COURT OF APPEAL FOR ONTARIO

CITATION: 2730453 Ontario Inc. v. 2380673 Ontario Inc., 2025 ONCA 112

DATE: 20250219

DOCKET: COA-23-CV-0379

Miller, Zarnett and Thorburn JJ.A.

BETWEEN

2730453 Ontario Inc.

Plaintiff (Respondent)

and

2380673 Ontario Inc.

Defendant (Appellant)

Paul J. Pape and Mitchell McGowan, for the appellant

Mark Veneziano and Jonathan D. Langley, for the respondent

Heard: June 4, 2024

On appeal from the order of Justice Robert Centa of the Superior Court of Justice, dated November 28, 2022, with reasons reported at 2022 ONSC 6660.

Zarnett J.A.:

Overview

[1] An oral agreement to sell land is not generally enforceable. Section 4 of the Statute of Frauds, R.S.O. 1990, c. S.19 provides that no "action shall be brought … to charge any person upon any contract or sale of lands … unless the agreement upon which the action is brought, or some memorandum or note thereof is in writing and signed by the party to be charged therewith or some person thereunto lawfully authorized by the party."

[2] The doctrine of part performance is a recognized exception to this general rule. A party to an oral agreement for the sale of land cannot avoid its enforcement by pointing to the absence of a signed agreement (or note or memorandum of it) if the doctrine of part performance, which has both an evidentiary and a detrimental reliance aspect, applies.

[3] The trial judge found that in September 2019, the appellant orally agreed to sell lands it owned to the respondent for a price of $4.1 million, closing on or before January 8, 2020. He also found that after the agreement was made the parties engaged in a process toward closing. He found that on the closing date the respondent tendered the required documents and funds, and that the appellant refused to close without legal justification. Referring to conduct leading up to and at the aborted closing, he found that the doctrine of part performance applied and ordered the appellant to specifically perform the oral agreement.

[4] The appellant does not challenge the trial judge's findings that there was a binding oral agreement, that the appellant's refusal to close was without legal justification, or that specific performance is the appropriate remedy if the sale agreement is enforceable. The appellant raises a single issue, contending that the detrimental reliance aspect of the doctrine was not satisfied because none of the conduct relied on by the trial judge involved the respondent acting to its detriment in performing its obligations under the sale agreement.

[5] The appellant argues that the respondent had one obligation under the sale agreement – to pay the $4.1 million purchase price on closing. It submits that tendering that amount was not detrimental to the respondent as the tender was refused. Other conduct, either preparatory to the aborted closing or undertaken in reliance on the existence of the sale agreement but not expressly contemplated by its terms was not, according to the appellant, sufficient to meet the requirements of the detrimental reliance aspect of the doctrine of part performance.

[6] I conclude, for the reasons below, that the trial judge did not err. The detrimental reliance aspect of the doctrine requires that the court be satisfied the party seeking to enforce the oral agreement acted to its detriment by irremediably carrying out its obligations, or a significant portion of them, under the oral agreement, while the other party stood by, making it inequitable to allow the other party to rely on s. 4 of the Statute of Frauds. For the purpose of determining the extent to which there was part performance and resulting detriment, the court may look at what the party seeking to enforce the agreement did to achieve closing of the agreed upon transaction, and the extent to which that conduct was acquiesced in or encouraged by the party seeking to avoid enforcement.

[7] The conduct the trial judge found had occurred included acts of the respondent that were required to complete the agreed to real estate transaction. Those acts were performed in dialogue with and in response to communications on behalf of the appellant concerning what needed to be done, and which documents needed to be prepared and signed, to complete the purchase – communications that showed the appellant was also "intending to close an agreement that had already been reached". The trial judge was not required to focus only on the last step of the closing process – the refused tender of funds. His findings that the respondent's performance amounted to part performance, that this performance was to its detriment, and that it would be inequitable to permit the appellant to rely on the Statute of Frauds, were legally available on the record. They are entitled to deference.

[8] I would therefore dismiss the appeal.

Factual Context

[9] The respondent wished to purchase a 32-acre lot owned by the appellant in Milton, Ontario. That lot was adjacent to property the respondent already owned. The respondent wished to combine the properties into one larger parcel for commercial development.

[10] In 2018 and 2019, there were dealings about a purchase, including about price, terms and a closing date, through real estate brokers acting with the authority of the parties.

[11] The trial judge found that, in September 2019, the parties reached a binding oral agreement on all essential terms. He stated:

I find that on September 23 or 24, 2019, the [respondent] and the [appellant] entered into a binding oral agreement for the purchase and sale of the disputed property. I find that they agreed on all essential terms: the [appellant] would sell the disputed property to the [respondent], whom the [appellant] knew to be the owner of the neighbouring land, for $4.1 million cash. The [respondent] would be responsible to pay $200,000 commission to the brokers if the agreement closed on or before January 8, 2020.

[12] No formal sale agreement was signed at the time. The trial judge found that "[t]he reason that the agreement was not immediately reduced to writing was [the appellant's principal's] preference to do that at the time of closing."

[13] After the oral agreement was made, lawyers became involved for both parties.

[14] On December 5, 2019, the respondent's lawyer wrote to the appellant's lawyer requesting a draft transfer, statement of adjustments, surveys, plans, and tax bills in the appellant's possession. In the same communication he indicated that he would separately provide a draft agreement of purchase and sale.

[15] On December 8, 2019, the appellant's lawyer responded. His letter referenced "2380673 Ontario Inc. [i.e., the appellant] sale to 2730453 Ontario Inc. [i.e., the respondent]". It contained the appellant's lawyer's confirmation that he "act[s] for the vendor in the above transaction". The appellant's lawyer stated that he was enclosing draft documents that he said would be executed by the appellant on closing, including a vendor's closing certificate, a statutory declaration, and a document registration agreement. He indicated that a statement of adjustments would be forthcoming and asked the respondent's lawyer to forward the respondent's HST certificate and indemnity and the sale agreement.

[16] Later in December 2019, the respondent's lawyer wrote to the appellant's lawyer submitting requisitions for the transaction and providing a draft HST certificate and indemnity, under which the respondent would be responsible for compliance with HST requirements and would indemnify the appellant in that regard.

[17] The appellant's lawyer responded to the requisitions on December 23, 2019, indicating among other things that the draft documents he had earlier sent had been executed by the appellant and would be delivered on closing. He also rejected a requisition to remove an easement, asserting that the property was being sold subject to the easement and that there was no deal if the respondent insisted on its removal. He indicated the transaction would be subject to HST and acknowledged receipt of the draft HST certificate and warranty.

[18] On January 3, 2020, the respondent's lawyer sent the appellant's lawyer the sale agreement signed by the respondent. He requested that the appellant sign the written sale agreement and deliver all required closing documents on January 8, 2020. The version of the written sale agreement sent by the respondent's lawyer included a term that the appellant discharge all easements. On January 5, 2020, the appellant, through its broker, sent a revised version of Schedule A to the written sale agreement that provided the respondent would accept title subject to any registered easement. The same day, the respondent's lawyer communicated that this version of Schedule A was acceptable. On January 7, 2020, the respondent's lawyer sent the appellant's lawyer a revised version of the written sale agreement, signed by the respondent, that included Schedule A in the form the appellant's broker had provided.

[19] The appellant's lawyer did not respond to the January 2020 correspondence.

[20] On January 8, 2020, the respondent's lawyer sent the closing documents to the appellant's lawyer, asked that the appellant also sign, and stated that the documents were to be held in escrow pending receipt of the fully executed sale agreement and the appellant's closing documents. The respondent's lawyer indicated he would wire transfer the closing funds upon receipt of the appellant's signed documentation, and he requested wire transfer coordinates. Later that day, having received no response, the respondent's lawyer asked the appellant's lawyer to confirm he would be available for a tender. He again confirmed that he was in a position to wire transfer the closing funds and went on to say that if a tender were required, he would tender a certified cheque for the full amount due on closing. Later still on January 8, the respondent's lawyer's firm tendered, on the appellant's lawyer, the closing documents and a certified cheque for the balance due on closing.

[21] The appellant refused to close.

The Trial Judge's Decision

[22] As noted, the trial judge found that there was a binding oral sale agreement reached in September 2019. He found that the appellant's principal knew that an agreement had been reached and that the parties were engaged thereafter in a process of closing that agreement. He rejected the appellant's arguments that the respondent breached the agreement by initially asking that the easement be removed, or by any position taken by its lawyer concerning how the closing funds were to be delivered, or by its lawyer's suggestions as to the procedure that would be followed for releasing the closing funds from the appellant's lawyer's trust account after their payment. The trial judge found that the respondent tendered the closing documents and purchase funds and the appellant failed to close without legal justification. None of these findings are challenged in this court by the appellant.

[23] Turning to the defence that s. 4 of the Statute of Frauds rendered the oral sale agreement unenforceable, the trial judge rejected the respondent's contention that there was a written document, signed by the appellant or someone authorized by it, that met the requirements of s. 4. The respondent does not challenge this finding on appeal.

[24] The trial judge did find, however, that there was part performance and detriment sufficient to make it inequitable for the appellant to rely on s. 4, and therefore that the oral sale agreement should be enforced. After discussing the applicable principles, including the requirement for detrimental reliance, he reached certain key conclusions. I set them out below:

I find that the following acts of part performance by the [respondent] are unequivocally referable to the land in dispute:

a. Obtaining an environmental assessment of the property;

b. Obtaining survey and title searches on the property;

c. Conducting other due diligence related to the property;

d. Negotiating and preparing the commission agreement among the [respondent] and the brokers;

e. Retaining legal counsel to close the agreement;

f. Drafting, revising, and negotiating the written agreement of purchase and sale for the property;

g. Delivering the documents required on closing;

h. Obtaining, delivering, and tendering the certified cheque for the full amount of the purchase price.

I also find that the following acts of part performance by the [appellant] are connected to the property in dispute:

a. Retaining legal counsel to close the agreement for the purchase and sale of the property;

b. Negotiating over the status of the easement on the property;

c. Reviewing and revising the draft agreement of purchase and sale, including providing a revised version of Schedule A to that agreement to the [respondent] and obtaining the consent of the [respondent] to the revisions;

d. Providing draft copies of the [appellant's] closing certificate and statutory declaration and the [appellant] executing those documents;

e. Negotiating over the method by which the [respondent] would deliver the agreed upon purchase price on closing.

Each of these acts of part performance relate directly to the property in dispute. They are all directly tied to the agreement the parties reached in September 2019 regarding the sale of the property. All of this conduct is unequivocally referable to the property in dispute.

The second step in the analysis is to consider whether or not the conduct, in and of itself, indicates that there has been some dealing with the land: Erie Sand & Gravel, at para. 90. In my view, much of the conduct described above suggests a pre-existing agreement in respect of the land. In particular, the [appellant] prepared and delivered through [his broker] a revised Schedule A to the agreement of purchase and sale that accurately reflected the prior agreement between the parties, namely, that the [respondent] was to take title as-is and subject to the existing easement. Moreover, the [appellant] retained a lawyer who wrote to the [respondent's] lawyer to confirm that he acted "for the [appellant] in the above transaction" and to confirm that executed versions of the documents would be delivered "to your office on closing." This is strong evidence that the [appellant] was intending to close an agreement that had already been reached, not to negotiate toward a possible agreement with the [respondent]. In these circumstances, judged by the standards on which reasonable people act, I find that there had been some dealing with the land.

In carrying out its acts of part performance, the [respondent] acted to its detriment in carrying out its obligations in reliance. It also proved acts of part performance sufficiently referable to some dealing with the land such that it would make it inequitable for the [appellant] to rely on s. 4 of the Statute of Frauds to avoid performance. I find that the oral agreement should be enforced.

ANALYSIS

The Issue

[25] The appellant submits, correctly, that for there to be a proper finding of part performance sufficient to avoid the requirements of s. 4 of the Statute of Frauds, both the evidentiary aspect and the detrimental reliance aspect of the doctrine must be satisfied. Conduct that satisfies the evidentiary aspect of the doctrine – because it is unequivocally referable to the property in dispute and shows some dealing with the land – is insufficient unless the detrimental reliance aspect of the doctrine is also satisfied.

[26] In Erie Sand and Gravel Limited v. Tri-B Acres Inc., 2009 ONCA 709, 97 O.R. (3d) 241, Gillese J.A. explained, at para. 79, the need to satisfy the two aspects of the doctrine of part performance:

The first aspect is detrimental reliance which … requires a party to prove its acts of performance. Without detrimental reliance there can be no inequity in relying on the Statute of Frauds, thus, it is the first hurdle to be met. The second aspect of the doctrine … relates to Equity's requirement that the acts of part performance sufficiently indicate the existence of the alleged contract…. The [first aspect] is a matter of substantive law based on the rationale for the doctrine of part performance, whereas the [second aspect] is primarily evidentiary in nature.

[27] The appellant does not quarrel with the trial judge's findings that the conduct was unequivocally referable to the property in question and indicated that there was "some dealing with the land", which are the elements of the evidentiary aspect: Erie, at paras. 89-90. But, the appellant argues, despite adverting to the detrimental reliance aspect when describing the doctrine, the trial judge did not apply it. Although he made a conclusory statement that the respondent "acted to its detriment in carrying out its obligations", the appellant maintains that none of the conduct the trial judge referred to met that criterion. The appellant argues that the respondent had one obligation under the terms of the oral agreement of sale found by the trial judge – to pay the purchase price on closing. The respondent offered to pay the funds, and tendered a certified cheque, but payment was never accepted, resulting in no detriment. The other conduct referred to by the trial judge may have shown that there was an agreement, but none of that conduct involved performance by the respondent of the oral sale agreement's obligations. Any detriment arising from that conduct was irrelevant; in any event it was not irremediable or otherwise sufficient to make it inequitable to allow the appellant to rely on the Statute of Frauds.

Discussion

[28] I disagree with the appellant that the trial judge erred by concluding that the detrimental reliance aspect of the doctrine of part performance was met.

[29] The detrimental reliance aspect was described as follows at para. 64 of Erie, citing Hill v. Nova Scotia (Attorney General), 1997 CanLII 401 (SCC), [1997] 1 S.C.R. 69: "[I]f one party to an otherwise unenforceable agreement stands by while the other party acts to its detriment by performance of its contractual obligations, the first party will be precluded from relying on the requirements in the Statute of Frauds to excuse its own performance."

[30] This formulation has been the substantive core of the part performance doctrine since it was recognized. In Hill, at para. 10, Cory J. quoted with approval the following statement from the House of Lords in Steadman v. Steadman, [1976] A.C. 536, at p. 558, per Lord Simon:

Where, therefore, a party to a contract unenforceable under the Statute of Frauds stood by while the other party acted to his detriment in performance of his own contractual obligations, the first party would be precluded by the Court of Chancery from claiming exoneration, on the ground that the contract was unenforceable, from performance of his reciprocal obligations; and the court would, if required, decree specific performance of the contract. Equity would not, as it was put, allow the Statute of Frauds "to be used as an engine of fraud." This became known as the doctrine of part performance – the "part" performance being that of the party who had, to the knowledge of the other party, acted to his detriment in carrying out irremediably his own obligations (or some significant part of them) under the otherwise unenforceable contract. [Emphasis added.]

[31] In this case, the detrimental reliance aspect of the doctrine was recited by the trial judge as follows:

Justice Cory stated that a verbal agreement that has been partly performed will be enforced: Hill, at para. 11. The very purpose of the doctrine of part performance is to avoid the inequitable operation of the Statute of Frauds. This is why the requirement that a contract for the sale of land be in writing will yield in the face of part performance: the part performance fulfills the very purpose of the written contract. If party A to an otherwise enforceable agreement stands by while party B acts to its detriment by performance of its contractual obligations, party A may not rely on the requirements in the Statute of Frauds to excuse its own performance: Erie Sand & Gravel, at para. 64.

[32] The trial judge concluded that the detrimental reliance aspect (as well as the evidentiary aspect) of the doctrine had been met when he stated:

In carrying out its acts of part performance, the [respondent] acted to its detriment in carrying out its obligations in reliance. It also proved acts of part performance sufficiently referable to some dealing with the land such that it would make it inequitable for the [appellant] to rely on s. 4 of the Statute of Frauds to avoid performance. I find that the oral agreement should be enforced.

[33] The appellant does not argue that the trial judge's reasons are insufficient. The thrust of the appellant's argument is that the trial judge's conclusion is the product of legal error such that it was not a legally available conclusion. Below, I discuss why I reject the various prongs of the appellant's argument.

(1) The Trial Judge Did Not Err in What He Considered to be Acts of Part Performance by the Respondent

[34] It is clear from Erie that in determining whether the doctrine of part performance is satisfied, acts of part performance of both parties can be considered: at paras. 71-75. In considering specifically whether the detrimental reliance aspect is met, the court must be satisfied that there were acts of part performance by the party seeking to enforce the agreement that were to its detriment; however, the conduct of both parties may be considered on the question of whether there has been detriment: Erie, at para. 78.

[35] On the appellant's argument, none of the conduct of either party that the trial judge referred to constituted acts of part performance, and specifically on the detrimental reliance aspect, the trial judge should have confined his analysis to the obligation to pay the purchase price and any detriment resulting from the tendered but refused payment. In my view, that is too narrow a focus.

[36] The trial judge was entitled to consider the conduct he referred to as acts of part performance. A real estate transaction involving a multimillion-dollar tract of land is quintessentially one that requires "the cooperation of the parties to achieve the objects of the contract": Bhasin v. Hrynew, 2014 SCC 71, [2014] 3 S.C.R. 494, at para. 49. Parties to an agreement which contemplates payment of a purchase price in exchange for transfer of title on agreed terms could therefore be expected, in the process of closing such a transaction, to identify and resolve any title concerns; to prepare closing documents and respond to requirements of the other party as to those documents; to deal with and assist in settling the form of closing documentation; and to be involved in making closing, payment and title transfer arrangements. Those matters are not separate from or merely preparatory to the performance of obligations. They are integrally connected to what is required to close the transaction, which is the circumstance under which payment and title transfer will occur.

[37] This is borne out by what occurred in this case. The trial judge found that the principal of the appellant knew that the parties had reached an agreement in September and thereafter were "engaged in the process of closing that agreement." They each retained lawyers for that process. What occurred during that process fatally undercuts the appellant's position – that all that should count as performance was payment on closing.

[38] For example, as part of the closing process, the appellant's lawyer made it clear that the respondent had to provide an HST certificate and indemnity. The respondent's lawyer prepared the required document and provided it. This shows that the parties did not consider the respondent's performance obligation to be limited to paying the cash portion of the price on closing. The respondent would also have to deliver a certificate and indemnity that committed the respondent to sole responsibility for HST arising out of the transaction. The steps taken by the respondent's lawyer to prepare the required document at the specific request of the appellant can be considered part performance of the respondent's obligations.

[39] As a further example, the parties wanted a written version of the sale agreement to be signed as one of the closing documents and the respondent's lawyer was to (and did) prepare it. The respondent had to agree to accept title subject to an easement and the respondent's lawyer was to (and did) revise the form of the written sale agreement to properly reflect that. As there is no indication that the appellant would have closed without such a document, even if the respondent had tendered payment, the preparation and provision of that document by the respondent's lawyer should also be considered as part performance of the respondent's obligations.

[40] Overall, the various steps that were taken in the closing process were part of a package of efforts made by the respondent to fulfill the appellant's requirements for completion of the transaction. Those efforts included the respondent directing its lawyer to draft and provide documents necessary to complete the transaction, to review documents the appellant proposed to execute to complete the transaction, and to specify and address closing requirements. After the appellant's lawyer stopped communicating, the respondent through its lawyer continued to take steps to determine how the closing payment would be transmitted, and then to tender the documents and funds necessary to close.

[41] In my view the acts the trial judge identified as part performance were steps taken in the process of closing the agreement by both parties. They were properly considered as acts of part performance.[^1]

[42] Support for this view is found in Steadman. In that case, the oral agreement between the parties was that in return for the husband's promise to pay £100 on arrears of maintenance payments and £1,500 for the transfer of the wife's interest in their home, the wife agreed to transfer her interest in the home to the husband. The parties advised the court of the agreement. The husband paid the £100 and advanced the £1,500 to his solicitor, who then forwarded a draft transfer to the wife. After she refused to execute the release (and therefore was not paid the £1,500), the husband sought to enforce the oral agreement.

[43] In finding that the husband had successfully invoked the doctrine of part performance, at least two members of the majority in the House of Lords referred to the preparation of the proposed transfer document by the husband's lawyer as an act of part performance by the husband and the effort and expense of doing so as a detriment to him. Lord Reid stated, at p. 540:

I am inclined to think that [sending to the wife the transfer document which she refused to sign and incurring the cost of its preparation] could be regarded as part performance. It is the universal custom that a deed of transfer of an interest in land is prepared by the solicitor of the transferee so the wife or her solicitor as her agent must have known that the husband would incur the cost of preparation of the deed in carrying out the agreement.

[44] In addition, Lord Simon referred to the husband "procuring his solicitor to draft a conveyance for execution by the wife" as one of the husband's acts that was to his detriment: Steadman, at p. 566.

[45] The acts of part performance found by the trial judge included the steps the respondent took in obtaining a survey and title searches; retaining legal counsel to close the agreement; directing counsel to draft, revise, and negotiate the written agreement of sale for the property and the closing documents; delivering the required documents on closing; and tendering the certified cheque for the full amount of the purchase price. These acts involved retainer of professionals, and corresponding expense for their time and effort. It is not necessary that this occurred according to a "universal custom", as Lord Reid found in Steadman, for the appellant to have been aware that this work would be done and its expense incurred. Here, the appellant knew the respondent's lawyer was undertaking this work because of the dialogue with the appellant's lawyer. Indeed, some of it (such as the HST certificate and indemnity, and the revised version of the written sale agreement) was specifically requested by the appellant's representatives.

[46] Since the trial judge did not err in what he considered to be acts of part performance, those acts were properly considered as a source of detriment. I now turn to the appellant's arguments about detriment.

(2) The Trial Judge Did Not Err in Failing to Consider Whether Detriment Was Irremediable

[47] The appellant argues that any detriment arising from the acts of the respondent identified by the trial judge cannot be sufficient to satisfy the doctrine of part performance. Citing Steadman and Erie, the appellant submits that the detriment must be irremediable. It submits the trial judge did not find, or even consider, whether the detriment was irremediable. It goes on to submit that any detriment was not irremediable because the tendered payment was not accepted, and even considering the other acts the trial judge looked at, any expense incurred by the respondent in undertaking those acts could be remedied by quantifying them and ordering them repaid.

[48] The precise language used in the cases cited by the appellant is not irremediable detriment. Steadman speaks of a party having "acted to his detriment in carrying out irremediably his own obligations (or some significant part of them) under the otherwise unenforceable contract": at p. 558, per Lord Simon (emphasis added). Erie similarly speaks of detriment resulting from "irremediably carrying out" contractual obligations: at para. 70.

[49] In my view, a party has irremediably performed its obligations when it has done so without an independent basis or expectation that it would be compensated for doing so. In other words, irremediable performance refers to performance that has been rendered solely in the expectation that the other party will fulfill its end of the oral agreement thus making the detriment of performance worthwhile. It is that type of performance, rendered when the other party has stood by and allowed the detriment associated with it to be incurred, that raises the equity against the other party.

[50] In Hill, for example, a landowner agreed to accept a lower amount in compensation for the expropriation of part of his property on the strength of an oral promise that he would have an interest in the nature of an easement across a highway built by the government. The government stood by and allowed that detriment (lower compensation) to be suffered and built the required facilities consistent with an easement. The government was later barred by equity from asserting the lack of a written, signed agreement to deny the existence of the easement.

[51] Although tendering funds that are not accepted may not be irremediable performance, the respondent's performance was not limited to that. Taking into account all of the acts of part performance the trial judge found occurred during the closing process, the respondent's performance constituted irremediable performance. It took all of the steps it did, up to and including the appellant's refusal to close, without an independent basis for being compensated for the effort, expense and commitment it was incurring, other than what would be realized from performance by the appellant.

[52] Once there has been irremediable performance, there is no additional requirement that the detriment be irremediable. For example, in Hill, the lower compensation served as sufficient detriment even though it presumably could be remedied by additional compensation. The question the Supreme Court addressed was not whether the detriment was irremediable, it was whether it was inequitable to excuse the government from its promise when it had stood by and allowed the landowner to incur that detriment. In other words, the nature and extent of the detriment is relevant, but the question is whether, in all the circumstances, the intervention of equity to prevent reliance on the Statute of Frauds is warranted.

(3) The Trial Judge Was Not Required to Find the Detriment Was De Minimis or Nominal

[53] The appellant makes the related submission that to satisfy the detrimental reliance aspect of the part performance doctrine, the detriment must be more than de minimis or nominal, because the doctrine of part performance prevents reliance on the Statute of Frauds in circumstances that make such reliance inequitable or unconscionable – it argues that could not be the case where the detriment is insubstantial.[^2] Stressing that the non-accepted tender of closing funds was not a detriment, the appellant argues that the detriment suffered by the respondent cannot possibly rise to the level required. I disagree.

[54] In Erie, Gillese J.A. rejected the suggestion that Erie did not meet the detrimental reliance aspect of the part performance doctrine because the only money it provided pursuant to its obligations under an oral agreement was returned by the counterparty, Seres' Farms, after it chose to sell to a third party. Taking a realistic view of detriment, she stated, at para. 68:

I reject the suggestion that Erie suffered no detriment because it got its deposit back. That suggestion ignores reality: Erie's real detriment is loss of the south side property, which it desperately wants because it contains the aggregate Erie needs to carry on its business. Erie acted to its detriment in performing its obligations under the Agreement because had it not delivered the Offer, Seres' Farms would have been unable to use the right of first refusal to provoke an offer from Tri-B. As Erie performed its obligations under the Agreement to its detriment while Seres' Farms stood by, Equity will not permit Seres' Farms to rely on the Statute of Frauds to excuse it from performing its obligations under the Agreement.

[55] In this case, the trial judge found the respondent acted to its detriment by taking all steps necessary to fulfill its obligations under the oral agreement up to the point when the appellant refused to close. There is no suggestion that the respondent did not perform any obligation that was required of it. Although I agree with the appellant that the non-accepted payment of the closing funds was not a detriment, that is not determinative, as Erie shows.

[56] It seems beyond contest that the time, effort and expense incurred by the respondent up to the aborted closing constituted a detriment recognized by prior case law. As the appellant concedes in its factum the doctrine does not require that the detriment suffered by the innocent party translate into a benefit to the defaulting party. The doctrine also applies when one party stands by and lets the other incur expense or prejudice: Steadman, at p. 540, per Lord Reid; Stack v. Zizman (2007), 60 R.P.R. (4th) 42 (Ont. S.C.), at para. 36. The appellant argues that the quantum of the expense and therefore of the detriment is too small to justify the conclusion that it was inequitable to permit the appellant to rely on the Statute of Frauds. Reference was made to a submission of appellant's counsel at trial about the legal expense for some of respondent's lawyer's due diligence work, and his suggestion that the trial judge could order it reimbursed. But as the respondent points out there is no dollar limit or financial threshold that determines when the equitable doctrine of part performance will apply. Equity cannot be reduced to a precise formula.[^3]

[57] In any event, Erie endorses a broader approach to detriment that looks realistically at the entire situation. Although this case is factually different than Erie, as the respondent's performance did not facilitate a third party purchase,[^4] the realistic view of detriment Erie endorses is still germane. Here, the respondent also suffered the "real detriment" of not acquiring a property that it wished to combine with its own and develop, after reaching an oral agreement and then remaining committed to do what was necessary to complete the transaction for months. As the respondent points out, its performance – while the appellant stood by – not only required effort and expense but gave the appellant an advantage: a committed purchaser to whom the appellant (absent the intervention of equity) would have given no enforceable commitment, effectively granting the appellant an unbargained for option to accept performance or walk away at its whim.

[58] It should be borne in mind that the purpose of the Statute of Frauds is to prevent a court from being persuaded by a deceptive plaintiff to unjustly deprive a defendant of property through a bogus claim: Hill, at para. 8, citing Steadman, at p. 558. That is not the situation here. The appellant does not challenge the trial judge's finding of a binding oral agreement that the appellant refused to complete without legal justification. The purpose of the doctrine of part performance is to prevent the Statute of Frauds from being used to allow rather than prevent fraud. Acceding to the appellant's arguments about the detrimental reliance aspect of the doctrine would unduly narrow the doctrine and undercut its remedial purpose.

[59] The trial judge was entitled to consider all of the circumstances in determining whether it was inequitable to permit the appellant to rely on the Statute of Frauds. He found that it was, and that conclusion was legally available on the record.

(4) Conclusion

[60] The trial judge's ultimate decision to give effect to the equitable doctrine of part performance, a doctrine rooted in fairness, is subject to deference, absent reversible error. It was for the trial judge to assess whether there was detriment from the respondent's performance of its obligations. The trial judge considered that there was, and although his conclusion was expressed briefly, I am not persuaded that this finding was not legally available as the appellant contends.

[61] The trial judge was aware of, and cited, the relevant principle that "[i]f party A to an otherwise enforceable agreement stands by while party B acts to its detriment by performance of its contractual obligations, party A may not rely on the requirements in the Statute of Frauds to excuse its own performance". His findings of fact show that the appellant did stand by in this manner. His conclusion, that it was inequitable in the circumstances to allow the appellant to rely on the Statute of Frauds, must be taken to reflect those findings and his application of that principle. The trial judge's conclusion is not tainted by any reversible error. I see no basis to interfere with it.

[62] I would therefore reject the appellant's single ground of appeal.

DISPOSITION

[63] I would dismiss the appeal. In accordance with the agreement of the parties, the respondent is entitled to costs of the appeal fixed in the sum of $20,000, inclusive of disbursements and applicable taxes.

Released: February 19, 2025 "B.W.M."

"B. Zarnett J.A."

"I agree. B.W. Miller J.A."

"I agree. Thorburn J.A."

[^1]: A possible exception is the respondent's obtaining of an environmental assessment, which may not have been directly linked to completion of the terms of the agreement. However, as this was just one of a multitude of acts the trial judge listed, nothing turns on its inclusion.

[^2]: The appellant notes that in many cases the detriment of the party seeking enforcement conferred an advantage on the party resisting enforcement, but it concedes in its factum that this is not a requirement. The doctrine applies.

[^3]: In my view this conclusion is not affected by the appellant's invitation, in the course of the litigation, that it be ordered to reimburse the respondent's expense. Unlike in Deglman v. Brunet Estate, 1954 CanLII 2 (SCC), [1954] S.C.R. 725, on which the appellant relies, the respondent in this case did not seek that relief.

[^4]: A purchase that was set aside by the result in Erie.