COURT OF APPEAL FOR ONTARIO

CITATION: Di Battista v. Di Battista Farms Ltd., 2012 ONCA 721

DATE: 20121029

DOCKET: C55168

Rosenberg, Gillese and Lang JJ.A.

BETWEEN

Antonio Di Battista a.k.a. Tony Di Battista

Applicant (Appellant)

and

Di Battista Farms Ltd., Nicola Di Battista, Giovanni Di Battista, Antonio Di Battista, Estate of Pietro Di Battista, deceased, and Anna Maria Di Battista, the personal representative of Pietro Di Battista, deceased

Respondents (Respondents)

Fernando Souza, for the appellant

Marco Drudi, for the respondent Di Battista Farms Ltd.

Robert S. Kaye, for the respondents Nicola Di Battista, Giovanni Di Battista, Estate of Pietro Di Battista, deceased, and Anna Maria Di Battista, the personal representative of Pietro Di Battista, deceased

Heard: October 23, 2012

On appeal from the judgment of Justice Pollak of the Superior Court of Justice, dated February 13, 2012.

ENDORSEMENT

[1] The appellant brought an application in which he sought, among other things, an order compelling the respondents to consent to and execute such documents as are necessary to enable him to sever one acre of land from a property located in Kleinberg, Ontario.

[2] By judgment dated February 13, 2012 (the Judgment), the application was dismissed.

[3] The appellant appeals.

[4] For the reasons that follow, we would dismiss the appeal.

BACKGROUND IN BRIEF

[5] The appellant, Antonio De Battista (Tony), and his three brothers, Nicola (Nick), Giovanni (John) and Pietro (Peter), worked together in construction. They started a company, the respondent Di Battista Farms Ltd. (Farms Ltd.). Each of the four brothers and their nephew, Umberto Di Battista, were equal shareholders in Farms Ltd.

[6] Farm Ltd. owns property in Kleinberg, Ontario (the Property).

[7] Difficulties arose among the parties and the appellant was bought out. As part of the buy-out arrangement, the four brothers entered into a memorandum of agreement dated October 18, 1993 (the Memorandum). Clause 7 (b) of the Memorandum reads as follows:

The Brothers agree:

(b) they shall cooperate with either or both of Tony and Umberto, whoever desires to pursue the obtaining of a building permit for the construction of a house on one acre of the [P]roperty similar to the permits obtained by each of Peter, Nick and John and/or to obtain a severance of one acre of the [P]roperty for the absolute use of Tony and/or Umberto as the case may be;

[8] In the 1980’s, Nick, Peter and John all built homes on the Property. Later they arranged to have the lots on which their homes had been built severed. Each paid Farms Ltd. the sum of $7,500 for their severed lots.

[9] In 2009, the appellant prepared an application for a one-acre parcel to be severed from the Property. His lawyer sent copies of the application to the respondents, asking for their consents to it.

[10] In 2010, when the respondents had failed and/or refused to provide their consents, the appellant brought the present proceeding in which he seeks to have clause 7 (b) of the Memorandum enforced. He acknowledges that all other aspects of the Memorandum have been fulfilled.

ANALYSIS

[11] Various issues were raised in this proceeding. We need deal with only one, however, as it is dispositive.

[12] The application judge dismissed the application because, among other things, “there is not sufficient certainty on the material and alleged integral terms of the [parties’] agreement” in respect of clause 7(b).

[13] We agree.

[14] For an agreement to be legally binding, there must be sufficient certainty as to its essential terms: see Canada Square Corp. v. Versafoods (1981), 1981 CanLII 1893 (ON CA), 34 O.R. (2d) 250 (C.A.); 130 D.L.R. (3d) 205, at para. 30. Clause 7(b) lacks the requisite degree of certainty on essential terms to be legally enforceable.

[15] Clause 7 (b) commits the brothers to “cooperate” with the appellant if he wishes to pursue the obtaining of a building permit for the construction of a house on one acre of the real property in question or to obtain a severance for a one acre parcel. It can readily be seen that clause 7(b) is written in general language. For example, the word “co-operation” itself is open-ended and lacking in specificity. Furthermore, clause 7(b) fails to specify such essential terms as: the location of the one-acre parcel in the Property; the dimensions of the one-acre parcel; who is to have title if severance is achieved; and, what price, if any, is to be paid for the severance of the one-acre parcel. There is nothing in the balance of the Memorandum, construed within its factual matrix, which would enable the court to imply these terms.

DISPOSITION

[16] Accordingly, the appeal is dismissed with costs to the respondents collectively, in the agreed on amount of $14,000, all inclusive.

“M. Rosenberg J.A.”

“E.E. Gillese J.A.”

“S.E. Lang J.A.”