Court of Appeal for Ontario

Date: 2019-10-04

Docket: C66052

Judges: Juriansz, Benotto and Miller JJ.A.

Between

Central Park Ajax Developments Phase 1 Inc. and Lemine Real Estate Consulting Inc. Plaintiffs (Appellants)

and

The Corporation of the Town of Ajax and Rob Ford Defendants (Respondents)

Counsel

Raivo Uukkivi and Jeremy Martin, for the appellants

John R. Hart and R. Andrew Biggart, for the respondents

Heard

September 25, 2019

On Appeal

From the judgment of Justice Anne M. Mullins of the Superior Court of Justice, dated September 28, 2018.

Reasons for Decision

[1]

This appeal concerns whether the respondents, the Corporation of the Town of Ajax ("the Town") and its Chief Administrative Officer, Rob Ford, validly invoked the repurchase terms under the amended development agreement (the "agreement") between the appellants (collectively referred to as "LeMine") and the Town. The agreement was in connection with LeMine's wish to develop land. It set out the terms by which the agreement could be terminated, and the land repurchased by the Town.

[2]

The Town sought to invoke the repurchase terms under the agreement on the basis that there were grounds for termination because LeMine's application for development had not been completed by the required date. LeMine took the position that the application was complete, and it was awaiting approval from the Town. LeMine brought an action against the Town.

[3]

The parties consented to an expedited and abridged trial to determine whether there were grounds for termination and repurchase. The trial judge found in favour of the Town; LeMine appeals.

[4]

At issue in this appeal is whether the trial judge erred by concluding that LeMine's application was incomplete and that the Town could invoke the repurchase terms of the agreement.

[5]

The agreement dated June 2015 stipulated two grounds for termination:

(i) LeMine intends to proceed with development that does not conform to the development plans, and fails to reach an agreement with the Town on revisions to the development plans; and

(ii) LeMine fails to take reasonable steps to proceed with construction by July 15, 2016, provided it is not awaiting comments or confirmation of approval on any application from the Town.

[6]

The second ground is central to the appeal.

[7]

LeMine was to commence construction within a certain time, no later than 12 months from the date of the satisfaction or waiver of the purchaser's conditions (i.e., July 15, 2016). In early July 2016, as the 12-month deadline approached, LeMine sought an extension of time to satisfy itself as to the economic feasibility of the project. The Town did not grant the extension. Instead, the Town agreed that LeMine could submit a revised site plan to ensure greater return on investment for LeMine, and that the Town would consider these revisions. The trial judge concluded that these discussions effectively extended the deadline to July 15, 2017.

[8]

The revised site plan submitted by LeMine included a 12-storey building, rather than the original 10-storey plan, and additional parking. The Town was concerned, inter alia, about traffic and air quality issues and raised these issues with LeMine. LeMine did not respond to the Town's requests.

[9]

On July 17, 2017, the Town informed LeMine that it was terminating the agreement and exercising its right under the agreement to repurchase the lands.

[10]

At trial, LeMine took the position that its application was complete because it was waiting for responses from the Town. The Town submitted that the revised site plan application was incomplete, the time had expired, construction had not started, and it was entitled to invoke the repurchase terms under the agreement.

[11]

The trial judge found that LeMine was not awaiting confirmation of approval on any application. At no time did the Town receive fully realized roofing plans or elevation sketches for the proposed 12-story building. LeMine did not fully address traffic study concerns or deliver adequate materials to address air quality environmental approvals. In short, LeMine never made a complete site plan submission within the meaning of the contract. The submissions were inadequate for the Town of Ajax Council to approve or reject the proposal.

[12]

The trial judge further concluded that the Town had the right to repurchase the lands at the time it gave LeMine notice in July 2017. Correspondence between LeMine and the Town showed that the parties agreed construction was to commence by July 15, 2017, 12 months from the date LeMine waived the purchaser's conditions under the agreement. LeMine failed to begin construction by this date, which enabled the Town to exercise its repurchase rights.

[13]

The issue on appeal turns on whether the site plan application submitted by LeMine was complete.

[14]

LeMine submits that the trial judge erred in failing to consider s. 41 of the Planning Act, R.S.O. 1990, c. P.13 to determine what constitutes a complete site plan. We do not agree. The trial judge found that the site plan application was incomplete as a result of LeMine's failure to file the required materials. This was a finding of fact available to her on the record. There was no basis to import the Planning Act procedures and definitions into a straightforward contractual interpretation.

[15]

LeMine also submits that the trial judge conflated the concept of a complete site plan with one that is ready for approval. We disagree. The trial judge explained the completeness of a site plan was a necessary pre-requisite for its approval. At para. 53 of her reasons, the trial judge concluded:

Only when a site plan, or amendments thereto, are sufficient, meaning that all necessary aspects of a site plan have been addressed, are they submitted by staff to the approval authority. The approval authority for the site plan submissions of the plaintiff, under its agreement with [the Town], was council for the Town of Ajax. I find, as fact, and within the meaning of the contractual documents between the parties, that the plaintiff was not awaiting confirmation of approval on any Application from the Town at the time of service of the Notice. LeMine had had [sic] never made a complete site plan submission within the meaning of its contract with the defendant, which is to say sufficient for council to consider and approve or reject.

[16]

We agree with the trial judge that the application had not been completed within the meaning of the contract. The change from 10 storeys to 12 created a number of issues, which the Town raised and LeMine never addressed. The trial judge determined the completeness of the site plan based on the fact that LeMine had not submitted the additional requested materials to the Town. LeMine was not waiting for information from the Town.

[17]

LeMine was not awaiting comments or confirmation of approval from the Town. In fact, the Town was waiting for responses from LeMine with respect to changes to the original plan. On this basis the application was not complete. The trial judge was entitled to conclude that the Town had the right to invoke the repurchase terms of the agreement.

[18]

We do not accept LeMine's submission that the trial was unfair. The parties agreed to the expedited and abridged process. No unfairness issues were raised at trial and we see no basis to do so now. Nor do we agree that the trial judge's reasons are inadequate for appellate review. Finally, we do not agree with LeMine that the portions of Town's planner's evidence upon which the trial judge relied constituted opinion evidence.

[19]

The appeal is dismissed with costs to the respondents fixed in the agreed upon amount of $85,000, inclusive of disbursements and HST.

"R.G. Juriansz J.A."

"M.L. Benotto J.A."

"B.W. Miller J.A."