COURT FILE NO.: CV-22-13867, CV-22-13913
DATE: 2022-08-11
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
ROLLING MEADOWS LAND DEVELOPMENT CORPORATION
Applicant
- and -
PINE GLEN THOROLD INC., PINE GLEN HOMES INC., PINE GLEN CONTRACTORS INC., EDWARD JURINIC and/or JUSTIN PELLICCIOTTA, operating as PINE GLEN and/or PINE GLEN HOMES, PINE GLEN JOHN DOE CORPORATION, operating as PINE GLEN and/or PINE GLEN HOMES, and MERIDIAN CREDIT UNION LIMITED
Respondents
Counsel: Sarah Draper, counsel for the Applicant M. Klaiman, counsel for the Respondents
HEARD: August 4, 2022 at Welland
The Honourable Justice D. L. Edwards
REASONS FOR DECISION
Introduction
[1] Both parties have brought Applications. Pine Glen Thorold Inc. seeks an interpretation of a contract and confirmation that it remains a valid contract; whereas Rolling Meadows Land Development Corporation seeks an order that the contract has been terminated.
[2] Rolling Meadows also brings a motion for an order that the two Applications be converted to a trial. Alternatively, it seeks an order directing a trial of one or more of the issues raised in the Applications. In the further alternative, it seeks an adjournment of the two Applications to receive and review outstanding undertakings and for further cross examinations.
[3] For the reasons set out below, I dismiss Rolling Meadows' motion and Application. I grant the relief requested by Pine Glen in its Application.
Factual Overview
[4] Rolling Meadows was the owner of approximately 400 acres of land in Thorold which were formerly farmlands, and which are being developed for residential dwellings.
[5] Glen Gordon is the principal of Rolling Meadows.
[6] Pine Glen is a builder whose principals are Eddie Jurinic and Justin Pellicciotta.
[7] Rolling Meadows has been selling off portions of the 400 acres to various builders. In total, Mr. Gordon on behalf of Rolling Meadows has entered into 55 agreements of purchase and sale with other builders with respect to various portions of these lands.
[8] Prior to the contract which is in dispute, Rolling Meadows entered into five agreements of purchase and sale with Pine Glen with respect to various portions of those lands. Two of those agreements had adjustment clauses; three agreements did not have an adjustment clause.
[9] These prior transactions were completed. Other than an issue regarding an adjustment to the purchase price of Phase 3, there are no outstanding disputes regarding these prior transactions.
[10] On June 2, 2020, the parties entered into the agreement of purchase and sale ("APS") which forms the subject matter of the dispute.
[11] The APS provided that the sale price was based upon 58 units with 20 feet frontage at $3,850 per foot of frontage. The purchase price was fixed at $4,466,000. The APS required a deposit of $1,339,800 which was thirty percent of the purchase price.
[12] The APS also granted Rolling Meadows the option to increase or decrease the purchase price by a maximum of $200 per foot of frontage at its sole discretion.
[13] On October 14, 2020, the parties signed an amendment to the APS ("Amending Agreement"), which increased the purchase price from $4,466,000 to $6,148,00 and removed two conditions.
[14] The APS had been conditional upon Pine Glen being satisfied as to the financial feasibility of the project and conditional upon Rolling Meadows obtaining the City of Thorold's approval to the plan of subdivision by December 31, 2020. These two conditions were removed by the Amending Agreement.
[15] On May 26, 2022, Henderson J. ordered that the two Applications be heard together on July 28, 2022; cross-examinations to be conducted on June 23, and 24, 2022; and facta to be filed at least five days before the hearing.
[16] Ramsay J. triaged the motion brought by Rolling Meadows, determined it was not urgent and ordered that Henderson J.'s schedule remain unless a judge ordered otherwise. Further, the motion was to be spoken to on July 28, 2022.
[17] On July 28, 2022, the matter was adjourned to August 4, 2022, due to misunderstandings as to the amount of court time required. The parties agreed that, for a judge to properly assess the relief requested in the motion, the entire matter needed to be argued and that a day was required for that.
[18] On August 4, 2022, I heard argument on both Applications and the motion.
[19] Although Rolling Meadows sought an adjournment as alternate relief, I will examine that issue first, following with an analysis of whether the Applications should be converted to a trial or trial of an issue, and based upon those conclusions, I then will analyze the merits of the Applications.
The Parties Positions on the Adjournment Request
[20] Rolling Meadows' counsel asserts that Pine Glen failed to satisfy its undertakings arising from the cross-examinations, and therefore either a trial is required to clarify how the deposit calculations were made or, if no trial, that an adjournment is required to allow time for Pine Glen to satisfy those undertakings and then be cross-examined on them.
[21] Pine Glen asserts that it provided answers to most undertakings by July 10, 2022, and the balance on July 18, 2022. Notwithstanding that Henderson J.'s timetable did not provide for further cross-examinations, Pine Glen's counsel offered to present a representative from Pine Glen for such further cross-examinations, but that was declined. Rolling Meadows' counsel asserted that there was not enough time between then and July 28, when the matter was to be argued, to do the cross-examinations and obtain transcripts.
The Law re Motion
[22] In order for a court to allow an adjournment, it must be satisfied that the grounds for doing so are legitimate and the administration of justice will be better served with a delay.
[23] In Khimji v. Dhanani (2004), 2004 12037 (ON CA), 69 O.R. (3d) 790 (C.A.), at para. 14, Laskin J.A. made the following statement that was accepted by the majority about a requested adjournment of a civil trial:
A trial judge enjoys wide latitude in deciding whether to grant or refuse the adjournment of a scheduled civil trial. The decision is discretionary, and the scope of the appellate intervention is correspondingly limited. In exercising this discretion, however, the trial judge should balance the interests of the plaintiff, the interests of the defendant, and the interests of the administration of justice in the orderly processing of civil trials on their merits. …
[24] Although Laskin J.A.'s comments were made about an adjournment of a civil trial, they are equally applicable to an adjournment of the hearing of an Application.
[25] Further factors that I must consider on an adjournment to include:
a. the overall objective of a determination of the matter on its substantial merits;
b. the principles of natural justice;
c. that justice not only be done but appear to be done;
d. the particular circumstances of the request for adjournment in the reasons and justification for their request;
e. the practical effect or consequences of an adjournment on both substantial and procedural justice;
f. the competing interests of the parties in advancing or delaying the progress of the litigation;
g. the prejudice not compensable in costs, if any, suffered by a party by the granting or the refusing of the adjournment;
h. whether the ability of the party requesting the adjournment to fully and adequately prosecute or defend the proceeding would be significantly compromised if the adjournment was refused;
i. the need for the administration of justice to orderly process civil proceedings; and,
j. the need for the administration of justice to effectively enforce court orders.
[26] The Ontario Court of Appeal in Toronto-Dominion Bank v. Hylton, 2010 ONCA 752, added to those considerations:
a. the evidence and strength of the evidence of the reason for the adjournment request;
b. the history of the matter including deliberate delay or misuse of the court process; and,
c. the prejudice to the party resisting the adjournment and the consequences to the requesting party of refusing the request.
Analysis of the Adjournment Request
[27] After applying those factors to the circumstances of this case, I find that Rolling Meadows brought this motion for an adjournment prematurely.
[28] On July 12, 2022, Pine Glen delivered answers to 13 of the 17 undertakings that arose from cross examination. The next day, Ms. Draper signed the Notice of Motion for the adjournment.
[29] On July 18, 2022, Pine Glen delivered answers to the four remaining undertakings.
[30] E-mail correspondence dated July 15, 2022 reveals that counsel for Pine Glen offered Ms. Draper three days when she could cross-examine a representative of Pine Glen further to the majority of the undertakings being satisfied.
[31] I find that Ms. Draper did not avail herself of the opportunity offered by Pine Glen. I agree that the time was limited, and things would have been rushed, but it was offered and could have been accomplished.
[32] Further, Henderson J.'s Timetable did not contemplate further examinations.
[33] In the circumstances, it would not be a proper exercise of my discretion to adjourn the hearing of these matters.
Conversion of Applications to Trial
[34] Having found that an adjournment would not be granted, the next question arises as to whether the Applications should be converted into a trial or a trial of an issue.
[35] Such an analysis involves an analysis of many of the issues raised by the Applications and a determination as to whether they can be dealt with by Application or require a trial.
The Parties' Position on the Applications
[36] As noted above, Rolling Meadows submits that there are credibility issues and factual disputes such that the two Applications should be converted into trials or at least there be a trial of issues.
[37] Pine Glen asserts that there are no credibility issues or relevant factual disputes and that these issues can be determined via the Applications.
[38] Rolling Meadows also submits that Pine Glen breached the APS in several ways and seeks an order declaring the APS terminated.
[39] Pine Glen asserts that there has been no breach, and if there was a breach it has been waived by Rolling Meadows.
[40] I will analyze this in two segments. The first will be an examination of the circumstances surrounding the execution of the Amending Agreement and the impact of those circumstances, if any, on its validity and meaning. Second, I will examine events after the execution of the Amending Agreement and the impact of those events, if any, upon the validity of the Amending Agreement.
The Law on converting Applications to Trials
[41] In Gordon Glaves Holdings Ltd. v. Care Corp. of Canada Ltd. (2000), 2000 3913 (ON CA), 48 O.R. (3d) 737 (C.A.), at para. 30, the Ontario Court of Appeal stated:
The statute authorizes this proceeding to be brought by application not action. As with any application the court will require the trial of an issue only if there is good reason to do so and no determination can properly be made on the application record. A common example of such a circumstance is a credibility conflict between witnesses.
[42] Also, in Collins v. Canada (Attorney General) (2005), 2005 28533 (ON SC), 76 O.R. (3d) 228 (S.C.), G.P. Smith J. set out that the following factors are relevant in determining whether an application should proceed as an action:
whether there are material facts in dispute;
the presence of complex issues requiring expert evidence an/or a weighing of the evidence;
whether there is a need for the exchange of pleadings and for discoveries; and,
the importance and impact of the application and of the relief sought.
[43] Also, in Keewatin v. Ontario (Minister of Natural Resources) (2003), 2003 43991 (ON SCDC), 66 O.R. (3d) 370, at para 46, Then J. stated: "Where there is an evidentiary dispute with respect to facts that are material to the issues to be resolved and the inferences to be drawn from those facts, a summary application is not the appropriate vehicle for determining such issues."
Analysis of the events surrounding the Execution of the Amending Agreement
[44] The parties agree that, prior to October 14, 2020, Mr. Gordon requested a meeting with Pine Glen to discuss the APS. He had commissioned an appraisal of the lands. This appraisal and the general increase in real estate values triggered his wish to renegotiate the purchase price higher than what he could charge under the APS.
[45] They also agree that at the meeting Mr. Gordon undertook various calculations, but Mr. Jurinic stated that he did not know exactly what they were. Initially, Mr. Gordon wanted the price set at $6,400,000.
[46] Ultimately, they agreed to a price of $6,148,000, which was approximately $1,100,000 more than he could have charged under the APS. Mr. Jurinic's evidence is that it was a fixed price and how they arrived at that price was irrelevant. Mr. Gordon's evidence was that it was based upon a specific figure per linear foot of frontage and based upon 58 units.
[47] It is helpful to review the Amending Agreement. In addition to deleting the two conditions, it stated that the following clause regarding the Purchase Price was deleted from the APS:
PURCHASE PRICE: Four million four hundred and sixty-six thousand Canadian dollars ($Can. $4,466,000.00) (the "Purchase Price"). The Purchase Price is based on fifty-eight (58) units with twenty (20') feet of frontage each, being one thousand one hundred and sixty (1160) linear feet, multiplied by three thousand eight hundred Canadian dollars ($Can. 3,850.00) per foot out of frontage. Notwithstanding the foregoing, the Seller will have the option to reduce or increase the Purchase Price by a maximum of two hundred Canadian dollars ($Can. 200.00) per foot of frontage, by providing written notice by the Seller or the Seller's lawyer to the Buyer or the Buyers lawyer by no later than September 30, 2020.
And the following clause was inserted:
PURCHASE PRICE: The Purchase Price shall now be SIX MILLION ONE HUNDRED FORTY-EIGHT THOUSDAND DOLLARS ($6,148,000.00) for Part of Township Lot 69, former Township of Thorold, now City of Thorold, Regional Municipality of Niagara, subject to an easement in gross of Part 1, Plan 59R15705, as in SN490662 PIN 6405700514, (the "Lot").
[48] No other changes to the APS were made by the Amending Agreement.
[49] I would note that, although the APS explains the basis upon which the purchase price was arrived it, there is no mechanism to adjust the purchase price should the number of units or the frontage of such units change. The only adjustment to the purchase price is the unrestricted right of the Seller to adjust the purchase price up or down by $200 per foot of frontage.
[50] First, without considering the surrounding circumstances, there can be no doubt that the Amending Agreement is crystal clear. It deleted the clause which fixed the Purchase price at $4,466,000 and replaced it with a clause that set a fixed purchase price of $6,148,000. It also deleted the two conditions.
[51] There is no ambiguity in the language of the Amending Agreement. It is crystal clear. There is no need to go behind the agreement to ascertain its meaning.
[52] Rolling Meadows asserts that there was duress and misrepresentations by Pine Glen which necessitate vitiation of the Amending Agreement. It submits that Mr. Gordon was pressured into signing the Amending Agreement before the end of the week and he was falsely told that his lawyer was not available that week when in fact Mr. Boone was available on the Friday of that week.
[53] Let us consider the events surrounding the execution of the Amending Agreement.
[54] In September of 2020, Mr. Gordon requested a meeting to discuss increasing the purchase price. At the meeting, there was discussion about the price and an agreement was reached for a new purchase price of $6,148,000. Pine Glen instructed their lawyer, Anthony Falcone, to prepare the amendment. Mr. Falcone sent the document to Mr. Gordon's lawyer on October 13, 2020, with the comment that his understanding that the parties wanted to firm up the transaction the next day. Mr. Falcone received an out of office email response, which said that Mr. Boone would be out of the office until Friday of that week. As a result, Mr. Falcone emailed Mr. Boone's assistant advising that the clients were looking to have the amendment signed this week.
[55] Later that same day, Mr. Jurinic emailed Mr. Gordon as follows: "Our legal firm let us know that Brandon is not available this week, so we forwarded the paperwork to his office instead. Just wanted to forward this to you so you [sic] so you're aware".
[56] The same day Mr. Gordon responded: "Hey Eddie. Yes I got it and it looks fine. Very simple and straight forward---week [sic] done. Would you like me to sign, scan and send back to you?".
[57] Mr. Jurinic responded moments later: "Sure. I will let our team know that I already received it back from you directly".
[58] The evidence is that while these email exchanges were ongoing, there were no other communications between Mr. Gordon and Pine Glen.
[59] Although Mr. Jurinic was in error when he stated that Mr. Boone was not available that week, clearly there is no pressure exerted upon Mr. Gordon to sign without the benefit of legal advice.
[60] Some context is important here. Mr. Gordon is a sophisticated vendor of real property. He testified that he entered into 55 agreements of purchase and sale with respect to various portions of his 400-acre farm, and nine additional agreements regarding the purchase and sale of other lands. He was represented by a law firm with Mr. Boone being his primary contact.
[61] There was no threat pressuring him to sign by the end of the week. In fact, Pine Glen did not request him to sign without legal advice. It was Mr. Gordon's suggestion that he sign. He had many options available to him. He could have told Pine Glen that the signing had to wait until the next week. He could have called his law firm. If he had done so, he would have found out that Mr. Boone would in fact be in the office on the Friday. Alternatively, he could have asked another lawyer in the firm to assist him.
[62] Instead, after reading the amendment, he responded to Mr. Jurinic: "Very simple and straight forward---week [sic] done. Would you like me to sign, scan and send back to you?".
[63] As I have noted, Mr. Gordon was not a neophyte with respect to agreements of purchase and sale to builders of land for building lots. He, in fact, was very experienced. It was his choice to not call his law firm to request another lawyer advise him.
[64] Rolling Meadows' counsel asserted that Pine Glen tricked him by not also forwarding a copy of the APS so that Mr. Gordon could review the Amending Agreement in the context of the APS. I disagree. Surely a person as sophisticated as Mr. Gordon would have retained a copy of the APS with his records. There was no duty on Pine Glen to forward him an additional copy.
[65] Rolling Meadows also alleges that there was misrepresentation by Pine Glen as to the number of lots within the purchased lands. That, however, ignores the fact that it was Rolling Meadows' obligation under the APS to obtain the approval of the plan of subdivision by the City. Rolling Meadows retained consultants to do that work. If Mr. Gordon was confused with respect to the number of lots in the subdivision, that was not due to a misrepresentation by Pine Glen, but a lack of communications between Mr. Gordon and his consultants, or a lack of diligence on the part of Mr. Gordon.
[66] I find that the Amending Agreement was not executed under duress or through misrepresentation. There is no reason on that basis to declare the Amending Agreement null and void.
[67] Ms. Draper, counsel for Rolling Meadows, also asserted that either there was a mutual misunderstanding or not a meeting of the minds. However, the document is crystal clear. Mr. Gordon was an experienced vendor of lands to builders. It strains credibility to conclude that Mr. Gordon did not understand a document, that he called "very simple and straight forward". In fact, an objective reading of the Amending Agreement supports his conclusion.
[68] Finally, Ms. Draper submits that it would be unconscionable to permit the Amending Agreement to stand. She points to the appraisal produced by Todd Crawford in September 2020 and his evidence that the purchase price is significantly below market value. However, that ignores the fact that in June 2020, just a few months earlier, Rolling Meadows agreed to a purchase price which at most was $1,100,000 lower than the purchase price established by the Amending Agreement.
[69] As I have found that Mr. Gordon is a sophisticated vendor of residential lots for builders, I am satisfied that he understood what he was doing, and he agreed to do it. The fact that the purchase price was below what an appraiser concluded was fair market value is not a reason for setting aside the Amending Agreement.
[70] I find that the Amending Agreement is valid and sets a fixed purchase price of $6,148,00.
Analysis of the events after the Execution of the Amending Agreement
[71] Three issues have been raised by Rolling Meadows as reason to declare the APS and Amending Agreement as terminated.
Deposit Amount
[72] First, it alleges that, notwithstanding the terms of the Amending Agreement and APS, there was an oral agreement that the amount of the deposit should be thirty percent of the new purchase price. The Amending Agreement did not alter the provision in the APS which set the deposit at $1,339,800. The APS required that the sum of $893,200 be paid upon acceptance of the agreement and the sum of $446,600 be paid within seven days' notice that building permits were available.
[73] The total deposit is in fact thirty percent of the estimated purchase price set out in the APS. However, the agreement does not state this and there was no mechanism in the APS or the Amending Agreement to provide that the deposit should be increased or decreased should the purchase price change. Recall that the APS itself had a mechanism whereby Rolling Meadows could increase or decrease the purchase price by $200 per linear foot of frontage, but no corresponding clause to adjust the deposit. The Seller could increase the purchase price by $232,000 without a corresponding increase to the deposit.
[74] There is evidence that Pine Glen in several pieces of correspondence referred to the deposit as thirty percent of the purchase price. However, there is not evidence or conduct of the parties sufficient to support the position that the parties had verbally changed the terms of the APS and Amending Agreement.
Renovations
[75] Second, the parties agree that there was a verbal agreement that Pine Glen would undertake certain renovations to Mr. Gordon's home and those deposits would be credited to Pine Glen.
[76] Rolling Meadows asserted that the credit was to be applied on closing, whereas Pine Glen submitted that it was to be applied to the deposit.
[77] Mr. Gordon's evidence is that it was not until the dispute arose that he determined that rather than a payment of $893,000 which the APS required as a first deposit upon acceptance, he only received $318,200 from Pine Glen on June 2, 2020. This was $575,000 short.
[78] It strains credibility that Mr. Gordon did not know that amount that the APS required as a first deposit and only determined months later that Pine Glen had shorted the amount required. Rather, the payment of $318,200 is consistent with the oral agreement that Pine Glen would do renovations to Mr. Gordon's home and the cost of renovations would be applied to the deposits. Only after the renovations were complete, could the balance of the deposit be determined and paid.
[79] On December 2, 2021, before the dispute regarding the purchase price arose, Mr. Gordon emailed Pine Glen confirming the amount of the deposit of $1,339,200, the payment of $318,200 and a balance of "$1,021,000.00 owing, less, whatever the total amount of house renovations".
[80] I would note in passing that the APS provided for a deposit of $893,200upon acceptance and $446,600 upon building permits being available. That totals $1,339,800 and not $1,339,200 as Mr. Gordon stated in that email.
[81] The parties agree that on December 7, 2021, Pine Glen paid a further amount of $295,327, and on January 25, 2022, Pine Glen paid a further $601 towards the deposit.
[82] I find that the evidence is clear that both parties relied upon their oral agreement that the amount of the renovations was to be credited to the deposit.
[83] The second issue regarding the renovations is the quantum of the credit of the renovations.
[84] The initial budget was set at $575,880. On June 23, 2020, the cost was adjusted upwards to $629,730. Both parties agree that there were changes to the scope of work and that the work was complete by November 21, 2021. On December 3, 2021, Pine Glen sent a Summary of Revisions for the renovations and set out the final cost as $725,672.30.
[85] Before the dispute about the purchase price under the APS arose, there is no written evidence to support Mr. Gordon's current concern that the amount charged was excessive.
[86] In fact, Mr. Gordon testified that the work was done well; there were no deficiencies; and, he would recommend the builder to others.
[87] After the December 3, 2021 meeting, Mr. Jurinic sent Mr. Gordon an email which confirms the cost of the renovations. Mr. Gordon never contests the amount or that it could not be applied to the deposit. Further, Mr. Gordon confirmed that he has not paid anything for those renovations.
[88] I find that there was an oral agreement that amended the APS and Amending Agreement which was relied upon by Pine Glen that the cost of renovations to Mr. Gordon's home could be applied against the deposit and that Mr. Gordon did not contest the quantum until the dispute regarding the purchase price arose.
[89] Further, I find that Pine Glen was not in breach of the terms of the APS and Amending Agreement with respect to payment of the deposit as it followed the terms of the oral agreement. The final cash portion of the deposit could not be determined until the cost of the renovations were determined. Once that occurred, Pine Glen sent a further $601 which was the balance of the deposit outstanding.
[90] Third, Rolling Meadows now alleges that no credit should be given for the renovations because the purchaser did not do the work, but rather a related entity performed the work.
[91] I find that in the circumstances, that is splitting hairs. Mr. Gordon was dealing with the principals of the purchaser. He knew, or should have known, that they had different corporations for different matters. In fact, Rolling Meadows entered into one of the prior agreements of purchase and sale with a related entity of the purchaser.
[92] There was no breach of the oral agreement that renovations would be completed by Pine Glen and that the amount of such work would be applied to the deposits.
[93] I find that until the dispute about the purchase price arose, Mr. Gordon was satisfied with the extent and quality of the renovations, and he took no exception to the price of such renovations. It was only after Mr. Gordon began searching ways to extract Rolling Meadows from the APS did he raise this issue.
[94] Further, on December 6, 2021, Pine Glen confirmed with Mr. Gordon that Pine Glen would be credited with the sum of $725,672.30 for the renovations. Mr. Gordon responded the same day and did not take issue with that amount.
[95] I find that the sum of $725,672.30 is credited to Pine Glen's obligation to pay the deposits.
[96] Further, I find that the parties orally amended the terms of the APS and Pine Glen acted pursuant to that agreement by completing the renovations. Pine Glen could not know the extent of the renovations until they were complete and therefore was not in breach of the terms of the APS by not making the deposits as set out in the APS.
[97] I find that Pine Glen has paid the deposits required by the APS as amended by their oral contract.
Pre-sale of Homes
[98] Rolling Meadows also alleges that Pine Glen pre-sold homes without obtaining approval from Rolling Meadows as required by the terms of the APS, thereby breaching the APS.
[99] However, these homes were the same models as were built in the previous phase of the development. Approval was not obtained in the prior phase. Rolling Meadows clearly was aware of this and by its conduct condoned the action. It never gave notice of termination to Pine Glen with respect to this issue. Its course of conduct was such that it has waived that provision of the APS. See: W.J. Crowe Ltd. v. Pigott Construction Co., 1961 23 (ON CA), [1961] O.R. 305 (C.A.).
Water Bill
[100] Rolling Meadows also alleges that Pine Glen breached the terms of the APS because it did not pay the water bills when they were first sent to it by the City of Thorold.
[101] The evidence is clear that initially Pine Glen took the position that those bills were the responsibility of Rolling Meadows. However, when it was pointed out that they were in fact Pine Glen's responsibility, they were paid.
[102] The APS provides that costs arising because of building permit applications are the responsibility of Pine Glen. However, there is no specific provision regarding when they must be paid.
[103] Pine Glen did not initially pay these bills, but upon realizing that they were Pine Glen's responsibility, they paid the bills.
[104] There was no breach of the APS.
[105] It is clear to me from Rolling Meadows' position of the water bills and other issues that it raised that Mr. Gordon has seller's remorse. He agreed to a purchase price that in retrospect he feels was too low and is searching for any reason to terminate the transaction.
Conclusion on the Necessity of Converting the Application to a Trial
[106] I am satisfied that there are no material facts in dispute that require a trial.
[107] Based upon the record, I have been able to adjudicate the issues raised in both Applications.
[108] Accordingly, the request by Rolling Meadows to convert the Applications to a trial or have a trial of an issue or issues is dismissed.
Analysis of Relief requested in Applications
[109] Due to my findings, I need not further analyze these issues.
[110] I dismiss Rolling Meadows' Application.
[111] I grant Pine Glen's Application and make the following orders:
a. The purchase price under the APS, as amended, is $6,148,000;
b. The parties are bound to the APS, as amended by Amending Agreement;
c. Pine Glen has paid the deposits required by the APS; and
d. Pine Glen is not in default under the APS, as amended by the Amending Agreement.
Miscellaneous
[112] In Rolling Meadows' Application, it sought relief with respect to a prior agreement of purchase and a payment of what it stated was an adjustment to that purchase price.
[113] I found that issue was best litigated as a separate matter. Pine Glen's counsel agreed that, should Rolling Meadows pursue that issue via a Statement of Claim, it would consider the action commenced as of the date of Rolling Meadows' Application, and not the date of issue of the Statement of Claim.
Costs
[114] If the parties cannot agree upon costs, Pine Glen shall serve and file its cost submissions and Bill of Costs within fourteen (14) days; Rolling Meadows shall serve and file its cost submissions and Bill of Costs within ten (10) days thereafter, with a reply, if any, being served and filed within four (4) days thereafter. Cost Submissions shall be limited to three (3) pages, not including the Bill of Costs.
Summary
[115] I dismiss Rolling Meadows' motion and Application.
[116] I grant Pine Glen's Application and order.
a. The purchase price under the APS, as amended, is $6,148,000;
b. The parties are bound to the APS, as amended by Amending Agreement;
c. Pine Glen has paid the deposits required by the APS; and
d. Pine Glen is not in default under the APS, as amended by the Amending Agreement.
e. If the parties cannot agree upon costs, I will receive their submissions on the schedule set out above.
D. L. Edwards, J.
Released: 2022-08-11
COURT FILE NO.: CV-22-13867, CV-22-13913
DATE: 2022-08-11
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
ROLLING MEADOWS LAND DEVELOPMENT CORPORATION
Applicant
- and -
PINE GLEN THOROLD INC., PINE GLEN HOMES INC., PINE GLEN CONTRACTORS INC., EDWARD JURINIC and/or JUSTIN PELLICCIOTTA, operating as PINE GLEN and/or PINE GLEN HOMES, PINE GLEN JOHN DOE CORPORATION, operating as PINE GLEN and/or PINE GLEN HOMES, and MERIDIAN CREDIT UNION LIMITED
Respondents
REASONS FOR DECISION
D. L. EDWARDS, J.
Released: 2022-08-11