COURT FILE NO.: 232/05
DATE: 20051114
SUPERIOR COURT OF JUSTICE - ONTARIO
DIVISIONAL COURT
RE: 985813 ONTARIO LTD., APPLICANT (RESPONDENT IN APPEAL) v. VICTOR TAVARES IN TRUST, RESPONDENT (aPPELLANT)
BEFORE: Then, Lax & Swinton JJ.
COUNSEL: Brian P. Bellmore, for the Appellant
Neil S. Abbott, for the Respondent
HEARD at Toronto: November 9, 2005
E N D O R S E M E N T
[1] Notwithstanding Mr. Bellmore’s able submissions, we agree with Jennings J. that this was a purchase of a block parcel of land and not a purchase on a square foot basis.
[2] When the purchaser inquired about the property, the real estate agent represented that the land size was 81.00 feet x 143.00 feet or 11,583 square feet. Subsequently, he gave the purchaser a site plan with precise measurements that showed an irregular 7-sided parcel of land. Shortly before closing, the purchaser’s architect calculated the square footage from the site plan, concluding that it was around 9,320 square feet. Even without doing the calculations, it was apparent or ought to have been apparent to the purchaser that the land size could not be 11,583 square feet, given the measurements on the site plan.
[3] Jennings J. was incorrect that the vendor’s agent was also the purchaser’s agent at the time the representation was made. Nevertheless, the purchaser could not have been misled by the representation of the agent once he reviewed the site plan. Also, there was evidence that the purchaser was familiar with the property and had inspected it on two occasions.
[4] The property was described in the Agreement of Purchase and Sale by municipal address and by legal description as having a frontage of 80 feet more or less by a depth of 143 feet more or less. Both parties had to have known that that these measurements did not correctly describe the size of the property. Even if there was a misrepresentation, there is an “entire agreement” clause in paragraph 26 of the agreement. If the purchaser was buying square footage, he could have made square footage a term of the agreement and he did not do so. In our view, the purchaser bargained for a block parcel of land and this is what he received.
[5] The appeal is therefore dismissed with costs to the respondent. If the parties cannot agree on quantum, they may provide brief written submissions to the Registrar of the Divisional Court within 10 days.
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Then J.
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Lax J.
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Swinton J.
DATE RELEASED: