COURT OF APPEAL FOR ONTARIO

CITATION: Vacca v. Golf North Properties Inc., 2015 ONCA 418

DATE: 20150611

DOCKET: C59806

Weiler, Cronk and Pepall JJ.A.

BETWEEN

Vittorio Vacca

Plaintiff

(Appellant)

and

Golf North Properties Inc.

883899 Ontario Limited

457351 Ontario Inc.

Defendants

(Respondents)

Vittorio Vacca, in person

Simon J. Adler, for the respondents

Heard: May 13, 2015

On appeal from the order of Justice Nancy M. Mossip of the Superior Court of Justice, dated December 2, 2014, with reasons reported at 2014 ONSC 6972.

By the Court:

[1] This appeal involves two separate properties, one in Fergus and the other in Erin, Ontario. For the reasons that follow, we allow that part of the appeal relating to the Fergus property and dismiss the remainder of the appeal.

A. Fergus Property

[2] This action arose in part from a dispute regarding the enforceability of an agreement of purchase and sale dated October 30, 2006 that concerned property in Fergus. The agreement contained various conditions, inserted for the appellant’s benefit, as purchaser.[^1] It also stipulated that, absent the prior written consent of both parties, the closing of the transaction contemplated by the agreement would not take place after September 30, 2009.

[3] The respondents moved for summary judgment and to strike the appellant’s claim under Rules 20, 21 and 25.06 of the Rules of Civil Procedure. They argued that the agreement was null and void because the conditions in the agreement were not satisfied or waived, the September 30, 2009 closing date was not extended, and no closing occurred before September 30, 2009 – the last possible closing date.

[4] With respect to the Fergus property, the motion judge concluded that no viable cause of action had been demonstrated before her because the appellant had failed to provide any written evidence that the conditions under the agreement had been satisfied or waived and because, in the motion judge’s view, the appellant’s action was barred by the expiry of a two-year limitation period. Accordingly, she struck the appellant’s statement of claim and dismissed his action.

[5] The appellant appeals. He raises two main grounds. First, he argues that the conditions under the agreement were waived in a timely fashion, at least with respect to the lands involved in the “First Parcel” of the development contemplated under the agreement. Second, he submits that, contrary to their claim before the motion judge, the respondents agreed in writing to extend the closing date to June 30, 2011.

[6] In our view, the appeal concerning the Fergus property must be allowed.

[7] We will address, first, the matter of the alleged waiver and extension of time.

[8] The respondents filed an affidavit before the motion judge sworn by Shawn Evans, the president of the respondent corporations. In his affidavit, Mr. Evans makes the unqualified assertions that the conditions under the agreement “were never satisfied and were never waived” and that “there never was any extension” of the September 30, 2009 closing date.

[9] However, before this court, the appellant has been able to point to documents that appear to support his claims of waiver and an agreed extension of the closing date. We note that the waiver document in question has formed part of the appellant’s Appeal Book and Compendium since the appeal was perfected, without objection from the respondents.

[10] Thus, the critical assertions continued in Mr. Evans’ affidavit appear to be directly contradicted by the documents available to this court. The respondents’ counsel candidly acknowledged that he is not in a position to provide the court with an explanation, or any additional information, concerning this material discrepancy.

[11] Moreover, the record does not clearly establish what transpired before the motion judge regarding the alleged waiver of the conditions in the agreement and the alleged extension of the closing date. It is possible that the motion judge was misinformed about both matters.

[12] In light of these considerations, the foundation for the motion judge’s ruling is in serious doubt. We are persuaded that the motion judge proceeded with, at best, an incomplete understanding of the facts and, perhaps, on the basis of material misrepresentations to the court. The seriousness of the latter possibility is obvious.

[13] There is also an additional concern. The motion judge held that the appellant’s action was commenced “well outside the two year limitations period”. However, in his statement of claim, the appellant sought relief in respect of the purchase of the Fergus property as provided for under the October 30, 2006 agreement of purchase and sale. To the extent that the appellant’s action may be characterized as “an action to recover any land”, a matter not addressed by the respondents or the appellant (who is a self-represented litigant), then the ten-year limitation period in s. 4 of the Real Property Limitations Act, R.S.O. 1990, c. L.15 may apply: McConnell v. Huxtable, 2014 ONCA 86.

[14] In all these circumstances, it is not plain and obvious that the appellant’s statement of claim discloses no reasonable cause of action. Nor is it clear that there is no genuine issue requiring a trial in respect of the Fergus property. The motion judge’s decision regarding the Fergus property, therefore, must be set aside.

[15] A further observation is appropriate.

[16] We appreciate that, notwithstanding the issues relating to the alleged waiver and time extension described above, the respondents contend that the appellant’s appeal is without merit. They argue that the appeal should be dismissed, in any event, because i) the appellant’s action is statute barred due to the expiry of a limitation period; ii) no closing of the transaction pertaining to the Fergus property ever took place; and iii) on its face, the waiver document relates only to those conditions in the agreement relating to part of the lands forming the subject matter of the agreement.

[17] In our view, the validity of these arguments is a matter for determination on fresh motions by the respondents under Rules 20 and 21, if they are so advised. The fact remains that on the information available on this appeal hearing, there is good reason to question the integrity of the hearing and the reliability of the record before the motion judge.

B. Erin Property

[18] The appellant’s action also involved claims for money due under a vendor take-back mortgage, damages for misrepresentation and unjust enrichment, and possession, all of which relate to the Erin property.

[19] The appellant was the beneficial owner of the Erin property, which was held in the name of his daughter, Diana Vacca. The property abutted a 9-hole golf course operated by the respondent, Golf North Properties Inc.

[20] Diana Vacca sold the Erin property to the respondent, Golf North, who wished to expand its golf course. The purchase price was $1.6 million: $800,000 in cash and $800,000 in a vendor take-back mortgage. The mortgage document provided if golf course zoning was not obtained by a certain date, Golf North could decline to pay the $800,000 mortgage. If it did so decline, Diana Vacca had an option to repurchase the property. Golf North did not obtain the necessary zoning and informed the Vaccas that it declined to pay the mortgage.

[21] Diana Vacca assigned her option to repurchase the Erin property to the respondent 457351 Ontario Inc., a company beneficially owned by the appellant. 457351 wished to exercise the option; however, a dispute arose over the price to be paid to Golf North.

[22] Both parties agreed that the purchase price was $1.2 million but they could not agree on whether the $800,000 mortgage amount was to be deducted from that sum. Golf North argued that the parties’ agreement did not require it to pay the $800,000 mortgage. The price of $1.2 million reflected the value of the property absent rezoning coupled with estimated rezoning expenditures of $345,000 Golf North had incurred. The Vaccas argued that the mortgage of $800,000 was to be paid by Golf North and therefore 457351’s net purchase price was not $1.2 million but $400,000.

[23] In a decision dated August 28, 2013, Lemon J. of the Superior Court of Justice interpreted the terms of the disputed agreement in Golf North’s favour: 2013 ONSC 5298. He determined that the purchase price under the option was $1.2 million and that if the option was exercised by 457351, Golf North was deemed to have satisfied the vendor take-back mortgage of $800,000. If the option was not exercised, Golf North was not required to pay the mortgage. The result of Lemon J.’s disposition was that, absent exercise of the option by 457351, Golf North acquired the property for $800,000.

[24] Diana Vacca and 457351 each appealed this decision. Diana Vacca’s appeal was administratively dismissed on November 27, 2013. This court dismissed 457351’s appeal on the merits: 2014 ONCA 382. The Supreme Court subsequently refused leave to appeal from that dismissal: 2014 CanLII 68700.

[25] The appellant then commenced the within action. The respondents moved to strike his statement of claim. They primarily argued that the claims asserted had already, or could have, been addressed in the action determined by Lemon J.

[26] The motion judge concluded that the appellant was seeking to relitigate the issues that were, or could have been, before Lemon J. She also held that the appellant lacked standing to pursue the claim and that the purported contract on which the claim was based was an unenforceable agreement to agree. She therefore dismissed the action on all three grounds.

[27] We agree with the motion judge’s conclusion. The claims in the statement of claim were already resolved by Lemon J. or should have been raised before him. The motion judge correctly struck out the appellant’s pleading and dismissed his action.

C. Disposition

[28] Accordingly, the appeal relating to the Fergus property is allowed, without prejudice to the respondents’ ability to bring fresh Rule 20 or 21 motions, if so advised, on a proper record. The appeal relating to the Erin property is dismissed.

[29] We did not understand the appellant to seek any costs of the appeal. We do not regard any award of costs of the appeal – to any party – as appropriate in the circumstances of this case.

“K.M. Weiler J.A.”

“E.A. Cronk J.A.”

“S.E. Pepall J.A.”

[^1]: The court was informed that the appellant is the sole shareholder of the named purchaser to the agreement – Greenway Estates Homes Ltd., which entered into the agreement “in trust”. The respondents do not attack the appellant’s standing to bring this appeal.