CITATION: 2054476 Ontario Inc. v. 514052 Ontario Limited, 2011 ONCA 71
DATE: 20110127
DOCKET: C50083
COURT OF APPEAL FOR ONTARIO
Winkler C.J.O., Simmons and Watt JJ.A.
BETWEEN
2054476 Ontario Inc., 2000768 Ontario Inc. and 2054288 Ontario Inc.
Respondents/Plaintiffs
and
514052 Ontario Limited and 1176847 Ontario Limited
Appellants/Defendants
and
514052 Ontario Limited and 1176847 Ontario Limited
Appellants/Plaintiffs By Counterclaim
and
2054476 Ontario Inc. and 2000768 Ontario Inc.
Respondents/Defendants By Counterclaim
AND BETWEEN
2000768 Ontario Inc.
Respondent/Plaintiff (Defendant to the Counterclaim)
and
514052 Ontario Limited and 1176847 Ontario Limited
Appellants/Defendants (Plaintiffs By Counterclaim)
Earl A. Cherniak, Q.C. and Roslynn J. Kogan, for the appellants, 514052 Ontario Ltd. and 1176847 Ontario Limited
Angus T. McKinnon and Matthew J. Diskin, for the respondents in the Deal 1 transaction, 2054476 Ontario Inc., 2000768 Ontario Inc. and 2054476 Ontario Inc.
David Rubin, for the respondents in the Deal 3 transaction, 2000768 Ontario Inc.
Heard: January 14, 2011
On appeal from the judgments of Justice Thomas M. Dunn of the Superior Court of Justice, dated January 22, 2009.
ENDORSEMENT
[1] The appellants appeal from a judgment of Dunn J. ordering specific performance of two real estate transactions together with abatements of the purchase price to be paid in each transaction. The transactions in issue were Deals 1 and 3 respectively in a series of four transactions under which a purchaser conglomerate was to acquire title to four pieces of land from a vendor conglomerate.
[2] In determining that the respondents were entitled to specific performance of Deals 1 and 3 with abatements, the trial judge made the following central findings:
i) the appellants were not in a position to convey the title they had agreed to convey under the agreements of purchase and sale on December 10, 2004, the day the appellants had unilaterally fixed for closing;
ii) the Deal 1 purchaser was ready, willing and able to perform its obligations on December 10, 2004;
iii) there were significant deficiencies in the statements of adjustment prepared by the appellants;
iv) requests had been made to negotiate the abatements to which the respondents were entitled;
v) the failure of the appellants' solicitor to communicate with the respondents' solicitor on December 10, 2004 con-cerning the statements of adjustment and the requested abatements led to the inescapable conclusion that the appellants failed to bargain in good faith;
vi) the vendor on Deal 1 committed an anticipatory breach by terminating the transaction on December 10, 2004, thereby relieving the purchaser from tendering;
vii) time of the essence was not appropriately re-established on Deal 3 because of the Deal 3 vendor's inability to comply with its obligations on the date of the breach;
viii) the unique character of the properties made damages an inappropriate remedy; and
ix) the respondents were entitled to the abatements claimed at trial.
[3] The appellants contend that findings i), ii), v), vi), and vii) are replete with palpable and overriding errors.
[4] We do not accept this submission. Rather, in our view, the appellants' submissions in this regard are an effort to have this court re-try this case. That we are not entitled to do.
[5] As examples, we note that, in our view, it was open to the trial judge to conclude that the Deal 1 vendor was not in a position to perform its obligations under the agreement of purchase and sale.
[6] The letter from the Deal 1 vendor's engineer to Mississauga Planning and Building concerning the status of the re-channelization works, did not, on its face, constitute clearance from the Toronto Regional Conservation Authority as required under the agreement of purchase and sale as amended. A representative of Mississauga Planning and Building confirmed in his evidence that the letter did not constitute the required clearance. Moreover, the representative’s December memo, on its face, did not constitute the necessary written confirmation from Mississauga Planning and Building that the requisite clearance had been received.
[7] The trial judge was entitled to rely on this evidence to conclude that the Deal 1 vendor was not in a position to provide the title it had agreed to provide. Although there was also evidence that counsel for the purchasers had advised her clients that the obligation to close had been triggered, the purchasers never provided the vendors with an acknowledgement to that effect. In these circumstances, it was open to the trial judge to find that the purchasers were entitled to rely on their strict legal rights.
[8] Similarly, in relation to Deal 3, it was open to the trial judge to conclude as he did that the vendor had not complied with its obligation to deliver a certificate of substantial completion.
[9] Based on the foregoing reasons, we would not give effect to the appellants’ submission that the trial judge erred in ordering specific performance.
[10] The appellants also contend that the trial judge erred in awarding conservation setback abatements and construction cost abatements.
[11] We do not accept the appellants' submissions on these issues. Both abatements were provided for in the agreements of purchase and sale as amended. The appellants did not raise any issue concerning the conservation setback abatements in their notice of appeal or in their factum. We therefore reject the conservation setback abatement argument.
[12] Concerning the construction cost abatements, the essence of the appellants' oral argument was that the respondents failed to prove their damages because of a lack of evidence and also because such damages could not be anticipatory; rather they had to be de facto damages actually suffered by the respondents.
[13] In light of the trial judge's findings of fact, we do not accept these submissions. The trial judge noted that there was no evidence led to contradict or challenge the calculations advanced by the respondents immediately prior to closing and at trial. He rejected the appellants' “criticism” concerning the period over which the abatement was calculated. We see no error in this finding.
[14] Nor are we persuaded that the trial judge erred in failing to find that the respondents were limited to claiming de facto damages. The construction abatement clause clearly provides for temporal conditions relating to this claim. Had the parties intended the result contended for by the appellants, they surely would have said so.
[15] The appeal is therefore dismissed with costs to each of the respondents on a partial indemnity scale fixed in the amount of $20,000 inclusive of disbursements and applicable taxes.
“W. Winkler C.J.O.”
“Janet Simmons J.A.”
“David Watt J.A.”