NEWMARKET COURT FILE NO.: CV-12-109596-SR
DATE: 20130905
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MELISSA MITCHELL
Plaintiff
– and –
THE PRINTING FACTORY LOFTS INC., BEAVERBROOK HOMES INC., and ANTHONY LANNI
Defendants
D. Pomer, for the Plaintiff
M. Drudi, for the Defendants/Moving Parties Beaverbrook Homes Inc. and Anthony Lanni
HEARD: August 27, 2013
REASONS FOR DECISION
DiTOMASO J.
THE MOTION
[1] The defendants Beaverbrook Homes Inc. (“Beaverbrook”) and Anthony Lanni (“Lanni”) seek an order dismissing the plaintiff’s claim as against them. The plaintiff alleges that Beaverbrook and Lanni are liable to her as a result of a change to the plans of the proposed Condominium where an exterior door leading onto Carlaw Avenue was eliminated and, further, as a result of alleged deficiencies and Ontario Building Code issues involving the construction of the Condominium Unit she purchased.
[2] Beaverbrook and Lanni bring this motion for summary judgment pursuant to Rule 20 of the Rules of Civil Procedure.
THE FACTS
[3] On February 12, 2007, the plaintiff entered into a written Agreement of Purchase and Sale (the “Agreement”) with the defendant, The Printing Factory Lofts Inc. (the “Printing Factory”) to purchase unit 26, level 1 (the “Unit”) of the proposed Condominium for $307,900.
[4] The plaintiff took possession of the Unit on January 15, 2010.
[5] The closing date for the property was June 15, 2010. The plaintiff closed “under protest” reserving all of her rights with respect to an alleged breach of contract and negligence on the part of all defendants.
[6] The lofts at the Printing Factory were marketed as live/work lofts. It was represented to the plaintiff that her Unit would include an exit onto Carlaw Avenue for the purpose of using the Unit as a live/work space.
[7] Pursuant to the Agreement, the Printing Factory began construction and unexpectedly learned from Toronto Hydro that certain hydro duct banks were to be placed in a location which prevented a proposed exterior door being constructed as per the proposed plans for the Unit.
[8] Many months prior to closing, the plaintiff complained about the exterior door loss and was offered three options.
[9] On January 12, 2010, the solicitor for the plaintiff inquired about compensation for the elimination of the exterior door and this request was refused. The plaintiff thereafter chose to affirm rather than to rescind the Agreement and completed the transaction.
[10] The plaintiff also complained to Beaverbrook and Lanni about deficiencies and Building Code issues regarding her Unit during the warranty period provided in the Agreement. In dispute is whether there are alleged deficient work and Building Code issues and who bears any responsibility to the plaintiff regarding the elimination of the exterior door in addition to the alleged deficient work and Building Code issues.
POSITION OF THE PARTIES
Position of the Moving Parties Beaverbrook and Lanni
[11] Beaverbrook and Lanni submit the loss of the exterior door on the plans was not attributable to any act or default on the part of Beaverbrook or Lanni. The elimination was a consequence of the location of a hydro duct and the Agreement permitted the Printing Factory to alter the Plans without liability.
[12] Further, with respect to the alleged deficient work and Building Code issues, assuming they exist, neither Beaverbrook nor Lanni have any personal or separate responsibility to the plaintiff as they were not privy to the Agreement. Assuming the deficient work and Building Code problems exist, the Agreement specifically deals with the liability of the Printing Factory and the warranties that apply.
[13] The essence of the position of Beaverbrook and Lanni is that the Agreement sets out all of the rights and obligations as between the plaintiff and the Printing Factory. Neither Beaverbrook nor Lanni were parties to the Agreement. While the plaintiff may have claims against the Printing Factory, it has no claim or cause of action for damages against Beaverbrook and Lanni. Further, it is submitted that neither Beaverbrook nor Lanni are responsible in any way for alleged misrepresentations made to the plaintiff in respect of the exterior door. While the plaintiff may advance claims against the Printing Factory, there are no claims or causes of action to be advanced as against Beaverbrook and Lanni. As a consequence, Beaverbrook and Lanni move for summary judgment to dismiss the plaintiff’s claim as against them.
Position of the Plaintiff
[14] The plaintiff submits that all defendants are responsible to her regarding the removal of the exterior door which significantly altered the fundamental character and use of the Unit. Beaverbrook and Lanni are liable to her, as well as the Printing Factory, for misrepresentations made regarding the availability of the exterior door. Mr. Lanni was an officer and director and/or employee of Beaverbrook. He sent emails to the plaintiff on behalf of Beaverbrook and therefore both Lanni and Beaverbrook are liable to her because of his alleged misconduct in pursuance of the interest of Beaverbrook.
[15] As for the deficiencies and Building Code issues, they were raised with Beaverbrook during the warranty period.
[16] However, the defendants (identified by the plaintiff in the plural) refused to take any action to rectify the deficiencies. The defendants claim that the issues did not fall under the warranty claims.
[17] It is submitted that the deficiencies and removal of the exterior door to Carlaw Avenue have affected the fundamental character, use and value of the Unit. The refusal of the defendants (once again identified in the plural by the plaintiff) to address the deficiencies and Building Code issues regarding the Unit constitutes a breach of the warranty provided to the plaintiff.
[18] The plaintiff seeks to dismiss the motion for summary judgment against Beaverbrook and Lanni.
THE ISSUE
[19] The issue is whether or not there is a genuine issue requiring a trial.
ANALYSIS
[20] The court shall grant summary judgment where it is satisfied there is no genuine issue requiring a trial with respect to a defence.[^1] In making this determination, a motion judge ought to be able to achieve the full appreciation of the evidence and issues in order to make dispositive findings without the need for a trial. The ultimate question is whether a trial is required in the “interest of justice”.[^2]
[21] Unless full appreciation of the evidence and issues that is required to make dispositive findings is attainable on the motion record, the judge cannot be “satisfied” that the issues are appropriately resolved on a motion for summary judgment.[^3]
[22] For all practical purposes, summary judgment will issue where, inter alia, there are no disputed facts, the applicable law is well settled and the responding party has offered no evidence to support its claim or defence.[^4]
[23] One or more defendants may be released through partial summary dismissal as against them with the claim against the remaining defendant allowed to proceed.[^5]
[24] I find that in the case at bar, dispositive findings can be made on application of the full appreciation test in order to make a determination whether the plaintiff’s claims against Beaverbrook and Lanni ought to be dismissed on a summary judgment motion.
[25] I have considered the plaintiff’s statement of claim and in particular allegations made against all defendants found at paragraphs 11, 12, 14, 15, 16 and 17.
[26] Essentially, the plaintiff pleads that there was an Agreement of Purchase and Sale dated February 22, 2007 which substantially sets out all the rights of the plaintiff and the obligations of the defendants. The plaintiff pleads that the defendants breached the terms of the Agreement and are liable to her for all damages in respect of the breach of the contract. She goes on to plead that the defendants either negligently or fraudulently offered the Unit as a live/work loft knowing that the said location did not have a private street access directly from Carlaw Avenue. The original floor plans as shown to her included a private entrance to Carlaw Avenue. It is alleged that this was a major selling point to her and in fact, the representative of the defendants sent various emails to her confirming the said private entrance on Carlaw Avenue.
[27] She alleges that Mr. Lanni was at all material times a representative of Beaverbrook and he made various representations assuring her that she would be getting the exterior door access to Carlaw Avenue. She pleads that as of the date of the claim, she suffered damages and inconvenience as there was no direct entrance to Carlaw Avenue from her Unit.
[28] In respect of deficiencies and Building Code issues, these allegations can be found in the statement of claim starting at paragraph 27 through to paragraph 30. She alleges that the defendants refused or were unable to rectify the plaintiff’s deficiency concerns made within the warranty period. As a result, she closed the transaction “under protest”.
The Agreement – The Deficiencies and Building Code Issues
[29] It is not disputed that on February 12, 2007 the plaintiff entered into a written Agreement for the Purchase and Sale of the Unit with the defendant the Printing Factory to purchase Unit 26, level 1 of the proposed Condominium for $307,900.[^6]
[30] Neither Beaverbrook nor Lanni were parties to the Agreement nor mentioned therein.[^7]
[31] Further, the Agreement at paragraph 9 (“construction warranties”) provides, inter alia, that all the plaintiff’s warranties are restricted to only those warranties deemed to be given by the vendor pursuant to the provisions of the Agreement.[^8]
[32] The Agreement at paragraph 9 also provides that all warranties are restricted to a one year claim period and that there is no other representation, warranty, guarantee, collateral agreement or condition precedent to, concurrent with, or in any way affecting the Agreement.[^9]
[33] Paragraph 9 further provides that the plaintiff releases the Printing Factory, its directors, officer, agents, employees, successors, assigns (Lanni) and affiliates (Beaverbrook) in respect of any higher or better standards of design, workmanship or materials respecting the Unit except for the specific warranties in the Agreement.[^10]
[34] In addition, paragraph 9 provides that the plaintiff agrees that the foregoing release constitutes an estoppel to any action brought by the plaintiff against the released parties.[^11]
[35] The essential provisions relied upon by Beaverbrook and Lanni can be found at paragraph 9 under the heading Construction Warranties (b), (c), (e), (f) and (g).
[36] With respect to alleged deficient work and Building Code issues, I find that neither Beaverbrook nor Lanni have any personal or separate responsibility to the plaintiff as neither Beaverbrook nor Lanni were privy to the Agreement. The Agreement specifically deals with the liability of the Printing Factory: not Beaverbrook, not Lanni, and the warranties that apply.
[37] I find there is no evidence to support the plaintiff’s allegations that either Beaverbrook or Lanni or both of them have any liability for the alleged deficiencies or Building Code issues to her. Rather, it is conceded by counsel for Beaverbrook and Lanni that there are deficiency issues that exist between the plaintiff and the Printing Factory.
[38] I find that neither Beaverbrook nor Lanni made verbal representations to the plaintiff which can be characterized by her as misrepresentations. The parol evidence rule provides a written agreement shall not be derogated from or contradicted by any alleged oral understandings.[^12]
[39] Further “it is a rule of substantive contract law, viz., that extrinsic statements do not affect the parties’ obligations”.[^13]
[40] In our case, all of the contractual terms have been included in the written contract between the plaintiff and the Printing Factory. I agree with the moving parties that the Agreement comprehensively and exhaustively deals with the rights and obligations of the Printing Factory and the plaintiff.[^14]
The Agreement – The Material Change to the Exterior Door
[41] Paragraph 23 of the Agreement provides that the Printing Factory was free to make changes to the Unit to conform with requirements related to Building Codes, Official Plan or Official Plan Amendment, Zoning By-Law, municipal site plan approval or architectural control.[^15]
[42] The Agreement at paragraph 31 provides the Printing Factory with the right to modify and/or vary the plans and specifications pertaining to the Unit in the event of a material change.[^16]
[43] Further, the Agreement at page 26 provides the Printing Factory immunity against any claim or cause of action for damages in connection with material amendments to the Unit.[^17]
[44] I find that pursuant to the Agreement, the Printing Factory began construction and unexpectedly learned from Toronto Hydro that certain hydro duct banks were to be placed in a location which prevented a proposed door from being constructed as per the proposed plans for the Unit.[^18]
[45] I accept that many months prior to the closing, the plaintiff complained about the exterior door loss and was offered three options. This occurred on November 5, 2009. She was advised that the exterior door would not be possible due to site conditions and that the three options available to her were as follows:
Accept the unit as is;
Move to another available unit for the same square foot price as original purchase; and
Mutual release.
All three options were not acceptable to the plaintiff.[^19]
[46] The Agreement provides at paragraph 31 that the purchaser’s only recourse and remedy shall be the termination of the Agreement in the event of a material change after being notified of the material change after ten days with the return of deposits together with interest. The plaintiff chose not to terminate the Agreement. Rather, on January 12, 2010, her solicitor inquired about compensation for the elimination of the exterior door and this request was refused. Thereafter, she chose to affirm rather than to rescind the agreement and took occupation on January 15, 2010. She completed the transaction on June 15, 2010 “under protest, reserving her rights as against the vendor described in her letter of protest as the Printing Factory.”[^20]
[47] I find that there is no evidence that the loss of the exterior door in the plans resulted from any act or default of Beaverbrook Homes or Anthony Lanni. The elimination was a consequence of the unexpected location of a hydro duct and the Agreement permitted the Printing Factory to alter the plans without liability.
[48] I further find that there were no representations or misrepresentations to the plaintiff made either by Beaverbrook or Lanni. The date of the Agreement was February 12, 2007. The issue regarding the exterior door, deficiencies and Building Code issues arose much later. There is no evidence to support any argument that there were any representations or misrepresentations made by Beaverbrook and Lanni at the time the contract was made on which the plaintiff would have placed any reliance in order to found a cause of action against them. She went on to contract with the Printing Factory and closed the transaction without the involvement of Beaverbrook and Lanni.[^21]
[49] I am satisfied there is no evidence to support the allegation that Beaverbrook and Lanni are in some way liable to the plaintiff as agents of the Printing Factory.[^22]
[50] In respect of the material change regarding the exterior door, I make the same findings regarding the Agreement. It contains all of the contractual terms dealing with the rights and obligations of the plaintiff and the Printing Factory. Further, the plaintiff cannot rely upon verbal statements made by the moving parties as the parol evidence rule provides that written agreements shall not be derogated from or contradicted by any alleged oral understandings.[^23]
[51] I find that the moving parties Beaverbrook and Lanni have satisfied their burden to establish that there are no genuine issues requiring a trial as against them. I have applied the full appreciation test. When applied to the facts and issues of this case permit, I am able to make dispositive findings. Therefore, I conclude that Beaverbrook and Lanni are successful on their motion for summary judgment to dismiss the plaintiff’s action against them.
DISPOSITION
[52] For the preceding reasons, the motion for summary judgment dismissing the action of the plaintiff as against the defendants Beaverbrook Homes Inc. and Anthony Lanni is granted. The parties have agreed that the successful party on the motion is entitled to costs in the amount of $5,000. In addition to an order granting summary judgment as above, the plaintiff shall pay these defendants the sum of $5,000 for costs within 60 days. The action shall continue as against the defendant The Printing Factory Lofts Inc.
DiTOMASO J
Released: September 5, 2013
[^1]: Rules of Civil of Procedure, Rule 20.04(2)(a)
[^2]: Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764
[^3]: Combined Air Mechanical Services Inc. v. Flesch, supra at para. 55
[^4]: White v. Colliers Macaulay Nicolls Inc., 2007 36073 (S.C.J.) at para. 22
[^5]: Wilde v. Langton (2012), 226 A.C.W.S. (3d) 594 (Alta. Q.B.) at para. 12
[^6]: Moving parties’ motion record, affidavit of Anthony Lanni, sworn April 18, 2013, paras. 2 and 3 and Exhibit “A”, pp. 16-39
[^7]: Moving parties’ motion record, affidavit of Anthony Lanni supra, para. 2, p. 5
[^8]: Moving parties’ motion record, affidavit of Anthony Lanni supra, para. 3(c)(i)(b), pp. 5 and 6, Exhibit “A”, para. 9, p. 21
[^9]: Moving parties’ motion record, affidavit of Anthony Lanni supra, para. 3(c)(i)(c), pp. 5 and 6, Exhibit “A”, para. 9
[^10]: Moving parties’ motion record, affidavit of Anthony Lanni supra, para. 3(c)(i)(d), pp. 5-7, Exhibit “A”, para. 9
[^11]: Moving parties’ motion record, affidavit of Anthony Lanni supra, para. 3(c)(i)(d),(e) and (f), pp. 8-12, Exhibit “A”, para. 9
[^12]: Hawrish v. Bank of Bank of Montreal (1969), 1969 2 (SCC), 2 D.L.R. (3d) 600 (S.C.C.) at 605; Bauer v. Bank of Montreal (1980), 1980 12 (SCC), 110 D.L.R. (3d) 424 (S.C.C.) at 431-432; Goldman v. Devine, 2007 ONCA 301 at paras. 16-17
[^13]: S.M. Waddams, The Law of Contracts, 5th ed., 2005 (Toronto: Canada Law Book) at para. 318
[^14]: Royal Group, Inc. v. Core Precision Technologies Ltd. (2011), 2011 ONSC 5019, 206 A.C.W.S. (3d) 46 (Ont. S.C.J.) at para. 24
[^15]: Moving parties’ motion record, affidavit of Anthony Lanni supra, para. 3(c)(i)(d)(i) to (iii), pp. 8 and 9, Exhibit “A”, para. 23
[^16]: Moving parties’ motion record, affidavit of Anthony Lanni supra, para. 3(c)(i)(d)(iv) (a)-(d), pp. 9 and 10, Exhibit “A”, para. 31
[^17]: Moving parties’ motion record, affidavit of Anthony Lanni supra, para. 3(e), p. 11, Exhibit “A”, para. 26, pp. 28 and 29, para. 38 (f), p. 34
[^18]: Moving parties’ motion record, affidavit of Anthony Lanni supra, paras. 4 and 5, pp. 12 and 3, Exhibit “B”, pp. 41-56
[^19]: Moving parties’ motion record, affidavit of Anthony Lanni supra, paras. 6 and 7, p. 13, Exhibit “C”, pp. 58 and 59, Exhibit “D”, p. 61
[^20]: Responding motion record of the Plaintiff, affidavit of Melissa Mitchell sworn August 20, 2013, Exhibit “B”; Moving parties’ motion record, affidavit of Anthony Lanni supra, para. 9, p. 14, Exhibit “F”, p. 66
[^21]: Quenn v. Cognose (sp?) Inc., [1993] 1 S.C.R.
[^22]: Schembri v. Way, 2012 CarswellOnt 11632, 2012 ONCA 620, 112 O.R. (2d) 241
[^23]: Royal Group Inc. v. Core Precision Technologies Ltd., supra; Hawrish v. Bank of Montreal, supra