Court File and Parties
COURT FILE NO.: CV-22-00676222-0000 DATE: 20230109
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
PROSPERITY HOMES LIMITED Applicant – and – 756949 ONTARIO LIMITED Respondent
Counsel: Arnold Mark, for the Applicant Jeremy Forrest, for the Respondent Aimee Dezeure, student-at-law
HEARD: January 9, 2023
Papageorgiou J.
Endorsement
[1] The Applicant Prosperity Homes Limited (the “Builder”) brings an Application for: a) A declaration that Prosperity is entitled to receive from the Respondent 756949 Ontario Inc. (“the Developer”) a written letter of approval for plans submitted to the Numbered Company on September 22, 2020 for the construction of a Custom Belfast ‘B’ Model Home to be built by Prosperity on Lots 37 and 83 in the Plan of Subdivision 33M727 in the City of London; b) An order requiring the Developer to provide said letter.
[2] The Builder took the position that their prior agreement entitled it to such approval letter. The Developer relied upon a provision in their agreement whereby the decision to provide such a letter was discretionary setting out some facts as to why it had not provided the letter. The Builder took the position that the Developer had breached its implied duty of good faith performance by failing to provide the required letter.
[3] In its materials the Builder requested that any issues as to damages would proceed to trial in any event because there would be material facts in dispute.
[4] In order to commence this matter as an Application, the Builder relied upon r. 14.05(3)(d) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 which provides that a matter may proceed by way of Application where the relief claimed is the determination of rights that depend on the interpretation of… a contract” and (h) which provides that a matter can proceed by way of application in respect of any matter “where it is unlikely that there will be any material facts in dispute requiring a trial”.
[5] At the commencement of the Application I expressed concerns about the appropriateness of this matter proceeding by way of Application given the factual disputes which arose by virtue of the Developer’s materials. I also expressed concerns about whether the Builder could obtain the remedy of specific performance at all, let alone by way of Application.
[6] The parties then went into a break-out room to consider whether they could arrive at a business solution.
[7] The Developer has proposed the following: a) The Developer will deliver letters of lot plan approval for Lots 37 and 83 within 30 days; b) Each of the parties will reserve their rights to claim damages against the other in an appropriately constituted proceeding; c) The Application is adjourned sine die returnable on 7 days-notice on agreement of counsel acting reasonably; d) The parties are reserving each of their rights to claim costs in respect of this Application.
[8] This resolution effectively provides the Builder with the relief it sought in this Application and also preserves the Builder’s and the Developer’s ability to claim damages in an appropriate proceeding. The parties contemplate that if they are unable to reach a business solution as to their respective damages claims and the costs of this Application, the return to court of the adjourned Application would be to obtain an Order converting whatever remains of this Application to an Action.
[9] Given that the Developer is essentially consenting to the relief sought by the Builder, I am granting an Order in accordance with paragraph 7 above.
Papageorgiou J. Released: January 9, 2023
Reasons for Judgment
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
PROSPERITY HOMES LIMITED Applicant – and – 756949 ONTARIO LIMITED Respondent
REASONS FOR JUDGMENT
Papageorgiou J. Released: January 9, 2023