COURT OF APPEAL FOR ONTARIO

DATE: 20000817

DOCKET: C33946
C33956

RE: JOHN O’BRIEN, CONSTANCE O’BRIEN, TONY PETTY and BARBARA PETTY (Plaintiffs/Appellants) -and- DONALD DENNIS McNABB, BANK OF NOVA SCOTIA and STANLEY MICHAEL MALOUF (Defendants/Respondents)

RE: GAETANNE CLAIRE GUILLEMETTE (Plaintiff/Appellant) -and- DONALD DENNIS McNABB, BANK OF NOVA SCOTIA and STANLEY MICHAEL MALOUF (Defendants/Respondents)

BEFORE: MCMURTRY C.J.O., BORINS AND FELDMAN JJ.A.

COUNSEL: Martin Sclisizzi, for the plaintiffs/appellants

Richard Forget, for the defendant/respondent

Donald Dennis McNabb

HEARD: August 15, 2000

On appeal from the judgments of Justice Lawrence C. Kozak at Thunder Bay, Ontario dated February 28, 2000.

E N D O R S E M E N T

[1] These are two appeals from the judgments of Kozak J. granting the respondents’ motions for summary judgment and dismissing the actions of the respective respondents. As identical issues were raised in each appeal, they were argued together. For the following reasons, we would allow each appeal.

[2] Although the motions judge was correct that rule 20.04(4) permits the court to determine a question of law and grant judgment accordingly where the court is satisfied that the only genuine issue is a question of law, he erred in his characterization of the issue which he identified as having been raised by the evidence as a question of law. He said that the only genuine issue for trial was “whether the condition precedent … was fulfilled within a reasonable period of time as contemplated by the parties and conditions of the agreement of purchase and sale”.

[3] In our view, not only did the motions judge err in concluding that whether the condition precedent had been fulfilled within a reasonable time raised a question of law, he erred in considering the issue at all. The respondent’s motion in each case was for “partial summary judgment” and was narrowly confined to whether the respective agreement of purchase and sale created a valid equitable interest in land, or whether it violated s. 50 of the Planning Act at the relevant time and was null and void. In the result, the motions judge erroneously identified the only issue as a question of law and proceeded to determine each of the appellants’ claims adversely to them.

[4] Clearly the issue whether the condition precedent had been fulfilled within a reasonable time is not a question of law. It is a question of fact. As such, it constituted a genuine issue for trial which was for the trial judge to decide.

[5] Accordingly, we would allow each appeal. The judgments of Kozak J. are set aside and it is ordered that each action is to proceed to trial. In the circumstances, the costs of the appeals are to be in the cause.

“R.Roy McMurtry C.J.O.”

“ S. Borins J.A.”

“Kathryn N. Feldman J.A.”

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