Court of Appeal for Ontario

Citation: Dyck v. Dacon Corporation Limited, 2009 ONCA 635

Date: 20090901

Docket: C48764

Before: Laskin, Sharpe and MacFarland JJ.A.

Between:

Alfred Dyck

Plaintiff (Appellant)

and

Dacon Corporation Limited, Lucia Maria Ruthland and Taras Kowalczyszyn

Defendants (Respondent)

Counsel:

Jason Dutrizac and D. Kenneth Gibson, for the appellant

John R. Crouchman, for the respondent

Heard: August 28, 2009

On appeal from the judgment of Justice Alan D. Sheffield of the Superior Court of Justice dated April 14, 2008.

APPEAL BOOK ENDORSEMENT

[1] In our view, the claim asserted in this action arises solely under the July 19, 1988 agreement. That is how the claim is pleaded and that is how it was dealt with by the trial judge.

[2] The rights under the 1988 agreement were all predicated on the registration of the new plan of a subdivision. The trial judge found that Dacon made reasonable efforts to get the plans registered. Despite those efforts, the new plan of subdivision was never approved. Dacon therefore was never in breach of the agreement.

[3] Even if the steps Dacon took in 1993 made compliance with paragraph 4 of the agreement more difficult, its obligations under that paragraph was never triggered.

[4] For these reasons, we see no error in the trial judge’s conclusion that Dacon did not breach the agreement.

[5] Accordingly, it is unnecessary to deal with the issue of damages.

[6] The appeal is dismissed, with costs fixed at $12,460, inclusive of disbursements and GST.