



COURT OF APPEAL FOR ONTARIO

CITATION: Business Development Insurance Ltd. v. Caledon
    Mayfield Estates Inc., 2015 ONCA 864

DATE: 20151209

DOCKET: C60371

Weiler, Pardu and Benotto JJ.A.

BETWEEN

Business Development Insurance Ltd.

Appellant/Plaintiff

and

Caledon
    Mayfield Estates Inc. and

the
    Estate of Palmyra Kucinskaite by the

Estate Trustees Constance
    Deltuvaite and Dana Dargis

Respondents/Defendants

Todd C. Hein, for the appellant

William S.M. Cord, for the Estate of Palmyra Kucinskaite

An Nguyen, for Caledon Mayfield Estates Inc.

Heard and released orally: December 7, 2015

On appeal from the judgment of Justice Michael G. Emery
    of the Superior Court of Justice, dated March 27, 2015.

ENDORSEMENT

[1]

The respondent sellers entered into an Agreement of Purchase and Sale
    (Agreement) with the appellant buyer for the purchase and sale of a property
    in Caledon (the Property). The respondents had previously agreed to sell the
    Property to a third party, 2079664 (207). The respondents reasonably believed
    the prior agreement to be at an end, however, 207 registered a caution against
    the Property.

[2]

The respondents asked the Land Registrar to delete the caution for
    insufficient documentation. Ultimately, the Land Registrar agreed that the
    caution would be removed on the day set for its expiry, which coincided with
    the day of the closing, Monday, December 16, 2013. The closing could proceed.
    On Friday, December 13, 207 registered a Certificate of Pending Litigation
    (CPL) against the Property.

[3]

The appellants indicated they were ready, willing and able to close but
    would not do so because they required the CPL to be removed from title. The
    respondents took the position that they were unable to discharge the CPL prior
    to closing and relied on an annulment clause within the Agreement to terminate
    the deal.

[4]

The appellant brought an action for specific performance and damages in
    the alternative. The respondent brought a motion for summary judgment
    dismissing the appellants action. The trial judge granted the respondents
    motion.

[5]

The issue on this appeal is whether there is a triable issue as to
    whether the respondents were entitled to rely on the annulment clause in the
    Agreement. The appellants position is that there is a genuine issue regarding
    whether the respondents were the cause of the title problem.

[6]

The appellant submits that the trial judge erred because he did not
    consider a letter from the appellants solicitor to the respondents solicitor
    on December 16 as a whole. That letter does not say that the CPL needed to be
    discharged that day. The respondents counsel interpreted the letter that way
    but his reply came in at 5:30 pm on December 16. The appellants letter of
    December 17 requests an extension of time to close. Indeed there were
    discussions about the respondent bringing a motion to discharge the CPL after
    that and the respondent did bring a motion in Toronto to discharge the CPL. That
    motion was adjourned from Toronto to Brampton and not pursued.

[7]

We disagree that, considered as a whole, the letter from the appellants
    counsel on December 16 should be interpreted as indicating that the appellants
    position was that the Agreement was to continue after the closing date. The
    letter says, Our client will be looking to your clients for damages as a
    result of the inability of your clients to provide clear title to our client
    and to complete this transaction on the closing date. The trial judge did not
    err in his interpretation of the letter, that it amounted to a demand to remove
    the CPL and not a request to extend closing.

[8]

The appellants second submission is that the trial judge ought not to
    have granted summary judgment because the action respecting 207 has not been determined.
    The appellant has no authority which would support this submission. Time was
    stipulated to be of the essence in the Agreement. This submission is
    dismissed.

[9]

The appellants third submission is that the motions judge subjected the
    evidence of the appellant and respondent to unequal scrutiny. He required the
    appellant to act in good faith but did not impose the same duty on the
    respondents. We see no merit in this submission.

[10]

Accordingly
    the appeal is dismissed. The respondent is entitled to the costs of the appeal
    which, by agreement, are fixed in the amount of $5000, inclusive of
    disbursements and all applicable taxes.

Karen M. Weiler J.A.

G. Pardu J.A.

M.L. Benotto J.A.


