Court of Appeal for Ontario

Date: 2017-08-28 Docket: C63494

Judges: Laskin, Juriansz and Miller JJ.A.

Between

Westmount-Keele Limited Plaintiff (Appellant)

and

Royal Host Hotels and Resorts Real Estate Investment Trust and North York (Keele St.) Purchaseco. Inc. Defendants (Respondents)

Counsel

Kris Borg-Olivier, for the plaintiff (appellant)

Jason Woycheshyn and Gannon Beaulne, for the defendants (respondents)

Hearing and Lower Court Decision

Heard: August 25, 2017

On appeal from: the judgment of Justice Sidney Lederman of the Superior Court of Justice, dated February 8, 2017.

Appeal Book Endorsement

[1] Westmount makes two submissions. Its first submission is that the motion judge erred in granting an amendment to the statement of defence to permit the defendants to plead a limitation defence. In our view the order granting the amendment is an interlocutory order and therefore this court has no jurisdiction to hear the appeal from that order.

[2] Westmount's second submission is that the motion judge erred in granting summary judgment dismissing its claim for economic damages. Westmount contends that the motion judge erred by failing to consider whether the respondents' breach of its obligation to properly quantify its post-closing costs could reasonably be foreseen to have impeded Westmount's ability to obtain financing for phase II of the development. Westmount says that because of the respondent's breach the vendor take-back remained on title and the respondent could reasonably have contemplated that the phase II development would have failed for lack of financing.

[3] We do not accept this submission.

[4] The motion judge effectively addressed Westmount's submission at para. 65 and 67 of his reasons. The relevant record, much of which is in the respondent's extract book, supports the motion judge's analysis and conclusion.

[5] The appeal is dismissed with costs of $20,000 all in.