COURT FILE NO.: CV-17-583472
DATE: 20180302
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ORLANDO ALVES
Applicant
– and –
ISRRAELITA DE SOUZA
(aka ISRRAELITA ALVES and ISRRAELITA NOGUEIRA)
Respondent
Moiz Baig, for the Applicant
J. Sebastian Winny, for the Respondent
HEARD: January 10, 2018
LEDERER J.
[1] This case concerns what purports to be an agreement to sell a home.
[2] The Respondent, Isrraelita De Souza says that she agreed to sell the home to the Applicant, Orlando Alves, but he was unprepared to close the transaction on the appointed day and, in this way, was in breach of the agreement, which was accordingly terminated.[^1] The Applicant takes the position that pursuant to the agreement he had already purchased one-half of the equity of the home, that in the absence of an agreement between the parties as to the final purchase price it was to be sold and the value received for the equity divided equally between them. In this proceeding the Applicant seeks an order recognizing that he has a one-half interest in the property and on that basis an order requiring the property be sold.
[3] Contracts are to be interpreted in accordance with the intentions of the parties. The court looks for the objective intention found in the words used in the agreement and not the subjective understanding of that intention as expressed by the parties:[^2]
The basic principles of commercial contractual interpretation may be summarized as follows. When interpreting a contract, the court aims to determine the intentions of the parties in accordance with the language used in the written document and presumes that the parties have intended what they have said. The court construes the contract as a whole, in a manner that gives meaning to all of its terms, and avoids an interpretation that would render one or more of its terms ineffective. In interpreting the contract, the court must have regard to the objective evidence of the “factual matrix” or context underlying the negotiation of the contract, but not the subjective evidence of the intention of the parties. The court should interpret the contract so as to accord with sound commercial principles and good business sense, and avoid commercial absurdity. If the court finds that the contract is ambiguous, it may then resort to extrinsic evidence to clear up the ambiguity.[^3]
[4] This examination is to be undertaken in a manner consistent with the surrounding circumstances known to the parties at the time of formation of the contract:[^4]
No contracts are made in a vacuum: there is always a setting in which they have to be placed. In a commercial contract it is certainly right that the court should know the commercial purpose of the contract and this in turn presupposes knowledge of the genesis of the transaction, the background, the context, the market in which the parties are operating.[^5]
[5] While the surrounding circumstances are to be considered in interpreting the terms of a contract, they must never be allowed to overwhelm the words of the agreement.[^6]
[6] The Applicant and the Respondent were married in 2004 and separated either in 2007 or 2008. They do not agree. It does not matter. They executed a separation agreement. The Applicant released his interest in the matrimonial home and the Respondent retained exclusive possession and ownership. In early 2014 the Respondent decided to remarry and move to live with her new husband. The parties engaged in discussions regarding what had been their home. On April 21, 2014, they entered into the agreement the interpretation of which is the principal issue in this application. The agreement is in writing. It appears on a standard form published by the Ontario Real Estate Association and used in the province of Ontario to memorialize Agreements of Purchase and Sale of real estate.[^7] The form makes provision for the inclusion of Schedules which may be used to establish terms that are particular to the transaction. In this case there are two such schedules. The interpretation of the provisions set out in Schedule A and their alignment with the remainder of the agreement are at the centre of the dispute. The relationship between the schedules and the main body of the agreement is set out as follows:
AGREEMENT IN WRITING: if there is conflict or discrepancy between any provision added to this Agreement (including any Schedule attached hereto) and any provision in the standard pre-set portion hereof, the added provision shall supersede the standard pre-set provision to the extent of such conflict or discrepancy. This Agreement including any Schedule attached hereto, shall constitute the entire Agreement between Buyer and Seller. There is no representation, warranty, collateral agreement or condition, which affects this Agreement other than as expressed herein. For the purposes of this Agreement, Seller means a vendor and Buyer means purchaser. This Agreement shall be read with all changes of gender or number required by the context.
[7] The agreement as placed on the form has attributes commonly associated with the sale of real estate. The property is identified and through Schedule A, Clause 1-A a legal description provided. Reference is made to the Purchase Price, a deposit specified and a completion date (June 1, 2017) set. The chattels to be included in the sale are listed and a rental item (hot water tank) that is not to be included noted. The remaining clauses dealing with, among other things, the permission to search title, the warranty as to title, the acknowledgment of the opportunity to inspect the property, insurance, closing arrangements and tender are as found on the standard form. Nonetheless, a hint of the problem appears near the beginning of the form. While the Purchase Price is referred to, no amount is provided. The reader is referred to Schedule A, Clause 1-B:
THE PURCHASE PRICE SHALL BE ONE HALF OF THE BALANCE BETWEEN THE FIRST MORTGAGE ($292,000.00 - FUTURE VALUE) AND THE MARKET VALUE AS DETERMINED AND AGREED UPON AS SET OUT IN CLAUSE 1-C LESS THE DEPOSIT RECEIVED BY THE SELLER ($116,000.00). THE THE [sic] PURCHASE PRICE IS BASED ON THE CURRENT AGREED VALUE OF $540,000.00 - A FIRST MORTGAGE AMOUNT OF $308,000.00 (CURRENT VALUE) FOR A BALANCE OF $232,000.00 OF TOTAL EQUITY. THE DEPOSIT OF $116,000.00 REFLECTS ONE HALF OF THE OF THE [sic] EQUITY OF THE CURRENT MARKET VALUE (EXAMPLE OF CALCULATION BASED ON A SAMPLE FUTURE VALUE $600,000.00 VALUE - $292,000.00 MORTGAGE = $308,000.00/2 = $154,000 TOTAL TO EACH IN THE FUTURE).
[Emphasis added]
[8] On its own this paragraph does not establish the purchase price. It separates the Deposit from the Purchase Price rather than leaving the former subsumed as part of and included in the latter and suggests that the equity will be distributed, one-half to each (presumably the “buyer” and “seller” as identified at the outset of the agreement) at some point in the future. Principally, this clause demonstrates the calculation by which the Purchase Price is to be established but does not explain how the overall value of the property is to be determined. For that, the agreement points to Schedule A, Clause 1-C:
SIXTY DAYS BEFORE COMPLETION OF THIS AGREEMENT OF PURCHASE AND SALE THE BUYER AND THE SELLER SHALL HAVE TWO LICENSED REAL ESTATE BROKERS (SERVICING TORONTO WEST) WITH MINIMUM OF 5 YEARS EXPERIENCE PREPARE A COMPETITIVE MARKET ANALYSIS OF THE SUBJECT PROPERTY. THE BUYER AND SELLER SHALL EACH CHOOSE ONE REAL ESTATE BROKER THAT MEETS THE ABOVE CRITERIA. IF AN AGREEMENT ON FAIR MARKET VALUE CANNOT BE REACHED THEN TWO CRA/AACI APPRAISERS SHALL EMPLOYED [sic] TO COMPLETE FULL APPRAISALS. THE BUYER AND SELLER AGREE TO SHARE THE COSTS OF ALL MARKET EVALUATIONS AND APPRAISALS EQUALLY, IF MARKET VALUE STILL CANNOT BE AGREED UPON THEN THE BUYER AND SELLER AGREE THAT THE SELLER SHALL LIST THE PROPERTY FOR SALE ON M.L.S. WITH A BROKER THAT MEETS THE ABOVE CRITERIA AND SHALL SELL THE PROPERTY AND DISPERSE THE NET PROCEEDS AS NOTED IN CLAUSE 1-B. THE BUYER AGREES TO VACATE THE SUBJECT WITHIN WITHIN [sic] 60 DAYS AFTER THE SELLER NOTIFYING THE BUYER THAT THE PROPERTY WILL BE LISTED FOR SALE. MAINTENANCE/REPAIRS OR NECESSARY UP-GRADE UPGRADE AS [sic] RECOMMENDED BY A QUALIFIED HOME STAGER) [sic] SHALL BE CREDITED TO THE SELLER PRIOR TO ANY FUNDS BEING DISPERSED AS NOTICED IN CLAUSE 1-B. THE SELLER SHALL HAVE FIRST RIGHT OF REFUSAL TO MATCH ANY OFFER TO PURCHASE FROM A THIRD PARTY AFTER THE SUBJECT PROPERTY IS LISTED FOR SALE PURSUANT TO THIS CLAUSE.
[Emphasis added]
[9] What seems plain is that this is not a straightforward sale where, upon the failure of the buyer to close, the seller retains the property and the deposit. In this case, if upon the completion of the process intended to establish the Purchase Price no agreement could be reached, the property was to be sold and the equity distributed half to the buyer and half to the seller. The Applicant (the buyer) submits that this is entirely consistent with a proper interpretation of the agreement. This is the reason why the “deposit” of $116,000 is separated from the “purchase price”. The $116,000 value represented one-half of the equity held by the Respondent (the seller) at the time the agreement was signed. That is the calculation and statement demonstrated by and contained in Schedule A, Clause 1-B. The buyer says that the delivery of the “deposit” was the delivery of payment for half the existing equity. If the closing occurred, as prescribed by the agreement, it would represent the sale of the remaining half of the equity and the transfer of title to the Applicant. In such circumstances the seller was protected. Either she would sell the remaining half of the equity and transfer title for an agreed upon price or she could exercise the right of first refusal if she was unhappy with whatever value the sale generated. The underpinning of the arrangement was that the buyer had a right to the value of one-half of the equity as a result of the agreement and his delivery of the $116,000.
[10] The “genesis of the transaction” (see the quotation at para. [4] above) reflects this as the intention of the parties at the time the agreement was made. Following some discussion, the future husband of the Respondent delivered a proposal to the Applicant. It called for the Applicant to “deposit” $100,000. It notes that this would be the equivalent of 43% of the equity of the “Present Value.” It explained what would occur at the end of 36 months (referred to as the “term”) if the Applicant was unable to complete the transaction:
... [I]f Orlando (or assignee) cannot complete this transaction at the end of 36 months then all parties agree that the home will be sold or Isa Alves will pay Orlando Alves his share as noted on schedule “B”. If sold the total equity will be divided as shown on Schedule “B”.[^8]
[11] A document entitled Schedule B is attached. It estimates the market value of the property in 36 months at $600,000.00, the equity at $308,000 and divides the equity as $190,960 to the Respondent and $117,040 to the wife of the Applicant. The Applicant was unhappy with this proposal. He wanted the equity to be split 50% to each side of the transaction. He requested a “scenario” based on that understanding.[^9] The future husband of the Respondent provided one. It contains exactly the same wording describing what would happen at 36 months if the Applicant was unable to close (see the quotation above). It included a redraft of Schedule B to the proposal. On this version the estimated market value remains at $600,000.00. The total estimated equity is still $308,000. The division (the shares) had changed. Both parties would receive the same amount $146,000.00 reflecting a 50% interest held by each of them.[^10] As is readily apparent, the math is wrong; one half of $308,000 is not $146,000.00. Properly calculated, a one-half interest in $308,000.00 would be $154,000.00. The correct calculation is found within Schedule A, Clause 1-B of the Agreement of Purchase and Sale[^11] (see para. [7] above).
[12] Once it is accepted that it is the Schedules to the agreement that govern, the intention of the parties as expressed in the agreement is clear. The money that was deposited upon the agreement being made was in consideration of a one-half interest in the equity that had been held by the Respondent taking into account the charge on the property and recognizing the expectation that over the anticipated three year life of the agreement the value of the land and therefore the value of the equity would increase.
[13] The problem that remains is that neither of the two sides complied with the terms of the agreement. The Respondent relies on the proposition that the Applicant was unable to close. She submits that the breach is his and the property reverted to her. This is said despite the fact that the agreement foresaw the possibility that the sale would not close and the acceptance that in such circumstances the property would be sold. In the affidavit she swore in support of her stated position, the Respondent says that, “in or about May 2017” the Applicant told her he was “working on” or “looking into” the closing set for June 1, 2017. As reported by the Respondent, the Applicant sought an extension to the closing for “2 or 3 years”. The Respondent says she declined.[^12] For his part the Applicant says it was the Respondent who sought an extension. The date for completion had been set to correspond to the time when the mortgage on the property would mature. The Applicant says that he was advised by the Respondent that this would not occur for another year. He deposed that she requested an extension to meet that understanding. He says he agreed but changed his mind when the Respondent called and asked if he wanted his money (the $116,000.00) back.[^13]
[14] The Respondent produced an “Opinion of Value” indicating the fair market value of the property was between $890,000 and $930,000. This “Opinion of Value” was delivered on May 18, 2017. This is well after the “sixty days prior to completion” (June 1, 2017) required by the Agreement of Purchase and Sale, Schedule A, Clause 1-B. As it appears in the affidavit sworn by the Respondent, the “Opinion of Value” is a one page document.[^14] In the affidavit of the wife of the Applicant included with the single page are a series of listings of other presumably comparable properties.[^15] There is no explanation of the role they played in arriving at the value proposed. The one page makes general statements concerning the factors considered in determining the stated price range. Among them is “historical sales data” that is “based on information provided by the local Multiple Listing Service…”. As it stands this is not “a competitive market analysis” as required by the agreement.
[15] What follows is an email or letter exchange between lawyers. On May 19, 2017, a solicitor acting for the Respondent wrote to the Applicant. After identifying himself, the agreement and the property, he said only this:
In accordance with the terms of the Agreement, the transaction is scheduled to close on June 1, 2017.
Please advise us of the name of the lawyer or law firm handling the transaction on your behalf.[^16]
[16] It made no reference to Schedule A, Clause 1-C of the Agreement of Purchase and Sale and the obligations of the parties directed to establishing the Purchase Price which, by the time the letter was written, had been breached since they had not been undertaken within the prescribed time (“sixty days prior to completion”). A response dated May 31, 2017, was delivered, not by the Applicant but by a solicitor he had retained. It recognized that Schedule A, Clause 1-C had not been complied with and suggested that, as a result, the prospective closing of the conveyance on June 1, 2017, was “unrealistic”.[^17] By letter dated May 31, 2017, the solicitor for the Respondent replied. He enclosed the “Opinion of Value” but acknowledged that neither party had complied with the requirement that “two Toronto brokers prepare a ‘competitive market analysis’ of the subject property sixty days prior to closing”.[^18] I pause to observe that, at this point, both sides had acknowledged the agreement had not been followed insofar as it outlined the process set to arrive at an agreed Purchase Price.
[17] The letter of May 31, 2017, went on to suggest that the agreement may not be a binding contract. It could be void ab initio or simply an agreement to agree which is not enforceable. The prospect of litigation was raised. The letter recognized that “unless the purchase price is resolved by mutual agreement, it mean[s] that the fundamental issue of price is unresolved as of the agreed closing date.” The solicitor advised that his client was not willing to amend the agreement to extend the closing date but that they were retained “to discuss the resolution of any issues arising from the failed agreement.”[^19] On June 1, 2017 (the completion date set by the Agreement of Purchase and Sale) the solicitor for the Applicant responded. She had been “retained by Mr. Alves to negotiate a resolution to this matter.”[^20] I pause again. Apparently, the parties were prepared to discuss a resolution. Maybe they did. If they did, no settlement was made.
[18] The mutual failure to comply with Schedule A, Clause 1-C is not the only problem. On June 21, 2017, the wife of the Applicant conducted a title search. It transpires that sometime in or about April 2015, which is to say approximately one year after the Agreement of Purchase and sale was entered into, the Respondent put a charge of $700,000 against the property.[^21] It is not clear to me how it is that a property that only a year before was valued at $540,000.00 (see para. [7] above) could be security for a loan of $700,000 in 2015. It does not matter. The calculations on which the Applicant relied when the Agreement of Purchase and Sale was entered into and which are included within its terms refer to a First Mortgage and valuations of the equity that do not foresee the latter being reduced by a further or increased charge. This provides a possible explanation as to why the Respondent, as opposed to the Applicant, would have wanted an extension to the completion date. A further title search revealed that in the time since the charge against the property has been increased to $700,000 the Respondent and her husband had purchased three properties with down payments of $130,000, $90,000 and $95,528. The wife of the Applicant speculates that the equity in the home (the increased charge) had been used to purchase the three properties.[^22]
[19] This may not be the only issue arising from the actions of the Respondent. The Agreement of Purchase and Sale requires that the “deposit” of $116,000 be held by the Respondent. The Agreement of Purchase and Sale identifies her as the “Deposit Holder”. As such she was required to hold the deposit, “in trust” pending completion or other termination of the Agreement. In his affidavit the Applicant deposed that the Respondent advised him that she had “decided to use the $116,000…to fund her new life” with her new husband.[^23] In the course of the submissions counsel advised that the funds were taken up by the Respondent before June 1, 2017.
[20] In the circumstances I find that there was no breach of the Agreement of Purchase and Sale that would have allowed the Respondent to declare the agreement null and void, keep the deposit and maintain ownership of the property, without limitation. The fact that both sides failed to comply with the requirements of Schedule A, Clause 1-C does not take away or remove the interest held by the Applicant in the equity of the property. Nor does the mutual failure to comply with contract inure to one side in preference to the other.
[21] It is in these circumstances that the Applicant seeks the sale of the property which he submits is explicit in the contract or pursuant the Partition Act.[^24]
[22] The contract only allows for sale to a third party if, following the process outlined in Schedule A, Clause 1-C, the parties are unable to agree on the Purchase Price. Moreover, the Respondent maintained a right of first refusal at the price offered by any prospective third party purchaser with the understanding that the interest of the Applicant in the equity would be part of the purchase by the Respondent. On the other hand, it is the view of counsel for the Applicant that his claim would stand in priority to the mortgagee who accepted the additional security for the increase in the charge or charges against the property. I do not agree. Whatever interest the Applicant purchased or obtained, it was not registered. Presumably the charge was. The Applicant would not have priority over a mortgagee without notice. There is nothing presented by counsel or in the Agreement of Purchase and Sale that would allow me to rewrite the agreement providing for a sale that removes the rights of the Respondent and improves the position of the Applicant.
[23] The Partition Act provides a statutory right to a division of property and where that is not possible to a sale and the division of the result. The legislation explains who has the right to bring an application for partition or sale:
Any person interested in land in Ontario, or the guardian of a minor entitled to the immediate possession of an estate therein, may bring an action or make an application for the partition of such land or for the sale thereof under the directions of the court if such sale is considered by the court to be more advantageous to the parties interested.[^25]
[24] There are two qualifications. The person bringing the application must have an interest in the land and be entitled to immediate possession of it. Does the Applicant qualify?
[25] There are cases that refer to the circumstances they confront as “precisely the kind of problem the Partition Act, s. 3(1) is deigned to remedy.”[^26] This refers to circumstances where the applicant for partition or sale and the responding party are joint owners of the land (joint tenants or tenants in common):
Partition or sale was the law's answer when joint owners can no longer get along.[^27]
[26] Similarly there are cases where the application for partition or sale have been refused because the applicant had no right to immediate possession of the property.[^28]
[27] No submissions were made suggesting the Applicant did not qualify to seek an order for partition or sale. Nonetheless, I find that he did not. The Applicant has no right to ownership or interest in the land sufficient to provide recourse to the Partition Act. “Land” is defined in the Partition Act as including:
…lands, tenements, and hereditaments, and all estate and interests therein.[^29]
[28] Under the contract the Applicant would have no right to the land until the parties had agreed on a purchase price and the sale had closed. Until then he would have had no “estate” or “interest” in the land. What he acquired in the meantime was an interest in the equity that had belonged, in its entirety, to the Respondent. Under the Agreement he could not realize on the value of that equity until June 1, 2017 when he would have either acquired ownership of the property or realized the value of his interest in the equity through its sale to a third party. Equity in these circumstances is to be distinguished from the “equity of redemption” which entitles a mortgagor to redeem the property by paying out the mortgage. The equity of redemption is an interest in the property because it entitles the mortgagor to take back the estate that was encumbered. It might have been different if the “interest” of the Applicant had been registered on title.
[29] The Applicant says he has an interest through a “purchaser’s lien”. In making this submission counsel for the Applicant relied on Pan Canadian Mortgage Group III Inc. v. 0859811 B.C. Ltd.[^30] In that case the moving parties wished to purchase homes in a yet to be completed development. The land was not properly “stratified” and for that reason could not be sold. The buyers had each paid the full purchase price of the town homes they were buying. The contracts that were used contained “protective clauses” in which the purchasers acknowledged that the agreements only created contractual rights. This demonstrated that there was no intention to create an interest in land. The project failed. The property was foreclosed and sold. After the mortgage was paid out money remained. The question concerned priority. The judge hearing the motion found that each of the buyers was the holder of a “purchaser’s lien” making them secured creditors ranking ahead of judgment creditors. The Court of Appeal set this finding aside: “the essential nature of a purchaser’s lien [is] as security for monies paid under a binding contract of purchase and sale that gives rise in Equity to ‘equitable title to the land to the extent of [the purchaser’s] payments’.”[^31] The agreements that had been signed were not binding contracts for the purchase and sale of property. In the case I am asked to decide, a binding contract to purchase the property is not enough to obtain what the Applicant seeks. To force the sale through reliance on the Partition Act the party has to have an interest in the land, not an interest in equity rights of the owner. To put this another way, a typical contract for the purchase of land does not allow for the prospective buyer to seek partition or sale. Whatever rights or interest accrue from entry into an Agreement of Purchase and Sale, it is not enough to allow for an order of partition or sale. This does not change because in advance of the purchase of title the buyer acquires a share of the seller’s existing equity.
[30] A further and alternative submission was made. It was said that the Applicant was the grantor and a beneficiary of a purchase money resulting trust. A purchase money resulting trust arises when a person advances funds to contribute to the purchase price of property, but does not take legal title to the property. Where the person advancing the funds is unrelated to the person taking title, the law presumes that the parties intended for the person who advanced the funds to hold a beneficial interest in the property in proportion to that person’s contribution. This is called the presumption of resulting trust.
[31] The presumption can be rebutted by evidence that at the time of the contribution, the person making the contribution intended to make a gift to the person taking title.[^32]
[32] For the Applicant the problem is the same as with a purchaser’s lien. The money given is used for the purchase of property. In this case it is not the property to which the payment of the $116,000 was directed. It was to create an interest in one-half of the equity in property which remained in the ownership of the Respondent. The structure of the contract was such that, rather than paying a deposit against the purchase of the land, the Applicant obtained half the equity interest of the respondent. He received consideration for the funds contributed albeit consideration which the Respondent has failed to recognize and accept. It is not that the Applicant does not have rights, just not to the remedy being sought
[33] Even if I am wrong and the Applicant has obtained an interest in the land sufficient to obtain the order requested, it does not matter. The Applicant still would not have the qualifications necessary to bring an application under the Partition Act. This is so because the applicant has no immediate right to possession of the property:
Ever since Morrison v. Morrison (1917), 1917 536 (ON CA), 34 D.L.R. 677, through Bunting v. Servos, 1931 449 (ON CA), [1931] O.R. 409, to Re: Fidler and Seaman, 1948 668 (ON SC), [1948] O.W.N. 454 it has been clear that “none but those entitled to possession… are entitled to partition” (Morrison case, supra at p. 684). The rule applies to partition or sale (ibid. pp. 680-681).[^33]
[34] It is true that the wife of the Applicant, or rather the wife, entered into a lease such that they reside on the property, but to act as the qualification to bring an application for partition and sale, the right to possession has to be founded on an interest in land not merely to the rights under a lease:
It was well-settled, and well-understood, law that only those who were entitled to possession of their shares in land could have partition; that is the law in England now, and always has been, though its statutes in regard to partition and sale are wide and liberal: see Dodd v. Cattell, [1914] 2 Ch. 1, in which counsel for the party seeking partition on being asked by the Court, “Can a person entitled in remainder expectant on a life estate obtain a partition?” answered, “No, there must be possession,” shewing how well-settled and well-understood the rule there is.[^34]
[Emphasis added]
And
Here the possession of the plaintiff in the 28 acres is merely as lessee of the life-tenant, and is not a possession giving him an interest in the land such as in the contemplation of the statute entitles him to partition.[^35]
[Emphasis added]
And
“Interested in land” must refer to a property - interest in it. Not merely an interest in land in a popular sense. And the words “an interest in land” must have reference to the purposes of the enactment; there are scores of interests in land to which partition is inapplicable; so the interest must necessarily be a partitioning interest; an interest held in unity, which law, or equity, deems that justice requires may be enjoyed in severalty at the instance of any one entitled to a share in it.[^36]
[Emphasis added]
[35] In this case the Applicant does not qualify to apply for partition or sale. Even if he did one has to wonder what the practical impact of such an order would be. Given that the Applicant has no registered interest in the land and that, as a result, the mortgagee would take priority in any sale apparently to a value of $700,000 one has to wonder how much would be left to the Applicant once a sale was completed and the mortgage paid out.
[36] To mind the application was misconceived. Based upon the findings I have made the Applicant has been denied what is his. Certainly, there is no suggestion that the Respondent was prepared to tender. As it is the remedy is not partition or sale. To my mind this case concerns an alleged breach of contract. The proper remedy, if there is to be one, is in damages. No such remedy was sought and no evidence as to the value of damages produced.
[37] In the circumstances the application for sale is dismissed.
[38] I have not heard any submissions as to costs. I am not prepared to. There is no successful party. There is a problem that has not been resolved. The failure of the application was not founded on any submission made on behalf of the Respondent. This is not a matter where cost should be awarded.
Lederer J.
Released: March 2, 2018
COURT FILE NO.: CV-17-583472
DATE: 20180302
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ORLANDO ALVES
Applicant
– and –
ISRRAELITA DE SOUZA
(aka ISRRAELITA ALVES and ISRRAELITA NOGUEIRA)
Respondent
REASONS FOR JUDGMENT
Lederer J.
Released: March 2, 2018
[^1]: Affidavit of Isrraelita De Souza Nogueira, sworn October 16, 2017, at para. 26
[^2]: Salah v. Timothy’s Coffees of the World Inc., 2010 ONCA 673, 74 B.L.R. (4th) 161, at para. 16 quoted at Ariston Realty Corp. v. Elcarim Inc., 2014 ONCA 737, 378 D.L.R. (4th) 197, at para. 19
[^3]: Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] SCC 53, 2 SCR 633, at para. 47
[^4]: Ibid at para. 47 quoting from Reardon Smith Line Ltd. v. Hansen‑Tangen, [1976] 3 All E.R. 570, at p. 574
[^5]: Ibid at para. 57 referring to Hayes Forest Services Ltd. v. Weyerhaeuser Co., 2008 BCCA 31, 289 D.L.R. (4th) 230, at para. 14 and Hall, Geoff R. Canadian Contractual Interpretation Law, 2nd ed. Markham, Ont.: LexisNexis, 2012 at p. 30
[^6]: Form 100 Agreement of Purchase and Sale, Ontario Real Estate Association, for use in the Province of Ontario
[^7]: Affidavit of Orlando Alves, sworn September 27, 2017, at para. 24 and Exhibit D
[^8]: Ibid at paras. 25, 26 and Exhibit E
[^9]: Ibid at Exhibit F
[^10]: Ibid at para. 28
[^11]: Affidavit of Isrraelita De Souza Nogueira, sworn October 16, 2017, at para. 8
[^12]: Affidavit of Orlando Alves, sworn September 27, 2017, at paras. 31, 32 and 34
[^13]: Affidavit of Isrraelita De Souza Nogueira, sworn October 16, 2017, at para. 9 and Exhibit D
[^14]: Affidavit of Melanie Alves, sworn September 27, 2017, at para. 10 and Exhibit A
[^15]: Affidavit of Isrraelita De Souza Nogueira, sworn October 16, 2017, at para. 10 and Exhibit E
[^16]: Ibid at para. 10 and Exhibit F
[^17]: Ibid at para. 11 and Exhibit G
[^18]: Ibid at para. 11 and Exhibit G
[^19]: Ibid at para. 13 and Exhibit H
[^20]: Affidavit of Melanie Alves, sworn September 27, 2017, at para. 8
[^21]: Ibid at paras. 11, 12, 13, 14 and Exhibits B, C and D
[^22]: Affidavit of Orlando Alves, sworn September 27, 2017, at para. 38
[^23]: R.S.O. 1990, c. P.4
[^24]: Ibid s. 3(1)
[^25]: Greenbanktree Power Corp. v. Coinamatic Canada Inc., 2002 49477 (ON SC), 2002 CarswellOnt 1486, 59 O.R. (3d) 449, (S.C.J.), at para. 31, aff’d (Div. Ct.) 2003 37762 (ON SCDC) 69 OR (3d) 784, aff’d (C.A.), 2004 48652 (ON CA), 2004 CarswellOnt 5407, 193 O.A.C. 204 and repeated at Telfer v. Wysocki, 2010 ONSC 6807, at para. 85
[^26]: Fellows v. Lunkenheimer, [1998] O.J. No. 4923 at p. 33, 21 R.P.R. (3d) 142 (Gen. Div.) quoted in Greenbanktree Power Corp. v. Coinamatic Canada Inc., supra (Sup. Ct.) (fn. 25) at para. 31
[^27]: Di Michele v. Di Michele, 2014 ONCA 261, 319 OAC 72, at paras. 79 and 80 (referring to Morrison v. Morrison (1917), 1917 536 (ON CA), 39 O.L.R. 163 (S.C. (A.D.)), at pp. 168 and 171-72; and Ferrier v. Civiero (2001), 2001 5158 (ON CA), 147 O.A.C. 196 (C.A.), at paras. 6 and 8 and Spadafora v. Gabriele, 2011 ONSC 6686, at para. 15
[^28]: Partition Act, supra (fn. 23), at s. 1
[^29]: 2014 BCCA 113
[^30]: Ibid at para. 32 referring to Capital Plaza Developments Ltd. v. Counterpoint Enterprises Ltd., [1985] B.C.J. No. 321 (S.C.), at para. 9, London & South Western Ry. v. Gomm (1882), 20 Ch.D. 562 at 580-1 and Rose v. Watson ,[1864] 10 H.L.C. 672 at pp. 678-679
[^31]: Nishi v. Rascal Trucking Ltd., 2013 SCC 33, at paras. 1 and 2
[^32]: Nobis Investments Ltd. v. Atlantic Metal Spinning Co., [1988] O.J. No. 335, at para. 1
[^33]: Ferrier v. Civiero, 2001 5158, 42 RPR (3d) 12; 147 OAC 196 at para. 6 (ON CA) quoting Morrison v. Morrison (1917), 1917 536 (ON CA), 34 D.L.R. 677 (Ont. S.C. (A.D.)), at p. 681
[^34]: Bunting v. Servos, 1931 449 (ON CA), [1931] 4 D.L.R. 167
[^35]: Fidler v. Seaman, [1948] O.J. No. 104, at para. 4 quoting from Morrison v. Morrison, supra (fn. 27) at para. 172