Harris v. McNeely et al.

Indexed as: Harris v. McNeely

47 O.R. (3d) 161

[2000] O.J. No. 472

No. C31279

Court of Appeal for Ontario

Carthy, Doherty and Feldman JJ.A.

February 25, 2000

Real property -- Right of first refusal -- Option -- Right of first refusal being converted into option and equitable interest in land -- Equitable interest in land lost through delay in seeking specific performance -- Evidence establishing that option holder waiving right to exercise option.

J owned a property known as Point Property. In 1968, he sold a portion of it to the Ms. They entered into an agreement which contained mutual rights of first refusal over their respective properties. The agreement was registered on title. In July 1988, without complying with the provisions of the right of first refusal, J sold the Point Property and some other lands to H. The Ms became aware of the sale to H but did not object or take any legal action. In 1998, H entered into an agreement to sell the Point Property to D. H asked the Ms to sign an application to remove their right of first refusal from the title of the Point Property, and, when they refused to do so, he gave them a notice advising them of their right of first refusal and giving them three days to meet the offer from D. The Ms responded with an offer that contained some minor variances in wording. H then took the position that their right of first refusal had expired and he applied to the court for a declaration to this effect. The applicatio n was granted on the grounds that the Ms' offer was not on the same terms as D's offer. The Ms appealed. On the hearing of the appeal, the court raised the question of whether there was any legal consequence to the Ms' failure to assert their right of first refusal upon the sale from J to H in 1988.

Held, the appeal should be dismissed.

By 1998, the Ms no longer had a right to first refusal. A right of first refusal initially is a contractual or personal right only. When the grantor of the right receives an offer to purchase, this converts the right of first refusal into an option, which is an equitable interest in land. A purchaser from the grantor with notice that the right of first refusal has been contravened is liable to be joined as a party and bound by an order of specific performance requiring the land to be conveyed to the holder of the option, that is, the right that initially was a right of first refusal. Applying these principles to the immediate case, the Ms had an option to purchase in 1988. However, once they learned about the sale to H in 1988, they were obliged to seek specific performance and, as this is an equitable remedy, it may be lost by the doctrine of laches. In this case, it was not necessary to determine precisely when the Ms lost their option because on the evidence they never intended to exercise it. H made significant improvements to the Point Property over the years and the Ms never took steps to assert any right and it was clear that they had waived the right to exercise the option. Accordingly, they had no equitable interest in the property when D obtained his equitable interest under the agreement of purchase and sale. D had the right to have the property conveyed to him. On these grounds, the appeal should be dismissed.

APPEAL from an order of Wilkins J. (1998), 21 R.P.R. (3d) 291 (Gen. Div.) declaring that a right of first refusal had expired.

Cases referred to 642947 Ontario Ltd. v. Fleischer (1997), 9 R.P.R. (3d) 261 (Ont. Gen. Div.) [supp. reasons (January 5, 1999), No. 69837/91Q (Gen. Div.)]; Bark-Fong v. Cooper (1913), 1913 38 (SCC), 49 S.C.R. 14, 16 D.L.R. 299, 5 W.W.R. 633, 701; Canadian Deposit Insurance Corp. v. Canadian Commercial Bank (1992), 1992 6109 (AB KB), 2 Alta. L.R. (3d) 1, 89 D.L.R. (4th) 168, 22 R.P.R. (2d) 182, [1992] 4 W.W.R. 155 (Q.B.); Canadian Long Island Petroleums Ltd. v. Irving Wire Products, 1974 190 (SCC), [1975] 2 S.C.R. 715, 50 D.L.R. (3d) 265, 3 N.R. 430 (sub nom. Irving Industries (Irving Wire Products Division) Ltd. v. Canadian Long Island Petroleums Ltd.); Hawksmoor Investments Ltd. v. Marr Construction Ltd., 1972 573 (ON SC), [1973] 1 O.R. 313, 31 D.L.R. (3d) 40 (H.C.J.), affd [1973] 1 O.R. 820n, 1972 1234 (ON SCDC), 32 D.L.R. (3d) 442n (Div. Ct.); Lindsay Petroleum Co. v. Hurd (1874), L.R. 5 P.C. 221, 22 W.R. 492; M. (K.) v. M. (H.), 1992 31 (SCC), [1992] 3 S.C.R. 6, 96 D.L.R. (4th) 289, 142 N.R. 321, 14 C.C.L.T. (2d) 1; McFarland v. Hauser, 1978 164 (SCC), [1979] 1 S.C.R. 337, 7 Alta. L.R. (2d) 204, 12 A.R. 332, 88 D.L.R. (3d) 449, 23 N.R. 362; McLeod v. Castlepoint Development Corp. (1997), 1997 12080 (ON CA), 31 O.R. (3d) 737, 8 R.P.R. (3d) 97, 25 C.P.C. (4th) 256 (C.A.), leave to appeal to S.C.C. refused (1997), 34 O.R. (3d) xv, 223 N.R. 394n; Sadie Moranis Real Estate Ltd. v. Hongkong Bank of Canada (1998), 1998 14832 (ON SC), 39 O.R. (3d) 691 (Gen. Div.), affd (1998), 1998 17723 (ON CA), 117 O.A.C. 123 (C.A.); Sail Labrador Ltd. v. Navimar Corp., 1999 708 (SCC), [1999] 1 S.C.R. 265, 169 D.L.R. (4th) 1, 235 N.R. 201, 44 B.L.R. (2d) 1 (sub nom. Sail Labrador Ltd. v. Challenge One (The)); Weber v. Texas Co., 83 F.2d 807 (5th Cir. 1936) Statutes referred to Law of Property Act, R.S.A. 1980, c. L-8, ss. 59.1(1)(a), 59.1(2) Authorities referred to Fry, A Treatise on the Specific Performance of Contracts, 6th ed. (1921), p. 90, paras. 205-06

Donald Lamont, for appellants, Federick and Esther McNeely. Jonathan F. Lancaster, for respondent, Howard Harris. Michael E. Fitton, for respondent, Ray Derbecker.

The judgment of the court was delivered by

FELDMAN J.A.: --

Introduction and Result

[1] Mr. Jones and Mr. and Mrs. McNeely had agreed in 1968 to give each other a right of first refusal over their respective lands. However, in 1988 Mr. Jones sold one of his properties, known as the Point Property, to Mr. Harris without first offering it to the McNeelys. In 1998 Mr. Harris sold the Point Property to two people, first to Mr. Derbecker but then to Mr. McNeely in purported compliance with the right of first refusal which Mr. and Mrs. McNeely had entered into with Mr. Jones. Mr. Harris then sought the assistance of the court to determine which of the two was entitled to purchase the Point Property from him.

[2] The matter began as an application by Mr. Harris for a declaration that the McNeelys' right of first refusal to the property had either expired or been extinguished prior to the 1998 sales, so that Mr. Derbecker took the property free of their extinguished or expired right. Wilkins J. determined that in 1998 the McNeelys still had their right of first refusal, that it bound Mr. Harris and was enforceable against the land in his hands [reported (1998), 21 R.P.R. (3d) 291]. However, because the McNeelys failed to exercise the right exactly in accordance with its terms, it then expired. Mr. Derbecker was therefore entitled to purchase the property from Mr. Harris pursuant to the terms of their agreement. The McNeelys appealed.

[3] In my view the McNeelys' appeal must fail. Their right of first refusal became an equitable option to purchase the lands when Mr. Jones, with whom they had the mutual right of first refusal, received the offer from Mr. Harris in 1988 and found it acceptable. The McNeelys lost their equitable interest by failing to enforce the option and obtain the land at any time thereafter. Mr. Harris was therefore free to sell to Mr. Derbecker in 1998.

Facts

[4] The Point Property was originally part of lands owned by Mr. Jones, who sold a portion of his lands to the McNeelys in 1968. They entered into a right-of-way agreement which also contained a mutual right of first refusal by each over the lands of the other in the following terms:

4. The Grantor and the Grantee hereby agree the one with the other that if one wishes to sell their property and has received an offer which they are willing to accept, then that person so receiving shall present the said offer to the other person or persons and the said person to whom it is presented shall have three days within which to meet the said offer, upon the same terms and conditions, otherwise this right of first purchase shall expire.

This agreement was registered on title 19 years later in 1987. By July 1988, the McNeelys had purchased two more parcels of land from Mr. Jones.

[5] In July 1988 Mr. Jones entered into an agreement of purchase and sale to sell the Point Property together with some of his other lands to Mr. Harris, without offering the lands to the McNeelys. There was some evidence that Mr. Jones had had some prior correspondence with the McNeelys, possibly suggesting that they were not interested in purchasing any more of his property. Mr. Jones has passed away, but nothing turns on the reason why the right of first refusal was not offered. Wilkins J. found that the McNeelys' right of first refusal was valid and subsisting at the time Mr. Jones sold his lands to Mr. Harris in 1988 and there is no appeal from that finding.

[6] The McNeelys soon became aware that Mr. Harris was to become their new neighbour. At no time did they make any objection, nor did they take any legal action to seek to enforce the right of first refusal.

[7] Ten years later, in July 1998, Mr. Harris entered into an agreement of purchase and sale of the Point Property with Mr. Derbecker, who advised the McNeelys of his purchase within a few days of entering into the agreement. Again they made no objection. As part of the closing requirements, Mr. Derbecker's lawyer requisitioned from Mr. Harris the removal of the right of first refusal from the title to the property. Mr. Harris' lawyer prepared an application to delete for Mr. Harris to take over to the McNeelys, and if the McNeelys refused to sign the application, then Mr. Harris was to present to them a letter advising them of the right of first refusal in respect of the Derbecker offer (which at that time was an accepted offer). That was exactly what happened when Mr. Harris met with Mr. McNeely on September 14, 1998.

[8] Mr. Harris' letter provided that Fred McNeely had "three days from the receipt of this notice to meet the attached offer upon the same terms and conditions". Mr. McNeely responded by submitting an offer to Mr. Harris within the three days. That offer contained some minor variances in wording and in named designees from the Derbecker offer. Mr. Harris then took the position that the McNeelys' rights had expired before Mr. McNeely made his offer and that in any event, the differences in the McNeely acceptance also resulted in expiry of the right. The McNeelys filed a caution on the title to the Point Property. Mr. Harris then commenced this application.

[9] The trial judge held that the mutual right of first refusal in respect of the Jones and McNeely properties had not been extinguished by any acts of Mr. Jones, Mr. Harris or the McNeelys over the years, and that when the option to exercise the right was offered to Mr. McNeely by Mr. Harris, he was in a position to validly accept it and obtain the first right to purchase ahead of Mr. Derbecker. However, the trial judge held further that because Mr. McNeely's offer was not in the exact terms of that of Mr. Derbecker, Mr. McNeely had not effectively exercised the option and it thereupon expired.

Issues on Appeal

[10] The McNeelys' appeal only challenged the finding of the trial judge that Mr. McNeely's offer to Mr. Harris was not on "the same terms" as the Derbecker offer. Although the determinations of the other issues by the trial judge were not challenged by either of the respondents on the appeal, when the matter first came on for argument a panel of this court raised with counsel whether there was any legal consequence of the McNeelys' failure to take any step to assert their right of first refusal in the lands sold by Jones to Harris ten years earlier, and in particular, whether the right of first refusal still existed and, if so, in what form. An adjournment was granted to allow the parties an opportunity to prepare and file further material.

[11] This issue is key because if the right no longer existed in 1998, then Mr. Derbecker's agreement with Mr. Harris in July 1998 gave him the prior equitable interest in the lands. In that case even if Mr. McNeely's offer in response to Mr. Harris in September was effective, he could obtain no right to purchase ahead of Mr. Derbecker.

Law

[12] The analysis turns on the legal status and effect of a right of first refusal. Two decisions from the Supreme Court of Canada and one from this court have established the following propositions:

(1) A right of first refusal is a personal right which does not run with the land. [See Note 1 at end of document]

(2) At the point in time when the grantor of the right receives an offer to purchase the grantor's interest which the grantor is prepared to accept, the grantee's right of first refusal is converted into an option to purchase which is an equitable interest in the land.

(3) Where land is transferred in breach of the agreement containing the right of first refusal and the transferee takes with notice of the restriction which bound the transferor/grantor, the transferee is liable to be joined and bound by an order of specific performance requiring the transferor/grantor to transfer the land to the grantee with the option.

[13] In Canadian Long Island Petroleums Ltd. v. Irving Wire Products, 1974 190 (SCC), [1975] 2 S.C.R. 715, 50 D.L.R. (3d) 265, the Supreme Court clarified the distinction between a right of first refusal and an option to purchase.

[14] In that case Irving was the successor to Glenwood, which had entered into a joint venture agreement with Sadim in respect of the working rights to certain oil and gas lands. The agreement contained a mutual right of first refusal in respect of the sale by either of them of all or part of their respective interests. Sadim initiated an offer to sell part of its interest to Long Island. Long Island accepted. Then Sadim advised Irving of the offer referring to the clause in the agreement containing the right of first refusal. Sadim also then advised Long Island of Irving's right of first refusal, and that Long Island would be advised of developments. Irving then agreed to purchase Sadim's interest. However, Sadim went ahead and conveyed to Long Island.

[15] The issue before the court was whether the right of first refusal was an interest in land; if so, it was void because it would have offended the rule against perpetuities. The court explained that an option to purchase land does create an equitable interest in land from the moment it is created and that interest is specifically enforceable. The interest is, however, contingent on the election to exercise the option. The court equated the interest to the interest of a purchaser under a firm contract who may call for a conveyance, the difference being that the purchaser's interest is not contingent. The court went on to state (at p. 732):

In other words, the essence of an option to purchase is that, forthwith upon the granting of the option, the optionee upon the occurrence of certain events solely within his control can compel a conveyance of the property to him.

[16] The difference between an option to purchase and a right of first refusal is that in the latter case, there is no specifically enforceable right at the time the agreement is executed. Rather the right is contractual only and consists of the agreement of the grantor that if at some time he becomes prepared to accept an offer to buy his property, then at such time the grantee has a time-limited option to purchase on the same terms.

[17] The court agreed with the views expressed in a 1936 judgment by the U.S. Fifth Circuit Court of Appeal in Weber v. Texas Co., 83 F.2d 807 at p. 808 (1936), wherein that court said (at pp. 732-33):

The rule against perpetuities springs from considerations of public policy. The underlying reason for and purpose of the rule is to avoid fettering real property with future interests dependent upon contingencies unduly remote which isolate the property and exclude it from commerce and development for long periods of time, thus working an indirect restraint upon alienation, which is regarded at common law as a public evil.

The option (it was in fact a right of first refusal) under consideration is within neither the purpose of nor the reason for the rule. This is not an exclusive option to the lessee to buy at a fixed price which may be exercised at some remote time beyond the limit of the rule against perpetuities, meanwhile forestalling alienation. The option simply gives the lessee the prior right to take the lessor's royalty interest at the same price the lessor could secure from another purchaser whenever the lessor desires to sell. It amounts to no more than a continuing and preferred right to buy at the market price whenever the lessor desires to sell. This does not restrain free alienation by the right to buy. [He may sell at any time, but must afford the lessee the prior right to buy.] The lessee cannot prevent a sale. His sole right is to accept or reject as a preferred purchaser when the lessor is ready to sell. The option is therefore not objectionable as a perpetuity.

[18] Dealing with the agreement between Sadim and Irving, the court held that it was a right of first refusal which did not create any interest in land. Rather it was a negative covenant by each owner that neither of them would substitute a third party as joint owner without giving the other the opportunity to acquire full ownership of the whole. Because the agreement was personal only and did not create an interest in land, the rule against perpetuities did not apply to it. Therefore, it was not void even though the personal obligation it created could last indefinitely.

[19] Having found that the right was not void, the question was what remedy was available to Irving, the oil and gas rights having already been conveyed by Sadim to Long Island. The court held that Irving was entitled to a decree of specific performance of its agreement with Sadim. Long Island had taken with knowledge of the requirements of the restrictive covenant. Therefore, as a stranger to the agreement who took possession of its subject matter with notice, it was liable as a party to the action for specific performance "upon the equitable ground of his conscience being affected by the notice," relying on Fry, A Treatise on the Specific Performance of Contracts, 6th ed. (1921), p. 90, paras. 205-06 (at p. 737).

[20] In McFarland v. Hauser, 1978 164 (SCC), [1979] 1 S.C.R. 337, 88 D.L.R. (3d) 449, Hauser had leased his land to McFarland to farm. The lease contained a right of first refusal. Sunderland, a real estate agent, offered Hauser $182,000 for the land. Hauser told McFarland about the offer, saying that he did not think he would accept it but would ask Sunderland for $200,000. He then told Sunderland that he had spoken to McFarland about the offer and that McFarland had not replied. He also counter-offered at $200,000. Sunderland replied that he would pay $190,000. They then entered into an option agreement dated February 28, 1974, allowing Sunderland the option to purchase the property for $190,000, the option being open until March 8, 1974. The option was stated to be subject to the McFarland lease. Sunderland exercised the option on March 7. Prior to any transfer or closing, McFarland sought a declaration of entitlement to the lands from Hauser.

[21] Following its analysis in Long Island, the Supreme Court held that McFarland's right of first refusal was initially a contractual right only, however "[i]t was converted into an option to purchase upon Hauser's having received an offer which he was prepared to accept. McFarland thereupon had an equitable interest in the land" (at p. 357).

[22] In that case, as in Long Island, the party with the option sought to enforce the option forthwith by bringing an action. He was entitled to an order for specific performance against Hauser. He did not require an order for specific performance against Sunderland who had not yet acquired the lands. Sunderland had also acquired an equitable interest in the lands, but McFarland's interest had priority.

[23] In McLeod v. Castlepoint Development Corp. (1997), 1997 12080 (ON CA), 31 O.R. (3d) 737, 8 R.P.R. (3d) 97 (C.A.), application for leave to appeal to the Supreme Court of Canada dismissed, (1997), 34 O.R. (3d) xv, McLeod was bound by an agreement to give a right of first refusal to Wilberford. However, he proceeded to enter into a contract to sell to a third party, Castlepoint, having initially forgotten about his contractual obligation to Wilberford. Once he remembered, he extended the right to Wilberford who also agreed to buy the property.

[24] This court followed Long Island and Hauser in holding that (at pp. 756-57):

. . . Wilberford's right of first refusal crystallized into an option and therefore an equitable interest in the property the moment before McLeod entered into the agreement of purchase and sale with Castlepoint. . . . Castlepoint's equitable interest in the property was one which arose subsequent to and was superseded by Wilberford's equitable interest.

Analysis

[25] Applying the principles of law set out in these cases to the facts before this court, the mutual right of first refusal was a personal contract between Mr. Jones and the McNeelys. When Mr. Jones received the offer from Mr. Harris in July 1988 to purchase the Point Property and other lands and decided that he was prepared to accept it, at that moment the McNeelys' right became an option to purchase all of those lands at the price and on the terms offered by Mr. Harris. That option was an equitable interest in the lands.

[26] However, unlike in the other cases, Mr. Jones never offered the lands to the McNeelys and no agreement was ever entered into between Mr. Jones and the McNeelys to purchase those lands. Nor did the McNeelys ever take any action in court to seek to enforce their right against Mr. Jones or to exercise their option to purchase on the Harris terms once they learned of the sale to Harris. In fact, the McNeelys neither took any action nor expressed either any concern about the sale by Jones to Harris, nor any intention to seek to exercise their option to purchase the lands for ten years.

[27] The question, therefore, is, by 1998 what was the status of the McNeelys' option to purchase and did they still have an equitable interest in the land, the right to enforce that option?

[28] The McNeelys' equitable interest in the lands was an option to purchase those lands on the terms, including the price, offered by Mr. Harris to Mr. Jones in 1988. Had Mr. Jones given the McNeelys their right of first refusal at the time before accepting Mr. Harris' offer, the McNeelys would have had to proceed at that time and on those terms. Under the agreement they had three days to respond.

[29] It therefore follows that once the McNeelys learned about the sale by Jones to Harris, had they wanted to exercise their option, they were obliged to seek specific performance of their agreement with Mr. Jones and be prepared to purchase the lands at that time on the terms offered by Mr. Harris. Because Mr. Harris bought with notice of the right of first refusal, he would have been bound by the order of specific performance. The McNeelys could also have sued Mr. Jones for damages for breach of contract within the relevant limitation period.

[30] How long did the McNeelys have to exercise their option? As specific performance is an equitable remedy, a person may lose the right to the remedy by delay. However, there is no fixed period, like a prescribed limitation period by which to measure. The factors which affect the application of the doctrine of laches, as it has been called, are set out in the leading authority: Lindsay Petroleum Co. v. Hurd (1874), L.R. 5 P.C. 221 at pp. 239-40, 22 W.R. 492:

. . . the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy. [See Note 2 at end of document]

[31] In M. (K.) v. M. (H.) (at pp. 77-78), the Supreme Court summarized the factors as follows:

Thus there are two distinct branches to the laches doctrine, and either will suffice as a defence to a claim in equity. What is immediately obvious from all of the authorities is that mere delay is insufficient to trigger laches under either of its two branches. Rather, the doctrine considers whether the delay of the plaintiff constitutes acquiescence or results in circumstances that make the prosecution of the action unreasonable. Ultimately, laches must be resolved as a matter of justice as between the parties, as is the case with any equitable doctrine.

[32] In this case we do not have to decide at what point the McNeelys lost their option to purchase by delay because on the evidence they never intended to exercise it at all. [See Note 3 at end of document] Mr. Harris had made significant improvements to the property over the years. The McNeelys took no steps at any time to assert any right to the property over the ten-year period. I am satisfied that after ten years it was clear that the McNeelys had waived their right to exercise the option to purchase and therefore no longer held an equitable interest in the Harris lands, which included the Point Property. [See Note 4 at end of document]

[33] Because the McNeelys had no remaining prior equitable interest in the property, Mr. Derbecker obtained the first equitable interest and the right to have the property conveyed to him pursuant to his agreement of purchase and sale with Mr. Harris of July 22, 1998.

Did Mr. McNeely Effectively Accept the Harris Offer to Sell the Point Property?

[34] The notice of application which began these proceedings sought only declarations to determine the rights of the parties to the property. In light of the conclusion I have reached that Mr. Derbecker has the prior right to purchase the property from Mr. Harris, the issue of whether Mr. McNeely effectively accepted what the respondent Mr. Harris submitted was in law an offer simpliciter [See Note 5 at end of document] is moot in this proceeding. The issue raises questions regarding the proper application of the doctrine of de minimis to a unilateral contract, which issue was recently left open for a future case by the Supreme Court of Canada in Sail Labrador Ltd. v. Challenge One (The), 1999 708 (SCC), [1999] 1 S.C.R. 265, 169 D.L.R. (4th) 1. This is not an appropriate case in which to deal with it.

Result

[35] In the result, I would dismiss the appeal. The result of the appeal turned on an issue raised by the court, not by the parties. In all of the circumstances, each party should bear its own costs of the appeal.

Appeal dismissed.

Notes

Note 1: In Alberta, this rule was reversed by s. 59.1(1)(a) and (2) of the Law of Property Act, R.S.A. 1980, c. L-8. They provide that a right of first refusal to acquire an interest in land is an equitable interest in land and that once a caveat is registered on title, the equitable interest runs with the land.

Note 2: See also Bark-Fong v. Cooper (1913), 1913 38 (SCC), 49 S.C.R. 14 at p. 23, 16 D.L.R. 299; M. (K.) v. M. (H.), 1992 31 (SCC), [1992] 3 S.C.R. 6 at pp. 76-80, 96 D.L.R. (4th) 289.

Note 3: Counsel for Mr. Harris argued that once Mr. Harris had spent money improving the land, the McNeelys would be barred from exercising their option. Although it is unnecessary to decide in this case, it may well have been arguable at least up to a point in time, depending upon the extent of the improvements and the duration of any delay by the McNeelys, that rather than be barred from obtaining specific performance of the agreement with Mr. Jones, the McNeelys could have reimbursed Mr. Harris for the moneys he had expended on the property, in order to eliminate the element of prejudice which could otherwise militate against an order of specific performance after the McNeelys had delayed in asserting their rights.

Note 4: Hawksmoor Investments Ltd. v. Marr Construction Ltd., 1972 573 (ON SC), [1973] 1 O.R. 313 at pp. 314-15, 31 D.L.R. (3d) 40 (H.C.J.), affirmed [1973] 1 O.R. 820n (Div.Ct.), followed in respect of right of first refusal in Canadian Deposit Insurance Corp. v. Canadian Commercial Bank (1992), 1992 6109 (AB KB), 22 R.P.R. (2d) 182 at pp. 185-86, 89 D.L.R. (4th) 168 (Alta.Q.B.); 642947 Ontario Ltd. v. Fleischer (1997), 9 R.P.R. (3d) 261 (Ont.Gen.Div.).

Note 5: See Sadie Moranis Real Estate Ltd. v. Hongkong Bank of Canada (1998), 1998 14832 (ON SC), 39 O.R. (3d) 691 (Gen.Div.), affirmed (1998), 1998 17723 (ON CA), 117 O.A.C. 123 (C.A.).