Greenbanktree Power Corp. v. Coinamatic Canada Inc. [Indexed as: Greenbanktree Power Corp. v. Coinamatic Canada Inc.]
75 O.R. (3d) 478
[2004] O.J. No. 5158
Docket: C41342
Court of Appeal for Ontario
Laskin, Rosenberg and LaForme JJ.A.
December 24, 2004
Partition and sale -- Commercial property -- Co-tenant having small interest in five commercial properties -- Co-tenant applying for sale of property under Partition Act -- Majority owner opposing application on grounds of costs that it would incur in obtaining mortgage discharges and in paying land transfer tax to reacquire the properties -- Applicant could not be compelled to sell its minority interest -- Application for sale granted -- Partition Act, R.S.O. 1990, c. P.4.
NOTE: The catchlines above relate to a decision of the Divisional Court. An appeal of this judgment to the Court of Appeal for Ontario (Laskin, Rosenberg and LaForme JJ.A.) was dismissed on December 24, 2003 37762 (ON SCDC), 2004, 69 O.R. (3d) 784. The endorsement of the court was as follows:
John A. Campion, Q.C. and Annie M.K. Finn, for appellant, Steven Pearlstein, for respondent MCAP Financial Corporation in trust for British Columbia Investment Management Corporation, Ronald B. Moldaver, Q.C., for respondent Greenbanktree.
[1] BY THE COURT: -- The appellants have clearly raised the scope of the discretion under the Partition Act, R.S.O. 1990, c. P.4. They submit that courts since Davis v. Davis, 1953 148 (ON CA), [1954] O.R. 23, [1954] 1 D.L.R. 827 (C.A.) have improperly narrowed the scope of the discretion to circumstances of malice, oppression and vexatious intent. This test has been repeatedly followed in this court, most recently in 2002 in Latcham v. Latcham, [2002] O.J. No. 2003, by the Divisional Court and by judges at first instance. In our view, that test is the appropriate one, particularly in a commercial [page479] context. The Act gives tenants in common a prima facie right to compel partition or sale. A narrow interpretation of the discretion makes commercial sense by enhancing predictability.
[2] Co-tenants should only be deprived of this statutory right in the limited circumstances described above, with this caveat. In our view"oppression" properly includes hardship, and a judge can refuse partition and sale because hardship to the co-tenant resisting the application would be of such a nature as to amount to oppression.
[3] The appellants have not shown the respondent acted vexatiously, oppressively or with malice. They are sophisticated commercial parties who went into these transactions with their eyes wide open knowing the respondent's position and knowing that it might invoke the provisions of the Act.
[4] The motion judge considered the hardship alleged by the appellants and was not satisfied he should exercise his discretion in their favour. The exercise of this discretion was not unreasonable.
[5] The appellants submit that Pitt J. made a palpable and overriding error in stating that there was no evidence of a "generous" offer. We agree with the respondent that this statement is supported by the record, there being no admissible evidence of the value of the respondent's interest. In any event, we should not be taken as holding that the mere existence of a "generous" offer is sufficient grounds to defeat an application for partition and sale. The existence of an offer is merely a factor to be considered along with all the other circumstances of the case in deciding whether there has been oppression.
[6] Accordingly, the appeal is dismissed with costs fixed at $15,000 inclusive of disbursements and G.S.T.