Court File and Parties
COURT FILE NO.: CV-20-83019
DATE: 2021/06/18
COURT OF ONTARIO, SUPERIOR COURT OF JUSTICE
In the matter of the Partition Act, R.S.O. 1990, c. P.4 as amended
RE: DANTE RUSSO, Applicant
AND:
ELIZABETH ANN BARRETT and ADAM MILLER KELLY PROFESSIONAL CORPORATION, Respondents
BEFORE: Regional Senior Justice Calum MacLeod
COUNSEL: Miriam Vale Peters, for the Applicant Ryan Garrett, for the Respondent Barrett
HEARD: June 17, 2021
Endorsement
[1] The applicant seeks an order enforcing a right of first refusal permitting him to purchase jointly owned property at 626 Tweedsmuir Avenue in Ottawa at the fair market value the property would have had in 2019.
[2] The respondent takes the position that the right of first refusal was never validly exercised and the property should have been sold on the open market. The respondent asks for an order under the Partition Act for immediate sale of the property.
[3] Both parties concede that there must be adjustments to the purchase price due to the carrying costs of the premises in the past two years and that the rent and other income must be accounted for.
[4] At the conclusion of argument I reserved my decision on the merits as to whether the applicant was or was not entitled to purchase a half interest in the property in 2019 and at what price, but I am of the view that damages would be an adequate remedy if I conclude that the respondent was in breach of contract.
[5] Accordingly, I am making an order for the immediate sale of the property with the net proceeds of sale to be held in escrow pending the release of this decision and any subsequent accounting exercise.
[6] If the applicant is successful, the measure of damages would appear to be measured by one of two scenarios. His loss may be the difference between what he would have paid in 2019 and what he must pay now to acquire the respondent’s interest in the property. Alternatively, his damages would be the increase in value between 2019 and 2021 less what he should have paid in 2019. In either case, damages can be readily calculated and on the evidence before me would be entirely appropriate.
[7] The evidence suggests that the highest and best use will be the sale of the property for redevelopment. Under these circumstances, I see no reason why the applicant should be precluded from offering to purchase the property provided he pays the current fair market value, but if he does not wish to do so or cannot do so then it should be marketed and sold as soon as possible.
[8] I encourage counsel and the parties to agree on a listing price, listing agent, lawyer to handle the sale and other details, but if they are not able to do so then the court will give further direction. If necessary, I may direct that the sale take place under the supervision of a Master or Associate Judge.[^1]
[9] In conclusion, the property is to be sold for current fair market value with the exact mechanism of sale to be determined by agreement or further order. Neither of the parties will be precluded from submitting an offer to purchase should they wish to do so.
[10] The net proceeds of sale will be frozen pending further order or agreement and subject to any award of damages I may award in this proceeding. Subject as well to any necessary accounting, to be resolved by agreement or by reference. I may be spoken to for further terms and to settle the form of the order.
Mr. Justice C. MacLeod
Date: June 18, 2021
COURT FILE NO.: CV-20-83019
DATE: 2021/06/18
ONTARIO SUPERIOR COURT OF JUSTICE
In the matter of the Partition Act, R.S.O. 1990, c. P.4 as amended
RE: DANTE RUSSO, Applicant
AND:
ELIZABETH ANN BARRETT and ADAM MILLER KELLY PROFESSIONAL CORPORATION, Respondents
BEFORE: Regional Senior Justice Calum MacLeod
COUNSEL: Miriam Vale Peters, for the Applicant Ryan Garrett, for the Respondent Barrett
ENDORSEMENT
Regional Senior Justice C. MacLeod
Released: June 18, 2021
[^1]: The title of Case Management Master will change to Associate Judge on proclamation of certain amendments to the Courts of Justice Act.