Court File and Parties

COURT FILE NO.: 1766/19

DATE: 2022/11/24

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Canadian Entertainment Properties Inc., Plaintiff

AND:

2680432 Ontario Inc., 2428399 Ontario Inc. and Boquan Wang (aka Frank Wang), Defendants

BEFORE: Justice A. K. Mitchell

COUNSEL: P. Brooks, for the Plaintiff

F. M. Hossain, for the Defendants

HEARD: October 31, 2022 via video conference.

ENDORSEMENT

Overview

[1] The plaintiff moves for summary judgment on its claim pursuant to rule 20 of the Rules of Civil Procedure (the “Rules”).

[2] The object of the plaintiff’s claim and this motion for summary judgment is a parcel of property totalling 56 acres located at 69731 Airport Line, Huron Park, Ontario and legally described as:

Part Lots 6 & 7, concession 3, Stephen designated as parts 52 to 75 both inclusive and parts 83 to 89 both inclusive, plan 22R–5240, save & except Part 1, 22R5671; subject to an easement over parts 61, 62, 67 & 74, plan 22R-5240 as in R175478, subject to an easement over part 89 plan 22R–5240 as in R189547, subject to an easement in gross over parts 52, 53, 54, 57, 58, 59, 60, 63, 64, 66, 68, 69, 70, 71, 72, 83, 84, 85, 86, 87 & 88, plan 22R–5240 and parts 1, 2, & 3, plan 22R–5223 as in HC37168; “surface rights only”; municipality of South Huron being parcel pin no. 41260 – 0309 (LT) (the “Property”).

[3] Pursuant to an agreement of purchase and sale dated January 12, 2019 (the “APS”), the plaintiff, Canadian Entertainment Properties Inc. (“CEP”), agreed to sell the Property to the defendant, 2428399 Ontario Inc. (“242”) subject to certain terms and conditions.

Positions of the Parties

[4] In this action, CEP alleges the defendants are contractually obligated under the APS to re-convey to CEP a portion of the Property comprising a parcel of approximately 7 acres with 4 buildings located thereon (the “Parcel”), for the nominal sum of $2.00. To achieve that end, CEP alleges the defendants are further obligated to facilitate a severance application with respect to the Parcel.

[5] In response, the defendants allege that the only agreement reached between the parties was the sale of the Property to the defendant, 2680432 Ontario Inc. (“268”) (as assignee of the APS), in exchange for payment of the sum of $1.62 million. The defendants deny any contractual obligation to: (i) assist with the severance application; (ii) reconvey the Parcel; and/or (iii) lease the Parcel to CEP pending reconveyance. In addition, 268 counterclaims against the plaintiff for damages for breach of contract and economic tort in the amount of $1,000,000.

[6] On this motion, the plaintiff seeks summary judgment for specific performance of the provisions of the APS. Specifically, CEP asks the court to grant judgment compelling the defendants to execute all documents necessary for CEP to obtain a severance of the Parcel and all documents necessary to convey the Parcel to CEP, once severed. The plaintiff abandons its alternative claim for monetary damages in the amount of $5 million which it says represents the fair market value of the Parcel.

[7] In defence of this action and in opposition to this motion, the defendants dispute the validity and enforceability of the severance, reconveyance and lease provisions of the APS and claim such provisions are ambiguous and do not represent the true understanding and agreement of the parties. The defendants further contend that any executed lease document is void and unenforceable as having been delivered late.

[8] The defendants, Boquan Wang (aka Frank Wang) and 268 (collectively, the “responding defendants”), submit that post-closing negotiations were ongoing between the parties with respect to the issues of severance and reconveyance and, therefore, the intentions of the parties at the time the APS was executed, are factual issues involving a credibility assessment of the parties to these ongoing discussions which require a trial.

The Evidence

Generally

[9] Mr. Wang was, at all materials times, the sole officer and director of 242 and 268 and held a controlling interest in both companies. Subsequent to the commencement of these proceedings, Mr. Wang sold his interest in 242. In response to this motion, Mr. Wang deposed two affidavits in both his personal capacity and on behalf of 268. No evidence was filed on behalf of 242 although 242 continues to be represented in these proceedings by Maki Law PC.

[10] Alan Barnes was, at all material times and remains, the sole officer, director and shareholder of CEP.

[11] At all material times, the parties to the purchase transaction were represented by counsel. Michael Forrester represented CEP and Mr. Barnes. The defendants were represented by Shu Kuan Li. The defendants’ realtor was Nelson Zhao.

[12] In support of this motion, Mr. Barnes filed two affidavits sworn December 20, 2021 and June 28, 2022. In addition, Mr. Forrester deposed an affidavit in support of the plaintiff’s position on the motion wherein he adopted the evidence of Mr. Barnes. Mr. Barnes was examined for discovery and cross-examined on his affidavits. Mr. Forrester was cross-examined on his supporting affidavit.

[13] In response to this motion, Mr. Wang deposed affidavits on June 12, 2022 and August 8, 2022. Mr. Li deposed an affidavit on August 11, 2022 in support of the defendant’s position on the motion. Mr. Wang was examined for discovery and cross-examined on his affidavits.

[14] Transcripts from all examinations were filed in support of the parties’ respective positions on the motion.

The APS

[15] The APS was executed by CEP, as seller, and 242, as buyer. The purchase price for the Property was $1.62 million with $100,000 paid by 242 by way of initial deposit on January 19, 2019.

[16] The relevant provisions of Schedule A to the APS include:

11. Both parties agree that the Buyer gives Barnes/CEP (the Seller) full authorities (sic) to complete a severance known as indication (sic) in Schedule “B” and “C”, with South Huron and the county of Huron, on (sic) Seller’s expense in Three (3) years after closing date of such Agreement of Purchase and Sale.

12. The buyer, 2428399 Ontario Inc. agrees to sell back to Barnes/CEP via an offer of Purchase and Sale Four [4] buildings and lands listed on Schedule “C” with Sale Price [$2.00] without deposit upon completion of severance described in Section 11. The Buyer shall allow the Seller free access to complete exterior hydro electric power upgrades to Middlesex hall and warehouses. The Seller shall pay all cost. Work shall be completed by September 1st 2019.

13. The Buyer, 2428399 Ontario Inc., agrees to lease to the Seller all lands and buildings as described on Schedule “C” by monthly rent price $2.00 + property tax in the amount of $500.00 for a term of not more than three years after closing date of such agreement of purchase and sale. Such lease agreement will be drafted by the buyer and commence on the first day after the closing date of this purchase and sale transaction.

14. Upon the severance, Barnes/CEP (The Seller) shall license to 2428399 Ontario Inc. (the Buyer) the reasonable use of road for school purposes.

[17] The APS also contains an “entire agreement” clause which provides:

26. … 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.

Transaction

[18] Prior to closing, 242 assigned its rights and obligations as buyer under the APS to 268 with notice of the APS’ terms given to 268.

[19] On or about March 6, 2019, CEP, as tenant, and 242, as landlord, executed a lease agreement with respect to the Parcel for a 3 year term (the “lease agreement”).

[20] On March 7, 2019, CEP transferred the Property to 268 and 268 paid the balance of the purchase price. 268 remains the registered owner of the Property.

[21] Following closing, CEP applied to the municipality for a severance of the Parcel. CEP was advised by municipal officials that, 268, as owner of the Property, was required to execute the application for severance of the Parcel. CEP requested that Mr. Wang execute the documents relating to the severance application on behalf of 268 as owner of the Property. Mr. Wang refused to do so and this litigation ensued.

Analysis

Is summary judgment suitable for a determination of the issues in this action?

[22] Rule 20.04(2)(a) of the Rules requires the court to grant summary judgment where there is no genuine issue, with respect to a claim or defence, requiring a trial.

[23] With respect to the Court’s powers on a motion for summary judgment, rule 20.04(2.1) provides as follows:

(2.1) In determining under clause (2)(a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence.

[24] The Supreme Court of Canada’s decision in Hyrniak v. Mauldin[^1] is the leading case directing the manner in which the court’s enhanced rule 20 powers are to be utilized. Karakatsanis J. writing for the court made the following comments regarding the role of rule 20 as part of a necessary culture shift. She wrote[^2]:

There is growing support for alternative adjudication of disputes and a developing consensus that the traditional balance struck by extensive pre-trial processes and the conventional trial no longer reflects the modern reality and needs to be re-adjusted. A proper balance requires simplified and proportionate procedures for adjudication, and impacts the role of counsel and judges. This balance must recognize that a process can be fair and just, without the expense and delay of a trial, and that alternative models of adjudication are no less legitimate than the conventional trial.

This requires a shift in culture. The principal goal remains the same: a fair process that results in a just adjudication of disputes. A fair and just process must permit a judge to find the facts necessary to resolve the dispute and to apply the relevant legal principles to the facts as found. However, that process is illusory unless it is also accessible – proportionate, timely and affordable. The proportionality principle means that the best forum for resolving a dispute is not always that with the most painstaking procedure.

[25] The enhanced powers permit the motions judge to use the summary judgment rules as a legitimate alternative means for adjudicating and resolving legal disputes. No longer are the summary judgment rules a highly restrictive tool to weed out only those claims and defences which are clearly unmeritorious.[^3]

[26] It is presumed that the judge will use these powers unless it is in the interest of justice for them to be exercised only at a trial. Whether or not a trial is required in the interests of justice will be driven by the underlying objective of the rule which is to promote access to justice by ensuring the process is proportional to the dispute.

[27] Hyrniak does not alter the well-developed principle that the parties are presumed to have placed before the court all of the evidence relevant to the material issues that would be available at trial.[^4] The Court may presume that no further and better evidence is available and the record is complete. Summary judgment motions are decided by evidence of the facts and by inferences drawn from those facts but not by speculation about those facts.[^5]

[28] After the moving party has discharged its evidentiary burden of showing there is no genuine issue which requires a trial for its determination, the burden then shifts to the responding party to show that, in this case, its defence has a real chance of success.

[29] This case deals with the enforcement of a contract, namely, the APS. More simply stated, this case deals with whether the terms of the APS dealing with severance and reconveyance of the Parcel are enforceable.

[30] The defendants submit that the validity and enforceability of the APS, and, specifically, the severance and lease provisions of the APS, cannot be determined by merely looking at the documents. The defendants argue the validity and enforceability of these provisions must be resolved at a trial following a thorough examination and cross-examination of the witnesses thereby giving the judge an opportunity to assess the credibility of the witnesses’ evidence.[^6]

[31] In contrast, CEP takes the position that credibility is not an issue in this case, let alone one requiring a trial. The plaintiff argues that the court need only refer to the APS and the affidavit evidence (or lack thereof) to determine whether or not the APS is enforceable. CEP submits that extraneous evidence which may be the subject of a credibility assessment at trial may not be considered by the court in the face of an unambiguous contract.

[32] This proceeding was commenced more than three years ago. The APS was executed almost 4 years ago. Since that time, the defendants have managed to thwart all efforts by the plaintiff to have the issues in this action determined in an expeditious manner.[^7]

[33] In his endorsement dated February 7, 2020 relating to a motion brought by the corporate defendants seeking leave to be represented by a person other than a lawyer, George J. (as he then was) noted that there was “a public interest in not risking prolonging this case”.[^8] Despite this stated view of the court, this motion came on for hearing more than 2.5 years later.

[34] More recently, Justice Heeney in his endorsement dated April 22, 2021 provided a detailed history of the defendants’ actions which he found had “delayed and obstructed these proceedings and wasted time and legal resources”.[^9] Heeney J. went on to note that the defendants had commenced four separate actions in Toronto against the plaintiff arising from the same transaction and commented “this does tend to support the plaintiff’s suggestion that the defendants are vexatious litigants” although he declined to comment further.[^10]

[35] Having regard to the nature of the issues and the evidence filed on the motion, I find the this claim ideally suited for adjudication and disposition on a summary basis and that a trial is not required. It is high time for the narrow issue at play in this action to be decided using the court’s enhanced powers under rule 20. By doing so, any opportunity for the defendants to further delay justice are foreclosed.

Is the plaintiff entitled to summary judgment on its claim?

[36] Counsel for the defendants argues three grounds in opposition to the motion. These are:

(i) notwithstanding Mr. Wang’s execution of the APS on behalf of 242 and the plaintiff completing the transfer of the Property to 268, the defendants allege that the parties continued to negotiate the terms of severance and re-conveyance of the Parcel and, consequently, the severance, reconveyance and lease provisions of the APS are unenforceable;

(ii) the description of the Parcel contained in Schedule C to the APS was not acceptable to the municipality for severance purposes thereby making the severance provision contained in the APS ambiguous and unenforceable; and

(iii) it would be inequitable and grossly unfair to order the reconveyance of the Parcel by 268 to CEP, having regard to the size of the Parcel relative to the overall size of the Property, and payment of $1.62 million to CEP by 268.

[37] The defendants argue that, despite the wording of the severance, reconveyance and lease provisions of the APS, the parties had agreed to continue to negotiate these terms. Mr. Wang deposed in his affidavit sworn June 12, 2022, personally and on behalf of 268:

In early March, 2019, 242 assigned the rights of the APS to 268. At the time of assignment, I was given to understand pursuant to negotiation discussions with the plaintiff Alan Barnes that the property would be transferred upon exclusion of the promise of severance and sell back part of it to the plaintiff, which was still being negotiated. The issue of severance, in particular the total area of land to be made subject to a severance application, if any, would be discussed and settled after the APS was signed and executed together in consideration of whether the parties could agree to a lease in which Mr. Barnes could have a possessory interest in the property…. [T]hese issues were left to be decided after transfer of title to the property because there was no guarantee the parties could reach an agreement on same. There was an agreement, however, between Mr. Barnes and myself on the purchase price for the entire property. It was my understanding that the only purpose of the APS was to transfer the title of the property in question. The necessary amendments needed to reflect this change in the APS were never made and the issues of potential severance and a potential lease were left ambiguous. Eventually, closing for purchase of the property was completed on March 7, 2019.

[38] Mr. Wang further deposed: “[a]t the time, I relied on the lawyers of both sides to carry out the necessary revisions to the APS…to reflect that no meeting of minds had been reached between the buyer and the seller regarding severance or leasing a portion of the property back to Mr. Barnes, and that only an agreement regarding purchase price and transfer of title had been reached”.

[39] As already noted above, a party is not entitled to rely on the possibility that more favourable facts may develop at trial. Each side must put its best foot forward with respect to the existence or non-existence of material issues to be tried. That is, the party opposing summary judgment must show a real chance of success. A self-serving affidavit will not be sufficient to create a triable issue in the absence of detailed facts and supporting evidence.[^11] Furthermore, disingenuous evidence is insufficient to raise a genuine issue of credibility requiring a trial.[^12]

[40] Mr. Wang’s evidence is uncorroborated and is inconsistent with his evidence given on examination for discovery and cross-examination. Examples of inconsistencies are as follows:

(a) Mr. Wang claims to struggle with understanding the English language yet he emigrated to Canada more than 20 years ago, holds a computer science degree from the University of Waterloo, is able to read and write the English language, was questioned without the aid of an interpreter and confirmed that he “for sure” read the APS before signing and testified: “I signed [the APS] because I think it is right”.

(b) Presumably on the instruction of Mr. Wang, Mr. Zhao, the defendants’ real estate agent, drafted the APS including the schedules/maps. Neither CEP nor persons acting on the plaintiff’s behalf drafted the APS.

(c) Mr. Wang, not his lawyer, affixed his electronic signature and initials to each page of the APS, including Schedule C containing a description and map showing the perimeter of the Parcel and the buildings located within such boundaries.

(d) Aside from the Mr. Wang’s affidavit evidence to the effect that the issues of severance and reconveyance of the Parcel remained the subject of ongoing negotiation after closing, he was unable to provide evidence supporting this version of events when cross-examined.[^13] Neither the realtor nor lawyer acting on behalf of the defendants with respect to the acquisition of the Property, filed an affidavit in support of Mr. Wang’s allegation of ongoing negotiations.

(e) During cross-examination Mr. Wang claimed he could not remember the instructions he provided to his lawyer and realtor with respect to preparation of the APS and specifically the provisions relating to severance, lease and reconveyance of the Parcel.

(f) Mr. Wang testified: “my lawyer tell me it’s illegal for [Barnes] to apply for severance”, yet refused to produce his lawyer’s file or file an affidavit of Mr. Li corroborating this purported advice. All requests for the release of Mr. Li’s real estate file relating to the transaction were refused on discovery. As a result of the defendants’ many refusals to produce their lawyer’s and realtor’s files relating to the transaction and negotiation of the APS, I hereby draw an adverse inference, as I am permitted to do,[^14] from the absence of this evidence, and find that Mr. Li’s files, had they been produced, would not have supported Mr. Wang’s claim of ongoing negotiations with respect to the issues of severance and reconveyance.

[41] The law is well-established. Where contractual terms are clear and unambiguous, evidence contradicting the terms of a contract is inadmissible.[^15]

[42] The Supreme Court of Canada has described the parole evidence rule as:

Preclud[ing] admission of evidence outside the words of the written contract that would add to, subtract from, vary, or contradict a contract that has been wholly reduced to writing.[^16]

The rule precludes evidence of the subjective intentions of the parties. The purpose of the rule is to encourage finality and certainty in contracts and “to hamper a party’s ability to use fabricated or unreliable evidence to attack a written contract.”[^17]

[43] All grounds advanced by the defendants require the court to consider extraneous evidence extending beyond the four corners of the contract. Unless the relevant provisions of the APS are, on their face, ambiguous, vague or uncertain, I am precluded from considering extraneous evidence relating to the subjective intentions of the contracting parties.

[44] In determining whether I may consider extraneous evidence, I must determine whether any material provision of the APS is ambiguous. Pursuant to paragraph 12 of Schedule A, the parties agreed that within 3 years of the sale of the Property, 268 would reconvey the Parcel to CEP for nominal consideration. The Parcel is described in Schedule C. Mr. Barnes testified that although the Parcel is incorrectly described in the APS as being 17 rather than 7 acres in size, the map contained in Schedule C to the APS is “clear and the boundaries follow the physical sites and markers on the [Property] which are easy to see and find”. I agree. Moreover, the 4 buildings referenced in paragraph 12. are depicted in the diagram contained in Schedule C. I find the size and location of the Parcel described in Schedule C to be clear and unambiguous.

[45] Turning now to the severance provision (paragraph 11 of Schedule A). I note that this provision, on its own, does not create a positive obligation on 268, as owner, to execute the severance application. However, when read together with paragraphs 12 and 13 of Schedule A, I find that this positive obligation may be reasonably inferred from the clear intention of the parties that CEP retain de facto ownership of the Parcel following the transfer of the Property to 268.

[46] Severance of the Parcel from the Property is a necessary pre-condition to the reconveyance of legal title/ownership of the Parcel to CEP. Pending reconveyance of legal title to the Parcel to CEP, the parties agreed that CEP would retain all rights akin to ownership in the Parcel. This agreement of the parties was reflected in 268’s acknowledgement that CEP retained full authority to deal with the severance application and retained occupation of the Parcel, subject to payment of realty taxes associated with the Parcel, following closing.

[47] While a technical “stumbling block” to severance arose upon the municipality requiring the owner’s signature on the application, I find that this third party requirement does not render the severance and reconveyance provisions ambiguous or uncertain. Similarly, the municipality’s refusal to accept the description of the Parcel contained in the APS for purposes of the severance application is extrinsic evidence unrelated to and irrelevant to a determination of the intention of the parties at the time the APS was executed.

[48] I find that paragraphs 11 and 12 of Schedule A and Schedule C are neither ambiguous nor uncertain. For these reasons, evidence of Mr. Wang with respect to the defendants’ intention to continue to negotiate the severance, lease and reconveyance of the Parcel post-closing is not admissible as it clearly contradicts the terms of the parties’ written agreement[^18] and is, therefore, immaterial.[^19]

[49] For the sake of completeness, I will comment briefly on the defendants’ position had I found that parole evidence of ongoing negotiations regarding severance and reconveyance was admissible. Mr. Wang’s professional advisors drafted the APS, yet Mr. Wang has provided no explanation for the existence of the severance, reconveyance and lease provisions in the APS. To suggest these provisions were included in the APS through inadvertence, is disingenuous. It is important to note that the defendants did not raise the issue of ongoing negotiations regarding severance and reconveyance on closing nor did 268 refuse to complete the transaction contemplated by the APS, a document which contained provisions directly contradicting the parties’ purported ongoing negotiations.

[50] Assuming negotiations were ongoing with respect to the severance and reconveyance provisions of the APS, I find that it was incumbent upon the defendants to hold off executing the APS until an agreement was reached with respect to these outstanding issues. Once executed by 242, the APS was binding on the parties and the plaintiff was entitled to rely on all provisions contained in the APS. By completing the purchase of the Property, the defendants must now be held to the terms of their written agreement.[^20]

[51] The defendants paid $1.62 million for the Property. On the undisputed evidence of Mr. Barnes, the Parcel has a value of $5 million. The defendants now seek to effectively re-write the deal with the Court’s assistance and indirectly ask the court to condone the purchase of the Property at a price grossly under fair market value. The defendants were quick to voice their objection to the court undoing the sale of the Property to 268. Rather the defendants seek to retain the whole of the Property having a value of $6.62 million without any obligation to reconvey the Parcel to the plaintiff.

[52] Although unnecessary to address having regard to my earlier findings with respect to the enforceability of the APS, I find that the transaction was neither inequitable nor grossly unfair to the defendants. At no time did the parties intend for the unconditional conveyance of the Property to the defendants in exchange for payment of the sum of $1.62 million. Rather, the parties intended for the plaintiff to sell the Property to the defendant subject to a reconveyance of the Parcel to the plaintiff following its severance. The purchase price reflects the value of the portion of the Property to be retained by 268 following reconveyance of the Parcel to CEP.

Is Specific Performance the Appropriate Remedy in the Circumstances?

[53] Specific performance may be granted where the property in question is unique and damages could not provide the plaintiff with property of the same substance.[^21] This test for specific performance was further refined by McMahon J. in Canamed (Stamford) Ltd. v. Masterwood Doors Ltd.[^22] where he stated that specific performance is an appropriate remedy in circumstances where:

1. the subject property is unique and a substitute is not readily available;

2. the remedy of damages is comparatively inadequate to do justice; and

3. the plaintiff has established a fair, real and substantial justification for the claim of specific performance.

[54] Mr. Barnes deposed that the Parcel holds special significance to him because it contains a building known as Middlesex hall which he has long-planned to use to complete a project involving the expansion of his existing nearby family drive-in theatre into a larger year-round operation of a family entertainment complex with a movie theatre, five-lane bowling alley and licensed charity bingo hall together with supplemental leased office space.

[55] I am bound by the finding of Heeney J. made in these proceedings to the effect that “the parcel to be severed holds special significance to the plaintiff who has long planned to use it to complete a unique entertainment project”.[^23]

[56] I find that the plaintiff has met the test for specific performance of the APS and that specific performance is an appropriate remedy in the circumstances.

Disposition

[57] Notwithstanding that the parties filed evidence in their respective materials with respect to the enforceability of the lease agreement, the plaintiff does not claim relief with respect to either the lease agreement or the lease provision contained in the APS. I note that the 3-year term of the lease agreement expired on March 7, 2022 and the landlord was (incorrectly) named therein as 242. I was not provided with a copy of notice of assignment of the lease agreement to 268, assuming one exists. With respect to the enforceability of the lease agreement, I further note that the document was prepared by the landlord and signed by Mr. Wang, on behalf of 242, on March 6, 2019. These comments are made in obiter and are not intended to be material to the disposition of the issues on this motion.

[58] On this motion, the parties did not address the counterclaim of the responding defendants. In particular, the plaintiff did not expressly ask that as part of their requested relief the court dismiss the counterclaim. I am not inclined to grant such relief without a formal motion before me and without the defendants having been given an opportunity to specifically address the merit of their counterclaim. However, I note that at his examination for discovery Mr. Wang was unable to provide the materials facts upon which the counterclaim is based nor was Mr. Wang able to provide evidence to support the quantum of damages claimed. Having found the APS to be enforceable in accordance with its terms and in an effort to avoid further expense and delay to the plaintiff, I recommend that the plaintiffs by counterclaim concede that the counterclaim is without merit and consent to its dismissal.

[59] Summary judgment is hereby granted in accordance with the prayer for relief contained in the Statement of Claim as follows:

1. The defendants, and specifically the defendant, Frank Wang on behalf 268, shall forthwith execute all such documents as may be required to enable the plaintiff to sever the Parcel from the Property.

2. Forthwith following approval of the plaintiff’s application to sever the Parcel, the defendants, and specifically the defendant, Frank Wang on behalf of 268, shall forthwith execute all such documents as may be required to transfer title to the Parcel to the plaintiff.

3. Until such time as the Parcel has been transferred to the plaintiff, the defendants are hereby prohibited from selling, leasing, encumbering or otherwise dealing with the Property save and except with the express written consent of the plaintiff.

Costs

[60] The plaintiff was successful on the motion and is, therefore, presumptively entitled to its reasonable costs of the action (save and except to the extent already forming the subject matter of a previous cost award), including the motion.

[61] Unless the parties reach an agreement as to costs, written costs submissions shall be filed in accordance with the following timetable:

(a) the plaintiff shall serve and file its submissions not exceeding 5 pages in length (exclusive of any time dockets, bill of costs and/or caselaw) within 15 days of the date hereof;

(b) the defendants shall serve and file their responding submissions not exceeding 5 pages in length (exclusive of any time dockets, bill of costs and/or caselaw) within 10 days thereafter; and

(c) the plaintiff shall serve and file any reply submissions not exceeding 2 pages in length within 7 days thereafter.

Justice A. K. Mitchell

Date: November 24, 2022

[^1]: 2014 SCC 7 (“Hyrniak”). [^2]: Ibid, at paras. 27 and 28. [^3]: Ibid, at para. 36. [^4]: See Nguyen v. SSQ Life Insurance Co., 2014 CarswellOnt 15513 (S.C.J.) at para 32. [^5]: Chernet v. RBC Insurance Co., 2017 ONCA 337 at para. 12. [^6]: Curiously, the defendants do not challenge the validity and enforceability of the buy-back/reconveyance provision of the APS in their responding materials. [^7]: This motion for summary judgment was first returnable December 24, 2021. [^8]: Canadian Entertainment Properties v. 2428299 Ontario Inc., 2020 ONSC 875 at para. 16. [^9]: Canadian Entertainment Properties v. 2428299 Ontario Inc., 2021 ONSC 2992 at para. 6. [^10]: Ibid., at para. 21. [^11]: Guarantee Company of North America v. Gordon Capital Corp., 1999 CanLII 664 (SCC), [1999] 3 S.C.R. 423 at para. 27. [^12]: Royal Bank of Canada v. Feldman, 1995 CanLII 7060 (ON SC), [1995] O.J. No. 1598 (S.C.J.) at page 4. [^13]: Mr. Li’s affidavit addresses only the timeline with respect to the parties’ negotiations and exchange of the draft lease agreement post-closing. Mr. Li’s evidence is silent with respect to Mr. Wang’s evidence with regard to the enforceability of the severance (and reconveyance) provisions of the APS and does not provide evidence relevant to the issue of enforceability of the APS. [^14]: See rule 20.02(1). [^15]: Gutierrez v. Tropic International Ltd., 2002 CanLII 45017 (ON CA), 2002 CarswellOnt 2599 (C.A.) at para. 19. [^16]: Creston Moly Corp. v. Sattva Capital Corp., 2014 SCC 53 at para. 59. [^17]: Ibid. [^18]: Including the “entire agreement” clause. [^19]: Pacific Paragon Capital Group Ltd. v. PDC Biological Health Group Corp., 2014 BCSC 1725 at para. 54. [^20]: See Punitharaj v. Miller-Jones, 2019 ONSC 5505 where the purchaser was held to the terms of the agreement requiring her to complete the purchase of the property where the problem with the status of the basement apartment was known to the purchaser prior to signing the agreement. [^21]: Semelhago v. Paramadevan, 1996 CanLII 209 (SCC), [1996] 2 S.C.R. 415 at para. 22. [^22]: 2006 CarswellOnt 6083 (S.C.J.) at para. 103. [^23]: Canadian Entertainment Properties v. 2428299 Ontario Inc, supra, at para. 3.