



COURT OF APPEAL FOR ONTARIO

CITATION: Maraschiello v. Shellrock
    Developments Ltd., 2013 ONCA 167

DATE: 20130319

DOCKET: C55156

Doherty, MacPherson and Watt JJ.A.

BETWEEN

James Maraschiello and Nina Maraschiello

Plaintiffs (Respondents)

and

Shellrock Developments Ltd.

Defendant (Appellant)

Theodore B. Rotenberg, for the appellant

J. Diamond and M. Gertner, for the respondents

Heard: March 14, 2013

On appeal from the judgment of Justice Kendra Coats of
    the Superior Court of Justice, dated February 8, 2012.

ENDORSEMENT

[1]

The appellant Shellrock Developments Ltd. appeals the judgment of Coats
    J. of the Superior Court of Justice dated February 8, 2012 holding that the
    respondents James and Nina Maraschiello were entitled to elect specific
    performance and obtain title to Block 151 of a residential development.

[2]

In March 2004, the respondents sold 51.5 acres of land, where they had
    lived and worked since 1978, to the appellant.  One of the terms of the
    Agreement of Purchase and Sale (APS) was an undertaking to use best efforts
    within 12 months after the closing date (May 20, 2004) to obtain a severance
    of,
inter alia
, the house lands, a parcel of one acre around the
    respondents home.  Following an eight day trial, the trial judge found that
    the appellant had breached this contractual obligation and ordered specific
    performance of transfer of title of this parcel of land to the respondent.

[3]

The appellant advances three principal grounds of appeal, two factual
    and the other legal.

[4]

First, the appellant submits that the reasons of the trial judge on the
    best efforts component of Shellrocks contractual obligation are flawed by
    palpable and overriding errors, including a misunderstanding of the evidence
    of the respondents expert, a misplaced emphasis on the appellants delay in
    preparing the severance application, and, especially, improper criticism of the
    evidence of Julius De Ruyter, a planning and development consultant retained by
    the appellant.

[5]

We do not accept this submission. The trial judge engaged in a
    comprehensive and, in our view, balanced review of the evidence. Her conclusion
    was that:

Shellrock failed to use best efforts in the Committee of Adjustment
    application to obtain a severance for house lands within 12 months of the
    closing date of May 20, 2004 and that if they had used best efforts, it was
    highly likely that the final consent from the Committee of Adjustment would
    have been granted.

[6]

Having reviewed the record, we see no basis for interfering with this
    conclusion.  We cite but one example (of many) that demonstrates how
    ineffectual (the trial judge used the word lackadaisical) were the
    appellants efforts in pursuing the agreed-upon severance.  Mr. De Ruyter
    prepared the severance application and represented the appellant at the hearing
    held by the Committee of Adjustment.  The minutes of the meeting of the
    committee record:

(a)

De Ruyter explained that one of
    the conditions of approval of the APS was to apply for a consent application
    in an attempt to sever the existing home from the subject lands;

(b)

De Ruyter advised that the only
    reason the Defendant applied for severance was to meet its legal requirements
    under the APS;

(c)

De Ruyter confirmed that he
    was in agreement with the staff reports recommended refusal of the consent
    application as the proposal does not meet the intent of the Towns Official
    Plan or zoning by-law
;

(d)

De Ruyter agreed that the
    consent application was not an example of good planning
;

(e)

De Ruyter stated that once the
    consent application is ruled upon, whether approved or not, the Defendant would
    have met its legal obligations to apply for severance.                                                                                            (Emphasis
    added.)

[7]

We note that in his testimony Mr. De Ruyter did not accept the comments
    attributed to him in the emphasized paragraphs in the minutes. However, the
    trial judge explicitly stated that his testimony about the accuracy of the
    minutes lacked credibility.  In our view, the minutes establish that the
    appellants conduct was far removed from a best efforts attempt to obtain a
    severance; indeed, these minutes appear to document a worst efforts attempt.

[8]

Second, the appellant contends that even if the trial judge did not err
    in her treatment of the evidence led by the appellant, she did err by relying
    on the expert evidence of the respondents witness Colin Chung to conclude
    that, if the appellant had made genuine best efforts, the requested consent
    severance would probably have been obtained from the Committee of Adjustment.

[9]

We disagree. In our view, Mr. Chungs testimony about his experience in
    this domain and his description of the steps he would have taken supports the
    trial judges conclusion that had the Defendant made best efforts, the
    severance would have been granted and the Committee of Adjustment decision made
    final within the 12-month period in the APS.

[10]

Third,
    the appellant contends that the trial judge erred by awarding specific
    performance to the respondents.

[11]

The
    appellants first point is to assert, as it did at trial, that specific
    performance was not a possible remedy in this case.

[12]

We
    disagree.  As the trial judge said: Block 151 was created, from the
    Plaintiffs perspective, to preserve the Plaintiffs rights, including the
    right to specific performance.  The Plaintiffs acted diligently to protect this
    claim.

[13]

The
    appellants alternative submission is that if specific performance was in play
    as a potential remedy, the trial judge erred in the exercise of her discretion
    by ordering this remedy.

[14]

We
    do not accept this submission.  The trial judge reasoned:

In the case before me, I find that the remedy of damages is
    inadequate to do justice and that the Plaintiffs have established a fair, real
    and substantial justification for their claim to specific performance.

It is hard to imagine a more unique property.  The property was
    their home since 1978.  From 1978 to 1989 the Plaintiffs worked the property as
    a farm and in 1989 built a golf course.  On Block 151 is the building that was
    the Plaintiffs home for many years.  They resided in the home for many years. 
    A substitute is not readily available.

. . .

The Plaintiffs request for the house lands was born of their
    desire to stay on the property and be part of whatever subdivision was built. 
    As previously stated, they did not want to stand in the Defendants way, and
    simply wanted their home to remain among the new development.

[15]

Against
    the backdrop of this factual description, which we accept, the trial judges
    decision to order the remedy of specific performance was entirely reasonable.

[16]

In
    light of this conclusion, the other issues raised by the appellant, which
    relate to damages, do not arise.

[17]

The
    appeal is dismissed.  The respondents are entitled to their costs of the
    appeal, fixed in the agreed amount of $23,500 inclusive of disbursements and
    HST.

Doherty
    J.A.

J.C.
    MacPherson J.A.

David
    Watt J.A.


