Court of Appeal for Ontario

Date: 2023-07-18 Docket: COA-22-CV-0242

Judges: Huscroft, Miller and Paciocco JJ.A.

Parties

BETWEEN:

Pine Glen Thorold Inc. Applicant (Respondent)

and

Rolling Meadows Land Development Corporation Respondent (Appellant)

AND BETWEEN:

Rolling Meadows Land Development Corporation Applicant (Appellant)

and

Pine Glen Thorold Inc., Pine Glen Homes Inc., Pine Glen General Contractors Inc., Edward Jurinic and/or Justin Pellicciotta, operating as Pine Glen and/or Pine Glen Homes, Pine Glen John Doe Corporation, operating as Pine Glen and/or Pine Glen Homes and Meridian Credit Union Limited Respondents (Respondents)

Counsel

For the appellant: Aaron Blumenfeld Dishant Dalip Tuteja

For the respondents: Mark A. Klaiman

Heard: June 28, 2023

On appeal from the judgments of Justice David L. Edwards of the Superior Court of Justice, dated August 11, 2022.

Reasons for Decision

[1] The appellant appeals from judgments dismissing its motion for an order converting the applications to an action, finding the agreement of purchase and sale between the appellant and the respondent to be binding, and finding that the respondent did not breach the contract.

[2] The appellant makes three arguments on appeal. First, it argues that the application judge erred in refusing to convert the applications, one of which it brought, into an action. Second, the application judge erred in failing to find that the appellant made a unilateral mistake in signing the contract. Third, the application judge erred in quantifying the value of the renovations that was set off against the deposit the respondent was required to pay.

[3] We do not accept any of these arguments. The appeal is dismissed for the reasons that follow.

[4] The respondent sought a declaration that the parties were bound to an agreement of purchase and sale for the price set out in their October 14, 2020 agreement. That agreement replaced an earlier agreement, which included a lower price of $4,466,000 and permitted the appellant to alter the purchase price by $200 per foot of frontage, but did not otherwise include a price adjustment mechanism. The parties renegotiated the earlier agreement when the price of real estate increased, increasing the purchase price to $6,148,000 and removing two conditions. This litigation ensued after the appellant made it clear that it would not close the real estate transaction in exchange for this $6,148,000 purchase price, claiming that the agreement of purchase and sale contemplated an adjustment to the closing price if the frontage of the property exceeded the foot frontage referenced in the agreement of purchase and sale, which it did.

[5] Conversely, the appellant brought an application for a declaration that the respondent breached the agreement of purchase and sale in addition to a declaration that it was entitled to treat the agreement as at an end. In the alternative, the appellant sought a declaration that the agreement was void or otherwise unenforceable on several bases, including unilateral and mutual mistake.

[6] The application judge found that there were no material facts in dispute that required a trial and concluded that he could adjudicate the issues raised in both applications based on the record. The appellant argues that he erred in doing so, but this was the application judge’s call to make. He referred to the governing principles and was alive to the appellant’s arguments. The application judge had before him a large record, including affidavits and transcripts of cross-examinations as well as the agreements of purchase and sale and related correspondence, that was sufficient for him to make the required decisions on the applications. As discussed further below, we do not accept that the application judge wrongly made credibility findings. The appellant has established no palpable and overriding error or other basis for this court to interfere with the application judge’s decision not to convert the applications to an action.

[7] The appellant argues that the application judge erred in failing to find that the appellant made a unilateral mistake when entering into the amended agreement. It is not clear whether this argument was made before the application judge. The record in this regard was not put before this court and counsel for the appellant could not speak to what happened on the application. Although mistake was pleaded, the respondent said that it was not argued on the application. However, in its factum, the respondent raised no objection to this court dealing with the matter and addressed the mistake issue.

[8] We are not persuaded that there is any error warranting intervention on the basis that the appellant made a unilateral mistake. It is clear that the amended agreement increased the purchase price substantially and simplified its terms. The application judge described the agreement as “crystal clear”, noting that the appellant’s principal, Glen Gordon, told the respondent’s principal, Edward Jurinic, that the agreement was “very simple and straight forward”. In these circumstances, the application judge said that it “strains credibility to conclude that Mr. Gordon did not understand” the agreement.

[9] We do not read this as an inappropriate credibility judgment. It is plain from the decision that there was no basis in the record to conclude that Gordon, a sophisticated businessman who had made 55 real estate agreements involving the sale of portions of his 400-acre farm, made a mistake, still less to conclude that the respondent knew of the alleged error, as a remedy for a unilateral mistake requires. The application judge considered and rejected numerous arguments that the respondent acted improperly. He found that the respondent did not pressure Gordon to sign the contract, “trick him” by not forwarding a copy of the original agreement to him, or make a misrepresentation that led Gordon to execute the agreement. He found, further, that Gordon did not sign the agreement under duress, and it would not be unconscionable to let the agreement stand. Again, these findings were open to the application judge on the record that was before him and there is no basis for this court to interfere with them.

[10] Finally, there is no merit in the argument that the application judge erred in quantifying the value of the renovations performed by the respondent, which were to be credited against the deposit owed pursuant to the agreement of purchase and sale. Although the initial budget for the renovations was set at $575,880, it is not disputed that the work changed considerably during the course of the renovations and the budget for the work increased. The application judge found that Gordon was satisfied with the extent and quality of the work and did not dispute the final bill of $725,672.30 when he received it on December 3, 2021. Further, the application judge found that the appellant raised the renovations issue in an attempt to get out of the sale agreement. These findings were open to the application judge and reveal no error, still less a palpable and overriding error.

[11] The appeal is dismissed.

[12] The respondent is entitled to costs of the appeal and the motion to extend time in the agreed amount of $15,000, all inclusive.

“Grant Huscroft J.A.”

“B.W. Miller J.A.”

“David M. Paciocco J.A.”