Superior Court of Justice - Ontario
COURT FILE NO.: CV-08-091795-00 DATE: 2013-05-30
BETWEEN:
Bill Van, Kathy Van, Robert John Porter a.k.a. Bob Porter, Fatima Porter and Robert Porter, in Trust Plaintiffs/ Defendants by Counterclaim
– and –
Naveed Ahmad Qureshi a.k.a. Dr. Naveed Qureshi, Franklin Danny White and Daniel McNalley Defendants/ Plaintiff by Counterclaim
Counsel
- Gregory Gryguc, for the Plaintiffs/Defendants by Counterclaim
- D. Gordon Bent, for the Defendant/Plaintiff by Counterclaim Daniel McNalley
HEARD AT NEWMARKET: November 27, 28 and 29, 2012
BEFORE: M.F. Brown J.
Overview
[1] This case essentially relates to a property dispute between the plaintiff Robert Porter and the defendant Daniel McNalley regarding 123 acres of property (the “property”) that Mr. McNalley purchased in East Gwillimbury, Ontario. Mr. Porter owns and resides on property that abuts the property in dispute. Mr. Porter claims that he had an oral first right of refusal (“FROR”) with respect to the property that was breached when the property was sold to Mr. McNalley without giving Mr. Porter an opportunity to match Mr. McNalley’s offer.
[2] As well, Mr. Porter claims that there was a written Agreement of Purchase and Sale (“APS”) he had regarding 10 to 15 acres of the property immediately abutting his property and that of his neighbour at the time Mr. Van. The APS was conditional on obtaining severance of the 10 to 15 acres in order to sever and attach that acreage to the property of Mr. Porter and Mr. Van.
[3] Mr. Porter seeks the deletion of the transfer of the property to Mr. McNalley. As well, he seeks specific performance of the oral first right of refusal of the property, or in the alternative, specific performance of the APS with respect to the 10 to 15 acres of the property.
[4] It is Mr. Porter’s position that the oral agreement regarding the FROR for the property satisfied all the necessary conditions regarding the exceptions to the Statute of Frauds, R.S.O. 1990, c. S.19, and is enforceable. As well, Mr. Porter argues that the APS for the 10 to 15 acres should be enforced if the court does not enforce the first right of refusal for the entire property.
[5] Mr. McNalley’s position regarding the oral FROR is, among other things, that no such first right of refusal to match any offer was ever given regarding the property. In the alternative, if it was given, it is unenforceable by virtue of the Statute of Frauds in that it was not in writing and does not fall within one of the exceptions to the Statute of Frauds.
[6] As well, with respect to the written APS, Mr. McNalley’s position, among other things, is that it too is unenforceable because it is not possible to perform the APS. The APS is conditional upon a severance being granted and there is no realistic chance of that happening in the circumstances. In addition, Mr. McNalley’s position is that Mr. Porter is not entitled to an equitable remedy in relation to the APS given his delay in attempting to complete the APS.
Factual Background
[7] The plaintiffs Robert John Porter and Fatima Porter own lot 12 in the plan of subdivision, being 59 Manor Ridge Trail in East Gwillimbury which, as noted, abuts the property at issue. The plaintiffs Bill Van and Kathy Van were the owners of adjoining lot 11, being 63 Manor Ridge Trail which also abuts the property. They have since sold their property and divorced. Both Mr. Van and Ms. Van have assigned their interest in this action to Mr. Porter.
[8] Mr. McNalley purchased the property from the previous owner, the defendant Naveed Ahmad Qureshi, through the exercise of a power of attorney held by the defendant, Franklin Danny White, and took title on December 12, 2008. The property, as noted, which comprises about 123 acres, abuts and largely surrounds a plan of subdivision fronting on McCowan Road in the Town of East Gwillimbury. Mr. McNalley owns a property known municipally as 22219 Kennedy Road in East Gwillimbury, which also abuts the property.
[9] Both Mr. White and Dr. Qureshi have been noted in default in this action.
[10] Mr. Porter testified that sometime in 2003, Mr. White acting under the same power of attorney as noted above, orally gave to Mr. Porter a first right of refusal on the subject property. It was Mr. Porter’s evidence that what the FROR meant was that once there was a legitimate offer made on the property, he would be given the terms of the offer and if he chose to accept them he would. If he didn’t, the property would be sold to whomever.
[11] On September 13, 2007, before the sale of the property by Mr White to Mr. McNalley, the Porters and the Vans entered into the APS with Mr. White, again acting under the same power of attorney, by which they were to acquire a parcel of land out of the property that would be between 10 and 15 acres in size immediately abutting their properties. The purchase price was $35,000.00 for the parcel. The APS acknowledged that the parcel had to be severed from the property and then further subdivided to attach to their respective properties:
- This purchase is not conditional upon financing, but is upon approval from the Town of East Gwillimbury to sever and attach to Purchasers lots. This approval will include dividing the purchased property in half, or as close as possible to have ascetically (sic) pleasing lot lines between Purchaser number one [the Vans] and Purchaser number two [the Porters].
[12] The APS did not allocate responsibility for pursuing the necessary severances and did not set a closing date.
[13] On October 4, 2008, Mr. White, through the exercise of a power of attorney for Naveed Qureshi, sold the property to Mr. McNalley for $180,000.00. Later that evening on October 4, 2008, Mr. Porter met Mr. McNalley on the property and only then became aware that Mr. White had sold the property to Mr. McNalley.
[14] After an exchange of e-mails with Mr. White, Mr. Porter and the other plaintiffs started this action on October 23, 2008, by Statement of Claim seeking, among other things, specific performance of the FROR and the APS. The plaintiffs obtained an order for a Certificate of Pending Litigation (“CPL”) on October 23, 2008, that was registered on the property on October 24, 2008. The Statement of Claim was amended on August 28, 2009, to add Mr. McNalley as a defendant and adding a further claim seeking an order of possession of the property and a deletion of the transfer of the property to Mr. McNalley.
[15] As noted, the transfer of the property to Mr. McNalley was registered on December 12, 2008. Since the CPL was registered on October 24, 2008, Mr. McNalley was fully aware of the interest claimed by the plaintiffs in the property and Mr. Porter’s claim to specific performance of the FROR and APS. I find that Mr. McNalley stands in the shoes of Mr. White: Harris v. McNeely, 2000 5649 (ON CA), [2000] O.J. No. 472 (C.A.) at para. 12:
Where land is transferred in breach of the agreement containing the right of first refusal and the transferee takes with notice of the restriction which bound the transferor/grantor, the transferee is liable to be joined and bound by an order of specific performance requiring the transferor/grantor to transfer the land to the grantee with the option.
Analysis
[16] In my view there are three issues that need to be decided in this case:
- Was there an oral agreement to a FROR in relation to the property?
- If yes, is Mr. Porter entitled to the equitable remedy of specific performance of the FROR?
- Are the plaintiffs entitled to the equitable remedy of specific performance of the APS?
Issue No. 1: Was there an oral agreement to a FROR in relation to the property?
[17] At trial, Mr. Porter testified how the FROR came about. He said that he moved into his property in the subdivision in September 2002. The property in dispute which was right behind his home was vacant. The builder had left the subdivision in a bit of a mess so everybody was left to clean up their own property. After doing a property search of the property, Mr. Porter contacted the previous owner of the property who told him that the land had just been sold to Mr. White and his group of investors. Mr. Porter was given Mr. White’s contact information and he phoned him.
[18] At some point in 2003, Mr. Porter advised Mr. White the property was being trespassed upon. There were people on the property on horses, two-wheelers and ATVs. Also, people were on the property letting their dogs run free. Mr. Porter also told him there were hazards on the property such as a dug well that was uncapped; farm implements that were semi-buried in the grass; a horse trough that was partially buried and a crumbling farm house that children would play on.
[19] Mr. Porter said he told Mr. White that he would have no problem barricading the two ends of the property to prevent people from coming on the property and putting up No Trespassing signs. He also said he told Mr. White that he would do the best he could at keeping people off the property and look after the hazards on the property so people wouldn’t get hurt. He also said he cleared brush and widened and extended a walking path. Mr. Porter then said he told Mr. White that if and when he ever sold the property, he would like to have the option of buying it from him in terms of a first right of refusal.
[20] Mr. Porter testified that Mr. White said that won’t be a problem but that he couldn’t see ever really selling the property.
[21] Mr. Porter testified that his agreement with Mr. White was that in exchange for him looking after the property he would have the opportunity to match any offer on the property that was made. He said that after 2003 Mr. White permitted him to use the property as if he owned it. In other words, permitting Mr. Porter to do whatever he wanted on the property.
[22] Mr. Porter said he continued to do exactly the same thing with the property until the day in October 2008 when he ran into Mr. McNalley on the property. Up until then he had no idea that anything had changed.
[23] At some point about a month prior to June 21, 2007, Mr. White advised Mr. Porter that he was thinking about selling the property. He said Mr. White had said the investors were not satisfied with their return and he was probably going to be putting the property up for sale.
[24] As a result of that, in order, as he testified “to get his ducks in a row”, Mr. Porter called a meeting at the Blackwater Golf Course on June 21, 2007, of all his interested neighbours with respect to the potential sale of the property. Mr. Porter invited Mr. White to come to the meeting so that he could introduce him as the owner of the property and that the neighbours could meet him. At the meeting, according to Mr. Porter, Mr. White advised everyone that Mr. Porter had a first right of refusal on the property. Among other things, a list was taken of those neighbours interested in a joint venture to purchase the property.
[25] After his conversation with Mr. White about selling the property, Mr. Porter put together a Letter of Intent regarding the 10-15 acres immediately abutting his home and that of Mr. Van.
[26] He then sent the Letter of Intent off to Mr. White and from that document came the APS. According to Mr. Porter, it was at Mr. White’s suggestion that an agreement in writing be prepared about the smaller portion of the property. Mr. Porter testified that this was done at the request of Mr. White in case, in the words of Mr. White “he ever got hit by a bus at least Mr. Porter would get something out of it”.
[27] A number of e-mails were exchanged between Mr. Porter and Mr. White between January 15, 2008, and July 18, 2008, where a variety of deals regarding the property were discussed but none that resulted in Mr. Porter making a formal offer to purchase the property.
[28] There was another series of e-mails after Mr. Porter’s meeting with Mr. McNalley on October 4, 2008 with discussions between Mr. Porter and Mr. White regarding the circumstances that led to the acceptance of the offer on the property by Mr. McNalley and suggestions on deals that might still be possible to have Mr. Porter obtain the property.
[29] Things went from bad to worse in the e-mail exchanges between Mr. Porter and Mr. White commencing October 28, 2008. Eventually, Mr. White, in his e-mail to Mr. Porter of October 29, 2008, questioned why Mr. Porter had not come to him with a written offer to purchase the property and why he did not get a written first right of refusal for the property.
[30] It should be noted that Mr. White did not testify in the trial although I was advised he was under subpoena by both sides. I was not provided any reason as to why he was not called as a witness. I draw no adverse inference either way in relation to either party not calling Mr. White.
[31] Mr. Gryguc, on behalf of Mr. Porter, submits that I should accept the evidence of Mr. Porter as to the existence of an agreement between Mr. Porter and Mr. White of an FROR to permit Mr. Porter to match any formal offer on the property. He submits that I should also consider in support of the evidence of Mr. Porter on this point, the evidence of the five neighbours who attended the meeting at the Blackwater Golf Club on June 21, 2007. As well, he submits that I should look to the evidence of Dora Confalone regarding her discussions with Mr. White on this issue.
[32] Charlie Girard, Andrew Rae, Ian Margerison, Dwayne Rogers and William Van all testified about the meeting at the Blackwater Golf Course on June 21, 2007.
[33] Mr. Girard testified that he couldn’t remember whether it was Mr. White or Mr. Porter who said it but one of them said that it was Mr. Porter’s intention to buy the property and that he had a right of first refusal or something along those lines. He remembers Mr. Porter specifically saying that if none of the neighbours were interested in buying the property Mr. Porter was going to buy the property because he wanted to protect their rights behind their property. Mr. Porter didn’t want anybody building there. He didn’t want anybody else owning the property.
[34] Mr. Rae testified that both Mr. White and Mr. Porter were standing at the front of the room at Blackwater Golf Course. Mr. White mentioned that Mr. Porter had the first right of refusal on the property but Mr. Porter wanted to put it out to his neighbours to see if they wanted to join in with the purchase.
[35] Mr. Margerison remembered Mr. Porter at the meeting saying that he was very interested in the property and his intention was to purchase the property but wanted to make it available to the neighbours as well and that he had the opportunity of first right of refusal from Mr. White.
[36] Dwayne Rogers testified that he recalled the meeting at Blackwater Golf Course. His recollection was hearing a presentation from Mr. White and Mr. Porter regarding the possibility of the neighbours going into purchasing the property. If that was not to occur, then Mr. Porter would be able to purchase the land himself. He did not recall any mention of a first right of refusal. He recalled thinking that Mr. Porter would be fine if the neighbours didn’t buy the property because Mr. Porter could match any offer but he didn’t recall those exact words – just that Mr. Porter would be the one buying it.
[37] The plaintiff, Mr. William Van, also testified. He said he recalled a meeting at the Blackwater Golf Club with Mr. White and Mr. Porter. It was a meeting about seeing if everyone in the area was interested in buying the property in the back of them. He said he recalled a conversation with Mr. Porter and Mr. White about a first right of refusal.
[38] Dora Confalone also testified. She is a real estate salesperson. She was familiar with the real estate listing for the property. She was doing up the listing for the property. She recalled a conversation with Mr. White concerning the neighbours whose houses backed on to the property. He said to her they were interested in purchasing a parcel or the whole property. She couldn’t remember whether it was a parcel or the whole thing. She remembered they had a first right of refusal to the property. She said she could not remember the part about the severance although it was mentioned in the listing.
[39] I am not satisfied on a balance of probabilities that there was an oral agreement between Mr. Porter and Mr. White for a FROR on the property that would require Mr. White to give Mr. Porter an opportunity to match whatever formal offer Mr. White received for the property. If there was such an oral agreement to a FROR, at its highest, it was only for Mr. Porter to have the first opportunity to purchase the property if it was for sale. That is precisely what Mr. Porter said in his affidavit of October 22, 2008, at paragraph 6 in support of a motion for an order to have a CPL issued on the property.
[40] Of course, if the actual terms of the FROR were that Mr. Porter would have the first opportunity to purchase the property if it were for sale, then this agreement was not breached because Mr. Porter had numerous opportunities to make a formal offer to purchase the property when it was for sale. One of the reasons he didn’t make a formal offer, according to his evidence, was, in his words “Why would I buy something when I didn’t have to pay for it yet? Why would I overpay for something?”
[41] While I accept there were numerous people who heard Mr. White say that Mr. Porter had a first right of refusal on the property, there was no consensus among those who testified about what that actually meant. In my view, in the circumstances, it is unrealistic to think that Mr. Porter had a FROR on the property that permitted him to be given an opportunity to match any formal offer on the property. In none of the e-mails exchanged between Mr. White and Mr. Porter does Mr. Porter ever maintain he had a FROR at all for the whole property. This is so even after it is clear to him that Mr. McNalley accepted the signed back offer of Mr. White. Apart from Mr. Porter’s affidavit of October 22, 2008, the only reference to a FROR in all of the correspondence and documents filed in this case is the Letter of Intent relating to the parcel of land that he sought to be severed and which resulted in an APS.
[42] Indeed when he first confronted Mr. McNalley behind his home on October 4, 2008, Mr. Porter made no mention of a FROR. In fact, he said he lied to Mr. McNalley and told him he had an agreement in writing and he was moving forward with the purchase of the property.
[43] To me, it just does not make sense that if Mr. Porter actually had a FROR permitting Mr. Porter the right to match any formal offers on the property, that he would not have made some reference to it in writing at some point in the same way the FROR was referenced in the Letter of Intent to the smaller parcel of 10-15 acres of land. After all, Mr. Porter testified that the only thing of importance to him was getting the 123 acres. It is implausible to think he would reduce to writing in the Letter of Intent a reference to a FROR on the smaller parcel but make no reference to a FROR on the 123 acres.
[44] Accordingly, if there was no oral agreement to a FROR to permit Mr. Porter to match any formal offer on the property, on that basis alone the equitable remedy of specific performance on the property would not be available.
Issue No. 2: If yes, is Mr. Porter entitled to specific performance of the FROR?
[45] Even if I am wrong and there was an oral agreement for a FROR to match any offer for sale of the property, in my view, the oral agreement is unenforceable by virtue of s. 4 of the Statute of Frauds.
[46] The Statute of Frauds, R.S.O. 1990, c. S.19 provides:
- No action shall be brought … to charge any person upon any contract or sale of lands, tenements or hereditaments, or any interest in or concerning them, 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.
[47] Mr. Gryguc, on behalf of Mr. Porter, argues that Mr. Porter’s uncontradicted evidence confirms the fact that he has done management and maintenance at the property since 2003 pursuant to the FROR, which constitute acts of part performance so that s. 4 of the Statute of Frauds is not applicable.
[48] The doctrine of part performance is typically applied in the context of oral transactions concerning the transfer of land in return for the provision of services. Having provided the services in question, the service provider seeks the equitable remedy of specific performance of the agreement to transfer the land. If the doctrine is applicable, the oral agreement becomes enforceable: John D. McCamus, The Law of Contracts (Irwin Law Inc., 2005) at pp. 174-175.
[49] Mr. Gryguc also relies on Erie Sand & Gravel Limited v. Seres’ Farms Ltd., 2009 ONCA 709, per Gillese J.A at para. 49:
The purpose of s. 4 of the Statute of Frauds is to prevent fraudulent dealings in land based on perjured evidence. However, Equity will not allow the Statute of Frauds to be used as an "engine of fraud". It created the doctrine of part performance to prevent the Statute of Frauds from being used as a variant of the unconscionable dealing which it was designed to remedy: see Hill v. Nova Scotia (Attorney General), 1997 401 (SCC), [1997] 1 S.C.R. 69, at para. 10. The requirements in s. 4 of the Statute of Frauds must give way in the face of part performance because the acts of part performance fulfill the very purpose of the written document - that is, they diminish the opportunity for fraudulent dealings with land based on perjured evidence.
[50] Mr. Bent, on behalf of Mr. McNalley, challenges the sufficiency of the evidence of Mr. Porter’s alleged part performance. He submits that the acts of alleged part performance are not unequivocally referable to the FROR. Mr. Bent also relies on the reasons of the Court of Appeal in Erie Sand, where Gillese J.A. refers to the two elements of the doctrine of part performance at paragraph 79:
The first aspect is detrimental reliance which, as has been noted, 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, however, relates to Equity's requirement that the acts of part performance sufficiently indicate the existence of the alleged contract such that the party alleging the agreement is permitted to adduce evidence of the oral agreement.
[51] Mr. Bent also relies on the comments of Justice Gillese in Erie Sand endorsing the approach in Haskett v. O'Neil, 1939 310 (ON CA), [1939] 4 D.L.R. 598 (Ont. C.A.):
93 In applying the more stringent Rand test in Haskett, Robertson C.J.O., on behalf of the court, stated at p. 601 D.L.R.:
To determine whether or not the acts relied upon in any particular case are within this description, one must have regard to all relevant circumstances in order to determine their true character.
It is not necessary for respondent [plaintiff] to show acts of part performance that could not by any stretch of the imagination be referred to some other title than a contract such as that alleged. I think one must have regard to the way in which reasonable people carry on their affairs and if the acts relied on are of such a character that, judged by the standards in accordance with which reasonable people commonly act, they would not be done except in part performance of a contract such as is alleged, that is sufficient part performance to avoid the operation of the statute.
94 There is much to be said for the commonsensical approach taken in Haskett. Based on that but modified to reflect the less stringent Deglman test, in my view, the proper approach to making such a determination is this. Begin by determining the context (or the "relevant circumstances" to use Haskett terminology). Then consider the acts of part performance having regard to the way in which reasonable people carry on their affairs.
[52] Mr. Bent submits that the minimal acts of property management and maintenance about which Mr. Porter testified are not unequivocally consistent with the claimed FROR. He submits these acts are more consistent with Mr. Porter’s use of the property for his own purposes in exchange for minimal property oversight. I agree with that position. Whatever work Mr. Porter did regarding the property was, in my view, more consistent with his own enjoyment of the property. For example, keeping trespassers off the property and widening and expanding a walking trail were in his own best interests.
[53] Far from detrimental reliance, the acts performed by Mr. Porter permitted him to maintain the use of the property as his own. As he testified, he didn’t have to pay for the property but he could still use it like it’s his own. This is precisely what he said in his e-mail of January 15, 2008, to Mr. White: “Hopefully this will accomplish both our goals, even though my goal has been obtained already at this point. No neighbours and use of the property without costs.”
[54] In my view, I am not satisfied on a balance of probabilities that the management and maintenance that Mr. Porter did on the property were sufficient to constitute part performance, thereby preventing the application of the Statute of Frauds. Accordingly, even if there was an oral agreement for a FROR, it is not enforceable and the equitable remedy of specific performance is unavailable regarding the property.
Issue No. 3: Are the plaintiffs entitled to the equitable remedy of specific performance of the APS?
[55] Mr. Porter seeks the equitable remedy of specific performance regarding the APS. Mr. Gryguc, on behalf of Mr. Porter, submits that the APS contains the essential terms of a contract for sale of land, being “the parties, the price and the property”. He submits that the APS complies with the essential terms of a contract for the sale of land and that an order of specific performance of the APS should follow.
[56] While I accept that the APS does have enough detail in it to identify the essential terms of a contract if municipal consent to the severance were to be obtained, it is, in my view, nonetheless unenforceable. In saying this, I rely on the uncontested evidence of the extreme improbability of obtaining severance of the property given by Mr. Cannon.
[57] Mr. Chris Cannon, the Town Planner for the Town of East Gwillimbury was called as a witness by Mr. McNalley. Counsel for Mr. Porter conceded Mr. Cannon’s qualifications to give opinion evidence in his role as Town Planner. Mr. Cannon has been employed as the Town Planner at East Gwillimbury for just over ten years. Up until two years ago he was Secretary-Treasurer for the Committee of Adjustment as well as the Planner of Record for the Committee of Adjustment. He is now just the Planner of Record for the Committee of Adjustment, a role he has had since mid 2003. The role of the Planner of Record for the Committee of Adjustment is to review Town policy with respect to the Town’s Official Plan, zoning by-laws, applications that come in that are presented to the Town and make recommendations through reporting to the Committee of Adjustments. The recommendations would relate to applications being put forward to the Committee of Adjustments by land owners. Mr. Cannon was provided with the proposed sketch of severance of the property as contemplated by Mr. Porter and Mr. White in the APS and as set out in the attachment to Exhibit 5. It was Mr. Cannon’s opinion that the proposed lot configuration and severance did not comply with the Official Plan of the Town of East Gwillimbury because it proposes adding surplus land that would result in the benefiting lands to be irregularly shaped lots.
[58] Mr. Cannon testified that if he received this application for severance based on the sketch from Exhibit 5 and he was asked to make a recommendation to the Committee of Adjustments, he would not recommend approval of this particular proposal. He testified that since he had held the position as Planner of Record to the Committee of Adjustment from 2003, the Committee of Adjustments have not gone against his recommendations.
[59] It was his opinion that based on his experience in the Planning Department of the Town of East Gwillimbury and his knowledge of the Official Plan of the Town and of its policies, he would put the probability of the proposal severance application being approved by the Committee of Adjustments at just greater than zero percent.
[60] Mr. Cannon also testified he recalled Mr. Porter in 2009 and 2010 coming to the counter making an inquiry regarding severance of the property that was very similar to the proposal in Exhibit 5. He advised Mr. Porter that he could not support this type of severance application.
[61] In cross-examination, Mr. Cannon conceded that if there was an appeal of the Committee of Adjustments decision in this matter to the Ontario Municipal Board there is a possibility that there could be a negotiated settlement.
[62] Mr. Bent argues that if severance of the land is not possible, the specific relief asked by Mr. Porter should not be enforced. In this case, Mr. Bent, on behalf of Mr. McNalley, relies on the discretionary defence of impossibility regarding Mr. Porter’s claim of specific performance of the APS. I agree with this submission. As was noted by Justice Robert Sharpe in his text Injunctions and Specific Performance (Thomson Reuters Canada Ltd.) at para. 10.650:
If it is no longer possible for the defendant to perform, specific relief is obviously excluded. It would be a mockery of justice to make an order…which could not be complied with.
[63] I recognize that courts have made orders requiring the defendant to use best efforts to obtain regulatory or planning approval: Dynamic Transport Ltd. v. O.K. Detailing Ltd., 1978 215 (SCC), [1978] 2 S.C.R. 1072. However, the facts in that case and the line of cases that follow it, are very different from this case.
[64] Mr. Cannon gave uncontradicted evidence that he put the chances of obtaining a severance at just greater than zero percent. Mr. Porter called no evidence in response to Mr. Cannon’s evidence which could not have come as a surprise to Mr. Porter. Mr. Porter had received similar information about the difficulties associated with severance from Mr. White in an e-mail of January 15, 2008. As well, Mr. Cannon himself testified that he had told Mr. Porter in 2009 or 2010 that he could not support the application for severance.
[65] On the state of the evidence before me, the chances of obtaining a severance are so remote that it would, as Justice Sharpe remarked in his text, make a mockery of justice to order Mr. McNalley or Mr. Porter to make best efforts to do so. As counsel for Mr. McNalley said, it would be a fool’s errand to require the parties to make best efforts to obtain a severance in these circumstances.
[66] On the basis of the uncontradicted evidence before me of Mr. Cannon, the Town Planner of East Gwillimbury, which I accept, I find on a balance of probabilities that the chances of obtaining a severance in these circumstances to be extremely remote, if not non-existent. I recognize that Mr. Cannon testified that it’s always a possibility that a negotiated settlement could take place with the parties on an appeal to be Ontario Municipal Board. However, a mere possibility is not sufficient on the state of the evidence before me to justify granting the relief of specific performance sought by Mr. Porter in regard to the APS.
[67] Mr. Bent also argues that the delay in Mr. Porter pursuing the APS should preclude his obtaining the equitable remedy of specific performance. Mr. Bent points out that clause 28 of the APS provides that “Time was of the essence in this agreement.” Relying on the case of Wandoan Holdings Ltd. v. Pieter Vos Ltd. (1974), 1974 488 (ON SC), 4 O.R. (2d) 102 at para. 14, Mr. Bent submits that a party who seeks the equitable jurisdiction of the Court must not be dilatory in the performance of their obligations. They must be desirous, prompt and eager to complete the contract. Mr. Bent submits that Mr. Porter failed to complete the APS or seek to obtain severance of the property with the necessary dispatch.
[68] While on the facts of this case I would not preclude specific performance of the APS due to delay alone, it is a factor for me to consider in the exercise of my equitable jurisdiction. A plaintiff, once entitled to specific performance, may lose that right on account of delay in asserting the claim: Sharpe, Injunctions and Specific Performance, supra, at para. 1.820.
[69] On his own evidence, Mr. Porter testified that he had no intention of closing the APS deal as soon as possible or getting a severance pursuant to the APS because his intention was to get the whole property. The APS was put on hold initially because he wanted to obtain the whole property. Mr. Porter testified that the APS was his opportunity if the plan for the whole property did not work out. He said that if someone came to buy the whole property and he didn’t want to buy it, then that’s when he would have got aggressive with respect to severing.
[70] In all the circumstances I would not exercise my discretion to grant the relief of specific performance of the APS.
Conclusion
[71] For the foregoing reasons, the plaintiffs’ claim for specific performance of the property and the APS are dismissed. The plaintiffs were not pursuing claims for breach of contract. In any event, there was no evidence led as to damages by the plaintiffs. All remaining claims of the plaintiffs are dismissed as well.
[72] In terms of the counterclaim by Mr. McNalley, I am satisfied in light of the failure of the plaintiffs’ claims for specific performance that the transfer of the property from Mr. Qureshi to Mr. McNalley was valid and that the Certificates of Pending Litigation currently on title should be deleted. Given that no evidence of damages for slander of title was led, that claim is dismissed.
[73] In light of the above, an order will go granting the relief sought by Mr. McNalley in paragraphs 17(i), (ii) and (iii) in his Statement of Defence and Counterclaim.
[74] If the parties cannot agree on the issue of costs of this action, they may, within 20 days of the release of these reasons, serve and file written submissions of no more than four pages single spaced together with a Bills of Costs. The responding party on costs may serve and file materials of the same length within a further ten days. Reply materials may be delivered within five days thereafter. All costs materials shall be forwarded to me in care of my Administrative Assistant, Angela Boyle, in Newmarket.
M.F. Brown J.
Released: May 30, 2013
COURT FILE NO.: CV-08-091795-00 DATE: 2013-05-30
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Bill Van, Kathy Van, Robert John Porter a.k.a. Bob Porter, Fatima Porter and Robert Porter, in Trust Plaintiffs/ Defendants by Counterclaim
– and –
Naveed Ahmad Qureshi a.k.a. Dr. Naveed Qureshi, Franklin Danny White and Daniel McNalley Defendants/ Plaintiff by Counterclaim
REASONS FOR JUDGMENT
M.F. Brown J.
Released: May 30, 2013