DATE: 20050519

DOCKET: C41831

COURT OF APPEAL FOR ONTARIO

RE:

ROGER LEGER (Respondent (Plaintiff)) – and – GEORGE LEGER AND GEROMAER INC. (Appellants (Defendants))

BEFORE:

CRONK, GILLESE and ARMSTRONG JJ.A.

COUNSEL:

Ian N. McLean

for the appellants

Stephen J. MacDonald and Eric M. Swan

for the respondent

HEARD:

May 17, 2005

On appeal from the judgment of Justice R. P. Boissonneault of the Superior Court of Justice dated April 22, 2004.

E N D O R S E M E N T

I. Background

[1] This appeal arises out of a dispute between two brothers regarding the ownership of a parcel of land, known by the parties as “Lot 56”, situated on Cassels Lake in the Municipality of Temagami (the “Municipality”).

[2] By judgment dated April 22, 2004, Boissonneault J. of the Superior Court of Justice held that the appellants, George Leger (“George”) and Geromaer Inc., a company owned by George, promised to convey Lot 56 to the respondent, Roger Leger (“Roger”) in consideration for road construction work performed by Roger for George and Geromaer Inc. The trial judge granted a declaration that Roger is the owner of Lot 56 and an order requiring George and Geromaer Inc. to convey Lot 56 to Roger.

[3] The appellants appeal that judgment to this court. In oral argument, their counsel submitted that: (i) the trial judge misapprehended the evidence concerning the land conveyance agreement among the parties; (ii) the agreement was subject to two conditions precedent, the performance of which was frustrated (through no fault of the appellants) by the acts of the Municipality, thereby precluding enforcement of the agreement; and (iii) s. 4 of the Statute of Frauds, R.S.O. 1990, c. S. 19 applied to defeat Roger’s claim to Lot 56 because the agreement to convey land to Roger was not reduced to writing.

II. Discussion

[4] We reject these submissions for the following reasons.

[5] First, the trial judge found that, in addition to wages paid to Roger by George and one of his companies, Roger was promised Lot 56 in exchange for the road construction work performed by him for the appellants. This finding of fact attracts considerable deference from this court especially where, as here, it was based, at least in part, on the trial judge’s assessment of Roger and George’s credibility: see Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.

[6] Second, the trial judge found that George entered into an oral agreement to convey Lot 56 to Roger and that, as among the parties, Roger was accepted as the owner of Lot 56. There is no basis upon which to conclude that these key findings by the trial judge are tainted by palpable or overriding error. To the contrary, they were open to the trial judge on the evidential record before him. In particular, these findings were amply supported by the evidence of several witnesses at trial, whose testimony the trial judge accepted, and by George’s own representations of fact contained in two written applications made by him to the Municipality for approval of the installation of a sewer system and the construction of a storage shed on Lot 56 (the “Municipal Applications”). In the Municipal Applications, George described the owner of Lot 56 as Roger and Geromaer Inc. Title to Lot 56 was then held by Geromaer Inc. As well, George described the lands in issue as Lot 56 comprising about 7 acres, and provided details of the location and the size of the lot and the proposed buildings on the lot.

[7] Third, it is undisputed that, after the date of the Municipal Applications and to George’s knowledge, Roger, at his own cost, installed the approved sewer system and built the approved storage shed on Lot 56. These activities would only have been undertaken by Roger in reliance on an agreement to convey title to Lot 56 to him.

[8] Fourth, we do not accept the appellants’ contention that the agreement to convey Lot 56 was subject to two conditions precedent, namely, approval of the severance of Lot 56 and the granting of an easement, the performance of which was frustrated by the Municipality. Although George submits that these conditions were incapable of performance due to the Municipality’s denial of a severance application, the trial judge, as he was entitled to do, accepted the uncontradicted evidence of the Chief Administrator of the Municipality that there was no municipal impediment to a conveyance of Lot 56 to Roger.

[9] The severance application relied upon by the appellants, which was denied by the Municipality, did not concern the proposed severance of Lot 56 from adjoining lands but, rather, the proposed division of Lot 56 itself into three separate lots. The only application for an easement made by the appellants formed part of the proposal that Lot 56 be divided into separate lots. No separate easement application was made. Roger testified that he was unaware of the proposal to subdivide Lot 56.

[10] Fifth, we agree with the trial judge that the requirements of s. 4 of the Statute of Frauds were met in this case by the Municipal Applications, both of which were signed and submitted by George in writing and both of which clearly recorded Roger as the owner of Lot 56 and described the size and the location of the land in issue.

III. Disposition

[11] Accordingly, for the reasons given, the appeal is dismissed. The respondent is entitled to his costs of the appeal on a partial indemnity basis, fixed in the amount of $7,500, inclusive of disbursements and Goods and Services Tax.

“E.A. Cronk J.A.”

“E.E. Gillese J.A.”

“Robert P. Armstrong J.A.”