Court File and Parties

COURT FILE NO.: CV-17-2414 DATE: 20190123

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Glenn Beauchamp v. Kathleen E. DeMan

BEFORE: FRAGOMENI J.

COUNSEL: Julian Binavince, for the Applicant Inga B. Andriessen, for the Respondent

HEARD: December 21, 2018

Endorsement

[1] The applicant, Glenn Beauchamp, seeks the following relief in this application:

1. A determination of the rights and obligations of the applicant pursuant to an agreement of purchase and sale dated March 30, 2006 between the applicant as purchaser and the respondent as vendor (the “APS”).
2. An order for specific performance with respect to the APS.

[2] The grounds for the application are set out in the Notice of Application as follows:

• The applicant is an individual resident in Ontario and has lived in the same community as the property for over 20 years.
• The respondent is an individual resident in Ontario and is the registered owner of the property.
• The spouse of the respondent, Peter DeMan, is an experienced builder and land developer.
• The property is a unique 1.9 acre parcel of land surrounded by protected lands on the banks of the Credit River.
• The applicant and the respondent entered into the APS on or about March 30, 2006. Pursuant to the APS, the respondent had the obligation to obtain certain consents/permission from the Credit Valley Conservation Authority so that a home could be built on the property.
• The spouse of the respondent, Peter DeMan, assured the applicant he had the requisite knowledge and experience to obtain the consent.
• The respondent allegedly failed to act in good faith with respect to the consent and failed to take reasonable steps, or any steps at all, to obtain the consent.
• In or about 2010, Peter DeMan told the applicant that if the applicant paid an additional $200,000, he would obtain the consent.

[3] The applicant submits that the respondent did nothing to satisfy the Credit Valley Conservation Authority condition.

[4] Schedule A to the APS sets out numerous conditions to the APS and the conditions relevant to the discussion in this application are the following:

“This offer is conditional until October 30, 2006, upon the Seller obtaining permission from Credit Valley Conservation Authority to “cut and fill” in order to provide the “Building Envelope” stated herein. Failing which this Agreement becomes null and void and the Buyers deposit shall be returned in full with interest. This condition is included for the benefit of the Seller and may be waived at the Seller’s sole option by notice in writing to the Buyer within the time period stated herein. This condition and closing date may be extended if required by the Buyer, and agree [sic] to by the Seller in writing”

“This offer is conditional on the Seller obtaining at their expense the necessary building permits and/or consents and/or approvals required to accommodate a building envelope for the construction of a dwelling above the flood plain line which would allow for either a bungalow of approximately 4,000 square feet with a 3 car garage, or alternatively, a 2 storey dwelling of approximately 6,000 square feet with a 3 car garage.”

[5] The applicant submits that the respondent has advanced no evidence to show that she made an application to the Credit Valley Conservation Authority for permission to cut and fill in order to provide the building envelope for the purchaser’s home to be constructed.

[6] The respondent, on the other hand, submits that she took all reasonable steps to comply with the relevant conditions set out in the APS. At paras. 23 to 25 of her Affidavit sworn May 7, 2018, Kathleen DeMan states:

On or about March 5, 2010, I retained Clare Riepma, P. Eng, of Riepma Consultants Inc., a planner with significant experience dealing with Site Plan Approvals and the Credit Valley Conservation Authority to work on obtaining permits for the Property.

I paid a total of $14,602.62 inclusive of taxes, to Riepma Consultants Inc. to attempt to obtain site approval for the Property. Attached hereto as Exhibit “O” are true copies of the invoices from Riepma Consultants Inc.

After paying almost $15,000.00 to Clare Riepma, I decided that it was not worth spending additional money given the amount of the Purchase Price and I chose not to extend the Agreement of Purchase and Sale further.

[7] Further, Peter DeMan, the respondent’s husband, sets out the following in his Affidavit sworn May 7, 2018 with respect to the approval in this regard at paras. 6 and 7:

At my wife’s request, I was responsible for working with the planner, Riepma Consultants Inc., in an effort to obtain the approval as required for the building footprint designed by the Applicant’s architect.

I constantly worked diligently with the Applicant, the planner, the Regional Municipality of Peel and the Applicant’s architect from October 18, 2006 until November 2012 when the Agreement of Purchase and Sale was terminated. Attached collectively hereto as Exhibit “A” are true copies of all emails between myself and the Applicant, the planner the Regional Municipality of Peel and the Applicant’s architect in chronological order.

[8] Peter DeMan was not cross-examined on this Affidavit by the applicant.

[9] The applicant refers the court to an email to support his position that no efforts were made to fulfill the cut and fill condition. The email is dated June 6, 2011 and is from Clare Riepma to Pete DeMan. It states:

Peter

I am told this morning that real estate is drafting and [sic] agreement which will be reviewed by their legal folks on Wednesday. The engineers have not yet given an answer but it is hoped that they will also do so by Wednesday so that on Thursday we may have a draft agreement from the Region.

When we get the draft agreement, I propose to review with you and add all the rest of the approvals that we need from them.

Clare

[10] The applicant submits, therefore, that there is no evidence that Clare Riepma was retained to assist in fulfilling the Credit Valley Conservation Authority condition.

Issue #1: Did the respondent act in good faith and use best efforts to satisfy the Credit Valley Conservation Authority condition?

[11] I agree with the position of the respondent on this issue.

[12] The respondent points to a letter dated August 28, 2008 from Planner Michael Crechiolo, to the City of Mississauga’s Planning and Building Department that references a meeting with the Credit Valley Conservation Authority on August 12, 2007. The first paragraph of the letter states:

Further to the meeting held on August 12, 2008 Credit Valley Conservation (CCV) staff provided updated comments to assist in the review of this application.

[13] With respect to the Status of Site Plan Application the letter sets out the following:

The City of Mississauga indicated, in correspondence dated April 30, 2008, that additional information was required prior to providing comprehensive comments on the application. CVC staff concur with City staff and find that the application is premature. Specifically, additional information is required from the applicant to determine the limits of development to accommodate the proposed detached dwelling.

The location of the proposed dwelling illustrated on Site Plan drawing A1 dated April 9, 2008 cannot be supported by CVC for the following reasons:

1. The dwelling is located in an area where flood depth exceeds the maximum level permitted for existing vacant lots of record. A revised site plan with additional geodetic elevations is required to accurately determine the extent of the lands within acceptable limits.
2. The site plan is to provide the geodetic elevation of Mississauga Road to assess if safe access requirements can be met during the Regional Storm event.
3. The surveyed top-of-bank, stable slope line, erosion limit and required 5 metre buffer from the greater of the above setbacks has not been illustrated on the site plan.
4. The site plan has insufficient information related to existing conditions on-site and on adjacent lands necessary to evaluate the proposal. In addition to the above items, the limits of the Loyalist Credit watercourse, existing berm; and the centerline, pavement and shoulder of Mississauga Road are to be shown on the site plan.
5. The proposed building encroaches with in the natural heritage feature. The required 5 metre buffer from the dripline of the Natural Area has not been illustrated on the site plan.
6. The building is located almost entirely with the Region of Peel sewer easement.

[14] In the APS, the size of the house was set at 4,000 square feet for a bungalow or 6,000 square feet for a two-storey house. At paras. 21 and 22 of her May 7, 2018 Affidavit, the respondent states:

The house commissioned by the applicant’s architect, Roman Derbish, whose invoices we paid, was approximately 8,800 square feet and larger than the size agreed to in the Agreement of Purchase and Sale.

As a result of the massive house designed by the Applicant, we were required to obtain the release of an easement on the property before we could obtain permissions to build.

[15] This size differential made it difficult to obtain the Credit Valley Conservation Authority approval.

[16] The respondent submits that Credit Valley Conservation Authority was involved with the process and, in support of the position, points to an email dated November 24, 2011 from Peter DeMan to Glenn Beauchamp:

Glenn:

The City needs to do river erosion remedial work on my 2855 property. We had a meeting with them and their consultants a couple of months ago. We are using that as a lever to ask the Region to move the sewer easement forward (West) right across 2855, 2777 and 2749. This will allow the houses to move forward, leaving a much more flexible building envelope, footprint options and a much larger back yard.

The City is designing the work now and co-ordinating with the Region and CVCA.

They need to widen the river and I will lose some property at 2855. I could ask for money, but I would rather have the easement moved. The City also needs a permanent easement for future maintenance and some further downstream work to be done in about 5 years. The work they need to do, is not anywhere near 2777 or 2749. It is all at the north end of 2855, starting behind the “White” house North of my place and going about halfway down my river frontage.

I have the full presentation package, if you are interested. It is probably also online at the City’s web site.

Peter.

[17] In a further email dated October 9, 2012 from Peter DeMan to Christopher Tzekas, Peter states in part:

DeMan requested that some of the fill being removed from the west bank remain on site to create a balanced cut and fill for 2 areas of 5,000 sq. ft. raised to above the regional storm level, which would be only 1 percent of the total lot area, which would also be 1% of the flood volume storage capacity.

This would entail cutting the east bank back another 5 feet from the current proposal, unless 1% storage was not considered to be a significant digit, than all fill could be removed and the bank could stay as designed.

[18] Clare Riepma responds as follows:

From: Clare Riepma riepma@riepma.ca

Sent: October 11, 2012 9:46 AM

To: peter@DeMancorp.com; ‘Christopher J. Tzekas’

Cc: ‘Kathy DeMan’

Subject: Re: meeting with City

I have no comment because I wasn’t there. But I really like the balanced cut and fill idea and placing the fill so that we are above the floodplain to create a building area. We want to locate that material carefully to be sure that we have access and freeboard that the CVC will agree with. Hopefully they agree to this idea.

Clare

[19] I am satisfied on the evidentiary record, read as whole, that the respondent acted in good faith. She paid almost $15,000 to Clare Riepma and concluded that she did not want to spend more money on this APS. As a result, she chose not to extend the APS any further and the deal was, therefore, terminated. As Peter DeMan states in his May 7, 2018 Affidavit at paragraph 4:

The Agreement of Purchase and Sale was at an end as at November 23, 2012, and at that time, my wife and I were frustrated with costs and the delays by the City, Credit Valley Conservation Area and Peel Region, and decided to retain the property.

ISSUE #2 Should this court order Specific performance?

[20] Given my findings on Issue 1 above, it is not necessary for me to determine whether the applicant is entitled to the remedy of Specific performance. Nevertheless, I will address this issue. I find that the applicant would not have been entitled to Specific performance in any event.

[21] The respondent advises that the property was transferred to her son on January 4, 2016. The applicant’s Notice of Application is dated June 5, 2017, almost one and a half years later. The respondent’s son is not a party to this application.

[22] In any event, the respondent submits that there is no evidentiary support offered by the applicant to establish that the property is unique such that specific performance ought to be ordered.

[23] The applicable test is set out in Semelhago v. Paramadevan, [1996] 2 S.C.R. 415, at para. 22:

Specific performance should, therefore, not be granted as a matter of course absent evidence that the property is unique to the extent that its substitute would not be readily available. The guideline proposed by Estey J. in Asamera Oil Corp. v. Seal Oil & General Corp., [1979] 1 S.C.R. 633, with respect to contracts involving chattels is equally applicable to real property. At p. 668, Estey J. stated:

Before a plaintiff can rely on a claim to specific performance so as to insulate himself from the consequences of failing to procure alternate property in mitigation of his losses, some fair, real and substantial justification for his claim to performance must be found.

[24] The applicant relies on the following statements made by him to support his position that the test articulated has been met namely, paras. 3 and 4 of his November 20, 2017 Affidavit:

The Property is a 1.9 acre parcel of land surrounded by protected lands on the banks of the Credit River. I do not know of any building lots in this area of Mississauga of this size or of similar nature and as such I believe that the Property is unique.

Furthermore, I have lived in the area for over 30 years and my wife, my two school aged children and I have close ties to the immediate community. My wife and I want to build a custom home at the Property and I believe there is no other property in the area comparable to the Property.

[25] The applicant has not produced any realtor information or listing information. I am not satisfied that the test has been met on the basis of the applicant’s statements alone. This subjective analysis does not rise to the level required to meet the onus and the onus is on the applicant on this issue.

[26] In Erie Sand and Gravel Limited v. Tri-B Acres Inc., 2009 ONCA 709, 97 O.R. (3d) 241, the court set out the following at paragraph 118:

In summary, therefore, absent evidence that the land which is the subject matter of the agreement is unique, damages will be adequate and the plaintiff will not have a fair, real and substantial claim to specific performance. However, the converse is also true. Where a plaintiff establishes that the land in question is unique, damages will often be inadequate and the plaintiff has a fair, real and substantial claim to specific performance. Land is unique if there is no readily available substitute property. One method of proving that there is no readily available substitute is to show that the land has a quality that cannot be readily duplicated and that the quality relates to its proposed use, making the land particularly suitable for the purpose for which it was intended.

[27] Based on my review of all of the circumstances, the application is dismissed.

[28] The respondent shall serve and file written submissions on costs within 20 days. The applicant shall serve and file his response within 20 days thereafter. The respondent shall serve and file any reply within 10 days thereafter.

FRAGOMENI J. DATE: January 23, 2019