COURT OF APPEAL FOR ONTARIO

CITATION: Van v. Qureshi, 2014 ONCA 243

DATE: 20140401

DOCKET: C57292

Rosenberg, LaForme and Tulloch JJ.A.

BETWEEN

Bill Van, Kathy Van, Robert John Porter a.k.a. Bob Porter, Fatima Porter and Robert John Porter, In Trust

Plaintiffs/Appellants

and

Naveed Ahmad Qureshi a.k.a. Dr. Naveed Qureshi, Franklin Danny White and Daniel McNalley

Defendants (Respondent)

Counsel:

Enio Zeppieri and Gregory Gryguc, for the appellants

D. Gordon Bent, for the respondent

Heard: March 27, 2014

On appeal from the judgment of Justice Michael F. Brown of the Superior Court of Justice, dated May, 30, 2013.

ENDORSEMENT

[1] The appellants appeal from the judgment of Brown J. dismissing their claim for specific performance requiring transfer of property pursuant to a first right of refusal and specific performance of an agreement of purchase and sale. They also apply for leave to appeal the costs order. For the following reasons the appeals are dismissed.

[2] The appellants accept that the trial judge did not make any legal errors but submit that he erred in fact. The standard for setting aside findings of fact is a rigorous one and is not met in this case. There was evidence to support the trial judge’s finding that Mr. White, who was never called as a witness, did not give Mr. Porter a first right of refusal. This finding is based on a statement in Mr. Porter’s own affidavit. The trial judge explains that finding at paragraphs 39 to 43 of his reasons. Most of the evidence relied upon by the appellants were hearsay statements and documents from Mr. White which were not admissible as proof of the agreement. Given this finding that there was no first right of refusal, it is unnecessary to deal with the alternative finding that the oral agreement offended the Statute of Frauds.

[3] The Agreement of Purchase and sale for the smaller portion of land was contingent upon severance. It was open to the trial judge to find that the Agreement was unenforceable given the improbability of obtaining severance. The appellants submit that there was evidence from which it could be concluded that some arrangement could be achieved that would have allowed for severance. This was a factual issue that was resolved against the appellants. It was open to the trial judge to find that the mere possibility of a negotiated settlement was not sufficient to justify granting the equitable relief of specific performance.

[4] Accordingly, the appeal is dismissed.

[5] The appellants also sought leave to appeal the costs order. The submission was made that the trial judge failed to take into account the order by Lauwers J. dismissing the motion for summary judgment. The costs order in that motion was for $8,000 in the cause. The motion judge could have made the order that the appellants obtain costs in any event of the cause. He did not. The costs sought before Brown J. did not include any of the costs from the summary judgment motion. The appellants have not shown any error in principle or that the costs award is excessive given the issues involved and the length of the trial. Accordingly, leave to appeal costs is refused.

[6] The respondent is entitled to his costs fixed at $10,000 inclusive of taxes and disbursements.

“M. Rosenberg J.A.”

“H.S. LaForme J.A.”

"M. Tulloch J.A."