CITATION: 2248004 Ontario Inc. v. 1652564 Ontario Inc., 2012 ONSC 5574
DIVISIONAL COURT FILE NO.: 355/11
DATE: 20121001
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
2248004 ONTARIO INC.
Plaintiff
(Appellant)
– and –
1652564 ONTARIO INC. and MARSH REALTY & BUSINESS BROKERS INC.
Defendants
(Respondents)
Keith Lee-Whiting, for the Plaintiff (Appellant)
Melissa Seal, for the Defendants, 1652564 Ontario Inc.
HEARD at Toronto: October 1, 2012
KITELEY J. (orally)
[1] The parties entered into a written agreement of purchase and sale of a piece of real estate and the restaurant operated on it by the vendor. The deal did not close on the original date nor on the agreed upon extension date. The buyer sued to recover his deposit. The vendor counterclaimed against the purchaser for damages.
[2] This is an appeal from a decision of Deputy Judge Goldenberg dated June 27, 2011 in which he dismissed the buyer’s claim for repayment of its $25,000 deposit. The appeal is on the basis that the trial judge erred in his findings and conclusions with respect to the survey, the stock and the employees.
[3] In two places, the agreement of purchase and sale required the vendor to provide a copy of the “existing survey” within 7 days. As it turned out, the vendor did not have a survey, only a site plan.
[4] On page 133 of the transcript, the Trial Judge held that there was evidence from several witnesses that there had been some sort of an “understanding” that the survey would be provided within a month of the closing. He then concluded that “relying on that condition was not realistic” and he was not going to find that there was a breach of contract because of the failure to provide a survey.
[5] The real estate agent for the vendor gave evidence that he thought that he had reached an agreement with the agent of the purchaser that a survey would be provided after closing. There was no evidence that the vendor and the purchaser ever arrived at that agreement and no evidence that the agreement of purchase and sale was amended. That did not constitute an agreement on the part of the vendor and purchaser. Even if there was such an “understanding” between the agents, it did not amount to an amendment of the agreement itself. While the Deputy Judge may not have appreciated that the “understanding” was so limited, I agree with the legal conclusion of the Deputy Judge that the failure to provide a survey was not a breach of the APS. I am not persuaded that the Deputy Judge made an error of fact or law in dealing with the issue of the survey.
[6] The agreement of purchase and sale indicated that the purchase price included all stock. There was evidence that the agent for the vendor sought to amend the agreement of purchase and sale to exclude stock and have it valued on closing and adjusted subsequently. The Deputy Judge held that the purchaser never agreed to that amendment. He concluded that the request by the agent that was not incorporated into an amendment of the agreement of purchase and sale did not justify the breach by the purchaser. I am not persuaded that the Deputy Judge made an error of fact or law in dealing with the issue of the stock.
[7] The issue of the employees of the vendor was a matter on which there was considerable evidence. While it was apparent that the purchaser intended to carry on the business of the restaurant, the agreement of purchase and sale was silent as to what would happen with the employees. Based on the evidence it appears that when the purchaser, whom the Deputy Judge described as not very sophisticated, tried to negotiate a term about the employees, the vendor declined to do so. The Deputy Judge reviewed the evidence as to the implications of the purchaser taking those employees over, then pointed out on page 134 that that was not the question for him. He looked at the contract and saw nothing on the point and hence arrived at his conclusion that the purchaser could not use it as a basis for breaching the agreement. I am not persuaded that the Deputy Judge made an error of fact or law.
[8] The burden is on the appellant to establish that the Deputy Judge made palpable and overriding errors as to facts or he has made legal errors. He has not done so. I agree with counsel for the respondent that the appeal on those grounds must be dismissed.
[9] The appellant also challenges the ruling as to costs. The Deputy Judge was referred to correspondence that preceded the issuance of the claim in which the vendor proposed that the deposit be shared equally. That correspondence was not filed with the Deputy Judge but counsel provided it to me. Based on the submissions made and the contents of the correspondence, the decision made as to costs was well within the parameters of reasonableness. The Deputy Judge had discretion on the point. I am not persuaded that he made an error of fact of law.
[10] The appeal is dismissed. Appellant shall pay costs fixed at $5,000.
KITELEY J.
Date of Reasons for Judgment: October 1, 2012
Date of Release: October 5, 2012
CITATION: 2248004 Ontario Inc. v. 1652564 Ontario Inc., 2012 ONSC 5574
DIVISIONAL COURT FILE NO.: 355/11
DATE: 20121001
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
KITELEY J.
BETWEEN:
2248004 ONTARIO INC.
Plaintiff
(Appellant)
– and –
1652564 ONTARIO INC. and MARSH REALTY & BUSINESS BROKERS INC.
Defendants
(Respondents)
ORAL REASONS FOR JUDGMENT
KITELEY J.
Date of Reasons for Judgment: October 1, 2012
Date of Release: October 5, 2012