SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 11-52838
DATE: 20120417

RE: JULIE WESTEINDE, Applicant

AND:

BART BAKKER, Respondent

BEFORE: Honourable Justice Timothy Ray

COUNSEL: Counsel, for the applicant, Pam MacEachern.
Counsel for the respondent, Chris Arnold.

HEARD: April 17, 2012

ENDORSEMENT #2

[ 1 ] I heard this matter originally March 15, 2012 ( 2012 ONSC 1760 ). No order was taken out, and no appointment was made to settle the terms of the order although there were exchanges of draft orders.

[ 2 ] This comes back before me today, because, the respondent made an offer to purchase the property at $495,000, March 26, 2012. That offer was not accepted by the applicant, and instead she made a counter offer (through her brother) at $500,000 on March 27, 2012. The respondent then countered with an offer the same day at $500,001. The last offer came from the applicant (through her brother) at $505,000.

[ 3 ] The applicant says hers is the best offer, the time has expired and she says she has accepted the offer at $505,000. The respondent’s position is that his was the ‘first reasonable offer’ as contemplated by my endorsement of March 25, 2012 and should have been accepted by the applicant. He also says that a bidding war was never contemplated at the time of the March 25, 2012 motion.

[ 4 ] Both parties have delivered motion records in support of their position.

[ 5 ] I am concerned at what was the obvious lack of candour when the matter first came before me. I was told that it was the respondent that was holding things up and that the applicant was anxious to get the property sold. It was never suggested that she would be interested in purchasing the property. Had that been the case then an auction process – or a buy/sell - as between the parties might have been appropriate. Accordingly, and explicitly in accord with the applicant’s prayer for relief, my endorsement required that the property be listed for sale and that if the respondent made an acceptable offer it would be commission free. In fact the property was never listed with a realtor. The applicant says the realtor was away on vacation. It is reasonable to assume however that once the offers started on March 26, 2012, she abandoned any idea of listing the property.

[ 6 ] There is no doubt that the parties are entitled to maximize their respective returns from the sale of the property since each is to be credited with one half – subject to an accounting.

[ 7 ] Since no order was taken out, there is nothing to interpret, and I am not functus. I am being invited to revisit my decision of March 15, 2012, or alternatively enforce it.

[ 8 ] What I find most troubling is that in the face of a sale procedure ordered by me following her submissions, she arbitrarily decided –No; that it would be a bidding process as between them. And then engaged in counter offers. No thought apparently was given to having this brought back before me when she changed her mind. The applicant’s family is very wealthy, the respondent is not.

[ 9 ] While it is an important principle that the parties maximize their return through the sale process, it is also an important principle that a party who seeks the assistance of the court treat the court with ‘clean hands’. I find that to be absent here.

[ 10 ] No evidence was put before me as to why the applicant changed her mind after March 15, 2012, why she wanted the property, or what she intended to do with it. Having regard to the amounts of the offers, one could readily conclude that the applicant was motivated more by making sure that the respondent didn’t get the property.

[ 11 ] While there is no formal order, I reiterate the terms of my endorsement of March 15, 2012, and order that the respondent has complied by making ‘the first reasonable offer’. Subject to a closing date of 45 days, and completion of the transaction in accord with his agreement of purchase and sale, I am satisfied that the respondent has complied with my order. The terms of my endorsement are modified by adding at paragraph 16 (f) (ii) the following. “The applicants share shall be paid out to her on closing. The respondent’s share is to be held in trust by the purchaser’s solicitor to the credit of the respondent pending agreement or order concerning the accounting. The accounting is ordered to be conducted by the Master, if the parties cannot agree”. If there are further issues, I may be spoken to.

[ 12 ] I received no Form 57B costs outlines at the conclusion of argument, although the applicant filed a standard bill of costs. If the parties cannot agree, they may make written submissions of two pages or less within 14 days, and reply after 5 days addressed to my chambers in Ottawa.

Honourable Mr. Justice Timothy Ray
Date: April 17, 2012

COURT FILE NO.: 11-52838
DATE: 20120417

SUPERIOR COURT OF JUSTICE - ONTARIO RE: JULIE WESTEINDE, Applicant AND: BART BAKKER, Respondent BEFORE: Honourable Justice Timothy Ray COUNSEL: Counsel for the applicant, Pam MacEachern. Counsel for the respondent, Chris Arnold. ENDORSEMENT Honourable Mr. Justice Timothy Ray

DATE: April 17, 2012