1473587 Ontario Inc. v. Jackson

Indexed as: 1473587 Ontario Inc. v. Jackson

75 O.R. (3d) 484
[2005] O.J. No. 3145
Docket: C43272

Court of Appeal for Ontario
Feldman, Gillese and LaForme JJ.A
July 26, 2005

Catchlines

Sale of land -- Time of essence -- Purchaser under agreement of purchase and sale of land required to pay deposit within five days of acceptance -- Time expressed to be of essence -- Through inadvertence purchaser failing to pay deposit within time stipulated by agreement -- No waiver of breach by vendor -- Vendor entitled to treat agreement of purchase and sale at an end -- Purchaser's claim for specific performance dismissed on vendor's motion for summary judgment.

NOTE: The catchlines above relate to a decision of the Superior Court of Justice. An appeal of this judgment to the Court of Appeal for Ontario (Feldman, Gillese and LaForme JJ.A.) was dismissed on July 26, 2005 4578 (ON SC), 2005, 74 O.R. (3d) 539. The endorsement of the court was as follows:

Counsel

Robert Horst and Domenico Magisano, for appellants.
W.H.P. Madorin, for personal respondents.
Irving Marks, for respondent 1499653 Ontario Ltd.

Endorsement

[1] BY THE COURT: -- Both parties sought summary judgment either enforcing or dismissing the Agreement of Purchase and Sale. The motion judge was entitled to take a hard look at the evidence placed before him.

[2] The affidavits of Mr. Morrow do not say that the respondents led him to believe that Mr. Ronald could orally bind the respondents to agree to an amendment of the Agreement, to a waiver of rights or to an election under the agreement.

[3] The trial judge was therefore entitled to find that Mr. Morrow was aware that Mr. Ronald's comment of "O.K." was not binding in law on the respondents, and to therefore, award summary judgment. As a result, the appeal must fail. Costs to the respondents of $10,000 inclusive of GST and disbursements.