Court of Appeal for Ontario

CITATION: Wycliffe Humberplex Limited v. Humberplex Developments Inc., 2009 ONCA 649

DATE: 20090911

DOCKET: C50134

BEFORE: Goudge, Cronk and MacFarland JJ.A.

BETWEEN:

Wycliffe Humberplex Limited Applicant (Respondent)

And

Humberplex Developments Inc. Respondent (Appellant)

Counsel

Alistair Riswick, for the appellant

Alan J. Lenczner, Q.C. and Nadia Campion, for the respondent

Heard: September 11, 2009

On appeal from the order of Justice H.J. Wilton-Siegel of the Superior Court of Justice dated January 29, 2009.

APPEAL BOOK ENDORSEMENT

[1] It is agreed that the mortgage contains no reference to the provision relied on by the appellant, found in the last sentence of Article 12.3 of the Agreement of Purchase and Sale.

[2] More importantly, the appellant proceeded by way of power of sale and it is agreed that the Notice of Sale it issued contains no reference to the obligation relied on by the appellant or to the estimated cost of discharging that obligation. It is also agreed that the respondent tendered the full amount of the debt specified in the Notice of Sale and that this was the full amount of the debt specified in the mortgage.

[3] Having chosen this remedial route, we agree with the application judge that the appellant was bound to deliver the discharge upon the respondent tendering the amount specified in the notice of sale. To find otherwise in these circumstances would be to permit the provision in 12.3 of the Agreement of Purchase and Sale to impermissibly clog the equity of redemption.

[4] The appeal is dismissed.

[5] Costs to the respondent fixed at $7,500 all inclusive.