COURT OF APPEAL FOR ONTARIO

CITATION: Business Development Insurance Ltd. v. Caledon Mayfield Estates Inc., 2015 ONCA 864

DATE: 20151209

DOCKET: C60371

Weiler, Pardu and Benotto JJ.A.

BETWEEN

Business Development Insurance Ltd.

Appellant/Plaintiff

and

Caledon Mayfield Estates Inc. and the Estate of Palmyra Kucinskaite by the Estate Trustees Constance Deltuvaite and Dana Dargis

Respondents/Defendants

Todd C. Hein, for the appellant

William S.M. Cord, for the Estate of Palmyra Kucinskaite

An Nguyen, for Caledon Mayfield Estates Inc.

Heard and released orally: December 7, 2015

On appeal from the judgment of Justice Michael G. Emery of the Superior Court of Justice, dated March 27, 2015.

ENDORSEMENT

[1] The respondent sellers entered into an Agreement of Purchase and Sale (“Agreement”) with the appellant buyer for the purchase and sale of a property in Caledon (the “Property”). The respondents had previously agreed to sell the Property to a third party, 2079664 (“207”). The respondents reasonably believed the prior agreement to be at an end, however, 207 registered a caution against the Property.

[2] The respondents asked the Land Registrar to delete the caution for insufficient documentation. Ultimately, the Land Registrar agreed that the caution would be removed on the day set for its expiry, which coincided with the day of the closing, Monday, December 16, 2013. The closing could proceed. On Friday, December 13, 207 registered a Certificate of Pending Litigation (“CPL”) against the Property.

[3] The appellants indicated they were ready, willing and able to close but would not do so because they required the CPL to be removed from title. The respondents took the position that they were unable to discharge the CPL prior to closing and relied on an annulment clause within the Agreement to terminate the deal.

[4] The appellant brought an action for specific performance and damages in the alternative. The respondent brought a motion for summary judgment dismissing the appellant’s action. The trial judge granted the respondent’s motion.

[5] The issue on this appeal is whether there is a triable issue as to whether the respondents were entitled to rely on the annulment clause in the Agreement. The appellant’s position is that there is a genuine issue regarding whether the respondents were the cause of the title problem.

[6] The appellant submits that the trial judge erred because he did not consider a letter from the appellant’s solicitor to the respondent’s solicitor on December 16 as a whole. That letter does not say that the CPL needed to be discharged that day. The respondent’s counsel interpreted the letter that way but his reply came in at 5:30 pm on December 16. The appellant’s letter of December 17 requests an extension of time to close. Indeed there were discussions about the respondent bringing a motion to discharge the CPL after that and the respondent did bring a motion in Toronto to discharge the CPL. That motion was adjourned from Toronto to Brampton and not pursued.

[7] We disagree that, considered as a whole, the letter from the appellant’s counsel on December 16 should be interpreted as indicating that the appellant’s position was that the Agreement was to continue after the closing date. The letter says, “Our client will be looking to your clients for damages as a result of the inability of your clients to provide clear title to our client and to complete this transaction on the closing date.” The trial judge did not err in his interpretation of the letter, that it amounted to a demand to remove the CPL and not a request to extend closing.

[8] The appellant’s second submission is that the trial judge ought not to have granted summary judgment because the action respecting 207 has not been determined. The appellant has no authority which would support this submission. Time was stipulated to be of the essence in the Agreement. This submission is dismissed.

[9] The appellant’s third submission is that the motions judge subjected the evidence of the appellant and respondent to unequal scrutiny. He required the appellant to act in good faith but did not impose the same duty on the respondents. We see no merit in this submission.

[10] Accordingly the appeal is dismissed. The respondent is entitled to the costs of the appeal which, by agreement, are fixed in the amount of $5000, inclusive of disbursements and all applicable taxes.

“Karen M. Weiler J.A.”

“G. Pardu J.A.”

“M.L. Benotto J.A.”