEEN
Tashfeen Malik
Plaintiff/Defendant by Counterclaim
(Respondent)
and
Amal Attia, Mohamed Amr Abdelraouf, RE/MAX Performance Realty Inc., and John Doe Corporation
Defendants/Plaintiffs by Counterclaim
(Appellants)
Scott A. Rosen, for the appellants
Harinder Dhaliwal, for the respondent
Heard: October 9, 2020 by video conference
On appeal from the order of Justice Irving André of the Superior Court of Justice, dated July 22, 2019, with reasons reported at 2019 ONSC 4395, [2019] O.J. No. 6790.
BROWN J.A.:
I. OVERVIEW
1The parties entered into separate agreements for the purchase and sale of two abutting residential properties in Mississauga (the “Agreements”). The Agreements did not close because the appellant purchasers, Amal Attia and Mohamed Amr Abdelraouf (the “Buyers”), did not have the funds to pay the purchase prices.
2The respondent vendor, Tashfeen Malik (the “Seller”), sued the Buyers seeking forfeiture of their $100,000 deposit and damages of $500,000 for breach of contract.
3The Seller sought and obtained partial summary judgment declaring that the Buyers had breached the Agreements. The motion judge ordered the issues of damages and the forfeiture of the deposits to proceed to trial.
4The Buyers appeal. At the hearing, the appeal was dismissed for reasons to follow. These are those reasons.
II. FACTS
A. The history of the Properties
5The Seller was, and remains, the owner of two abutting properties in the City of Mississauga, municipally known as 4240 and 4246 Cawthra Road (the "Properties").
6In 1983, the then owner of 4246 Cawthra became the owner of the adjacent 4240 Cawthra. After 1983, the Properties were always conveyed together to the same new owners. In 2013, the Seller acquired the Properties by entering into two separate agreements of purchase and sale and the Properties were conveyed to the Seller by a single transfer instrument.
B. The Agreements
7On August 19, 2016, the Seller listed the Properties for sale through her real estate agent. The MLS listings for the Properties stated:
Brkage Remks: 4240 and 4246 Cawthra Rd Merged Together, Vendor Wants Both Lots to Be Sold Together. The City Has Consent For Subdivision. *** Call Listing Agent If Any Question.
8In September 2016, the appellant Buyer, Ms. Attia, contacted the Seller and her husband through Ms. Attia’s real estate agent. The real estate agent told Ms. Attia that the two Properties had to be sold together.
9On October 7, 2016, Ms. Attia, acting in trust for a company to be incorporated, entered into the two Agreements. The Agreements provided that the purchase price for each Property was $725,000 and the deposit $50,000, and that closing would take place no later than December 8, 2016. The Agreements were later amended to add the appellant Mr. Abdelraouf as a Buyer.
10Ms. Attia, on behalf of the Buyers, made the deposits totaling $100,000, which the defendant brokerage continues to hold in trust.
11Neither Agreement contained a mortgage financing condition. On October 14, 2016 the Buyers waived or deleted the provisions stipulating that their offers were conditional upon the approval of the terms by their solicitor.
12The Ontario Real Estate Association standard form was used for the Agreements, which contained the following clause regarding the Planning Act, R.S.O. 1990, c. P.13:
- PLANNING ACT: This Agreement shall be effective to create an interest in the property only if Seller complies with the subdivision control provisions of the Planning Act by completion and Seller covenants to proceed diligently at Seller’s expense to obtain any necessary consent by completion.
13The Agreement for 4240 Cawthra described the property as “Plan A24 PT LT 1143R12743 PT 6”; the Agreement for 4246 Cawthra described the property as “PT LT 11, PL A24, PART 5, 11, 43R12743.” Schedule A to the 4246 Cawthra Agreement stated that: “The Seller Agrees to provide the consent letter received from committee of adjustment regarding severance.” Schedule C to both Agreements contained a sketch of the Properties for use on an Application for Consent. The sketch showed that Part 6 would be severed from Part 5.
14A Mississauga Committee of Adjustment letter dated July 28, 2016 recorded the Committee’s approval of the Seller’s application to sever the Properties, subject to the condition that the Committee’s provisional approval be fulfilled by July 29, 2017. The letter was either attached to the 4246 Cawthra Agreement or separately provided to the Buyers.
C. The requisitions and responses
15Under the Agreements, the deadline for the Buyers to make requisitions was November 24, 2016. On November 23, 2016, Buyers’ counsel emailed Seller’s counsel requisitions for each Property that required, on or before closing, satisfactory evidence of compliance with “The Planning Act, Ontario, including completion of the Planning Act statements in the Deed/Transfer of Land.”
16The requisitions also required the Seller to execute and return a statutory declaration to Buyers’ counsel before closing, paragraph 5 of which was to state:
I do not retain the fee or the equity of redemption in, or a power or right to grant, assign or exercise a power of appointment with respect to any land abutting the lands being conveyed in the subject transaction.
17On December 7, 2016, Seller’s counsel sent Buyers’ counsel a letter enclosing the keys and closing documents to be held in escrow until the transfers had been registered. In the enclosed statutory declarations signed by the Seller (the “Statutory Declarations”), paragraph 5 had been amended by blacking out the word “not”, so that it read:
I do [blacked out] retain the fee or the equity of redemption in, or a power or right to grant, assign or exercise a power of appointment with respect to any land abutting the lands being conveyed in the subject transaction.
D. Extensions of the closing date
18The transactions did not close on December 8, 2016. Ms. Attia admitted that the Buyers did not have firm mortgage financing in place. The Seller agreed to a one-day extension of the closing date to December 9, 2016.
19On December 9, Buyers’ counsel advised that they had no mortgage instructions and “therefore no money to close.” Seller’s counsel stated that his client was “ready, willing and able to close the transactions on these firm deals” but was prepared to extend closing until December 19, 2016, provided certain conditions were met.
20Although the Buyers did not agree to the conditions, the parties continued to deal with each other. On December 12, Seller’s counsel advised that his client had learned the Buyers had a mortgage in place and could close either that day or the next. That did not turn out to be the case.
21Over the course of the ensuing week, the parties, through their counsel, negotiated the terms of an extension of the closing date, ultimately agreeing to extend the closing until January 10, 2017, on terms. Amending agreements executed by the parties on December 20, 2016 memorialized the extension agreement.
22On January 3, 2017, Seller’s counsel inquired of Buyers’ counsel “if everything’s on track for the closings.” On January 6, the Buyers sought a further extension of the closing date until January 26, 2017 to have more time to secure mortgage financing. They also inquired whether the Seller would enter into a vendor take-back mortgage.
23The Seller was not prepared to grant any further extension or enter into a vendor take-back mortgage.
24Inquiries by Seller’s counsel on January 10, 2017, the scheduled closing date, as to whether Buyer’s counsel was in funds went unanswered. The transactions did not close. The Buyers admit that they did not have the funds or mortgages in place to close the transactions.
25On January 11, 2017 Seller’s counsel informed Buyers’ counsel that the Buyers were in breach of the Agreements. On January 12, 2017, Seller’s counsel advised that the Buyers were in fundamental breach and their deposits would be forfeited.
26Between January 12, 2017 and January 25, 2017, the Buyers’ counsel and real estate agent made various proposals to the Seller to revive and restructure the transactions, including entering into a new agreement of purchase and sale that would cover both Properties. At no time did the Buyers suggest that the Seller had failed to tender proper closing documents.
27On January 30, 2017, the Seller filed her claim for forfeiture and breach of contract against the Buyers. On April 8, 2019, the Seller moved for summary judgment in respect of that claim. As of the date of the summary judgment motion, the Seller had not re-sold the Properties.
III. THE MOTION JUDGE’S REASONS
28In his reasons, the motion judge addressed two issues. First, the Buyers had argued that para. 5 of the Statutory Declarations stated, in respect of each of the two Properties, that the Seller was retaining the fee or equity of redemption in the abutting parcel, thereby contravening the subdivision control provisions of the Planning Act. According to the Buyers, those statements indicated that: (a) the Seller’s tender was defective, (b) she had repudiated the Agreements, and (c) the Agreements were invalid: at para. 17.
29The motion judge rejected this submission. He held that the Buyers’ offers indicated their intention to purchase the Properties together and that the parties intended to treat the two Properties as merged and capable of being sold simultaneously in a single transaction: at para. 24. Relying on the decision in Baker v. Nero (1979), 1979 CanLII 1856 (ON SC), 23 O.R. (2d) 646 (H.C.), the motion judge viewed the Agreements as constituting in substance a single transaction that did not sever the lands: at para. 25. He also observed that the subdivision control provisions of the Planning Act did not apply to a mistake made between the executing parties: at para. 27. All of which led him to conclude that the Seller did not breach the Agreements on December 8, 2016 when she presented the amended Statutory Declarations to the Buyers. He found that the Buyers breached the Agreements on January 10, 2017 when they failed to pay the amounts due on closing: at para. 29. The motion judge concluded that there was no genuine issue requiring a trial regarding the breach of the Agreements: at para. 30.
30The second issue concerned the Buyers’ contention that granting partial summary judgment would offend the principle that such relief should only be granted rarely: Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, 120 O.R. (3d) 438; Healthy Lifestyle Medical Group Inc. v. Chand Morningside Plaza Inc., 2019 ONCA 6, 46 C.P.C. (8th) 25, at para. 9. Instead, the Buyers argued the motion judge should set the action down for trial.
31The motion judge disagreed, holding that the facts regarding the breach of contract issue were not in dispute, making this one of the rare cases in which partial summary judgment was appropriate: at paras. 33-34. He directed a trial on the issues of damages and forfeiture of the deposit. He did not award costs.
IV. ISSUES ON APPEAL
32The Buyers submit that the motion judge made two errors warranting the intervention of this court. Specifically, they contend the motion judged erred by:
(1) concluding there was no genuine issue requiring a trial with respect to whether the Buyers had breached the Agreements; and
(2) granting partial summary judgment where it was inappropriate to bifurcate the claim, given the nature of the issues and the risk of inconsistent findings of fact.
V. FIRST ISSUE: DID THE BUYERS BREACH THE AGREEMENTS?
A. The issue stated
33On this appeal, the Buyers advance two related arguments.
34First, they contend the motion judge erred in holding that they breached the Agreements. Although acknowledging that they lacked the funds to complete the transactions on the scheduled closing dates, the Buyers argue that the Agreements did not comply with the subdivision control provisions of the Planning Act and therefore were void. The Buyers submit the evidence did not permit the motion judge to conclude, as he did at para. 24 of his reasons, that the Buyers intended to purchase both parcels together as part of a single transaction.
35Second, the Buyers submit that the Seller tendered defective closing documents – the amended Statutory Declarations – thereby signalling that she was not ready, willing, and able to provide marketable title on closing.
B. Analysis
36The Buyers make their submissions against the undisputed factual backdrop that they lacked the funds to close the purchase of the Properties on any of the scheduled closing dates: December 8 and 9, 2016, and January 10, 2017. In other words, in respect of the mutually dependent promises to pay and to convey, the Buyers were not ready, willing, and able to perform their promise to pay: Victor Di Castri, The Law of Vendor and Purchaser, 3rd ed. (Toronto: Thomson Reuters, 2020), at §615. However, the Buyers argue that the Seller also was not ready, willing and able to perform her promise to convey marketable title. That was because the Agreements were either void for contravening the Planning Act, or the Seller’s tender of documents was defective.
37Buyers’ counsel acknowledges that the arguments advanced by his clients are very technical and were not raised by Buyers’ transaction counsel at the time of the scheduled closings. Nevertheless, the Buyers contend that they are entitled to point to defective performance by the Seller to justify their own non-performance even if they were ignorant of the deficiency at the time of termination: Komorowski v. Van Weel (1993), 1993 CanLII 8470 (ON SC), 12 O.R. (3d) 444 (Gen. Div.), at paras. 42-43.
38On the facts of this case, it is difficult to see how the Buyers can assert that they were not aware, at the time of the scheduled closings, of the alleged defects in title and tender on which they now rest their appeal – they had entered into two separate Agreements for the conveyance of abutting lands and the Seller had delivered the allegedly defective Statutory Declarations prior to the first scheduled closing. However, this appeal does not turn on that point. In the reasons that follow, I explain why I do not accept their submissions that the Agreements were void as contrary to the Planning Act or that the Seller’s tender of closing documents was defective.
The validity of the Agreements
39Part VI of the Planning Act regulates the subdivision of land. Section 50(3) is the main subdivision control provision, which states, in part:
(3) No person shall convey land by way of a deed or transfer … or enter into an agreement of sale and purchase of land … unless,
(b) the grantor by deed or transfer … [or] the vendor under an agreement of purchase and sale … does not retain the fee or the equity of redemption in … any land abutting the land that is being conveyed or otherwise dealt with other than land that is the whole of one or more lots or blocks within one or more registered plans of subdivision… [.]
40Section 50(15) deals with the situation where abutting lands are conveyed simultaneously. It provides, in part, that:
Where a person conveys land … or enters into an agreement of sale and purchase of land … by way of simultaneous conveyances of abutting lands … the person so conveying or otherwise dealing with the lands shall be deemed for the purposes of subsections (3) and (5) to retain, as the case may be, the fee or the equity of redemption in … land abutting the land that is being conveyed or otherwise dealt with but this subsection does not apply to simultaneous conveyances or other simultaneous dealings involving the same parties acting in their same respective capacities. [Emphasis added.]
41Simultaneous conveyances of abutting properties involving the same parties merge the properties for Planning Act purposes: Donald H.L. Lamont, Lamont on Real Estate Conveyancing, 2nd ed. (Toronto: Thomson Reuters, 2020), at §9.3(b). The parties agree that the Properties so merged in 1983, when the then owner of 4246 Cawthra acquired the adjacent property at 4240 Cawthra.
42The motion judge’s finding, at paras. 23 and 24, that the parties regarded the sale and purchase of the Properties as a single transaction was amply supported by the evidence:
- the listings for the Properties stated that “4240 and 4246 Cawthra merged together. Vendor wants both lots to be sold together. The City has consent for subdivision”;
- the Agreements were entered into on the same date, between the same parties, with the Seller accepting both offers at the same time, and with the same closing date;
- the December 7, 2016 letter from Seller’s counsel responding to the Buyers’ requisitions advised that “we will not be completing the Planning Act statements as the Vendor owns [the other Property] (also being purchased by your client)”; and
- Buyers’ counsel voiced no objection to the structure of the transactions.
43Although at the hearing Buyers’ counsel was not in a position to admit the correctness of the motion judge’s finding, he did concede (as was also conceded in the Buyers’ factum1), that closing both Agreements simultaneously was permissible under the Planning Act and, if the deals had closed at the scheduled times, they would have complied with the Planning Act.2
44The jurisprudence and practice literature support the view that conveyances meet Planning Act s. 50(15)’s requirements for “simultaneous conveyances … involving the same parties acting in their same respective capacities” when a vendor who has entered into two agreements to sell abutting lands to the same purchaser simultaneously tenders two deeds to the purchaser and the deeds are registered simultaneously, with allowance for any inevitable systemic temporal delays or differences: see the cases referred to in Lapolla v. The Estate of John Bostock, 2017 ONSC 7448, 92 R.P.R. (5th) 273, at paras. 80-81; Weirfoulds LLP, Ontario Planning Practice: Annotated Statutes and Regulations (Toronto: Thomson Reuters, 2019), at PA 1, s. 50(15); Practical Law Canada, “Simultaneous Conveyancing When Land in Both Registry and Land Titles” (Thomson Reuters, October 2020); and Ian Rogers & Alison Butler, Canadian Law of Planning and Zoning, 2nd ed. (Toronto: Thomson Reuters, 2019), at §5.2.6.
45By entering into the two Agreements to sell the abutting Properties to the same purchaser with the same closing date, the parties clearly treated the purchase and sale of the Properties as a single transaction. The Agreements contemplated that on closing there would be simultaneous conveyances that conformed to s. 50(15) of the Planning Act. Accordingly, I do not accept the Buyers’ submission that the Agreements were void.
The adequacy of the tender and the Statutory Declarations
46The Buyers’ second, but related, submission is based on the amendments the Seller made to para. 5 of the Statutory Declaration for each Property. Specifically, the Seller blacked out the word “not”, so that it read:
I do [blacked out] retain the fee or the equity of redemption in, or a power or right to grant, assign or exercise a power of appointment with respect to any land abutting the lands being conveyed in the subject transaction.
47The Buyers submit that the Seller’s tender of documents was invalid because she “deliberately amended the standard statutory declarations requisitioned by [Buyers’] counsel to confirm under oath that the [Seller] would retain the fee (title/ownership) in abutting property after closing of each of the two transactions. The [Seller] must have been of the view that she was attempting to close the transactions in violation of the Planning Act.”
48I do not accept that submission; it runs counter to the weight of the evidence.
49The parties did not exchange draft deeds or transfers prior to closing,3 so the motion judge was not able to assess the significance of the amendments to the Statutory Declarations in light of the language of the transfer documents4 or determine whether the Properties were to be conveyed by a single deed or separate transfers.
50If separate deeds were to be used, the amendments to the Statutory Declarations could be regarded as the product of the Seller’s punctiliousness. Even under a system of sequential electronic registration, things do not occur instantaneously. There would be a moment in time when the Seller retained the fee in the yet-unregistered deed for the abutting Property, but the retained fee would disappear upon the registration of the second deed. As such, the Statutory Declarations could be interpreted as a technically correct description of the chain of events that would have occurred on sequential registration.
51However, the motion judge, at para. 27, seemed to suggest that the amendments were errors or mistakes, although his reasons are far from clear on the point. The Seller did not adduce any evidence explaining the amendments, but in her factum she takes the position that the amendments were a curable defect.
52In my view, at the end of the day it matters not whether the amendments resulted from an error or from punctiliousness. Three pieces of evidence regarding the Seller’s conduct demonstrate that the amendments to the Statutory Declarations were made in the context of the Seller’s communicated intention that the Agreements would culminate in the simultaneous conveyance of the Properties.
53First, in a letter dated December 7, 2016 responding to requisitions concerning 4240 Cawthra, Seller’s counsel advised that “[w]e will not be completing the Planning Act statements as the Vendor owns 4246 Cawthra (also being purchased by your client).” A similar letter was sent regarding 4246 Cawthra, indicating that the Seller owned 4240 Cawthra, which the Buyers were purchasing.
54Second, on December 12, 2016, Seller’s counsel, responding to advice from Buyers’ counsel that his clients were assigning one Property, wrote: “My client is the owner of both properties and they are part lots. I just want to mention it in case you missed it.”
55Finally, in his email of January 6, 2017 to Buyers’ counsel, Seller’s counsel stated, in part:
You told me during our telephonic conversation that your client can assign the properties to 2 different parties and then raise the planning act compliance issue and that could impair my client's right to forfeiture of the deposit.
Please be advised that your client made the offer to purchase with full knowledge that properties have merged being abutting lands. The amendment to agreement for both properties dated Dec 20th 2016 also reflects that as the names of the new buyers mirror on both the amendments.
If these agreements are to be potentially further assigned as suggested, they can be assigned to same assignee and not to 2 separate assignee's and We expect your client to disclose this letter and the fact that the properties are merged to the potential assignee's and if 2 separate assignee's decide to buy the properties, they will do so at their own peril and your client will be responsible for the same.
56These three communications clearly indicate that the Seller sought to close the transactions in compliance with the Planning Act.
57When read in the context of the Seller’s communications showing that the Agreements, in substance, called for simultaneous conveyances, the amendments to para. 5 of the Statutory Declarations cannot be characterized as a defect in the tendered documents or a failure to effectively answer the Buyers’ requisition: Smith v. Tellier (1974), 1974 CanLII 1337 (ON CA), 47 D.L.R. (3d) 342 (Ont. C.A.), at p. 344, rev’d on other grounds 1975 CanLII 27 (SCC), [1976] 2 S.C.R. 255. On the contrary, the Seller at all times made it clear that she was ready, willing, and able to convey marketable title to the Properties in compliance with the Planning Act, thereby fulfilling her obligation under s. 15 of the Agreements: Zender v. Ball (1975), 1974 CanLII 730 (ON SC), 51 D.L.R. (3d) 499 (Ont. H.C.), at pp. 505-6. Accordingly, I see no error in the motion judge’s conclusion, at para. 29, that the Seller did not breach the Agreements on December 8, 2016 when she presented the amended Statutory Declarations to the Buyers.
Conclusion on Issue 1
58For these reasons, I see no error in the motion judge’s conclusion that the breach of the Agreements occurred on January 10, 2017, when the Buyers failed to pay the full amounts owing under the Agreements.
VI. SECOND ISSUE: DID THE MOTION JUDGE ERR BY GRANTING PARTIAL SUMMARY JUDGMENT?
59The Buyers submit that the motion judge erred in granting partial summary judgment because this is a complex, multi-issue case with facts and credibility issues in dispute and which lacks a gating issue that might save the parties from needing a trial: 2287913 Ontario Inc. v. Blue Falls Manufacturing Ltd., 2015 ONSC 7982, [2015] O.J. No. 6760, at paras. 10-11. They contend that the motion judge’s findings will unfairly bind the trial judge who considers the issues of relief from forfeiture and the claim for damages.
60I am not persuaded by this submission. On the issues as framed by the pleadings and the affidavit evidence, the risk of inconsistent findings of fact on the issues of liability, on the one hand, and the issues of forfeiture and damages, on the other, is minimal.
61Yet, the risk of inconsistent findings is only one of several matters that a motion judge must consider when asked to entertain a motion for partial summary judgment. Reduced to its essence, the decision in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 promoted summary judgment as a procedural tool that offers the prospect, when used in the right circumstances, to provide litigants with timely and affordable access to the civil court system: at paras. 2-5. Given that simple objective, before embarking on hearing a motion for partial summary judgment a motion judge must determine whether, in the circumstances, partial summary judgment will achieve the objectives of proportionate, timely, and affordable justice or, instead, cause delay and increase expense: Butera v. Chown, Cairns LLP, 2017 ONCA 783, 137 O.R. (3d) 561, at paras. 29-34; Service Mold + Aerospace Inc. v. Khalaf, 2019 ONCA 369, 146 O.R. (3d) 135, at para. 14.
62When faced with a request to hear a motion for partial summary judgment, a motion judge should make three simple requests of counsel or the parties:
(i) Demonstrate that dividing the determination of this case into several parts will prove cheaper for the parties;
(ii) Show how partial summary judgment will get the parties’ case in and out of the court system more quickly;
(iii) Establish how partial summary judgment will not result in inconsistent findings by the multiple judges who will touch the divided case.
63I do not know what, if any, motion case management or triage system was in place in the Central West Region at the time this motion for partial summary judgment appeared on the motion judge’s docket. But, had those three requests been made before embarking on the hearing, I strongly suspect the answer would be along the following lines: while proceeding with a motion for partial summary judgment was not likely to risk inconsistent verdicts or findings, it would certainly increase the overall costs of litigating this case and delay its end-point even further.
64This case involves a modest amount of money, when assessed in proportion to the high costs of litigating civil cases in Ontario courts. There is a dispute over who gets to keep the $100,000 in deposits. The amount of damages truly at stake is quite uncertain, as the Seller filed no evidence on that issue. Absent such evidence, this case has all the hallmarks of falling within the monetary limits of a simplified procedure action. Bifurcating a simplified procedure action invariably will push legal costs into the realm of the disproportionate.
65The issue of delay must be looked at from two perspectives. First, the action was commenced on January 30, 2017 and set down for trial by the Buyers about 1.5 years later, on September 5, 2018. According to the Buyers’ motion confirmation form, a pre-trial conference was scheduled for March 2020. If that pre-trial conference date was the first available date (which is unclear from the record), one can certainly understand the temptation for a party to prod the action along by bringing a motion for partial summary judgment.
66But, when looked at from another perspective, here the action sits, two years after being set down for trial. It still has not reached a final adjudication on the merits. The main money issues – who gets to keep the deposits and whether the Buyers must pay damages – still have not been adjudicated. There is every prospect that by the time those issues are adjudicated, this action will have languished in the Ontario civil court system for four to five years, an unconscionable amount of time for an action involving a modest amount of money.
67As a matter of process, I strongly disagree with the Seller’s decision to move for partial summary judgment and refrain from filing any evidence of damages and with the motion judge’s acquiescence in hearing the motion so framed. That said, it is not a ground for appellate intervention. To set aside the judgment solely on the basis that the process added cost and delay would, in its own turn, only add more cost and delay.
68I appreciate that judicial time for civil matters is stretched thin in most regions of this province. But for summary judgment to achieve its stated objective – faster and cheaper access to a final adjudication on the merits – triage processes must be put in place so that judges end up determining a case once and for all on the merits, instead of slicing determinations into a series of partial summary judgments.
VII. DISPOSITION
69For the reasons set out above, I would dismiss the appeal.
70The Seller seeks partial indemnity costs of $5,640.10, inclusive of disbursements and applicable taxes. That is a fair and reasonable amount of costs for the appeal. I would order the Buyers to pay the Seller that amount within 30 days of the release of these reasons.
Released: “GRS” DEC 10 2020
“David Brown J.A.”
“I agree. G.R. Strathy C.J.O.”
“I agree. Grant Huscroft J.A.”
Footnotes
- Buyers’ factum, para. 52.
- There was no evidence that the Seller owned a third property that abutted 4240 or 4246 Cawthra Road.
- Under the electronic registration system, the purchaser’s solicitor generally bears the responsibility to prepare and register the electronic documents, including the deed/transfer: Lamont on Real Estate Conveyancing, §1A.1; Law Society of Ontario, Practice Guidelines for Electronic Registration of Title Documents, Document Registration Agreement, section 3. The Buyers’ solicitor did not provide a draft deed/transfer for the Seller’s consideration.
- Section 16 of the Agreements provided that: “If requested by Buyer, Seller covenants that the Transfer/Deed to be delivered on completion shall contain the statements contemplated by Section 50(22) of the Planning Act.” In general terms, s. 50(22) states that where a deed or transfer contains prescribed statements by the grantor, grantor’s solicitor, and grantee’s solicitor to the effect that the deed does not contravene s. 50 of the Planning Act, any contravention of s. 50 does not have the effect of preventing the conveyance of any interest in the land. If the Buyers’ solicitor had produced deeds containing such language, the amendments made by the Seller to the Statutory Declarations would be immaterial.
