Court File and Parties

COURT FILE NO.: CV-22-88637 DATE: 2022/05/06 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: City Core Consortia Limited, Plaintiff AND 2549386 Ontario Inc., Defendant

BEFORE: Madam Justice Robyn M. Ryan Bell

COUNSEL: Stéphane Hutt and Maxime Desforges, for the Plaintiff/Moving Party Stephen Schwartz, for the Defendant/Responding Party

HEARD: April 13, 2022

Endorsement

Overview

[1] City Core Consortia Limited moves for an order granting it leave to register a certificate of pending litigation (“CPL”) against 850 Champlain Street, Ottawa, having the legal description “Blocks 1, 5, 6, 8 and 9, Plan 4M-1682, City of Ottawa [1] (the “Property”). 2549386 Ontario Inc. (“254 Ontario”) is the current owner of the Property.

[2] In its statement of claim, City Core claims:

(a) specific performance of the agreement of purchase and sale between City Core and 254 Ontario with respect to the Property;

(b) in the alternative, the sum of $42,000,000 for breach of contract and negligent misrepresentation;

(c) an order that City Core has an interest in the Property;

(d) an order finding 254 Ontario in breach of contract; and

(e) an order for a CPL for the Property.

[3] City Core claims to have a reasonable claim to an interest in the Property based on the agreement of purchase and sale and contends that the equities favour the issuance of a CPL.

[4] 254 Ontario argues that there is no triable issue with respect to City Core’s claim to an interest in the Property which would support the granting of a CPL because the agreement of purchase and sale was properly terminated when City Core failed to deliver the requisite deposit. In the alternative, 254 Ontario says that the equities do not support the issuance of a CPL.

[5] For the following reasons, I dismiss City Core’s motion for a CPL.

Facts

The Original Agreement of Purchase and Sale (“Original APS”)

[6] On July 28, 2020, City Core and 254 Ontario entered into the Original APS for the Property. Pursuant to the Original APS, City Core agreed to deliver to 254 Ontario within 48 hours of City Core waiving the “Buyer’s Conditions” a further deposit of $1,000,000. [2]

[7] Section 23 of the Original APS provides:

The Buyer agrees not to register this Agreement or notice of this Agreement or a caution, certificate of pending litigation or any other document providing evidence of the Agreement against title to the Property, subject to the Seller performing its obligations as per this Agreement. However, should the Buyer be in default of its obligations under this Section, the Seller may (as agent and attorney of the Buyer) cause the removal of such notice of this Agreement, caution, certificate of pending litigation or other document providing evidence of this Agreement or any assignment of this Agreement from title to the Property.

[8] Section 26 of the Original APS provides that the agreement, including any attached schedule, “shall constitute the entire Agreement between the Buyer and Seller. There is no representation, warranty, collateral agreement or condition, which affects this Agreement other than as expressed herein.”

[9] Also relevant to this dispute is paragraph 6(d) of Schedule “A” to the Original APS. Paragraph 6(d) provides that City Core would waive the due diligence conditions (as defined) if it was satisfied with the form of the Joint Use and Maintenance Agreement (the “JUMA”) and the Subdivision Agreement relating to the Property. The JUMA and Subdivision Agreement are defined as agreements “to be entered into.” [3]

[10] Pursuant to section 10 of the Original APS, it was 254 Ontario’s responsibility to register the Plan of Subdivision and the Subdivision Agreement on title to close the transaction. Section 12 of Schedule “A” to the Original APS provides that 254 Ontario was required to fulfill the “Subdivision Condition” in order to close the transaction.

[11] Pursuant to section 11 of Schedule “A”, 254 Ontario was required to keep City Core “regularly informed concerning [254 Ontario’s] progress in fulfilling the Subdivision Condition.”

[12] The Original APS also includes a “time is of the essence” clause. [4]

The Third Amendment

[13] Between July 2020 and January 2021, the Original APS was amended and reinstated four times (collectively with the Original APS, the “Purchase Agreement”).

[14] On September 30, 2020, 254 Ontario’s broker emailed City Core to provide a status report as required under section 11 of Schedule “A” to the Original APS. It was clear at that time that the Subdivision Agreement and the JUMA had not been finalized.

[15] Approximately three months after signing the Purchase Agreement, City Core contacted 254 Ontario’s broker in an attempt to negotiate a lower purchase price, a deferral of the cash portion of the purchase price in the form of a vendor takeback mortgage, a reduction in the deposit amounts, and deferred payment of the deposits. [5]

[16] On October 23, 2020, in response to correspondence from City Core, 254 Ontario’s broker provided a “brief update … with respect to the status of the lands”:

• Revera anticipates the Plan of Subdivision to be completed imminently. They are working through one final administrative point, a final agreement is expected in days, following which the City will finalize the registration process;
• Current deal timing must be preserved. $1M non-refundable deposit on Oct. 28. Closing will occur on the later of 30 days from [due diligence] waiver and 10 business days from Subdivision Condition being satisfied (current projection would be early December).
• VTB at 15%...
• Balance of cash payable on closing: $18.7 million.

[17] This email forms the basis of City Core’s claim for misrepresentation. City Core alleges that “[b]ased upon these representations, City Core provided the Waiver and Third Amending Agreement.” [6]

[18] On October 28, 2020, City Core and 254 Ontario executed the Third Amendment. Pursuant to the Third Agreement, City Core irrevocably waived the conditions in section 6 of Schedule “A” of the Purchase Agreement, thereby confirming that City Core was satisfied with the draft forms of the JUMA and the Subdivision Agreement. In addition, the purchase price was reduced to $15,500,000, the amount of the second deposit was reduced by $250,000 in the aggregate, and the payment of the remaining deposit was deferred, with $100,000 payable on December 15, 2020, and $650,000 payable on January 15, 2021 (the “third deposit”).

[19] On December 4, 2020, 254 Ontario’s broker advised City Core that the final form of the JUMA was settled with the City and provided City Core with a copy of the settled agreement. The broker also advised that while registration of the Subdivision Agreement was expected prior to the end of 2020, registration might occur in early 2021.

The Fourth Amendment

[20] On January 20, 2021, the parties entered into a Fourth Amendment to the Purchase Agreement. The Subdivision Agreement had not been registered when the parties entered into the Fourth Amendment.

[21] Pursuant to the Fourth Amendment, if the Plan of Subdivision was not registered by May 31, 2021, the third deposit would be returned in full to City Core and the Purchase Agreement would be terminated.

[22] Paragraph 3(e) of the Fourth Amendment provides:

The Buyer hereby confirms and agrees that as of the date of this Agreement, the Buyer is satisfied with the Seller’s reporting obligations pursuant to Section 11 of Schedule “A” of the Original Purchase Agreement, and the Buyer hereby waives any claims that it may have, as of the date of this Agreement, in connection with such reporting obligations of the Seller.

[23] City Core did not allege there was any misrepresentation by 254 Ontario prior to the commencement of this litigation.

Termination of the Purchase Agreement

[24] Under the terms of the Fourth Agreement, the third deposit was payable on January 29, 2021. City Core did not pay the third deposit on that date; instead, it requested an extension of time. 254 Ontario agreed to extend the deadline for payment of the third deposit to February 2, 2021.

[25] When City Core failed to pay the third deposit on February 2, 2021, 254 Ontario terminated the Purchase Agreement. On February 2, counsel for 254 Ontario advised counsel for City Core:

This is to confirm that your client has failed or refused to deliver the further $650,000 deposit by 5:00 today (local time), contrary to the provisions of section 3(a) of the Fourth Amendment to the Agreement of Purchase and Sale between our respective clients dated as of January 2021 (the “Fourth Amendment”).

As a result, your client is in breach of the provisions of the Purchase Agreement (as that term is defined in the Fourth Amendment) and same is hereby terminated effective immediately.

Our client will be retaining all deposits paid to, or on its behalf to date, as liquidated damages without prejudice to any other remedies it may have at law or in equity or pursuant to the terms of the Purchase Agreement.

New purchaser agrees to purchase the Property

[26] City Core did not respond to 254 Ontario’s termination of the Purchase Agreement.

[27] In August 2021, 254 Ontario approached City Core with a “Fifth Amending and Reinstatement Agreement.” 254 Ontario also provided City Core with the registered Subdivision Agreement. City Core did not respond to 254 Ontario.

[28] In September 2021, 254 Ontario listed the Property for sale. On September 27, 2021, 254 Ontario agreed to sell the Property to a new purchaser for $15,500,000, the same purchase price as set out in the Third Amendment.

[29] On September 28, City Core registered a caution on title to the Property.

[30] On December 23, 2021, City Core advised 254 Ontario of its intention to seek a CPL. Two months later, on February 22, 2022, City Core commenced its action against 254 Ontario.

The Test on a Motion for a CPL

[31] The court’s jurisdiction to grant leave to issue a CPL is set out in s. 103 of the Courts of Justice Act, R.S.O. 1990, c. C.43. [7] The factors the court must consider on a CPL were summarized by Master Glustein, as he then was, in Perruzza v. Spatone, 2010 ONSC 841, [8] at para. 20:

(i) The test on a motion for leave to issue a CPL made on notice to the defendants is the same as the test on a motion to discharge a CPL (Homebuilder Inc. v. Man-Sonic Industries Inc., 1987 CarswellOnt 499 (S.C.-Mast.) ("Homebuilder") at para. 1);

(ii) The threshold in respect of the "interest in land" issue in a motion respecting a CPL (as that factor is set out at section 103(6) of the Courts of Justice Act, R.S.O. 1990, c. C.43) is whether there is a triable issue as to such interest, not whether the plaintiff will likely succeed (1152939 Ontario Ltd. v. 2055835 Ontario Ltd., 2007 CarswellOnt 756 (S.C.J.), as per van Rensburg J., citing Transmaris Farms Ltd. v. Sieber, [1999] O.J. No. 300 (Gen. Div. - Comm. List) at para. 62);

(iii) The onus is on the party opposing the CPL to demonstrate that there is no triable issue in respect to whether the party seeking the CPL has "a reasonable claim to the interest in the land claimed" (G.P.I. Greenfield Pioneer Inc. v. Moore, 2002 CarswellOnt. 219 (C.A.) at para. 20);

(iv) Factors the court can consider on a motion to discharge a CPL include (i) whether the plaintiff is a shell corporation, (ii) whether the land is unique, (iii) the intent of the parties in acquiring the land, (iv) whether there is an alternative claim for damages, (v) the ease or difficulty in calculating damages, (vi) whether damages would be a satisfactory remedy, (vii) the presence or absence of a willing purchaser, and (viii) the harm to each party if the CPL is or is not removed with or without security (572383 Ontario Inc. v. Dhunna, 1987 CarswellOnt 551 (S.C.-Mast.) at paras. 10-18); and

(v) The governing test is that the court must exercise its discretion in equity and look at all relevant matters between the parties in determining whether a CPL should be granted or vacated (931473 Ontario Ltd. v. Coldwell Banker Canada Inc., 1991 CarswellOnt 460 (Gen. Div.); Clock Investments Ltd. v. Hardwood Estates Ltd., 1977 CarswellOnt 1026 (Div. Ct.) at para. 9).

[32] The court must first determine whether there is a triable issue with respect to the plaintiff’s claim to an interest in the land which would support the granting of a CPL. Courts have described the triable issue threshold as whether the remedy sought – in this case, specific performance – is a possible remedy at trial or one which may be available to the plaintiff at trial: Pauwa North America Development Group Co. Ltd. v. Skyline Port McNicoll (Development) Inc., 2021 ONSC 18, [9] at para. 37.

[33] It is not the court’s role to determine whether the plaintiff’s claim will likely succeed at trial, but whether a triable issue exists with respect to a reasonable claim to an interest in land: HarbourEdge Mortgage Investment Corp. v. Timbercreek Mortgage Investment Corp. (Trustee of), [2016] O.J. No. 265, [10] at para. 56. The onus is on the party opposing the CPL to show that there is no triable issue: Boal v. International Capital Management Inc., [2018] O.J. No. 1954, [11] at para. 64.

[34] In determining if there is a triable issue, the evidentiary bar is low: Saggi v. Grillone, 2020 ONSC 4140, [12] at paras. 45 and 62; Pauwa, at para. 38. The court is not to assess credibility or decide disputed issues of fact and credibility: Huntjens v. Obradovic, 2019 ONSC 4343; [13] Pauwa, at para. 38.

[35] If the triable issue as to a reasonable interest in land threshold is met, the court must then consider whether it is just and equitable, based on all of the circumstances, to exercise its discretion to grant a CPL by considering and balancing the equities, including the so-called Dhunna factors: Sun Rise Elephant Property Investment Corporation v. Luu, 2018 ONSC 5247, at para. 12; Tribecca Development Corp. v. Danieli, 2015 ONSC 7638, [14] Pauwa, at para. 39.

[36] Having considered all the relevant factors and circumstances of this case, I decline to exercise my discretion to grant leave to issue a CPL. I am satisfied that there is no triable issue with respect to City Core’s claim to an interest in the Property. I have also concluded that it would not be just and equitable in all the circumstances to grant a CPL.

No triable issue

[37] City Core’s claim against 250 Ontario is based on breach of contract and misrepresentation.

[38] Under the terms of the Purchase Agreement, there is no doubt that 254 Ontario was entitled to terminate the Purchase Agreement when City Core failed to pay the third deposit. Section 3(a) of the Fourth Agreement required City Core to pay the third deposit on or before 5:00 p.m. on January 29, 2021. The parties then agreed to extend the time for delivery of the third deposit until 5:00 p.m. on February 2, 2021, “with all other terms and conditions to remain the same and time to continue to be of the essence.” When City Core failed to deliver the third deposit on February 2, 2021 as required, 254 Ontario gave notice that it was terminating the Purchase Agreement. It is not disputed that City Core did not respond to 254 Ontario’s termination of the Purchase Agreement.

[39] In 1473587 Ontario Inc. v. Jackson, [15] the purchaser, through inadvertence, failed to pay a deposit by the deadline set out in an agreement of purchase and sale and sought to remedy the default two days later. The agreement contained a “time is of the essence” provision. Rutherford J. found that this was sufficient to allow the vendor to terminate the agreement and relied on the Supreme Court of Canada’s decision in Sail Labrador Ltd. v. Challenge One (The), [1999] 1 S.C.R. 265, [16] where the Supreme Court stated at p. 289,

Courts will generally give effect to the parties’ intentions when upholding any clear contractual provisions which provide that the breach of a certain term, no matter how slight, will justify rescission of the entire contract by the non-offending party.

[40] Emphasizing that certainty and precision are important in language used in documents of business and commerce, [17] Rutherford J. wrote at para. 20:

The holding of parties to their bargain in this respect perhaps met its zenith in Union Eagle Ltd. v. Golden Achievement Ltd., [1997] A.C. 514, [1997] 2 All E.R. 215 (P.C.) in which completion of the purchase of a $4.2 million flat was to take place on or before September 30, 1991 and before 5:00 p.m. that day. The purchaser’s agent arrived at 5:10 p.m. and the vendor rescinded the contract at 5:11 p.m.

[Lord Hoffman] concluded his opinion with this advice at para. 18, which I think [is] entirely apposite to the case before me:

The fact is that the purchaser was late. Any suggestion that relief can be obtained on the ground that he was only slightly late is bound to lead to arguments over how late is too late, which can be resolved only by litigation. For five years the vendor has not known whether he is entitled to resell the flat or not. It has been sterilized by a caution pending a final decision in this case. In his dissenting judgment, Godfrey J.A. said that the case “cries out for the intervention of equity.” Their Lordships think that, on the contrary, it shows the need for a firm restatement of the principle that in cases of rescission of an ordinary contract of sale of land for failure to comply with an essential condition as to time, equity will not intervene.

[41] In this case, the parties included a “time is of the essence” clause in the Original APS. The Fourth Agreement confirmed at section 4 that “[i]n all other respects, the terms and conditions of the Purchase Agreement shall remain the same and time shall continue to be of the essence.” In agreeing to extend the time for delivery of the third deposit until 5:00 p.m. on February 2, 2021, the parties again agreed that all other terms and conditions would remain the same and that time would continue to be of the essence.

[42] City Core’s non-compliance with the agreement in this case was far more significant than that in 1473587 Ontario or Union Eagle. City Core did not attempt to pay the third deposit at all and did not contact or respond in any way to 254 Ontario after receiving notice of termination of the Purchase Agreement.

[43] In my view, this case falls squarely within the principle enunciated by Lord Hoffman in Union Eagle, that in cases of rescission of an ordinary contract of sale of land for failure to comply with an essential condition as to time, equity will not intervene. The parties should be held to the bargain they have struck in order to ensure certainty between the parties: Xu v. 2412367 Ontario Limited, 2017 ONSC 4445, [18] at paras. 43-45. Given the clear wording of the Purchase Agreement, 254 Ontario was entitled to terminate the agreement when City Core failed to deliver the third deposit by 5:00 p.m. on February 2, 2021.

[44] City Core asserts that it did not pay the third deposit and did not close the purchase transaction because the Plan of Subdivision and the JUMA had not been delivered. [19] City Core alleges that its waiver of conditions was executed based on a misrepresentation by 254 Ontario’s broker that the Plan of Subdivision “would be completed imminently.” [20]

[45] The terms of the parties’ agreement required that,

• City Core be satisfied with the form of the JUMA and the Subdivision Agreement;
• 254 Ontario register the Plan of Subdivision and the Subdivision Agreement as a condition of closing;
• 254 Ontario keep City Core “regularly informed” concerning 254’s progress in fulfilling the Subdivision Condition;
• the third deposit be paid on February 2, 2021 by 5:00 p.m.;
• time would be of the essence.

[46] By executing the Third Amendment on October 28, 2022, City Core waived the conditions in section 6 of Schedule “A” of the Purchase Agreement, and thereby confirmed that it was satisfied with the draft forms of the JUMA and the Subdivision Agreement. The Third Amendment was executed five days after 254 Ontario’s broker provided his update regarding the status of the Property and his forecast of the City’s timeline for approvals.

[47] On December 4, 2020, 254 Ontario’s broker provided a further update regarding registration.

[48] On January 20, 2021, the parties entered into the Fourth Amendment. As of that date, the Subdivision Agreement had not been registered. As a result of the Fourth Amendment, the parties’ bargain also included:

• a term that if the Plan of Subdivision was not registered by May 31, 2021, the third deposit would be returned in full to City Core; and
• City Core’s confirmation that it was satisfied with 254 Ontario’s reporting obligations and an express waiver of claims in connection with such reporting obligations.

[49] Accordingly, there was no risk to City Core in paying the third deposit. City Core’s waiver of any claims relating to 254 Ontario’s reporting obligations was broad and unambiguous; on its face, the waiver would include a claim for alleged misrepresentation arising from the broker’s email of October 23, 2020. In any event, the time estimates provided in the October 23 email were updated in the broker’s correspondence of December 4 and both parties were aware that the Subdivision Agreement had not been registered when the Fourth Agreement was executed. Simply put, the payment of the third deposit had nothing to do with the alleged misrepresentation of October 23.

[50] The making of statements of forecasts about the future cannot sustain an action in negligent misrepresentation: Deep v. MD Management, [21] at para. 13. Further, actual reliance is a necessary element of a claim for negligent misrepresentation, without which the plaintiff cannot succeed: Hercules Management v. Ernst & Young, [1997] 2 S.C.R. 165, [22] at p. 184. There is no allegation that the Purchase Agreement, including the Third and Fourth Amendments, is unclear. There is no dispute that the third deposit was not paid. There is no dispute that City Core did not respond to 254 Ontario’s notice terminating the Purchase Agreement. And there is no dispute that the misrepresentation claim was not raised until this litigation was commenced.

[51] There is also no triable issue as to a reasonable interest in land with respect to 254 Ontario’s retention of the deposit monies that were paid. J & P Goldfluss Ltd. v. 306569 Ontario Ltd., [1977] O.J. No. 1438, [23] where the court found that the payment of the deposit entitled the plaintiff to a CPL, does not assist City Core. In J & P Goldfluss, the claim was for the return of the deposit paid and not, as in this case, a claim for specific performance. In this case, pursuant to section 3(a) of the Fourth Agreement, City Core specifically agreed that the total deposits paid of $350,000 “are deemed to be earned and non-refundable.”

[52] I repeat: the parties should be held to the bargain they struck. On the clear terms of the Purchase Agreement, 254 was entitled to terminate the agreement when the third deposit was not paid by 5:00 p.m. on February 2, 2021. There is no triable issue as to a reasonable interest in land.

The equities favour 254 Ontario

[53] In any event, I have also concluded that it would not be just and equitable based on all the circumstances to grant the CPL. The equities in this case strongly favour 254 Ontario.

[54] City Core asserts that the Property is unique based on its location and that “it fit directly into City Core’s investment plan.” The Property is located close to the Transit way and in close proximity to a large shopping centre. City Core’s evidence is that it intended to develop and use the Property as a “Diplomatic Headquarters” to provide a hub for residents and offices for diplomats and foreign embassies.

[55] Taking the evidence at its highest, this factor is neutral. The Property is vacant land. This alone distinguishes the facts before me from those before the court in Terracap Investments v. 2811 Development Corporation, 2010 ONSC 2528 [24] on which City Core relies. In Terracap Investments, under the terms of the agreement of purchase and sale, the plaintiff would acquire newly constructed buildings with existing retail tenants. That is not the case here. While a property does not lose its unique character simply because it was purchased as an investment, [25] there is scant evidence before me on which to conclude that the Property is capable of being found to be sufficiently unique to justify the remedy of specific performance: John E. Dodge Holdings Ltd. v. 805062 Ontario Ltd., [26] at paras. 38-40 and 43-44.

[56] The Purchase Agreement contains an entire agreement clause. In weighing the equities, this factor favours 254 Ontario.

[57] The Purchase Agreement also contains a provision prohibiting registration of a CPL. As to whether such a provision should be enforced, I agree with Himel J.’s summary in Chiu v. Pacific Mall Developments Inc., 1998 CarswellOnt 3035 (O.C.J. Gen. Div.), [27] at para. 35:

The conclusion I reach from the case law is, if the provisions of an Agreement of Purchase and Sale are clearly worded and prohibit the registration of a certificate of pending litigation, the court will give effect to such a clause even if it can be established that the vendor was in breach of the agreement or that the agreement is at an end. In my view, paragraph 20 of Schedule A of the Agreement of Purchase and Sale is clear. There being no ambiguity, the contra proferentem rule does not apply. The clause prohibiting the registration of a certificate of pending litigation was part of the Agreement of Purchase and Sale and must be given effect. [citations omitted.]

[58] City Core has referred me to 1357202 Ontario Ltd. v. 1326046 Ontario Limited, [28] McGrath v. B.G. Schickedanz Homes Inc., [2000] O.J. No. 5363, [29] and Ma v. Ideal Developments Inc., 2022 ONSC 963 [30] where courts have refused to enforce non-registration clauses. City Core argues that a party who chooses to terminate the agreement cannot then rely on a non-registration clause.

[59] I disagree. An agreement not to register a CPL is an important factor to consider in the analysis: Ma, at para. 60. The court is required to consider all of the relevant matters between the parties and make a determination in equity as to whether or not a CPL should issue. In this case, it is clear that 254 Ontario was entitled to terminate the Purchase Agreement. The non-registration clause is clear. This factor favours 254 Ontario.

[60] I have also considered the factors of delay and prejudice. City Core did not respond to the notice of termination. City Core did not respond to 254 Ontario’s overture in August 2021 when 254 Ontario approached City Core with a Fifth Amending and Reinstatement Agreement. City Core did not register a caution on title to the Property until September 28, 2021, and only after 254 Ontario had entered into an agreement of purchase and sale with a new purchaser. City Core did not commence this action until February 2022. It has not acted in a timely fashion in seeking equitable relief.

[61] In exercising its discretion, the court must be mindful of the purpose and impact of granting a CPL:

Once registered, the CPL prevents a subsequent purchaser from asserting the defence of bona fide purchaser for value without notice. It has the same general effect on a subsequent encumbrancer. This has profound consequences for the titleholder; the CPL effectively acts like an injunction because virtually no one will complete a purchase of the property with an outstanding unresolved claim looming. [31]

[62] 254 Ontario has a firm agreement of purchase and sale with a new purchaser. The registration of a CPL on the Property would prevent the closing of this new agreement.

[63] City Core has claimed damages as an alternative remedy. There is no evidence before me to suggest that damages would be difficult to calculate in this case and in my view, damages would be a satisfactory remedy.

[64] Having regard to all of these factors, including the clear and unambiguous terms of the Purchase Agreement, I conclude that it would not be just and equitable based on all the circumstances to grant the CPL.

Disposition

[65] Accordingly, City Core’s motion for a CPL is dismissed.

[66] In the event the parties are unable to agree on costs of the motion, they may make written submissions limited to a maximum of three pages. 254 Ontario shall deliver its costs submissions by May 19, 2022. City Core shall deliver its responding costs submissions by June 2, 2022. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.

Madam Justice Robyn M. Ryan Bell Date: May 6, 2022

Footnotes

[1] Previously, “a portion of PINs 03940-0159 (LT), 03940-0161 (LT), and 03940-0164 (LT) described as blocks 1, 5, 6, 8 and 9 as per the draft Plan of Subdivision.”

[2] Original APS, section 1(b).

[3] Original APS, Schedule “A”, section 9.

[4] Original APS, section 19.

[5] Affidavit of Josh Daniels, paras. 30-38.

[6] Moving Party’s factum, para. 9.

[7] R.S.O. 1990, c. C.43.

[8] 2010 ONSC 841.

[9] 2021 ONSC 18, citing Sun Rise Elephant Property Investment Corporation v. Luu, 2018 ONSC 5247, at paras. 10-11.

[10] [2016] O.J. No. 265.

[11] [2018] O.J. No. 1954.

[12] 2020 ONSC 4140.

[13] 2019 ONSC 4343.

[14] 2015 ONSC 7638.

[15], [2005] O.J. No. 710 (S.C.J.), aff’d.

[16] 1 S.C.R. 265.

[17] 1473587 Ontario, at para. 18.

[18] 2017 ONSC 4445.

[19] 254 Ontario provided the JUMA, as settled, in December 2020. The registered Subdivision Agreement was delivered in August 2021.

[20] City Core’s factum, at para. 33.

[21].

[22] [1977] 2 S.C.R. 165.

[23] [1977] O.J. No. 1438.

[24] 2010 ONSC 2528.

[25] Terracap Investments, at para. 56.

[26] (2003), 63 O.R. (3d) 304 (C.A.).

[27] 1998 CarswellOnt 3035 (O.C.J. Gen. Div.).

[28].

[29] 2000 O.J. No. 5363.

[30] 2022 ONSC 963.

[31] Pauwa, at para. 40.