COURT FILE NO.: 66209/03

DATE: April 6, 2004

SUPERIOR COURT OF JUSTICE – ONTARIO (DIVISIONAL COURT)

RE: Maple View Building Corporation and Grand Valley Developments (Maple) Inc. v. Loc Tran and Di Hue Tran

BEFORE: Madam Justice R. Boyko

COUNSEL: W. Greenspoon, for the Appellants P. Di Monte, for the Respondents

E N D O R S E M E N T

[1] The Plaintiff’s appeal against the order of the Deputy Judge of the Small Claims Court, the Honourable Judge Davis, dated February 10, 2003, in which he dismissed the Plaintiffs’ claim. The Plaintiff’s appeal to this court is dismissed for the following reasons.

[2] The Plaintiffs claim was for the payment of $6,814.84 from the Defendants to reimburse the Plaintiffs for amounts they were required to pay to a third party, the D’Agostinos who were next door neighbours of the Trans, due to the Trans’ breach of the Agreement of Purchase and Sale in failing to execute a “maintenance easement” in favour of the D’Agostinos, to allow the D’Agostinos access on the Trans’ property if required by the D’Agostinos to maintain their own home.

[3] The appellants are the builders and developers, respectively, of the respondent’s property. When the respondents, who are the purchasers, obtained title to their property from the builder, Maple View, neither the developer Grand Valley Developments Inc. or the City of Vaughan asked the purchasers to give a maintenance easement to their next-door-neighbours, the D’Agostinos. Evidently the City of Vaughan neglected to ensure that the D’Agostinos received a maintenance easement in their favour, which was only necessary because the houses were built too close together by Maple View, in violation of a City by-law.

[4] The Trans evidently were not cooperative in voluntarily providing a maintenance easement to their neighbours; they wished to receive compensation for this and the D’Agostinos eventually purchased such an easement from the Trans for $5,500, in order to avoid any jeopardy to their own title, which was already registered.

[5] After securing their maintenance easement from the Trans, the D’Agostinos through their title insurer, sued the developers, Grand Valley Developments Inc., but did not sue the builder, Maple View Building Corporation with whom they had entered into the Purchase and Sale Agreement. The D’Agostinos obtained reimbursement from the developer and First American Title Insurance and the D’Agostinos released the appellants.

[6] The appellant’s case, in the main, is that clause 3 (i) of the Agreement of Purchase and Sale obliged the Trans who purchased property from the appellants, to provide a “maintenance easement” in favour of their next-door-neighbour, the D’Agostinos. This they argue would oblige the Trans to give an easement in favour of the D’Agostinos, even after title was transferred, and failure to voluntarily provide the maintenance easement would entitle the appellants to any resulting out-of-pocket costs incurred.

[7] Clause 3(i) of the Purchase and Sale Agreement, on its face, plainly pertains only to utility easements and not maintenance easements, and so the Deputy Judge of the Small Claims Court erred in finding that the Trans were obliged under the terms of the Purchase and Sale Agreement to provide a maintenance easement to the D’Agostinos. They had no such obligation.

[8] Clause 3(i) states:

“The purchaser shall accept the real property subject to the municipal regulations and restrictions now or hereinafter imposed effecting the said lands and agrees to observe and comply with the said regulations and restrictions and the terms and conditions contained in the Subdivision Agreement and notwithstanding the closing, the purchaser’s covenants and agreements shall not merge upon closing. The Purchaser further agrees to accept title to the Real Property subject to any restrictions, easements or licenses for the installation and maintenance for public or any other utilities including without limitation telephone, hydro, gas sewer, water, cable television, and agrees to execute upon request any easements required either before or after closing. The purchaser covenants and agrees that the transfer of the said lands to the purchaser may contains such rights and easements”. (Emphasis added).

[9] There is no issue that through the failure of the appellants to comply with by-law requirements, the houses were built too close to the lot line and through the failure of the City of Vaughan to obtain the necessary “maintenance easements” earlier, as a result of the houses being too close together, the D’Agostinos title to their property was in jeopardy unless they secured such an easement from the Trans. Nor is there any issue that this matter does not pertain to any Subdivision Agreement terms referred to in the Purchase and Sale Agreement between the Trans and Maple View Building Corporation.

[10] As it is plain that the clause in question pertains only to utility easements and does not oblige the Trans to provide a maintenance easement to the D’Agostinos, they breached no terms of their Purchase and Sale Agreement and so the Appellants have no cause of action against them based on grounds of breach of contract.

[11] Deputy Judge Davis dismissed the Plaintiff’s claim on the grounds that the Defendants, who purchased property from the Plaintiffs, were obliged to execute a maintenance easement in favour of their neighbours, but the matter was settled privately on a final basis between the neighbours and after the D’Agostinos were reimbursed by the developer, neither appellant any longer had a cause of action against the Trans.

[12] The Deputy Judge of the Small Claims court found, that through a private arrangement the matter was settled with the Trans being released upon execution of the easement, and, that the D’Agostinos, having a right of action through their title insurer, sued the developer and were reimbursed for the costs of purchasing the easement they required from the Trans in order to secure good title to their home. The Deputy Judge of the Small Claims Court further held that neither of the appellants had a right of action against the purchasers, because Grand Valley Developments Inc. was not a party to the Purchase and Sale Agreement and that Maple View Building Corporation similarly had no right of action against the Trans, in effect due to releases signed and also because the D’Agostinos had recovered their costs from Grand Valley Developments Inc. and not Maple View Building Corporation.

[13] However the Deputy Judge erred in finding that the Trans did breach the Purchase and Sale Agreement, and since there was no breach of the Purchase and Sale Agreement, neither the appellant Maple View Building Corporation, nor the appellant Grand Valley Developments Inc., in my view had a cause of action against the Trans.

[14] For these reasons the appeal against the dismissal of the Plaintiffs’ claim by the Deputy Judge of the Small Claims Court is dismissed.

[15] The appellants shall pay costs, all in, fixed at $2,500 to the respondents within 30 days of the release of this endorsement.

Madam Justice R. Boyko

DATE: April 6, 2004