Court File and Parties
COURT OF APPEAL FOR ONTARIO
DATE: 20210331 DOCKET: C68152
Rouleau, Brown and Miller JJ.A.
BETWEEN
Terry LeBlanc Plaintiff (Appellant)
and
Her Majesty the Queen in Right of Ontario Defendant (Respondent)
Counsel: Andrew Ostrom, for the appellant Eunice Machado and Peter Entecott, for the respondent
Heard and released orally: March 30, 2021 by video conference
On appeal from the order of Justice Grant R. Dow of the Superior Court of Justice, dated February 5, 2020.
Reasons for Decision
[1] The appellant was the high bidder in a Sheriff’s auction of a judgment debtor’s residential property. The property was auctioned pursuant to a Notice of Sheriff’s Sale of Land that had been posted in the Ontario Gazette online, a local newspaper, and on a bulletin board at the Parry Sound courthouse.
[2] The appellant attended the auction after seeing the notice in the Ontario Gazette. The lowest appraised value of the property was $520,000. The appellant’s winning bid was $260,000. No Agreement of Purchase and Sale was executed, but the appellant provided the required deposit of $26,000.
[3] The next day, the appellant was advised that the sale had been cancelled and his deposit would be returned. The explanation he was given was that the Attorney General’s policy was not to accept bids of less than 60% of the lowest appraised value, which for this property was $320,000. The appellant took the position that he was contractually entitled to purchase the property for the amount of his bid.
[4] The judgment debtor later satisfied the judgment against her, and the judgment creditor withdrew the writ of seizure and sale.
[5] There is disagreement over the terms of the auction, caused in part by the Sheriff’s office having published notices with different wording. The notice of sale posted in the courthouse stated ‘the sale is subject to cancellation by the sheriff without further notice up to the time of the satisfaction of the sale terms’. The notice of sale posted in the Ontario Gazette and the newspaper read ‘this sale is subject to cancellation by the sheriff without further notice up to the time of sale.’ Both versions also stated the sale was subject to ‘other conditions as announced.’
[6] The appellant brought an action against the Crown seeking damages in the amount of $264,883 for breach of contract. On a motion for summary judgment, the action was dismissed.
[7] The motion judge dismissed the action on three bases:
- The contract permitted the Sheriff to unilaterally cancel the sale at the time it was cancelled;
- S. 142 of the Courts of Justice Act shields the Respondent from liability; and
- Principles of equity permit the court to decline to enforce the contract.
[8] The appellant appeals on the basis that each of these propositions constitute errors of law.
Analysis
[9] The motion judge made a finding of fact that the rules governing the auction read out by the auctioneer were taken from the Notice of Sale posted at the courthouse. Although the appellant disputes this finding, it is an inference that was available to the motion judge on the evidence before him, and we would not disturb it. Additionally, as the motion judge reasoned, the appellant had been alerted by the Notice published in the Gazette that the sale would be subject to ‘other conditions as announced’. The conditions read by the auctioneer from the Notice of Sale posted at the courthouse were thus contemplated by the terms contained in the Gazette.
[10] The motion judge found, and we agree, that the Notice of Sale allowed for the unilateral cancellation of the sale ‘up to the time of the satisfaction of the sale terms.’ It is significant here that at the time the sale had been cancelled, matters had not even advanced to the point of drawing up a formal Agreement of Purchase and Sale.
[11] It is not necessary that we consider the additional ground that the motion judge erred in his interpretation and application of s. 142 of the Courts of Justice Act. Neither is it necessary that we consider whether the court’s equitable jurisdiction is relevant to the matters in dispute.
Disposition
[12] The appeal is dismissed. Costs are awarded to the respondent in the amount of $5,500 inclusive of disbursements and HST.
“Paul Rouleau J.A.”
“David Brown J.A.”
“B.W. Miller J.A.”