CITATION: Humbold North Bathurst Development (II) Limited v. National Homes (Thornhill) Inc., 2009 ONCA 702
DATE: 20091006
DOCKET: M38018 (C50995)
COURT OF APPEAL FOR ONTARIO
Lang J.A. (In Chambers)
BETWEEN
Humbold North Bathurst Developments (II) Limited
Applicant (Respondent in Appeal) Responding Party
and
National Homes (Thornhill) Inc.
Respondent (Appellant) Moving Party
Richard Macklin, for the moving party
Raymond M. Slattery and Matthew Maurer, for the responding party
Heard: October 2, 2009
On appeal from the judgment of Justice Anne Mullins of the Superior Court of Justice dated September 9, 2009 and on a motion for stay pending appeal.
Lang J.A. (in chambers):
[1] On the basis of the test set out in RJR-MacDonald, the applicant has satisfied me that a stay should be issued.
[2] In my view, there are serious issues to be determined regarding the scope of the non-registration clause of the agreement of purchase and sale, and its interpretation in relation to the registration of a purchaser’s lien following termination of the agreement. See, for example, McGrath v. B.G. Schickedanz Homes Inc., [2002] O.J. No. 4161; 2033363 Ontario Limited v. Georgetown Estates Corp., [2006] O.J. No. 687; Chiu v. Pacific Mall Developments Inc. (1998), 19 R.P.R. (3d) 236.
[3] In concluding that the appeal is not frivolous or vexatious, I observe that the non-registration clause does not specifically include reference to a purchaser’s lien, nor provide that the clause survives termination. I also note that the application judge concluded in para. 14 that she was unable to determine which party was at fault for the failure of the transaction to close, which was an issue that would require determination by a trier of fact. Accordingly, the applicability of the non-registration clause remains at issue. Nor am I prepared to conclude, at this stage, that the respondent is correct in its argument that the applicant cannot succeed because it failed to plead specific performance or because of the fact that its claim for an “interest in the Property” is situate under the title of a Certificate of Pending Litigation in its statement of claim. In my view, the applicant has demonstrated that there is sufficient merit on the appeal to require consideration of the second and third stages of the test.
[4] The applicant has persuaded me that the refusal of a stay could irreparably harm its interest. The respondent no longer has the $4.3 million deposit at issue and has stated its intention to sell the property.
[5] In addition, the balance of convenience favours the granting of a stay since the respondent, if it so chooses, can proceed with a sale of the property by making appropriate arrangements for a letter of credit, or by alternative means, without causing it undue hardship. Although the respondent adverted to undue hardship in its affidavit, it provided no facts to support that position.
[6] Moreover, in view of the parties’ agreement to expedite this appeal, any hardship (not otherwise remedied by agreement between the parties) will be short lived.
[7] Counsel have agreed that the applicant will perfect its appeal by November 9, 2009 and the respondent will deliver its material by November 27, 2009. The hearing of the appeal (with the approval of the Court of Appeal office) is set for January 7, 2010, with 50 minutes allocated for the appellant and 40 minutes for the respondent. In view of this schedule, the stay will be in place for only about three months.
[8] In the result, the applicant is granted a stay of the judgment of September 9, 2009. The appeal is scheduled in accordance with these reasons. The amount of the costs of today’s appearance is agreed upon by counsel fixed in the amount of $5,000, inclusive of disbursements and GST. The disposition of those costs is for the panel hearing the appeal.
“S.E. Lang J.A.”