SUPERIOR COURT OF JUSTICE - ONTARIO

DATE: 20220728

COURT FILE NO.: CV-21-48

RE: Linda Jones and Philip Jones, Applicants

AND:

Elwood Andrew Quinn, The Bank of Nova Scotia, Respondents

COURT FILE NO.: CV-21-68

RE: Elwood Andrew Quinn, Applicant

AND:

Linda Frances Jones, Respondent

COURT FILE NO.: CV-21-86

RE: Elwood Andrew Quinn, Applicant

AND:

Linda Frances Jones, Respondent

BEFORE: Justice V. Christie

COUNSEL: Jason A. Schmidt, Counsel for Linda Jones and Philip Jones

Erik Savas, Counsel for Elwood Andrew Quinn

No appearance from The Bank of Nova Scotia

HEARD: June 2, 3, and 7, 2022

RULING ON APPLICATIONS

Overview

[1] Three applications were heard simultaneously – CV-21-48, CV-21-68, and CV-21-86. For the sake of simplicity, where there is reference to the Applicants, this will refer to Linda and / or Philip Jones. Where there is reference to the Respondent, this will be reference to Elwood Quinn.

[2] All of the applications are related to the ownership and possession of a property municipally known as 143 Concession Road 14 East in Trent Hills, Ontario, which is a 100-acre property that consists of farmland, environmentally sensitive and protected areas, and residential land. As a broad overview, Linda Jones owned this property since 2006. In 2017, Ms. Jones transferred ownership of the property to Elwood Quinn, with the agreement between the parties set out in an Agreement of Private Purchase and Sale (“APPS”), which included a “rental agreement” and “buyback provision”. The agreement allowed Linda Jones to get some much-needed money, and allowed her to stay at the property rent free. She would only pay rent if and when she triggered the buyback provision, which had a stated time-limit of 8 years, or by mutual consent after the time expired. Linda Jones has continued to live at the property despite the transfer of ownership.

[3] According to Ms. Jones and her son, Philip Jones, they wish to take ownership of the property back, but their efforts have been thwarted by Hugh Franklin, Elwood Quinn’s Power of Attorney and son-in-law. According to Elwood Quinn, Ms. Jones has never had any real intention to buy back the property; rather she pretends to be able to buy the property back to avoid eviction as a result of numerous breaches of their rental agreement, and wants to stay on the property, rent free, for as long as possible, because she does not have the funds to buy it back. According to Elwood Quinn, whatever right or entitlement Linda Jones had to buy the property back, has been forfeited by her repeated failure to actually follow through on the re-purchase. Finally, Elwood Quinn argued that even if this Court were convinced that Ms. Jones should be accorded one further time-limited attempt to purchase the property, that is not sufficient reason to delay her eviction as these are separate issues.

[4] While the factual overlap in these applications was obvious, the relief being sought on each application is distinct and can be summarized as follows:

a. CV-21-48 – On April 28, 2021, Linda and Philip Jones issued a Notice of Application, with Elwood Quinn and The Bank of Nova Scotia as the Respondents. The relief sought was to complete the transfer of the property to them pursuant to the buyback provisions of the APPS, and specifically:

i. An Order for a CPL on the property;

ii. An interim injunction preventing Elwood Quinn from damaging, altering, and/or taking any action to diminish the value or materially alter the property pending this matter;

iii. A declaration that Elwood Quinn is in breach of the buyback provisions of the APPS dated February 25, 2017;

iv. A declaration that Elwood Quinn is holding the property in trust for Linda Jones by way of a resulting and/or constructive trust;

v. A mandatory injunction requiring Elwood Quinn to transfer the property to Linda and Philip Jones in accordance with the buyback provisions of the APPS dated February 25, 2017; and

vi. Costs of the application on a substantial indemnity basis.

b. CV-21-68 – On June 1, 2021, Elwood Quinn issued an application requesting an Order rescinding the buyback provision of the APPS dated February 25, 2017, and costs on a substantial indemnity basis.

c. CV-21-86 – On August 15, 2021, Elwood Quinn made an application for:

i. An Order declaring that a commercial tenancy was created by the parties by the execution of the APPS dated February 25^th, 2017, the terms of which are set out in the rental agreement provision found in Schedule A therein;

ii. An Order declaring that Linda Jones breached the terms of the rental agreement;

iii. An Order declaring that the rental agreement is terminated;

iv. An Order granting leave to issue a Writ of Possession in relation to the property;

v. An Order that Linda Jones shall immediately cease and desist use of the bunkhouse for any purpose, all commercial activities on the property, subletting any portion of the property, using any portion of the property for residential purposes, or altering the property;

vi. An Order that Linda Jones shall immediately remove any and all livestock from the property; and

vii. Costs on a substantial indemnity basis.

Facts

[5] An in-depth review of the facts is required to provide the proper context.

[6] Elwood Quinn is, and has been, a resident of the province of Quebec.

[7] Hugh Franklin is Elwood Quinn’s “Mandatary and Specific Power of Attorney” and son-in-law.

[8] Linda and Philip Jones are mother and son.

[9] Wholearth Farmstudio is a business operated by Linda Jones and Philip Jones.

[10] Linda Jones has lived at the subject property, 143 Concession Road 14 East, Trent Hills, Ontario, legally described as CON 13 PT LOT 23, Percy Township, Municipality of Trent Hills, Northumberland County, since April 2004. The property consists of approximately 100 acres of farmland. On the land, there is a farmhouse that was built in or about 1860, a barn and a shed from approximately the same time, a henhouse, and a bunkie.

[11] On or about March 17, 2006, the subject property was transferred from Linda Jones and Philip Jones to Linda Jones. Ms. Jones purchased the property from her now late father.

[12] From 2004 until the present, Linda Jones has lived at the property. She has always raised animals and harvested hay at the property with the assistance of neighbours. She has always used the full property.

[13] From 2004, for many years, Ms. Jones bred and raised Shropshire sheep at the property. In 2012, the Canadian Food Inspection Agency destroyed her flock due to a sheep testing positive for scrapie in Alberta in 2010. Ms. Jones spent six years defending herself against charges related to this matter, which charges were eventually dismissed in 2016. As a result of this, Linda Jones began experiencing serious financial troubles.

[14] As a result of her activities related to raising sheep, she had met Elwood Quinn in or about 2009, as at the time he was the Chair of Heritage Breed Canada, an organization with which she was volunteering. When he became aware of her financial difficulties, Mr. Quinn offered to assist her by providing financing in exchange for a mortgage against the property.

[15] During 2016, Elwood Quinn worked with Michael Smele from Verico the Mortgage Station to arrange a mortgage with Olympia Trust. Also during that time, a friend of Linda Jones, John Filion, was in communication with the Bank of Nova Scotia to keep them from foreclosing on the property. For example, on April 28, 2016, John Filion sent an email to the Bank of Nova Scotia, stating in part as follows:

In response to your most recent e-mail, I can tell you that a new mortgage from an outside lender is ready to go- except for a small glitch involving a third party who has been difficult to contact. I am working to resolve this in the most expeditious way possible but cannot provide a firm date because I don't have one.

If that information is not satisfactory, then I will be glad to meet with the senior vice president by Himself or with Andrew Chomenky, who was previously on this file and with whom I already shared some information. Because the information is highly personal, I would like to involve as few people as possible.

Hopefully you will simply accept my assurance that a resolution is at hand and any action by the bank will likely cause the lender to withdraw- leaving us with no desirable outcome at all.

[16] Further emails were sent in August 2016 and September 2016.

[17] To support the Olympia Trust mortgage, Elwood Quinn cashed in all of his Quebec RSPs, but later learned that he was unable to use them, as the property was located in Ontario.

[18] On December 4, 2016, John Filion emailed Elwood Quinn with a suggested course of action in relation to this property, including:

1. Elwood Quinn would buy the farm for an amount approximating the amount of outstanding debt, which was in the range of $250,000-$300,000.

2. Linda Jones, or her son, would have the right to purchase the farm back from Elwood Quinn for a period of up to 10 years from the date of closing, for an amount including the total Elwood Quinn would pay for the farm, plus 5% per year interest compounded, plus a rental fee of $500 per month.

3. Linda Jones would rent the farm from Elwood Quinn for $500 per month, an amount that would not be paid but would accrue and be added to the cost of any buyback of the property. If the property were not bought back, no rent would be charged.

4. The agreement would be binding on Elwood Quinn’s heirs.

5. Elwood Quinn would be responsible for typical landlord responsibilities such as the payment of property taxes and capital repairs. Linda Jones would make capital improvements to the property only with Elwood Quinn’s permission and at her cost.

[19] On December 7, 2016, John Filion emailed the Scotiabank to advise that they had a solution, namely Mr. Quinn would place his RSPs of $200,000 with them and get a mortgage for the property.

[20] On December 20, 2016, Mr. Filion emailed the Scotiabank to advise of Elwood Quinn’s name and contact information. The email stated in part, “Although there are still some complexities involved in the transaction, Elwood’s purchase of the property appears to be much more straightforward than his lengthy attempt to provide a new mortgage on it.”

[21] John Filion emailed Elwood Quinn on December 22, 2016, setting out some suggestions surrounding the transaction and advising in part, “If Montana is unable to buy the farm back, you've got it at an exceptionally low price; if she is able to buy it back you'll have a guaranteed return on your investment.”

[22] On February 8, 2017, prior to the transfer of the property, Elwood Quinn emailed Linda Jones and asked for her help to develop a business plan to assist him in securing financing for the property. The email stated:

Montana. Hope all is well.

Need info on farm revenue possibilities including prices and scores for vacation cottages, and any other ideas you may have.

Meeting Friday its B of N

Can get farm loan if well presented.

[23] On February 25, 2017, Linda Jones sent Elwood Quinn and Pamela Heath a signed Agreement of Private Purchase and Sale for Mr. Quinn to purchase the property from Ms. Jones. There were some emails back and forth with amendments throughout March 2017 finalizing its terms

[24] Ultimately, the purchase price was $300,000. The Agreement was to be completed by no later than 6:00 p.m. on the 29^th day of March 2017, which was later amended. At clause 16, the APPS stated in part: “…This Agreement including any Schedule attached hereto, shall constitute the entire Agreement between Buyer and Seller. There is no representation, warranty, collateral agreement or condition, which affects this Agreement other than as expressed herein.” Schedule A to the Agreement included the following which formed part of the Agreement:

1. The purchase price for the farm (house, land and outbuildings) will be $300,000. This price has been deliberately set well below the market value of the property assessed by MPAC 2016 as $525,000, as the result of other benefits to Linda Jones as detailed below (under Other Considerations).

2. Seller Linda Jones will receive whatever remains of the $300,000 after buyer Elwood Quinn has made the following payments:

• To Scotiabank all outstanding amounts owing in mortgage principle, interest and property taxes up to the date of purchase (approximately $110,000);

• To M. Rosset who has agreed to accept $50,000 to discharge a lien against property;

• To the estate of Linda’s late father, Philip Jones, a disputed amount of $54,181.25 to be held in trust until estate settled; (Last Will and additional documents indicate zero owed)

• To H. Herscovici, who agreed to accept $9000 to discharge a lien against the property;

• To Michael Smele of The Mortgage Station $3000 as full payment for the considerable amount of work he did arranging a mortgage transaction which did not occur;

• To Elwood himself, $15,000 to pay back amount he advanced to Linda Jones in 2016.

An additional portion of the APPS, entitled “Other Considerations”, and which is central to this litigation reads as follows:

Rental Agreement: Linda Jones may live on the property, having full use of it, for a period of eight years at a rent of $500 per month for the entire 96-month period. This amount will not be paid monthly but will accrue and be added to the cost of any future buy back of the property (see below), at which time all accumulated rent will be paid in full. If the property is not purchased back within the eight years, the accumulated rental will not be owed.

During the rental period, Elwood Quinn and Linda Jones will have the standard responsibilities of a landlord and tenant respectively. Elwood will be responsible for property taxes and capital repairs and maintenance; Linda will seek Elwood’s approval for any improvements she wishes to make at her own expense, or which they may wish to undertake jointly. Any work carried out by the landlord or the tenant, their employees, agents or contractors, shall be done in a workmanlike and professional manner and in compliance with all applicable governmental bylaws and codes.

Buyback Provision: Within eight years of the date of purchase, Linda Jones may purchase the property back from Elwood Quinn for what he paid for it ($300,000) plus a 5% compounded [delete compound replace with “annual”] interest on $300,000, plus the accumulated deferred rent of $500 per month. Linda may repurchase the property on her own or with or through a third party. Elwood Quinn agrees not to sell the property for an eight-year period following its purchase. In the event of Elwood Quinn’s passing during the eight year period, his estate would be bound by the provisions of this agreement. In the event of Linda Jones’ passing within the eight-year period, her son Philip Russell Jones would inherit the provisions of this agreement for the balance of the eight-year period. At the end of the eight years, any further rental agreement or repurchase shall be by mutual consent, on whatever terms may be mutually agreeable at that time. No other mortgages allowed on title. [Bolded portions in handwriting]

[25] In March 2017, Linda Jones prepared a business plan for her existing business known as Wholearth Farmstudio, which she provided to Mr. Quinn to assist him with financing for the property. The business plan stated in part as follows:

Mr. Elwood Quinn (of the successful agritourism destination LaFerme Quinn near Montreal) seeks $300,000 to:

• Secure land title to Wholearth, 100-acre homestead farm in Hastings, Ontario and $50,000 to:

• Upgrade the existing farmhouse to create 4 bedrooms for a farmstay B & B

• Build 3 little cabins for the farmstay B & B in April / May and open by summer.

Additional revenue planned with multiple income streams:

• Renting little cabins for secluded stays in the back forty, for special event rentals, family reunions, educational workshops and retreats.

• Charging for the use of a certified kitchen for farm-to-table meals, cooking classes

• Selling fresh and value added foods and services to our community as a local food and farm hub with a farm market store specializing in heritage and heirloom items

o Continue the farm-to-table dinners, arts and music events on the farm (since 2004).

The revenue stream discussed in the business plan was intended by Linda Jones to allow her to buy back the property in the future. In essence, the plan was to renovate and convert the entire house and barn into Airbnb-style accommodations and building small cabins for use as short-term rentals. The business plan indicated anticipated gross revenues in excess of $300,000 in two years.

[26] On March 14, 2017, Linda Jones sent an email to Elwood Quinn, discussing her plan for the property. She stated in part:

… For starters they think the idea of Wholearth offering AirBnB and Farmstays is a great one – they use AirB&B’s when traveling…

My plan for next year was to work toward a barn conversion as an event venue at more accommodation AFTER after the cabins were up.

But what if we put accommodation in the barn first?

For your interest I’ve also attached the zoning info, this 100 acres is zoned Rural (R) and Environmentally Sensitive (ES) in the wetland area.

[27] A Notice of Fulfillment of Condition dated March 23/24, 2017 indicated that Elwood Quinn had arranged financing and fulfilled this condition of the APPS.

[28] On May 1, 2017, Elwood Quinn gave a mortgage on the property to the Bank of Nova Scotia in the amount of $525,000. The sale proceeds from Mr. Quinn, in the amount of $284,751.78, were used to pay out the Scotiabank mortgage, the Rosset debt, the Herscovici debt, a second mortgage, to the Mortgage Station, with just over $50,000 being paid to Linda Jones from the proceeds. While the sale price was $300,000, $15,000 was used to pay a previous loan from Elwood Quinn. The property was officially transferred from Linda Jones to Elwood Quinn on May 1, 2017.

[29] Throughout 2017 and 2018, Elwood Quinn continued to assist Linda Jones, including obtaining insurance on the property, providing her with cash, purchases of equipment, delivered 500 Christmas trees for her to plant, paid for repairs to her truck, and paid the deposit on the first cabin.

[30] In relation to the insurance, on April 20, 2018, Allen Insurance Group wrote to Elwood Quinn and advised as follows:

The insurer has recently conducted an inspection of your property in order to assist in loss prevention and loss control…

The following recommendations have been made:

• A railing is required on cement decking around newer area of the dwelling (Recommended due date: Aug 6/18)

• Sub panel requires a cover (Recommended due date: Oct 5/18)

• Porch roof support should be repaired (Recommended due date: Oct 5/18)

• Stairs to second level and to basement require proper railing (Recommended due date: Oct 5/18)

We would appreciate your confirmation that the above have been attended to by the recommended due dates included so that we may advise your insurer…

[31] In October 2018, Mr. Quinn advised Linda Jones that he was out of funds and could not finance her business further. However, when Ms. Jones stated that the furnace was not working properly and that without it the pipes would freeze, he transferred an additional $6,665 and paid for plumbing repairs directly.

[32] On February 19, 2019, Linda Jones wrote to Mr Quinn, complaining about the state of the house. The correspondence stated in part as follows:

When could we meet to make some decisions and move forward on the repairs and maintenance? Not sure why my emails and texts have gone unanswered but it’s now an untenable situation that needs to be dealt with. Below are some areas of concern, most you already know about.

Ms. Jones then listed a number of concerns, which included the furnace was not working, the oil tank needed to be replaced, the furnace ducts were not acceptable for wood heat, the roof was leaking, pipes were bursting due to inadequate insulation, the bathroom was unusable, there was no flushable toilet, shower or bath, no laundry, and there were foundation problems. She then stated:

Months of living in these conditions and they are worsening instead of getting better.

If the funds had come through in fall those areas would have been insulated by the work crew I had booked to work here then.

Also could you please remember to send the email from insurance company that you were going to forward to me, describing their areas of concern that need to be addressed? I recall the falling porch roof and railing out back were part of it.

You had indicated that the remainder of the farmhouse upgrade funds weren't available because you used it to buy the Red Poll cattle, and that you'd be selling them and replacing it.

I'm still happy to do a promo ad to help you sell them, as you asked, but I haven't received the details from you yet, just need info on their registrations and bloodlines, ages, number etc… and some good photos.

We need a discussion ASAP on how to move forward with our original plan and agreement of updating and offering guest accommodation to create an income stream for the farm, or decide if it needs to be altered. Right now it's not really fit to live in for anybody let alone a paying guest.

I am concerned that if the municipality found out, as it is now the house might even be considered unfit for occupancy because of the issues described above, regarding health and sanitation and no heat.

I could drive halfway to meet up somewhere and go over what next steps are. I think we could resolve the issues with a focused meeting on next steps, after prioritizing what needs to happen first.

I have texted and emailed about issues before and you didn't respond. We do need to look after this please. I've been asking since last year.

Even before meeting, could I please book the plumber to come and make the bathroom and kitchen operable again please? As soon as possible.

thank-you

[33] On March 19, 2019, Elwood Quinn wrote to Linda Jones in part as follows:

Sorry this work is not already completed.

We most definitely are of two different worlds.

I am in no way being secretive.

1- You need work to be done.

2- A work crew or an individual will do the work.

3- I will be responsible for payment of the work.

In my mind, the need for a three way conversation.

“You best communicate” I take that as a threat.

Please do not threaten me, I find that hurtful.

Your move.

I trust you will keep me informed.

[34] On March 22nd, 2019, Mr Quinn e-transferred $300 to Linda Jones for purchase of replacement plumbing fixtures. On the same day, Linda Jones wrote to Mr. Quinn in part as follows:

…I'm figuring out a modified version of our original plan that would mean I could offer rustic studio rentals if this is fixed up quickly. Once those bookings start coming they can be used for the improvements…

I don’t want the farms name or reputation at risk having a bad AirBnB review about bathroom or cooking facility is not being up to code or cleanliness…

I have a plan I think which could be ready for an opening may 24th, but it means committing to it and getting the work finished. I have so much of it lined up and just on hold waiting, it could be done. People are asking about renting the cabin already but I am having to turn them down until whole place is ready.

Part of the tweaked plan is a move toward cohousing with a few people, and buying back the property sooner with this model…

[35] Also, on March 22, 2019, Allen Insurance Group wrote to Elwood Quinn in part as follows:

This letter is further to our telephone conversation on March 12, 2019. As discussed, your rental property is insured with Bay of Quinte Mutual insurance company, and Bay of Quinte completed an inspection of the property in April, 2018. There were several inspection recommendations that are mandatory, as indicated in the inspection recommendation letter that was mailed to you in April 2018.

As previously advised, your policy will expire on April 26, 2019, and Bay of Quinte will not issue a renewal this term, as the inspection recommendations are incomplete…

[36] On March 29, 2019, Linda Jones again sought funds from Mr. Quinn and wrote to him in part as follows:

…I got your email you wrote yesterday and yes, I agree need to stop the financial bleeding.

I have been going through the original plans and overhauled it to something that will work with less additional expense.

It’s called hippocampus.

Instead of rustic air BnB type bookings I’m about to announce a kind of summer farm / art camp for artist’s residencies. Stripped down, shared studio space,

…Further to this idea I believe I can round up enough “residents” (or farm members) who want to participate to try it out, AND who are interested in a more permanent arrangement, similar to timeshare, it would be their country studio.

So…how much money can you put toward finishing the plumbing realistically, besides the 300? Could you do another 2,000? That would include counter and floor. If not, send me know another amount and I will do what I can, but the 300 isn’t going to get us even close.

Instead of paying for new fixtures than, could you cover it now to get it completed and usable, then you are paid back as bookings come in? It would stop your immediate financial bleeding- I know this will be a popular experience. I believe I can sign up one hundred people easily with the promo and marketing I have already created…

[37] On March 30, 2019, Elwood Quinn wrote to Linda Jones, in part as follows:

I apologize for letting you down.

This was my dream also.

It's a dream we cannot realize

You said a fire in the house?

Insurance is finished in two weeks

You need more money then I have

You need more manpower than you can justify

Please Montana look for someone with more money and more energy

This is too much stress for me.

I do not know how you cope

Every dollar I spend now is gone for ever

We both need to get help

I will give the property to anyone for the bank statement, approx.. 360,000$

I will forget the 50,000$ plus of my cash already gone

My offer needs your consideration and complete attention

My sincere regrets and apologies

[38] On March 30, 2019, Linda Jones responded to Elwood Quinn in part as follows:

Could you or Pam find the contact for the insurance person you almost went with? If you search word insurance look around a year ago in your emails you may find it. I don't know that I ever had his contact.

The new folks may not necessarily have the same recommendations, and whichever ones they might have- we will have bought time, and there is no need to pay a lump annual sum, most paid monthly…

[39] On April 3, 2019, Linda Jones wrote again to Mr. Quinn, in part as follows:

The hippocampus is the seahorse-shaped part of the brain that rules memory and emotion. I believe a program here would help heal more people besides me. Other instructors and teachers would lead the program, not me…

…I am going to make this work. It's part of this art/ wellness idea really

[40] On April 5, 2019, Elwood Quinn wrote to Linda Jones as follows:

At the risk of introducing or worse

What’s the latest on the pluming

Another instalment on property tax $$$$

Work needed to have insurance renewed

[41] Again, on April 6, 2019, Linda Jones wrote to Elwood Quinn suggesting that they approach another insurance company.

[42] On April 15, 2019, Linda Jones advised Mr. Quinn that she was continuing her efforts to create a wellness program stating that:

I have been working non- stop on hippocampus despite the extreme lows the pressure is creating, I believe it is the solution. I have for some time but conditions have been brutal. Yes I know very well I can't do this alone- the number of people and hours needed to have this place flow is many. It's the whole point behind this idea! I already have some people lined up and others excited to see the launch so they can sign up.

I want to work together and of course do not wish you to lose financially.

[43] In an email from Elwood Quinn to Linda Jones on June 5, 2019, he stated in part:

If you could make some of these payments.

Adding up monthly mortgage, taxes, insistence, tractor, Toronto car,-transmission, projects, - my math, puts us over the $50,000 start up loan - that is not in your payback, but I know you are of honour, and will gladly include this in your buyback…”

[44] In August 2019, Hugh Franklin, Mr. Quinn’s son-in-law, was asked by Mr. Quinn to act as his agent and find out the state of the property. Mr. Franklin obtained a copy of the insurance company’s letter and made three unsuccessful attempts to gain access to the property by way of written Notice of Entry served more than 24 hours in advance.

[45] On September 12, 2019, Hugh Franklin was able to enter the property with Karen Cofield of Cofield Home Inspections. Ms. Cofield discovered extensive issues with the house and detailed it in an inspection report which she provided to Hugh Franklin on September 16, 2019. Mr. Franklin had also accompanied her during the inspection and believed the deficiencies to be accurate, noting the condition of the fences, gates, barn, greenhouse, fields, and property. Mr. Franklin stated that from his observation, the livestock had damaged the fences, gates, and greenhouse and Linda Jones was permitting the livestock to enter and cause damage to the environmentally sensitive / protected areas of the property contrary to local bylaws.

[46] The inspection report prepared from this visit specified numerous deficiencies, including safety concerns with the front porch and sunroom collapsing, the electrical, roof, and windows. Ms. Cofield concluded that the building was unsafe in the current condition for fire hazard, fall hazards and mold issues. The report noted:

a. The roof is not watertight;

b. The retaining walls are not structurally sound;

c. Interior areas are not maintained so as to prevent heat loss, which has led to plumbing damage, floor damage and water damage to the foundation;

d. The foundation and floors are not structurally sound;

e. Openings have not been screened or sealed to prevent the entry of rodents;

f. The plumbing and sanitation system is not adequate or safe to operate.

[47] Mr. Franklin attended the Municipality of Trent Hills’ office in Campbellford and viewed the property file they maintained. There were no building permits, renovation permits, fire inspection certificates, occupancy permits, livestock licences or business permits ever issued to Linda Jones, before or after she sold the property to Mr. Quinn. While at the municipal office, Mr. Franklin requested and was given a map of the property indicating which areas were designated environmentally sensitive and environmentally protected. Mr. Franklin understood that the approval of the Lower Trent Conservation Authority was a prerequisite to the municipality approving any application for a building permit, as the property fell within their catchment area and has environmentally sensitive and protected areas designated on it.

[48] On September 17, 2019, Hugh Franklin served Linda Jones with an N5 Notice to end the tenancy and N7 Notice for serious impairment of safety, making her aware of the specific concerns including: smoke alarms had been removed or disassembled, portions of units were unsanitary and unfit for habitation, windows were removed that allowed the elements to enter the residence and cause damage, a stair railing had been removed, the cover to the wood chute had not been properly maintained, the UV filter necessary to create a supply of potable water to the residence was disconnected, damage to the plumbing had been repaired and improperly billed to Mr. Quinn, there were two improperly installed electrical panels, the introduction of diesel fuel into the furnace supply system caused damage to the furnace, there had been installation of a woodstove without a permit, Ms. Jones had neglected to properly maintain the exterior deck against the building allowing weeds to grow unchecked causing water to accumulate and leading to cracks in the cinderblocks and concrete slab, livestock had destroyed the barn doors, fences and greenhouse, Ms. Jones had removed 40 acres of forage crops, the bunkhouse had been built without a permit, the outhouses were improperly built and in the environmentally sensitive / protected areas, there was debris and derelict vehicles needing to be removed, and that the “tenant” had obstructed the “landlord’s” agent and inspectors from entering the property.

[49] Also on September 17, 2019, Hugh Franklin gave Linda Jones a letter directing her to cease and desist use of the sunroom, use of either of two woodstoves or furnace, to remove all personal property from the barn and greenhouse, to cease and desist any and all commercial activities on the property, to remove all livestock from the property, and not to tamper with the lock and chain installed on the gate to the property. Mr. Franklin included a copy of the cover letter to the inspection report, outlining some of the unsafe conditions of the house. At this time, Mr. Franklin had reason to believe that Ms. Jones was holding commercial events on the property, as a result of social media posts and a large sign at the front entrance to the property advertising Ms. Jones’ business.

[50] Also on September 17, 2019, Hugh Franklin had smoke alarms installed, as well as a temporary safety barrier placed on the patio.

[51] On September 26, 2019, Linda Jones refused Hugh Franklin access to the property and served him with a “No Trespass Notice” requiring him to cancel inspections of the roof and foundation of the house. On that day, Mr. Franklin filed an L2 Application (TEL-05829-19) to terminate the tenancy at the Landlord and Tenant Board on the grounds set out in the N5 and N7 notices served on September 17, 2019.

[52] In October 2019, Hugh Franklin discovered that Linda Jones was advertising campsites on the property, including a bunkhouse with electricity.

[53] In November 2019, Hugh Franklin provided Linda Jones with the municipality’s Homeowner’s Guide to Building Permits and Part 8 of the Ontario Building Code. This included information related to building permits and fines for non-compliance. He also provided Linda Jones with a copy of Ontario Regulation 163/06, Lower Trent Region Conservation Authority.

[54] On November 14, 2019, Linda Jones requested an adjournment of the eviction hearing, related to Application TEL-05829-19, at the Landlord and Tenant Board. On November 26, 2019, the hearing was adjourned. It was also ordered that the “tenant” was to provide the “landlord” with access to the rental unit upon receipt of proper 24 hours notice of entry, and if refused, the “landlord” was permitted to write to the board requesting an earlier date for hearing.

[55] On December 15, 2019, Linda Jones emailed Hugh Franklin a document titled “Response from: TENANT Linda Jones” in which she stated:

Landlord is fully aware of the bunkhouse built, as many bunks are part of the Farmstay Plan developed for the bank loan to buy and operate farm. He said to keep the extra square feet “on the down low” and came to inspect it himself after it was built. The unit is being mounted on a steel hay wagon frame with wheels so it is not in contradiction to the bunkie bylaws that the landlord incorrectly authorized. Removal is not an issue.

[56] Hugh Franklin, on behalf of Elwood Quinn, prepared, issued and served a Small Claims action for recovery of funds advanced to Linda Jones for her business and for the value of the forage crops she had allegedly removed from the property in 2018 and 2019. This was filed as Court File No. SC-20-12. Linda Jones filed a defence. This court is advised that the matter remains outstanding.

[57] On April 7, 2020, the Landlord and Tenant Board dealt with a motion brought by Elwood Quinn requesting an urgent hearing given alleged serious and ongoing health and safety issues at the property. The Board ordered that the landlord application was to be heard on an urgent basis

[58] On April 15, 2020, Application TEL-05829-19 was again before the Board. On April 17, 2020, the matter was adjourned to a telephone hearing on a date to be set by the Board between April 28, 2020 and May 1, 2020.

[59] On May 1, 2020, the matter returned before the Landlord and Tenant Board. On May 20, 2020, the Board ordered that the tenancy was terminated as of June 30, 2020, but it could not be enforced until July 1, 2020, or the end of the state of emergency, whichever was latest

[60] Due to the deteriorating relationship between the parties, in June 2020, Philip Jones, son of Linda Jones, contacted Elwood Quinn via telephone in an attempt to initiate the process to repurchase the property. Mr. Quinn stated that he did not wish to talk to the appointed buyer, but that he wanted it in writing, and hung up.

[61] On June 28, 2020, Philip Jones emailed Elwood Quinn as requested to activate the buyback provision officially in writing. No response was received from Elwood Quinn.

[62] Also in June 2020, Hugh Franklin became aware that Philip Jones had started advertising the property for use as a campsite including a “pond pull-up – drive-in RV site” with electricity, on his Facebook page and at camp.wholeearth.com under the name “Wholearth Farmstudio Back-40 Camping”. Hugh Franklin also received a complaint from the neighbours who had had a virtual meeting and advised that parties were occurring “almost every weekend”.

[63] On July 2, 2020, Shelley Holmes, law clerk at Schmidt Law Legal Services, emailed Elwood Quinn to request his solicitor’s name so that it could be included in the draft Agreement of Purchase and Sale.

[64] On that same day, July 2, 2020, Hugh Franklin wrote to Philip Jones introducing himself as the “duly authorised representative for Mr. Elwood Quinn in all matters relating to the above-referenced property.” In that email, Mr. Franklin stated that “any and all further communication with Mr Quinn shall be considered harassment and will not be tolerated without an appropriate response. Further, you are directed to address all further correspondence to myself.” Mr. Franklin directed that Mr. Jones cease and desist commercial activity in relation to Wholearth Farm immediately “or face the consequences of your actions.”

[65] Also on July 2, 2020, Mr. Franklin wrote to Linda Jones, enclosing a copy of an Amended Statement of Claim in the Small Claims action, SC-20-00012, a copy of correspondence from September 17, 2019 wherein she had been asked to stop all commercial activities on the property, and a copy of the Landlord and Tenant Board Order issued on May 20, 2020 terminating her tenancy as of June 30, 2020. Ms. Jones was directed to vacate the premises immediately and to cease and desist promotion and conduct of any commercial activities on the property.

[66] On July 3, 2020, Hugh Franklin emailed Shelley Holmes, law clerk at Schmidt Law Legal Services, and indicated that he was “Mr. Elwood Quinn’s duly authorized representative and have authority to act on his behalf in all matters relating to 143 Concession Road 14, Hasting ON K0L 1Y0. You will kindly direct any and all further correspondence to myself”. Mr. Franklin referenced an email sent by Mr. Jones to Mr. Quinn on June 28, 2020, in which Mr. Jones stated that he intended to purchase the property in accordance with the buyback provision. Mr. Franklin stated:

On receipt of confirmation signed by Linda Jones that she is exercising her right to purchase the property in accordance with the “Buyback Provision” in Schedule A of the 2017 Agreement of Private Purchase and Sale, and is designating Philip Russell Jones as the third party referred to therein, I will be happy to entertain Mr. Jones’ interest.

[67] On July 6, 2020, Hugh Franklin emailed Schmidt Law Legal Services to say that “Mr Quinn has no intention of retaining counsel”.

[68] On July 28, 2020, Schmidt Law Legal Services emailed Mr. Franklin to provide a signed Authorization and Direction executed by Linda Jones, and again requested for Hugh Franklin to “provide the name of the solicitor for Mr. Quinn in order that we may forward him the Agreement of Purchase and Sale.”

[69] On July 30, 2020, Mr. Franklin sent an email to Shelley Holmes, law clerk at Schmidt Law Legal Services, and stated in part as follows:

In regard to the Authorization & Direction provided in your correspondence of July 28^th, 2020, I can only conclude that your assertion that it is sufficient is based on your not having been provided with the actual final copy of Schedule A of the Agreement of Private Purchase and Sale. I am certain that when you do review it you will quickly discern that it is substantially different than the version of February 24^th, 2017, authored by and signed only by Ms. Jones, and specifically referenced in the Authorization and Direction your office has provided me.

I await production of a Authorization / Direction signed by Linda Jones confirming that she is exercising her right to purchase the property in accordance with Schedule A of the final Agreement of Private Purchase and Sale, and that she is designating Philip Russell Jones as the third party referred to therein. I suggest you reference and attached and a copy of Schedule A so that there will be no ambiguity. I will require either a hard copy or an electronic copy accompanied by an undertaking from your office to produce same prior to taking any further action on this matter.

Given the amount of time and effort it has taken to get to this point, the very first step of the process, I trust you now understand why Mr. Quinn is not willing to incur the expense of counsel until necessary.

In the correspondence, Mr. Franklin provided his address for service of documents.

[70] Also in July 2020, it must be noted that Linda Jones sought a review of the eviction Order.

[71] On August 4, 2020, Morgan Payne of Schmidt Law Legal Services wrote to Mr. Franklin as legal counsel for Linda and Philip Jones. The correspondence stated in part as follows:

I have an Agreement of Private Purchase and Sale dated February 25, 2017 signed by Mr. Quinn and Ms. Fox. Within that agreement there is a buy back provision that indicates Ms. Jones can buy the property back from Mr Quinn within 8 years of the sale. This clause states that Ms. Jones can assign her buy back right to her son, Mr. Jones. This is official notice that Ms. Jones intends to buy the property back from Mr Quinn, immediately.

The agreement also states that Mr. Quinn and Ms. Jones must obtain independent legal advice about this buy back. Respectfully, you are not a lawyer and therefore, in the province of Ontario, are not permitted to provide any legal advice. Unless Mr Quinn has obtained a lawyer, Mr Quinn has not met this requirement of the agreement.

My assistant, Shelley, indicates that you have implied through e-mail another version of the agreement exists. If this is so, please provide it to me immediately. A Superior Court Justice will not be favourable to Mr Quinn if there is another version of this Agreement and that upon a reasonable request to produce this document, you, a non-lawyer, advised him to withhold it.

I am not providing my legal undertaking to a non-lawyer. Mr Quinn will need a lawyer to complete this transaction. That is inevitable. I will not converse further with you on this matter.

If I have not received this alternate copy of the agreement, or heard from a licensed lawyer acting in this matter by August 14th at 5:00 PM, I will assume that Mr Quinn is not going to cooperate in this matter and will be initiating a court application to force the sale of the property. My client will be seeking full indemnity costs against Mr Quinn.

We hope to hear from Mr Quinn's lawyer soon.

[72] On August 7, 2020, Hugh Franklin sent an email to Morgan Payne of Schmidt Law Legal Services to respond to her August 4, 2020 email. Mr. Franklin stated in part as follows:

1. When you state that “If I have not received this alternate copy of the agreement, or heard from a licensed lawyer acting in this matter by August 14th at 5:00 pm, I will assume that Mr. Quinn is not going to cooperate in this matter and will be initiating accord application to force the sale of the property. My client will be seeking full indemnity costs against Mr Quinn”, it becomes apparent to me that although you claim to have read through my correspondence with Ms. Holmes (throughout which I have been trying to confirm that your client, Ms. Jones is exercising her right under the buyback provision found in the final Schedule “A” of the Agreement of Private Purchase and Sale between herself and Mr Quinn), you have obviously misread or misapprehended several key things which are outlined below. Additionally, several issues with your own assertions make themselves readily apparent:

a) In the first paragraph of your correspondence you have stated “I have an Agreement of Private Purchase and Sale dated February 25, 2017 signed by Mr. Quinn and Ms. Fox”. Who exactly is Ms. Fox?

b) Your client Ms. Jones can easily produce a copy of the final Schedule “A” as it (and the earlier version) was attached to the Plaintiff’s Claim SC-20-00012, served on her on July 2nd, 2020. It is noteworthy that your other client Mr. Jones has stated (July 9^th, 2020): “I am proposing to settle Montana’s debt to you in the purchase price of the property.”

c) You state that “Within that agreement there is a buy back provision that indicates Ms. Jones can buy the property back from Mr Quinn within 8 years of the sale. This clause states that Ms. Jones can assign her buy back right to her son, Mr. Jones.” Having reviewed both versions of Schedule “A”, I cannot seem to locate such a clause. I trust you will be able to point it out to me. As you have correctly pointed out, I am not a lawyer, however I do possess the ability to read and do understand the difference between the assignment of contractual rights and the exercise of contractual rights.

2. In the third paragraph of your correspondence you state that "My assistant, Shelley, indicates that you have implied through e-mail another version of the agreement exists” (other than the one referenced in the Authorization and Direction dated July 27th, 2020), you have requested that I produce it to you immediately, and further state that “A Superior Court Justice will not be favorable to Mr Quinn if there is another version of this Agreement and that upon reasonable request to produce this document, you, a non- lawyer, advised him to withhold it.”:

a) If you actually read the correspondence as you say you have, you would not be relying on Ms. Homes’ inferences as to their content. Further if you had taken the time to review the Authorization and Direction produced by your office on July 29th, 2020, and deemed “sufficient” by Ms. Holmes, it would be immediately obvious that I was referencing the fact that Ms. Jones has referred therein to “page 6 of the Agreement of Purchase and Sale dated February 24th, 2017”, not the February 25th, 2017 version you now purport to possess as between Mr Quinn and Ms. Fox.

b) It has been my concern that while your office does not seem to have the necessary documents to effect the transaction, nor can your office seemingly be accurate in any of the necessary and pertinent details, it is the fact that you seemingly accept such conduct as appropriate without ensuring the facts yourself before issuing such a broad statement of the Court’s potential opinion, that is most alarming to me. I trust that you will take personal charge of this file to ensure such errors are not repeated.

3. In the second paragraph of your correspondence you assert that “Respectfully, you are not a lawyer and therefore, in the province of Ontario, are not permitted to provide any legal advice. Unless Mr. Quinn has obtained a lawyer, Mr. Quinn has not met this requirement of the agreement.”

a) I have repeatedly and clearly stated that on receipt of appropriate and accurate documents that I would provide them to Mr. Quinn’s counsel for review. Is it not apparent to you that I am performing the same administrative function for Mr Quinn as Ms. Holmes does for you? I have never represented myself to be acting as anything other than Mr Quinn's agent.

b) Before you accuse Mr Quinn of not meeting the requirement of the agreement, perhaps you should look to your own office’s conduct.

i) Your client Mr. Jones wrote to Mr Quinn stating he intended to trigger the buyback clause.

ii) I asked for the appropriate documentation demonstrating his right to do so, and advised that Mr Quinn would retain counsel when necessary.

iii) Your office produced a document that was inaccurate and was neither an assignment of Ms. Jones’ rights to Mr. Jones, or a designation of him as the third party with or through she attended to exercise her rights.

iv) I have repeated my request for accurate documentation.

v) Ms. Holmes asserted that the document produced was sufficient.

vi) I again repeated my request for accurate documents.

vii) Ms. Holmes asked me to provide her with the final version of the Agreement of Private Purchase and Sale.

viii) You now require Mr. Quinn to produce the final version of the Agreement of Private Purchase and Sale under threat of an application to force the sale of the property.

c) So far, your office has not been able to produce any accurate or valid documentation, address correspondence correctly, and you yourself had even gotten the parties names wrong. Such inattention to necessary details when conducting a transaction worth several hundreds of thousands of dollars may be acceptable to your office but I can assure you that to Mr. Quinn they are not, nor would they likely be acceptable to any Bank, the Land Registry Office, or the Courts. Given the foregoing it is clear that had Mr Quinn already engaged counsel he would have been wasting his money having them deal with your office’s inability to move this matter forward.

4. You state that “This is official notice that Ms. Jones intends to buy the property back from Mr Quinn, immediately”. So now it is Ms. Jones and not her son who intends to buy back the property?

5. Finally, in furtherance of the expeditious conclusion of this transaction I am attaching a final copy of the Agreement of Private Purchase and Sale, along with both Schedules “A” and “B”. My understanding of the process that should now occur, and again, I am not a lawyer or representing myself to be one, is the following:

a) You should review the final copy of the Agreement of Private Purchase and Sale provided.

b) Your client Ms. Jones should then decide if she is:

i) exercising her rights under Schedule A to buy back the property with or through a third party, or

ii) assigning her rights under Schedule A to her son Phillip Jones.

c) If Ms. Jones intends to proceed as per b (i), then I expect you to provide me with a signed confirmation of her designation of the third party with reference to the final Agreement of Private Purchase and Sale.

d) If Ms. Jones intends to proceed as per b (ii) then I expect you will provide me with: both a valid Assignment setting out specifically which right she is assigning Mr. Jones, a statement of the revocability thereof, and specific reference to the final Agreement of Private Purchase and Sale, etc.; and confirmation that he intends to exercise his newly assigned rights to buy back the property under same.

e) You will again review the Agreement of Private Purchase and Sale, reference a calendar, and calculate the amount of funds necessary to complete the transaction on the date your client wishes to complete the transaction.

f) You will then advise me of the date on which your client wishes to complete the transaction and provide me with the draft transfer documentation so that Mr Quinn's independent legal counsel may review it for accuracy.

g) On the date specified, you will effect the transfer of the necessary funds and Mr Quinn will execute the necessary documents to effect the terms of the buyback provision.

According to Mr. Franklin, this email set out his understanding of the process for the transfer of the property, and invited Ms. Payne to correct him if needed.

[73] Having received no response from this inquiry, Mr. Franklin followed up by email to Ms. Payne on August 14, 2020.

[74] On August 25, 2020, Hugh Franklin emailed Jason Schmidt, stating that the signed Authorization and Direction provided by Linda Jones was not sufficient and that it was not “Mr. Quinn’s responsibility to perform this calculation”.

[75] On September 8, 2020, Hugh Franklin emailed Jason Schmidt to request confirmation that Linda Jones was exercising her right under Schedule “A” of the APPS. Mr. Franklin also requested proof of “confirmation that you hold in trust the amount necessary to complete the buyback of the subject property”.

[76] On September 8, 2020, Jason Schmidt from Schmidt Law Legal Services confirmed in writing that Linda Jones was exercising her rights under the buyback provision of the APPS. The email from Mr. Schmidt to Mr. Franklin stated in part:

In case it has not been made clear to you previously, please accept this email as written confirmation of my client’s notice that she wishes to buy back the subject property pursuant to the terms of the Agreement of Private Purchase and Sale dated February 25, 2017 (“the APS”) with Philip (Fox) Jones.

My client calculates the purchase price, assuming a closing date at the end of September 2020, as $370,000.00 and calculated as follows:

• $300,000.00 (base purchase price), plus

• $50,000.00 (interest @ 5% per annum x 40 months), plus

• $20,000.00 (rent @ $500.00 per month x 40 months).

Please let us know if Mr. Quinn disputes this purchase price.

Please be advised that the funds to purchase the property will be provided to Mr. Quinn upon closing. The APS does not require that the purchase funds be held in a trust account at the time that the buy-back provisions are initiated, and as such our client is not required to confirm the same.

[77] On September 10, 2020, Mr. Franklin, in an email, acknowledged receipt of the correspondence from Mr. Schmidt, stating in part:

I appreciate that after ten (10) weeks and six (6) specific requests I am finally in receipt of clear and unambiguous confirmation that your client is exercising her contractual right to buy back the subject property, and no longer asserting that she is assigning her rights to a third party.

It would appear that your client understands the formula by which the amount required to effect the buyback is calculated – a simple sum of three factors: principal plus interest plus rent. What is not specified is the term on which both the amount of interest and rent will be determined. The term is the period of time elapsing from the close of the original APPS and the closing date on which your client wishes to conclude the buyback. Without being provided with the specific date on which your client wishes to conclude the transaction, it is impossible for Mr. Quinn to either approve or dispute her calculations. You may note that I have previously raised this issue with yourself in my correspondence of August 28^th, 2020, and with your predecessor Ms. Payne in paragraph 5 of my August 7^th, 2020 correspondence.

In addition, it would appear that your client has based her calculations on an incorrect closing date of the original purchase from which the term would commence.

Please consult your client, confirm with her the actual dates on which the original closing occurred and the specific date on which she wishes to complete the present transaction. Once you are in possession of this critical information, I expect you would be able to complete an accurate draft APS very quickly and we could move this matter forward in a more timely fashion.

[78] A little later that same morning, Mr. Schmidt confirmed the anticipated closing date to be September 30, 2020 and asked, “Is that acceptable to Mr. Quinn?”

[79] On the following day, September 11, 2020, Mr. Schmidt sent an email to Mr. Franklin which stated:

To follow up on your email below [referencing the September 10^th, 2020 email], my client informs me that the actual closing date was May 1, 2017, although I am at a loss as to why Mr. Quinn cannot determine the same.

[80] About an hour later, still on September 11, 2020, Mr. Franklin responded to Mr. Schmidt in an email, stating:

The APS does not require Mr. Quinn’s consent to a closing date, nor does it require him to approve or dispute the purchase price calculated by your client as mathematics are not subjective.

Please put whichever specific date your client chooses into the draft APS, with the accurate amount based on the term, and send it to me so that I may take it to Mr. Quinn’s counsel for review. This is the exact course of action I set out for Ms. Payne on August 7^th, 2020 and yet here we are…

I continue to await receipt of the required documentation from your office to move this matter forward.

[81] Hugh Franklin claims that he advised Elwood Quinn of the communication with Mr. Schmidt, and that Mr. Quinn arranged a teleconference with counsel at the Ontario-based law firm of Kelly Santini. They reviewed the documentation Mr. Franklin provided them and were prepared to assist in effecting the transfer of the property.

[82] On September 17, 2020, Hugh Franklin was permitted access to the property to check the smoke alarms.

[83] On September 25, 2020, Mr. Franklin had the roof and foundation inspected at the property.

[84] On September 29, 2020, Hugh Franklin attended a telephone Review Hearing before the Landlord and Tenant Board in regard to Linda Jones’ Request to Review the Order of Member Lang issued May 20, 2020, terminating her tenancy effective June 30, 2020.

[85] On September 29, 2020, Philip Jones emailed Trish Mutch at Mutch Property Group, “looking for advice and financing to buy back the family farm”. Ms. Mutch responded requesting that Mr. Jones give her a call. There was certainly no financing secured at that time.

[86] September 30, 2020 came and went with nothing further occurring.

[87] On October 2, 2020, inspections were carried out at the property. During an inspection of the plumbing system, Mr. Franklin discovered that Linda Jones had removed the water pump from the barn. It was also discovered that the electrical service had been tampered with rendering it unsafe to operate. When the plumber left to get a replacement water line and returned, he was refused entry by Linda and Philip Jones. Hugh Franklin called the police to assist, and the plumber was allowed entry to make the repair. While he was doing the repair, an electrician inspected the tree-mounted panel box by the bunkhouse and determined that it was receiving electricity from the house which was a danger to the already overloaded breaker box. When they went into the basement to determine if the power to the tree-mounted panel could be disconnected, they determined that it was connected ahead of the main breaker box and that the main breaker box itself had been tampered with and was unsafe to use. The electrician reported the issues to Hydro One who disconnected the power.

[88] Despite having been served a Notice of Entry on October 2, 2020, Linda Jones refused to permit access to Hugh Franklin, the municipal fire/building inspector, and the municipal property standards officer on October 8, 2020.

[89] The request by Linda Jones to review the Landlord and Tenant Board Order, TEL-05829-19, was granted on October 8, 2020. It was also ordered that Mr. Quinn’s application be heard de novo.

[90] On October 11, 2020, a senior area supervisor of the ESA and two police officers attended the property. The supervisor advised that there were serious deficiencies posing risk to life and property and that he would be sending Mr. Franklin a list of defects to be corrected. On October 13, 2020, ESA inspector, Jarrod Kappel, issued a Hazardous Investigation Defect Notice.

[91] On December 1, 2020, Elwood Quinn issued a claim in the Cobourg Small Claims Court, SC-20-00000203-0000, seeking damages arising from an alleged breach of the APPS by Linda Jones. On December 15, 2020, Linda Jones defended this claim.

[92] Also in December 2020, Linda Jones filed her own application to the Landlord and Tenant Board, and Hugh Franklin, on behalf of Elwood Quinn, filed another L2 Application for termination, TEL-13905-20.

[93] On February 1, 2021, a Notice of Video Hearing at the Landlord and Tenant Board, for Application TEL-05829-19, was sent out to the parties, scheduling the hearing for February 25, 2021 at 9:00 am.

[94] On February 19, 2021, Trish Mutch emailed Philip Jones stating in part as follows:

I am confirming that you have been approved for a mortgage to purchase the property…in the amount of at a rate of 12% for $400,000 for one year with monthly payments of the interest only and a balloon payment at the end. There is also a 2% lender fee and a one year option to renew.

On cross-examination, Ms. Mutch confirmed that at the time of this correspondence, she “conservatively” valued the property at $700,000. She remains willing to provide a mortgage to re-purchase the subject property on similar terms to those described on February 19, 2021.

[95] On February 24, 2021, at 9:09 pm, the night before the Review Hearing at the Landlord and Tenant Board, Morgan Payne of Schmidt Law Legal Services sent an email to Hugh Franklin containing an APS dated February 23, 2021, signed by Philip Jones only. The purchase price noted was $384,000.00. The offer was irrevocable by the seller until 4:30 pm on February 26, 2021. The closing date suggested was May 31, 2021. The APS was conditional upon the Buyer being able to arrange financing within five banking days after acceptance of the offer. Ms. Payne also directed the email to Daswood Nasir, Linda Jones’ counsel of record before the Landlord and Tenant Board.

[96] On February 25, 2021, several applications were before the Landlord and Tenant Board, including:

a. TEL-05829-19 – Elwood Quinn’s application for an order to terminate the tenancy and evict Linda Jones because, allegedly, she or another occupant of the rental unit had willfully and negligently caused undue damage to the premises. [This was the application which was successfully reviewed by Ms. Jones and set for a de novo hearing]

b. TEL-13905-20 – Elwood Quinn’s application for an order to terminate the tenancy and evict Linda Jones because, allegedly, she had substantially interfered with the reasonable enjoyment or lawful right, privilege or interest of the landlord or another tenant, and seriously impaired the safety of persons.

c. TEL-15908-21 – Elwood Quinn’s application for an order to terminate the tenancy and evict Linda Jones because, allegedly, she or another had committed an illegal act or had carried out or permitted someone to carry out an illegal trade, business or occupation in the rental unit.

d. TET-08141-20 – Linda Jones’ application for an order determining that the landlord harassed, obstructed, coerced, threatened or interfered with her, substantially interfered with the reasonable enjoyment of the rental unit by the tenant or by a member of the tenant’s household, and withheld or deliberately interfered with the reasonable supply of a vital service, care service, or food that the landlord is obligated to supply under the tenancy agreement.

At the hearing, counsel for Linda Jones filed and relied on the recently prepared APS. The matter was adjourned to allow more time to hear evidence and testimony.

[97] On March 1, 2021, Hugh Franklin emailed Morgan Payne of Schmidt Law Legal Services, acknowledged receipt of the APS, and stated as follows:

I have attached a copy of my correspondence to yourself dated August 7^th, 2020, in reply to your threat to initiate an action to force the sale of the property should I not provide you with the final version of the Agreement of Private Purchase and Sale (August 4^th, 2020). Once you have reviewed the aforementioned correspondence I suggest you:

a) consult with Mr. Schmidt, your principal, who followed up on the matter when you chose not to respond or even acknowledge my reply correspondence, and,

b) consult with your client(s) as to the status of Ontario Superior Court of Justice, Cobourg Small Claims Court File No. SC-20-00000203 which has been brought as a direct result of your client’s breech of the Agreement of Private Purchase and Sale.

The APS was not signed by or on behalf of Elwood Quinn.

[98] On March 8, 2021, Hugh Franklin served N5 notices on Linda Jones detailing Mr. Quinn’s concerns about the operation of the campsite and firepits, bunkhouse, and outhouses. According to Mr. Franklin, he was advised by the municipal building inspector that should they view the bunkhouse and determine that it had been constructed without a permit, they could issue a fine of $50,000, order the work stopped to obtain a permit, or order him to render the structure uninhabitable by opening it to the elements, specifically by removing the doors.

[99] On March 16, 2021, Mr. Franklin advised Mr. Nasir, counsel for Ms. Jones before the Landlord and Tenant Board, that he would be having contractors attend the property and bring the bunkhouse into compliance with the municipal bylaws.

[100] On March 18, 2021, Hugh Franklin and a contractor attended the property, specifically for the purpose of remedying the insurance companies concerns and to bring the bunkhouse into compliance with the municipal bylaws. According to Hugh Franklin, the contractor was assaulted by Linda Jones, specifically while the contractor was in the process of removing the doors from the bunkhouse, Hugh Franklin stated that he watched Linda Jones enter the building and forcefully kick the door he was removing, causing it to fall off of the building striking the contractor on the arm. Linda Jones was ultimately restrained by her son. Also while in attendance, Hugh Franklin stated that he observed a large fire pit approximately 20 meters from the pond in the environmentally sensitive area and noticed that Linda Jones was feeding her horses on the lawn of the property in immediate proximity to the well. An N7 Notice was issued. According to Mr. Franklin, the contractor installed a temporary support for the front porch roof but would not return to the property as a result of the incident that occurred. On that date, the contractor removed the doors from the bunkhouse.

[101] On March 24, 2021, Mr. Schmidt sent a letter to Hugh Franklin, with an APS dated March 23, 2021. The APS represented an unconditional offer by Linda Jones and Philip Jones to purchase the property and was irrevocable for acceptance until 4:30 pm on March 26, 2021. The purchase price was again $384,000 and the suggested closing was May 31, 2021. On cross-examination, Trish Mutch confirmed that she was prepared to provide the financing for a May 31, 2021 closing date.

[102] On March 26, 2021, Hugh Franklin wrote to the law clerk acknowledging receipt of the correspondence and asked her to consult with Mr. Schmidt and advise if their firm was representing Linda Jones in the Small Claims action.

[103] On April 12, 2021, Hugh Franklin came to understand that Linda Jones had started advertising the property for rent as a commercial market garden site and for the installation of tiny homes or trailers. She advertised on EcoProperty.ca and on Facebook. On that day, Mr. Franklin served Linda Jones with an N7 Notice for termination of the tenancy on the grounds that she was allegedly subletting the property and filed it in support of the L2 Application in TEL-17021-21.

[104] On April 15, 2021, Hugh Franklin received an Endorsement from the Landlord and Tenant Board, dated April 13, 2021 indicating that all 4 applications (three from Mr. Quinn and one from Ms. Jones) would be heard at the same time. The matter was scheduled for video hearing for May 20, 2021.

[105] On April 28, 2021, Linda and Philip Jones issued a Notice of Application, CV-21-48. In the application, Linda and Philip Jones alleged a contractual interest in the property, and/or an interest by virtue of a resulting and / or constructive trust. The Applicants sought to compel the transfer of the property back to Ms. Jones pursuant to the terms of the APPS. The return date on the application was June 7, 2021. On the same day, Linda and Philip Jones filed an ex parte motion for a certificate of pending litigation.

[106] On May 3, 2021, Corkery J. heard the ex parte motion and granted an Order for a CPL in relation to the property.

[107] On May 4, 2021, Hugh Franklin signed an acknowledgement of appointment as Elwood Quinn’s Mandatary. The General Mandate for the administration of Property, as signed by Elwood Quinn, stated in part:

I invest my mandatary with the power to administer my moveable and immovable property according to the rules of simple administration.

Mr. Franklin emailed Alison Herron, law clerk at Schmidt Law Legal Services, on the afternoon of the same day, to advise of this appointment and provided a copy of the document.

[108] Also on May 4, 2021, Mr. Schmidt emailed Hugh Franklin a copy of the ex parte motion for the CPL and an Application Record for Application CV-21-48.

[109] On May 5, 2021, due to previous concerns raised by Mr. Franklin, Ms. Jones arranged for a roofing company to secure the roof of the farmhouse with a tarp.

[110] On May 6, 2021, Hugh Franklin received an email from Mr. Nasir, Ms. Jones’ counsel before the Landlord and Tenant Board, asking for his consent to adjourn the hearing scheduled for May 20, 2021, on the basis that the Applicants had filed Application CV-21-48 in the Superior Court of Justice.

[111] On May 11, 2021, Mr. Nasir wrote directly to Member Laura Hartslief of the Landlord and Tenant Board, copied to Hugh Franklin, indicating that, as a preliminary matter, he would be seeking dismissal of the Landlord and Tenant Board applications or in the alternative a stay pending resolution of Application CV-21-48. In the event that the hearing were to proceed on May 20, 2021, Mr. Nasir raised a number of concerns.

[112] On May 20, 2021, the Landlord and Tenant Board hearing continued. Mr. Nasir sought to have the Landlord and Tenant Board applications dismissed for lack of jurisdiction and to end the tenancy effective May 31, 2021 on the basis that Linda Jones had applied for an Order to transfer the property, stating that the Order sought in the Notice of Application was meant to be effected “immediately”. Further, Mr. Nasir sought to dismiss the applications for termination on the grounds that the General Mandate for the administration of Property was invalid. Mr. Quinn gave evidence, and the General Mandate was upheld by Member Hartslief. Linda Jones was also present and gave evidence.

[113] On May 26, 2021, Mr. Schmidt sent an email to Hugh Franklin which stated in part as follows:

Please advise whether you have retained a lawyer with respect to our client’s Application. We note that we have not served Mr. Quinn personally in accordance with the Rules but that a lawyer can accept service on behalf of Mr. Quinn in lieu of personal service. Otherwise, we will take steps to serve Mr. Quinn personally in accordance with the Rules.

Further, the currently scheduled hearing date is on June 7, 2021. We request Mr. Quinn’s availability for an adjournment and scheduling of cross-examinations in this matter. Please advise.

[114] On May 28, 2021, Hugh Franklin sent an email to Jason Schmidt, counsel for the Applicants, and stated in part as follows:

1. Although you have tacitly acknowledged in your last correspondence receipt of the General Mandate for the administration of Property dated May 4th, 2021, I have attached a notarized Specific Power of Attorney dated May 26th, 2021 which should make absolutely clear to you that I am for all intents and purposes Elwood Quinn as it concerns the disposition of his real property. I ask that you take particular note of paragraph 1.7 wherein I am authorized to effect the transfer or sale of any of his properties.

2. The terms of the buyback provision were agreed to in 2017: no warranties, no inspections, no title searches, as is where is, and clear method of calculation of the buyback price. It does not say that a new Agreement of Purchase and Sale (APS) is necessary.

3. I clearly set out my understanding of the buyback process in my letter to your subordinate Ms. Morgan Payne on August 7th, 2020 in reply to her threat to force the sale of the property. She chose not to reply. Twice.

4. Our correspondence of September 2020 clearly demonstrates that both yourself and your client understood how the purchase price would be calculated and that it would be due on the date she picked. On advisement of that date, Mr Quinn would prepare the necessary documentation to effect the transfer of the property. Despite having done the math and picked the date, she didn't go through with the purchase. Mr Quinn then instructed me to pursue his just relief through the courts and I did so in the Ontario Superior Court of Justice, Cobourg Small Claims Court file number SC-20-00000203- 0000. I clearly advised Ms. Payne of this on March 1st, 2021 following her production of an APS from Phillip Jones on February 24th, 2021.

5. In the APS dated March 23rd, 2021 your client has again fixed a date for the transfer of the property, performed the calculations necessary to determine the amount due, and then, rather than wait for reply, purports to have made a claim before the Ontario Superior Court of Justice on the basis of a presumptive breach by Mr Quinn.

6. Mr Quinn has not breached the terms of the buyback provision and per my authority under the Specific Power of Attorney, I will prepare and sign the Transfer/Deed of Land and undertake to provide all other documentation necessary to effect the transfer of the property on May 31st, 2021. All that is needed to complete the transfer is for your clients to produce the necessary funds by 6:00 p.m. on Monday May 31st, 2021.

As Mr Quinn said on July 24th, 2019 “Show me the money! Done like dinner.”

A Specific Power of Attorney dated May 26, 2021 was attached to the email.

[115] In response, on May 28, 2021, Mr. Schmidt emailed Mr. Franklin as follows:

You will require a lawyer in Ontario to effect the sale. Please advise who that is and our office will send the necessary documentation to complete this transaction. Money needs to be transferred between lawyers’ trust accounts for the purchase of real estate in Ontario.

[116] On the same day, Mr. Franklin responded to Mr. Schmidt stating in part as follows:

Although I have not renewed by OREA membership for a number of years, I still recall how to effect the sale of a property. Kindly advise when you are in funds and I will provide you with instructions.

[117] On May 31, 2021, Mr. Franklin made two requests of both Mr. Schmidt and Linda Jones to provide information necessary to complete the Transfer / Deed of Land, specifically the date of birth of Philip Jones, given that Ms. Jones indicated that she intended to purchase the property with her son. Further, Mr. Franklin asked that Mr. Schmidt advise when he was in funds so that their counsel could provide Mr. Schmidt with instructions. These emails were sent at 8:03 am and 3:16 pm.

[118] At 11:10 am on May 31, 2021, Mr. Franklin emailed Mr. Schmidt attaching a motion record, including a notice of motion returnable on June 7, 2021. In this motion, Elwood Quinn sought to have Application CV-21-48 dismissed and an Order for costs of the motion. Mr. Quinn claimed that the Applicants had failed to serve the Notice of Application in accordance with the Rules, and that the Application was an abuse of process, filed for the purposes of delaying the eviction of the Applicant by the Landlord and Tenant Board in file number TEL-05829-19.

[119] On May 31, 2021 at 4:07 pm, Mr. Schmidt emailed Mr. Franklin to confirm receipt of his Notice of Appearance for the hearing scheduled for June 7, 2021 and referred Mr. Franklin to Rule 16.01(2) relating to service. Mr. Schmidt suggested that Mr. Franklin withdraw his motion and that they proceed to work out the details of the transfer of the property. The email stated in part, “Given Mr. Quinn’s only recently stated intention to transfer the property to our clients, they are in the process of confirming when the bank funds will be available to complete the transfer…We repeat our request for Mr. Quinn’s lawyer who will complete the transfer…”

[120] On May 31, 2021 at 4:19 pm, Hugh Franklin wrote to Mr. Schmidt advising him that Mr. Quinn’s counsel at Kelly Santini was standing by to accept the funds and effect the transfer of the property. The email stated in part, “The details are quite simple. Produce the funds by 6:00 p.m. today and I will transfer the property to your clients. Advise when you are in funds and we will proceed.” At approximately 4:23 pm, Mr. Schmidt asked for the name of the counsel at Kelly Santini and stated, “As it appears that you have finally retained a lawyer, I am not permitted by my Rules of Professional Conduct to correspond with a represented party directly.”

[121] At approximately 4:35 pm, Courtney Craig of Kelly Santini emailed Mr. Schmidt with confirmation that Sasha Willms at Kelly Santini had been retained for the purposes of transferring the property “expected to close today by 6 p.m.” Mr. Schmidt claims that he did not receive this email as it was sent to the wrong email address. It is of note that the email address used for this email ended in “.ca” as opposed to the “.com” ending used previously.

[122] The Applicants did not provide the information requested to complete the Transfer/Deed of Land, did not provide any funds, and did not request any extension of time to close. On May 31, 2021, at 6:37 pm, Hugh Franklin emailed Mr. Schmidt to advise of the “formal acceptance of her breach of the buyback provision…said breach having occurred at 6:00 p.m. this day.” Mr. Franklin repeated his request for confirmation that Mr. Schmidt’s firm represented Ms. Jones on the Small Claims Court action.

[123] On June 1, 2021, Elwood Andrew Quinn commenced an application against Linda Jones - CV-21-68 – requesting an order to rescind the buyback provision and costs. The Application was returnable June 28, 2021.

[124] Also on June 1, 2021, Mr. Schmidt sent correspondence indicating that he understood that Mr. Quinn had retained the services of Kelly Santini LLP to deal with the real estate transaction, but that Mr. Quinn had not retained a lawyer to deal with the application, therefore, he requested consent to an adjournment of the June 7, 2021 application. Mr. Franklin refused consent.

[125] On June 2, 2021, Mr. Franklin requested service of any responding materials or cross-motion. Mr. Schmidt advised in an email to Mr. Franklin that he was not going to be filing any materials and would require 10 minutes to address the “frivolous motion”.

[126] On June 7, 2021, the hearing of application CV-21-48 was scheduled to take place before Justice Cameron. The endorsement of Cameron J. dated June 8, 2021 reads in part as follows:

[3] Mr. Schmidt, on behalf of the Applicant, seeks an adjournment of the application. The parties have been in discussions about resolving the matter by way of executing the agreement reached in 2017. Mr. Franklin, though having made suggestions to the contrary, has agreed that he has not retained counsel for the purpose of giving effect to the terms of the 2017 agreement and closing the deal on the property. The intention in bringing the application to enforce the agreement was to encourage Mr Franklin and/or Mr Quinn to retain counsel and move the matter forward.

[6] Mr. Franklin, on behalf of Mr Quinn opposes the adjournment. Rather, he has served and filed a motion to dismiss the application for want of proper service and because he takes the position that the application is without merit. Mr Franklin has filed his own application that was served on Ms. Jones three days ago. The issues raised in that application relate to the enforcement of a separate agreement of purchase and sale of the same property.

[7] Given the fact that Mr Quinn has not been personally served; the position of the Applicant that Mr Franklin is required to hire a lawyer to represent Mr Quinn; and the lack of a record before me on this issue, I am granting an adjournment of both the application to enforce the buyback agreement and the Respondent’s motion to dismiss that application.

[8] The parties agree that these applications should be heard on June 28, 2021 with the other motion filed by the Respondent (CV-2100068) with one caveat. Mr. Schmidt, counsel for the Applicant on this matter has not been retained with respect to the other matter and is currently unavailable on June 28, 2021. He does, however, agree it is likely that his other commitment will be cancelled. Therefore, this matter will proceed on June 28, 2021 subject to the availability of Mr. Schmidt. The Applicant will personally serve Mr. Quinn with their material within three days of the release of this Endorsement.

Therefore, both the motion and the application were adjourned to June 28, 2021.

[127] On June 9, 2021, Mr. Schmidt had Tanya Wiseman, a Quebec Bailiff, serve Mr. Quinn with the Application and Motion Record dated April 28, 2021.

[128] On June 17, 2021, Mr. Franklin served both an amended Motion Record for the dismissal motion and an Amended Application Record for the recission application (CV-21-68).

[129] On June 22, 2021, counsel on behalf of Linda and Philip Jones served a motion to consolidate the transfer Application and the recission Application and to compel Mr. Quinn to retain a lawyer.

[130] On June 25, 2021, Hugh Franklin discovered that Philip Jones, under the name Wholearth Farmstudio, was renting out campsites with fire pits on a website called Hipcamp.com and was selling campers firewood. Further, Linda Jones and or Philip Jones had finished the interior of the bunkhouse and Phillip Jones had listed it for rent on Airbnb as a “Watershed Bunkie” with the bunkhouse having been reserved for eight days in July. The ad also showed that they were still using the outhouses constructed and offering campsites with fire pits. Mr. Franklin advised Mr. Quinn of these discoveries.

[131] On June 28, 2021, the hearing of the motion and application pending before the Superior Court of Justice was adjourned on consent to July 6, 2021.

[132] On June 29, 2021, Mr Quinn filed an ex parte motion for an interim injunction to prevent Linda Jones from operating a campground on the property. On that day, Verner J. made an Order that:

a. On an interim basis, that Linda Jones, Phillip Jones, and any owner, operator, employee, client, or guest of Wholearth Farmstudio shall immediately cease and desist any and all commercial activities on those portions of the property not designated as residential;

b. On an interim basis, that Linda Jones, Phillip Jones, and any owner, operator, employee, client, or guest of Wholearth Farmstudio shall not enter any portion of the property not zoned residential;

c. On an interim basis, that Linda Jones, Phillip Jones, and any owner, operator, employee, client, or guest of Wholearth Farmstudio shall not construct, alter, repair, damage, or demolish any structures on any portion of the property without the consent of the owner.

It is of note that this ex parte motion failed to disclose to the court the status, or even the existence, of the two Applications before the Court being CV-21-48 and CV-21-68.

[133] On July 1, 2021, Hugh Franklin served Linda Jones with the Order of Verner J. and also provided her with a letter directing her to remove her personal effects from the barn immediately and to remove the livestock from the property immediately. At that time, Mr. Franklin observed a number of vehicles, including a travel trailer in the field west of the barn, and at least five people in the area around the bunkhouse and in the field east of the house. Mr. Franklin also served Linda Jones with an “Accommodation Information Sheet” and a “Notice” indicating that he intended to attend at the property with tradespersons for the purpose of completing repairs.

[134] On July 2, 2021, Hugh Franklin attended at the property with his daughter and the police. This was not a positive visit to say the least.

[135] On July 3, 2021, Hugh Franklin attended near the property and observed that the travel trailer present in the west field on July 1, 2021 was still there. There was a jersey calf penned behind the barn and, pastured in the adjacent field west of the barn, there was a jersey cow. He also observed at least 2 pigs. Mr. Franklin posted “no trespassing” signs on all entrances to the non-residential portions of the property. In addition, he posted signs on the door to the upper level of the barn and secured it from the inside by screwing two boards across it. He observed clothing, personal effects and food inside the bunkhouse. He turned off the power because he claimed that the ESA issued a work order detailing dangerous electrical wiring in the barn.

[136] On July 4, 2021, Hugh Franklin again attended at the property with police and the visit was volatile. On this occasion, Mr. Franklin entered the barn and discovered that the power was turned back on, and the barriers removed. The “no trespassing” signs had been removed. On that day, Mr. Franklin had a green flatbed truck and an Airstream trailer taken off the property.

[137] On July 6 and 7, 2021, CV-48, CV-21-68, and CV-21-75 were set to proceed before Lavine J. On July 7, 2021, the matters were adjourned, however, it was ordered that:

a. Verner J.’s order was stayed on a temporary basis pending further order of the court;

b. Ms. Jones and Mr. Jones were not to permit any short-term rental accommodation at the property, or permit anyone to reside at the property, save and except for themselves and Ronnee Sykes, for the duration of the temporary stay of Verner J.’s order;

c. Mr. Quinn, Mr. Franklin, and agents or third parties on their behalf, were prohibited from entering the property until further court order;

d. All proceedings court files CV-21-48, CV-21-68 and CV-21-75 were adjourned to July 12, 2021.

[138] On July 12, 2021, the matter returned before Lavine J. At that time, Erik Savas had been retained to represent Elwood Quinn in relation to CV-21-75 (Mr. Quinn’s motion for an interim injunction) and as respondent in the cross-motion brought by Linda Jones, Philip Jones and Wholearth Farmstudio, although Mr. Savas advised that he was likely to be retained for all matters. On the agreement of the parties, the court found that the Order made by Verner J. dated June 29, 2021, should not have been for a period exceeding ten days. In any event, Mr. Quinn did not seek an extension or further injunctive relief. Therefore, the Order of Verner J. was dissolved. At that time, Linda Jones, Philip Jones and Wholearth had brought a motion for the return of chattels removed from the property, that Mr. Franklin not be permitted to bring any proceedings in relation to the property unless represented by counsel or with leave of the court, and an order that any attendance at the property by Mr. Quinn, Mr. Franklin, or their agents, be arranged by counsel for Linda and Philip Jones and counsel for Mr. Quinn with at least 48 hours notice, and failing agreement, Mr. Quinn may move on notice for an order permitting access. The submissions did not complete on that day and the motion was adjourned to July 13, 2021, the following day. Mr. Quinn agreed not to attend, or direct Mr. Franklin or others to attend the property, pending the determination of the motion.

[139] It was, ultimately, agreed by the parties and ordered that:

a. Applications CV-21-48 and CV-21-68 would be consolidated and heard together or one after the other;

b. Elwood Quinn was to appoint a lawyer to represent him in these proceedings within 30 days;

c. Elwood Quinn was to be represented by counsel in Applications CV-21-48 and CV-21-68, including any motion brought in those files, or any future proceedings, unless leave was obtained;

d. Applications 48 and 68, including all pending motions, were adjourned to a date in mid-September, 2021 to be arranged through the trial coordinator at which time a timetable would be set if not already agreed upon.

[140] On July 14, 2021, the Landlord and Tenant Board issued an Order dismissing all of the applications for lack of jurisdiction, declaring the Rental Agreement was not a residential lease.

[141] On July 16, 2021, Lavine J. made the following order:

a. Elwood Quinn would maintain possession of and preserve the Airstream trailer and landscaping truck at his expense for 30 days or further order of the court;

b. Hugh Franklin shall not bring any proceedings in respect of the property unless leave of the court was obtained;

c. Elwood Quinn would have reasonable access to the property on 24 hours notice.

[142] On July 20, 2021, Mr. Franklin sent an email to Linda Jones, Jason Schmidt and Erik Savas, stating as follows:

As Member Hartslief’s Order issued on July 14, 2021 makes clear that your tenancy does not fall under the jurisdiction of the Landlord and Tenant Board, attached is a Notice of termination of lease given pursuant to s. 19(2) of the Commercial Tenancies Act, arising from the six (6) clear breaches of the Rental Agreement.

Govern yourself accordingly.

Attached was a Notice of Termination for breach of lease, dated July 20, 2021, under s. 19 of the Commercial Tenancies Act outlining six purported breaches of the Rental Agreement in the APPS dated February 25, 2017, which were specified as follows:

• Construction and use of a bunkhouse without a municipal permit;

• Using the property as a commercial campground contrary to municipal bylaw;

• Subletting the property for commercial use and residency without his consent;

• Using the property to house, raise and sell livestock without his consent and without a license as required by the municipality;

• Using the property for residential purposes without a building or occupancy permit from the municipality; and

• Failing to maintain the property in accordance with the Municipal Property Standards Bylaws.

[143] On July 26, 2021, having received no response to the notices, Hugh Franklin sent a request to Mr. Schmidt asking him to confirm if he had been retained in relation to the Notice of termination of lease.

[144] On August 3, 2021, Hugh Franklin served a Notice of Entry, advising of his intent to attend the property on August 5, 2021.

[145] Also on August 3, 2021, Mr. Schmidt emailed Mr. Franklin to advise that he was retained to deal with the Notice of Termination dated July 20, 2021 and Notice of Entry dated August 3, 2021. Mr. Schmidt advised that he had contacted the trial coordinator to arrange an urgent motion date under Court File No. CV-48 to address these matters.

[146] In response, also on August 3, 2021, Mr. Franklin responded to Mr. Schmidt acknowledging his correspondence. Mr. Franklin also advised that August 9, 2021 had already been scheduled for Mr. Quinn’s motion for a Writ of Possession and that counsel would be retained for that appearance. As for the Notice of Entry, Mr. Franklin directed Mr. Schmidt to Lavine J.’s decision of July 16, 2021.

[147] On August 4, 2021, Jason Schmidt was served with a formal written demand that Linda Jones go out of possession of the property immediately, given that the breaches had not been rectified.

[148] On August 5, 2021, Hugh Franklin attended the property at approximately 2:23 pm in accordance with his earlier Notice of Entry. The visit was not a positive one to say the least.

[149] On August 11, 2021, Hugh Franklin sent a Notice of Entry to Linda Jones for August 13, 2021 and August 14, 2021.

[150] On August 13, 2021, Mr. Franklin attended the property and found the gate to the laneway locked. He entered the property through the field gate on the west side of the main gate and took pictures of the piles of trees for the contractor who was to come and remove them. He then drove up toward the barn and when he tried to go through the gate into the barnyard, Philp Jones held it shut and refused to let him through. Mr. Franklin went back to the roadway and Linda Jones and Philip Jones blocked both field gates on either side of the main gate with vehicles and parked a car in the laneway behind the locked gate.

[151] On August 15, 2021, Application CV-21-86 was brought by Elwood Quinn, seeking a declaration that the terms of the APPS dated February 25, 2017, created a commercial tenancy and for an order terminating the tenancy, alleging long-standing and continued breaches. Linda Jones also brought a motion seeking a declaration that Elwood Quinn was a vexatious litigant and an order that this application be consolidated with CV-21-48 and CV-21-68. This came before Justice Lavine on August 30, 2021.

[152] On September 27, 2021, Hugh Franklin attended at the property with police to initiate criminal charges against Mr. Jones for an alleged theft of hay. These charges were later withdrawn.

[153] On October 1, 2021, Mr. Franklin served another “Notice of Termination of Lease for Breach” alleging that Ms. Jones altered the electrical safety system for the bunkie without obtaining a permit from the Electrical Safety Authority based on alleged grounds dating back to October 2020.

[154] On October 4, 2021, Lavine J. ordered as follows:

a. Mr Quinn was to continue to preserve the Airstream and the truck until such time as a motion for the return of the vehicles could be heard;

b. Ms. Jones was not to engage in any commercial activities on the property, including leasing any part of the property to any third party for short term or residential accommodation or camping activities;

c. Ms. Jones was not to occupy or permit anyone to occupy the bunkhouse;

d. Ms. Jones was not to permit any third party to occupy the property, other than her son, Phillip Jones and Ronnee Sykes, until further court order;

e. Any hay collected by Ms. Jones was to be left on the property and preserved pending the determination of entitlement to the hay;

f. The parties were directed to apply to the RSJ for the appointment of a case management judge;

g. The issue of consolidation of this application with applications 48 and 68 was to be on notice to the responding party, Bank of Nova Scotia;

h. No further proceedings were permitted by either party, without leave of the court, on evidence of urgency and imminent harm to property or person, or for contempt of a court order.

[155] On October 15, 2021, a case conference was held with Lavine J. The parties agreed to a timetable for the applications. Mr Schmidt raised concerns about Mr Franklin's ongoing attempts to access the property. Mr. Savas raised concerns that access had not been provided, however, advised that arrangements had been made for an attendance on October 18, 2021, by Mr. Franklin, with various contractors and inspectors, including to inspect conditions in relation to electrical, fire, and the keeping of animals.

[156] Following the case conference, Mr. Franklin provided a Notice of Entry at the property for October 18 and 19, 2021 “to ensure that Mr. Quinn’s property is safe and secure from further damage and in compliance with all governmental regulations, bylaws and codes”. Mr. Franklin indicated that he would be accompanied by various contractors and a home inspector, who would “perform such inspection and repairs as are necessary to ensure that the defects specified in the Notice of Termination of lease for breach dated July 20, 2021 and the Notice of Termination for lease for breach dated October 1^st, 2021 are remedied.” The assistance of the OPP had been requested to keep the peace.

[157] On October 18, 2021, Mr. Franklin attended as scheduled with:

a. Shannon Howe of the Canadian Food Inspection Agency;

b. Ty Rule, a Municipality of Trent Hills By-Law Enforcement officer;

c. Brian Buchanan, a Municipality of Trent Hills Building and Fire Inspector;

d. Gage Comeau, a Lower Trent Conservation Authority regulations officer;

e. Mike Bernach of Infinite Electric

Mr. Franklin also brought a livestock trailer to remove animals from the property. No correspondence or reports have been produced from any of these individuals to indicate any outstanding issues or concerns.

[158] Further case conferences were held on November 16, 18, and 22, 2021.

[159] On November 24, 2021, Mr. Franklin served a “Notice of Entry” on Ms. Jones for at attendance on November 26 and 27, 2021, purporting to attend at the property to inspect and repair the roof, electrical system, foundation, furnace, wood burning appliances, and water potability / sanitation. The Notice stated that “we will perform such inspection and repairs as are necessary to ensure that the defects specified in the Notice of Termination of lease for breach dated July 20, 2021 and….October 1, 2021 are remedied…” The Notice stated that inspectors from the Northumberland County Health Unit or designates would also be attending. Finally the Notice directed Ms. Jones to provide:

a. Unimpeded access to the property;

b. Access to the basement through the building and to the foundation from all sides;

c. Access to the interior of the roof through the two bedrooms on the second floor;

[160] On November 26, 2021, Mr. Franklin attended at the property but did not perform any tasks outlined in the Notice. He stated that he found the gate locked and was, therefore, denied entry.

[161] On December 7, 2021, Speyer J. heard a motion brought by Ms. Jones seeking an interlocutory injunction prohibiting Mr. Franklin, Mr. Quinn or his agents from entering upon the property. Ms. Jones also sought an order consolidating the three applications. Mr. Quinn had also brought a motion to have Ms. Jones held in contempt of an order made by Lavine J.

[162] While the decision of Speyer J. was still on reserve, on March 8, 2022, Mr. Quinn, through Hugh Franklin, served a Notice of Termination of lease for breach pursuant to the Commercial Tenancies Act.

[163] On March 29, 2022, Speyer J. ordered:

a. All three applications would be heard together or one after the other as may be determined by the application judge;

b. Ms. Jones’ motion for an injunction was dismissed;

c. The balance of Ms. Jones’ motion was dismissed as abandoned as it was not pursued of the hearing of the motion;

d. Mr Quinn's motion to have Ms. Jones found in contempt was not on the docket and the court declined to hear it;

e. No costs were ordered

[164] A further case conference was held on March 30, 2022. Lavine J. ordered that the trial coordinator would contact the parties to schedule the undertakings and refusals motion before her within the next few weeks, following which a further case conference would need to be scheduled. The preservation order with respect to the Airstream trailer and landscaping truck was continued.

[165] Mr. Franklin attended at the property on April 4, 2022. Again, he stated that he was unable to perform any tasks as intended, as he was denied entry to the main building.

[166] Also on April 4, 2022, Mr. Schmidt, counsel for the Jones’, confirmed that Linda Jones would not go out of possession of the property and that on receipt of any Application in relation to the Notice of Termination, he would seek to consolidate it with the other pending Applications.

[167] On April 8, 2022, Mr. Franklin attended at the property with a roofing contractor. On this occasion he:

a. removed the tarp on, tore shingles off of, and cut holes into the roof of the farmhouse (photo 8 of Exhibit 3) – The picture shows a portion of the sunroom addition, specifically the area of the roof where the tarp was located prior to this date. Mr. Franklin claimed that the roofing contract removed shingles that day “pursuant to his trade” not at his direction, as Mr. Franklin simply told the contractor to go up and tell him if it could be repaired. Mr. Franklin did agree that the roofing contractor did remove shingles that day and left it as is depicted in photo 8 and 9 of Exhibit 3. Photo 10 of Exhibit 3 shows shingles left on the ground.

b. severed the hydro line, thereby disconnecting the electricity, water and heat to the farmhouse (photo 11-12 of Exhibit 3) – The picture shows cut hydro lines. Mr. Franklin admitted that he did this, after having given Ms. Jones information that the power would be interrupted.

c. damaged the electrical panel and breakers in the barn (photo 4-5 of Exhibit 3) – Mr. Franklin did not agreed that he interfered with the electrical panel, but agreed he disconnected the electricity that day.

d. disabled the hydro meter (photo 6 of Exhibit 3) – The picture shows expanding foam insulation in the electrical meter. Mr. Franklin agreed that he did this and stated that he locked it as well.

e. removed the doors to the bunkie (photo 1-3, Exhibit 3) – Mr. Franklin claimed that no building permit had been obtained to construct the bunkie. Therefore, the door was removed in order to bring the structure into compliance with municipal building bylaws, as this way, Mr. Quinn would not be liable for a fine for constructing a structure without a permit. Mr. Franklin agreed that it was his intention to render the bunkie uninhabitable.

Mr. Franklin physically blocked access to the property by parking his vehicle across the access road and locking the access gate with chains and a padlock. Mr. Franklin then slept in his vehicle overnight at the entrance to the property.

[168] In his testimony, Mr. Franklin stated that he attended at the property on April 8, 2022 for inspection and repairs, which was to include the interruption of power and water. Mr. Franklin stated that the contractor was prevented from putting a tarp on the roof. Mr. Franklin claimed that Ms. Jones refused to leave. Mr. Franklin explained that he was ultimately thwarted in continuing his repairs. He then left and waited to take “peaceful possession” pursuant to instructions from the bailiff, when the occupants left the property. He stated that there was no use of force. He locked and chained the gate, and posted a sign that he had possession and intended to keep it. Mr. Franklin stated that it mattered not to him whether Ms. Jones was there on the property or not. In the view of Mr. Franklin, he was entitled to take possession – peaceful possession – of Mr. Quinn’s property.

[169] Following his attendance on April 8-9, 2022, Mr. Franklin sent a notice to Ms. Jones’ lawyer purporting to take “peaceful possession” of the subject property, threatening to seize Ms. Jones’ personal belongings, and demanding that her animals be removed from the property. He purported to terminate Ms. Jones lease again on the basis that the integrity of the roof had been compromised.

[170] Mr. Franklin was adamant that he was peaceful in taking possession, however, Ms. Jones returned, broke through the gate, and refused to leave.

[171] On April 13, 2022, Elwood Quinn brought a motion for an interim injunction which came before Leibovich J. Specifically, Mr. Quinn requested an urgent motion for an interim injunction for an order that Linda Jones immediately vacate the property and be prohibited from re-entering the property, and for an Order granting leave to commence an Application for damages arising from Ms. Jones illegal re-entry of the property. The Notice referred to concerns as follows:

7. At present rain is forecast on 8 of the next 10 days and precipitation infiltrating the supports, wiring, fixtures, foundation and insulation will undoubtedly exacerbate the existing issues and / or cause new ones. The building is structurally unsound, there is no electrical service, safe supply of heat, potable water or sanitation.

The matter was adjourned to April 25, 2022 to allow the responding party time to file a response. The Court ordered that, in the interim, Mr. Quinn, or his agents, would have access to the property, on 24-hour notice, to effect repairs to the roof and to inspect and repair the hydro, and that during this time neither Ms. Jones nor anyone else shall be at the property.

[172] On April 15, 2022, Mr. Franklin attended at the property. Mr. Franklin stated that he attended that day to get inside the main building and to assess the condition of the roof and structure. On that day, he was accompanied by a roofing contractor and general contractor. He and his agents removed more shingles from and cut further holes in the roof, failed to adequately cover the further holes created, severed the satellite internet connection, made no attempt to restore power, and used a sledgehammer to knock down the supporting posts thereby tearing the front porch off of the farmhouse. Mr. Franklin indicated that minutes before he arrived at the property, counsel for Ms. Jones had sent a letter to Mr. Quinn’s lawyer indicating that Ms. Jones had recently returned to the country, had COVID-19, and was recovering in the building without power or water. Photographs from that day showed the following:

a. Photo - Time stamp – 2022-04-15 05:59:26 Fri

This shows the roof before Mr. Franklin and the roofing contractor attended that day. The roof is tarped.

b. Photo 14 - Time stamp – 2022-04-15 09:30:43 Fri

Mr. Franklin stated that Mr. Fisher, the roofing contractor, is on the left and he is on the right. They are removing more shingles

c. Photo 1 of Exhibit 6 – Time stamp – 2022- 04-15 11:37 am

This photo shows a person swinging a sledgehammer knocking out a support post for the porch. Mr. Franklin was asked whether he covered the windows, to which he stated he assumed that was why the doors were present in the picture – to protect the glass. Mr. Franklin did not recall if this person took any other measures to protect the glass which is still visible in the photographs.

d. Photo 3 of Exhibit 6 – Time Stamp – 2022-04-15 01:38 pm

This shows the house with the porch collapsed. Mr. Franklin testified that Ms. Jones made herself visible and so they left. There was a tarp on the sunroom which appeared intact and in place to cover the holes. Mr. Franklin agreed that the state of the house in this photo, with the porch collapsed, is how it was when they left the property. According to Mr. Franklin, the porch was removed in a good and workmanlike manner and in compliance with regulations and bylaws. Mr. Franklin agreed that they destroyed the front porch, which was required so as to not be a danger to anyone. Mr. Franklin agreed he was present when the porch was removed. The contractor arrived, and the supports were removed with a sledgehammer, two out of five of which were rotten. They removed the remaining three by towing them out with a vehicle, which he stated was the safest way possible. The porch came down. He agreed that this was the way they left it that night, in fact until early May.

[173] On April 25, 2022, this matter returned before Leibovich J. for a hearing. As previously indicated, Mr. Quinn had brought a motion submitting that Ms. Jones was a trespasser and that she should be ordered removed from the property. He also wished leave to commence an application for damages arising from Ms. Jones tenancy and her illegal entry to, and unlawful occupation of, the property. On April 29, 2022, Leibovich J. denied Mr. Quinn’s request for leave to launch a new application and also dismissed his request for Ms. Jones to vacate the property. However, he did set up a plan to have the roof repaired and the electricity turned on.

[174] On May 2, 2022, Mr. Franklin attended at the property for an inspection pursuant to the Order of Leibovich J. Again, a roofing contractor attended. No repairs were performed to the roof or electrical systems. A portion of the east wall was torn out, insulation was removed, and sealed hatches into the attic in both Mr. Jones and Ms. Jones bedrooms were removed, thereby exposing same to the elements due to the holes in the roof created earlier. Mr. Franklin agreed that by this point only portions of the tarps were on the roof, but portions were exposed to water penetration.

[175] On May 4, 2022, Mr. Savas, counsel for Mr. Quinn, sent an email to Mr. Schmidt, attaching a “Work Plan”, as ordered by Justice Leibovich on April 29, 2022. The email stated that the “Work Plan” had been created with reference to and in consultation with a number of sources and individuals. The “Work Plan” stated that “all work will be done in a professional and workmanlike manner and in accordance with governmental regulations, by laws and codes.” The work included repairs to the roof, electrical, foundation, plumbing and interior. The “Work Plan” also stated:

Re-energization of the electrical system requires an inspection by the Electrical Safety Authority following repairs being made by a licensed electrical contractor.

Site preparation will require the removal of personal possessions from the active work zones. Any items left within the work zones designated in the Notice of Attendance will be removed.

This email and work plan were marked as Exhibit 4.

[176] On May 9 and 10, 2022, Mr. Franklin attended at the property with several persons. The stated objectives for May 9, 10 and 11, as stated in the Notice of Attendance, were the following:

a. Site preparation including the installation of sanitation and debris removal equipment will be taking place

b. A designated Substance Survey will be taking place

c. Inspection and repairs per Stage 1 and Stage 2 s. 7 will be taking place.

The designated active work zones were the area extending from the west side of the building a minimum of 50 metres, inclusive of the driveway; the area extending from the east side of the building a minimum of 50 metres; the area extending from the south side of the building, and the interior of the sunroom addition. Ms. Jones was directed to provide unimpeded access. On those days, Mr. Franklin did the following things, or caused the following things to be done:

a. Removed personal belonging from the home and sunroom, including disconnecting the refrigerator, washer and dryer and placing them outside and in the kitchen and living room, rendering them inaccessible and unusable;

b. Left debris, including nails and shingles, strewn about the property;

c. Removed the patio doors from the sunroom;

d. Cut out the walls and structural supports from the east side of the sunroom, causing it to collapse under its own weight.

Mr. Franklin agreed that they did not repair the roof. The photographs entered as Exhibit 7 show some of the things done on those days and how the property appeared. He stated that he cleared the building on May 9 so that work could continue on May 10. The hydro had been disconnected on April 8, so the property was unusable a month earlier. Mr. Franklin agreed that he had no intention of reconnecting the hydro. The electricity was not coming back until the work was complete.

[177] According to Mr. Franklin, the work to remove the sunroom commenced on May 10 and was to continue on May 11, however, it did not happen, as following a portion of demolition by Mr. Franklin and others with hand tools and a reciprocating saw, the side wall collapsed as depicted in the photographs. According to Mr. Franklin, on May 11, Occupational Health and Safety observed that the sunroom had collapsed overnight and issued a stop work order, indicating that they would need an engineer before they kept going and suggested that they enclose the area with a snow fence. When asked why they did not support the roof of the sunroom, he stated that this was how the contractors performed the work and it was not his concern. Ms. Jones was not supposed to be in the work area. He agreed that they did not make efforts to support the building over night, as they were to attend the next day and knock it all the way down.

[178] On May 12, 2022, Ms. Jones was informed that, as a result of a partial collapse of the sunroom, undue stress may have been put on the east wall of the main building, rendering it unsafe for Ms. Jones to reside there.

[179] On May 17, 2022, Mr. Franklin and another individual attended at the property and advised Mr. Jones to vacate the property immediately. No work was completed that day. According to Mr. Franklin, he did not enter the property. He found the gate locked. Mr. Jones was behind the gate and refused to leave. Mr. Franklin agreed that no repairs were to be done to the roof that day as the “building was to come down”.

[180] On May 20 and 27, 2022, case management conferences were held, and the three applications were set to proceed on June 2 and 3, 2022.

[181] As of the time this application completed, more than two months had passed with holes still in the roof, no electricity, no heat, and no running water. According to Mr. Franklin, work has not been completed due to Linda Jones and Philip Jones frustrating access.

Leave to Cross-examine Hugh Franklin

[182] At the outset of the hearing of the applications, Linda and Philip Jones requested leave to rely on affidavits of Linda and Philip Jones sworn on December 3, 2021, April 22, 2022, and May 18, 22. This court granted leave to do so. Further, even though not requested, this court indicated that it would permit cross-examination on those affidavits by counsel for Mr. Quinn. This offer was declined.

[183] Further, this court granted leave for a viva-voce cross-examination of Hugh Franklin during the hearing of the Applications. It was intended that this cross-examination would focus on events that had allegedly arisen since his previous examination for discovery in November 2021. This court also offered to allow for an examination in chief which was declined.

[184] This court indicated that more fulsome reasons would be provided for this decision.

[185] Hugh Franklin was cross-examined on November 10, 2021. Since being cross-examined, Linda and Philip Jones contended that Mr. Franklin had continued to attend at the property and engage in egregious behaviour, escalating with respect to aggression and physical destruction. This behaviour was documented by Ms. Jones in the subsequent affidavits, which were provided to Hugh Franklin in advance of the multiple court attendances held prior to the applications ultimately being heard on June 2 and 3.

[186] Mr. Quinn stated that, in these circumstances, there was no issue or fact in dispute for which these affidavits would be of assistance.

[187] This court disagreed. There is a major issue / fact in dispute in these applications which is: Did the parties intend to follow through on the buyback provision of the APPS? Ms. Jones indicated that she triggered the buyback provision, but that it was Mr. Quinn, via Mr. Franklin, who stood in the way of the transaction carrying through by not responding in a reasonable manner or signing back the APS. Mr. Quinn claims that Ms. Jones had no financial means to follow through on the buyback provision and that her “attempts” to trigger the provisions were nothing more than a false promise, as she had no financial means by which to buy back the property. This is a major issue at the heart of this litigation.

[188] In addition, there are issues about whether Ms. Jones was breaching the terms of the rental agreement, or a commercial tenancy, in various ways that triggered Mr. Franklin’s numerous attendances at the property. The details of those numerous attendances at the property may serve to illuminate what was or was not happening. Those attendances might also illuminate the true intention of the parties.

[189] Rule 39.02(2) provides that:

(2) A party who has cross-examined on an affidavit delivered by an adverse party shall not subsequently deliver an affidavit for use at the hearing or conduct an examination under rule 39.03 without leave or consent, and the court shall grant leave, on such terms as are just, where it is satisfied that the party ought to be permitted to respond to any matter raised on the cross-examination with evidence in the form of an affidavit or a transcript of an examination conducted under rule 39.03.

[190] Rule 39.03(4) states:

(4) With leave of the presiding judge or officer, a person may be examined at the hearing of a motion or application in the same manner as at a trial.

[191] Rule 1.04(1) states:

1.04 (1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.

[192] Rule 1.04(1.1) states:

(1.1) In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.

[193] In Shah v. LG Chem, Ltd., 2015 ONSC 776, the Defendants had moved to dismiss the Plaintiffs’ action for want of jurisdiction. The Plaintiffs included in their responding motion record an affidavit sworn by a law clerk at the law firm of counsel. After cross-examination, the Plaintiffs moved for leave to file a supplemental affidavit which referred to material disclosed which was allegedly not discoverable to the Plaintiffs through publicly available sources. Perell J. provided a non-exhaustive summary of the jurisprudence on the rule, stating in part as follows:

[22] In P.M. Perrell and J.W. Morden, The Law of Civil Procedure in Ontario, 2nd ed. (Markham, Ont.: Lexis Nexis Canada, 2014), at pp. 677-78, I discuss the procedure for a motion. I note that the procedure involves a scheme for the exchange of affidavits. I state:

The procedure for a motion provides for closure or limits the delivery of evidence for the motion. The Rules require that all the parties must submit their evidence before any cross-examinations of opposing parties proceed[.]

In determining whether to grant leave for an additional affidavit or another examination and upon what terms, if any, the court will consider whether the matter raised on the cross-examination was relevant to the litigation, whether the affidavit sought to be filed is responsive to the matter, and whether allowing the delivery of the affidavit would operate unfairly against the adverse party: Nolan v. Canada (Attorney General) (1997), 1997 CanLII 12213 (ON SC), 38 O.R. (3d) 722 (Gen. Div.); Bloorview Childrens Hospital Foundation v. Bloorview MacMillan Centre, [2001] O.J. No. 1701 (S.C.J.).

On a motion for leave to file a further affidavit, a party should explain why the evidence could not have been included as part of its pre-cross-examination evidence: Brock Home Improvement Products Inc. v. Corcoran (2002), 2002 CanLII 49425 (ON SC), 58 O.R. (3d) 722 (S.C.J.), but in Nolan v. Canada (Attorney General) (1997), 1997 CanLII 12213 (ON SC), 38 O.R. (3d) 722 (Gen. Div.), Quinn J. rejected the proposition that leave could only be granted to introduce evidence to respond to a matter that had been raised for the first time during the cross-examination. In First Capital Realty Inc. v. Centrecorp Management Services Ltd., [2009] O.J. No. 4492 at para. 4 (Div. Ct.) (also Knowles (c.o.b. Special Events Marketing) v. Arctic Glacier Inc., 2011 ONSC 682 at paras. 52-54), the Divisional Court adopted this point and also stated that "a flexible, contextual approach is to be taken in assessing the criteria relevant to rule 39.02(2), having regard to the overriding principle outlined in Rule 1.04 of the Rules of Civil Procedure that the rules are to be interpreted liberally to ensure a just, timely resolution of the dispute". The Divisional Court held that all the criteria should be weighed and no one criterion was determinative.

[23] The jurisprudence about rule 39.02(2) indicates that (1) leave should be "granted sparingly": Catalyst Fund Limited Partnership II v. IMAX Corp., [2008] O.J. No. 873, 2008 CanLII 8778 (S.C.J.), at para. 14; Skrobacky (Attorneys for) v. Frymer, [2011] O.J. No. 2468, 2011 ONSC 3295 (S.C.J.), at para. 27; Sure Track Courier Ltd. v. Kaisersingh, [2011] O.J. No. 5930, 2011 ONSC 7388 (S.C.J.), at para. 51; (2) the moving party has "a very high threshold" to meet: Catalyst Fund Partnership II v. IMAX Corp., supra, at para. 14; Skrobacky v. Frymer, supra, at para. 27; Sure Track Courier Ltd. v. Kaisersingh, supra, at para. 51; (3) the rule about the delivery of subsequent affidavits should not be used as "a mechanism for correcting deficiencies in the motion materials": Lihou v. VIA Rail Canada Inc., [2006] O.J. No. 4451, 153 A.C.W.S. (3d) 59 (Master), at para. 24; and [page576] (4) the rule is designed to fairly regulate and provide closure to the evidence gathering process for motions and applications.

[24] In Catalyst Fund Limited Partnership II v. IMAX Corp., supra, Justice Pepall stated, at para. 14: "Rule 39.02 is there for a reason. It imports principles of fairness and economy." In Skrobacky (Attorneys for) v. Frymer, supra, at para. 27, Justice Corrick stated that "Rule 39.02 is designed to prevent, in part, an endless exchange of affidavits and cross-examinations." In Sure Track Courier Ltd. v. Kaisersingh, supra, at para. 44, Justice Goodman stated: "Rule 39.02 is one such rule designed to place finite limits on the evidentiary elements of litigation."

[25] In Brock Home Improvement Products Inc. v. Corcoran (2002), 2002 CanLII 49425 (ON SC), 58 O.R. (3d) 722, [2002] O.J. No. 931 (S.C.J.), at para. 8, Justice Stinson stated:

Rule 39.02(1) and (2) are an important and integral part of the procedural code governing the conduct of motions and applications. These rules are designed to place finite limits on the evidentiary element of those proceedings, an element that is all-too frequently time-consuming, expensive and drawn-out. These rules oblige the parties to consider the issues and to put all relevant evidence forward before embarking upon cross-examination of the opposite party's witnesses. This is the approach mandated by the rules to achieve the "just, most expeditious and least expensive determination" of motions and applications. Consistent with that approach, it is only in exceptional cases that should resort should be had to rule 39.02(2).

[194] In 1944949 Ontario Inc. (OMG ON THE PARK) v. 2513000 Ontario Ltd., 2019 ONCA 628, the Appellant had appealed from the order of the application judge, terminating the commercial tenancy of the respondent and directing a trial by way of action, on the issue of damages. On the appeal, the appellant sought to adduce what they submitted was fresh evidence by tendering a supplementary affidavit which was rejected by the application judge. The court held that it was not fresh evidence as it had been reviewed by the application judge. The Court further stated:

[29] The more critical question on this appeal is whether the application judge’s failure to admit the appellant’s supplementary affidavit to respond to the respondent’s late-delivered supplementary affidavit resulted in prejudice to the appellant.

[30] In my view, the application judge’s approach was flawed because he failed to turn his mind to whether leave should be granted under r. 39.02(2) of the Rules of Civil Procedure to admit the parties’ supplementary affidavits. Instead, he rejected the appellant’s supplementary affidavit but admitted the respondent’s supplementary affidavit without addressing whether leave should be granted to permit the respondent to file it following cross-examinations in admitted contravention of r. 39.02(2), and in breach of the court-ordered timetable. However, excepting his award of substantial indemnity costs to the respondent, the application judge’s flawed approach did not taint his interpretation of the lease or finding of the appellant’s breach.

[32] Rule 39.02(2) prohibits the use at a hearing of an affidavit delivered after cross-examinations without leave of the court or the consent of the parties: Lacey v. Kakabeka Falls Flying Inc., 2018 ONCA 1007, at para. 13; Lockridge v. Director, Ministry of the Environment, 2013 ONSC 6935, 322 O.A.C. 345 (Div. Ct.), at para. 23; Crown Resources Corp. S.A. v. National Iranian Oil Co., 2005 CanLII 6053 (Ont. Div. Ct.), at para. 13.

[33] The court must consider the following criteria in determining whether a party should be granted leave to respond to a matter raised on cross-examination:

1. Is the evidence relevant?

2. Does the evidence respond to a matter raised on the cross-examination, not necessarily raised for the first time?

3. Would granting leave to file the evidence result in non-compensable prejudice that could not be addressed by imposing costs, terms, or an adjournment?

4. Did the moving party provide a reasonable or adequate explanation for why the evidence was not included at the outset?

See: Lockridge, at para. 24; First Capital Realty Inc. v. Centrecorp Management Services Ltd. (2009), 258 O.A.C. 76 (Div. Ct.), at para. 13.

[34] In First Capital Realty, at para. 14, the Divisional Court articulated the preferred approach to these criteria:

A flexible, contextual approach is to be taken in assessing the criteria relevant to rule 39.02(2), having regard to the overriding principle outlined in Rule 1.04 of the Rules of Civil Procedure that the rules are to be interpreted liberally to ensure a just, timely resolution of the dispute. An overly rigid interpretation can lead to unfairness by punishing a litigant for an oversight of counsel. [Citations omitted.]

Ultimately, the court found that there was nothing new in the respondent’s supplementary affidavit that made any difference to the result of the substantive lease issues to be determined on the application and that the appellant’s supplementary affidavit would not have affected the outcome.

[195] In the case at bar, it was the view of this court that the affidavits should be permitted given that:

a. The facts described in the affidavits had not occurred and were therefore not known prior to Mr. Franklin’s cross-examination in November 2021. Certainly, this is a reasonable explanation for why the evidence was not included from the outset.

b. The content of the affidavits was relevant to these proceedings namely the credibility of the parties as to their motives and intentions to comply with / utilize the buyback provision in the APPS;

c. Mr. Quinn and Mr. Franklin were provided with copies of the subsequent affidavits well in advance of the hearing of the Applications and had the opportunity to respond to them. In fact, these affidavits had already been used in these proceedings, specifically:

i. Affidavit of Linda Jones, December 3, 2021, was sworn, served, filed and relied upon before Speyer J. during the December 7, 2021 hearing of the Jones’ motion to restrict Mr. Quinn’s access to the property;

ii. Affidavit of Linda Jones, April 22, 2022, was sworn, served, filed and relied upon before Leibovich J. during the April 25, 2022 hearing of Mr. Quinn’s motion for an injunction against Ms. Jones in CV-22-58;

iii. Affidavit of Linda Jones, May 18, 2022, was served, filed and relied upon during the case conference before Lavine J. scheduled for May 20, 2022, during which the Jones’ unsuccessfully sought an order restricting Mr. Quinn’s access to the property.

d. Granting leave to file these further affidavits would not result in non-compensable prejudice that could not be addressed by costs or adjournment. It is of note that while Mr. Quinn referred to the fact that he was being prejudiced by not having an opportunity to provide a responding affidavit, he never sought to do so before this court. Even the most recent affidavit, the May affidavit, had been in Mr. Quinn’s possession for two weeks by the time of these applications.

e. Mr. Quinn was given the opportunity to cross-examine Ms. Jones on the affidavits but declined to do so. Further, Mr. Quinn did not request an adjournment of the Applications.

[196] As for the request for leave for a viva voce examination of Hugh Franklin, it is true that the right to cross-examine must be pursued with due diligence. In accordance with Rule 39.03(4), the requesting party must demonstrate that there are some factual disputes and credibility at issue. In 2089322 Ontario Corporation v. Desroches, 2021 ONSC 3364, the court stated as follows:

[34] The test to call oral evidence pursuant to Rule 39.03(4) was delineated by Godin, J. of the New Brunswick Queen’s Bench in Jeffrey v. Université de Moncton, 1985 CanLII 4119 (N.B. Q.B.) a decision that was subsequently adopted by McCartney, J. in Nordlander v Nordlander Estate, 1998 CarswellOnt 5023 (Gen. Div). In assessing a request for leave, the court must consider the following:

a. The element of surprise in examining witnesses where no notice is given;

b. The relevance of the evidence; and,

c. Whether the evidence of the proposed witnesses could be presented by affidavit.

[35] In my view, this is a case in which it is both necessary and appropriate to call oral evidence at the hearing of the application. The witnesses that the Applicant is proposing to call have all provided either affidavits or reports, thereby eliminating any element of “surprise” to the Respondent in cross-examining the witnesses. The evidence touches directly upon the issues in dispute and is therefore clearly relevant to the proceedings. Finally, and most importantly, the issues of credibility as between the Applicant and the Respondent, as well as the assessment of the opinions of the expert witnesses, is best resolved through the presentation of oral evidence.

[197] This court accepts and agrees that cross-examination at the hearing of an application is not an inherent right, however, found that it was necessary in this case.

[198] The request for Mr. Franklin’s cross-examination at the Applications was not a surprise. Counsel for Ms. Jones and Mr. Jones raised this issue at many earlier court appearances on this matter. There is a notice to support this request.

[199] The evidence of Hugh Franklin was relevant, crucial even, to a hearing of the Applications. Mr. Franklin’s evidence was relevant to a determination of the intention of the parties as it related to the buyback provision. Mr. Quinn submitted that this case will come down to a question of contractual interpretation in relation to the APPS. He submitted that there was no ambiguity or vagueness in the buyback provision. This court agrees. However, what is vague and ambiguous are the actions and intentions of the parties. Did the parties really wish to trigger and follow through on the buyback provision – or was someone “playing games”?

[200] Mr. Franklin’s evidence was also relevant to a consideration of the position that Mr. Franklin’s numerous attendances were necessary in the context of the multiple and continuous breaches allegedly perpetrated by Ms. Jones, which goes to the heart of the CV-21-86 application.

[201] It is of benefit to this court to have all relevant evidence where possible.

[202] Counsel was offered the opportunity to conduct an examination in chief of Hugh Franklin, which was declined. An opportunity to re-examine was also provided, which was declined. Counsel was given the opportunity after the examination of Mr. Franklin to consider whether they wished to cross-examine Linda Jones. They ultimately declined. There was no request for adjournment. There was absolutely no prejudice to anyone by conducting the examination in court. The applications proceeded as scheduled.

Analysis and Conclusions on the Applications

CV-21-48

[203] The issues to be decided on CV-21-48 can be summarized as follows:

a. Did Mr. Quinn breach the buyback provisions of the APPS?

b. If yes, did Mr. Quinn’s breach give rise to a constructive trust over the property?

c. Is Ms. Jones entitled to a Mandatory Injunction requiring the property to be transferred to her and/or Mr. Jones, and if so, upon what terms?

[204] There is no question that the transfer of the property from Ms. Jones to Mr. Quinn was meant to be a temporary solution to a financial problem. This is demonstrated by the wording of the buyback provision, and the significantly reduced price compared to the MPAC value of the property at the time.

[205] Before the transfer of the property to Mr. Quinn, and frankly after, there was much discussion between Ms. Jones and Mr. Quinn about Ms. Jones’ plans for the property. Mr. Quinn asked Ms. Jones to prepare a business plan for her existing business known as Wholearth Farmstudio to assist him with financing the property. This was provided to Mr. Quinn in March 2017. This suggests an element of control that Ms. Jones continued to exercise over the property, with the knowledge and acceptance of Mr. Quinn.

[206] It would appear that for the entire time that Ms. Jones has lived at the property, including after the transfer of the property to Mr Quinn, she has had full access to the entire 100 acres of property. She has resided there, raised animals there (including horses, cows, waterfowl, poultry and pigs), and parked various vehicles on the property.

[207] Having carefully considered the entirety of the record, it is this court’s view that Mr. Franklin, as Mr. Quinn’s representative, has made it extremely difficult, if not impossible, for Ms. Jones to purchase the property back from Mr. Quinn pursuant to the APPS buyback provision. Mr. Franklin has positioned himself as the representative of Mr. Quinn. He has refused to engage in meaningful discussions to finalize the details of the transaction, including but not limited to agreement about the purchase price and / or executing an agreement of purchase and sale. He also refused to retain a lawyer for the purposes of the transfer in a timely manner.

[208] The attempted purchase in September 2020 was anything but smooth. The following facts are of note:

a. The relationship was already in turmoil, as a Landlord and Tenant Board matter and a Small Claims action were already underway.

b. When Philip Jones reached out to start the buyback process in June, it was not received well by Mr. Quinn.

c. On July 2, 2020, Hugh Franklin wrote to Philip Jones as the representative of Elwood Quinn, indicating that any further communication with Mr. Quinn would be considered harassment. It is not clear why Mr. Franklin took this aggressive approach.

d. On July 3, 2020, Hugh Franklin demanded signed confirmation, something official, from Linda Jones that she was exercising her right to purchase the property in accordance with the buyback provision. Mr. Franklin demanded this be in a certain form and style before he would consider it valid. This issue went back and forth for many weeks.

e. On July 6, 2020, Hugh Franklin refused to get counsel.

f. On August 7, 2020, Hugh Franklin laid out various objections and directed counsel as to how to proceed with the transaction in a confrontational manner.

g. Rather than simply confirm the suggested closing date of September 30, 2020, Hugh Franklin responded that consent to a closing date was not required.

h. Rather than simply confirm or suggest the appropriate calculation of closing funds, Mr. Franklin stated on September 11 that he wanted an APS with an accurate amount so that it could be taken to counsel for review.

[209] The communications relating to a possible May 31, 2021 closing were much the same.

[210] It is clear that as of February 19, 2021, Ms. Mutch was prepared to finance the re-purchase of this property. Instead of simply confirming the details when asked, the communications from Mr. Franklin were often confrontational, argumentative, vague, and unresponsive, refusing to confirm a purchase price or closing date for the proposed transfer, and failing to engage in reasonable discussions for more than sixty days following the delivery of the APS to finalize the terms of the transaction to transfer the property.

[211] In their consolidated factum dated May 30, 2022, Mr. Quinn states at para 23:

As soon as this APS was delivered by Jason Schmidt to Elwood Quinn on March 23, 2021, he had no choice open to him in law but to transfer the property to Linda Jones on May 31, 2021, provided of course, she paid him on that day, the amount she stated she intended to pay. Elwood Quinn was not bound to respond to that APS the next day, the next week or the next month. And his failure to respond to it before a Certificate of Pending Litigation was obtained ex parte by Linda Jones on April 28, 2021, did not necessarily mean in law Elwood Quinn was in breach of his obligations under the Buyback clause to honour Linda Jones’s decision to trigger her option.

This court does not agree with this characterization. Was Ms. Jones to simply assume that she could proceed with the transfer with no proper response? While it is true that Hugh Franklin acknowledged receipt of the APS fairly quickly, the fact remains that there was no acceptance of the agreement. Even if Ms. Jones did not need Mr. Quinn’s approval of the amount and date, it only stands to reason that counsel on behalf of Ms. Jones would attempt to confirm these details and formalize the agreement with an APS. If there were no issues on the part of Mr. Quinn, why was the agreement not signed and sent back? In the opinion of this court, Mr. Franklin was, at best, being challenging to deal with. Of course no funds were tendered, as Mr. Quinn never confirmed the agreement. Mr. Quinn argued that Ms. Jones was being dishonest about the funds, which she never actually had, however, this is contrary to the evidence from Ms. Mutch who testified that funds were available from February 19, 2021 onward and are still available to this day.

[212] Mr. Quinn argued that the relief in this application was made moot by both parties when they each advised the other of their intent to fulfil the terms of the contract and the transfer of the property on May 31, 2021. For this proposition, Mr. Quinn relied on the decision of Boswell J. in Spiridakis v. Li, 2020 ONSC 2173, para 61, in which he observed that “tendering is generally considered to be the best evidence of that readiness, willingness and ability.”

[213] The facts in Spiridakis were that an agreement of purchase and sale was entered into on June 14, 2017 to purchase the respondents home for $1,162,500, conditional on financing. A deposit was paid. The condition for financing was waived on June 21, 2017. The scheduled closing date was September 14, 2017. Although it was somewhat unclear how it occurred, the closing date was extended to October 30, 2017, with the Defendants agreeing to pay compensation. At 4:38 p.m. on October 30, 2017, the Defendants asked for an extension to November 1, 2017, as they had been unable to close the sale of their home. They needed the sale proceeds from their home in order to fund the purchase of the plaintiffs’ home. On October 31, 2017, the Plaintiffs sent a letter indicating that they were willing to extend the closing date as requested on certain conditions. The Defendants were asked to sign and return a copy of the letter confirming that the Defendants were agreeable to the terms. This did not occur. A follow up letter was sent indicating that if no response was received by 4:00 p.m., the Plaintiffs would consider the non-response to be an anticipatory breach of contract. No reply was received, and the deal was never completed. Boswell J. considered the meaning of the phrase “anticipatory breach”. At paragraph 63, the court stated:

[63] The phrase “anticipatory breach” was explained by Justice Cromwell in dissenting reasons in Potter v. New Brunswick Legal Aid Services Commission, 2015 SCC 10 at para. 149:

An anticipatory breach "occurs when one party manifests, through words or conduct, an intention not to perform or not to be bound by provisions of the agreement that require performance in the future": McCamus, at p. 689; see also A. Swan, with the assistance of J. Adamski, Canadian Contract Law (2nd ed. 2009), at s. 7.89. When the anticipated future non-observance relates to important terms of the contract or shows an intention not to be bound in the future, the anticipatory breach gives rise to anticipatory repudiation.

[214] Mr. Quinn stated that the evidence before the Court demonstrates that the only party who tendered on May 31, 2021 was Mr. Quinn and that the Jones’ completely lacked the ability to tender as they did not have the necessary funds. Mr. Quinn states that the Jones’ place no evidence before the court to demonstrate that the terms of the APPS require Mr. Quinn to respond to an APS, that Mr. Quinn breached the APPS by failing to respond to the March 23, 2021 APS, or that Mr. Quinn clearly manifested, through words or conduct, an intention not to perform or not to be bound by provisions of the agreement, giving rise to the claim of breach by anticipatory repudiation.

[215] This court does not agree with this characterization. It is this court’s view that the stated intentions of Linda Jones and Philip Jones to trigger the buyback provision has been met with criticisms and demands which have left more questions than answers. A careful review of the correspondence certainly leaves the impression that Mr. Franklin, as Mr. Quinn’s representative, was attempting to delay and frustrate the repurchase of the property. The nature and tone of the communication from Mr. Franklin made it impossible to come to terms on the transfer. For example, Hugh Franklin mentions an APS in his September 11, 2020 correspondence, suggesting that he agreed that an APS was required or at least reasonable in order to close this transaction, however, later took the position that an APS was not required, and seemingly refused to sign.

[216] As for the attempt to purchase between March and May 2021, on March 24, 2021, an APS was delivered to Mr. Franklin. On March 26, 2021, he acknowledged the APS. At no point prior to the irrevocable date was there any acceptance or changes requested. Due to the silence in the face of this APS, Linda and Philip Jones issued application CV-21-48. Given the fact that the APS was presented, acknowledged, but never accepted, it was fair to assume that there was no agreement. Mr. Quinn’s response, via Mr. Franklin on May 28, 2021, “Show me the money. Done like dinner.” is not an agreement on the terms of the APS. If there was an agreement, the only reasonable thing to do would be to sign and return the APS. Frankly, it does not matter who mentioned the APS first. It is clear that by September 10, 2020, Mr. Franklin was anticipating an APS to memorialize the agreement.

[217] The reality is that an offer was made that was never accepted. There was never written confirmation of the purchase price. There was never an executed version of the APS, which was produced by the Jones’ as Mr. Franklin suggested in September 2020. Mr. Franklin had not provided the name of a lawyer representing them on this transfer until 4:35 pm on May 31, 2021, an email which happened to be sent to the wrong email address despite multiple previous email discussions.

[218] Immediately after this proposed closing date and time came and went, 37 minutes later, Hugh Franklin emailed Mr. Schmidt to advise of the “formal acceptance of her breach of the buyback provision…said breach having occurred at 6:00 p.m. this day.” The very next day, June 1, 2021, Mr. Quinn issued CV-21-68, requesting an Order rescinding the buyback provision of the APPS dated February 25, 2017, and costs on a substantial indemnity basis. Since then, there have been repeated efforts to have Linda Jones and Philip Jones removed from the property. Further, Mr. Franklin has taken action at the property to make it unliveable.

[219] There is no question that Mr. Quinn, through Mr. Franklin, has thwarted Ms. Jones’ efforts to trigger the buyback provision, which she is legally entitled to, by the clearly worded term of the contract. By creating impossible barriers for Ms. Jones, Mr. Quinn has breached the contract. This would be sufficient for this court to move on to consider the mandatory injunction request on its own. However, this court will also consider the arguments relating to a constructive trust for the sake of completeness.

[220] By failing to cooperate with Ms. Jones in her attempts to buy back the property pursuant to the clear provisions of the APPS, Mr. Quinn has breached the same and his breach gives rise to a constructive trust over the property.

[221] In Pettkus v. Becker, 1980 CanLII 22 (SCC), [1980] 2 S.C.R. 834, it was demonstrated that the Appellant, through hard work, had established a successful beekeeping business on some rural properties. The Respondent had also contributed to the business. The parties lived in a common-law relationship for nearly 20 years. When the relationship ended, the Respondent commenced an action seeking a declaration of entitlement to one-half interest in the lands and a share of the business. The trial judge awarded the Respondent a small portion. The Ontario Court of Appeal varied the judgment and awarded half of the land and business. The Supreme Court of Canada dismissed the appeal and set out the test to establish an unjust enrichment at page 848:

….In Rathwell I ventured to suggest there are three requirements to be satisfied before an unjust enrichment can be said to exist: an enrichment, a corresponding deprivation, and absence of any juristic reason for the enrichment. This approach, it seems to me, is supported by general principles of equity that have been fashioned by the courts for centuries…

[222] The enrichment in this case is demonstrated by the following facts:

a. Ms. Jones transferred the property to Mr. Quinn on February 25, 2017, for well below market value due to her challenging financial circumstances at the time.

b. The transfer was meant to be temporary to allow Ms. Jones to have access to funds to pay off her debts, but, otherwise, she intended to take ownership back once her financial difficulties were resolved.

c. This was essentially a financing arrangement, rather than a traditional transfer of ownership. The only reason it became a transfer of ownership was due to complications in placing a further mortgage on the property.

d. Ms. Jones had been the owner of this property since 2006 and had lived in this property since 2004.

e. She was making various plans for a business on the property before and after the transfer, plans that Mr. Quinn was aware of and seemed to support for a period of time.

f. Mr. Quinn has been enriched by being able to retain ownership of this property, contrary to the wishes of Ms. Jones, which is much more valuable than what was paid. As pointed out by John Filion in his email to Elwood Quinn on December 22, 2016, this was a win-win situation for Mr. Quinn: “If Montana is unable to buy the farm back, you've got it at an exceptionally low price; if she is able to buy it back you'll have a guaranteed return on your investment.”

[223] The deprivation in this case is also clear. Ms. Jones transferred this property to Mr. Quinn in exchange for significantly less money than it was worth to alleviate her financial difficulties. Ms. Jones’ efforts to buyback the property have been thwarted by semantics and technicalities. Mr. Quinn, through Mr. Franklin, has taken numerous steps to have Ms. Jones removed from the property, steps which continue to this day. It is this court’s view that Ms. Jones is being deprived of her home and the equity in that home to which she is most certainly entitled as was clearly stated in the APPS.

[224] There is no juristic reason for the enrichment. The buyback provision in the APPS is perfectly clear. Mr. Quinn is obligated to transfer the property back to Ms. Jones at her request and he has failed to do so. On September 11, 2020, Mr. Franklin acknowledged, “The APS does not require Mr. Quinn’s consent to a closing date, nor does it require him to approve or dispute the purchase price calculated by your client as mathematics are not subjective.” Despite this, Mr. Franklin has continued to put roadblocks in the path of Ms. Jones. The only legal basis now put forward is the recission argument that Mr. Quinn raises in Application CV-21-68, which this court does not agree with, and will be addressed further below.

[225] Even though a constructive trust is not required to be established in this case given the clarity of the contract, this court is also satisfied that Ms. Jones has established a constructive trust over the property, effective on the proposed closing date of May 31, 2021.

[226] As for a mandatory injunction requiring the transfer, it is obvious from the history of this matter, that strong action needs to be taken. Given Mr. Quinn’s actions, as conducted through Mr. Franklin, it is obvious that this transfer is not going to go smoothly without some measures being put in place, such as a mandatory injunction.

[227] In order to obtain final injunctive relief, a party is required to establish her legal rights first, and the court must then determine whether an injunction is an appropriate remedy. Irreparable harm and the balance of convenience are not, per se, relevant to the granting of a final injunction, however, the court may take these factors into consideration when exercising its discretion to grant final injunctive relief.

[228] In 1711811 Ontario Ltd. v. Buckley Insurance Brokers Ltd., 2014 ONCA 125, the court was considering a very restrictive permanent injunction that had been ordered in relation to the use of a laneway. The Court considered the various types of injunctive relief, such as interim, interlocutory, mandatory and permanent. The court stated as follows:

[56] The next useful distinction to be drawn is between interlocutory and permanent injunctions. Interlocutory injunctions are imposed in ongoing cases whereas permanent injunctions are granted after a final adjudication of rights: see Sharpe, at para. 1.40, citing Liu v. Matrikon Inc., 2007 ABCA 310, 422 A.R. 165, at para. 26. As will be seen, this conceptual distinction features prominently in the present case, where a key issue is whether the court must apply a different test for permanent injunctions than for interlocutory injunctions.

[57] It is also important to distinguish between mandatory and permanent injunctions. A mandatory injunction is one that requires the defendant to act positively. It may require the defendant to take certain steps to repair the situation consistent with the plaintiff’s rights, or it may require the defendant to carry out an unperformed duty to act in the future: see Sharpe, at para. 1.10. Mandatory injunctions are rarely ordered and must be contrasted with the usual type of injunctive relief, which prohibits certain specified acts.

[58] Because of their very nature, mandatory injunctions are often permanent. However, permanent injunctions are not necessarily mandatory. An example illustrates this point. If, after trial, a court orders that a defendant can never build on a right of way, it will have made a permanent order enjoining the defendant from building on the right of way. But, the injunction would not be mandatory because it does not require the defendant to perform a positive act.

[59] In short, the words “mandatory” and “permanent” are not synonymous, especially in the context of injunctive relief.

[77] The British Columbia Court of Appeal recently considered the test for a permanent injunction and its relationship to the test for an interlocutory injunction. In the decision under review in Cambie Surgeries Corp. v. British Columbia (Medical Services Commission), 2010 BCCA 396, 323 D.L.R. (4th) 680, the trial judge granted permanent injunctive relief based on the test for an interlocutory injunction. Despite the parties’ agreement that the trial judge correctly set out the test, the British Columbia Court of Appeal held that the wrong test had been applied and reversed the trial decision.

[78] Justice Groberman, writing for the court, explained that the RJR-Macdonald test is for interlocutory – not final or permanent – injunctions. At para. 24 of Cambie Surgeries, he explained that the RJR-Macdonald test is designed to address situations in which the court does not have the ability to finally determine the merits of the case but, nonetheless, must decide whether interim relief is necessary to protect the applicant’s interests.

[79] In paras. 27-28 of Cambie Surgeries, Groberman J.A. explained:

Neither the usual nor the modified test discussed in RJR-MacDonald has application when a court is making a final (as opposed to interlocutory) determination as to whether an injunction should be granted. The issues of irreparable harm and balance of convenience are relevant to interlocutory injunctions precisely because the court does not, on such applications, have the ability to finally determine the matter in issue. A court considering an application for a final injunction, on the other hand, will fully evaluate the legal rights of the parties.

In order to obtain final injunctive relief, a party is required to establish its legal rights. The court must then determine whether an injunction is an appropriate remedy. Irreparable harm and balance of convenience are not, per se, relevant to the granting of a final injunction, though some of the evidence that a court would use to evaluate those issues on an interlocutory injunction application might also be considered in evaluating whether the court ought to exercise its discretion to grant final injunctive relief.

[80] I would adopt this reasoning. The RJR-Macdonald test is designed for interlocutory injunctive relief. Permanent relief can be granted only after a final adjudication. Different considerations operate and, therefore, a different test must be applied, pre- and post-trial.

[229] “Irreparable harm” refers to harm which either cannot be quantified in monetary terms or which cannot be cured, whereas “balance of convenience” refers to the assessment that must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy. See: RJR-MacDonald Inc. v. Canada (Attorney General), 1 S.C.R. 311 at paras 48 and 64.

[230] It is the view of this court that a mandatory injunction is necessary in the circumstances of this case for the following reasons:

a. Ms. Jones has a legal right to this property, both by the very clear terms of the contract (APPS - February 2017), and through constructive trust principles.

b. From the behaviour to date, it is clear that Mr. Franklin, on behalf of Mr. Quinn, will continue to create roadblocks for Ms. Jones taking back ownership of this property. This court is not at all confident that the transfer will occur without this remedy, especially given the fact that Mr. Franklin continues in his efforts to have Ms. Jones removed from the property. A mandatory injunction is not only an appropriate remedy, but it is a necessary remedy to ensure that the transfer occur.

c. Even though not required to be demonstrated, there will be irreparable harm if this transfer does not occur. This property has been Ms. Jones’ home since 2004. It would appear to be a somewhat unique property that is environmentally protected and sensitive, that allows Ms. Jones to raise animals and develop her business.

d. Even though not required to be demonstrated, the balance of convenience clearly favours the mandatory injunction. It was perfectly clear from the outset of this transfer to Mr. Quinn that Ms. Jones was intending to buy back the property as soon as she was financially able to do so. A specific provision was put in the APPS giving Ms. Jones the power to do this at her discretion. Mr. Quinn has claimed that he was always willing to transfer this property back to Ms. Jones, but that it was Ms. Jones who was not following through. The reality is that Mr. Quinn will get exactly what he expected to get from this transaction – the funds he paid in, interest, and rent. In exchange, Ms. Jones will get her family home.

CV-21-68

[231] The issue to be decided on CV-21-68 is as follows:

a. Is Mr. Quinn entitled to a recission of the buyback provision of the APPS?

[232] Mr. Quinn stated that he is seeking a recission of the buyback provision of the APPS as a result of Ms. Jones’ alleged and undefined breach. The APPS makes no mention of conduct that could result in the cancellation of this clause, however, Mr. Quinn takes the position that Linda Jones could forever lose her right to trigger the buyback in one of two ways: 1) 8 years lapse, as set out in the APPS; or 2) she exercised the right but failed to tender the required funds and Mr. Quinn accepted the breach. This would suggest that the APPS contains an implied term that Ms. Jones had a limited number of opportunities to purchase the property through the buy back provision.

[233] According to Mr. Quinn the evidence shows a consistent pattern. As soon as Linda Jones was on the verge of being evicted, she employed the buyback clause in order to buy her some time. When the heat of eviction was dialed back, she failed to follow through to buy the property. According to Mr. Quinn, the Landlord and Tenant Board’s eviction order was to be put into effect on June 30, 2020. The very first time that there was any indication of buying the property back was after the eviction was ordered, and in the days leading up to June 30, 2020 when the eviction was actually to occur.

[234] In M.J.B. Enterprises v. Defence Construction (1951) Ltd., 1999 CanLII 677 (SCC), [1999] S.C.J. No. 17, the Supreme Court was considering this contract issue in the context of the tendering process. Specifically, the issue being considered was whether the inclusion of a "privilege clause" in the tender documents allows the person calling for tenders (the "owner") to disregard the lowest bid in favour of any other tender, including a non-compliant one. One of the arguments of the Appellant was that there was an implied term such that the lowest compliant bid must be accepted. The Court stated:

[27] …The general principles for finding an implied contractual term were outlined by this Court in Canadian Pacific Hotels Ltd. v. Bank of Montreal, 1987 CanLII 55 (SCC), [1987] 1 S.C.R. 711. Le Dain J., for the majority, held that terms may be implied in a contract: (1) based on custom or usage; (2) as the legal incidents of a particular class or kind of contract; or (3) based on the presumed intention of the parties where the implied term must be necessary "to give business efficacy to a contract or as otherwise meeting the 'officious bystander' test as a term which the parties would say, if questioned, that they had obviously assumed" (p. 775). See also Wallace v. United Grain Growers Ltd., 1997 CanLII 332 (SCC), [1997] 3 S.C.R. 701, at para. 137, per McLachlin J., and Machtinger v. HOJ Industries Ltd., 1992 CanLII 102 (SCC), [1992] 1 S.C.R. 986, at p. 1008, per McLachlin J.

[29] As mentioned, LeDain J. stated in Canadian Pacific Hotels Ltd., supra, that a contractual term may be implied on the basis of presumed intentions of the parties where necessary to give business efficacy to the contract or where it meets the "officious bystander" test. It is unclear whether these are to be understood as two separate tests but I need not determine that here. What is important in both formulations is a focus on the intentions of the actual parties. A court, when dealing with terms implied in fact, must be careful not to slide into determining the intentions of reasonable parties. This is why the implication of the term must have a certain degree of obviousness to it, and why, if there is evidence of a contrary intention, on the part of either party, an implied term may not be found on this basis. As G. H. L. Fridman states in The Law of Contract in Canada (3rd ed. 1994), at p. 476:

In determining the intention of the parties, attention must be paid to the express terms of the contract in order to see whether the suggested implication is necessary and fits in with what has clearly been agreed upon, and the precise nature of what, if anything, should be implied.

[235] In Energy Fundamentals Group Inc. v. Veresen Inc., 2015 ONCA 514, the Application judge had concluded that an option right would have been illusory without the right to information and that implication of a right to disclosure was necessary to give business efficacy to the agreement. The Court stated:

[30] As observed by the application judge, a contractual term may be implied "on the basis of the presumed intentions of the parties where necessary to give business efficacy to the contract or where it meets the 'officious bystander test.'" (M.J.B. Enterprises Ltd. v. Defence Construction (1951) Ltd., 1999 CanLII 677 (SCC), [1999] 1 S.C.R. 619).

[31] The officious bystander test was most famously articulated in Shirlaw v. Southern Foundries (1926) Ltd., [1939] 2 K.B. 206 at 227, [1939] 2 All E.R. 113 at 124 (C.A.):

Prima facie that which in any contract is left to be implied and need not be expressed is something so obvious that it goes without saying. Thus, if while the parties were making their bargain, an officious bystander were to suggest some express provision for it in their agreement, they would testily suppress him with a common: "Oh, of course."

[32] The business efficacy test in its modern form originated in The Moorcock (1889) 14 P.D. 64, [1886-90] All E.R. Rep. 530 (C.A.) at 68:

In business transactions such as this, what the law desires to effect by the implication is to give such business efficacy to the transaction as must have been intended at all events by both parties...

[34] The business efficacy test was reviewed more recently by the Privy Council in Attorney General of Belize v. Belize Telecom Ltd., [2009] UKPC 10, [2009] 2 All E.R. 1127, at para. 22:

Take, for example, the question of whether the implied term is "necessary to give business efficacy" to the contract. That formulation serves to underline two important points. The first, conveyed by the use of the word "business", is that in considering what the instrument would have meant to a reasonable person who had knowledge of the relevant background, one assumes the notional reader will take into account the practical consequences of deciding that it means one thing or the other. In the case of an instrument such as a commercial contract, he will consider whether a different construction would frustrate the apparent business purpose of the parties. ...

[35] Implication of a contractual term does not require a finding that a party actually thought about a term or expressly agreed to it. Often terms are implied to fill gaps to which the parties did not turn their minds (Belize Telecom, para. 31).

[36] On the other hand, a court will not imply a term that contradicts the express language of the contract, or is unreasonable: G. Ford Homes Ltd. v. Draft Masonry (York) Co. Ltd. (1984), 1983 CanLII 1719 (ON CA), 43 O.R. (2d) 401 (C.A.).

[236] In this case, it cannot, logically, be an implied term of the contract that Ms. Jones was only entitled to a limited number of opportunities to attempt to buy back the property, or that if she attempted to exercise the right, but failed to tender the required funds, this would amount to a breach. In this case:

a. The wording of the buyback provision leaves the power in the hands of Ms. Jones as to when and how to trigger this clause within the eight-year period. Implying a limited number of opportunities, or concluding a breach on a failed attempt, would be unreasonable and contradict the express terms of the APPS.

b. The APPS contains an “entire agreement” clause in paragraph 16 which states, “there is no representation, warranty, collateral agreement, or condition, which affected this Agreement other than as expressed herein”.

[237] Even if it could be an implied term of the contract that Ms. Jones only had a limited number of attempts available to her to re-purchase this property, or that a failed attempt would amount to a breach, it was not Ms. Jones who “backed out” of the attempts to purchase. Rather, on this record, it would appear that Mr. Franklin created the challenges in closing the transaction. At worst, his behaviour was obstructionist. At best, it was bad communication. Either way, there is no suggestion that Ms. Jones changed her mind about the purchase.

[238] Further, even if Mr. Quinn is correct that the threat of eviction was motivating Ms. Jones, it does not matter. Ms. Jones is entitled to trigger the buyback provision at her discretion within the eight years. Her motivation is irrelevant. While this court would accept that false promises would be frustrating, there is nothing in the contract to suggest this would cancel the term. Further, this court is not satisfied that these were false promises.

[239] As for recission, this remedy is available when one party to a contract has made a false or misleading representation that has induced the rescinding party to enter the contract. Upon rescission, the contract is treated as if it never happened and essentially restores the parties to their original position as it was before the contract was entered.

[240] In Guarantee Co. of North America v. Gordon Capital Corp., 1999 CanLII 664 (SCC), [1999] 3 S.C.R. 423, the appeal dealt with the appropriateness of using summary judgment proceedings and with the issue of whether a contractual limitation period survives a wrongful rescission of the contract in dispute. The Court stated as follows:

[39] A fundamental confusion seems to exist over the meaning of the terms "rescission" and "repudiation". This confusion is not a new one, as it has plagued common law jurisdictions for years. Rescission is a remedy available to the representee, inter alia, when the other party has made a false or misleading representation. A useful definition of rescission comes from Lord Atkinson in Abram Steamship Co. v. Westville Shipping Co., [1923] A.C. 773 (H.L.), at p. 781:

Where one party to a contract expresses by word or act in an unequivocal manner that by reason of fraud or essential error of a material kind inducing him to enter into the contract he has resolved to rescind it, and refuses to be bound by it, the expression of his election, if justified by the facts, terminates the contract, puts the parties in status quo ante and restores things, as between them, to the position in which they stood before the contract was entered into.

See similarly G. H. L. Fridman, The Law of Contract in Canada (3rd ed. 1994), at p. 807.

[40] Repudiation, by contrast, occurs "by words or conduct evincing an intention not to be bound by the contract. It was held by the Privy Council in Clausen v. Canada Timber & Lands, Ltd. [1923 CanLII 430 (UK JCPC), [1923] 4 D.L.R. 751], that such an intention may be evinced by a refusal to perform, even though the party refusing mistakenly thinks that he is exercising a contractual right" (S. M. Waddams, The Law of Contracts (4th ed. 1999), at para. 620). Contrary to rescission, which allows the rescinding party to treat the contract as if it were void ab initio, the effect of a repudiation depends on the election made by the non-repudiating party. If that party treats the contract as still being in full force and effect, the contract "remains in being for the future on both sides. Each (party) has a right to sue for damages for past or future breaches" (emphasis in original): Cheshire, Fifoot and Furmston's Law of Contract (12th ed. 1991), by M. P. Furmston, at p. 541. If, however, the non-repudiating party accepts the repudiation, the contract is terminated, and the parties are discharged from future obligations. Rights and obligations that have already matured are not extinguished. Furmston, supra, at pp. 543-44.

[41] So much is relatively clear. Problems have arisen, however, from misuse of the word "rescission" to describe an accepted repudiation. In Keneric Tractor Sales Ltd. v. Langille, 1987 CanLII 29 (SCC), [1987] 2 S.C.R. 440, at p. 455, Wilson J., writing for the Court, addressed the distinction as follows:

The modern view is that when one party repudiates the contract and the other party accepts the repudiation the contract is at this point terminated or brought to an end. The contract is not, however, rescinded in the true legal sense, i.e., in the sense of being voided ab initio by some vitiating element. The parties are discharged of their prospective obligations under the contract as from the date of termination but the prospective obligations embodied in the contract are relevant to the assessment of damages: see Johnson v. Agnew, [1980] A.C. 367, [1979] 1 All E.R. 883 (H.L.), and Moschi v. Lep Air Services Ltd., [1973] A.C. 331, [1972] 2 All E.R. 393 (H.L.). [Emphasis added.]

See similarly Waddams, supra, at para. 629; Furmston, supra, at p. 287, note 12; G. H. Treitel, The Law of Contract (9th ed. 1995), at p. 341; S. Williston, A Treatise on the Law of Contracts (3rd ed. 1970), by W. H. E. Jaeger, vol. 12, para. 1454A, at p. 13; cf. Sail Labrador Ltd. v. Challenge One (The), 1999 CanLII 708 (SCC), [1999] 1 S.C.R. 265, at paras. 31 and 50.

[42] However, merely clarifying the distinction between rescission and an accepted repudiation does not end the discussion. Since "rescission" has frequently been used to describe an accepted repudiation, courts must be sensitive to the potential for misuse. To that end, courts must analyse the entire context of the contract and give effect, where possible, to the intent of the parties. If they intended "rescission" to mean "an accepted repudiation", then the contract should be interpreted as such. For example, in Mills v. S.I.M.U. Mutual Insurance Association, [1970] N.Z.L.R. 602 (C.A.), the court held that a clause stating that in the event of false statements the policy "shall be void", was in fact a repudiation clause. Crucial to the court's reasoning in that case was the fact that the clause in question provided for forfeiture of premiums. Turner J. therefore concluded, at p. 609, that

the policy does not provide that the consequences of an untrue statement shall be that the policy shall be deemed void ab initio, as if it had never come into existence, for the premium is to be forfeited... . I therefore construe the clause to mean that an untrue statement shall entitle the respondent to repudiate liability under the policy, while keeping the premium.

Of course, contrary to the facts in this appeal, the actual term "rescission" was not used in Mills. Nonetheless, we must always examine whether the use of the word rescission is indeed consistent with the parties' intent.

[43] Before turning to the issue of intent, however, one must determine whether rescission is even available...

[44] In Canada, the issue is somewhat less clear. The state of the law is best summarized by Waddams, supra, at para. 427:

If the [misrepresentation] is a term of the contract ... the mistaken party is entitled to damages as for breach of contract. Whether the party is further entitled to set aside the transaction and demand restitution of the contractual benefits transferred will depend upon ... whether the breach is "substantial" or "goes to the root of" the contract.

A breach that is "substantial" or "goes to the root of" the contract is often also described as a material breach; see, for example, Fridman, supra, at p. 293: "A misrepresentation is a misstatement of some fact which is material to the making or inducement of a contract"…. The question, in light of the law as stated in Waddams, supra, and Fridman, supra, is whether the misrepresentation is "substantial", "material", or "g[o] to the root of" the contract. This brings us back to the issue of the parties' intent, for whether the rescission is warranted is at least in part a question of intent.

[47] In summary, a misrepresentation, even one that was incorporated into the contract, gives the innocent party the option of rescinding the contract, i.e. to have it declared void ab initio. The misrepresentation must be "material", "substantial" or "g[o] to the root of" the contract. We express no opinion on the availability of damages in such cases. Repudiation, by contrast, occurs when one party indicates its intention not to fulfill any future obligations under the contract. If the other party accepts the repudiation, the contract is terminated, not rescinded. To use "rescission" and "accepted repudiation" synonymously can lead only to confusion and should be avoided. Where there is some doubt as to whether repudiation or rescission is intended, courts should look to such factors as the context of the contract, particularly the intent of the parties. For sophisticated parties, it will take strong evidence to displace the meaning suggested by the parties' choice of language in the contract itself. …

[241] Mr. Quinn has not alleged that Ms. Jones made a false or misleading representation that induced him into entering the APPS. It was clear from the outset that Ms. Jones was in a difficult situation financially, was at risk of losing the property, needed immediate money to pay off various debts, and that she intended to buy the property back if and when the situation improved.

[242] Even if recission was established, this would result in the parties returning to their pre-contract position. Prior to this contract, Ms. Jones owned the property.

[243] It appears that this is the situation warned about in Guarantee Co. of North America, where the term recission was used, but that repudiation was intended.

[244] In their consolidated factum, Mr. Quinn referred to Kalis v. Pepper, 2015 ONSC 453, which discusses the issue of repudiation. In that case, the Plaintiffs sought to sell their home. The Defendants wanted to buy it. An Agreement of Purchase and Sale was entered into with no conditions. A deposit was paid. The Defendants ultimately had trouble selling their own home and advised the Plaintiffs that they were evaluating their options. The Plaintiffs took the position that the Agreement of Purchase and Sale was at an end and that the deposit should be released to them. The sale did not close. The issue in this case was to determine who would get the deposit. The court stated:

[11] When can it be said that a contract has been repudiated? It has been said that:

Repudiation is conduct that demonstrates that a contracting party has absolutely renounced its contractual obligations.

(Paul Perell, Real Estate Transactions, 2nd edition, Canada Law Book, at p. 340, referring to W. J. Crowe Ltd. v. Pigott Construction Ltd., 1961 CanLII 23 (ON CA), [1961] O.R. 305 (Ont. C.A.) affirmed 1963 CanLII 10 (SCC), [1963] S.C.R. 238 (S.C.C.); Guarantee Co. of North America v. Gordon Capital., 1999 CanLII 664 (SCC), [1999] 3 S.C.R. 423 (S.C.C.), at para. 40; Mersey Steel & Iron Co. v. Naylor, Benzon & Co. (1884), 9 App. Cas. 434 (U.K. H.L.); and, D. M. McRae “Repudiation of Contracts in Canadian Law” (1978), 56 Can. Bar rev. 233)

further:

A party to a contract repudiates by clearly stating that he or she does not intend to perform his or her obligations under the contract.

(Paul Perell, Real Estate Transactions, 2nd edition, at p. 340, referring to Netupsky v. Hamilton (1969), 1969 CanLII 50 (SCC), [1970] S.C.R. 203 (S.C.C.)

and:

To constitute repudiation of a contract the conduct of the promisor must show an intention to altogether refuse the performance of the contract and to be no longer bound by it. The intimation must be unequivocal.

(Wilson v. Graydon Hall Pizza and Catering Ltd. (1994) 1994 CanLII 7535 (ON SC), 11 B.L.R. (2d) 266, at para. 48, quoting Ginter v. Chapman (1967), 1967 CanLII 810 (BC CA), 60 W.W.R. 385 (B.C. C.A.), at p. 389)

[12] For any action or statement to be relied on as repudiation, it must be clear, absolute and certain. Otherwise, any expressed uncertainty could be taken as repudiation and it would be impossible (or at least risky) for a party to a contract to express concerns or seek assistance from the other party to address such concerns lest it be taken as repudiation.

In Kalis, the Court decided that this was not repudiation. The information from the Plaintiffs that they were evaluating their options, does not say that the contract was going to be breached. It merely identified a concern and proposed a possible solution in an effort to minimize issues.

[245] Mr. Quinn also suggested that this was a breach of contract and relied on the five factors set out in Jundi v Ouaida, 2015 ONSC 2529, paras 137-140.

[246] Further, Mr. Quinn relied on two Alberta cases, both of which involve a situation where there was an option to purchase real property which was never completed because of a lack of funds.

[247] In 364021 Alberta Inc. v. 361738 Alberta Ltd., [1990] A.J. No. 1137, affirmed, [1994] A.J. No. 215 (C.A.), Montgomery J. was dealing with an action for breach of an option to purchase real property. After experiencing financial difficulties, the Plaintiffs approached the Defendant who offered to purchase commercial property from them. On the same date an option to purchase was executed by the parties for $10,000 more. The option gave the Plaintiffs an exclusive option to purchase no later than April 1, 1988. On February 22, 1988, the Plaintiffs gave notice to exercise the option with a closing date of March 3, 1988. On that date, the Plaintiffs were unable to comply with trust conditions and their solicitor returned the transfer documents to the Defendant's lawyer with a cheque dated the next day for the difference between the cash to close and the mortgage. The Defendant returned the cheque because of the Plaintiffs' failure to tender the appropriate funds on the agreed closing date and took the position that the agreement was terminated. The Plaintiffs served further notice pursuant to the option on March 30, 1988, to which there was no response. The action was dismissed, the court holding that the Defendant was entitled to rely on the strict interpretation of the option. The Plaintiffs were not ready and able to complete the transaction, thereby repudiating the option. As a result, the Defendant was entitled to terminate the agreement.

[248] In King v. Jameson, [1991] A.J. No. 580 (Q.B.), the Court was dealing with an application by the Applicants for a declaration that the alleged tenancy had been terminated, an order for possession, and compensation for overholding. The Applicants were the registered owners of the land. In December 1990, the parties entered into a lease. The Respondents became tenants for a term starting December 15 and ending April 1st, 1991, and thereafter as monthly tenants until terminated by either side on one months notice. The lease provided for payments to be made by the Respondents, and that they as tenants had an irrevocable operation to purchase the property subject to the terms of the agreement. The Respondents did not make the March 1st payment until March 20th. Notwithstanding that, the Applicants agreed to the Respondents exercising the option to purchase, which they did, and on March 26, the solicitor for the Applicants sent the closing documents to the solicitor for the Respondents. Ultimately, the respondents were not able to come up with the funds to close the transaction. The Respondents were subsequently served with a notice of termination of the tenancy. The court found that the default by the Respondents was so fundamental as to constitute a repudiation of the agreement. The commencement of this action by the Applicants was viewed by the court as an acceptance of the Respondents repudiation. The application was granted.

[249] It is this court’s view that the cases above are distinguishable from the case at bar. In those cases, there would seem to be a clear and unequivocal breach of a term of an agreement. This is not the case here.

[250] First, there is absolutely no suggestion in the APPS, or specifically in the buyback provision, that Ms. Jones has a limited number of opportunities to purchase the property through this provision, or that a failed attempt would amount to a breach.

[251] Second, there is no basis upon which to imply a term that Ms. Jones had limited opportunities to purchase the property through the buyback provision, or that a failed attempt would amount to a breach. The buyback provision, in fact, provides the power to Ms. Jones to determine how and when she wishes to utilize the term, subject only to the eight-year limitation. Even after the eight-year limitation, the parties could still negotiate. This provision does not read like it was meant to restrict Ms. Jones in her ability to buy back the property – in fact, quite the contrary.

[252] Third, there is simply no evidence to support the fact that Ms. Jones intentionally or purposefully failed to follow through on the transaction to re-purchase. If anyone breached the buyback term here, it was Mr. Quinn, through the actions of Mr. Franklin. Certainly, Ms. Jones has done nothing to breach the terms of the buyback provision.

CV-21-86

[253] The issues to be decided on CV-21-86 are as follows:

a. Is this a commercial tenancy?

b. Did Ms. Jones breach the terms of the Rental Agreement found in Schedule A of the APPS?

c. If, yes, what is the appropriate consequence?

[254] Mr. Quinn argued that regardless of this court’s decision on the other applications, Ms. Jones’ tenancy has been terminated, or should be terminated, as a result of breaches and deficiencies outlined in the July 20, 2021 Notice of Termination for breach of lease, purported to be brought under s. 19 of the Commercial Tenancies Act, outlining six purported breaches of the rental agreement in the APPS dated February 25, 2017, which were specified as follows:

a. Construction and use of a bunkhouse without a municipal permit;

b. Using the property as a commercial campground contrary to municipal bylaw;

c. Subletting the property for commercial use and residency without his consent;

d. Using the property to house, raise and sell livestock without his consent and without a license as required by the municipality;

e. Using the property for residential purposes without a building or occupancy permit from the municipality; and

f. Failing to maintain the property in accordance with the Municipal Property Standards Bylaws.

[255] Mr. Quinn pointed out that, seeking enforcement of their rights under the rental agreement portion of the APPS, both parties applied to the Landlord and Tenant Board for relief. Having considered submissions and evidence, Member Hartslief of the Landlord and Tenant Board determined that this was not a residential tenancy and, therefore, the Board did not have the jurisdiction to deal with the subject matter of any of the applications.

[256] Relying on the Board’s decision and case law, Mr. Quinn argued that this tenancy was commercial in nature, and therefore, governed by the Commercial Tenancies Act.

[257] In OnTheGoShipping Inc. and Kwok-Wai Leung, aka Harry Leung v. G. Khan Medicine Professional Corporation, 2020 ONSC 2789, the Applicant had leased premises from the Respondent in Markham which included a two-story heritage house, yard and garage. The Applicant took the position that the Residential Tenancies Act applied, while the Respondent took the position that the Commercial Tenancies Act applied. The nature of the tenancy was the central issue to be decided. The Court stated:

[24] All the circumstances must be considered to determine the predominant purpose or use of the tenancy. This Court in Fiset, provided examples of circumstances which may be relevant. The circumstances could include:

• The historical use of the premises.

• The intention of the parties.

• Whether the landlord knew the tenant was living at the premises.

• The zoning for the premises.

• The form and wording of the lease.

• Whether the landlord charged GST in relation to the rent.

• Whether the premises are a single unit or whether they were divided into distinct residential and commercial areas, such that the residential area is "attached" to the commercial area.

• Whether or not amenities one would expect in a residential tenancy, such as a stove and a refrigerator, are in the premises.

• The relative share of the premises devoted to commercial use as opposed to residential use.

• How business was conducted at the premises. Was there a "walk-in" trade? Did employees or workers attend the premises in relation to the conduct of the business?

• Whether there are any signs indicating a commercial use.

• The terms of the lease, such as its length, and any provisions for rent increase.

[258] In Tauro v. Yu, 2018 ONSC 7319, Favreau J. was considering the two Acts in the context of a “mixed use” property. She stated as follows:

[29] As reviewed above, until very recently, both parties proceeded on the assumption that the second floor apartment falls under the jurisdiction of the Landlord and Tenant Board pursuant to the Residential Tenancies Act, 2006. However, in her most recent amended notice of application, Ms. Tauro seeks a declaration that the entire property is exempt from the Residential Tenancies Act.

[31] In seeking a declaration that the Residential Tenancies Act, 2006 does not apply in this case, the applicant relies on section 5(j) which provides as follows:

5 This Act does not apply with respect to,

(j) premises occupied for business or agricultural purposes with living accommodation attached if the occupancy for both purposes is under a single lease and the same person occupies the premises and the living accommodation…

[32] A number of cases in Ontario have interpreted and applied this provision. Most recently, in Toronto Community Housing Corp. v. Didier, 2018 ONSC 5158(Sup. Ct.), at para. 29, Sanfilippo J. identified a number of relevant principles that emerge from the cases:

Other courts have reached similar determinations on greater evidence of mixed use of commercial space with residential functions. In Lei v. Crawford, 2011 ONSC 349, [2011] O.J. No. 175 (Ont. S.C.J.), Perell J. upheld the application of the Commercial Tenancies Act to the lease of a property that consisted of a retail store on the main level with residential apartments on the second floor and in the basement. In Hahn v. Kramer (1979), 1979 CanLII 2111 (ON SC), 23 O.R. (2d) 689 (Div. Ct.) and Fiset v. DiGeso (1998), 20 R.P.R. (3d) 86 (Gen. Div.), the courts held that the lease of a retail store with associated living accommodation was not a residential tenancy under the Residential Tenancies Act. My conclusion is supported by the finding in Sigrist v. McLean, 2011 ONSC 7114, 283 O.A.C. 100, at paras. 112-115, that the Commercial Tenancies Act applies to a mixed use property where the "predominant purpose" of the property was for business.

[33] Accordingly, the courts look for the predominant use of the property. In addition, the courts have stated on a number of occasions that the lease of a store with associated living accommodation is a typical situation to which the exemption created by section 5(j) of the Residential Tenancies Act, 2006 applies. In fact, in Hahn, the Divisional Court held that "the case of a lease of a store with living accommodation combined is relatively easy. That would clearly fall within the definition of premises occupied for business purposes with living accommodation attached."

[34] Accordingly, based on the language in section 5(j) of the Residential Tenancies Act, 2006 and a review of the cases that have considered the provision, in my view, there is no doubt that, in this case, the exemption applies to the apartment above the convenience store. The convenience store and apartment are under one lease, the convenience store and apartment are attached, and the same person, namely Ms. Yu and her husband, occupy the convenience store and the apartment.

[35] At first blush, it may seem that the complicating factor in this case is that, until recently, all parties proceeded on the assumption that the apartment fell under the jurisdiction of the Landlord and Tenant Board, and the Board has already made two orders dealing with the second floor apartment. However, the parties cannot confer jurisdiction on the Board by their conduct or by agreement, and the Superior Court is not bound by the prior decisions of the Board, which appears to have exercised its jurisdiction in error.

[36] Therefore, I find that the applicant is entitled to a declaration that the whole tenancy is subject to the commercial lease, and that it is exempt from the Residential Tenancies Act, 2006, in accordance with section 5(j) of that Act.

[259] The first question this court would need to answer is whether this is a commercial tenancy. According to Mr. Quinn, this is most certainly a commercial tenancy given the following:

a. If Linda Jones does not exercise the buyback provision in 8 years, she loses the option to buyback the property, unless they are able to agree on terms.

b. This is a business transaction between willing and capable participants. This is not a conventional sale. It is a loan for $300,000. Mr. Quinn took title for the money, and if Linda Jones paid it back, with interest and rent, she would get the property back.

c. Mr. Quinn was prepared to take on the risk that Linda Jones might not buy the property back at all. If the value of the property dropped, he would suffer a loss. Linda Jones was prepared to take on a risk that she would not be able to buy the property back in 8 years, and if the property was worth more than $300,000, she would suffer a loss. They both knew when they entered the APPS that Linda Jones might not purchase the property back, and one or the other could suffer loss or no loss at all.

d. The buyback was in the dominion and control of Linda Jones, or, if she died, Philip Jones. Linda Jones was able to act unilaterally in the exercise of the right and decision to trigger the buyback provision. She just needed to say she was doing it, pick the date, deliver the funds, and Mr. Quinn was bound to transfer the property.

e. Linda Jones could forever lose her buy back right in one of two ways:

i. 8 years lapse; or

ii. She exercised the right but failed to tender the required funds and Mr. Quinn accepted the breach.

f. Linda Jones had the Wholearth FarmStudio Plan, which involved using portions of the property for short term accommodation.

[260] While this court does not agree with all of the factors referred to, such as the manner in which Linda Jones could lose her right to buy back the property, this Court is prepared to accept that this is a commercial tenancy and that the Commercial Tenancies Act applies.

[261] There would appear to be no real dispute that the requirements of s. 19 of the Commercial Tenancies Act which provides for the termination of the lease for non-monetary breaches, and prescribes both the contents of the Notice of Termination and necessity of delivery of same prior to attempting to enforce the right of re-entry, have been met.

[262] After the requirements of s. 19 have been met, s. 20(1) of the Commercial Tenancies Act provides as follows:

20 (1) Where a lessor is proceeding by action or otherwise to enforce a right of re-entry or forfeiture, whether for non-payment of rent or for other cause, the lessee may, in the lessor’s action, if any, or if there is no such action pending, then in an action or application in the Superior Court of Justice brought by the lessee, apply to the court for relief, and the court may grant such relief as, having regard to the proceeding and conduct of the parties under section 19 and to all the other circumstances, the court thinks fit, and on such terms as to payment of rent, costs, expenses, damages, compensation, penalty, or otherwise, including the granting of an injunction to restrain any like breach in the future as the court considers just. R.S.O. 1990, c. L.7, s. 20 (1); 2006, c. 19, Sched. C, s. 1 (1).

[263] In Godfrey Estates Ltd. v. Ken Cambridge Ltd., 1974 CanLII 557 (H.C.), the court considered the scope of its discretion in granting relief under this section. The Court stated:

Counsel for the applicant urged upon me that in view of the fact that the action was founded on the breach of covenant to pay rent, I should not consider any evidence relating to the breach of any other covenant on the part of the applicant. In this respect I agree with the submissions of the counsel for the respondent. On the authority of Middleton, J., in Lane v. Kerby (1920), 19 O.W.N. 381, it seems clear that in exercising the discretion of the Court in granting or withholding relief under s. 20 (1) of the Act, the Court not only can but should take into account all relevant circumstances surrounding the lessor-lessee relationship, which I take to include breaches of covenants other than the particular one complained of, although the weight and significance to be attached thereto will, of course, vary in each individual case depending on the nature and character of such breach and the notice and lack thereof given by the lessor to the lessee of such breach.

[264] More recently, in Campbell v. 1493951 Ontario Inc., 2020 ONSC 4029, the Applicant sought an Order granting him relief from forfeiture and re-entry into his business. The Court concluded that Mr. Campbell was operating an illegal cannabis store in breach of his sub-lease, however considered whether Mr. Campbell was entitled to relief from forfeiture. The Court stated as follows:

[58] Relief from forfeiture is an equitable, discretionary remedy. The power to relieve against forfeiture recognizes that in some circumstances enforcing the terms of a contract will have an unfair or inequitable impact on the person who breached the contract. Relief from forfeiture is to be granted sparingly, although it will often be appropriate when the interests of the party seeking to uphold the forfeiture can be fully vindicated in some other way.

[59] In deciding whether to grant relief from forfeiture, the Court must consider all the circumstances, including the applicant’s conduct, the gravity of the breach, and the disparity between the value of the property forfeited and the damage caused by the breach. The Court will also consider whether the Applicant comes to Court with clean hands and whether the Applicant made diligent efforts to comply with the terms of the lease. In the end, the issue is whether Mr. Campbell can show that forfeiture would be inequitable and unjust in the circumstances.

[60] Mr. Campbell takes the position that he should be permitted to resume operations because he has done everything he could to comply with the law and made diligent efforts to pursue an exemption. I disagree. Mr. Campbell has done nothing more than alert public officials in Brampton that he thinks he should be exempt from the law. He did not ask the provincial government for an exemption under the Cannabis Control Act and, before he was locked out of his business, he had not asked the Court to grant him an exemption either. I accept that Mr. Campbell has complied with some of the standards set by the Registrar of the Alcohol and Gaming Commission of Ontario but he has not made diligent efforts to ensure the legality of his business or comply with the terms of his sub-lease.

[61] I accept that Mr. Campbell invested considerable time and money into finding a suitable location for his store, establishing and promoting his brand, developing a large and loyal customer base, and hiring qualified staff. Undoubtedly, the abrupt closure of Mr. Campbell’s store has had a significant impact on his employees and customers. I am very sympathetic to those who relied on Mr. Campbell’s business for their employment. However, that does not provide a reasonable basis for the Court to permit Mr. Campbell to continue to operate an illegal cannabis store.

The Court concluded that the breach was very serious. Mr. Campbell was operating an illegal cannabis store for more than 15 months. When confronted about it, Mr. Campbell was dishonest. The Court concluded that there was nothing inequitable or unjust about prohibiting an illegal business from continuing.

[265] Ms. Jones submitted that the evidence provided by Mr. Quinn in support of this argument is not admissible given that it is not independent, expert or even contemporaneous, and as a result, is inadmissible hearsay that should not be relied upon.

[266] Ms. Jones referred to Rule 39.01(5) of the Rules of Civil Procedure, which states that an “affidavit for use on an application may contain statements of the deponent’s information and belief with respect to facts that are not contentious, if the source of the information and the fact of the belief are specified in the affidavit”. In this case, the condition of the subject property and Ms. Jones’ use of it is certainly a contentious point. Linda and Philip Jones have argued that the information provided by Mr. Quinn as to the condition and use of the property is out of date, and, therefore, the documentary evidence of third parties provided by Mr. Franklin as to the condition and use of the property by Ms. Jones is inadmissible. On October 18, 2021, Mr. Franklin attended at the property with various inspectors. Aside from one email from Mr. Comeau, who indicated that there were no issues, no other inspectors have produced reports, correspondence, or documentation indicating outstanding issues previously identified in the July 20, 2021 Notice. Due to Mr. Quinn’s failure to produce this evidence, Ms. Jones submits that an adverse inference may and should be drawn. Further, the inspection report from 2019 purports to provide an opinion on a variety of subjects and the author has not been produced or qualified. If it is to be considered at all, Linda and Philip Jones argued that it must be given little to no weight.

[267] It is the view of this court that even if the inspection report from 2019 and the various hearsay evidence is ignored, Mr. Quinn can still establish a breach as outlined in the July 20, 2021 Notice of Termination. Ms. Jones has admitted that she has not obtained a building permit from the municipality in relation to the construction of the bunkhouse or a permit from the Electrical Safety Authority to supply it with power, and has used it for short term accommodations. The evidence plainly shows that Linda and Philip Jones have offered short term rental accommodations. Having said that, it is not clear to this court what is currently occurring at the property, given that there are holes in the roof, no electricity, no heat, and no running water.

[268] Even assuming that Linda Jones has committed breaches, this court utilizes its discretion and refuses to terminate the rental agreement or grant the other relief sought. It is this Court’s view that Mr. Franklin has stood in the way of Ms. Jones taking back ownership of this property for nearly two years. If the property would have transferred back to Ms. Jones and/or Mr. Jones at the end of September 2020, this would no longer be Mr. Quinn’s concern. Instead of trying to facilitate an easy transfer of the property back to Ms. Jones, Mr. Quinn, through Mr. Franklin, has continued to create insurmountable challenges. In addition, Mr. Franklin has repeatedly attended at the property causing major damage to various structures that will now be an added expense for Ms. Jones when she takes back title. Considering the totality of the circumstances, including the history and reason for the transfer in the first place, granting relief to Mr. Quinn on this Application would be inequitable and unjust in the circumstances, and would have an unfair or inequitable impact on Linda Jones.

Conclusion

[269] It would appear that when the APPS was drafted, it was clear to everyone involved that Linda Jones had every intention of buying back this property within the relevant time frame if finances allowed. The provision appears to have been drafted in a simple straightforward manner so as to permit an efficient and simplified process. Unfortunately, this has been everything but efficient and simple. It is expected that this judgment and resulting Order will ensure that this property gets transferred back to Linda Jones and/or Philip Jones in a timely and professional manner.

[270] For all of the foregoing reasons, this court Orders that:

a. Linda Jones, and/ or an authorized third party, is legally entitled to buy back the property, 143 Concession Road 14 East in Trent Hills, Ontario, in accordance with the terms of the APPS, and must take steps to do so immediately.

b. An APS should be immediately prepared and presented to Mr. Quinn for signature. It is strongly suggested that the closing date on this transaction occur as soon as possible to avoid further complication.

c. The terms of the buyback should be equivalent to what was due and payable on May 31, 2021.

d. A mandatory injunction is Ordered requiring Mr. Quinn to permit Ms. Jones to repurchase the property in accordance with the buyback provision of the APPS.

e. Hugh Franklin is not to attend at the property for any reason, without the express consent of Linda Jones or a court order.

f. Until the transfer of this property, Linda Jones will use the property in a lawful manner, at all times, in compliance with any applicable federal, provincial or municipal laws.

g. Any items that have been removed from the property, such as vehicles, must be returned to its rightful owner as soon as possible.

[271] This court expects that the parties will cooperate to ensure the most timely transfer of this property back to Ms. Jones.

[272] As for costs relating to these applications, the court strongly encourages the parties to consult with each other and attempt to reach a reasonable agreement. If the parties are unable to agree as to costs, the court will accept written submissions on costs, which shall be no more than five pages in length, excluding supporting documentation, and which shall be provided to the court office electronically, and to Bev.Taylor@ontario.ca, no later than 4:30 p.m. on August 26, 2022.

Justice V. Christie

Date: July 28, 2022