Introduction

[1] In August 2016, the plaintiff entered into Agreements of Purchase and Sale with the defendants to acquire two properties in Whitby which the plaintiff intended to redevelop by constructing residential housing. Certain conditions needed to be waived within 45 days for the Agreements to become firm. A waiver was provided for one property, on Brock Street, but not the other property, on Hopkins Street, as an unexpected issue arose which needed to be resolved. A meeting was held between the parties in October 2016. The parties differ over what was agreed to at that meeting, and a short time later, in November 2016, the defendants took the position that both deals were terminated.

[2] The plaintiff sued, claiming that the defendants breached both Agreements, asserting that the defendants wished to get out of the deals due to the rise in the real estate market since the Agreements had been negotiated. The plaintiff registered Certificates of Pending Litigation (“CPLs”) on the properties. Although the plaintiff initially sought specific performance, that claim was abandoned prior to trial. The plaintiff now seeks damages based on profits it says it would have made after redeveloping the properties or, alternatively, on the increase in the value of the properties as of the expected closing dates. The defendants have counterclaimed, seeking damages arising from their inability to sell the properties due to the CPLs.

[3] For the Reasons that follow, I find that the defendant Showcase Woodycrest Inc. (“Showcase”) wrongly terminated the Brock Street Agreement. The plaintiff had waived the conditions in accordance with the Agreement and the vendor, Showcase, was bound by it. I award damages to the plaintiff in the sum of $3.2M. I dismiss the plaintiff’s claim with respect to Hopkins Street, as the plaintiff did not waive the conditions, nor did the vendor, the defendant 2442459 Ontario Inc. (“244”), waive compliance with the conditions by either words or conduct, and therefore there was no enforceable agreement respecting that property.

[4] Given my conclusion on the Brock Street property, the counterclaim relating to it is dismissed. As to Hopkins Street, I am not satisfied that the plaintiff did not have a reasonable claim to an interest in the land which would give rise to awarding damages under s. 103(4) of the Courts of Justice Act, R.S.O. c. C.43, nor has the defendant 244 established that it sustained any damages as a result of the registration of the CPL. Accordingly, the counterclaim is dismissed in its entirety.

Background Facts

The parties and the properties

[5] The plaintiff, WED Investments Inc. (“WED” or the “plaintiff”), is a residential development company. It is part of the Kaitlin Group of Companies (“Kaitlin”), which is a builder of residential homes, townhouses and condominiums in the Greater Toronto Area (“GTA”), with a focus on Durham Region, which includes Whitby. The president and principal owner of Kaitlin, and WED, is William Daniell (“Daniell”).

[6] Showcase is the owner of a property at 3775 Brock Street North, (the “Brock Street property”) in the Town of Whitby (the “Town” or “Whitby”). 244 is the owner of a property known as 201 Hopkins Street in Whitby (the “Hopkins Street property”). Elliot Kirshenbaum (“Kirshenbaum”) is the sole owner of Showcase and one of the owners of 244. Kirshenbaum is in the business of acquiring undervalued properties, adding value to them by rezoning to make them ready for development or redevelopment, and then selling the properties to builders.

[7] Showcase acquired the Brock Street property on May 22, 2015 for $2,550,000. It was zoned as agricultural but a motel operated on the site as a legal non-conforming use. The property is approximately 2.81 acres (1.14 hectares) and extends for 97 metres on the east side of Brock Street, a major thoroughfare in Whitby. It is bordered on the north, east and south by a low-density residential neighbourhood of single-family detached and semi-detached homes. Showcase’s intention was to rezone the property for future residential development.

[8] The Hopkins Street property was acquired by 244 on December 2, 2014 for $2,100,000. It was zoned as a commercial mix and was being used as a storage location for new cars by nearby car dealers. The property is approximately 3.16 acres (1.28 hectares) and is adjacent to low-density residential development as well as commercial and industrial uses. Hopkins Street is a major road in Whitby. The property was acquired by 244 for the purpose of rezoning for future residential development.

The agreements to purchase the properties by the plaintiff

[9] In June 2016, the in-house lawyer at Kaitlin, William Walker (“Walker”), was contacted by another lawyer, Jerry Klasner (“Klasner”), about whether Kaitlin would be interested in buying a property in Whitby. Klasner then had Kirshenbaum call Walker to provide some information to him about the Hopkins Street property. Walker then spoke to Daniell and they decided to pursue the opportunity.

[10] On June 10, 2016, Kirshenbaum sent additional information to Walker by email about the Hopkins Street property, including a concept plan for developing up to 58 townhouse units on the property that had been included in a rezoning application which 244 had already made to the Town. Kirshenbaum also included a list of “Discussion Points” that included an asking price of $4.2M, a deposit of $50,000, a 45-day due diligence period for the purchaser, and the obligation of the vendor to complete the rezoning process to allow for a medium-density townhouse development before closing. The document anticipated rezoning to be approved 10 to 12 months from the date of application, around the end of 2016 or early 2017.

[11] Later that month, on June 20, 2016, Kirshenbaum emailed Walker about the Brock Street property and sent him a similar list of “Discussion Points.” That document provided for a purchase price of $4.4M, a deposit of $50,000, and a 45-day due diligence period for the purchaser. Prior to closing, the vendor was to obtain approval of a Draft Plan of Subdivision to allow for 19 single-family residential homes on a public road/cul-de-sac off Tincomb Crescent, although Kirshenbaum wrote in his email that “[s]hould you decide not to go with singles here - towns are a viable option, we would amend our application similar to the Hopkins site - complete a rezoning to allow for towns and close the deal and builder would be responsible for site plan and plan of condo.” Although no application had yet been made by Showcase, the Discussion Points anticipated a time frame for approval of “12-16 months from the date of application – June 2017 - December 2017.”

[12] On June 28, 2016, Kirshenbaum emailed Walker two concepts for the Brock Street property, “one with 19 singles” and the other for 55 freehold and condominium townhouses.

[13] Daniell testified that he was very interested in both properties because they were in the centre of the Whitby area and they were fairly priced, requiring a relatively small deposit with a closing date some time off in a rising market. “It was such a good deal and that is why we are here today,” he said.

[14] On June 30, 2016, Kaitlin, through its subsidiary WED, submitted, by email, two Agreements of Purchase and Sale, one for each of the properties (the “Agreements” or, separately, each “APS”). After some negotiation between Walker and Kirshenbaum over environmental issues, the offers were accepted by 244 and Showcase, through Kirshenbaum who signed the Agreements and emailed them back to WED on August 5, 2016.

[15] Each APS included the asking price and deposit proposed by Kirshenbaum. The Agreements were on the standard pre-printed form of the Ontario Real Estate Association; however, both Agreements had a detailed Schedule A which included the environmental conditions and a due diligence process. The Schedules also provided that “this Agreement of Purchase and Sale and any Amendments thereto may be transmitted through the use of electronic mail and that a true copy will be delivered to the Buyer and the Seller following acceptance of said Agreement.”

[16] The due diligence condition required the vendors to provide all information they had on each property within three days of acceptance, and the purchaser then had 45 days to satisfy itself of “the economic feasibility and marketability of the potential development of the subject lands.” In order for each APS to become firm, the purchaser was required to waive this “development condition” by “delivery of written notice to the Seller” of a waiver within 45 days of receipt of the information from the vendors. Failure to deliver such written notice would result in the APS being null and void.

[17] Schedule A of the Brock Street APS provided that during the conditional 45-day period the buyer was to determine, in consultation with the seller, the concept for the rezoning application to be pursued by the seller at its expense, and the completion date was to be 30 days following the approval of rezoning and the expiration of all appeal periods.

[18] The Hopkins Street APS simply provided that the closing would be 30 days following the approval of rezoning “to allow for medium density townhouse development as included in the Due Diligence information concept showing up to 58 units,” such approvals to be pursued by the seller at its expense.

[19] Both Agreements provided that if the approvals were not obtained by December 31, 2017, the buyer could extend the completion dates for up to six months, or could elect to close the transactions at any time on 30 days notice without the approvals.

The conditional period

[20] Due diligence materials were provided for both properties on August 11, 2016. On September 2, 2016, the plaintiff requested, by email, an extension of the due diligence period to October 26, 2016. A signed amendment to each APS was emailed back to the buyer extending the due diligence condition to October 17, 2016.

[21] Emails indicate that meetings were held in September between representatives of the buyer and the sellers, along with the sellers’ planners, to discuss the concept plans and the coordination of the applications. Meetings with the Town and the Region of Durham (the “Region”), in which Whitby is situated, were also held to move forward with the applications. It appears that the townhouse concept for the Brock Street property was the preferred approach.

[22] Kirshenbaum learned at a meeting with the Region on September 22, 2016 that the Region wished to take 15 metres of land along Hopkins Street from the Hopkins Street property as a road allowance in anticipation of building a bridge over the adjacent railway tracks, which would involve widening the street. This came as a surprise to Kirshenbaum. He described it as a “thunderbolt” as it could make the planned development uneconomical. He spent the next few weeks discussing this challenge with his team of planners and lawyers before reaching out to Walker and Daniell.

[23] On Thursday, October 13, 2016, Kirshenbaum sent an email to Walker and Daniell stating that he “would like to arrange a meeting so we can discuss the projects hopefully prior to the deadline of the due diligence period - this coming Monday, October 17.” He noted “Monday and Tuesday are yet again Jewish Holidays” and offered to meet before then, on October 14, or alternatively on Wednesday, October 19. Kirshenbaum stated that “some additional information has come to light regarding Hopkins I would like to discuss with you that may affect the current concept.” He did not say what the issue was other than it was not an environmental problem but a “legal” matter. He stated he would extend the due diligence waiver deadline for the Hopkins Street property until October 24 but maintained the October 17 date for the waiver on the Brock Street property.

[24] Kirshenbaum followed up with another email 14 minutes later reiterating that the deadline for the waiver of conditions on the Brock Street property was still October 17, and he stated that if WED had concerns about the Brock Street property, he “would like to know now as we have to get our applications in asap to get on the current year agendas! I need to know your concept so my reports and application can be revised accordingly - assuming you are ready to proceed.”

[25] Daniell and Walker testified that by October 17, 2016, WED had completed its due diligence and was prepared to waive the conditional period on both transactions. Daniell said that his Director of Development had reviewed the Brock Street property and had come up with a very viable development plan based on Kirshenbaum's proposal of 50 townhouses. “The 50 townhouses were a slam-dunk,” Daniell said.

[26] On October 17, 2016, Walker sent Kirshenbaum an email containing a signed waiver for the Brock Street property.

The October 19 meeting

[27] Kirshenbaum met with Walker and Daniell on Wednesday, October 19, 2016 at Kaitlin’s offices. Kirshenbaum told Walker and Daniell about the Region’s position on the road allowance on Hopkins Street, that his engineers were reviewing it and that he needed some time to see if he could resolve it.

[28] Here, however, the stories begin to diverge.

[29] According to Daniell and Walker, Kirshenbaum requested an extension of the waiver period until November 18, 2016. As they had a good relationship with Kirshenbaum, who was experienced in these issues, Walker and Daniell said they agreed to give Kirshenbaum more time. Walker and Daniell also said that Kirshenbaum asked if the waiver for the Brock Street property (which had already been delivered) could also be extended as he wanted the two properties to be in “lockstep”. According to Walker and Daniell, Kirshenbaum explained that he had investors in the Hopkins Street property, but not in the Brock Street property, and he did not want to appear to be favouring his own property. Walker and Daniell agreed to this “unusual request” as they felt they were still working together with Kirshenbaum. Daniell said he was not particularly concerned about the road allowance issue as the Region would have to pay compensation and the site was large enough such that the site plan could simply be adjusted.

[30] Walker said he would prepare amendments to both Agreements dealing with the extension of time and offered to do them at the meeting. However, Kirshenbaum had a gravely ill sister at the time and could not wait for the documents to be drafted.

[31] Kirshenbaum’s evidence is that he called the meeting to be very open and clear with the plaintiff about the road allowance problem, to “put all his cards on the table, no sugar coating, as there was no doubt that the project wasn't feasible.” In his view, if not resolved, the road allowance would reduce the project by about 20 townhouses and not make it viable. He agreed that he had extended the waiver to October 24 as he did not want WED to serve the waiver without knowing of the problem. Kirshenbaum testified that the plaintiff offered to extend the conditional period, but he said that did not make sense as there was too much uncertainty. He said there was no agreement to extend the waiver deadline on the Hopkins Street property to November 18 and that he told Walker and Daniell that the deal was dead.

[32] Kirshenbaum denied asking for the two properties to be in lockstep. Kirshenbaum claimed that it was Kaitlin which wanted both deals kept together, as he said it was not until he had put the Brock Street property on the table in June that Kaitlin became enthusiastic about the two acquisitions. In cross-examination Daniell acknowledged that there could be efficiencies in developing two properties in Whitby at the same time, moving forces from one site to the other and marketing them together, a point he had made in the CPL motion in 2017. However, when it was put to Daniell in cross-examination that if he could not get one property, he did not want the other, he responded: “Absolutely not, this was a no brainer of a deal.”

[33] Walker’s evidence supports Daniell’s position. As he testified, if WED had wanted the two deals to go together, he would have drafted the agreements that way, noting that he has done deals in which one is conditional on the other. Here there were no such conditions, or any other evidence that would support Kirshenbaum’s assertion that the plaintiff wanted both properties or none.

[34] Walker said that he provided a hard copy of the waiver on the Brock Street property to Kirshenbaum at the October 19 meeting. Kirshenbaum disputed this and said he was not aware of the waiver having been made on the Brock Street property on that date. Kirshenbaum testified at trial that he did not see the waiver that had been emailed to him on October 17 until he returned to his office on October 20, 2016; however, in prior testimony, Kirshenbaum said that he first saw the waiver sometime in November.

[35] At trial, Kirshenbaum also said that he did not believe the plans for the Hopkins Street property were discussed at the meeting, but when confronted with his previous testimony, he agreed that they were discussed.

October 20 to November 23 – the termination of the Agreements

[36] The following day, on October 20, 2016, Walker sent Kirshenbaum an email attaching amendments for both Agreements, “as discussed and agreed upon.” The Hopkins amendment extended the waiver date to November 18 “pending a meeting by 2442459 Ontario Inc. with the Region of Durham.” The Brock amendment contained similar language for Showcase meeting with Durham but also stated: “It is agreed that notwithstanding the waiver dated October 17, 2016 having been delivered it is revoked and of no further effect.”

[37] Kirshenbaum did not respond to the October 20, 2016 email, or sign the amendments. He admitted, however, that he would have seen the email that day. Kirshenbaum did not call or otherwise inform Walker that he never agreed to what was in the email.

[38] Kirshenbaum said that as far as he was concerned, the deal was done and he was with his family and his ill sister.

[39] On November 9, 2016, WED followed up with Kirshenbaum, sending him another email asking for the signed copies of the amendments sent on October 20. Kirshenbaum admits he received the email but did not respond to it or contact Walker or anyone else at WED or Kaitlin until November 14, 2016. On that date Kirshenbaum sent an email to Enzo Bertucci, a planner at Kaitlin, with a copy to Walker, stating that he had been off on a family matter and that his team was dealing with the road allowance issue. He stated: “Right now I have nothing to add, I cannot execute the amending agreements as I have no idea how long this will take. Once I get some direction I will contact your group. Until then nothing new. Elliott.”

[40] At this point, Walker said he still trusted Kirshenbaum and believed he needed some time and would insert a date once he got a clear path to resolving the road allowance issue. However, as he needed to know what was happening before November 18, Walker sent Kirshenbaum an email on November 17, 2016 stating:

Hi Elliott

I have left you several voice messages and need to speak with you today or someone who has authority to deal with and sign with respect to our 2 agreements. I appreciate that you have personal matters that have priority but I need to deal with the legal issues today.

Best Regards Will

[41] Later that day Kirshenbaum responded to Walker by email, stating:

Will;

I just received your voice message. At this point I think we should just assume the deal(s) are off as I am not getting any timely response from the Region and have no idea where this will end up. My consultants are very confident that the layout would not be greatly affected in the event the Region wants to take more frontage (potential loss of 1 unit) BUT nothing has been confirmed. Obviously we have both spent time and money on these offers and background work, which is unfortunate. I continue to move forward - we are filing record of site condition applications for both properties in order to speed up future 'conditions' to be dealt with. If you wish to move forward on the Brock St property let me know and we can discuss that possibility. I am going to be away for the entire month of December and don't expect any answers from the Region before I leave.

Sorry things worked out this way - but I'm glad I became aware of this situation before we had a firm deal -that would have been even more complicated.

Sincerely, Elliott

[42] At trial, when asked why the Brock Street APS was no longer valid, Kirshenbaum said it was because the plaintiff did not waive the condition properly by October 17, 2020. However, in prior testimony, Kirshenbaum’s answer was that he understood that the plaintiff wanted both properties or none, based on their greater interest in the opportunity once the Brock Street property had been introduced, even though there was nothing in writing about it.

[43] Walker described this email as a shock. He spoke to Daniell about it and on November 23, 2016, Walker sent Kirshenbaum an email to try to “get the deals back on the rails.” Kaitlin still wanted the properties which, he said, had increased dramatically in value. Walker offered to take on the costs of obtaining rezoning in the hope that this would interest Kirshenbaum. Walker left his and Daniell’s phone numbers as well as that of his legal assistant but received no response to this email.

[44] I prefer the evidence of Daniell and Walker over the evidence of Kirshenbaum. Daniell and Walker provide a consistent narrative, and their evidence is supported by the contemporaneous emails and draft amendments sent following the meeting. There is no support for Kirshenbaum’s assertion that the two deals were conditional on one another; indeed, the delivery of the waiver on the Brock Street property by the plaintiff by email on October 17, and hand-delivered on October 19, demonstrates that the plaintiff did not require them to be linked, and the evidence of Walker and Daniell that WED did not treat one deal as dependant on the other was credible and compelling.

[45] Kirshenbaum’s request to put them in lockstep due to his desire not to favour one agreement over the other, while not a position taken earlier when he insisted on the waiver for Brock by October 17, is credibly explained by both Walker and Daniell who gave consistent accounts of the meeting. Furthermore, Kirshenbaum’s evidence was contradicted by earlier testimony he had given, as noted above, and his account of the meeting on October 17 was vague where one would have expected more detail given its importance. On a number of occasions Kirshenbaum was unwilling to answer straightforward questions or give explanations for his actions where the response would not have helped his case.

[46] Kirshenbaum may well have wished to get out of both deals due to the rapid increase in the value of the properties since signing the Agreements, which may be why he sought to reopen the Brock Agreement at the October 19 meeting so that he could later terminate it as he did on November 17. It is also noteworthy that in his November 17 email Kirshenbaum referred to the “possibility” of moving forward with the Brock Street property if Walker was interested, which is inconsistent with Kirshenbaum’s position that the plaintiff wanted both properties or none.

Subsequent events

[47] In early 2017, the plaintiff placed a caution on title to the Brock Street property. It commenced this action on May 8, 2017, seeking specific performance and damages, and obtained ex parte Orders dated May 9, 2017 granting it leave to register Certificates of Pending Litigation (“CPLs”) on both the Hopkins and Brock Street properties. Following a motion by the defendants, on January 26, 2018, Master Abrams discharged the CPL on the Hopkins Street property, but not the CPL on the Brock Street property, which remained in place. Showcase’s appeal of Master Abrams decision declining to remove the CPL on the Brock Street property was dismissed: Wed Investments Limited v. Showcase Woodycrest Inc., 2018 ONSC 4488.

[48] The defendants received conditional offers to purchase both properties in April 2017. The offer for the Hopkins Street property for $8.7M was accepted but could not move forward after the CPL was registered. The offer for the Brock Street property for $9.3M could not be accepted due to the caution on title and, subsequently, the CPL. The proposed purchase prices are consistent with the rise in the market that had been occurring since the plaintiff’s offers in June 2016.

[49] On July 20, 2018, the plaintiff effected tender for the Brock Street property.

[50] The road allowance issue was eventually overcome for the Hopkins Street property which has now been rezoned to permit 52 townhouse units. At the time of the trial, Kirshenbaum confirmed that he was negotiating a sale of the Brock Street property for $8M.

[51] Kaitlin has not been successful in acquiring any comparable infill properties in Whitby since 2016.

[52] At the outset of the trial the plaintiff advised the Court that it was consenting to the removal of the CPL on the Brock Street property, and that it was no longer seeking specific performance in this action but would be limiting its claim to damages only.

[53] The defendants have counterclaimed, seeking declarations that the Agreements are null and void and damages pursuant to s. 103 of the Courts of Justice Act arising from the CPLs placed on the properties which it is claimed prevented the defendants from selling them to any other buyers.

Issues

[54] The following issues need to be decided:

(a) Are either of the Agreements of Purchase and Sale enforceable?

(b) If so, what are the plaintiff’s damages?

(c) If not, are either of the defendants entitled to damages due to the registration of the Certificates of Pending Litigation pursuant to s. 103(4) of the Courts of Justice Act and, if so, in what amount?

Are the Agreements of Purchase and Sale enforceable?

The Brock Street Agreement

[55] The plaintiff’s position is that Showcase wrongly terminated the Brock Street APS on November 17, 2016. The plaintiff states that once WED had delivered the waiver on October 17, 2016, there was a binding agreement to purchase the property.

[56] The position of Showcase is a technical one, arguing that WED did not deliver the waiver in accordance with the terms of the APS which, it is submitted, requires hand delivery of written notice, not notice by email. As no waiver was hand-delivered by October 17, 2016, it is said that the Agreement became null and void. I observe that this was not Showcase’s position in November 2016 when Showcase purported to terminate the APS. Furthermore, as I have noted in my summary of the facts, it was admitted by Kirshenbaum at the trial, though not before, that by no later than October 20, he was aware that the plaintiff had sent a waiver to him by email on October 17, 2020.

[57] In order to resolve this issue, it is necessary to review the terms of the APS, including Schedule A, which contains the conditional period for due diligence and requires delivery of the waiver.

[58] Schedule A states as follows:

If the Buyer determines that the development condition has been satisfied, the Buyer shall have the right by delivery of written notice to the Seller prior to the expiry of the development condition to waive the development condition and to proceed with this Agreement. [Emphasis added.]

[59] Schedule A continues, in the same paragraph, to state that failure to deliver the waiver to the Seller shall result in the APS being null and void.

[60] The Schedule addresses the mechanism of notice elsewhere, stating:

The parties hereto agree that this Agreement of Purchase and Sale and any Amendments thereto may be transmitted through the use of electronic mail and that a true copy will be delivered to the Buyer and the Seller following acceptance of said Agreement.

[61] This differs from the pre-printed portion of the APS which contains a standard form provision for notice in paragraph 3, which provides that any notice relating to or required under the “Agreement or any Schedule hereto” shall be in writing and, it continues:

shall be deemed given and received when delivered personally or hand delivered to the Address for Service provided in the Acknowledgement below, or where a facsimile number or email address is provided herein, when transmitted electronically to that facsimile number or email address, respectively, in which case, the signature(s) of the party (parties) shall be deemed to be original.

[62] On the APS, Walker’s fax number and email address are provided in the Acknowledgement section for the purchaser, but the space for a fax or email address for the seller was not completed. This means, according to Showcase, that any notice had to be hand delivered to its business address in Markham.

[63] However, paragraph 26 of the APS provides that if there is a “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.”

[64] In my view, there is a “conflict or discrepancy” between Schedule A and the pre-printed standard form. The due diligence condition and notice of waiver are found in Schedule A, which contains many terms and conditions that were negotiated by the parties, including provisions addressing notice.

[65] The paragraph in Schedule A dealing with the waiver says that there must be “delivery of written notice to the Seller.” It does not say how that written notice is to be delivered, but the requirement that the notice be “to the Seller” is different than the notice provision in paragraph 3 of the pre-printed portion of the APS, and therefore the Schedule should prevail.

[66] This was also the conclusion of the Court of Appeal in McKee v. Montemarano, 2009 ONCA 359 (“McKee”), which dealt with a similar situation involving the conflict between the standard form wording requiring delivery of notices to a specific address and a due diligence condition in a Schedule that required a waiver by notice in writing to be “delivered to the Seller.” In that case, the trial judge held that the notice requirement contained in the due diligence condition required that notice of any waiver of the condition be brought to the personal attention of the vendors. The Court of Appeal agreed, noting at para. 9 that the Schedule “provides for a notice requirement that is specific to the due diligence condition,” and that “[h]ad the parties intended that the general notice provision…apply to a notice of waiver of the due diligence condition, the specific notice requirement in Schedule A would have been unnecessary.”

[67] The Court of Appeal went on in McKee to comment that the notice language for the due diligence condition, which is similar to the language in this case, was “unambiguous”, stating at para. 10:

In contrast to other notice provisions in the Agreement, no mention is made in this part of Schedule A to the delivery of a waiver notice to the seller's agent or to the seller's house. Nor does Schedule A mention the general notice provision contained in paragraph six, or provide - as paragraph six does - for the delivery of notice to the seller's address for service set out in the Acknowledgement section of the Agreement.

[68] In this case, the plaintiff sent the notice “to the Seller” in the same way that the parties communicated with each other on every other issue, directly to one another by email. This too is similar to the finding in McKee, at para. 11:

…the evidence of the circumstances surrounding the making of the Agreement tells strongly in favour of the conclusion that the parties intended that any waiver notice be brought to the personal attention of the McKees. The trial judge found, and the record confirms, that in all matters of substance relating to the formation of the Agreement, the parties dealt with each other directly. As the trial judge put it, “[the parties themselves drove the deal throughout its formation, including Schedule 'A'.”

[69] Accordingly, in emailing the waiver to Kirshenbaum, the plaintiff made “delivery of written notice to the Seller” in compliance with the Schedule and, therefore, in compliance with the Agreement between the parties.

[70] In addition, the inclusion of the clause providing for the use of electronic mail in the Schedule confirms the parties’ intention to communicate on all critical issues by email, including the delivery of the waiver. As the Supreme Court stated in Creston Molly Corp. v. Sattva Capital Corp., 2014 SCC 53, [2014] 2 S.C.R. 633, at para. 47:

... the interpretation of contracts has evolved towards a practical, common-sense approach, not dominated by technical rules of construction. The overriding concern is to determine the ‘intent of the parties and the scope of their understanding’. [citations omitted]. To do so, a decision-maker must read the contract as a whole, giving the words used their ordinary and grammatical meaning, consistent with the surrounding circumstances known to the parties at the time of formation of the contract. Consideration of the surrounding circumstances recognizes that ascertaining contractual intention can be difficult when looking at words on their own, because words alone do not have an immutable or absolute meaning:

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. [Citation omitted.]

[71] The Court of Appeal elaborated on this approach in Starrcoll Inc. v. 2281927 Ontario Ltd., 2016 ONCA 275, stating at para. 20 that “contractual interpretation is a search for the objective intention of the parties as discerned from the language of the relevant provision considered in the context of the entirety of the agreement, the purpose of the provision, the nature of the relationship created by the agreement, and any other relevant surrounding circumstances.”

[72] In my view, the contract as a whole, the surrounding circumstances, the purpose of the notice provision, the nature of the relationship created by the Agreement, and the subsequent conduct of the parties leading up to the delivery of the waiver, all support a finding that the parties’ intention was to communicate by email on all issues.

[73] As discussed above, the parties had embarked on a collaborative process to develop the property. By October 17, 2016, WED had decided it wished to make the Brock Street APS a firm agreement after doing its due diligence, which included obtaining disclosure from Showcase, and after agreeing with Showcase on the development concept for which Showcase was to seek approval from the Town before the APS would close. These continuing obligations to one another are spelled out in the contract and, moreover, like every aspect of the parties’ dealings, are subject to the overriding duty of honest contractual performance and good faith between the parties: Bhasin v. Hrynwew, 2014 SCC 71, [2014] 3 S.C.R. 494, at para. 74.

[74] Kirshenbaum himself had, by email, both extended the time for giving notice of the waiver on the Hopkins Street property and confirmed that notice was still required by October 17, 2016 for the Brock Street property. There was no mention of any need to hand-deliver the notice to the Showcase office in Markham, nor would it have been seen by Kirshenbaum on that day in any event. Rather, the notice was emailed to Kirshenbaum on October 17 in order that it could come to “the Seller’s” attention on that date, and while Kirshenbaum may not have seen that email until October 20, that was due to his own decision not to check his emails over the Jewish holidays and not to review them at all until, he says, October 20 when, at least at this trial, he admitted he saw the notice.

[75] It is also relevant that at no time did Kirshenbaum raise any objection to the delivery of the waiver by email. At the October 19 meeting (at which Walker provided Kirshenbaum with a hard copy of the waiver, as I have concluded above), Kirshenbaum requested the two transactions proceed in lockstep. He therefore treated the Brock Street transaction as being in effect and therefore accepted that the waiver had been properly delivered. To treat them in lockstep, as Walker and Daniell agreed to do in a spirit of cooperation and good faith, the waiver needed to be retracted, as reflected in the draft amendment sent by Walker the following day which, however, was never accepted by Kirshenbaum. Indeed, when cross-examined in the CPL proceedings a year later, in October 2017, Kirshenbaum did not take issue with the notice being sent by email, instead claiming that his basis for terminating the Brock Street APS was that the plaintiff wanted the two deals to be conditional on each other which, as I have found, has no support in the evidence and is contradicted by the plaintiff’s witnesses.

[76] A similar issue also arose in High Tower Homes Corporation v. Stevens, 2014 ONCA 911, 123 O.R. (3d) 81 (“High Tower Homes”), in which the vendor had not included a fax or email address for notice, but nor was there an address for service in the Acknowledgment provision. The purchaser had faxed a required notice to the vendor, who was an individual, and had not hand-delivered it in accordance with paragraph 3 of the standard form agreement. The Court of Appeal upheld the motions court judge’s decision that the notice was not delivered in accordance with the agreement, and therefore was ineffective.

[77] This case differs from High Tower Homes in a number of ways, as was also noted in the CPL proceedings by Master Abrams and on appeal by Goldstein J.: Wed Investments Limited v. Showcase Woodycrest Inc., 2018 ONSC 4488.

[78] High Tower Homes dealt with two parties of somewhat unequal bargaining power in which the purchaser had not disclosed changes it had made to an agreement, and then sought to take advantage of those changes by giving notice of the waiving of a condition by fax. In this case, however, the parties were on an equal footing that included collaborating with one another on the development proposal, and there was a clear practice of communicating by email on all issues. As Walker testified, and which the communications corroborate, it was clear that Kirshenbaum’s preferred method of communication was by email. As Walker said, the fact that Kirshenbaum had not put his email address under paragraph 3 of the APS did not trouble him as he had Kirshenbaum’s email address and they were acting openly and in good faith with one another.

[79] Further, unlike High Tower Homes (at para. 49), the APS did contain separate provisions calling for “delivery of notice in writing to the Seller” and for transmission of documents by email.

[80] I have also considered the argument that a notice should be treated differently from an agreement or amendment to an agreement because it is unilateral and does not involve both sides needing to agree. However, where, as here, both parties are sophisticated and there is a clear practice of sending all communications by email, and the circumstances of the agreement involve continuing collaboration and cooperation, that difference is not significant, and in my view it is unduly technical and contrary to the parties’ expectations to suddenly hold one party to a strict reading of the APS on one particular communication.

[81] Accordingly, I find that the Brock Street APS was wrongly terminated by Showcase, giving rise to a claim for damages by the plaintiff.

The Hopkins Street Agreement

[82] I come to a different conclusion respecting the Hopkins Street property. The plaintiff did not deliver a waiver of the development condition, and this entitled 244 to treat the APS as having terminated.

[83] The plaintiff relies on the doctrine of promissory estoppel, arguing that its failure to deliver a waiver was due to its reliance on Kirshenbaum’s representations that he needed time to address the road allowance issue, and therefore the waiver did not need to be delivered while that issue was being resolved.

[84] The principles of promissory estoppel are well-established and concisely stated in Snell’s Principles of Equity, 27th ed. (1973), p. 563 (quoted by Spence J. in Sola Developments Ltd. v. ICI Canada Inc., 2009 CanLII 14049, (Ont. S.C.), at para. 15):

Where by his words or conduct one party to a transaction makes to the other an unambiguous promise or assurance which is intended to affect the legal relations between them (whether contractual or otherwise), and the other party acts upon it, altering his position to his detriment, the party making the promise or assurance will not be permitted to act inconsistently with it.

[85] In this case, there was a representation by Kirshenbaum that the waiver did not need to be provided by October 17, 2016. Kirshenbaum’s email of October 13 extended that deadline to October 24, which was relied upon by the plaintiff in not delivering its waiver for the Hopkins Street property at the same time as the waiver for the Brock Street property.

[86] At the meeting on October 19, as I have found, Kirshenbaum orally agreed to a further extension of the waiver period to November 18, 2016 and the plaintiff relied on that representation as well. However, Kirshenbaum then failed to sign the amendment confirming that extension, which caused concern for the plaintiff, which followed up seeking an executed copy of the amendment and promise on November 9, 2020.

[87] Kirshenbaum responded on November 14, 2016 saying he could not execute the amending agreements as he did not know how long it would take to resolve the road allowance issue, and Walker then followed up again on November 17, 2016 saying that he needed to speak to Kirshenbaum “or someone who has authority” on that day to “deal with the legal issues.” This urgency was due to the expiration of the extension of the waiver period to November 18, promised at the meeting on October 19. Kirshenbaum’s email later on November 17 made clear he would not sign any agreement further extending the waiver period. Despite this, and despite his sense at this point that he was being “strung along”, Walker, a very experienced real estate lawyer, did not deliver the waiver on or before November 18, 2016. This would have been the prudent step had the plaintiff had no concerns about the property and been willing to waive at that time. Nor did Walker, in his subsequent email of November 23, take issue with the termination of the APS, but instead proposed amending the agreements to provide that the plaintiff would be responsible for rezoning and other approvals.

[88] I also observed that the Hopkins Street property was a more challenging development given pre-existing concerns about environmental issues and, subsequently, the impact of the road allowance. The plaintiff had good reason to be cautious about the transaction and not waive the condition while those concerns were unresolved.

[89] Accordingly, while Kirshenbaum made promises which the plaintiff was entitled to rely upon, and did rely upon, extending the conditional period first to October 24 and then to November 18, 2016, 244 did not extend the deadline beyond November 18. The plaintiff’s failure to meet that deadline caused the APS to become null and void.

[90] As a result, the plaintiff’s claim with respect to the Hopkins Street property fails.

The plaintiff’s two approaches to damages

[91] Most of this trial involved expert evidence regarding damages, much of it relating to the Brock Street property.

[92] The plaintiff advanced two bases for calculating damages.

[93] The first approach seeks the lost profits the plaintiff says it would have earned if it had acquired the properties and developed them, as was its intention when it signed the Agreements in 2016.

[94] The plaintiff’s second approach considers the increase in value of the properties as undeveloped land calculated on expected closing dates in July 2018. This approach is common in real estate litigation, in part because it involves a relatively straightforward method of determining the value of the loss of the bargain in order to put the plaintiff in the position it would have been in if the agreement of purchase and sale had been performed. See, e.g., Marshall v. Meirik, 2019 ONSC 6215, at para. 12.

[95] The defendants did not take issue with the appropriateness of the plaintiff taking these two approaches to damages, although they challenge the outcomes.

[96] In my view the plaintiff is entitled to advance each approach. When the Agreements were negotiated, the parties specifically contemplated that the plaintiff was acquiring the properties in order to construct and sell residential units at a profit and therefore, subject to proving such damages, it is entitled to seek its lost profit arising from the defendants’ wrongful breaches. As the Supreme Court of Canada stated in Performance Industries Ltd. v. Sylvan Lake Golf & Tennis Club Ltd., 2002 SCC 19, [2002] 1 S.C.R. 678, at paras. 72-73, in rejecting the argument that compensatory damages should not include the “reasonably expected profit” from a 58-lot housing development:

…the parties specifically contemplated…that the optioned land would be put to the use of residential housing. Damages for breach of the contract, as rectified, therefore must include losses flowing from the special circumstances known to the parties at the time they made their contract: [citations omitted] In New Horizon Investments Ltd. v. Montroyal Estates Ltd. (1982), 26 R.P.R. 268 (B.C. S.C.), Nemetz C.J.B.C. observed, at pp. 272-273:

[T]he plaintiff's damages should be assessed by reference to the profits which both parties contemplated the plaintiff would make but for the breach. It is not necessary that this contemplation include a precise pre-estimate or calculation of these losses, only a " . . . contemplation of circumstances which embrace the head or type of damage in question".

Brock Street damages

1. Damages if the property had been redeveloped

[97] I address first the plaintiff’s claim based on the approach which assumes that the property was redeveloped by the plaintiff, residential housing was constructed and it was sold for a profit.

[98] To support this, claim the plaintiff called three experts: a planner to give his opinion on what could be developed; an appraiser to opine on what the plaintiff would have received from the sale of the completed residences; and a quantity surveyor to speak to the cost of constructing the development so that actual profits could be determined.

[99] The defendants called their own experts in planning and property appraisal in response.

The proposed redevelopment

[100] As discussed above, when the parties negotiated the APS for the Brock Street property, two development concepts were under consideration: one with 19 detached single-family homes, while the other contemplated building 55 townhouses. Daniell was confident that 55 townhouses would be permitted there, calling it a “slam dunk.”

[101] However, at the trial the plaintiff presented a plan for a much denser redevelopment, proposing a “mid-rise” 4-storey apartment building that would contain 50 condominium units with an average size of 650 square feet, and 41 townhouses with an average size of 1,650 square feet, for a total of 91 residential units. This plan was presented by a planner, Ryan Guetter (“Guetter”) of Weston Consulting, a planning and urban design firm (“Weston”).

[102] Guetter, who is a member of, among other things, the Canadian Institute of Planners and the Ontario Professional Planners Institute, has worked as a planner with Weston since 2003. In that capacity he has been responsible for the planning of new developments in many locations in and around the Greater Toronto Area and has made many applications for official plan and zoning by-law amendments. He was qualified as an expert in obtaining planning approvals.

[103] Guetter prepared a report (the “Weston Report”) in which he presented his concept for 91 units on the property (the “Weston concept”). Guetter studied the property and met with staff at the Town to discuss potential development concepts. The Weston Report also contained his analysis of the applicable planning documents, including the Durham Region Official Plan, the Town of Whitby Official Plan and the Town’s zoning by-laws. It was Guetter’s opinion that an application for approval of the development of 91 units on the property would have a “high probability of success” and would be approved within 18 months.

[104] In response, Showcase obtained a report from Ms. Lindsay Dale-Harris (“Dale-Harris”) of Bousfield Inc., a professional planning firm (“Bousfield’). Dale-Harris joined Bousfield when it was established in 1974 and has been a partner there since 1978. She has over 45 years of experience as a planner. She was made a Fellow of the Canadian Institute of Planners in 2013. She has worked on many projects that involve land use planning, including Official Plan and zoning by-law amendments. She was also qualified as an expert in planning.

[105] Dale-Harris has worked for Kirshenbaum on a number of projects and provided advice to Showcase on the Brock Street property in 2016. She and her staff developed the two concepts contemplated by the parties in 2016, for 19 single-family homes or 55 townhouses. At that time, she and others at Bousfield met with staff from the Town and the Region regarding potential development of the site, including holding a formal pre-consultation meeting.

[106] Dale-Harris prepared a report in response to the Weston Report (the “Bousfield Report”) in which she concluded that the Weston concept is “overly ambitious” and that while the site is likely to be rezoned for medium-density residential development, it is unlikely to receive approval for the proposed 91 units, which is high density. The Bousfield Report notes that the Brock Street property had a Medium Density Residential designation in 2016 which would have permitted, at most, 74 units, although Dale-Harris was clear in her testimony that she did not think the municipality would have approved even that many residential units. In the Bousfield Report, Dale-Harris also stated that the Weston concept does not adequately address parking issues which, when properly considered, would result in a reduction of between 13 and 15 townhouses.

[107] The Court is in the somewhat unusual position of having to decide what would ordinarily be determined by the Region and the Town and, if appealed, by the Local Planning Appeal Tribunal (“LPAT”, formerly the Ontario Municipal Board). This involves considering policies in official plans and planning principles, a task usually left to planners, politicians and an expert tribunal. Nevertheless, this is the case before me, and both Guetter and Dale-Harris provided thorough and helpful evidence on which to consider and decide the issue for purposes of this action. My conclusions are simply based on the evidence before me and may or may not be consistent with how the land is actually approved for development.

[108] In my view the Weston concept is indeed “overly ambitious” and would not be likely to obtain approval by the Region and the Town. I find the conclusions of Dale-Harris to be more practical, realistic and consistent with the policies and approaches taken by the Town and the Region, including recent changes to designations to the property. Furthermore, Dale-Harris’s approach identifies a number of problematic issues in the Weston concept, including vehicular access, adequate parking, setbacks and separations of buildings, and is more consistent with the site’s location within an area of low-density development, all of which raises serious doubt about the viability and approval of the Weston concept.

[109] The Weston concept proposing 91 units would require approval of a high-density development in a low-density area. The Brock Street property has an area of 1.14 hectares. Under a Medium Density designation, development must be in the range of 30-65 units per hectare (“uph”), which would mean a maximum of 74 units. A development containing 91 units would result in a density of 80 uph, which is well into the high-density range of 65-135 uph.

[110] Currently the Brock Street property is zoned agricultural. While situated on a regional road and major thoroughfare in Whitby, it is bordered on the north, east and south by low-density residential development. The Official Plan designation for the site is Residential. Although in 2016 the Brock Street property was designated as Medium Density and was located in an “Intensification Corridor,” both of those designations were subsequently deleted by the Town. This is a recent indication by the Town that it would not be receptive to intensified use of the site.

[111] Nevertheless, Dale-Harris remained of the view that the Brock Street property would likely be approved for “modest intensification” at a medium-density level, which would not include apartments. This is consistent with the concept of 55 townhouses that Bousfield developed and was contemplated by the parties when they negotiated the APS and the plaintiff waived the development condition in the summer and fall of 2016.

[112] Both experts agreed that applications for medium- and high-density residential uses need to address Policies 4.4.3.10.2 and 4.4.3.10.3 in the Town’s Official Plan. Considerations listed in Policy 4.4.3.10.2 include whether there is suitable access to existing roads and whether traffic impact on the surrounding neighbourhoods can be minimized, proximity to pubic transit, whether the site is “within or in proximity to a Central Area,” and provides adequate on-site parking.

[113] Policy 4.4.3.10.3 states that proposals for medium- and high-density residential development outside of Intensification Areas and Intensification Corridors must also demonstrate that “the scale and density of the proposed development or redevelopment does not compete with or detract from the potential to establish Medium Density and High Density Residential or mixed-use development within Intensification Areas, Intensification Corridors, or lands otherwise designated for such uses.”

[114] I found persuasive the evidence of Dale-Harris on the application of these policies. She took into account the recent removal of the Brock Street property from being in an Intensification Corridor. Further, lands not far to the north of the property, at and around the intersection of Brock Street and Taunton Road, are designated a “Major Central Area” where high-density development is permitted. This caused Dale-Harris to give weight to Policy 4.4.3.10.3, which warns against developments that may detract from or compete with an area designated for intensification. In Dale-Harris’s view the Weston concept would compete with this area nearby that was designated for intensified development, and this was not addressed, or addressed adequately in my view, by Guetter in the Weston Report or in his testimony.

[115] Traffic issues are also a concern. Although the aging motel on the site had direct access to Brock Street, in Dale-Harris’s discussions with the Region in 2016 she was advised that the Region would object to a residential development with direct vehicular access to the street. This is not surprising as there are no other driveways or private entrances onto the east side of Brock Street in this area, and there is no residential development that has its own direct access to Brock Street near the Brock Street property. Aside from an older retail strip mall to the south of the site on the west side of Brock Street, it appears that access to Brock Street is at signalled intersections only, one of which is less that 100 metres north of the site at the intersection of Joy Thompson Avenue and Brock Street.

[116] Guetter, however, stated that while the Region did not “prefer” direct access to Brock Street, in a more recent discussion a staff member at the Town indicated to him that the Region was willing to consider limited access into and out of the property onto the northbound lanes of Brock Street – a right turn into and out of the property, as it was described. Dale-Harris was skeptical of this, noting that her information came from the Region directly in a formal pre-consultation meeting with the Town and the Region, whereas Guetter only had informal discussions about the site with the Town, and was not aware of what the Region had told the Town. Guetter agreed that technical studies would have to be prepared on any proposed access to Brock Street.

[117] Either way, access to Brock Street is problematic. As Dale-Harris noted, the alternative preferred by the Region is for any development to be accessed from the north side of the property on an adjacent side street, Tincomb Crescent, which connects directly to Joy Thompson Avenue and the intersection with Brock Street. Access to the development by way of a neighbourhood street favours lower-density development as it may meet with less community opposition than a higher-density proposal. The section of Tincomb Crescent that would be impacted by providing access to the site contains townhouses backing on to Brock Street and would not, in Dale-Harris’s opinion, be an impediment to medium-density development, but would not support high density.

[118] Guetter suggested that traffic lights might be installed on Brock Street to provide safe access to the proposed development. This would require a traffic study, however, and the cost of a traffic signal would be significant and would be borne by the developer. Dale-Harris was very skeptical about installing a traffic light, noting that the traffic lights at Joy Thompson Avenue were less than 100 metres north of the property, making approval of an additional signal unlikely.

[119] Parking issues are also a concern with the Weston concept. Guetter’s sketch contemplates underground parking for the 50 units in the mid-rise building; however, the proposal did not address how much underground parking would be required or constructed. This was the subject of criticism by Dale-Harris who identified the risk of dewatering issues associated with the property and especially with more than one level of underground parking, which would be necessary if all the units were to have parking underground. Although the footprint for parking could extend beyond the building footprint, or surface parking could be provided, those options would impact on the number of townhouses that might be constructed as well as the cost of construction. As Dale-Harris noted, additional underground parking has significant cost implications.

[120] The Weston concept itself is quite vague – consisting of a hand-drawn sketch. The Bousfield Report raised concerns about adequate setbacks, separation distances and the adequacy of the right of way for the internal roadway. While these concerns may be able to be addressed in a rezoning and site plan approval application, they highlight the challenges of the density intensification proposed in the Weston concept.

[121] Additionally, based on the notes of Guetter’s discussions, the Town’s comments are consistent with approval of lower rather than higher density. The Town’s reaction to an initial proposal of a 6-storey apartment building was to reduce it to 4 storeys. The Town also said townhouses should be limited to 2 storeys.

[122] In my view the Weston concept is more in the nature of wishful thinking or a best-case scenario which the plaintiff might put forward, but which would be scaled back in order to gain approval.

[123] I also find Guetter’s evidence predicting all approvals to be completed in 12 – 18 months to be optimistic. The Weston plan is a significant intensification, requires traffic and other studies, and is likely to garner opposition. As Dale-Harris said, “a zoning by-law amendment, a site plan approval and a draft plan of condominium approval all within 18 months will be very challenging, particularly if one factors in community involvement and potential appeals….”

[124] Recognizing again that I am not a Town Council or the Local Planning Appeal Tribunal, based on the evidence presented at this trial, I am not satisfied on a balance of probabilities that the Weston concept would be approved by the Town. Rather, it is more likely that a project similar to that proposed in 2016 containing 55 townhouses, and which was contemplated by the parties at the time, would be approved for the project.

Revenue from the proposed redevelopment

[125] The plaintiff called an expert in property appraisal, Oksana Vialykh (“Vialykh”), an appraiser with D. Bottero & Associates Limited. Vialykh has been an appraiser since 2010 and her expertise was not challenged. She prepared a report and provided opinion evidence on the sales rate that would have been achieved if the Brock Street property had been redeveloped in accordance with the Weston concept.

[126] Vialykh assumed that the condominium apartments and townhouses would be similar in calibre and amenities to developments Kaitlin had built elsewhere and concluded, based on a comparative approach to other sales, that as of July 2018 the apartment units would have sold for $650 per square foot and the townhouses for $450 per square foot.

[127] In response Showcase called Matthew Bruchkowsky (“Bruchkowsky”), an appraiser with Colliers International Realty Advisors Inc. for the past 8 years. His opinion was that the apartment units would sell for $625 per square foot, and that the townhouses would sell for $360 per square foot.

[128] The competing experts were relatively close on the price for condominium apartments despite their different approaches. Vialykh considered both nearby resale prices of existing apartments and townhouses and the sale price of new, comparable products in Whitby and the Region, several of which were Kaitlin projects, making adjustments for differences in location, size, quality, date of sale and new versus resale properties, among other things.

[129] Bruchkowsky, on the other hand, limited his comparable properties to new developments only. This limited his data in the immediate vicinity and required him to use sales information from across the Region. He also looked at the rate of sales for new product, which Vialykh did not address in her initial report, as indicators of the reasonableness of pricing for new product and of the time, and therefore cost, associated with slower pre-sales for new developments.

[130] In my view, Vialykh placed too much weight on new Kaitlin projects far away from central Whitby. On the other hand, her use of resales was appropriate. She provided more limited information on her adjustments in her report, although to some extent this was explained more thoroughly in her testimony. She was also overly optimistic on how long it would take to sell the units, based on the timing of sales in comparable new properties marketed by Kaitlin, which undermines her expectation of selling out the project within a number of months.

[131] Bruchkowsky’s rejection of nearby resale transactions as comparables minimized the importance of the location of the property, which he otherwise suggested was important in emphasizing how familiar he was with the area. This caused him to make many adjustments that diminished the reliability of his conclusions. His refusal to use resales also seemed inconsistent with his use of market data generally, which includes resale information.

[132] Bruchkowsky’s rejection of the differences between “greenfield” and “infill” projects lacked coherence. Although he said the difference is considered when he makes a location adjustment, when pressed on this he suggested that the difference may be more about the product, which was difficult to follow. Vialykh, on the other hand, observed that purchasing a property in a new greenfield development on what was previously agricultural land may involve living for a lengthy period of time with ongoing construction in a location which lacks amenities and infrastructure including schools, parks, community centres and other facilities yet to be built. In contrast, an infill site such as the Brock Street property is a relatively small construction project that will be completed relatively quickly and is surrounded by an existing, well-established and well-serviced residential neighbourhood.

[133] I also found Bruchkowsky unduly narrowed his range at the end of his analysis to result in a further downward adjustment that was not adequately explained by him and seemed inconsistent with otherwise considering a broad range of what he felt were comparable properties. Bruchkowsky also seemed unable, or unwilling, to accept anything that did not accord with his approach, and on several occasions gave long answers that did not respond to straightforward questions or unnecessarily asked that they be rephrased. Vialykh, on the other hand, testified in a more direct way and acknowledged where her approach might face adjustments.

[134] Vialykh also emphasized, perhaps unduly, the additional features and finishes she assumed would be included in the units based on other Kaitlin projects. However, her townhouse estimate was based appropriately on two-storey construction whereas Bruchkowsky assumed three-storey homes, which might not be permitted, and which lowered his value per square foot.

[135] As the two appraisers were close on the apartments, I conclude that the $650 per square foot figure is appropriate. On the townhouses, given the disparity between the two estimates, and the weaknesses in both approaches, I conclude that an appropriate amount is $400 per square foot, which is roughly the midpoint between the two estimates.

Costs and potential profit from development

[136] The third element of this approach to damages based on the lost profit from developing the land involved the evidence of a quantity surveyor, Danny Afonso (“Afonso”) of Pelican Woodcliff Inc. Afonso was called by the plaintiff and was qualified as an expert in estimating construction costs. The defendants did not call an expert to respond to Afonso’s evidence.

[137] Afonso relied on the Weston concept, and the estimated selling prices for the units stated by Vialykh. He considered both hard and soft costs, projected timing for the development process and construction, as well as financing and contingency costs. Afonso provided detailed spreadsheets setting out the costs and contingencies and included cash flow schedules and a development schedule.

[138] I found Afonso’s evidence to be thorough, helpful and clear in calculating a net project cost for the Brock Street property of $42,455,000 which, when deducted from the estimated net sales revenue of $48,510,870 based on Vialykh’s report, results in a profit of $6,055,870. This level of profit would have a return on investment of 14.3%. As banks look for a return on investment of between 12% and 20% before financing a project, this would be a viable project, he said.

[139] Afonso was very straightforward in acknowledging that his calculations were based on a hypothetical development, and readily acknowledged the potential for adjustments.

[140] He agreed construction costs would escalate if commencement of construction was delayed, which could be due to slow sales, and that in such cases builders often provide incentives to promote sales, which will impact the profit. Delays in approvals, or complications in construction such as environmental remediation or dewatering would add costs. He agreed that dewatering may be necessary and that this could add $500,000 or more to the cost of construction. Afonso agreed that his 5% contingency for construction costs was something builders often exceed. Afonso did not consider the cost of some of the features of the apartments and townhouses that Vialykh assumed would be included.

[141] Afonso’s calculation was based on constructing just one level of underground parking, and he agreed that the cost would increase significantly if an additional level of parking had to be built, perhaps by as much as $5M. Afonso said it would be cheaper to expand the footprint of one level of parking, but that might impact on other aspects of the proposed development. The cost of a traffic signal, if needed, would also be borne by the developer and could be as much as $500,000, he said.

[142] Afonso stated that if the project had to be reduced in size, rather than simply deducting costs and revenue per unit, or per square foot, a developer would usually do a “redraw” of the entire project. This is because there are common costs that must be reallocated and revenue calculations adjusted. As well, a reduction in one area leads to changes in other areas. Nevertheless, Afonso agreed that it would be cheaper to lose condo units than townhouses, as townhouses are less expensive and faster to construct. In cross-examination Afonso agreed that simply removing 10 condominium units would reduce profit by roughly $1,456,000, and a reduction of 10 townhouses would reduce profit by approximately $3,547,500. Afonso agreed that if the sales revenue was on a lower figure, then profits would decrease even more. These reductions would make the project no longer viable, which is why Afonso emphasized that a builder would instead do a redraw of the project in order to determine the most profitable approach for the density permitted.

[143] Indeed, in closing argument Showcase provided calculations to show that if one made adjustments for reduced revenue from a reduction in units, applied Bruchkowsky’s estimates and incurred additional costs arising from dewatering, the development would not achieve a rate of return that would attract financing, and might result in losses to the builder.

[144] It is reasonable to conclude, therefore, that if the Weston concept for 91 units was not approved, there would have been a reduction in the number of condominium apartment units and possibly fewer townhouses, or the project would have proceeded with only townhouses, which was the approach the parties seemed to have settled on back in 2016. In any event, there would need to be a “redraw” and the profit would likely be lower than Afonso’s estimate based on the Weston concept.

[145] As the plaintiff confirmed the APS based on the Showcase proposal to build 51 townhouses, it is reasonable to assume that a development of that kind would have been feasible and profitable at some level. Counsel for the plaintiff invited me to apply Afonso’s costs of developing the Hopkins Street property, which consists of 52 townhouses, to the Brock Street property. There was no evidence, however, that this was an appropriate way to calculate damages, and it ignores many differences between the properties and the potential developments, including that 224 contemplates constructing 3- and 4-storey townhouses on the Hopkins Street property which may not have been approved for the Brock Street property.

[146] At the end of the day, I find the lost profit approach to damages to be quite speculative and uncertain. The Weston concept is vague and overreaches, yet the costs and revenue calculations are based on it. The problem is that if the concept is not approved, then cost adjustments need to be made, on which there is little evidence, but the impact would be significant. Similarly, adjusting for different rates of return has not been addressed in the evidence. As Afonso noted, a change in density would mean a “redraw.” Changes in expected sales rates would also have an impact on that redraw to ensure a profitable project. But I do not have a “redraw” alternative scenario, or scenarios, on which to assess damages based on a lower density development and with different rates of return, and I cannot reliably calculate what the profit would have been if, say, 51 2-storey townhouses had been built there.

[147] I recognize that I must do the best I can with damages, as both parties submitted to me and is recognized in the jurisprudence: see, e.g., Penvidic Contracting Co. v. International Nickel Co. of Canada, 1975 CanLII 6 (SCC), [1976] 1 S.C.R. 267, at pp. 278-280. If all I had was this approach to damages, I would likely have fixed them in the range of $3M. However, the plaintiff has presented an alternative approach to damages which, in my view, is a more reasonable and reliable approach to calculating damages for the breach of the Brock Street APS, which is to look at the increase in the value of the land on the expected closing date, to which I now turn.

2. Damages based on the value of the land on July 20, 2018

[148] The plaintiff’s other, and more straightforward, approach to damages considered the value of the Brock Street property as undeveloped land on July 20, 2020, which was described as the “anticipated closing date” of the plaintiff’s acquisition. The evidence supporting this approach was contained in a separate report from Vialykh.

[149] I agree that the valuation date of July 20, 2018 is appropriate. The Discussion Points for the Brock Street property contemplated a rezoning process that could take “12-16 months from the date of application – June 2017 - December 2017.” As there is no evidence an application had been submitted before the APS was terminated in November 2016, had the matter gone forward, the timeline for approval would likely extend into 2018. Furthermore, the APS contemplated an outside date for closing of July 31, 2018.

[150] Vialykh’s opinion was that the market value of the property as of July 20, 2018 was $7,600,000. In reaching this conclusion she treated the property as vacant land available for redevelopment for a highest and best use of medium or higher density residential development as proposed in the Weston Report. She compared the property to sales of comparable properties in Durham Region, making adjustments as she deemed appropriate for the size, location, time of sale and other differences between the Brock Street property and the comparators.

[151] Vialykh’s expertise was not challenged, and she was not cross-examined on this approach to valuing the property. Nor did Showcase lead any evidence taking issue with this aspect of Vialykh’s evidence or present any report of its own taking this approach. In my view, Vialykh’s evidence on this approach was credible and persuasive.

[152] The one concern I have with Vialykh’s approach to valuation on this basis is her assumption that the property had a “highest and best use” as a site for development of a 4-storey 50-unit condominium apartment building and 41 townhouse units; in other words, the Weston concept. It is not clear to me, however, how a somewhat reduced development would have affected the value, if at all. Vialykh’s analysis compared the property to other vacant properties suitable for residential development in Whitby and elsewhere in Durham Region, and made adjustments for differences which were not challenged by Showcase.

[153] Kirshenbaum testified that he received an offer to purchase the Brock Street property dated April 17, 2017 for $9,300,000, but he was aware that there was already a caution on title and said he was not able to respond to the offer. As I discuss below dealing with the counterclaim, there was very little evidence about the credibility of this offer, but it is some evidence of the rising value of the property which is not in dispute.

[154] In my view, therefore, it is appropriate to assess damages in an amount that reflects the difference in the price in the Brock Street APS ($4.4M) and the value of the property as of July 20, 2018 ($7.6M), which is $3,200,000.

Hopkins Street damages

[155] I have concluded above that the plaintiff’s claim for breach of the Hopkins Street APS fails. However, had I concluded that 244 had breached the APS, I would have assessed damages at $860,000 as of July 30, 2018.

[156] Hopkins is a simpler analysis. The road allowance issue was resolved and although 244 had sought rezoning and approval for a development of 58 townhouses, following an appeal to the Local Planning Appeal Tribunal a settlement was reached and 52 townhouses were approved in August 2018.

[157] Guetter prepared a concept plan for 18 3-storey townhouses and 34 4-storey units. This was not challenged by the plaintiff, so there are no issues regarding the size and scope of the proposed development.

[158] The two appraisers led evidence as to what a completed project of townhouses would sell for and came to quite different conclusions. Vialykh was of the view that they would sell for $400 per square foot, while Bruchkowsky’s opinion was that the 3-storey units would sell for $330 per square foot and the 4-storey units for $275 per square foot. As with their analyses of the Brock Street property, I had concerns with each approach.

[159] Vialykh relied on sales of nearby existing townhouses, as well as some new projects in other locations in Durham, and she assumed the townhouses to be built would be high-end and would be sold within 6 months. Bruchkowsky was critical of Vialykh’s reliance on nearby resale transactions. But Bruchkowsky himself relied on indexes that included resales to help him make adjustments for properties in very different locations. He also relied on one comparable resale quite close to the Hopkins Street property, which he described as being in a desirable location, although he had stated that the Hopkins Street property was not desirable. In my view, Vialykh’s reference to nearby existing resale properties was helpful and valid, as they reflected value in that neighbourhood.

[160] Once again, Bruchkowsky did not wish to acknowledge that greenfield projects would be valued differently than infill, other than adjusting for location, but I found his location adjustments to be somewhat unreliable given the distance from the subject property. His estimate of $275 per square foot was considerably lower than nearby resales and did not consider the higher quality product that Vialykh considered.

[161] On the other hand, Vialykh’s assumption of selling high-end townhouses seems optimistic as the location is in a transitional area, close to a railway and, apparently, a large bridge that will be built over the railway. It was agreed that the Brock Street property was a more desirable location. Vialykh also did not adequately address the difference arising from HST on the sale of new homes. As with her Brock Street analysis, I find she was overly optimistic on how quickly the units would sell.

[162] Accordingly, as with the Brock Street property, both appraisers had to make many adjustments that undermine the reliability of their conclusions. Having regard to both analyses, I think an appropriate sale value for these townhouses would be approximately $350 per square foot which, again, is between the two competing estimates and is perhaps a little closer to Vialykh’s estimates, which I found more persuasive.

[163] Afonso conducted a similar costing exercise for the proposed Hopkins Street project as he did for the Brock Street property, taking the Weston plan and the revenues estimated by Vialykh to determine the potential profit that WED would have made on the project. He noted that this was a simpler analysis than for the Brock Street property because it did not involve a condominium building or allocations for common amenities and deferred costs. He anticipated an earlier start date and a shorter period of construction, which lowers construction costs.

[164] Afonso calculated total costs of the project to be $37,149,000. Accepting Vialykh’s estimate of sales at $400 per square foot, leading to net revenues of $50,386,462, caused Afonso to conclude that the entire project would have resulted in a profit to WED of $13,237,462. The return on investment would be 35.6%, which is well above what would be necessary to obtain bank financing. Afonso noted that the profit was much higher on the Hopkins Street property than on the Brock Street property due to the cheaper cost of the land per square foot, the construction is simpler and faster and cheaper ($165 per square foot compared to $238 per square foot for the Brock Street property), and the flow of financing is quicker.

[165] As with his estimate for the Brock Street property, Afonso applied assumptions about how quickly the homes would sell and did not consider the cost of some of the features of the townhouses considered by Vialykh. He also assumed that there was no contamination on the land which, if present, would require studies and remediation and which could increase costs by up to $1M.

[166] It is somewhat perilous to recalculate the profits based on changes in assumptions. However, I conclude that the estimated profit would more likely be less than half of the approximately $13M projected. Simply reducing the revenue from $400 to $350 per square foot reduces revenue by approximately $7M. Adding the additional cost of features and amenities considered by Vialykh, construction contingencies and potential environmental remediation expenses would likely reduce the potential profit to approximately $4 or $5M, which results in a return on investment of between 10% and 14%. If on the lower end, the project may not be viable given Afonso’s evidence that a bank would want to see a return of at least 12% before it would extend financing. Moreover, if I had accepted Bruchkowsky’s estimates of the revenue which would be derived from sales, the profit would likely be even lower.

[167] Again, therefore, as with the Brock Street property, I find that calculating damages based on potential profits from redevelopment to be unreliable and uncertain and instead calculate damages based on the Hopkins Street property, undeveloped, as of July 30, 2018. Vialykh calculated this to be $5,060,000, which was not challenged by 244. This supports a damage claim for the Hopkins Street property of $860,000, which is the increase in value from the purchase price in the Hopkins APS of $4.2M. Had I found that 244 had breached the Hopkins Street APS, I would have awarded WED damages in the amount of $860,000 as of July 30, 2018.

The counterclaim

[168] The defendants’ counterclaim arises from the encumbering of title on the two properties by the plaintiff.

[169] Section 132 of the Land Titles Act, R.S.O. 1990, c. L.5, states:

A person who registers a caution without reasonable cause is liable to make to any person who may sustain damage by its registration such compensation as is just, and the compensation shall be deemed to be a debt due from the person who has registered the caution to the person who has sustained damage.

[170] Further, s. 103(4) of the Courts of Justice Act, which deals with CPLs, provides:

A party who registers a certificate under subsection (2) without a reasonable claim to an interest in the land is liable for any damages sustained by any person as a result of its registration.

[171] The burden of proof is on the moving party, in this case the defendants, to demonstrate that the caution and CPLs were registered “without reasonable cause” or “without a reasonable claim to an interest in the land.” In Mormick Investments Inc. v. Khoury, 1985 CarswellOnt 3830, [1985] O.J. No. 1072 (H.C.J.) (“Mormick”), Henry J. commented on these two provisions as follows, at para. 17:

It is implicit in these two provisions that the Legislature has, by creating the right to compensation or damages, intended to provide a remedy to the injured party for what is essentially an abuse of the legal process of registration (which the Court of Appeal in Tersigni v. Fagan described as a process of the court). Whether the registration of the cautions in this case amounts to an abuse of process requires consideration of the surrounding circumstances, and the state of mind of the registering party, through its principal Mr. Kaiser, at the time when the cautions were registered.

[172] Subsequently, in Moon v. Metropolitan Toronto Assn. for Community Living, 1989 CarswellOnt 597, [1989] O.J. No. 1050 (H.C.J.), Carruthers J. summarized the test as follows at para. 21:

I was referred to two decisions which considered the wording of the predecessor to that section, then found in the Judicature Act, R.S.O. 1980, c. 223 and essentially the same. They are: Micro Carpets Ltd. v. De Souza Developments Ltd. (1980), 1980 CanLII 1865 (ON SC), 29 O.R. (2d) 77, 19 C.P.C. 118, 112 D.L.R. (3d) 178 and Ribic v. Weinstein (1982), 1982 CanLII 3170 (ON SC), 26 R.P.R. 247, 140 D.L.R. (3d) 258. The first is a decision of Robins J.A. and the second that of Grange J.A., and both were made when each of them were members of this Court. On the basis of their observations I cannot conclude that the counterclaims should succeed. For my present purposes I refer to that portion of the judgment of Grange J.A., as he then was, found at 267 [D.L.R.] of Ribic. It reads:

Nor can I find that Ribic violated the more stringent test of 'without a reasonable claim to title to or interest in the land' as found in s. 38(4) of the Judicature Act. At the time of obtaining the lis pendens, Lepage was withholding the $10,000 deposit and that alone would justify the action. Moreover, I do not believe the legislature intended that every untenable claim would result in liability to the claimant. I think what the legislature had in mind was 'reasonable' as opposed to 'frivolous' or 'vexatious', or as Robins J. put it in Micro Carpets Ltd. et al. v. DeSouza Developments Ltd. et al. (1980), 1980 CanLII 1865 (ON SC), 29 O.R. (2d) 77 at p. 78, 112 D.L.R. (3d) 178 at p. 180, 'spurious'.

[173] As I have concluded that the plaintiff should succeed in its claim arising from the Brock Street APS, the counterclaim by Showcase necessarily fails. In any event, it is confirmation of Master Abrams’ view at an early stage of this litigation that the plaintiff’s claim was considerably stronger respecting the Brock Street property.

[174] Furthermore, I am not satisfied that Showcase has suffered damage as a result of the caution and CPL on the property.

[175] Kirshenbaum testified that he received an offer to purchase the Brock Street property in April 2017 for $9.3M, but this was not signed back as Kirshenbaum was aware that WED had placed a caution on title to the Brock Street property. There is very little evidence about this offer, which contained a “Schedule A” similar to the APS in this case. Showcase would have continued to bear the costs associated with ownership of the property which it claims as damages, such as mortgage financing, taxes and insurance, for a lengthy period of time after April 2017 even if that offer had been accepted and concluded.

[176] There is no evidence of any other offers on the Brock Street property, or of any efforts by Showcase to sell the property. In fact, Kirshenbaum’s approach was not to “flog” his properties or actively market them. The property has appreciated in value, as Kirshenbaum admitted at trial when he confirmed that he was negotiating an offer to sell the Hopkins Street property for $8M. As the Brock Street property is the more valuable of the two properties, it is likely worth considerably more than $8M today, a point supported by Vialykh who valued the Brock Street property as being worth $7.6M as of July 2018, two and a half years ago.

[177] This leaves the counterclaim by 244 arising from the CPL placed on the Hopkins Street property between May 2017 and January 2018. Although the CPL on Hopkins was ordered removed by Master Abrams, this is not determinative of the issue. As the Court of Appeal observed in G.P.I. Greenfield Pioneer Inc. v. Moore (2002), 2002 CanLII 6832 (ON CA), 58 O.R. (3d) 87, 2002 CarswellOnt 219 (Ont. C.A.), at paras. 23-24, “the role of the court on a motion to discharge a CPL under s. 103(6)(a)(ii) of the CJA is limited to deciding whether there is a triable issue in respect to whether the registrant has a reasonable claim to the interest in the land claimed.” Consequently, “the result of a motion to discharge a certificate of lis pendens is not determinative of the issue of whether the registrant in fact has a reasonable interest in the land claimed.” See also Procopia v. D'Abbondanza, 1969 CanLII 291 (ON CA), 1969 CarswellOnt 952, [1970] 1 O.R. 127 (C.A.); Mormick.

[178] A review of Master Abrams’ reasons confirms that she exercised her discretion in considering a range of factors in deciding that the CPL should be removed on the Hopkins Street property, but not the Brock Street property: see, e.g., 572383 Ontario Inc. v. Dhunna (1987), 24 C.P.C. (2d) 287 (H.C.J.). This does not mean, however, that the plaintiff did not have a “reasonable claim to an interest in the land.” As Henry J. put it in Mormick, at para. 50, “[t]he Legislature did not intend that every unsuccessful claim would result in liability to the claimant. It is not an abuse of process to register a caution just because the plaintiff's case may be criticizable or ‘an uphill battle.’” Rather, the test I must apply is, as Justice Grange stated, “more stringent,” and is whether the plaintiff’s claim to an interest in the land had valid legal or equitable elements, whether it was a claim that a reasonable and prudent person would assert, and whether the encumbrance was placed on the property honestly and in good faith: Mormick, at paras. 48-51.

[179] In my view, the plaintiff did not act unreasonably in claiming an interest in the Hopkins Street property which presented an opportunity for WED to develop an infill project in central Whitby where such opportunities are scarce. WED had entered into an Agreement of Purchase and Sale with 244 to acquire the property and, according to the evidence, was prepared to waive conditions on October 17, 2016 and did not do so because of actions by Kirshenbaum about which it complained in this action. Although ultimately unsuccessful, as I have found above, the plaintiff’s claim had valid legal and equitable elements, was reasonable to assert, and the plaintiff did so honestly and in good faith.

[180] Furthermore, had I concluded otherwise I would not have awarded any damages to 244 arising from the CPL being placed on title as 244 has not proved that it sustained any damages as a result of the CPL.

[181] 244 did receive an offer on the Hopkins Street property in April 2017 for $8.7M and an agreement of purchase and sale was executed. However, like the APS with WED, it was conditional on completion of due diligence, and closing was only to occur following rezoning to be obtained by 244. Kirshenbaum said that he was served with the CPL during the due diligence period, and so he said the deal died. But the purchaser was a numbered company not known to Kirshenbaum, who only dealt with the purchaser’s agent. Nor did Kirshenbaum know the intentions of the potential purchaser or whether it could have obtained financing or even if it had any experience in purchasing and developing properties.

[182] No one was called to confirm the commitment of the purchaser or provide evidence about it. Nor can I give much credence to Kirshenbaum’s very limited evidence about the proposed transaction. The Hopkins Street property has challenges, including the location which is in close proximity to the railway and a mixed commercial area, and may have environmental issues. As Kirshenbaum would have been embarking on a lengthy collaborative arrangement with the purchaser to make the land ready for development, one would have expected more details from him. As a result, I do not have a basis to find that the offer was one which was likely to be completed, and I give it no weight.

[183] Consequently, the damages claimed by 244, whether the loss of the profit on the potential sale negotiated in April 2017 or the additional expenses incurred in continuing to own the property, are not established.

[184] Further, the CPL was removed in January 2018, but Kirshenbaum took no steps to sell the Hopkins Street property. When asked about this, Kirshenbaum said he was still dealing with the Region, that he doesn’t try to “flog” his properties, and that there was no “urgency” in selling it. He has done nothing to mitigate his losses, which is perhaps not surprising as the value of the Hopkins Street property seems to have appreciated significantly such that he has no losses. As noted, at the time of the trial in November 2020, Kirshenbaum acknowledged that there was an offer and draft agreement being “circulated” to purchase the Hopkins Street property for $8M. It appears, therefore, that 244 will end up doing very nicely from its investment in the Hopkins Street property, supporting the plaintiff’s theory that 244 terminated the APS because it realized it could sell the property for much more than it had agreed to with WED.

[185] The counterclaim is therefore dismissed.

Conclusion

[186] It follows that there shall be judgment for the plaintiff against Showcase for breach of the Brock Street APS in the amount of $3,200,000 as of July 20, 2018. WED shall also be awarded pre-judgment interest from that date, and post-judgment interest, in accordance with ss. 128 and 129 of the Courts of Justice Act.

[187] The action against 244 is dismissed, as are the counterclaims by Showcase and 244.

[188] Should the parties be unable to agree on costs, the plaintiff may provide me with brief written submissions within 21 days of the release of these Reasons, and the defendants may respond in similarly brief submissions within 14 days after the delivery of the plaintiff’s submissions.

Paul B. Schabas J

Date: January 19, 2021

WED Investments Limited v. Showcase Woodycrest Inc., 2021 ONSC 237

Case Summary

Introduction

Background Facts

The parties and the properties

The agreements to purchase the properties by the plaintiff

The conditional period

The October 19 meeting

October 20 to November 23 – the termination of the Agreements

Subsequent events

Issues

Are the Agreements of Purchase and Sale enforceable?

The Brock Street Agreement

The Hopkins Street Agreement

The plaintiff’s two approaches to damages

Brock Street damages

1. Damages if the property had been redeveloped

The proposed redevelopment

Revenue from the proposed redevelopment

Costs and potential profit from development

2. Damages based on the value of the land on July 20, 2018

Hopkins Street damages

The counterclaim

Conclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Expert Witnesses

Financial Outcomes

Issues

Statutory Provisions 2

Legal Tests 3

Legislation 2