COURT FILE NO.: CV-18-62

DATE: 2019 05 13

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Michael Galbraith, Plaintiff

Gijsbert van der Lip and Derek Robert Ransome, Defendants

Hendrika Renes van der Lip, Third Party

BEFORE: Fragomeni J.

COUNSEL: W. J. Horton, for the Plaintiff, Michael Galbraith

R.H. Thomson Counsel, for the Defendant and Moving Party, Gijsbert van der Lip

R. W. Scriven, for the Defendant, Derek Robert Ransome

R. I. Robertson, for the Third Party, Hendrika Renes van der Lip

HEARD: April 25, 2019

ENDORSEMENT

Overview

[1] The Defendant, Gijsbert van der Lip (“Gijsbert”) and his wife, the Third Party, Hendrika Renes van der Lip (“Hendrika”), sold a farm on or about April 1, 2016, to the Defendant, Derek Robert Ransome (“Ransome”).

[2] The Agreement of Purchase and Sale contained provisions pertaining to a solar panel lease and specifically directed the lawyers acting for the parties to prepare an Assignment of the solar panel lease.

[3] The lawyers acting on behalf of the vendor and purchaser did not prepare an Assignment of the solar panel lease.

[4] Ransome has prevented the present owner of the solar panel lease, the Plaintiff, Michael Galbraith (“Galbraith”), from entering onto Ransome’s property to repair and maintain the solar panels.

[5] The solar panel lease was not registered on title.

[6] Gijsbert and Hendrika bring a motion for summary judgment to be released from this action. The Plaintiff, Galbraith, seeks the following relief in his Statement of Claim:

As against Gijsbert van der Lip:

(a) van der Lip knew of the existence of the Solar Lease Agreement and that it was valid and subsisting at the time of his transfer to Ransome;

(b) van der Lip knew or ought to have known of his obligations to notify a successor in title of the ongoing obligations under the Solar Lease Agreement and failed to do so;

(c) knowing of the existence of the Solar Lease Agreement, van der Lip signed a Statutory Declaration disclaiming other interest in the Property when he knew same existed;

(d) if the Court finds there is no lease between Galbraith and Ransome, that van der Lip knew or ought to have known that Galbraith would suffer substantial damages and loss of income as a consequence of his inability to carry on use of the solar power panel;

(e) in failing to notify the purchaser of the Property of the existence of the Solar Lease Agreement that he breached same;

(f) van der Lip knew or ought to have known that if Galbraith was denied entry to the Property for the purpose of repair that it could over time increase the repair to the solar power panel; and

(g) van der Lip has breached the terms of the Solar Lease Agreement and Galbraith is entitled to damages as a consequence thereof.

As against Derek Robert Ransome:

(a) there is a valid subsisting lease which entitles Galbraith to enter the Property for the purpose of repair;

(b) Ransome knew or ought to have known of the existence of the solar power panels when he purchased the Property;

(c) as a successor in title, Ransome is bound by the existing Solar Lease Agreement;

(d) having accepted lease payments for the solar power panels he is estopped from disclaiming the existence or validity of the Solar Lease Agreement;

(e) Ransome has breached the terms of the Solar Lease Agreement and Galbraith is entitled to damages as a consequence thereof;

(f) Ransome knew or ought to have known when he purchased the Property that there were solar panels on same as they are readily evident to an average observer of the Property and were not hidden from sight;

(g) Ransome knew or ought to have known when he purchased the Property that the solar power panels were not part of the Property being purchased from van der Lip by him and accordingly that they were subject to a lease; and

(h) Ransome knew or ought to have known that if Galbraith was denied entry to the Property for the purpose of repair that it could over time increase the repair to the solar panels that it would result in loss of revenue and decrease the value of the panels.

[7] The issues to be decided on this motion are:

a.Did Ransome have notice of and is he bound by the terms of the solar panel lease?

b.Should the claim against Gijsbert and consequently the Third Party Claim be dismissed with costs?

Summary of the Facts

[8] Pursuant to an Agreement of Purchase and Sale dated February 18, 2016, Gijsbert and Hendrika agreed to sell the farm, being Pt. Lt. 6, Conc. 5, Arran, Municipality of Arran Elderslie, to Derek Ransome for $650,000. The closing was to be completed on April 1, 2016.

[9] Under paragraph number 4 of the Agreement of Purchase and Sale, headed “Chattels Included”, the following items were listed: “all grain bins, food tanks, feeding and livestock handling equipment and gates, solar panel lease” [emphasis added].

[10] Schedule A to the Agreement of Purchase of Sale contained the following provision: “As part of close the Lawyers will have the current solar panel lease agreement switched into the Buyer’s name.”

[11] On June 5, 2016, Anne Jones on behalf of Ontario Energy Providers, the tenant owning the solar panels at the time of the sale, sent an email to Ransome stating as follows: “I own the solar panel on your land – 1382 Side Rd. In the past I have leased the land from the previous owner for $2,000 per year. I hope this is agreeable with you. If you could send me your postal address I can send you a cheque for May 2016 – May 2017.”

[12] Ransome responded on June 6, 2016, as follows: “Hi Anne my address is RR 1 Port Elgin, N0H 2C5 Fir #1536. The solar panel has some damaged panels on it. Thanks.”

[13] In June 2016, Anne Jones sent Ransome a cheque for $2,000, which was duly deposited by Ransome.

[14] It is Gijsbert’s understanding that the solar panel lease entered into between him and Ontario Energy Providers was assigned on or about August 19, 2016, to Galbraith. Ontario Energy Providers’ corporate name is “Rhayader Pawys Enterprises Inc.”

Position of Gijsbert and Hendrika:

[15] The defendant, Gijsbert, and the third party, Hendrika, submit that Ransome had notice of the solar panel lease and is, therefore, bound by its terms. As such, Gijsbert and Hendrika have no potential liability to the Plaintiff. The action against them should be dismissed. The evidentiary record at this summary judgment motion is sufficient to establish that they have no liability.

Position of Ransome:

[16] It is the position of Ransome that there are multiple genuine issues requiring a trial in this matter and that Gijsbert’s motion is not only procedurally deficient, but is premature, as discovery and documentary disclosure has not yet occurred.

[17] The threshold question for the court is whether it is proper, on a summary judgment motion, to permit Gijsbert and Hendrika to be let out of this litigation in the face of them signing a false Statutory Declaration, Undertaking, and Bill of Sale on which Ransome relied.

Analysis and Conclusion

[18] The Agreement of Purchase and Sale is dated February 18, 2016. Para. 4 states:

CHATTELS INCLUDED: all grain bins, feed tanks, feeding livestock handling equipment, gates, solar panel lease.

[19] Schedule A of the Agreement of Purchase and Sale states in part:

As part of the close the Lawyers will have the current solar panel lease agreement switched into the Buyer’s name.

[20] The buyer is Derek Ransome and the sellers are Hendrika van der Lip and Gijsbert van der Lip.

[21] On March 11, 2016, the Agreement of Purchase and Sale was made firm and binding.

Statutory Declaration

[22] Gijsbert and Hendrika signed a Statutory Declaration on March 30, 2016, that set out the following:

We, Gijsbert Van Der Lip and Hendrika Van Der Lip, SOMLEMNLY DECLARE that:

1. We are the absolute owners of the above mentioned lands and either personally or by our tenants have been in actual, peaceable, continuous, exclusive, open, undisturbed and undisputed possession and occupation thereof, and of the houses and other buildings used in connection therewith throughout our period of ownership of the property.

2. We are not aware of any person or corporation having any claim or interest in the said lands or any part thereof adverse to or inconsistent with registered title and are positive that none exists.

3. That possession and occupation of the above lands by the vendors have been undisturbed throughout by any action, suit or other proceedings or adverse possession or otherwise on the part of any person whomsoever and during such possession and occupation, no payment has ever been made or acknowledgment of title, interest or claim upon the said lands.

4. To the best of our knowledge and belief, the buildings used in connection with the premises are situate wholly within the limits of the lands above described, and there is no dispute at to the boundaries of the said lands. Except as may be registered on title, we have never heard of any claim of easement affecting the lands, either for light, drainage, or right of way or otherwise.

5. We do not retain the fee or the equity of redemption in, or a power or right to grant, assign or exercise a power of appointment with respect to any land abutting the lands being conveyed in the subject transaction.

6. We are not non-residents of Canada within the meaning of Section 116 of the Income tax Act (Canada) and nor will we be non-residents of Canada at the time of closing.

7. Within the meaning of the Family Law Act (Ontario):

We are spouses of one another.

AND we make this solemn Declaration conscientiously believing it to be true, and knowing that it is of the same force and effect as if made under oath.

Bill of Sale

[23] A Bill of Sale was signed by Gijsbert and Hendrika on March 30, 2016, setting out the following:

IN CONSIDERATION of payment of the purchase price herein, the undersigned, being the vendors of the subject property, do hereby sell, transfer and convey to the purchaser the chattels and fixtures included in the purchase price as specified in the Agreement of Purchase and Sale, and we covenant that we are the lawful owners thereof and have the right to transfer and convey the same and that such chattels and fixtures are free of all encumbrances, liens and claims of any kind whatsoever.

Undertaking

[24] An undertaking was signed by Hendrika and Gijsbert dated March 28, 2016, setting out the following:

IN CONSIDERATION of and notwithstanding the closing of the above transaction, we hereby undertake as follows:

1. TO deliver up vacant possession of the premises on closing.

2. TO pay all arrears of taxes to the extent that an allowance has not been granted to the purchaser on account thereof and to pay the 2016 taxes in accordance with the Statement of Adjustments;

3. TO readjust, forthwith upon demand any item on the Statement of Adjustments, if necessary;

4. TO pay all utilities accounts, including hydro-electric, water and gas charges, to the date of closing;

5. TO leave on the premises all chattels and fixtures specified in the Agreement of Purchase and Sale, free of encumbrances, liens and claims of any kind whatsoever.

[25] In his Affidavit sworn March 27, 2019, Ransome states the following at paras. 3-8:

3. I reviewed the listing for the Subject Property and the Agreement of Purchase and Sale carefully before signing. I acknowledged that there was a reference to a solar panel lease in each of these documents.

4. I also acknowledge that I reviewed the Subject Property before making an offer to purchase. I saw the solar panel equipment (“Solar Panel”). It appeared inoperable and was in derelict condition. I did not believe it had any value.

5. Prior to purchasing the Subject Property on April 1, 2016, apart from what I have outlined above, I had no information or details pertaining to a lease for the Solar Panel.

6. The realtor for the sellers did not offer any information regarding a Solar Panel lease.

7. Gijsbert Vander Lip (“Mr. Van Der Lip”), was a neighbour since I knew of the Subject Property and Mr. Van Der Lip prior to purchasing the Subject Property, Mr. Van Der Lip made no mention of the Solar Panel lease.

8. Furthermore, neither my lawyer, nor to my knowledge, the lawyers for the vendors raised any indication that there was a Solar Panel lease in the lead up to the closing.

[26] The Requisition letter sent to the vendor’s lawyer and dated March 21, 2016, makes no specific reference to the solar panel lease.

[27] The deal closed on April 1, 2016.

[28] On June 5, 2016, the following email chain took place:

Hi Derek

I own the solar panel on your land – 1382 Side Rd. In the past I have leased the land from the previous owner for $2000 per year. I hope this is agreeable with you.

I you could send me your postal address I can send you a cheque for May 2016 – May 2017.

Regards

Anne Jones

Ontario Energy Providers.

[29] The cheque was received and cashed by Ransome.

[30] The solar panel lease was never registered on title.

[31] Ransome identifies the following issues that require a trial:

i. Whether the Solar Lease agreement from February, 2011 is valid;

ii. Whether the 2016 Solar Lease agreement is valid, notwithstanding the absence of consent from the landlord;

iii. Whether Ransome is a bonafide purchaser for value without notice;

iv. Whether Ransome had actual notice of the 2011 and /or 2016 Solar Lease agreements; particularly, in the face of:

a. Neither being registered on title;

b. A Statutory Declaration signed by Gijsbert and Hendrika representing no such lease or interests;

c. An Undertaking signed by Gijsbert and Hendrika not disclosing such lease or interest;

d. A Bill of Sale signed by Gijsbert and Hendrika not disclosing such lease or interest; and

e. No answer to requisitions, including a Statement of Adjustments from Gijsbert and Hendrika which would reveal the existence of a Solar Lease agreement.

[32] As of the date of the hearing of this motion, discoveries have not taken place, nor has there been an exchange of any Affidavit of Documents.

[33] Gijsbert takes the position that Ransome had actual notice of the solar panel lease. Gijsbert argues that he complied with the terms of the Agreement of Purchase and Sale. He left the solar panels on the farm property as required.

[34] Gijsbert submits that Ransome knew about the solar panel lease and yet made no inquiries about it in his Requisition letter prior to closing. Ransome never asked for a copy of the solar panel lease at any time. Ransome knew about it from the Listing Agreement. He knew about it from the Agreement of Purchase and Sale. He saw the panels on the property, and finally, he accepted the $2,000 cheque sent to him by Anne Jones.

[35] Gijsbert also takes the position that at the very least, Ransome was wilfully blind in not making the necessary and appropriate inquiries about the terms of the solar panel lease.

[36] Gijsbert acknowledges that the Statutory Declaration signed by him made no mention of the solar panel lease. At para. 10 of his Affidavit sworn Feb. 12, 2019, he states:

As the Statutory Declaration made no mention of leases, I did not think of the solar panel lease when I signed the Statutory Declaration.

[37] The Requisition Letter dated March 21, 2016, states the following at paras. 6 and 10:

REQUIRED: On or before closing, production and delivery of evidence that all buildings situate on the lands herein are located entirely within the limits thereof, that possession has been consistent with registered title to the property and that there are no encumbrances, liens, rights of way, easements, encroachments, restrictions, or agreements of any kind affecting the property which are not disclosed by the registered title.

REQUIRED: On or before closing, satisfactory evidence that the fixtures affixed to the lands and buildings and the chattel property included in the purchase price are the property of the vendors and are not subject to any conditional sales contract, chattel mortgage or lien note and that the vendors are the absolute owners of all such fixtures and chattels, free of any encumbrances.

[38] Para. 6 clearly refers to “agreements of any kind affecting the property, which are not disclosed by the registered title”. I agree with Ransome that this would have included the solar panel lease. The solar panel lease itself should have been provided to Ransome.

[39] At para. 2 of the Statutory Declaration, there is reference to “interest in the said lands” that is “inconsistent with registered title”. The lease is not registered on title. Ransome relied on this Statutory Declaration. Para. 3 of the Statutory Declaration also covers “interest or claim upon that said lands”.

[40] Further, the Undertaking specifically states the following, at para. 5:

TO leave on the premises all chattels and fixtures specified in the Agreement of Purchase and Sale, free of encumbrances, liens and claims of any kind whatsoever.

[41] Finally, the Bill of Sale makes no reference to the solar panel lease.

[42] Ransome points out that he relied on those representations and documents provided to him when he applied for financing with Farm Credit Canada in the loan amount of $750,000. Para. 4(c) of the loan documents states:

The Real Property Security has been executed and creates in favour of FCC a valid and enforceable interest/security with priority in accordance with your instructions against the Borrower’s interest in the Lands, subject only to the following encumbrances, easements, encroachments or like reservations...

[43] Ransome questions whether the terms of the solar panel lease are valid and if they are not valid, it should never have been put in the Agreement of Purchase and Sale. Ransome submits that it is a triable issue.

[44] I find it very puzzling and troubling how neither of the lawyers for the parties to this sale produced the solar panel lease. The initial solar panel lease dated February 2011 is a comprehensive 14 pages in length. At no time did Gijsbert refer to it in any of the closing documents or produce it at any time. At no time does Ransome ask to get a copy of it, at the time the Agreement of Purchase and Sale is executed or at the time he sent his requisition letter to the vendors. No one turned their mind to it. In his Affidavit, Ransome does state that the solar panel equipment appeared inoperable and in derelict condition. He did not believe it had any value.

[45] To support his position as it relates to actual knowledge, Ransome points to Sandhu v. Paterson, 2016 ONSC 1748, 69 R.P.R. (5th) 113, at paras. 41-43, where Tzimas J. states the following:

41. Relying and building on this principle, Justice Epstein, in Durrani et al. v. Augier et al. 2000 CanLII 22410 (ON SC), [2000] O.J. No. 2960 at paragraph 60 noted that “the burden of proving the absence of notice is on the person alleging that he or she is a purchaser for valuable consideration without notice.” She went on the explain that:

“… a person has actual notice if he or she is aware of the existence of a legal right. It is not necessary that the person have knowledge of the precise details of that legal right. In circumstances that involve the transfer of title, a purchaser does not need to have actual knowledge of the particular person who is in fact the true owner or holder of title of the property.”

42. Justice Epstein also reviewed the principles of agency and noted that knowledge of the agent is attributed to the principal. In other words, the principal will be deemed to have constructive notice of the information that an agent is under a duty to make known to him or her. In such instances, notice to the agent constitutes notice to the principal, such that the principal is estopped from denying knowledge of the matters in question, see Durrani, at para. 69-70. Moreover, one cannot resort to wilful blindness to avoid actual knowledge, see Viera v. Breg Trading Ltd. [2014] O.J. No. 3961 at para. 36.

43. In sum, a bona fide purchaser for value without actual knowledge of a prior agreement will be protected if the lease is not registered as required. However, the same purchaser with actual knowledge of the prior agreement will not be protected. That purchaser will also not be protected if he or she is wilfully blind to avoid actual knowledge of a particular interest. In addition, knowledge in the hands of a purchaser’s agent, such as a real estate agent and / or his or her lawyer will be deemed to be knowledge of the purchaser.

[46] Gijsbert refers the court to two decisions. First, in Jung v. Montgomery, 1955 CarswellOnt 355 (C.A.), at paras. 7-8:

7. I find that the doctrine of actual notice does exist under The Land Titles Act, and in this connection reference may be made to the judgment of Mulock C.J. Ex. in John Macdonald & Co. Limited v. Tew (1914), 32 O.L.R. 262 at 265, where he said: “The Land Titles Act deals simply with the question of registration; it does not interfere with any common law or other rights of an owner of land to mortgage the same by instrument not capable of registration under the land Titles Act.” I refer further to the following language of Meredith J.A. in In re Skill and Thompson (1908), 17 O.L.R. 186 at 194-5:

The Land Titles Act is not an Act to abolish the law of real property; it is an Act far more harmless in that respect than in some quarters seems to be imagined, at times, at all events, when the wish is farther to the imagination. It is an Act to simplify titles and facilitate the transfer of land; and, doubtless, greater familiarity with it will tend to remove a good many false notions regarding its revolutionary character.

Its main purpose is to assure the title to a purchaser from a registered owner; but, surely, it is not one of its purposes to protect a registered owner against his own obligations, much less against his own fraud…. (The italics are mine.)

8. McDonald v. Leadley (1914), 1914 CanLII 982 (AB KB), 20 D.L.R. 157, is digested as follows in 31 Can. Abr. 520: “The owner of lands was shown to have taken title subject to a claim upon such lands under the contract for sale. The claim was not registered, and was not shown in the transfer to the owner or in his certificate of title. The contract on which the claim was based was not registered. Held, per Walsh, J.: ‘In view of the fact that the …[owner] took its title expressly subject to this contract, it should not be allowed to set up its certificate of title to defeat the …claim.’”

[47] Second, he refers to Bell Canada Inc. v. White Admiral Ltd., 2011 ONSC 5857, 12 R.P.R. (5th) 162, at paras. 8-10:

8. In Jung v. Montgomery, 1955 CanLII 377 (ON CA), [1955] O.W.N. 931 (Ont. Dist. Ct.) the Court of Appeal held the following:

The doctrine of actual notice does exist under the Land Titles Act. J. had actual notice of the lease and of the option for renewal contained therein before he signed the offer to purchase. J., having such actual notice, could take the property only subject to the lease, which gave M. an unregistered estate or interest in the property by which J. was bound. In acquiring the property with notice of the lease and its material contents, J. became saddled with certain obligations so far as M. was concerned. This court cannot protect a registered owner against his own obligations, much less against his own fraud (Headnote)

9. In Dominion Stores Ltd. v. United Trust Co., 1976 CanLII 33 (SCC), [1976] S.C.J. No. 99 (S.C.C.) the property in question was under Land Titles. The issue was whether or not a lease of which the landlord had actual notice was valid notwithstanding that it had not been registered. After Jung was decided the Land Titles Act was amended by adding the following:

78(5) Subject to any entry to the contrary in the register and subject to this Act, instruments registered in respect of or affecting the same estate or interest in the same parcel of registered land as between themselves rank according to the order in which they were created, and, despite any express, implied or constructive notice, are entitled to priority according to the time of registration (then s. 85(5))

The Court of Appeal held that this amendment did not abolish the doctrine of actual notice. The Supreme Court of Canada in the majority judgment of Justice Spence agreed. He stated the following:

However, in Ontario, only a few years after the enactment of The Land Titles Act, the courts have expressed a disinclination to imply such an extinction of the doctrine of actual notice. There is no doubt that such doctrine as to all contractual relations and particularly the law of real property has been firmly based in our law since the beginning of equity. It was the view of those courts, and it is my view, that such a cardinal principle of property law cannot be considered to have been abrogated as I have said, does appear in all the other statutes cited by the appellant. (QL. Version p. 26 – 27)

10. Actual notice of an encumbrance on land in the Land Titles system to the owner of the land protects the interest of the owner of the encumbrance against the owner of the land although the encumbrance is not registered.

[48] In Hanisch v. McKean, 2014 ONCA 698, 325 O.A.C. 253, at paras. 42-47, Simmons J.A. deals with a false statutory declaration as follows:

[42] In this case, the false statement was contained in a statutory declaration delivered as part of closing documents and in response to a requisition from the respondent. Such requisitions – and responses to them – were clearly contemplated by the agreement of purchase and sale.

[43] In these circumstances, I fail to see how “a separate Hedley Byrne duty of care in tort” in relation to the false statement would be excluded by the entire agreement clause contained in the agreement of purchase and sale. The false statement was contained in solemn declaration executed under oath and was delivered as part of a process contemplated by the agreement of purchase and sale.

[44] Further, as found by the trial judge, the appellant’s duty of care arose specifically from the respondent’s foreseeable and reasonable reliance on the appellant’s representations contained in the statutory declaration. Since the appellant’s duty of care was not precluded by any specific term of the contract, Central Trust does not exclude concurrent liability in tort.

[45] Concerning the appellant’s arguments about contractual terms and the fact that his contractual obligation was to deliver good title, I note that, as found by the trial judge, the statutory declaration was broadly worded. As the trial judge said, the statutory declaration was intended to protect the respondent against not only existing interests inconsistent with her title to the farm, but also against the risk that there were persons with a “claim” against her title.

[46] The appellant was just such a person – and he knew it. He knew he relied on the shared waterline originating at the farm and he knew he was claiming the right to continue to use it. In the face of this knowledge, he knew or ought to have known that his claimed right to use water from the farm property was a claim…in the said lands or any part thereof…inconsistent with [his] title.”

[47] The appellant therefore knew, or at the very least, ought to have known that this representation to the contrary, in a statutory declaration executed under oath, was false. In swearing the statutory declaration in the face of the knowledge, and in failing to consult with his long-time lawyer about the shared waterline, the appellant failed to exercise the reasonable care that the circumstances demanded. The trial judge was entitled to so find.

[49] Gijsbert refers the court to the decision in United Trust Co. v. Dominion Stores Ltd., 1976 CanLII 33 (SCC), [1977] 2 S.C.R. 915, in support of his position that having accepted the $2,000 cheque from Anne Jones, Ransome has now fully assumed the terms of the solar panel lease. In United Trust Co., the court stated the following, at paras. 79-81:

79. Some years later, in 1914, in John Macdonald & Co. v. Tew (1914), 32 O.L.R. 262 (C.A.), Mulock C.J. Ex. said at 265:

The Land Titles Act deals simply with the question of registration; it does not interfere with any common law or other rights of an owner of land to mortgage the same by instrument not capable of registration under the Land Titles Act. The appellant, being a volunteer, acquired by the transfer from the mortgagor to him only the mortgagor’s interest, or, in other words, took subject to the respondent company’s lien: National Bank of Australasia v. Morrow (1887), 13 V.L.R. 2; Jellett v. Wilkie (1896), 26 S.C.R. 289.

80. Now it is true that in Macdonald v. Tew, supra, Mulock C.J. Ex. was dealing, as he said, with a person who as assignee for creditors was not a purchaser for value but his statement as to the effect of The Land Titles Act upon the common law rights of an owner of land to mortgage, or to lease, is indicative of the view held by Ontario Courts.

81. The next decision in Ontario to which I wish to refer is Re Jung and Montgomery, 1955 CanLII 377 (ON CA), [1955] O.W.N. 931, [1955] 5 D.L.R. 287, affirmed 1955 CanLII 339 (NL SC), [1955] O.W.N. 935 [1955] 5 D.L.R. at 292 (C.A.). There, Duranceau D.C.J. had considered a landlord’s application for possession. The landlord and a tenant had both been the tenants of adjoining parcels of land held under The Land Titles Act. The landlord purchased the parcel which he had previously leased and the parcel leased by Montgomery. Montgomery’s lease, including the option to renew, ran for more than three years. Jung, the new registered owner, had full knowledge of Montgomery’s tenancy at the time he purchased from the previous owner. After having closed the transaction, Jung continued to accept rental from Montgomery but later made application for possession. This latter fact, in my view, could have determined the case simply on the basis that Jung had accepted Montgomery as his tenant and was saddled with Montgomery’s lease. The learned District Court Judge, however, mentioned this point only at the close of his reasons and devoted the main portion thereof to a consideration of the question of whether Jung’s actual notice of Montgomery’s lease prior to his having closed the transaction of purchase resulted in him having to take title subject to Montgomery’s lease and held that it did so relying particularly on Re Skill and Thompson and Macdonald v. Tew which I have cited above. Jung appealed to the Court of Appeal and the disposition there is set out in the report in these words:

The Court dismissed the appeal at the conclusion of the appellant’s argument and orally expressed its agreement with the judgment appealed from.

Conclusion

[50] The review of the issues and the evidentiary record that has been undertaken in the above analysis makes it clear to me that Gijsbert’s summary judgment motion cannot succeed. Examinations for Discovery have not taken place. The parties have not exchanged Affidavit of Documents.

[51] Gijsbert and Hendrika argue that actual notice was given to Ransome. Ransome argues that he is not bound by the terms of the lease for the following reasons:

− it was not registered on title;

− he did not have actual notice of the lease or its terms;

− the lease is not valid;

− Gijsbert and Hendrika made false representations about title that he relied on, namely, the Statutory Declaration, the Bill of Sale, and the Undertaking;

[52] In these circumstances, a partial summary judgment is not appropriate as these matters directly involve Gijsbert and Hendrika.

[53] In Healthy Lifestyle Medical Group Inc. v. Chand Morningside Plaza Inc., 2019 ONCA 6, the Court stated the following at para. 9:

The motion judge’s analysis was sparse and perfunctory, and did not address the full scope of the defences raised. In Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, 120 O.R. (3d) 438, this court cautioned against partial summary judgment where it is possible that the trial judge “will develop a fuller appreciation of the relationships and the transactional context than the motions judge” which could risk “inconsistent findings and substantive injustice” para. 37; see also Butera v. Chown, Cairns LLP, 2017 ONCA 783, 137 O.R. (3d) 561, and Mason v. Perras Mongenais, 2018 ONCA 978. The respondent did not argue that if we disagreed with how the motion judge dealt with the pleading point we should preserve specific other parts of her decision.

[54] The evidentiary record is insufficient to resolve important contradictory statements including statements made in the Statutory Declaration, Bill of Sale and Undertaking that could be false.

[55] The following questions remain unanswered:

− what were the negotiations or discussions between the parties at the time of the APS and how the solar panel lease would be dealt with;

− what knowledge did the parties have about the solar panel lease;

− why was the solar panel lease not raised or referred to by the parties in the documents leading up to the close of the deal. The solar panel lease is not specifically referred to in the purchaser’s requisition letter and it is not specifically referred to in the Statutory Declaration, Bill of Sale or Undertaking.

[56] In Hryniak v. Mauldin, 2014 SCC 7 [2014] 1 S.C.R. 87, Karakatsanis J. sets out the procedure involved in assessing r. 20.04 summary judgment motions. At para. 49, Karakatsanis J. states:

There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

[57] At para. 57, Karakatsanis J. sets out the following:

On a summary judgment motion, the evidence need need not be equivalent to that at trial, but must be such that the judge is confident that she can fairly resolve the dispute. A documentary record, particularly when supplemented by the new fact-finding tools, including ordering oral testimony, is often sufficient to resolve material issues fairly and justly. The powers provided in Rules 20.04(2.1) and (2.2) can provide an equally valid, if less extensive, manner of fact finding.

[58] In Atwal v. Manu, 2019 ONSC 1, at para. 11, Harper J. dealt with partial summary judgment motions:

11. In N.K.P. Painting Inc. v. Jasper Construction Corp., 2018 ONSC 5692, Justice Charney reviewed the more recent cases dealing with partial summary judgment commencing at para. 35:

[35] In Mason, Myers J. stated the concern as follows (at para. 14):

While judges are required to be careful to understand the risks of duplicative proceedings and inconsistent findings that might undermine the justness and proportionality of granting summary judgment to less than all of the defendants, nevertheless, the Supreme Court recognized that resolving an important claim against a key party could also significantly advance the goals of securing the most efficient, affordable and proportionate outcome for all. The Supreme Court advised caution before granting partial summary judgment but it did not preclude partial summary judgment in appropriate cases.

[36] And, after reviewing the Court of Appeal’s decisions in cases such as Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450 and Butera and its progeny (see paras. 17 - 33), Myers J. summarized the law as follows, at para. 23:

Discrete issues, like limitation periods, which do not overlap with the merits that are left for trial, occupy the most efficient end of the spectrum. Cases like Baywood, where the same parties will go to trial with the same witnesses testifying to the very same facts as are in issue on a motion for summary judgment represent the other end of the spectrum. In the middle, are cases like this one and Hryniak where the litigation against a party can be brought to an end by partial summary judgment. Although not all parties will go to trial, the issues to be resolved summarily are not perfectly discrete and have some relation to the issues that remain for trial. The question then is whether the risks of duplication and inconsistent findings outweigh the benefits of summary resolution and preclude summary resolution from being proportionate where the case is brought to an end against some but not all of the parties. To resolve this issue, the judge must exercise his or her judgment to determine the comparative balancing discussed in Hryniak.

[37] The case at hand falls into the middle category identified by Myers J.

[38] I also adopt the analysis of Sanfilippo J. in York Regional Standard Condominium Corporation No. 1206 v. 520 Steeles Developments Inc., 2018 ONSC 3766, at paras. 93 - 94:

Recent cases where partial summary judgment is upheld all have a common element: the partial summary judgment resolved a discrete issue that could be separated from the other claims or parties in the surviving case…

The jurisprudence highlights that a motion judge hearing a summary judgment motion must balance the competing objectives set out in Hryniak: namely, the court must weigh the efficiencies achieved by some summary resolution against the risk of duplicative or inconsistent findings in the surviving elements of the case. The motion judge must be certain that the net result of the partial summary judgment process is an overall increase in efficiency in adjudicating the case…

[39] See also: Crawford v. Toronto (City), 2018 ONSC 1729 at para. 42 and “Sanokr-Moskva” LLC v. Tradeoil Management Inc., 2018 ONSC 2967, at paras. 12 -17.

[59] I am not satisfied that Gijsbert meets the test for a partial summary judgment. His request that he and Hendrika be released from this action is, therefore, dismissed. This matter requires a trial and all participants in this action must be present for a full evaluation and assessment of the issues and claims being advanced by the plaintiff.

[60] The Defendant Ransome, shall serve and file his written submissions on costs within 20 days. The Defendant Gijsbert, the Third Party Hendrika, and the Plaintiff Galbraith shall serve and file their response within 20 days. Ransome shall serve and file his reply within 10 days.

Fragomeni J.

Date: May 13, 2019

COURT FILE NO.: CV-18-62

DATE: 2019 05 13

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Michael Galbraith, Plaintiff

Gijsbert van der Lip and Derek Robert Ransome, Defendants,

Hendrika Renes van der Lip, Third Party

BEFORE: FRAGOMENI J.

COUNSEL: J. Horton, for the Plaintiff

R.H. Thomson Counsel, for the Defendant and Moving Party, Gijsbert Van Der Lip

R. W. Scriven, for the Defendant, Derek Robert Ransome

ENDORSEMENT

Fragomeni J.

Date: May 13, 2019