Reasons on Motion for Summary Judgment

Court File No.: CV-23-00093994-0000
Date: 2025-07-03
Ontario Superior Court of Justice

Between:
Aaron Bell, Plaintiff
– and –
Donald Bisaillon, Defendant

Appearances:
Peter J. Henein and Brandon Pasternak, for the Plaintiff
Craig O’Brien, for the Defendant

Heard: January 17, 2025

Justice: Ryan Bell

Overview

[1] On November 9, 2023, Donald Bisaillon agreed to sell to Aaron Bell the property municipally known as 17159 Cornwall Centre Road, Long Sault, Ontario, including the buildings, fixtures, and chattels as defined in the agreement of purchase and sale, for $800,000. Mr. Bell paid the $100,000 deposit to Mr. Bisaillon the same day. The transaction was scheduled to close on January 15, 2024.

[2] The terms and conditions of the APS include a solicitor review condition:

This Agreement is further conditional on the Seller’s solicitor reviewing and approving all of the provisions of same. Unless the Seller gives notice to the Buyer or Buyer’s solicitor that this condition has been fulfilled, on or before November 16, 2023, this Agreement shall be deemed null and void and the Buyer’s deposit shall be returned to it without interest, deduction or penalty.

[3] On November 23, Mr. Bisaillon told Mr. Bell that he, Mr. Bisaillon, would not be proceeding with the sale. Five days later, on November 28, Mr. Bell (through his litigation counsel) purported to rely on the solicitor review clause for the first time to void the transaction.

[4] On December 5, Mr. Bell’s lawyer sent a requisition letter to Mr. Bisaillon’s solicitor and his litigation counsel. The former advised she was no longer retained; the latter did not respond. Mr. Bell’s January 5 requisition letter also went unanswered.

[5] Mr. Bell was ready, willing, and able to close the transaction. By January 15, Mr. Bell had obtained the mortgagee’s consent to his assumption of the mortgage and had provided his lawyer with the cash funds to close the transaction. Mr. Bisaillon refused to close – his lawyer advised that because the conditions of the APS had not been waived, the transaction was terminated.

[6] Mr. Bell moves for summary judgment and requests an order for specific performance of the APS.

[7] There are two issues:

(i) Did Mr. Bisaillon waive the solicitor review condition?
(ii) If Mr. Bisaillon waived the solicitor review condition, is specific performance of the APS an appropriate remedy? [1]

[8] For the following reasons, I find that Mr. Bisaillon waived the solicitor review condition. Mr. Bell is entitled to specific performance of the APS.

Case is Appropriate for Summary Judgment

[9] Rule 20.04(2)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 provides that a court shall grant summary judgment if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence. There is no genuine issue that requires a trial if the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process allows the judge to make the necessary findings of fact, allows the judge to apply the law to the facts, and is a proportionate, more expeditious, and less expensive means to achieve a just result: Hryniak v. Mauldin, 2014 SCC 7, at para. 49.

[10] The court is entitled to assume that the record on a summary judgment motion contains all the evidence that the parties would present if the matter proceeded to trial: Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, at paras. 26-27, aff’d 2014 ONCA 878, leave to appeal dismissed. It is a “well-established rule” that both parties on a summary judgment motion have an obligation to put their best foot forward: Mazza v. Ornge Corporate Services Inc., 2016 ONCA 753, at para. 9.

[11] The parties agree that this is an appropriate case for summary judgment given the discrete issues raised. [2] I agree. I am satisfied that summary judgment will provide a less expensive, faster alternative to trial for the claim. There is little to no dispute in relation to the underlying facts. I am satisfied that I can make the necessary findings of fact based on the record before me, and apply the law to the facts, and that a motion for summary is a proportionate, more expeditious, and less expensive means to achieve a just result in this case.

Mr. Bisaillon Waived the Solicitor Review Condition

[12] Mr. Bisaillon argues that at no point did he waive, or cause his solicitor (J. Reynolds) to waive the condition requiring her to review and approve the APS. Mr. Bisaillon also contends that he did not, on or before November 16, or thereafter, communicate to Mr. Bell that the condition had been fulfilled. Mr. Bisaillon says that Mr. Bell is simply unhappy that the solicitor review condition was drafted in a manner that gave Mr. Bisaillon greater discretion than Mr. Bell intended Mr. Bisaillon to have.

[13] Mr. Bell contends that by his conduct, Mr. Bisaillon waived the solicitor review condition or he communicated to Mr. Bell that the condition was satisfied. Mr. Bell also argues that even if the condition was not waived or Mr. Bisaillon did not communicate its satisfaction to Mr. Bell, Mr. Bisaillon cannot rely on the solicitor review condition to void the APS because Mr. Bisaillon did not exercise the condition in good faith.

[14] The evidence and the law support both of Mr. Bell’s arguments.

(i) Mr. Bisaillon Waived the Condition or Communicated That It Was Satisfied

[15] Between the signing of the APS on November 9, 2023, and the waiver deadline on November 16, Mr. Bisaillon’s conduct demonstrates he fully intended to close the transaction.

[16] In the APS, Mr. Bisaillon “warrant[ed] that the [deposit] funds advanced will be used towards bringing current existing first and second charge mortgage on subject property into good standing.” On November 10, Mr. Bisaillon and Mr. Bell agreed that Mr. Bisaillon would use the deposit funds to pay the mortgagee the more than $22,000 in interest that was due on his outstanding balance.

[17] On November 13, Mr. Bell and Mr. Bisaillon met at the property to finalize Schedule B to the APS. They reviewed, agreed upon, and initialed the list of chattels and equipment that were to be included in the sale. Schedule B attributes $550,000 of the purchase price to the land, buildings, and fixtures, and $250,000 to the chattels and equipment. Mr. Bisaillon gave every indication that he would be proceeding with the transaction.

[18] As part of the purchase price, Mr. Bell agreed to acquire the assets, but not the liabilities of the automobile truck repair garage being operated on the property. On November 14, Mr. Bell’s associate met with Mr. Bisaillon’s common law spouse, Nicole Marcotte, to review the books and billing process of the repair garage business.

[19] On November 16 – the waiver deadline – Mr. Bisaillon confirmed that he was prepared to proceed with the sale. Mr. Bell told Mr. Bisaillon that he, Mr. Bell, had spoken with Mr. Bisaillon’s lawyer, and they were waiting to hear from Mr. Bisaillon. Mr. Bisaillon responded that he would “call her [his lawyer] right now.”

[20] Mr. Bell then texted to Mr. Bisaillon: “I waived conditions so it’s a firm deal.” To that text, Mr. Bisaillon replied “Everything is all set. I just have to wait for paperwork [to] be completed and I’ll go in and sign.” On cross-examination, Mr. Bisaillon admitted that he never told Mr. Bell that he, Mr. Bisaillon, was not waiving the solicitor review condition.

[21] Read in the context of the “back and forth” between the parties, Mr. Bisaillon’s statement on November 16 that “[e]verything is all set” and he would “go in and sign” constituted a clear communication that all conditions in his favour – including the solicitor review condition – had been satisfied or waived. Reading the text communications between the parties in the context of Mr. Bisaillon’s conduct in the days preceding the November 16 waiver deadline reinforces my finding that Mr. Bisaillon waived the solicitor review condition.

[22] Mr. Bisaillon’s conduct after the waiver deadline is wholly consistent with that of a vendor who considered the APS to be in full force and effect and who intended to close. Mr. Bell did not hear from Mr. Bisaillon for a few days following the waiver deadline. It was not until November 23, when Mr. Bell and his associate dropped by the property, that Mr. Bisaillon and Ms. Marcotte declared – for the first time – their refusal to sell the property.

[23] But after Mr. Bisaillon pronounced on November 23 that he would not sell the property to Mr. Bell, Mr. Bisaillon did not assert the APS was invalid. Instead, on November 24, Mr. Bisaillon offered to reimburse the deposit and pay an additional $10,000 for Mr. Bell to “walk away.” Mr. Bell declined the offer. It was not until November 28 that Mr. Bisaillon (through his litigation lawyer) advised that he was taking the position the APS was terminated on the basis of Mr. Bisaillon’s failure to waive the solicitor review condition by the waiver deadline. Only on November 29 were the deposit funds paid into the trust account of Mr. Bisaillon’s lawyer.

[24] On the whole of the evidence, I find that Mr. Bisaillon waived the solicitor review condition.

(ii) Mr. Bisaillon Did Not Exercise the Solicitor Review Condition in Good Faith

[25] Even if the solicitor review condition was not waived by Mr. Bisaillon, Mr. Bisaillon was not entitled to rely on the condition to void the APS because he did not exercise the condition in good faith. In exercising the solicitor review condition, Mr. Bisaillon was required to act reasonably, honestly, and in good faith: KNRS Acquisitions Inc. v. Fariad, 2018 ONSC 5019, at para. 18, citing Bhasin v. Hrynew, 2014 SCC 71, at para. 93.

[26] Mr. Bisaillon could only rely on the solicitor review condition to terminate the APS if the termination was effected in accordance with the condition. That is not what occurred. Mr. Bisaillon never consulted his lawyer about the terms of the APS and his reasons for backing out of the sale had nothing to do with the solicitor review condition.

[27] Mr. Bisaillon admits in his affidavit that his lawyer “did not review all relevant documents.” Mr. Bisaillon also admits that he chose not to have his lawyer review the APS because,

[g]iven my partner Nicole’s position that the proposed purchase price was outrageously low, I elected not to have Ms. Reynolds review the APS because I already knew that the price was not acceptable. On the basis that the condition was not being waived on or before November 16, 2023, I believed that there was no longer a binding APS. I understood that I had the option to walk away from the Transaction. In any event, when I contacted Ms. Reynolds’ firm at the material time to follow up on the APS, I was told that they were no longer in a position to represent me due to a conflict of interest.

[28] Mr. Bisaillon was wrong. The inclusion of the solicitor review condition in the APS did not have the effect of turning the APS into a mere option: Draper v. Morrow, 2010 MBQB 231, at para. 20, citing Slatter J.A. (dissenting in the result) in Castledowns Law Office Management Ltd. v. FastTrack Technologies Inc., 2009 ABCA 148, at para. 82.

[29] Ms. Marcotte states in her affidavit that she was “shocked and devastated” when she learned of the purchase price, describing the property as being “worth considerably more than” $800,000. Ms. Marcotte’s evidence is entirely consistent with Mr. Bisaillon’s evidence that he did not consult his lawyer to ensure that the sale would not proceed: “Don told me that he did not ask the lawyer to review the documents in question because I objected to him proceeding to sell the Property for such an outrageously low price.”

[30] On cross-examination, Mr. Bisaillon confirmed that he never met with Ms. Reynolds about the contract, “just on the phone and she said she had the paperwork.” When asked whether it was his choice to not go to her office on November 16 to talk to her about the APS, Mr. Bisaillon did not respond directly, stating that he forgot what date he went to see Ms. Reynolds to retain her. To the extent Mr. Bisaillon is now attempting to assert that he and his lawyer did have a discussion about the APS, I place no weight on Mr. Bisaillon’s “about-face”, given the unequivocal statements to the contrary in Mr. Bisaillon and Ms. Marcotte’s affidavits.

[31] Mr. Bell characterizes Mr. Bisaillon’s decision not to consult his lawyer as “strategic.” I agree. In his own words, Mr. Bisaillon “understood that if [his lawyer] did not conduct her review prior to November 16, 2023, that [he] would not have any legal obligation to Mr. Bell to proceed.” On that basis, Mr. Bisaillon elected not to consult with his lawyer regarding the APS. Mr. Bisaillon had a duty to take all reasonable steps to complete the sale. By not providing his lawyer with the APS, Mr. Bisaillon failed to discharge his duty to take all reasonable steps to complete the sale and he breached the APS: Zhang v. Amaral-Gurgel, 2017 BCSC 1561, at para. 33, citing Dynamic Transport Ltd. v. O.K. Detailing Ltd., [1978] 2 S.C.R. 1072.

[32] I find that Mr. Bisaillon decided not to proceed with the sale for two related reasons: (i) because Ms. Marcotte did not approve of the sale; and (ii) because he wanted to sell the property for a higher price.

[33] First, it is clear that Ms. Marcotte did not approve of the sale to Mr. Bell. Ms. Marcotte’s position that the purchase price was “outrageously low” was cited by Mr. Bisaillon as the reason why he chose not to have his lawyer review the APS. Mr. Bisaillon told Mr. Bell on November 27 that Ms. Marcotte was “not budging” and went on to state, “Sorry pal I should have considered her in this picture!” Mr. Bell responded that he was “proceeding forward.” Mr. Bisaillon states that he should have “taken heed” of Ms. Marcotte’s concerns over the purchase price given her investment of funds and time in the purchase, renovation, and operation of the property, and her “knowledge” that the property had been previously valued above the agreed upon purchase price. [3] However, Ms. Marcotte’s opposition to the sale of the property on either ground does not provide a basis for Mr. Bisaillon to repudiate the APS in reliance on the solicitor review condition: KNRS, at para. 22.

[34] Second, Mr. Bisaillon decided not to proceed with the sale to Mr. Bell because Mr. Bisaillon wanted to sell the property for a higher price. Mr. Bisaillon chose not to consult his lawyer because he “already knew that the price was not acceptable.” On November 14, Mr. Bisaillon told Mr. Bell that there were “potential buyers” who were “trying to beat [Mr. Bell’s] price.” On November 16, Mr. Bisaillon texted Mr. Bell that “other guys want to keep upping their price or I could be losing out in $100,000.”

[35] The evidence makes plain that Mr. Bisaillon’s real reasons for refusing to close had nothing to do with the solicitor review condition. Mr. Bisaillon made a strategic decision not to provide the APS to his lawyer for review. Mr. Bisaillon’s efforts to justify his refusal to close, in purported reliance on the solicitor review condition, were not done honestly or in good faith. The APS was a valid agreement and Mr. Bisaillon’s refusal to convey title to Mr. Bell on January 15 was a breach of the terms of the APS.

Specific Performance is the Appropriate Remedy

[36] The second issue is whether the appropriate remedy for Mr. Bisaillon’s failure to convey title is specific performance or damages. As the Supreme Court of Canada stated in Semelhago v. Paramadevan, para. 22, “[s]pecific performance should, therefore, not be granted as a matter of course absent evidence that the property is unique to the extent that its substitute would not be readily available.”

[37] On the evidence in the record, I am persuaded that specific performance is the appropriate remedy having regard to the nature of the property, the inadequacy of damages as a remedy, and the behaviour of the parties, given the equitable nature of the remedy: Landmark of Thornhill Ltd. v. Jacobson, at p. 636; Matthew Brady Self Storage Corp. v. InStorage Limited Partnership, 2014 ONCA 858, at para. 32.

[38] In the context of a commercial property, in order to establish that a property is unique, the person seeking specific performance must show the property has a quality that cannot be readily duplicated elsewhere; this quality should relate to the proposed use of the property and be a quality that makes it “particularly suitable” for the purpose for which it was intended: John E. Dodge Holdings Ltd. v. 805062 Ontario Ltd., paras. 38-39.

[39] I am satisfied that the property is unique in the sense that it has qualities that cannot be readily duplicated elsewhere. In his affidavit, Mr. Bell explains why the property is of unique value to him. The property has both residential and commercial components – Mr. Bell agreed to acquire the assets, but not the liabilities, of the repair garage business. There are multiple storage units and buildings on site, including the garage, as well as a duplex with a rear and a front unit.

[40] Mr. Bell entered into the APS with specific uses in mind based on the property’s size, location, and facilities. Thefeatures of the property offer him the opportunity to operate his real estate development business (with ample space and facilities to store construction materials). Mr. Bell sees great potential to turn around the repair garage business based on the property’s location in a high volume trucking corridor. Long Sault is a logistics hub, proximate to the CN Rail line, Highway 401, and the St. Lawrence River. When Mr. Bell entered into the APS with Mr. Bisaillon, no known substitute property was readily available within the same price range, given the property’s unique location in Long Sault. Mr. Bell was not cross-examined on these issues.

[41] Katie Bellsmith, a real estate agent specializing in residential and commercial properties in the Cornwall area, introduced Mr. Bell to the property. She provided evidence that the property is “distinctive” because it is a mixed-use property with an automotive and truck repair shop as well as a residence building, located on an expansive lot with abundant garage and storage space. According to Ms. Bellsmith, “[l]ots like the Property do not become available often in the Cornwall area.” When she contacted Mr. Bell in early November 2023 about the property, there was no substitute property with similar features readily available within the same price range in the Cornwall area. As of the date of her affidavit in January 2024, no substitute property with similar features had become available. Ms. Bellsmith stated that she did not believe that a substitute property with similar features was likely to become available in the Cornwall area in the near future.

[42] I am also satisfied that damages would be an inadequate remedy. Based on Mr. Bisaillon’s own statements to Mr. Bell, Mr. Bell’s inspection of the books of the repair garage business, and the publicly available lien records, it is Mr. Bell’s evidence that Mr. Bisaillon has been in arrears on his mortgage and other payments for the property. Mr. Bisaillon also has existing priority liens filed against the chattels.

[43] Mr. Bisaillon characterizes his statements to Mr. Bell as “little more than attempts to make conversation”, and claims he was “not sober” when he made these “facetious” remarks. Mr. Bisaillon’s assertion is belied by his use of deposit funds to pay outstanding interest on the mortgage. His assertion does not address Mr. Bell’s observations based on his inspection of the books of the business and the publicly available lien records. On the evidence before me, there is a real question as to whether Mr. Bell would be able to recover damages if specific performance is not awarded.

[44] As to the behaviour of the parties, I have already found that Mr. Bisaillon did not act honestly and in good faith in purporting to rely on the solicitor review clause to terminate the APS. This factor, too, favours an award of specific performance.

Conclusion

[45] The APS is a binding and enforceable agreement in respect of the property. Mr. Bisaillon breached the APS by refusing to complete the sale. The motion for summary judgment is granted. Judgment is granted in favour of Mr. Bell. There shall be an order for specific performance of the APS.

[46] Mr. Bell is presumptively entitled to his costs of the motion and the action. In the event the parties are unable to agree on costs, they may provide their submissions in writing. Mr. Bell will provide his submissions by July 17, 2025. Mr. Bisaillon will provide his responding submissions by July 31, 2025. Costs submissions are not to exceed three pages. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.

Justice Ryan Bell
Released: July 3, 2025

Notes

[1] While Mr. Bisaillon’s evidence suggested that he might advance a lack of capacity argument, this argument was not raised in his written submissions. Counsel on behalf of Mr. Bisaillon confirmed in oral submissions that no lack of capacity argument was being advanced.

[2] Notwithstanding the position taken in Mr. Bisaillon’s written submissions.

[3] In oral submissions, counsel confirmed that Mr. Bisaillon does not assert that Ms. Marcotte has any legal or beneficial ownership in the property.