COURT OF APPEAL FOR ONTARIO

CITATION: Philp v. Brunelle, 2016 ONCA 385

DATE: 20160519

DOCKET: C59689

Rouleau, Pardu and Benotto JJ.A.

BETWEEN

Laura Philp

Plaintiff (Appellant)

and

Lucille Brunelle

Defendant (Respondent)

Gregory Sidlofsky, for the appellant

Ewa Krajewska, for the respondent

Heard: May 5, 2016

On appeal from the judgment of Justice Todd L. Archibald of the Superior Court of Justice, dated October 31, 2014, with reasons reported at 2014 ONSC 6295.

ENDORSEMENT

[1] The appellant submits that the trial judge erred in dismissing her claims for damages said to result from breaches of an agreement of purchase and sale for a home for special care and domiciliary hostel.

[2] The agreement contained promises that there would be 21 paying residents in the home, and also that the septic system operated satisfactorily for a home for special care and domiciliary hostel, as of the date of closing. The agreement also advised that there was a written agreement with the neighbouring church for the shared use of its driveway, which agreement “states that it must be maintained.” The agreement of purchase and sale contained a further provision that the covenants, representations and warranties would remain in full force and effect, despite the closing, for a period of 30 days from the date of closing.

[3] The trial judge dismissed all of the appellant’s claims based on alleged breaches of the above provisions. He found as a fact that the appellant had not proven that the septic system was not in good working order at the relevant time. He rejected the appellant’s argument that the contractual provision about the driveway agreement meant that there was a promise by the vendor that the appellant would have a right in perpetuity to use the church’s driveway, and rejected her evidence that the vendor had made an oral representation to that effect. He concluded that the reference to “maintenance” in the agreement meant only that the home had to physically maintain the driveway, so long as the church allowed its use.

[4] Finally, the vendor had disclosed before closing that there were 18 occupants in the home, although she also delivered a statutory declaration almost concurrently stating that there were 19 residents. The agreement specifically provided for a remedy in the event that there were fewer than 21 paying residents in the home as of the date of closing:

If there are less than 21 paying residents as of the date of closing, then at the option of the Buyer, this Agreement shall be extended for not more than thirty (30) days to allow time to bring the census up to 21 persons. If this is not accomplished within the said thirty (30) days, then this Agreement shall be null and void and the deposit returned to the Buyer without deduction…

[5] The appellant closed the transaction, knowing there were 18 residents, and accepted an abatement of the purchase price in the sum of $4,000 because of the shortfall. The trial judge found that the clause about the number of residents was a condition of closing, and that because the appellant chose to accept an abatement and close the transaction, rather than exercise her rights under the agreement, that clause merged in the deed on closing.

[6] These findings were fatal to the appellant’s claims, and the appellant has not demonstrated any error which would justify appellate intervention. Given the particular provision dealing with any shortfall in the number of residents on the date of closing, it was not unreasonable for the trial judge to conclude, in effect, that the parties intended that this promise would merge in the deed on closing. As observed in Fraser-Reid v. Droumtsekas, 1979 CanLII 55 (SCC), [1980] 1 S.C.R. 720 at p. 738, “[t]here is no presumption of merger.” Rather, the proper inquiry is whether the facts disclose a common intention to merge the warranty in the deed.

[7] Absent palpable and overriding error, the trial judge’s findings are entitled to deference.

[8] In light of the fact that the above findings were the primary basis upon which the trial judge dismissed the appellant’s claims, it is not necessary to consider the appellant’s other arguments, which challenge his alternative findings.

[9] The appeal is accordingly dismissed, with costs to the respondent fixed at $20,000, inclusive of disbursements and HST.

“Paul Rouleau J.A.”

“G. Pardu J.A.”

“M.L. Benotto J.A.”