



COURT OF APPEAL FOR ONTARIO

CITATION:
    Fram Elgin Mills 90 Inc. v. Romandale Farms Limited, 2021 ONCA 201

DATE: 20210401

DOCKET: C67533 and
C67557

Gillese, Lauwers and
    Benotto JJ.A.

DOCKET: C67533

BETWEEN

Fram Elgin Mills 90
    Inc.

(formerly Frambordeaux
    Developments Inc.)

Plaintiff

and


Romandale Farms
    Limited
, Jeffrey Kerbel,

2001251 Ontario Inc.
    and First Elgin Developments Inc.

Defendants

(
Respondent
/Appellants)

AND BETWEEN

Fram 405 Construction
    Ltd. and Bordeaux Homes Inc.

Plaintiffs

and


Romandale Farms
    Limited
, 2001251 Ontario Inc., First Elgin

Developments Inc. and
    Jeffrey Kerbel

Defendants

(
Respondent
/Appellants)

AND BETWEEN

Romandale Farms Limited

Plaintiff (Respondent)

and

2001251 Ontario Inc.

Defendant (Appellant)

AND BETWEEN

2001251 Ontario Inc.

Plaintiff (Appellant)

and

Romandale Farms Limited

Defendant (Respondent)

DOCKET: C67557

BETWEEN

Fram Elgin Mills 90
    Inc.

(formerly Frambordeaux
    Developments Inc.)

Plaintiff (Appellant)

and


Romandale Farms Limited
,
    Jeffrey Kerbel,

2001251 Ontario Inc.
    and First Elgin Developments Inc.

Defendants (
Respondent
)




AND BETWEEN


Fram 405
    Construction Ltd.
and

Bordeaux Homes Inc.

Plaintiffs (
Appellant
)

and


Romandale Farms
    Limited
, 2001251 Ontario Inc.,

First Elgin
    Developments Inc. and Jeffrey Kerbel

Defendants (
Respondent
)

AND BETWEEN

Romandale Farms Limited

Plaintiff

and

2001251 Ontario Inc.

Defendant

AND BETWEEN

2001251 Ontario Inc.

Plaintiff

and

Romandale Farms Limited

Defendant

Chris G. Paliare and Tina H. Lie, for the appellants
    Jeffrey Kerbel, 2001251 Ontario Inc., and First Elgin Developments Inc.
    (C67533)

Sheila R. Block, Jeremy Opolsky, Sara J. Erskine, and
    Benjamin Lerer for the appellants Fram Elgin Mills 90 Inc. (formerly
    Frambordeaux Developments Inc.) and Fram 405 Construction Inc. (C67557)

Sarit E. Batner, Kosta Kalogiros, and Avi Bourassa, for
    the respondent Romandale Farms Limited (C67533 and C67557)

Heard: September 8 and 9, 2020, by video conference

On appeal from the judgment of
    Justice Nancy J. Spies, of the Superior Court of Justice, dated September 13,
    2019, with reasons reported at 2019 ONSC 5322, and from the costs order, dated
    April 2, 2020.




Table of Contents

Majority
    Reasons
:

1

I.

Overview
..
1

II.

THE PARTIES
.
6

III.

KEY DATES AND AGREEMENTS
.
7

IV.

The Trial REASONS
.
18

V.

The Issues ON THE
    APPEALS
.
29

A.

Issues
    Raised by Fram
..
29

B.

Issues
    Raised by Kerbel

30

VI.

ROMANDALE ALLEGES
    THRESHOLD FLAWS
.
30

A.

The First
    Alleged Threshold Flaw
.
31

B.

The Second
    Alleged Threshold Flaw
.
34

VII.

analysis of frams issues
.
35

Issue #1:     Did the trial
    judge err in failing to find that Romandale was estopped, based on estoppel by
    representation or by convention, from claiming that the Settlement Agreement
    breached the 2005 August Agreement?

A.

The Parties
    Positions
.
35

B.

Estoppel by
    Representation
.
44


(1)     Governing Legal Principles


(2)     Application of the Law

C.

Estoppel by
    Convention
.


(1)     Governing Legal Principles


(2)     Application
    of the Law


(a)     Assumption Shared and Communicated


(i)      The Settlement Agreement and Drafts
    Leading to It


(ii)      Letters between Counsel


(iii)     Pleadings and Evidence at Trial


(b)     Reliance


(c)     Detriment

(
d)     Romandales Overriding Submission on Estoppel by Convention


(e)     Conclusion on Estoppel by Convention

Issue #2:     Did
    the trial judge err in determining that, by entering into the Settlement
    Agreement, Kerbel breached the 2005 August Agreement?

VIII.

analysis of KERBELS issues
.
74

Issue #3:     Did the trial
    judge err in concluding that Kerbel repudiated the 2005 August Agreement?

Issue #4:     Did the trial
    judge err in concluding that the 2005 August Agreement was frustrated?

A.

The Parties
    Positions
.
75

B.

Governing
    Legal Principles
.
79

C.

Application
    of the Law
.
80

Issue #5:     Did
    the trial judge err in concluding that the 2005 August Agreement was void for
    mistake?

A.

The Parties
    Positions
.
85

B.

Governing
    Legal Principles
.
86

C.

Application
    of the Law
.
87

Issue #6:     Did
    the trial judge err in finding Kerbels claim was limitation-barred?

A.

The Parties
    Positions
.
89

B.

Governing
    Legal Principles
.
92

C.

Application
    of the Law
.
93

Issue #7:     Did
    the trial judge err in concluding that Kerbel was not entitled to specific
    performance of the 2005 August Agreement?

A.

The Parties
    Positions
.
99

B.

Governing
    Legal Principles
.
102

C.

Application
    of the Law
.
103

IX.

FRAMS CLAIM FOR DAMAGES
.
108

X.

The Costs Appeal
.
109

XI.

A COMMENT ON THE
    CONCURRING REASONS
.
111

XII.

Disposition
.
111

SCHEDULE A: CHRONOLOGY OF EVENTS
.
113

Schedule B: KEY Contractual
    Provisions
.
127

1. Key Provisions in
    the COAs
.
127

2. The 2005 August
    Agreement

131

3. The Settlement
    Agreement

138

Concurring
    Reasons by Lauwers J.A.:

149

A.

OVERVIEW
..
149

B.

THE CONTRACTUAL CONTEXT
.
149

C.

ANALYSIS
.
151

(1).. Any Estoppel Ceased to Have
    Practical Effect When Fram Consented to   the Sale of Romandales Remaining
    Interest on August 22, 2018
.
151

(2).. Estoppel by Convention Is Not Made
    Out

153

(3).. Kerbel Did Not Breach the 2005
    August Agreement by Entering Into the Settlement
    Agreement with Fram
..
167

(4).. By Entering Into the Settlement
    Agreement, Kerbel Did Not Repudiate Its Obligations Under the 2005 August
    Agreement.

181

(5).. Kerbel Is Entitled to Specific
    Performance of the 2005 August Agreement

183




Gillese
J.A.:

[1]

These appeals involve competing claims to
    undeveloped lands in Markham, Ontario. They illustrate the perils associated
    with a landowner selling interests in the land to more than one party in more
    than one transaction.

[2]

The appeals raise many legal issues, one of
    which is the little-known equitable doctrine of estoppel by convention. In
    Canada, this doctrine finds its roots in
Ryan v. Moore
,
2005 SCC 38, [2005] 2 S.C.R. 53. As you will see, estoppel by
    convention plays a critical role in the resolution of these appeals.

I.

Overview

[3]

Romandale Farms Limited (
Romandale
) owned two neighbouring farms in Markham
[1]
known as the
    McGrisken Farm and the Snider Farm (the 
Lands
). The
    Lands comprise approximately 275 acres of undeveloped land in the Elgin Mills
    Road and Warden Avenue area of Markham.

[4]

Initially, Romandale was the sole owner of the
    Lands. However, in 2003 and 2005, Romandale entered into agreements relating to
    the Lands, as a result of which much litigation has ensued.

[5]

In 2003, Romandale sold an undivided 5% interest in the
    Lands to
Fram
.
[2]
Romandale and Fram planned to obtain the necessary planning
    approval for the Lands so that they could be developed for residential use. It
    was their intention that Fram would build homes on the Lands, sell them, and
    share the profits with Romandale. Romandale and Fram entered into a number of
    agreements relating to the Lands, including co-owners agreements (the 
COAs
). Under the COAs, subject to limited exceptions, neither party
    could dispose of its interest in the Lands. The COAs also contained a buy-sell
    mechanism that was generally available only after secondary planning approval
    (
SPA
)
[3]
had been obtained
    for the Lands. SPA is required before the Lands can be developed.

[6]

In August 2005, Romandale entered into an
    agreement with
Kerbel
[4]
(the 
2005 August Agreement
) consisting of several transactions respecting properties in
    Markham. One of the transactions was the sale of Romandales 95% interest in
    the Lands to Kerbel. This was to be achieved in two steps. In the first step,
    Romandale sold Kerbel 5% of its interest in the Lands.
[5]
In the second step,
    Romandale agreed to sell its remaining interest in the Lands to Kerbel, conditional
    on either Frams consent to the sale or Romandales exercise of the buy-sell
    provisions in the COAs. All of the transactions under the 2005 August Agreement
    have been completed with the exception of the sale of Romandales remaining
    interest in the Lands to Kerbel.
[6]


[7]

Whether Romandale is bound by the 2005 August
    Agreement  and its obligations respecting the sale of its remaining interest
    in the Lands  is the driving force behind these appeals.

[8]

In 2007, Fram sued Romandale and Kerbel,
    claiming that the 2005 August Agreement was an impermissible disposition of
    Romandales interest in the Lands under the COAs (the 
2007
    Action
).

[9]

In 2008, Fram and the development manager for
    the Lands sued Romandale and Kerbel. They alleged that the 2005 August Agreement
    amounted to a breach of the construction management agreements between Fram and
    Romandale respecting the Lands (the 
2008 Action
).

[10]

In 2009, government decisions significantly
    changed the timelines and development prospects for the Lands. Development of
    the Snider Farm was delayed until 2021-2031 and of the McGrisken Farm until
    2031-2051. In addition, the Snider Farm was newly earmarked for employment use,
    which would prevent residential development.

[11]

The 2007 and 2008 Actions were scheduled for trial
    in the fall of 2010. In an attempt to settle them before trial, Fram, Kerbel
    and Romandale attended a judicial mediation in September 2010. At the
    mediation, the three parties reached an agreement in principle. That agreement
    included a statement of the parties intention that the purchase and sale of
    Romandales remaining interest in the Lands to Kerbel would take place after
    the Lands obtained SPA (the 
Statement
).
    Romandale later withdrew from the settlement agreement. However, in December
    2010, Fram and Kerbel settled the matters between them and entered into a
    settlement agreement (the 
Settlement Agreement
). It is important to note that para. 5 of the Settlement Agreement
    contains the Statement.

[12]

In 2014, Romandale sued Kerbel claiming Kerbel
    breached the 2005 August Agreement by taking steps to reduce the amount of
    developable acreage on the Lands (the 
2014 Action
).

[13]

In 2015, Romandale changed legal counsel. For
    the first time, it took the position that, because of the Statement in the
    Settlement Agreement, Kerbel had repudiated the 2005 August Agreement.
    Romandale also announced that it considered itself no longer bound by the 2005
    August Agreement. Accordingly, in 2016, Kerbel sued Romandale to compel it to
    perform its remaining obligation under the 2005 August Agreement (the 
2016
    Action
).

[14]

The four actions involving the Lands were tried
    together in the fall of 2018.

[15]

By judgment dated September 13, 2019 (the 
Judgment
), all four actions were resolved in favour of Romandale. The trial
    judges key determination was that Kerbel repudiated the 2005 August Agreement
    when it entered into the Settlement Agreement because para. 5 of the Settlement
    Agreement stated the parties intention that the purchase and sale of the
    Remaining Interest would take place after SPA. The trial judge found that
    Romandale had accepted the repudiation and concluded that the 2005 August
    Agreement was at an end. Accordingly, Romandale was excused from performing its
    remaining obligations under the 2005 August Agreement.

[16]

Both Fram and Kerbel (collectively, the 
Appellants
) appeal to this court. Their appeals were consolidated. The
    Appellants ask this court to, among other things, declare that the 2005 August
    Agreement is valid and enforceable, and make an order for specific performance
    requiring Romandale to perform its obligations under the 2005 August Agreement.

[17]

For the reasons that follow, I would allow the
    appeals and make the requested order for specific performance.

II.

THE PARTIES

[18]

There are two sets of appellants in this appeal.

[19]

The Fram appellants consist of Fram Elgin Mills
    90 Inc. and Fram 405 Construction Ltd. Fram Elgin Mills 90 Inc. is part of a
    group of companies known as the Fram Building Group. It was incorporated for
    the purpose of developing the Lands. Before 2010, it was named Frambordeaux
    Developments Inc. Frank Giannone is the president of Fram Elgin Mills 90 Inc.
    In deciding the issues in these appeals, it generally does not matter whether
    the Fram appellants were involved collectively or individually. For ease of
    reference, I use Fram when I refer to one or more of the Fram appellants.
    However, when the distinction matters, I use the individual partys name.

[20]

The Kerbel appellants consist of 2001251 Ontario
    Inc., First Elgin Developments Inc., and Jeffrey Kerbel. They are land
    developers and builders. Mr. Kerbel is the principal of the Kerbel group of
    companies. Again, for ease of reference, I use Kerbel when I refer to one or
    more of the Kerbel appellants but, when the distinction matters, I use the
    individual partys name.

[21]

Romandale is a corporation that has long owned
    properties in the Markham area, including the Lands. Helen Roman-Barber has
    been the principal of Romandale since 1988. The Roman family owns and operates
    Romandale. It also owned the Triple R Lands, an adjoining property to the
    Lands.

III.

KEY DATES AND AGREEMENTS

[22]

Below you will find a summary of the key dates
    and most significant agreements. A more detailed chronology of events is
    contained in Schedule A to these reasons. In the analysis of the various
    issues, I rely on the detailed recitation of facts set out in that chronology.
    This section and the chronology in Schedule A are based on the factual
    findings in the trial judges reasons (the 
Reasons
).

[23]

In Schedule B to these reasons, you will find
    the text of: the key contractual provisions in the COAs between Romandale and
    Fram; the 2005 August Agreement; and, the Settlement Agreement.

2003

[24]

Romandale sells Fram an undivided 5% interest in the Lands and the
    parties enter into two identical sets of agreements, one set for each farm
    property. Each set consisted of three documents: the
COA
, which sets out the terms and conditions on which Romandale and
    Fram, as co-owners, hold title to the Lands; the Construction Management
    Agreement (
CMA
), under which Fram
    was to construct and sell residential units on the Lands, once the Lands
    achieved
SPA
; and the Development Management Agreement
    (
DMA
), which governed the
    development process for the Lands. Bordeaux Developments (Ontario) Inc. (
Bordeaux
) was also a party to the DMAs and, under its terms, Bordeaux was
    appointed the development manager responsible for the development requirements
    of the Lands.

[25]

Of these agreements, the COAs are the most significant for these
    appeals. The buy-sell provision in s. 5.07 of the COAs permits a co-owner,
    under certain conditions, to tender on the other an offer to sell its entire
    interest in the Lands and, at the same time, an offer to buy the others entire
    interest in the Lands on the same terms as the offer to sell. The non-tendering
    party must choose whether to buy out the tendering party or sell its interest.
    The buy-sell is available once SPA is obtained for the Lands or the DMAs are
    terminated.

[26]

Section 6.02 of the COAs provides that if an event of default occurs
    and is continuing, the non-defaulting party has the right to, among other
    things, bring proceedings for specific performance and/or buy the defaulting
    partys interest in the Lands at 95% of fair market value.

[27]

Development of the Lands depended on obtaining planning approval,
    including appropriate amendments to the official plan. These changes are made
    to the secondary plan, which provides more detailed policies for the
    development of a specific area. The process of obtaining development approval
    for specific lands is known as SPA. This is reflected in s. 5.07(a) of the COAs
    which defines SPA as an amendment of the official plan of the Town of Markham applicable
    to the Lands, obtained in accordance with the Planning Act (Ontario).

[28]

When Romandale and Fram entered into these agreements in 2003,
    Romandale had not yet started the SPA process.

2004

[29]

With Frams consent, Romandale borrows $6 million from the Bank of
    Nova Scotia (
BNS
), secured by a
    mortgage on the Lands.


2005

[30]

With Frams consent, Romandale terminates the DMAs with Bordeaux.
[7]
The ongoing work to
    move the Lands through SPA continues through a new agreement between Fram and
    Romandale to co-manage development of the Lands.

[31]

BNS calls its $6 million mortgage. Romandale needs financing to
    repay the BNS loan by August 30, 2005. It also needs cash to make distributions
    to the Roman family. The solution is the 2005 August Agreement, which Romandale
    and Kerbel enter into on August 29, 2005.

[32]

In the 2005 August Agreement, Kerbel agrees to pay off the BNS
    mortgage and extend the same amount as a new loan to Romandale under the same
    security and Romandale agrees to: (1) sell Kerbel its 95% interest in the Lands
    for a fixed price of $160,000 per acre; (2) on behalf of the Roman family, sell
    Kerbel the adjoining Triple R Lands for $175,000 per acre, subject to a
    purchase price adjustment for non-developable acreage; and (3) grant Kerbel a
    right of second refusal over other lands, called the Elgin South Property. The
    sale of Romandales interest in the Lands is to occur in two steps:

a.   Step 1:
    an initial sale of 5% of Romandales interest in the Lands; and

b.   Step 2:
    the sale of Romandales remaining interest in the Lands (
Remaining Interest
),
    conditional on:

i.   Romandale
    buying out Frams interest in the Lands pursuant to the buy-sell provisions in
    the COAs; or

ii.  Fram
    consenting to the transaction.

[33]

I refer to the second step of the sale of
    Romandales interest in the Lands to Kerbel as the 
Conditional
    Provision
.

[34]

All the transactions in the 2005 August
    Agreement have been completed, except the sale of Romandales Remaining
    Interest to Kerbel under the Conditional Provision. Romandale received over $16
    million in immediate value from Kerbel under the 2005 August Agreement: $6
    million in new mortgage financing; $2,128,000 in cash for its 5% interest in
    the Lands; and, $8,575,000 for the Triple R Lands.

[35]

Paragraph 5 of the 2005 August Agreement
    empowers Kerbel to cause Romandale to trigger the buy-sell provision in the
    COAs following SPA being obtained for the Lands. Paragraph 5 also gives Kerbel
    exclusive control over the development of the Lands.

[36]

Ms. Roman-Barber tells Fram she reached an
    agreement with Kerbel under which she sold the Triple R Lands, assigned the BNS
    mortgage, and sold a 5% interest in the Lands. She does not disclose that
    Romandale also committed to sell its entire interest in the Lands through the
    Conditional Provision.

2007

[37]

Despite repeated requests that Romandale provide
    it with a copy of the 2005 August Agreement, it is only in April 2007 that
    Frams counsel is permitted to read a copy.

[38]

Fram starts the 2007 Action against Romandale
    and Kerbel, alleging that the 2005 August Agreement was a prohibited
    disposition under the COAs. It also seeks an injunction restraining Romandale
    from any further sale of its interest in the Lands. Further, it gives notice it
    will seek to exercise its remedy under the COAs to purchase Romandales
    interest in the Lands at 95% of fair market value.

[39]

The injunction is ordered.

2008

[40]

Fram and Bordeaux start the 2008 Action against
    Romandale and Kerbel based on alleged breaches of the CMAs. Under the CMAs,
    Fram has the right to construct residences on the Lands once SPA is obtained.

[41]

Kerbel, as owner of the Triple R Lands, together
    with
neighbouring
landowners, form the North Markham
    Landowners Group (
NMLG
) with the
    goal of engaging collectively with the relevant authorities about the
    development of their respective properties.

[42]

From 2008 onward, the NMLG retains consultants
    and commissions studies required for the development process and engages in
    that process with Markham. NMLGs development costs have been in the hundred of
    thousands of dollars. Until 2011, Kerbel reimbursed Romandale for all costs associated
    with the Lands, including Romandales share of the NMLG cash calls that were
    made to fund the NMLG ongoing development activities.

2009

[43]

Government decisions change the anticipated
    development timeline for the Lands. As a result, development of the Snider Farm
    is delayed until 2021-2031 and of the McGrisken Farm until 2031-2051. In
    addition, the Snider Farm is proposed for employment use, which would prevent
    residential development.

[44]

At Kerbels insistence, Romandale joins the
    NMLG.

2010

[45]

In the hope of resolving the 2007 and 2008 Actions before trial,
    Romandale, Fram, and Kerbel engage in settlement discussions at a judicial
    mediation in September 2010. The three parties reach an agreement in principle
    on the main settlement terms. One of the agreed settlement terms is that the
    sale of Romandales Remaining Interest to Kerbel will occur after the Lands
    achieve SPA. The following day, counsel for Romandale writes to counsel for
    Fram and Kerbel and outlines the agreed points of settlement, including that
    sale of its Remaining Interest will occur when SPA has been obtained for the
    Lands.

[46]

Romandale withdraws from the settlement in October but Fram and
    Kerbel move forward and enter into the Settlement Agreement in December 2010.

[47]

The Settlement Agreement provides that if
    Romandale does not concur in it and the 2007 and 2008 Actions proceed to trial:

(1)

Fram would discontinue its claims against Kerbel, not seek a declaration
    that the 2005 August Agreement is void, and restrict its claims against
    Romandale to damages;

(2)

Kerbel would provide Fram with an option to purchase a 50% interest in
    Romandales Remaining Interest, on the same terms and conditions as Kerbel
    might purchase Romandales Remaining Interest;

(3)

If Fram exercises the option, it and Kerbel would enter into a joint
    venture agreement to develop the Lands with (effectively) an equal sharing of
    costs;

(4)

Fram does not consent to Romandales sale of its Remaining Interest in
    the Lands to Kerbel; and

(5)

Para. 5 of the Settlement Agreement includes the statement of Fram and
    Kerbels intention that the purchase and sale of Romandales Remaining
    Interest in the Lands pursuant to these Minutes of Settlement will take place
    after [SPA] for the Lands has been obtained.

2011

[48]

By letter dated January 28, 2011, counsel for
    Romandale advises Fram and Kerbel that Romandale objects to Kerbels land
    planner telling the NMLG that there was a change in the ownership of the Lands.
    The letter reiterates that Romandale conditionally sold the Lands to Kerbel
    under the 2005 August Agreement and [t]he condition could only be satisfied by
    either a) secondary plan approval (which has not been achieved); b) or the
    consent of [Fram] to the transaction.

[49]

Romandale represents the Lands at the NMLG and
    instructs its planning consultant (and others working for it) to not share
    information with Kerbels planner.

[50]

Kerbels counsel sends a letter, dated February
    17, 2011, to Romandales counsel complaining that Ms. Roman-Barbers conduct is
    a breach of para. 5 of the 2005 August Agreement in which Romandale ceded
    control of the development process for the Lands to Kerbel. It demands that Romandale
    confirm to the NMLG that Kerbels planning consultant has the sole authority to
    represent the Lands and threatens to commence proceedings if Ms. Roman-Barber
    does not comply with para. 5 of the 2005 August Agreement.

[51]

Romandales counsel responds by letter, dated
    February 25, 2011, asserting that its client had at all times acted in
    accordance with the 2005 August Agreement and that it is considering whether
    the Settlement Agreement was a breach of the 2005 August Agreement.

2013

[52]

Meanwhile, Romandale and Kerbel are involved in
    litigation over the purchase price of the Triple R Lands (the 
Triple
    R Lands Litigation
), one of the transactions in the
    2005 August Agreement. In February 2013, Romandale and Kerbel enter into a
    partial settlement in which they agree that if Kerbel is found to be entitled
    to a price adjustment, the determination of the non-developable lands is to be
    done pursuant to the terms of the [2005 August Agreement] and the Amendment.
[8]

[53]

Romandale leaves the NMLG.

2014

[54]

Romandale starts the 2014 Action against Kerbel,
    alleging that Kerbel fundamentally breached the 2005 August Agreement by taking
    steps to reduce the amount of developable acreage on the Lands. It seeks a
    declaration that the 2005 August Agreement is terminated or, alternatively,
    damages.

[55]

This court releases its decision in the Triple R
    Lands Litigation, finding in favour of Kerbel. It declares that Kerbel is
    entitled to a purchase price reduction in accordance with the 2005 August
    Agreement.

2015

[56]

Romandale retains new counsel and takes a new
    position: the buy-sell provisions in the COAs could be performed
before
SPA because the DMAs with
    Bordeaux had been terminated in February 2005.

[57]

Romandale obtains leave to amend its pleadings
    in the 2007 Action to allege, for the first time, that Kerbel repudiated the
    2005 August Agreement by entering into the Settlement Agreement because it
    contained para. 5 which provides that the purchase and sale of Romandales
    Remaining Interest in the Lands would occur after SPA. Also for the first time,
    in its amended pleading, Romandale asserts that it will not perform the 2005
    August Agreement in any event.

2016

[58]

Kerbel starts the 2016 Action against Romandale,
    seeking specific performance of the 2005 August Agreement.

2017

[59]

Kerbel files a crossclaim in the 2007 Action
    seeking specific performance of the 2005 August Agreement and an order
    directing Romandale to comply with its terms.

[60]

Romandale files a defence to Kerbels crossclaim
    in the 2007 Action and newly alleges that the 2005 August Agreement offends the
    rule against perpetuities.

2018

[61]

Shortly before the trial of the four actions
    begins in October 2018, Fram and Kerbel amend the Settlement Agreement to allow
    the sale of Romandales Remaining Interest to close immediately, rather than
    after SPA, and Fram delivers its consent to that sale.

[62]

When the trial begins, SPA has not been obtained
    for the Lands.

IV.


The Trial REASONS

[63]

As the trial reasons are over 100 single-spaced
    pages in length, I will not attempt to summarize them here. Instead, I set out
    below a summary of the disposition of each of the four actions. Thereafter, I
    summarize the Reasons on the issues raised in these appeals.

Disposition of the Four Actions

[64]

The trial judge concluded that Romandale did not
    breach the COAs when it entered into the 2005 August Agreement and dismissed
    the 2007 Action accordingly. In reaching this conclusion, the trial judge held
    that: (1) the Conditional Provision was not a Disposition in breach of s.
    5.03 of the COAs; (2) Romandale was not obliged to give Fram notice and a copy
    of the 2005 August Agreement so, if it did fail to disclose the same (which
    Romandale disputed), the failure was not a breach of the COAs; and, (3)
    Romandale did not breach the COAs by ceding control over the development of the
    Lands to Kerbel under the 2005 August Agreement (Reasons, at paras. 187-91,
    204-05).

[65]

The trial judge concluded that Romandales entry
    into the 2005 August Agreement did not amount to a breach of the CMAs because
    Romandale continued to own its Remaining Interest in the Lands and for all
    practical purposes continued to control the development of the Lands in the
    same way as before (Reasons, at para. 226). Accordingly, she dismissed the 2008
    Action.

[66]

With respect to the 2014 Action, the trial judge
    declared that the 2005 August Agreement was at an end and terminated and she
    dismissed Kerbels crossclaim seeking damages against Romandale. These orders
    flowed from the trial judges determination that Kerbel repudiated the 2005
    August Agreement by entering into the Settlement Agreement (Reasons, at paras.
    346, 442).

[67]

Having found that Kerbel had repudiated the 2005
    August Agreement and that Romandale accepted the repudiation, the trial judge
    dismissed Kerbels 2016 Action for specific performance of the 2005 August
    Agreement (Reasons, at paras. 346, 442).

Estoppel (Reasons, at paras. 359-72)

[68]

At trial, both estoppel by representation and
    estoppel by convention were argued. The trial judge addressed estoppel by
    representation in the Reasons. However, she did not address estoppel by
    convention.

[69]

Quoting from para. 29 of
Scotsburn
    Co-operative Services Ltd. v. W.T. Goodwin Ltd.
, [1985] 1
    S.C.R. 54, the trial judge set out the following legal principles for estoppel
    by representation, at para. 359:

The essence of estoppel is
    representation by words or conduct
which induces detrimental reliance
. A
    more exhaustive definition is offered in Spencer Bower and Turner,
The Law
    Relating to Estoppel by Representation
(3rd ed., 1977), at p. 4:

where one person (the
    representor) has made a representation to another person (the representee)
    in words or by acts or conduct, or (being under a duty to the representee to
    speak or act) by silence or inaction,
with the intention (actual or
    presumptive), and with the result, of inducing the representee on the faith of
    such representation to alter his position to his detriment
, the
    representor, in any litigation which may afterwards take place between him and
    the representee, is estopped, as against the representee, from making, or
    attempting to establish by evidence, any averment substantially at variance
    with his former representation, if the representee at the proper time, and in
    the proper manner, objects thereto. [Emphasis in the Reasons.]

[70]

The trial judge described Fram and Kerbels
    position on estoppel as follows. They argued that, prior to the Settlement Agreement
    and for a number of years following it, Romandale consistently took the
    position that: (1) the 2005 August Agreement was valid and enforceable; and (2)
    if Fram did not consent to Romandales sale of its Remaining Interest to
    Kerbel, the buy-sell in the 2005 August Agreement would be performed after SPA.
    They asserted that Fram relied on Romandales position in entering into the
    Settlement Agreement, thereby compromising its claim to the Lands by 50%, and
    that Kerbel also compromised its position in reliance on Romandales position.

[71]

Romandale contended that Fram and Kerbel
    overstated its positions and stripped them of the context in which they were
    taken. The trial judge agreed, for the following reasons. In the 2007 Action,
    Romandales primary position was that the 2005 August Agreement did not breach
    the COAs and, as a result, the 2005 August Agreement was valid. The trial judge
    acknowledged that Romandale did take the position that the buy-sell in the 2005
    August Agreement would be triggered after SPA because the buy-sell in the COAs
    could only be triggered after SPA. However, she noted that Romandales position
    on the buy-sell in the COAs was mistaken and the parties shared this mistaken
    understanding until 2015 when Romandale rectified its mistake and amended its
    pleadings. At that point, Romandale asserted that the 2005 August Agreement was
    unenforceable because Kerbel repudiated it by entering into the Settlement
    Agreement. However, the trial judge stated that this assertion did not change
    Romandales primary position: Romandale continued to defend the 2007 Action on
    the basis that the 2005 August Agreement did not breach the COAs. She said that
    Romandale did not backtrack from its primary position: it was responding to new
    factual events that carried legal consequences.

[72]

On the issue of reliance, the trial judge said
    that Frams only evidence was a bald assertion by Mr. Giannone that he relied
    on Romandales position that the 2005 August Agreement was enforceable. She
    said this evidence was totally unreliable and could not be accepted.

[73]

In any event, the trial judge concluded, any
    reliance would have been totally unreasonable as Romandale objected to the
    Settlement Agreement before it was entered into. Therefore, Fram and Kerbel
    proceeded at their own risk.

Repudiation of the 2005 August Agreement (Reasons, at paras.
    30546)

[74]

The trial judge stated the legal principles
    governing repudiation as follows, at para. 305:

The applicable law is not in dispute. A contract may be said to
    be repudiated when one party acts in a way, by words or conduct, that evinces
    an intent to no longer be bound by the contract. Only a very substantial breach
    will amount to a repudiation. As the court stated in
Jedfro Investments
at para. 21, having little regard for an agreement does not establish that a
    party is repudiating the agreement. Repudiation arises where the innocent
    party is deprived of substantially the whole benefit of its agreement. When
    faced with repudiation, the innocent party may elect to treat the contract as
    at an end, relieving the parties from further performance. [Citations omitted.]

[75]

She concluded that the Settlement Agreement
    materially and substantially changed the deal in the 2005 August Agreement for
    the following reasons. Because Kerbel was no longer at liberty to cause
    Romandale to trigger the buy-sell before SPA and Fram was no longer at liberty
    to consent before SPA, the result of the Settlement Agreement was to tie up the
    Lands until after SPA, then decades away or more, at a fixed price, without
    paying Romandale for the Lands and while leaving Romandale with all the risks
    and liabilities. She said this entirely devalued the Conditional Provision,
    given the time value of money, and that Kerbel shifted all of the risk of the
    Lands to Romandale by tying up the Lands indefinitely without any compensation
    to Romandale.

[76]

The trial judge also concluded that, by entering
    into the Settlement Agreement, Kerbel demonstrated an intent not to be bound by
    the ongoing performance of the 2005 August Agreement. It wanted instead to
    abide only by its new Settlement Agreement with Fram.

[77]

The trial judge determined that Kerbels repudiation of the 2005
    August Agreement deprived Romandale of substantially the whole benefit of that
    agreement. In making this determination, the trial judge considered each
    transaction in the 2005 August Agreement on its own and stated that there was
    no dispute that by the time of the Settlement Agreement, Romandale had not
    received any of the benefit of the Conditional Provision. She said that all of
    the transactions in the 2005 August Agreement were either of no benefit to
    Romandale or of relatively modest benefit when compared to the Conditional
    Provision. She concluded that performance of the other parts of the 2005 August
    Agreement could not represent Romandale receiving substantially the whole of
    the benefit of that agreement (at para. 336).

[78]

The trial judge found that Romandale had accepted Kerbels
    repudiation. In making this finding, she said: (1) by February 2011, Kerbel
    knew that Romandale was no longer acting in accordance with the 2005 August
    Agreement; and (2) in a letter dated February 9, 2011, from counsel for
    Romandale to counsel for Kerbel, Romandale took the position that Kerbel had
    breached the 2005 August Agreement and it was considering its rights (at
    para. 338).

[79]

Having found that Romandale accepted Kerbels repudiation, the trial
    judge concluded that the parties were relieved of their obligations under the
    Conditional Provision and it was at an end. Consequently, the Conditional
    Provision was not enforceable against Romandale.

[80]

The trial judge also concluded that Kerbel
    breached its duty of good faith and its fiduciary duty in acting as Romandales
    agent, by fettering its discretion in the Settlement Agreement as to when to
    cause Romandale to trigger the buy-sell. Further, she was of the view that by
    entering into the Settlement Agreement, Kerbel breached the time is of
    the essence clause in the 2005 August Agreement and the clause stipulating
    that the conditions precedent were for the mutual benefit of the
    parties.

Frustration (Reasons, at paras. 347-49)

[81]

In light of the trial judges determination on
    repudiation, it was not necessary that she consider Romandales alternative
    argument that the 2005 August Agreement was rendered unenforceable on account
    of frustration. However, the trial judge stated, had it been necessary to
    consider it, she was persuaded that the 2005 August Agreement was frustrated.

[82]

Relying on
Naylor Group Inc. v.
    Ellis-Don Construction Ltd.
, 2001 SCC 58, [2001] 2 S.C.R.
    943, at para. 53, the trial judge said that frustration occurs when a situation
    has arisen for which the parties made no provision in the contract and
    performance of the contract becomes a thing radically different from that
    which was undertaken by the contract (at para. 348).

[83]

The trial judge said it was clear that when the
    2005 August Agreement was entered into, both Ms. Roman-Barber and Mr. Kerbel
    expected that SPA was only years away, not decades away. Unforeseen planning
    changes resulted in SPA being delayed for decades and the farms being put on
    different development tracks. In addition, the Snider Farm could be developed
    only as employment lands, not for residential use. These changes were beyond
    the control of the parties and rendered the performance of the Conditional
    Provision radically different from that to which the parties agreed.

Mistake (Reasons, at paras. 350-53)

[84]

Romandale argued that if obtaining SPA was a
    prerequisite to triggering the buy-sell, the Conditional Provision was
    unenforceable because Kerbel and Romandale were mistaken, when entering into
    the 2005 August Agreement, as to the time horizon within which SPA could be
    achieved.

[85]

The trial judge accepted this argument and found
    the Conditional Provision void for mistake. She said the following, at para.
    351:

Both Romandale and Kerbel, in making a time is of the essence
    clause, fixing a purchase price of $160,000 per acre, and providing for the
    conditions precedent for their mutual benefit, without any sunset clause or
    otherwise set[ting] the closing date, were operating on the mistaken
    understanding that SPA would occur within a relatively short time period, and
    certainly not decades after the [2005 August Agreement] was entered into.

[86]

Citing
Miller Paving Ltd. v. B.
    Gottardo Construction Ltd.
,
2007 ONCA 422, 86 O.R. (3d)
    161, at para. 23, the trial judge set aside the 2005 August Agreement contract
    for common mistake as, in all the circumstances, it would be unconscientious
    for a contracting party to avail itself of the legal advantage it had obtained.
    She agreed with Romandale that it would be unconscionable and commercially
    absurd to enforce the Conditional Provision or even consider it valid and
    enforceable since the parties would never have agreed to its terms, especially
    the fixed price per acre of the Lands, had they known that the timeline for SPA
    would change so drastically and  be pushed out decades in the future.

Kerbels Claims were Time-Barred (Reasons, at paras. 400-07)

[87]

The trial judge found that even if Kerbel had a
    claim for specific performance of the 2005 August Agreement, its claim was
    barred by the expiration of the two-year limitation period under the
Limitations
    Act, 2002
, S.O. 2002, c. 24, Sched. B, (the 
Limitations
    Act
) and the equitable doctrine of laches.

[88]

The trial judge found that Kerbel was aware, as
    of 2011, that Romandale: viewed the Conditional Provision as being at an end;
    was no longer co-operating with Kerbel to advance the Lands through development
    as required by the 2005 August Agreement; and, was shutting Kerbel out for its
    own purposes. She said this conduct clearly revealed that Romandale intended to
    remain the owner of the Lands and, from its point of view, the Conditional
    Provision was dead.

[89]

Despite being aware of this, Kerbel took no
    material steps to enforce its rights and acquiesced to the state of affairs for
    years before asserting a claim for specific performance for the first time in
    the 2016 Action.

[90]

She rejected Kerbels claim that it did not know
    until 2015 that Romandale intended to not perform the Conditional Provision,
    saying that this was undermined by the clear implications of Romandales
    conduct since 2011.

[91]

Kerbel did not seek specific performance of the
    2005 August Agreement until it commenced the 2016 Action. That was more than
    five years after it wrote to Romandale in 2011 asserting that Romandale was
    breaching the 2005 August Agreement, and threatening to commence litigation to
    affirm the breach. By 2016, Kerbel was outside the two-year statutory
    limitation period, had acquiesced to Romandales conduct, and had permitted a
    state of affairs to exist where Romandale spent years investing significant
    time, effort, and money into the Lands.

Specific Performance (Reasons, at paras. 399, 408-23)

[92]

The trial judge held that Kerbel was not
    entitled to specific performance of the 2005 August Agreement because the Lands
    were not unique.

[93]

The trial judge found the Lands were not unique
    because Kerbels only evidence of uniqueness was a bald assertion from Mr.
    Kerbel and because the expert evidence, including from Kerbels expert,
    contradicted Kerbels assertion. The experts called by all three parties used a
    direct comparison approach to provide their opinions on land values. The
    direct comparison approach determines value based on an analysis of sales of
    similar properties within a close time period and location. The trial judge
    concluded that because Fram and Kerbels experts were able to use the direct
    comparison approach to value the Lands, the Lands are not unique.

[94]

Further, the trial judge said, the Lands are not unique because they
    were just an investment for Kerbel, there were suitable substitute properties
    that Kerbel could purchase, and it was possible to quantify the monetary
    equivalent of Kerbels alleged future losses.


V.

The Issues ON THE APPEALS

A.

Issues Raised by Fram

[95]

Fram says that the trial judge made numerous
    errors in her lengthy trial decision. To narrow its appeal, Fram focused on two
    issues. It submits that the trial judge erred in:

1.     failing to find that Romandale was estopped,
    based on either estoppel by representation or estoppel by convention, from
    claiming that the Settlement Agreement breached the 2005 August Agreement; and

2.     concluding that, by entering into
  the Settlement Agreement, Kerbel breached the 2005 August Agreement.

B.

Issues Raised by Kerbel

[96]

In
    its appeal, Kerbel raises five issues. It submits that the trial judge erred in
    concluding that:

3.     it repudiated the 2005 August
  Agreement by entering into the Settlement Agreement;

4.     the 2005 August Agreement was
  frustrated;
5.     the 2005 August Agreement was void
  for mistake;
6.     its claim was limitation barred;
  and,
7.     it was not entitled to specific
  performance of the 2005 August Agreement.
VI.


ROMANDALE ALLEGES THRESHOLD
    FLAWS
[97]

Before turning to the issues raised on appeal, I
    will address Romandales contention that the appeals suffer from two threshold
    flaws warranting their dismissal.
[98]

First, Romandale submits that Frams appeal is
    improper because it is not an appeal from the dismissal of its 2007 and 2008
    Actions but, rather, an attempt to appeal from the 2014 and 2016 Actions, to
    which Fram was not a party. It says that only a party to a proceeding below can
    appeal and the fact that multiple actions are ordered to be heard together does
    not alter the distinct identities of the parties.
[99]

Second, Romandale submits that the appeals are
    improper because they are founded on a new, never pleaded or asserted
    interpretation of the 2005 August Agreement: that it gave Kerbel an unfettered
    discretion to cause Romandale to trigger the buy-sell before or after SPA.
    Romandale contends that this interpretation contradicts the one that Kerbel
    argued at trial: that the 2005 August Agreement required that it cause
    Romandale to trigger the buy-sell only after SPA. Romandale concludes on this
    alleged flaw by noting that, had the Appellants raised this new theory in their
    pleadings or at trial, the evidence would have no doubt been different.
    Allowing Fram and/or Kerbel to now advance this theory, Romandale says, would
    be manifestly unfair.
[100]

For the following reasons, I do not accept that either alleged
    threshold flaw justifies dismissing the appeals.
A.

The First Alleged Threshold Flaw
[101]

In my view, the direction that the four actions be tried together
    coupled with the way in which the trial was conducted are a full answer to the
    first alleged flaw.
[102]

In his capacity as the case management judge in these proceedings
    and pursuant to r. 6 of the
Rules of Civil Procedure
, R.R.O. 1990, reg. 194, Dunphy J. exercised his discretion and
    directed that the four actions be tried together in a single trial. He also
    gave directions about matters relating to the conduct of the trial. There can
    be no doubt about the wisdom of these directions.
[103]

Rule 6 provides that where two or more proceedings are pending in
    the court, an order may be made that they be tried together if it appears to
    the court that the proceedings have a common question of law or fact, the
    relief claimed in them arises out of the same transaction or series of
    transactions, or for any other reason. An order under r. 6 is discretionary.
[104]

The purpose behind r. 6 is to avoid a multiplicity of proceedings
    and thereby prevent inconsistent dispositions, protect scarce judicial
    resources, and save expense to the parties. It also safeguards against a
    tactical decision to subject a party or parties to more than one action and,
    therefore, promotes fairness: see
Wood v. Farr Ford Ltd.
, 2008
    CanLII 53848 (Ont. S.C.), at para. 23;
Mohamed Imran Hanif v. Ontario
    College of Pharmacists, Her Majesty the Queen in Right of Ontario and AGO
,
    2013 ONSC 6991, 315 O.A.C. 368 (Div. Ct.), at para. 18.
[105]

It is readily apparent that the preconditions to the application of
    r. 6 were met. The four actions had common questions of law and fact. And, the
    relief claimed in the actions arose out of one or more of the transactions
    relating to the Lands. As the trial judge noted, at para. 23 of the Reasons,
    the direction that the four actions be tried together was made because the
    actions involve all of the current disputes between these three protagonists
    with respect to their interests in the Lands.
[106]

Further, the direction that the actions be tried together fulfilled
    the purpose which underlies r. 6. A single trial avoided a multiplicity of
    proceedings among the parties, prevented inconsistent dispositions relating to
    the Lands, protected scarce judicial resources, and saved the parties expense.
    In my view, it also does away with Romandales contention that Fram was a party
    only to its actions and not to the proceeding below. The four actions were
    tried together and a single judgment was rendered in respect of those actions.
    The fact that the Judgment sets out the relief granted in respect of each
    action separately does not alter the fact that Fram was a party to the
    proceeding below and, thus, has the right to appeal from the Judgment.
[107]

Furthermore, Romandales position on the first alleged threshold
    flaw flies in the face of the way in which these actions proceeded at trial.
    Although the actions were not formally consolidated, the trial of the actions
    was effectively consolidated, with the evidence being used on all issues and
    argument permitted on all issues by all parties.
[108]

At trial, Fram was permitted to lead evidence and make argument on
    the same issues it now raises on appeal. The Reasons show that both Fram and
    Kerbel argued the issues raised in the appeals; the trial judge repeatedly
    refers to Frams position on the issues and she often refers to Frams and
    Kerbels positions interchangeably. Had Romandale wished to take issue with
    Fram making argument and adducing evidence on the issues at trial, it was
    incumbent on Romandale to object at trial, which would have given Fram the
    opportunity to request to be added as a party. Having stayed silent at trial,
    Romandale cannot now take the position that Fram does not have standing on this
    appeal to raise and argue the issues it is pursuing.
[109]

Finally, I note that Romandale did not question the propriety of
    Frams appeal before the case management judge of this court who issued the
    order consolidating the appeals. It does not now lie in Romandales mouth to
    suggest that Fram is not entitled to pursue its appeal.
[110]

For these reasons, Frams appeal is not improper.
B.

The Second Alleged Threshold Flaw
[111]

Romandales
    second alleged threshold flaw is based on the new interpretation of the 2005
    August Agreement it says that Fram and/or Kerbel advance on appeal. In my
    analysis of Issue #1, below, I explain that because of estoppel by convention,
    Romandale is barred from asserting that the buy-sell provisions in the COAs and
    the 2005 August Agreement could be utilized pre-SPA. The trial judge
    interpreted the 2005 August Agreement on the basis that the buy-sell provision
    could be utilized pre-SPA (Reasons, para. 291). That is, she interpreted it in
    a way that is impermissible because of the operation of estoppel by convention.
    Consequently, her interpretation of the 2005 August Agreement cannot stand and
    it is unnecessary to decide Issue #2. The allegedly new interpretation was made
    in the context of Issue #2. As it is unnecessary to decide Issue #2, it is also
    unnecessary to decide whether the Appellants committed the second threshold
    flaw as Romandale alleges.
[112]

Thus,
    the second alleged threshold flaw does not warrant the dismissal of these
    appeals.

VII.

analysis of frams issues
Issue #1:     Did the trial judge err in failing to
    find that Romandale was estopped, based on estoppel by representation or by
    convention, from claiming that the Settlement Agreement breached the 2005
    August Agreement?
A.

The Parties Positions
Fram
[113]

Fram contends that, before 2015, Romandale repeatedly made two
    representations: (1) under the COAs, the buy-sell could not be exercised until
    after SPA; and (2) under the 2005 August Agreement, Kerbel could not cause
    Romandale to trigger the buy-sell in the COAs until after SPA (the 
Representations
). It says that Romandale made the Representations and statements
    consistent with them in: its pleadings; Ms. Roman-Barbers affidavits; its
    solicitors letters, both before and after the Settlement Agreement; and, Ms.
    Roman-Barbers discovery evidence. Fram submits that the Representations formed
    the basis of a shared common understanding among the parties, and para. 5 was
    incorporated into the Settlement Agreement in reliance on the Representations
    and with Romandales full knowledge. It will be recalled that para. 5 of the
    Settlement Agreement states the parties intention that the purchase and sale of
    the Remaining Interest would take place after SPA.
[114]

Fram argues that estoppel by representation and estoppel by
    convention both operate to bar Romandale from reversing its position and
    claiming that para. 5 of the Settlement Agreement is a breach of the 2005
    August Agreement. It contends that the trial judge made a palpable and
    overriding error in refusing to apply estoppel on the basis that Fram and
    Kerbel had not relied on the Representations or, if they did, that their
    reliance was unreasonable.
[115]

In terms of reliance, Fram says that the trial judge erred in
    dismissing its and Kerbels evidence that they relied on the Representations on
    the basis the evidence was simply bald assertions. Fram argues there is
    nothing bald about the change in course of action it and Kerbel took in
    entering into the Settlement Agreement. It contends that as a result of the
    Settlement Agreement, it gave up seeking specific performance of its
    contractual remedies and limited its damages claim against Romandale to 50% of the
    Lands, while Kerbel gave up 50% of its rights under the 2005 August Agreement.
    They did so based on the common understanding  perpetuated by Romandale and
    its lawyers  that post-SPA closing was consistent with the COAs and the 2005
    August Agreement.
[116]

Further, Fram contends, there was nothing unreasonable about it and
    Kerbels reliance on Romandales Representations. Those Representations were
    made in a litigation context  through pleadings, affidavits, solicitors
    letters, and examination testimony. The very purpose of the Representations was
    to allow the courts and other parties to rely on them for notice and the truth
    of their contents. For example, when Ms. Roman-Barber swore her affidavit in
    2007, she intended the court to rely on it in the injunction proceeding. The
    court did exactly that: Forestell J. accepted Ms. Roman-Barbers evidence that
    the original intent of the [2005 August Agreement] was that the sale to
    [Kerbel] of the remaining interest of Romandale in the Lands would not occur
    until some time after SPA. If the court was entitled to rely on Romandales
    representation of its position Fram argues it was surely reasonable for Fram
    and Kerbel to do the same.
[117]

Fram says the trial judge erred in concluding that reliance was
    totally unreasonable in light of Romandales objection to the Settlement
    Agreement, because Romandales objection was not based on the timing of the
    buy-sell.
[118]

In terms of detriment, Fram submits that it would be unjust and
    unfair to permit Romandale to resile from the mutual assumptions or
    Representations. In 2010, Kerbel and it entered into the Settlement Agreement
    with the assistance of a judicial mediation and, at that time, all three
    parties agreed that the 2005 August Agreement would close post-SPA. Five years
    later in 2015, knowing the state of the Settlement Agreement, Romandale
    upended the playing field and changed its position to make an uncontroversial
    term in 2010 (i.e. para. 5) an allegedly repudiatory breach of the 2005 August
    Agreement. This, Fram contends, is unfair because it threatens to take away
    Fram and Kerbels entire economic interest in the 2005 August Agreement.
Kerbel
[119]

On these appeals, Kerbel repeats and relies on Frams submissions on
    estoppel. However, because the trial judge did not deal with estoppel by
    convention, it falls to this court to decide that matter
de novo
. Consequently, I will set out a summary of Kerbels trial position
    on that issue.
[120]

At trial, Kerbel argued that estoppel by convention applied to bar
    Romandale from contending that, because of para. 5 in the Settlement Agreement,
    Kerbel breached the 2005 August Agreement by entering into the Settlement
    Agreement. It referred to the principles governing estoppel by convention, as
    set out in
Ryan v. Moore
, and argued that
    those principles squarely applied.
[121]

Kerbel identified the following as its shared understanding with
    Romandale when they entered into the 2005 August Agreement: because the sale of
    Romandales Remaining Interest would close after SPA, the 2005 August Agreement
    did not breach the COAs between Romandale and Fram (the 
Shared
    Understanding
). Romandale repeatedly expressed the
    Shared Understanding after the 2005 August Agreement was entered into. This
    includes in the fall of 2010, during which time all three parties  Romandale,
    Fram and Kerbel  participated in the judicial mediation that took place in
    respect of the 2007 and 2008 Actions. Kerbel argued that was evidence that all
    three parties held and operated under the Shared Understanding.
[122]

Kerbel also pointed to the fact that even after Romandale resiled
    from the Settlement Agreement, it knew that Fram and Kerbel were continuing to
    discuss settlement on the basis of the Shared Understanding. It was only months
    after the Settlement Agreement was executed that Romandale, for the first time,
    took the position that by entering into the Settlement Agreement, Kerbel
    breached the 2005 August Agreement. Kerbel argued that Romandale was obliged to
    warn it, before the Settlement Agreement was executed, that it intended to
    change its position on the Shared Understanding.
[123]

Kerbel also contended that it would suffer detriment if Romandale
    were allowed to resile from the Shared Assumption. It had already given
    Romandale over $16 million in value under the 2005 August Agreement and,
    through the Settlement Agreement, it compromised its rights under that
    agreement. If Romandale were allowed to resile from the Shared Assumptions,
    Kerbel would lose the opportunity to close its purchase of the Remaining
    Interest under the 2005 August Agreement and develop the Lands.
Romandale
[124]

Romandale says that Frams submissions on estoppel are premised on
    an erroneous oversimplification of the equitable doctrine of convention. It
    contends that, even if there was a shared assumption that the buy-sell could
    not be triggered under the 2005 August Agreement until after SPA, there was no
    transaction or dealing between Romandale and either Fram or Kerbel for which this
    shared assumption formed the basis. In making this argument, Romandale relies
    on para. 4 of
Ryan v. Moore
, in which the
    Supreme Court of Canada states:
Estoppel by convention operates where
the
    parties
have agreed that certain facts
are deemed
    to be true and to form the basis of the transaction into which they are
about
to enter
. If they have acted upon the agreed assumption,
then
,
as regards
that
    transaction
, each is estopped
against the other
from
    questioning the truth of the statement of facts so assumed if it would be
    unjust to allow one to go back on it. [Citations omitted; emphasis as added by
    Romandale.]
[125]

Thus, Romandale argues, neither Fram nor Kerbel can use estoppel by
    convention against Romandale to protect the Settlement Agreement. Because the Settlement
    Agreement was entered into between Fram and Kerbel only, estoppel by convention
    may apply as between them but not [to] Romandale.
[126]

As well, Romandale submits that Frams argument on estoppel starts
    with a misstatement about the nature and character of its position prior to the
    Settlement Agreement. It says that it made no representation upon which Fram or
    Kerbel could rely, nor did the parties have a shared assumption for the
    purposes of estoppel.
[127]

Its position in the 2007 Action was that the 2005 August Agreement
    was not a breach of the COAs. It says that the timing of the triggering of the
    buy-sell was irrelevant to whether Romandale had breached the COAs. To the
    extent Romandale asserted that the buy-sell in the 2005 August Agreement would
    be triggered after SPA, this was just another way of Romandale asserting that
    the buy-sell under the [2005 August Agreement] could only be triggered when it
    was triggerable under s. 5.07 of the COAs, coupled with the mistake the parties
    and counsel had made about s. 5.07. Given that the mistake was of no
    consequence to the matters in dispute in the 2007 Action, it went unnoticed,
    was not something the parties deliberated on, joined issue on, or turned their
    minds to. It did not form the basis of any of their dealings nor were they all
    of the mind that it would govern their future affairs.
[128]

Romandale also argues that the trial judge did not err in concluding
    that Fram and Kerbel had not established reliance. It says that the trial judge
    correctly gave no weight to either Mr. Giannones self-serving assertion of
    reliance in his affidavit evidence or to the recital in the Settlement
    Agreement. It contends that the evidence made clear that Fram and Kerbel were
    not relying on Romandale at all but, rather, crafted the Settlement Agreement
    to carry out a scheme in which they would immediately assume control over the
    development of the Lands for their benefit while putting off their purchase of
    the Lands for at least decades.
[129]

Furthermore, Romandale says, the trial judge did not err in finding
    that any reliance by Fram and Kebel was unreasonable. Just because a statement
    is made in the course of litigation does not mean it can automatically be
    relied on for the purposes of estoppel. It depends on the circumstances. Fram and
    Kerbel cannot have reasonably relied on Romandales assertions regarding the
    timing of the buy-sell in the 2005 August Agreement because that issue was not
    in dispute in the litigation prior to the Settlement Agreement being entered
    into.
[130]

Romandale also points to its objection to the Settlement Agreement,
    arguing that it does not matter whether its objection was based on para. 5 of
    that agreement. Its objection put Fram and Kerbel on notice that it would
    object to any settlement between them. Thus, they proceeded at their own risk.
[131]

Romandale also says that, given their position on these appeals,
    Fram and Kerbel could not have reasonably relied on a shared assumption that
    the buy-sell could only be triggered after SPA when entering into the
    Settlement Agreement. Their position on appeal is that Kerbel had an unfettered
    discretion to trigger the buy-sell in the 2005 August Agreement either before
    or after SPA. Thus, Romandale contends, they cannot be heard to say it was
    reasonable for them to rely on a clearly wrong and now abandoned
    interpretation.
[132]

Romandale also says Fram has not established that it would be unjust
    to allow it to correct its mistake or that Fram and Kerbel suffered any
    detriment. It cannot be unjust for a party to correct a mistake that is patently
    obvious on the express words of the contracts, to which all parties had access.
    Furthermore, Fram and Kerbels entry into the Settlement Agreement was a
    deliberate and inequitable scheme to tie up and control the Lands to
    Romandales exclusion while putting off their purchase for decades.
[133]

Moreover, Romandale submits that neither Fram nor Kerbel suffered
    any relevant detriment in entering into the Settlement Agreement. To the extent
    Fram suffered detriment by giving up 50% of its claim against Romandale, that
    detriment is moot because Frams claims in the 2007 and 2008 Actions were
    dismissed and are not being appealed. And, Kerbel presented no evidence of
    detriment. Romandale says that granting Fram an option to buy 50% of the Lands
    is not detriment: Kerbel granted the option in exchange for Fram giving up its
    claims against Kerbel. It was Kerbels choice to assign some litigation risk to
    being sued by Fram and to mitigate that risk by striking a deal with Fram. That
    Fram ultimately lost and Kerbel paid for nothing is irrelevant.
B.

Estoppel by Representation
(1)

Governing Legal Principles
[134]

In
Canadian Superior Oil Ltd. v. Paddon-Hughes
    Development Co.
, [1970] S.C.R. 932, at pp. 939-40, the
    Supreme Court stated that the essential factors giving rise to estoppel by
    representation are:
(1)     a representation or
    conduct amounting to a representation intended to induce a course of conduct on
    the part of the person to whom the representation is made;
(2)     an act or omission
    resulting from the representation, whether actual or by conduct, by the person
    to whom the representation is made; and
(3)     detriment to such person
    as a consequence of the act or omission.
[135]

More recently in
Ryan v. Moore
, at
    para. 5, the Supreme Court referred to its much earlier decision in
Page
    v. Austin
(1884), 10 S.C.R. 132, at para. 164, to
    describe the doctrine of estoppel by representation as follows:
Estoppel by representation requires a positive
    representation made by the party whom it is sought to bind, with the intention
    that it shall be acted on by the party with whom he or she is dealing, the
    latter having so acted upon it as to make it inequitable that the party making
    the representation should be permitted to dispute its truth, or do anything
    inconsistent with it.
(2)

Application of the Law
[136]

I agree with the trial judge that Fram and Kerbel fail in their
    claim of estoppel by representation. However, I do so for different reasons
    than those of the trial judge.
[137]

It will be recalled that, at trial, Fram and Kerbel argued that they
    entered into the Settlement Agreement in reliance on Romandales representation
    that the 2005 August Agreement was valid and that the buy-sell provision in it
    was to be performed or completed after SPA. The trial judge concluded that
    estoppel by representation was not made out because Fram and Kerbel had not
    proven that they relied on the representation and, if they had, their reliance
    was unreasonable. That is, the trial judge concluded that Fram and Kerbel
    failed to prove the second essential factor giving rise to estoppel by
    representation.
[138]

In my view, however, Fram and Kerbel fail on the first essential
    factor giving rise to estoppel by representation.
[139]

Canadian
    Superior Oil Ltd.
describes the first essential factor as
    a representation intended to induce a course of conduct on the part of the
    person to whom the representation was made. In
Ryan v. Moore
, this factor is expressed as the requirement that a positive
    representation be made with the intention that it shall be acted on by the
    party to whom the representation is made. On the facts, Romandale did not make
    a representation with the intention that Fram and Kerbel should act on it.
[140]

In the fall of 2010, Fram, Kerbel, and Romandale were attempting to
    settle the 2007 and 2008 Actions. After reaching a settlement agreement in
    principle, the parties continued to negotiate the terms of the settlement.
    During that process, Fram and Kerbel were made aware that Romandale continued to
    maintain its position that the 2005 August Agreement was valid and the buy-sell
    provisions in it and in the COAs could not be utilized until SPA had been
    achieved for the Lands.
[141]

However, knowledge of Romandales position and the fact its position
    remained unchanged from the time that it entered into the 2005 August Agreement
    until December 2010, when Fram and Kerbel entered into the Settlement
    Agreement, is not tantamount to Romandale representing that it would not change
    its position going forward.
[142]

Further
    and in any event, Fram and Kerbels knowledge of Romandales position does not
    meet the requirement in the first essential element that Romandale made a
    representation of its position
with the intention of inducing
Fram and Kerbel to enter into the Settlement Agreement or otherwise
    act on it.
[143]

Consequently,
    Fram and Kerbel failed to prove the first essential factor giving rise to
    estoppel by representation. For these reasons, I agree with the trial judge
    that estoppel by representation was not made out.
C.

Estoppel by Convention
(1)

Governing Legal Principles
[144]

At para. 59 of
Ryan v. Moore
, the
    Supreme Court states that the following criteria form the basis of the doctrine
    of estoppel by convention:
(1)     The parties dealings
    must have been based on a shared assumption of fact or law: estoppel requires
    manifest representation by statement or conduct creating a mutual assumption.
    Nevertheless, estoppel can arise out of
silence
(impliedly). [Emphasis
    in original.]
(2)     A party must have
    conducted itself, i.e. acted, in reliance on such shared assumption, its
    actions resulting in a change of its legal position.
(3)     It must also be unjust or
    unfair to allow one of the parties to resile or depart from the common
    assumption. The party seeking to establish estoppel therefore has to prove that
    detriment will be suffered if the other party is allowed to resile from the
    assumption since there has been a change from the presumed position.
[145]

On the first criterion  which the Court refers to as Assumption
    Shared and Communicated  the Court provides the following additional
    guidance, at paras. 61-62:
The crucial requirement for estoppel by convention, which
    distinguishes it from the other types of estoppel, is that at the material time
    both parties must be of a like mind. The court must determine what state of
    affairs the parties have accepted, and decide whether there is sufficient
    certainty and clarity in the terms of the convention to give rise to any
    enforceable equity.
While it may not be necessary that the assumption by the party
    raising estoppel be created or encouraged by the estopped party, it must be
    shared in the sense that each is aware of the assumption of the other. Mutual
    assent is what distinguishes the estoppel by convention from other types of estoppel.
     Thus, it is not enough that each of the two parties acts on an assumption not
    communicated to the other. Further, the estopped party must have, at the very
    least, communicated to the other that he or she is indeed sharing the other
    partys (
ex hypothesi
) mistaken assumption. [Citations omitted.]
[146]

The court also offers further guidance on the second and third
    criteria, namely, reliance and detriment. It notes that the requirement of
    detrimental reliance lies at the heart of true estoppel and that detrimental
    reliance encompasses two distinct, but interrelated concepts: reliance and
    detriment: at paras. 68-69.
[147]

Reliance requires a finding that the party seeking to establish the
    estoppel changed its course of conduct by acting, or abstaining from acting, in
    reliance upon the assumption, thereby altering its legal position: at para. 69.
[148]

In terms of detriment, the Court offers this guidance, at para. 73
    of
Ryan v. Moore
. Once the party seeking to
    establish estoppel shows that it acted on a shared assumption, it must prove
    detriment. For the plea to succeed, it must be unjust or unfair to allow a
    party to resile from the common assumption. A change from the presumed legal
    position will facilitate the establishment of detriment because there is an
    element of injustice inherent within the concept of the shared assumption  one
    party has acted unjustly in allowing the belief or expectation to cross the
    line and arise in the others mind: at para. 73, citing Sean Wilken,
Wilken
    and Villiers: The Law of Waiver, Variation and Estoppel
,
    2nd ed. (Oxford: Oxford University Press, 2002), at p. 228.
(2)

Application of the Law

[149]

Unlike estoppel by representation, I must approach the issue of
    estoppel by convention on a
de novo

basis. I
    do so because, while the parties expressly raised and argued the issue of
    estoppel by convention at trial, the trial judge did not address it.
[150]

I will address each of the three criteria that form the basis of
    estoppel by convention: (a) assumption shared and communicated; (b) reliance;
    and (c) detriment.
(a)

Assumption Shared and Communicated
[151]

The first criterion for estoppel by convention requires that the
    parties dealings were based on a shared assumption of fact or law:
Ryan
    v. Moore
, at

para. 59. Thus, I must determine what state of affairs the parties
    accepted and decide whether there was sufficient certainty and clarity in the
    shared assumptions to give rise to an enforceable equity:
Ryan v.
    Moore
, at para. 61.
[152]

I deal first with whether the alleged shared assumptions are
    sufficiently certain and clear.
[153]

In the fall of 2010, when Fram, Kerbel, and Romandale were trying to
    settle the 2007 and 2008 Actions, the parties based their dealings on two
    assumptions: (1) the buy-sell provision in the COAs could not be triggered
    until after SPA had been achieved for the Lands;
[9]

and (2) under the 2005 August Agreement, Kerbel could not cause
    Romandale to trigger the buy-sell under the COAs until after SPA
[10]

(the 
Shared Assumptions
).
    There is no ambiguity or lack of clarity about the Shared Assumptions: they
    have sufficient certainty and clarity to satisfy that requirement in the first
    criterion of estoppel by convention.
[11]

[154]

It is worth recalling at this point that I did not find statements
    to the same effect as the Shared Assumptions to amount to representations
    within the meaning of estoppel by representation. That is because a common or
    shared assumption, as that term is used in estoppel by convention, is not the
    same thing as a representation. As the Supreme Court explained, at para. 62 of
Ryan
    v. Moore
, an assumption need not be created or encouraged
    by the estopped party: it must simply be shared, in the sense that each party
    is aware that the assumption is held by the other(s). As the Supreme Court
    stated, Mutual assent is what distinguishes the estoppel by convention from
    other types of estoppel.
[155]

Having found the Shared Assumptions were sufficiently certain and
    clear, I must now determine whether the parties were of a like mind. In
    making this determination, I must consider whether the three parties: (1) held
    the Shared Assumptions at the material times; (2) communicated to the others
    that they held the Shared Assumptions; and (3) based their dealings on them:
Ryan
    v. Moore
,
at paras. 61-62. In my view, the following
    documents establish these three matters. Thus, the first criterion for estoppel
    by convention is met.
(i)

The Settlement Agreement and Drafts Leading to It
[156]

The final Settlement Agreement is clear evidence that Fram and
    Kerbel held the Shared Assumptions, communicated that to one another, and based
    their dealings on them. This is evident from the first, second, and sixth
    preambles, and para. 5 of the Settlement Agreement:
·

The first preamble recites that Fram and Romandale are co-owners
    of the Lands and parties to the COAs and, under the COAs, each has a buy-sell
    right in respect of the others interest but that right may only be exercised
    after [SPA] has been obtained for the Lands.
·

The second preamble recites that Romandale and Kerbel are parties
    to the 2005 August Agreement under which Romandale agreed to sell to Kerbel its
    Remaining Interest at such time as Romandale could exercise its buy-sell
    rights under the Buy-Sell Provisions of the [COAs].
·

The sixth preamble recites that Fram and Kerbel have agreed to
    settlement so that the right of [Kerbel] to acquire Romandales Remaining
    Interest in the Lands pursuant to the [2005 August Agreement] may be exercised
    60 days after [SPA] for the Lands is obtained.
·

Paragraph 5 provides that [i]t is the intention of [Fram and
    Kerbel] that the purchase and sale of Romandales Remaining Interest in the
    Lands pursuant to these Minutes of Settlement will take place after [SPA] for
    the Lands has been obtained.
[157]

Though Romandale was not a party to the final Settlement Agreement,
    its conduct in the fall of 2010 up to and including when Fram and Kerbel
    executed the Settlement Agreement demonstrates that it too held the Shared
    Assumptions, communicated that to Fram and Kerbel, and based its dealings with
    them on the Shared Assumptions.
[158]

It will be recalled that in September of 2010, the three parties
    came to an agreement in principle at the judicial mediation. Based on the
    agreement in principle, counsel for Fram prepared very preliminary draft
    minutes of settlement and sent the draft to counsel for Romandale under cover
    of a letter dated September 8, 2010. The preliminary draft was short; it
    consisted of four preambles and seven paragraphs. The fourth preamble and para.
    6 of that draft reflect the Shared Assumptions.
·

The fourth preamble reads as follows:
WHEREAS
the parties have agreed to settlement
    so that the right of [Kerbel] to acquire Romandales Remaining Interest in the
    Lands pursuant to the [2005 August Agreement] shall be exercised 60 days after
    [SPA] for the Lands is obtained
·

Paragraph 6 provides:
[Fram] does not by this agreement consent to the transaction
    referred to in paragraph 2 of the [2005 August Agreement]. Romandale hereby
    acknowledges that this settlement agreement does not constitute [Frams
    consent]  and that it is the intention of the parties that the purchase and
    sale of Romandales entire Remaining Interest in the Lands pursuant to these
    Minutes of Settlement will take place 60 days after [SPA] for the Lands has
    been obtained.
[159]

After
    the preliminary draft was circulated, counsel for the three parties continued
    to exchange draft settlement agreements and discuss other possible provisions
    that might be included.
[160]

In a letter dated September 24, 2010, counsel for Romandale wrote to
    counsel for Kerbel and Fram and set out the areas on which the parties were in
    agreement, including [t]hat the sale of each parcel will take place when that
    particular parcel achieves Secondary Planning Approval.
[161]

Under cover of a letter dated September 29, 2010, counsel for Fram
    sent Romandales counsel (with a copy to Kerbels counsel) a proposed final
    draft. The letter stated that if the draft was acceptable, the draft stamp
    would be removed and it would be circulated for signature. The proposed final
    draft settlement agreement contained essentially the same fourth preamble as
    that in the preliminary draft (set out above) and, of a total of seven
    paragraphs, three reflect the Shared Assumptions.
·

Paragraph 1 provided that the injunction ordered by Forestell J.
    July 26, 2007 shall continue in respect of each of the two parcels comprising
    the Lands  until 60 days after [SPA] has been granted in respect of that
    particular parcel of the Lands.
·

Paragraph 4 provided that Fram Kerbel and Romandale shall
    complete the sale of the entire Remaining Interest of Romandale in the Lands on
    the terms described in paragraph 2 of the [2005 August Agreement], 60 days
    after [SPA] has been obtained for each of the two parcels comprising the
    Lands.
·

Paragraph 7 provided that 
[t]he parties
    hereby acknowledge
that in making these minutes of settlement, it is
their
    common intention that the purchase and sale of the Romandales Remaining
    Interest in the Lands pursuant to these Minutes of Settlement shall take place
in respect of each of the two parcels of the Lands
after [SPA] for each
    parcel has been obtained
,
and that the closing of the purchase and
    sale for each parcel shall take place 60 days after [SPA] for that particular
    parcel of the Lands has been obtained. [Emphasis added.]
[162]

In response, by letter dated September 30, 2010, counsel for
    Romandale provided comments on the draft and asked that the final settlement
    agreement include, among other things, a provision explicitly requiring the
    parties to do nothing to hinder or delay the obtaining of SPA for the Lands. He
    wrote, As we were specifically advised at the mediation that this would not be
    a problem, the wording should be inserted in the Minutes. As well, counsel for
    Romandale asked that a drop-dead date for the contemplated sale of the Lands
    be inserted in case the Lands never achieved SPA:
At present, there exists the possibility that one or both
    parcels may not receive [SPA]. Such a failure to address that point may call
    into question the validity of the agreements or at least pose a practical
    problem for the parties if [SPA] is not achieved (at least in our lifetimes)
    for either of the parcels.
[163]

The parties continued to communicate about the draft settlement
    agreement for some weeks. In October 2010, Romandale began taking issue with the
    draft agreements, which I discuss in more detail below. Ultimately, in a letter
    dated November 12, 2010, Frams counsel wrote to Romandales counsel (with a
    copy to Kerbels counsel), stating that it appeared Romandale was resiling from
    the settlement agreement so steps would be taken to reschedule the trial of the
    2007 and 2008 Actions. Frams counsel enclosed a copy of the draft settlement
    agreement that Fram and Kerbel intended to enter into. The enclosed agreement
    was substantially the same as the final Settlement Agreement, including the
    provisions that reflected the Shared Assumptions.
[164]

Never once during the judicial mediation or in the period that
    followed leading up to the Settlement Agreement  despite the many
    communications among counsel which reflected the Shared Assumptions  did
    Romandale ever object to the Shared Assumptions or the terms in the drafts that
    reflected them. On the contrary, during that period, Romandale expressly
    affirmed the parties shared understanding that the sale and purchase of
    Romandales Remaining Interest would occur after SPA  as, for example, in its
    counsels letters of September 24 and September 30, 2010, described above.
[165]

In my view, what transpired among the three parties during this
    period alone satisfies the requirements of the first criterion for estoppel by
    convention. The following documents reinforce this conclusion.
(ii)

Letters between Counsel
[166]

In a letter dated September 22, 2009, Romandales corporate counsel
    wrote to Kerbels counsel to address the matter of participation in the NMLG.
    He stated that, under the 2005 August Agreement, Kerbel was to act as
    Romandales agent and attorney for the purposes of taking the steps necessary
    to proceed to [SPA] and thereby trigger the buy-sell rights under the [COAs].
    This is communication by Romandale to Kerbel of its belief in the Shared
    Assumptions.
[167]

Romandale also communicated its belief in the Shared Assumptions to
    Fram. By letter dated January 28, 2011, counsel for Romandale wrote to counsel
    for Fram stating:
[Romandale] was and is the registered owner of 90% of the
    [Lands]. It conditionally sold those lands to [Kerbel] by way of an agreement
    dated August 2005. The condition could only be satisfied by either a) secondary
    plan approval (which has not been achieved); b) or the consent of [Fram] to the
    transaction.
[168]

This letter was sent more than a month after Fram and Kerbel entered
    into the Settlement Agreement. It demonstrates that Romandale continued to
    believe the Shared Assumptions even after the Settlement Agreement was
    executed.
(iii)

Pleadings and Evidence at Trial
[169]

The pleadings and evidence at trial further demonstrate that all
    three parties held the Shared Assumptions in the relevant time period. In
    addition, they show that each party made manifest representations of its belief
    in the Shared Assumptions and communicated that to the other parties.
[170]

At trial, Fram and Kerbels positions rested on the Shared
    Assumptions. Their pleadings  including Frams Fresh as Amended Reply and
    Kerbels Statement of Defence and Crossclaim in the 2007 Action  reflect their
    shared belief that SPA was required before the buy-sell provision in the COAs
    and the 2005 August Agreement could be triggered.
[171]

Romandales Statement of Defence in the 2007 Action (before it was
    amended in 2015), its Statement of Defence in the 2008 Action, and its Notice
    of Motion to stay the 2007 Action all explicitly stated that the buy-sell
    provision in the 2005 August Agreement could not be triggered until after SPA
    was obtained for the Lands.
[172]

Furthermore, Ms. Roman-Barbers affidavits sworn July 11, 2007, and
    August 23, 2007, and her discovery evidence in February 2009 communicated  to
    Fram, Kerbel, and beyond  her (and therefore, Romandales) belief that the
    sale of the Remaining Interest under the 2005 August Agreement was conditional
    on SPA being obtained for the Lands.
(b)

Reliance
[173]

Having established that the first criterion for estoppel by
    convention is met, I must now determine whether Fram and Kerbel acted in
    reliance on the Shared Assumptions. For the purpose of estoppel by convention,
    reliance requires a finding that the party seeking to establish estoppel
    changed its course of conduct by acting (or abstaining from acting) in reliance
    on the shared assumption, thereby altering its legal position:
Ryan
    v. Moore
, at para. 69.
[174]

In my view, Fram and Kerbel satisfy the reliance criterion. Paragraph
    5 of the Settlement Agreement is based on the Shared Assumptions. Fram and
    Kerbel entered into the Settlement Agreement in reliance on the Shared
    Assumptions. As a result of having entered into the Settlement Agreement, their
    respective legal positions under the COAs and the 2005 August Agreement were
    altered. An overview of the alteration to their legal positions that resulted
    from having entered into the Settlement Agreement is as follows.
[175]

Before entering into the Settlement Agreement, Frams legal position
    in respect of the Lands was governed by the COAs between it and Romandale. In
    the 2007 Action, it claimed that Romandale had breached the prohibition against
    Disposition in the COAs by entering into the 2005 August Agreement. If Fram
    succeeded in its claim, Fram was entitled to, among other things: a declaration
    that the offending agreement (i.e., the 2005 August Agreement) was void under
    s. 5.03 of the COAs; bring proceedings for specific performance under s.
    6.02(b) of the COAs; and purchase Romandales interest in the Lands at 95% of
    their fair market value under s. 6.02(d) of the COAs. As a result of entering
    into the Settlement Agreement, Fram gave up those rights: pursuant to s. 1 of
    the Settlement Agreement, Fram agreed that it would not seek a declaration that
    the 2005 August Agreement was void and that it would limit its damages claims
    against Romandale to 50% of the Lands.
[176]

Before entering into the Settlement Agreement, Kerbels legal
    position in respect of the Lands was governed by the 2005 August Agreement
    between it and Romandale. The Conditional Provision in that agreement gave
    Kerbel the opportunity to acquire 100% ownership of the Lands. After entering
    into the Settlement Agreement, that changed. Pursuant to para. 2 of the
    Settlement Agreement, if Kerbel acquired ownership of the Lands, Kerbel was
    obliged  at Frams option  to allow Fram to acquire a 50% undivided interest
    in the Lands on the same terms and conditions as Kerbel had acquired the
    Remaining Interest from Romandale.
[177]

Thus, it can be seen, Fram and Kerbels legal positions were altered
    as a result of relying on the Shared Assumptions.
[178]

I do not view my determination that Fram and Kerbel meet the
    reliance criterion for estoppel by convention as running afoul of the trial
    judges determination of no reliance on the part of Fram and Kerbel or, if
    there was reliance, it was unreasonable. That is because the trial judge made
    her reliance determination based on the legal principles governing estoppel by
    representation whereas I decided reliance in accordance with the legal
    principles governing estoppel by convention. The two legal frameworks are
    different, the test for reliance in each is different, and, therefore, the
    determination of reliance under each may be different without being inconsistent.
[179]

However, if, as Romandale urges, the trial judges determination on
    reliance is a finding of fact for which deference must be shown, I would set it
    aside on the basis that it is the result of palpable and overriding error.
[180]

On the evidence set out above, it is clear that Fram and Kerbel
    relied on the Shared Assumptions in entering into the Settlement Agreement. A
    plain reading of the Settlement Agreement alone shows that. A contrary finding
     namely, that Fram and Kerbel did not rely on the Shared Assumptions in
    entering into the Settlement Agreement  is simply not available on the
    evidence. Thus, such a finding would be the result of palpable and overriding
    error.
[181]

The trial judge also made a palpable and overriding error in
    determining that, if there was reliance, it was unreasonable. In making this
    determination, the trial judge accepted that Romandale put Fram and Kerbel on
    notice that it objected to any settlement agreement between them in respect of
    the Lands without its consent: Reasons, at para. 129. Romandale says that it
    objected clearly and unequivocally to the Settlement Agreement including
    Fram and Kerbel deferring the closing of the 2005 August Agreement by decades
    rather than carrying it out immediately in 2010, as Romandale expressly asked
    them to do. In support of this argument, it relies on its letter to Fram,
    dated October 25, 2010.
[182]

I do not agree. The relevant portions of Romandales letter of
    October 25, 2010, are as follows:
More importantly, your correspondence only confirms our
    clients belief that the relationship contemplated by the proposed Minutes of
    Settlement cannot work
. Simply put, the benefit of the
    August 2005 Agreement cannot be assigned in whole or in part to your client
    without our clients consent
. In order to give that consent, not only
    would real estate counsel have to draft extensive documentation, but
there remain at present simply some points to which our client
    cannot agree, in particular, the registration of the injunction against title
    to the lands for which Romandale continues to hold legal title; and arbitration
    over a process which Romandale has effectively controlled without objection
    from any party for 5 years now
.
To avoid these problems, your client,
    together with Mr. Kerbel, can formulate an offer to purchase our clients
    interest in the lands immediately
. Failing that, we should appear before
    Justice Moore and request a trial date to adjudicate all issues.
If you and [counsel for Kerbel] believe that a settlement of the
    August 2005 Agreement can be effected without the consent of the 90% land
    holder, then that issue will likely also form the subject matter of the trial
.
    [Emphasis added.]
[183]

Nothing in this letter suggests that Romandale objected to the
    Settlement Agreement because of para. 5. That is, there is nothing in the
    letter to indicate that Romandale objected to the expressed intention in para.
    5 that the purchase and sale of the Remaining Interest was to take place after
    SPA. Instead, the letter shows that Romandale resiled from the Settlement
    Agreement over matters such as registration of the injunction on title to the
    Lands and arbitration.
[184]

Further, Romandales call to Fram and Kerbel to formulate an offer
    to purchase [Romandales] interest in the lands immediately does not indicate
    that Romandale believed the buy-sell provisions in the COAs and the 2005 August
    Agreement could be triggered at any time, pre or post-SPA. The parties all knew
    Fram could consent to the sale of Romandales Remaining Interest before SPA
    and, with that consent, the purchase and sale of Romandales Remaining Interest
    could proceed immediately. Romandales call to Fram and Kerbel to make an
    immediate purchase is merely a request that the parties proceed with the sale
    under Frams consent. It says nothing about Romandales assumptions regarding
    the buy-sell provisions.
[185]

Until 2015, Romandale never retracted its communications on the
    Shared Assumptions and never purported to. In fact, as I describe above,
    Romandale confirmed in writing its belief in the Shared Assumptions in a letter
    in January 2011 
after
Fram and Kerbel executed the
    Settlement Agreement  when it again made manifest that the sale of its
    Remaining Interest under the 2005 August Agreement could not take place until
    after SPA or with Frams consent.
[186]

As Romandale did not communicate to Fram and Kerbel that it no
    longer held the Shared Assumptions until 2015, in the circumstances of this
    case, it was not unreasonable for Fram and Kerbel to rely on the Shared
    Assumptions when they entered into the Settlement Agreement in 2010. As Fram
    points out, the court relied on Romandales assertions to the same effect in
    the injunction proceeding. In light of that, it can scarcely be said to be
    unreasonable that Fram and Kerbel also relied on them.
(c)

Detriment
[187]

The third criterion for establishing estoppel by convention is
    detriment. As the parties seeking to establish estoppel by convention, Fram and
    Kerbel must prove that if Romandale were allowed to resile from the Shared
    Assumptions, they would suffer detriment since there had been a change from
    their presumed legal positions:
Ryan v. Moore
,
    at paras. 59, 69. To succeed in proving detriment, Fram and Kerbel must show
    that it would be unjust or unfair to allow Romandale to resile from the Shared
    Assumptions:
Ryan v. Moore
, at paras. 59, 73
    and 74. A change from their presumed legal positions will facilitate the
    establishment of detriment:
Ryan v. Moore
,

at para. 73.
[188]

As I have explained, Fram and Kerbel entered into the Settlement
    Agreement in reliance on the Shared Assumptions and thereby altered their legal
    positions under the COAs and the 2005 August Agreement respectively. While the
    change in their legal positions facilitates the establishment of detriment, it
    remains their burden to show that it would be unjust or unfair to allow
    Romandale to resile from the Shared Assumptions:
Ryan v. Moore
, at para. 74. One need only consider what transpired at the trial
    below and the resulting Judgment to find they satisfy that burden.
[189]

Paragraph 5 of the Settlement Agreement reflects the parties Shared
    Assumptions that the purchase and sale of Romandales Remaining Interest would
    take place after SPA had been obtained. The trial judge accepted Romandales
    submission that para. 5 was a breach of the 2005 August Agreement on Kerbels
    part. In so doing, the trial judge permitted Romandale to resile from the
    Shared Assumptions. Having determined that Kerbel was in breach, the trial judge
    declared the 2005 August Agreement at an end and excused Romandale from
    performance of its obligations under that agreement. Thus, it can be seen, if
    Romandale had not been permitted to resile from the Shared Assumptions, Kerbel
    would not have been found to have been in breach of the 2005 August Agreement
    and it would not have lost the right to compel Romandale to fulfill its
    obligations under that agreement. In the circumstances of this case, it was
    unjust and unfair to Kerbel that Romandale was permitted to resile from the
    Shared Assumptions.
[190]

It was also unfair and unjust to Fram. In accordance with the
    Settlement Agreement, Fram discontinued its claims against Kerbel in the 2007
    and 2008 Actions and gave up significant claims against Romandale under the
    COAs. However, the
quid pro quo

under the
    Settlement Agreement was that Fram would have the opportunity to acquire 50%
    ownership of the Lands once Kerbel bought Romandales Remaining Interest.
    Because Romandale was permitted to resile from the Shared Assumptions and was
    consequently excused from performance under the 2005 August Agreement,
    Romandale was no longer obliged to sell its Remaining Interest to Kerbel. Thus,
    Fram gave up its claims for nothing.
[191]

Accordingly, in my view, it would be unjust and unfair to allow
    Romandale to resile from the Shared Assumptions. In reaching this conclusion, I
    reject Romandales submission to the contrary.
[192]

Romandale makes two arguments in support of its submission that it
    would be neither unjust nor unfair to allow it to resile. First, it argues that
    it cannot be unjust or unfair that it be allowed to correct the mistaken Shared
    Assumptions because the mistake as to the timing of the buy-sell provisions was
    patently obvious on the express words of the contracts to which all parties
    had access. Second, it argues that Fram and Kerbels entry into the Settlement
    Agreement was a deliberate and inequitable scheme to tie up and control the
    Lands (to Romandales exclusion) while putting off their purchase for at least
    decades.
[193]

Respectfully, Romandales first argument misunderstands the
    detriment criterion in the doctrine of estoppel by convention. Detriment is not
    about the correctness of the Shared Assumptions or how obviously incorrect they
    might have been. Detriment is a question of whether it would be unjust or
    unfair to allow Romandale to resile from the Shared Assumptions  regardless of
    whether the Shared Assumptions were correct or were patently incorrect.
[194]

Romandales second argument is that if it was not permitted to
    resile, Fram and Kerbel would get away with their deliberate and inequitable
    scheme to tie up the Lands for decades without having to pay for them. This
    argument does not withstand scrutiny. Before trial, Fram gave its consent to
    Kerbels purchase of Romandales Remaining Interest. Accordingly, had Romandale
    wished, it could have completed the sale of its Remaining Interest to Kerbel
    right then. In short, by the time of trial, there was no threat that, as a
    result of the Settlement Agreement, the Lands would be tied up for decades
    without Romandale being paid for its Remaining Interest in them.
[195]

At all material times during its dealings with Fram and Kerbel,
    Romandale manifestly represented to Fram and Kerbel that it held the Shared
    Assumptions. Fram and Kerbel then relied on the Shared Assumptions and entered
    into the Settlement Agreement. As a result of that, Fram and Kerbels legal
    positions were altered. In the circumstances, it would be unjust and unfair to
    permit Romandale to resile from the Shared Assumptions. Consequently, Fram and
    Kerbel have met their burden on the detriment criterion.
(d)

Romandales Overriding Submission on Estoppel by Convention
[196]

Before finally determining whether estoppel by convention applies, I
    must address Romandales overriding submission that Fram and Kerbel cannot
    avail themselves of the doctrine because there was no contract between it and
    either Fram or Kerbel based on the Shared Assumptions  only Fram and Kerbel
    were parties to the Settlement Agreement.
[197]

It will be recalled that Romandale relies on para. 4 of
Ryan
    v. Moore
for this submission. For ease of reference, I
    set out para. 4 again, below.
Estoppel by convention operates where the parties have agreed
    that certain facts
are deemed to be true and to form the
    basis of the transaction into which they are
about
to enter
. If
    they have acted upon the agreed assumption, then,
as
    regards
that transaction
, each is estopped
against the other
from questioning the truth of the statement of facts so assumed if it would be
    unjust to allow one to go back on it. [Citations omitted; emphasis as added by
    Romandale.]
[198]

I accept that the language in para. 4 of
Ryan v. Moore
may be seen as suggestive of a contractual relationship among the
    parties. However, the facts of
Ryan v. Moore
show that the doctrine of estoppel by convention is not limited to such
    situations.
[199]

Ryan
    v. Moore

concerned a three-vehicle accident that took
    place in 1997. Peter Ryan (the Plaintiff) and Rex Gilbert Moore were two of
    the drivers involved in the accident. Soon after the accident happened, the
    Plaintiff began corresponding with the adjuster assigned by Mr. Moores
    insurer.
[200]

Mr. Moore died in 1998 from causes unrelated to the accident.
    Letters of Administration were granted to his administratrix in February 1999.
[201]

The Plaintiff started a personal injury action against Mr. Moore in
    October 1999. That claim was within the two-year limitation period in the
Limitations
    Act
, S.N.L. 1995, c. L-16.1.
[202]

The insurer learned of Mr. Moores death in May 2000; the Plaintiff
    learned of it in September 2000. In November 2000, the insurer refused to
    settle the Plaintiffs claim on the basis it was outside the limitation period
    in the
Survival of Actions Act
, R.S.N.L
.
1990, s. S-32, which imposes a six-month limitation period
    from the granting of Letters of Administration. The insurer then applied to
    have the action struck as being out of time. The trial judge dismissed the
    application.
[203]

An appeal and cross-appeal were taken to the Newfoundland Court of
    Appeal. A majority of the Court of Appeal held that estoppel by convention
    barred the insurer and Mr. Moores estate from pleading that Mr. Moore died in
    1998 or that Letters of Administration were granted in February 1999. Thus,
    they could not invoke the shorter limitation period in the
Survival
    of Actions Act
.
[204]

The insurer and Mr. Moores estate appealed to the Supreme Court.
    The Supreme Court allowed the appeal and struck the Plaintiffs statement of
    claim because it had been brought outside the six-month period prescribed by
    the
Survival of Actions Act
.
[205]

The Supreme Court held that the doctrine of estoppel by convention
    had not been made out. It found that none of the letters exchanged by the
    Plaintiff and the insurer with respect to the Plaintiffs personal injury claim
    proved the existence of a common assumption. The mere fact that communications
    occurred between the parties did not establish that they assumed that Mr. Moore
    was alive. And, the fact the parties were conferring without regard to the
    limitation period did not establish a shared assumption that the limitation
    period defence would not be relied on. There was never any discussion by the
    Plaintiff of the limitation period.
[206]

Thus, while the Supreme Court in
Ryan v. Moore
refers to the Plaintiff, the insurer, and Mr. Moores estate as
    parties, they were not parties to a contract. Despite that, the Supreme Court
    considered whether the doctrine of estoppel by convention operated. In fact,
    estoppel by convention was the central legal point on which the appeal hinged.
    Further, when the Supreme Court concluded that the doctrine was inapplicable,
    it made no mention of the absence of a contract among the parties. Rather, the
    Court found the doctrine to be inapplicable because the correspondence among
    the parties did not prove the existence of a shared assumption among the
    parties. It found that such things as the subject line in the correspondence,
    which read Your Insured: Rex Moore, lacked sufficient clarity and certainty
    to demonstrate a common belief that he was alive. It further found that even if
    one could conclude that there was a common assumption, the Plaintiff had never
    communicated that he shared it.
[207]

Accordingly, the applicability of the doctrine of estoppel by
    convention does not depend on the parties having entered into a contract with
    one another. Rather, as the Supreme Court states in para. 59 of
Ryan
    v. Moore
,
the question is whether the parties dealings
    were based on a shared assumption of fact or law. In this case, while Romandale
    was not a party to the Settlement Agreement, it was actively involved in the
    negotiations leading up to that agreement. As I explain above, during that
    period, the parties correspondence (among other things) clearly demonstrate
    that their dealings were based on the Shared Assumptions.
(e)

Conclusion on Estoppel by Convention
[208]

In the judicial mediation in September 2010, Fram, Kerbel, and
    Romandale communicated to one another their common belief in the Shared
    Assumptions. They reached a settlement agreement in principle which reflected
    those assumptions. The Shared Assumptions were manifest in the preliminary
    draft settlement agreement and all the drafts that followed through to the
    final Settlement Agreement. Romandale participated in ongoing negotiations of
    the Settlement Agreement and received copies of all the drafts, even after it
    resiled from that agreement. Never once during that process did Romandale
    dispute the validity of the Shared Assumptions. Rather, at several points it
    expressly reiterated the Shared Assumptions in communications it sent to Fram
    and Kerbel.
[209]

When Fram and Kerbel entered into the Settlement Agreement, they
    relied on their unqualified understanding that all three parties and their
    counsel held the Shared Assumptions. As a result of having entered into the
    Settlement Agreement, their legal positions were altered. Allowing Romandale to
    resile from the Shared Assumptions years after the Settlement Agreement was
    concluded would cause detriment to both Fram and Kerbel.
[210]

As Fram and Kerbel satisfied the three criteria that form the basis
    for doctrine of estoppel by convention, Romandale was estopped from resiling
    from the Shared Assumptions and the trial below should have been conducted
    accordingly.
Issue #2:     Did the trial judge err in
    determining that, by entering into the Settlement Agreement, Kerbel breached
    the 2005 August Agreement?
[211]

After Romandale terminated the DMAs with Bordeaux in early 2005,
    Bordeaux responded with an action against Romandale and Fram, alleging the
    termination was invalid and of no force and effect. The litigation was ongoing
    in August 2005 when Romandale and Kerbel entered into the 2005 August
    Agreement. The trial judge interpreted the 2005 August Agreement as permitting
    Kerbel to delay triggering the buy-sell provisions until after SPA
only
    if the Bordeaux litigation dragged on
(emphasis added) (the 
Interpretation
). Based on the Interpretation, the trial judge concluded that
    Kerbel repudiated the 2005 August Agreement by entering into the Settlement
    Agreement because, as a result of para. 5 of the Settlement Agreement, the
    purchase and sale of the Remaining Interest could not take place until after
    SPA.
[212]

Fram argues that the trial judges Interpretation is erroneous. It
    contends that she made four extricable errors of law in reaching the
    Interpretation: (1) failure to give the text of the 2005 August Agreement
    primacy; (2) accepting impermissible subjective evidence as factual matrix
    evidence; (3) misinterpreting the time is of the essence clause in the 2005
    August Agreement; and (4) failing to look at commercial reasonableness at the
    time of contract execution and from the viewpoint of both parties.
[213]

In light of my conclusion on the doctrine of estoppel by convention,
    Romandale is barred from asserting that the buy-sell provisions in either the
    COAs or the 2005 August Agreement could be exercised before SPA. Because the
    trial judges Interpretation permits for the buy-sell provision in the 2005
    August Agreement to be exercised before SPA, the Interpretation is contrary to
    the Shared Assumptions and cannot stand. Consequently, I need not address the
    errors in contractual interpretation that Fram contends the trial judge made.
[214]

While I need not address the alleged errors in contractual
    interpretation, nothing in these reasons is to be taken as approving the trial
    judges interpretation of the 2005 August Agreement or her application of the
    principles of contractual interpretation.
VIII.

analysis
    of KERBELS issues
Issue #3:     Did the trial judge err in concluding
    that Kerbel repudiated the 2005 August Agreement?
[215]

In addition to finding that Kerbel breached the 2005 August
    Agreement by entering into the Settlement Agreement with Fram, the trial judge
    also found that, by entering into the Settlement Agreement, Kerbel failed to
    act in good faith, breached the fiduciary duty she found Kerbel owed Romandale,
    breached the time is of the essence clause in the 2005 August Agreement, and
    repudiated the 2005 August Agreement. As I have explained, estoppel by
    convention operates to bar Romandale from attacking the validity of para. 5 of
    the Settlement Agreement. As para. 5 of the Settlement Agreement was the basis
    on which the trial judge concluded that Kerbel repudiated the 2005 August
    Agreement, that conclusion must fall. Accordingly, it is not necessary to
    address the issues (and related sub-issues) that Kerbel raises respecting the
    trial judges conclusion that by entering into the Settlement Agreement, Kerbel
    repudiated the 2005 August Agreement.
[216]

However,
    nothing in these reasons is to be taken as approving the trial judges
    determination that Kerbel repudiated the 2005 August Agreement by entering into
    the Settlement Agreement, her application of the principles governing
    repudiation, her finding that Kerbel owed a fiduciary duty to Romandale and
    breached it, her finding that Kerbel breached its contractual duty of good
    faith, or her analysis and conclusion that, as a result of the Settlement
    Agreement, Romandale was deprived of substantially the whole benefit of the
    2005 August Agreement.
Issue
    #4:     Did the trial judge err in concluding that the 2005 August Agreement
    was frustrated?
A.

The Parties Positions
Kerbel
[217]

Kerbels overarching position on appeal rests on this foundational
    legal proposition: the general rule is that it is not the function of the court
    to rewrite a contract for the parties nor is it the courts role to relieve one
    of the parties against the consequences of an improvident contract:
Pacific
    National Investments Ltd. v. Victoria (City of)
, 2004 SCC
    75, [2004] 3 S.C.R. 575, at para. 31. Kerbel says that the trial judge violated
    this general rule and, after determining that enforcement of the 2005 August
    Agreement was not in Romandales interests, allowed that conclusion to drive
    her reasoning. However, Kerbel says, the question for the trial judge was not
    whether the 2005 August Agreement turned out to be a good deal for Romandale
    but, rather, whether the defences Romandale asserted to the enforcement of the
    2005 August Agreement were tenable in law and fact.
[218]

In terms of frustration specifically, Kerbel submits that the trial
    judge erred when she concluded, at para. 349 of the Reasons, that the 2005
    August Agreement was frustrated because unforeseen planning changes resulted
    in SPA not only being delayed for decades but also putting the two farms on
    different development tracks. Kerbel says that the doctrine of frustration
    does not apply for two reasons.
[219]

First, it notes that frustration applies when a supervening event
    alters the nature of the parties obligations to such an extent that to compel
    performance would require a party to do something radically different than
    what they had agreed to under their contract. It says that the change in the
    development timeline for the Lands did not fundamentally alter what the parties
    contracted for under the 2005 August Agreement. The parties had agreed that
    Romandale would sell and Kerbel would buy its Remaining Interest in the Lands.
    The thing the parties bargained for has not changed  only the timing of the
    closing of the transaction has.
[220]

Second, Kerbel says that a contract is not frustrated if the
    supervening event was contemplated by the parties at the time of contracting
    and was provided for, or deliberately chosen not to be provided for, in the
    contract. It argues that to the parties knowledge, the planning and
    development process is fluid, unpredictable, and outside the parties control.
    There was never any certainty as to the development timeline for the Lands and
    the fact that governmental decisions altered the timetable was within the
    parties contemplation. They point to this courts decision in the Triple R
    Lands Litigation, in which that precise point is made:
First Elgin
    Mills Developments Inc. v. Romandale Farms Limited
, 2014
    ONCA 576, 324 O.A.C. 153, at para. 32.
[221]

Further, Kerbel argues, contrary to the trial judges finding, the
    parties agreement to a fixed purchase price in this context does not lead to a
    commercial absurdity. The parties deliberately chose to enter into an
    agreement for a fixed purchase price of the Remaining Interest that was
    significantly above market value. In doing so, Romandale assumed the risk of
    what a delay in closing would entail.
Fram
[222]

Fram
    adopts Kerbels position on all issues it raises on appeal. To avoid
    repetition, on the balance of the issues, I will not reiterate Frams position.
Romandale
[223]

Romandale submits that Kerbel has not demonstrated any palpable and
    overriding errors in the trial judges finding that the 2005 August Agreement
    was frustrated when unforeseen planning changes delayed SPA for decades and put
    the Lands on different development tracks. It makes two key arguments in
    support of this submission.
[224]

First, it says that Kerbel is wrong that the change in the
    development timeline did not fundamentally change the nature of the contract
    because it simply delayed closing. The trial judge found that a short closing
    horizon was part of the pith and substance of the contract and, in any event,
    that SPA was at most years away, not decades. A delay of decades is radically
    different than what the parties agreed to. Further, Romandale says Kerbel
    failed to address the trial judges finding on frustration based on the farms
    being placed on different development tracks.
[225]

As well, Romandale says Kerbel is wrong that legislative changes
    cannot frustrate a contract.
Relying
    on
Capital Quality Homes Ltd. v. Colwyn Construction Ltd.

(1975), 61 D.L.R. (3d) 385 (Ont. C.A.) and
Focal
    Properties Ltd. v. George Wimpey (Canada) Ltd.

(1975), 73
    D.L.R. (3d) 387 (Ont. C.A.), it says that changes in law or policy will
    frustrate a contract and relieve the parties of performance where the common
    venture is frustrated. The trial judge found that the parties common
    venture of providing for the most expedient sale of the Lands, without
    breaching the COAs, was no longer attainable.
[226]

Romandale says that proof of a delayed timeline for development and
    separate development tracks for the farms resulted in radically different
    circumstances than those contemplated in the 2005 August Agreement. It argues
    this is apparent from the terms of the that agreement: it was silent on how to
    close if the Lands achieved SPA at different times; the farms were treated as a
    single property; there were no terms on how to treat the farms individually;
    and, it made no commercial sense when closing was decades in the future. This,
    Romandale argues, would result in an irreconcilable divergence of interests when
    the express terms of the 2005 August Agreement provide it is conditional for
    the benefit of both parties.
[227]

Second, Romandale says that Kerbel is wrong that the parties
    contemplated the planning changes when entering into the 2005 August Agreement
    or deliberately did not provide for such changes. It argues that Kerbels
    reference to this courts 2014 decision regarding the Triple R Lands is
    misleading. Even if the parties were aware that the process of developing the
    Lands was fluid, unpredictable, and would take time, this does not mean they
    contemplated SPA being deferred for decades and that the Lands would be put on
    separate development tracks.
[228]

Romandale contends that the trial judges factual findings are
    important  that when the 2005 August Agreement was made, the parties expected
    the Lands would achieve SPA by 2010 or soon thereafter and not decades later or
    with the farms on separate development tracks. It says these are radical
    changes in the planning law and process and Kerbel has not challenged them.
B.

Governing Legal Principles
[229]

A contract is frustrated when  without the fault of either party 
    a supervening event alters the nature of a partys obligations under the
    contract to such an extent that to compel performance despite the new and
    changed circumstances would be to order [the party] to do something radically
    different from what the parties agreed to under [their] contract:
Naylor
    Group Inc. v. Ellis-Don Construction Ltd.
, 2001 SCC 58,
    [2001] 2 S.C.R. 943, at para. 55;
Perkins v. Sheikhtavi
, 2019 ONCA 925, 16 R.P.R. (6th) 42, at para. 15.
[230]

However, a contract is not frustrated if the supervening event
    results from a voluntary act of one of the parties or if the parties
    contemplated the supervening event at the time of contracting and provided for,
    or deliberately chose not to provide for, the event in the contract:
Perkins
, at para. 16;

Capital Quality
    Homes
,

at
    p. 626
.
[231]

The party claiming frustration bears the burden of proving the
    constituent elements necessary to establish frustration:
Perkins
, at para. 17.
C.

Application of the Law
[232]

The trial judge concluded that the 2005 August Agreement was
    frustrated because unforeseen planning changes resulted in SPA being delayed by
    decades and put the Snider and McGrisken Farms on different development tracks.
    She said these matters rendered performance of the Conditional Provision
    radically different from that which the parties agreed to: at para. 349. In
    my view, the trial judge erred in law in so concluding: the planning changes do
    not amount to a supervening event, as that term is used in the doctrine of
    frustration.
[233]

As previously noted, at para. 55 of
Naylor Group
, the Supreme Court stated that a contract is frustrated when 
    without the fault of either party  a supervening event alters the nature of a
    partys obligations under the contract to such an extent that to compel
    performance would be to order the party to do something radically different
    from that to which it had agreed under the contract. Neither the change to the
    timing of the development of the Lands nor the fact that the development paths
    of the two farms now diverge render Romandales obligations under the 2005
    August Agreement radically different from that to which it agreed. Therefore,
    the planning changes are not a supervening event and the agreement is not
    frustrated.
[234]

This conclusion follows inescapably from a consideration of the 2005
    August Agreement as a whole, including the Conditional Provision. When
    Romandale and Kerbel entered into the 2005 August Agreement, all of their
    obligations under it were to be performed in short order with one exception:
    their obligations under the Conditional Provision. Those obligations were
    clearly spelled out: Romandale was to sell its Remaining Interest in the Lands
    to Kerbel at a price of $160,000 per acre: (1) with Frams consent to the
    transaction or (2) through Romandales exercise of the buy-sell provision in
    the COAs, after the Lands achieved SPA. The parties specified the two methods
    by which the transaction could be completed  rather than simply setting a date
    for its completion  because they wanted to ensure that the 2005 August
    Agreement did not run afoul of Romandales pre-existing legal obligations to
    Fram under the COAs.
[235]

While the planning changes altered the timing horizon for the
    development of the Lands and the development paths of the Snider and McGrisken
    Farms, those changes did not radically alter what the parties had agreed to
    under the 2005 August Agreement. In fact, the planning changes did not alter
    the parties obligations under the Conditional Provision in any way. What
    changed were the parties expectations about when SPA would be obtained for the
    Lands. Romandale remained obliged to sell its Remaining Interest to Kerbel,
    either by obtaining Frams consent to the transaction or by using the buy-sell
    provisions in the COAs, once SPA for the Lands was achieved. And Kerbel
    remained obliged to pay Romandale $160,000 per acre for the Remaining Interest.
    The fact that the expected timing for SPA changed did not alter those
    obligations  and nothing in the 2005 August Agreement suggests otherwise. For
    example, there is no drop-dead date provision in the agreement. With due
    respect to the trial judge, the boiler-plate statement at para. 7(c) of the
    2005 August Agreement that time is of the essence cannot be construed to mean
    that a short closing horizon was part of the pith and substance of the
    contract. Further and in any event, if Romandale was troubled by the prospect
    of a lengthy delay in closing based on SPA, it could have sought Frams consent
    to the transaction. On the record, Romandale took no steps in that regard,
    despite having expressly undertaken in the Conditional Provision to use
    reasonable best efforts to obtain Frams consent.
[236]

Because the parties obligations under the Conditional Provision are
    not altered by the planning changes, it cannot be said that compelling performance
    of the 2005 August Agreement would be to order Romandale to do something
    radically different from that to which it agreed. In short, in the
    circumstances of this case, the planning changes do not amount to a supervening
    event.
[237]

Further, even if the planning changes were to amount to a
    supervening event, the 2005 August Agreement is not frustrated because the
    supervening event was within Romandale and Kerbels contemplation when they
    entered into the agreement and they did not provide for it:
Perkins
, at para. 16. Of this there can be no doubt, given this courts
    findings in
First Elgin Mills
.
[238]

It will be recalled that
First Elgin Mills
dealt with the transaction in the 2005 August Agreement in which
    Kerbel purchased the Triple R Lands from Romandale (acting on behalf of the
    Roman family). The purchase price for the Triple R Lands was calculated on the
    basis that the land was all developable. However, the land was not all
    developable so Kerbel sought an adjustment to the purchase price in accordance with
    the terms of the 2005 August Agreement. Romandale resisted, saying that the
    purchase price adjustment clause had expired. The matter was litigated. This
    court ultimately found in favour of Kerbel. At paras. 31-32 of
First
    Elgin Mills
, Lauwers J.A. writing for the court, stated:
The process of moving raw land through the land development
    process, is complex, time consuming, and expensive. The outcome is frequently
    uncertain.
The parties to this litigation are sophisticated and
    experienced land developers and were legally represented throughout the
    proceedings. The principals affidavits show that, when they entered into the
    [2005 August Agreement], they were aware that the process of developing the
    [Lands] would be fluid and the outcome somewhat unpredictable, and that it
    would take time  perhaps years  to finalize the [Lands] development
    potential. There were provincial, regional, and local requirements to be met,
    any of which could affect the [Lands] development potential ...
[239]

Thus, it can be seen, this court found that Romandale and Kerbel
    were aware of the vagaries of the planning process when they entered into the
    2005 August Agreement. That is, the possibility of planning changes was within
    the parties contemplation when they entered into the 2005 August Agreement.
    Despite that, they made no provision for such a possibility  as, for example,
    through the insertion of a drop-dead provision. Therefore, even if the
    planning changes were a supervening event, the 2005 August Agreement is not
    frustrated.
[240]

I conclude on this issue by noting that, while Romandale is correct
    that legislative changes can frustrate a contract, this applies when the
    legislation destroys the very foundation of the agreement:
Capital
    Quality Homes
, at para. 29. As I have explained, that is
    not this case.
Issue
    #5:     Did the trial judge err in concluding that the 2005 August Agreement
    was void for mistake?
A.


The Parties Positions
Kerbel
[241]

Kerbel submits that the trial judge erred in law in finding that the
    2005 August Agreement was void for mistake because the parties were operating
    on the mistaken understanding that SPA would occur within a relatively short
    time period, not decades after the agreement was entered into.
[242]

It argues that the doctrine of common mistake requires the plaintiff
    to show that, as a result of the common mistake, the subject matter of the
    contract became something essentially different from what it was believed to
    be. Moreover, on the theory that the mistake destroys the consensual nature of
    the bargain, the mistake must have existed at the time that the contract was
    made. However, Kerbel says, there was no mistake in this case. Both parties
    considered SPA to be years away when they executed the 2005 August Agreement.
    The fact that an assumption turns out to be incorrect, as a result of
    subsequent events, does not affect the consensus at the time the contract was
    made.
[243]

In any event, Kerbel says, the change to the development timeline
    did not fundamentally change the subject matter of the contract.
Romandale
[244]

Romandale submits that Kerbel has not articulated a basis for
    disturbing the trial judges conclusions on mistake. It says that Kerbel is
    referring to the common law doctrine of mistake in its submissions to this
    court whereas the trial judge relied on the equitable doctrine of mistake.
[245]

Romandale contends that the trial judge found that the parties were
    mistaken as to the time horizon for achieving SPA and that change in the
    development timeline did fundamentally alter the subject matter of the
    contract.
B.

Governing Legal Principles
[246]

At common law, a contract will be void for mistake when the parties
    were under a common mistake that changes the subject matter of the contract
    into something essentially different from what the parties believed it to be:
Miller
    Paving Ltd. v. B. Gottardo Construction Ltd.
, 2007 ONCA
    422, 86 O.R. (3d) 161, at paras. 22, 30. The mistake must have existed at the
    time the contract was made:
Zeitel v. Ellscheid
(1991), 85 D.L.R. (4th) 654 (Ont. C.A.), at para. 44, affd [1994]
    2 S.C.R. 142.
[247]

In equity, the court may relieve for common mistake when it would be
    unconscientious, in all the circumstances, to allow a contracting party to
    avail itself of the legal advantage it had obtained and granting relief can be
    done without injustice to third parties. The contract is liable to be set aside
    if the parties were under a common misapprehension as to the facts or their
    respective rights, provided the mistake was fundamental and the party seeking
    to set aside the contract was not at fault:
Miller Paving
, at para. 23.
C.

Application of the Law
[248]

In my view it matters not whether the trial judge decided this issue
    based on the common law or equitable principles governing mistake. Mistake is
    not made out under either.
[249]

At common law, the courts jurisdiction to set aside a contract for
    mistake arises when the parties are under a common mistake that changes the
    subject matter of the contract into something essentially different from what
    the parties believed it to be:
Miller Paving
,
    at para. 30. As I explain above on the issue of frustration, that is not this
    case. The parties obligations were clearly spelled out in the 2005 August
    Agreement: Romandale was to sell its Remaining Interest to Kerbel at a price of
    $160,000 per acre, either with Frams consent or through Romandales exercise
    of its buy-sell rights under the COAs. The planning changes made to the
    development of the Lands did not alter those obligations. The parties were
    aware of the vagaries of the planning process when they entered into the 2005
    August Agreement. They knew that the process of developing the Lands was fluid
    and the outcome unpredictable. The fact that events did not play out according
    to the parties initial time estimates does not somehow elevate those estimates
    into a common mistake such as to vitiate their consent to the deal in the 2005
    August Agreement. As the subject matter of the 2005 August Agreement remained
    essentially the same as what the parties believed it to be when they entered into
    the agreement, mistake is not made out at common law.
[250]

In equity, the court may set aside a contract for common mistake
    when it would be unconscientious, in all the circumstances, to allow a
    contracting party to avail itself of the legal advantage it obtained, provided
    it can be done without injustice to third parties. I address the issues of
    unjustness and unfairness above, in my discussion of estoppel by convention. I
    will not repeat myself. The considerations set out in that analysis show why,
    even if Kerbel could be seen to have obtained a legal advantage because of the
    changes in the planning process, it is not unconscientious to enforce the
    2005 August Agreement. In any event, there was no fundamental mistake upon
    which to base common mistake in equity.
[251]

I conclude on the equitable doctrine of common mistake by observing
    that the court is to take into consideration all of the circumstances when
    deciding whether it would be unconscientious to enforce the contract. The
    circumstances at the time of trial included the fact that Fram had provided its
    consent to the transaction in the Conditional Provision. Consequently, the
    transaction could have closed immediately. The trial judge did not take that
    into consideration. This is evident from her conclusion that enforcing the 2005
    August Agreement would be unconscionable because the transaction had been put
    off for decades. In the face of Frams consent, the transaction could have
    closed immediately. Thus, it was a palpable and overriding error to find that
    the transaction had been put off for decades. Moreover, in my view, the trial
    judge erred in law in failing to take into account the relevant consideration
    of Frams consent when determining whether it would be unconscionable to
    enforce the 2005 August Agreement. For these reasons, Romandale failed to make
    out the requirements for common mistake in equity and the trial judge erred in
    finding otherwise.
Issue
    #6:     Did the trial judge err in finding Kerbels claim was
    limitation-barred?
A.


The Parties Positions
Kerbel
[252]

Kerbel submits that the trial judge made palpable and overriding
    errors of fact and law in finding that its claim was limitation-barred. It
    makes three arguments in support of this submission.
[253]

First, until 2015, Romandale alleged that the 2005 August Agreement
    was terminated by Kerbels breach in reducing the net developable acreage of
    the Lands; it sought damages in the alternative. It was only in 2015 that
    Romandale claimed it would not comply with the 2005 August Agreement in any
    event, and Kerbel started the 2016 Action shortly thereafter.
[254]

Second, the trial judges finding that Kerbel discovered its claim
    in 2011 ignores Master Grahams ruling on December 21, 2012.
[12]
In that ruling,
    Master Graham dismissed Romandales motion for leave to amend its pleadings to
    allege that Kerbel had breached the 2005 August Agreement by entering into the
    Settlement Agreement. Kerbel says it was entitled to rely on the ruling and
    that the trial judges reasoning leads to an anomalous and unreasonable result.
    In order to bring its action in time, Kerbel would have had to commence an
    action by 2013 for a declaration that the Settlement Agreement did not breach
    the 2005 August Agreement but, in 2012, Master Graham had already reached that
    conclusion.
[255]

Third, even if Kerbel was aware in 2011 that Romandale viewed the
    2005 August Agreement to be at an end, the trial judge erred in law in finding
    that the limitation period began to run as of that date. At its highest,
    Romandales statement to Kerbel that it was not going to comply with the 2005
    August Agreement amounted to an anticipatory breach of contract, not an actual
    breach of contract. An anticipatory breach does not terminate or discharge the
    contract. Where the innocent party does not accept the anticipated breach and
    continues to treat the contract as subsisting, it does not discover its claim
    for the purposes of the
Limitations Act

 and the limitation period does not begin to run  until the breach
    has occurred and the innocent party has suffered some damage. In this case,
    Kerbel made it clear that it did not accept Romandales anticipatory breach of
    the 2005 August Agreement and considered the agreement to continue in effect.
    Therefore, the limitation period did not begin to run as of 2011.
Romandale
[256]

Romandale says that Kerbels submission that it had no reason to
    commence an action until 2015 is contradicted by the evidence, as is Kerbels
    assertion that it did not accept Romandales anticipated repudiation and
    continued to treat the agreement as subsisting. As the trial judge found, by
    2011 Romandale was no longer acting in accordance with the 2005 August
    Agreement. Under para. 5 of that agreement, Romandale was obliged to cede
    control over development to Kerbel but it was not complying with that obligation.
    Kerbels counsel sent a letter in February 2011 asserting that Romandale was
    breaching the agreement and its conduct was actionable. Romandale did not
    comply even after that letter. The manner in which Romandale was breaching the
    2005 August Agreement demonstrated that it did not ever intend to sell the
    Lands to Kerbel. The conduct was not ambiguous: Kerbel was on notice that if it
    wanted specific performance it could not sit on its rights.
[257]

Furthermore, Romandale argues, Kerbel was not entitled to rely on
    the decisions of Master Graham and Kiteley J. in the pleadings motion to
    prevent the running of the limitation period. Those decisions did not reach a
    conclusion on the merits of the impact of the Settlement Agreement on the 2005
    August Agreement. All that was decided was that Romandales proposed amendment
    was not tenable in law.
B.

Governing Legal Principles
[258]

An anticipatory breach of contract occurs when one party to a
    contract, by express language or conduct, or as a matter of implication from
    what it has said or done, repudiates its contractual obligations before they
    fall due:
Ali v. O-Two Medical Technologies Inc.
, 2013 ONCA 733, 118 O.R. (3d) 321, at para. 22, citing G.H.L.
    Fridman,
The Law of Contract in Canada
, 6th
    ed. (Toronto: Carswell, 2011), at p. 585.
[259]

An anticipatory breach does not, in itself, terminate the contract.
    Once the offending party shows its intention not to be bound by the contract,
    the innocent party has a choice. The innocent party may accept the breach and
    elect to sue immediately for damages, in which case the innocent party must
    clearly and unequivocally accept the repudiation to terminate the contract.
    Alternatively, the innocent party may choose to treat the contract as
    subsisting, continue to press for performance, and bring the action only when
    the promised performance fails to materialize. However, by choosing the latter
    option, the innocent party is bound to accept performance if the repudiating
    party decides to carry out its obligations:
Ali,
at para. 24.
[260]

Section 4 of the
Limitations Act
provides that a proceeding shall not be commenced in respect of a claim after
    the second anniversary of the day on which the claim was discovered. Section
    5(1)(a) sets out the factors for determining when a party discovers a claim.
    However, where the innocent party does not accept the repudiation of the
    contract, the limitation period does not begin to run until the breach actually
    occurs:
Ali
, at paras. 26-27.
C.

Application of the Law
[261]

The trial judge found that the two-year limitation period governing
    Kerbels claim for specific performance began running in February 2011 because,
    by that time, Romandales conduct showed that it intended to remain the owner
    of the Lands and from its point of view, the Conditional [Provision] was dead
    (Reasons, at para. 403). That is, the trial judge concluded that Romandale had
    repudiated the 2005 August Agreement by February 2011 and Kerbel knew that.
    Consequently, the trial judge held that the 2016 Action was brought out of
    time. In my view, the trial judge made a palpable and overriding error in
    finding that the two-year limitation period began running in 2011. To explain
    why, we must review the situation between Romandale and Kerbel in February 2011
    and the trial judges findings on their conduct at that time.
[262]

Under para. 5 of the 2005 August Agreement, Romandale gave Kerbel
    exclusive control over the development process for the Lands. Nonetheless, by
    2011, Ms. Roman-Barber (and, at her direction, those working for her) was
    actively attempting to shut Kerbel out of the development planning process. In
    a letter dated February 17, 2011 (
Kerbels February 2011 Letter
), from Kerbels counsel to Romandales counsel, Kerbel complained
    about Romandales conduct, stated it was a breach of the 2005 August Agreement,
    demanded that Romandale confirm to the NMLG that Kerbels planning consultant
    had the sole authority to represent the Lands, and threatened to commence
    proceedings if Ms. Roman-Barber did not comply with the terms of para. 5 of the
    2005 August Agreement.
[263]

By letter dated February 25, 2011, Romandales counsel responded to
    Kerbels February 2011 Letter (the 
Responding Letter
). In the Responding Letter, counsel for Romandale denied that Ms.
    Roman-Barber had breached the 2005 August Agreement and asserted that his
    client had, at all times, complied with the terms of that agreement. The
    Responding Letter also stated that Romandale was considering whether Kerbels
    purported settlement with [Fram] is in breach of the [2005 August] Agreement.
[264]

At para. 146 of the Reasons, the trial judge summarized what
    transpired between Kerbel and Romandale in the relevant time period (i.e.
    December 2010 to February 2011). Her summary includes references to Kerbels
    February 2011 Letter and the Responding Letter. Paragraph 146 ends with the
    trial judges conclusion that the evidence was clear that Romandale continued
    to exclude Kerbel from participation in the development of the Lands and Kerbel
    took no action as threatened in its letter of February 17, 2011 (the 
First
    Finding
).
[265]

Based on a consideration of precisely the same conduct as that which
    she considered in making the First Finding, the trial judge found, at para. 403
    of the Reasons, that Kerbel was aware that Romandale intended to remain the
    owner of the Lands and that from its point of view the Conditional [Provision]
    was dead (the 
Second Finding
).
[266]

The two findings are very different. The First Finding is specific
    and limited: in February 2011, Romandale was excluding Kerbel from
    participation in the development of the Lands. The Second Finding is that
    Romandales conduct put Kerbel on notice that Romandale had repudiated the
    Conditional Provision by acting as if it was dead.
[267]

Thus, the question becomes: are the two findings reconcilable? They
    are not, either on the facts or the law.
[268]

Factually, the Second Finding cannot stand in light of Romandales
    Responding Letter. In that letter, Romandales counsel denied that his client
    was in breach of the 2005 August Agreement and also stated that Romandale was
    considering whether the Settlement Agreement was a breach of the 2005 August
    Agreement. Clearly, the Responding Letter contains no express repudiation of
    its obligations under the Conditional Provision. On the contrary, in the
    Responding Letter, Romandale affirms that the 2005 August Agreement is
    operating, that it is complying with it, and that it is considering its
    position under the 2005 August Agreement as a result of Kerbel having entered
    into the Settlement Agreement.
[269]

In terms of the law, the Second Finding was not open to the trial
    judge either. In the Reasons on this issue, when the trial judge makes the
    Second Finding, she does not explicitly refer to anticipatory breach or the
    legal principles that govern it. However, based on the parties positions on
    this issue, it appears that she made the Second Finding based on those
    principles. On that assumption, the trial judge was considering Romandales
    language and conduct in the relevant period to determine whether it could be
    construed as a repudiation of its obligations under the Conditional Provision
    before they became due for performance. In other words, the trial judge was
    considering whether Romandale had committed an anticipatory breach of the 2005
    August Agreement by indicating that it would not comply with its obligations
    under the Conditional Provision. Romandale made no express assertion to that
    effect. Therefore, the Second Finding must have been based on Romandales
    conduct. However, as I have just explained, in light of the Responding Letter
    in which Romandale affirmed the 2005 August Agreement, its conduct cannot be so
    construed.
[270]

Thus, there was no anticipatory breach by Romandale of its
    obligations under the Conditional Provision in 2011 and the limitation clock
    did not begin ticking.
[271]

Romandales anticipatory repudiation of the 2005 August Agreement
    occurred for the first time in 2015 through its express statement to that
    effect by its new counsel. As the innocent party, Kerbel had the choice whether
    to accept the repudiation or treat the 2005 August Agreement as subsisting. It
    elected to accept the anticipatory breach and commenced the 2016 Action, which
    was within the two-year limitation period.
[272]

I note that Romandale points to other findings the trial judge made
    regarding Romandales conduct after Fram and Kerbel entered into the Settlement
    Agreement, which Romandale says demonstrate that it treated the 2005 August Agreement
    as dead. These findings relate to events that occurred after February 2011. As
    the trial judge based her determination on Kerbel having discovered its claim
    by February 2011, it is unnecessary to consider Romandales conduct falling
    after that time.
[273]

I conclude on this issue with the following two points. First, it is
    trite law that not every breach of a contract amounts to a repudiation. By
    February 2011, Kerbel was aware that Romandale was in breach of para. 5 of the
    2005 August Agreement because of its conduct respecting the development process
    for the Lands. However, that breach was not a repudiation of the Conditional
    Provision. Second, even if Romandales conduct could be construed as a
    repudiation of the Conditional Provision, it was an anticipatory breach. As
    such, the limitation period did not begin running unless Kerbel accepted the
    repudiation (
Ali
,

at paras. 26-27) and
    that Kerbel did not do. On the contrary, as discussed above, Kerbel protested
    Romandales conduct in its February 2011 Letter and affirmed the validity of
    the 2005 August Agreement. Kerbel then continued its work with the NMLG in the
    development process and maintained its position in the various lawsuits that
    the 2005 August Agreement was valid and enforceable. Thus, Romandales breach
    of its obligations relating to the development process by February 2011 could
    not have started the limitation clock running.
Issue #7:     Did the trial judge err in concluding
    that Kerbel was not entitled to specific performance of the 2005 August
    Agreement?
A.

The
    Parties Positions
Kerbel
[274]

Kerbel submits that the trial judge erred in law in rejecting its
    claim for specific performance because she ignored the uniqueness of the Lands
    to Kerbel. Instead, the trial judge focused entirely on whether the Lands were
    capable of valuation and whether substitute properties were available.
[275]

Kerbel gives five reasons for its contention that the Lands have a
    peculiar or special value to it.
[276]

First, Kerbel already owns a 4.75% undivided interest in the Lands.
    It purchased that interest with the express intention that it would become the
    owner of all of the Lands. For that reason, Romandale and it never contemplated
    what a co-owner relationship would look like (unlike Romandale and Fram which
    entered into COAs). If specific performance is not ordered, Romandale and
    Kerbel will be forced to remain as co-owners of the Lands, a relationship that
    neither expected nor wanted. Granting specific performance, however, would
    allow the parties to put an end to their fraught  and highly litigious 
    relationship.
[277]

Second, in light of this courts ruling in the Triple R Lands
    Litigation, Kerbel is entitled to set off the purchase price adjustment for
    those lands from the purchase price it is to pay Romandale for the Remaining
    Interest. Such a price reduction is not available for any other property that
    might come on the market and gives the Lands a quality that cannot be
    duplicated.
[278]

Third, Kerbel has already made significant investments  in time,
    money, and expertise  in the development of the Lands and surrounding
    properties.
[279]

Fourth, Kerbel entered into all of the transactions in the 2005
    August Agreement with a view to its long-term plan to secure large tracts of
    undeveloped land for the purposes of development and construction. The
    transactions in the 2005 August Agreement included its purchase of the Triple R
    Lands, which adjoins the Lands, and a right of second refusal on the Elgin
    South Property.
[280]

Fifth, Kerbel is not seeking specific performance of a purely executory
    contract. It is seeking performance of a contract which it has already
    substantially performed. The transactions in the 2005 August Agreement were
    intertwined and formed part of a package. Kerbel has upheld its end of the
    bargain by assuming the BNS mortgage, purchasing the initial 4.75% interest in
    the Lands, and purchasing the Triple R Lands.
[281]

Kerbel also submits that the trial judge erred in finding its claim
    for specific performance was barred by laches. It says that, in determining
    whether there has been delay amounting to laches, the main considerations are
    acquiescence on its part and any change of position by Romandale arising from
    reasonable reliance on Kerbels acceptance of the status quo. Kerbel says
    neither of those considerations applied. It never acquiesced and, as the trial
    judge found, there was no change to the status quo after the Settlement
    Agreement.
[282]

Finally, Kerbel takes issue with the trial judges statement at
    para. 406 of the Reasons that, because Romandale had spent years investing
    significant time, effort, and money into the Lands, it would be unjust to
    disrupt that by granting specific performance. It notes that the 2005 August
    Agreement required Romandale to cooperate in the development of the Lands and
    there is no injustice or prejudice that follows from compliance with its legal
    obligations. To the extent that Romandale incurred development costs, it can
    seek reimbursement from Kerbel under the terms of the 2005 August Agreement,
    just as it did in the past.
Romandale
[283]

Romandale submits that this court owes a high degree of deference to
    the trial judges exercise of discretion in refusing to grant specific
    performance. It argues that the trial judge did not ignore the uniqueness of
    the Lands to Kerbel  she rejected Kerbels claim of uniqueness because she
    found Mr. Kerbels own expert evidence contradicted his bald assertion that the
    Lands were unique and because the Lands were just an investment for Kerbel.
[284]

Further, Romandale says, the trial judge considered whether substitute
    properties were available and concluded that the undeveloped Lands were not
    unique to Kerbel, a developer engaged in a profit-seeking venture, and there
    were plenty of substitute properties available. Romandale says that Kerbel has
    not articulated any palpable and overriding errors in the trial judges
    conclusion.
[285]

As for the five arguments that Kerbel advances for why the Lands are
    special and unique to it, Romandale says they are simply re-argument, which the
    trial judge was entitled to reject, as she did. Romandale says that Kerbel has
    not pointed to a palpable and overriding error in the trial judges
    determination, therefore it must stand.
[286]

On laches, Romandale says that the trial judge found both
    acquiescence and reliance and Kerbel has not cited any evidence to show the
    findings were the result of palpable and overriding error.
B.

Governing Legal Principles
[287]

Specific performance is not to be ordered for breach of contract
    unless damages are inadequate. When damages are found to be inadequate, it is generally
    because of the unique nature of the property bargained for. It is for this
    reason that specific performance has historically been granted in cases
    involving the purchase and sale of real property:
Erie Sand &
    Gravel Ltd. v. Series Farms Ltd.
, 2009 ONCA 709, 97 O.R.
    (3d) 241, at paras. 110-11.
[288]

However, it cannot be assumed that damages for breach of contract
    for the purchase and sale of real estate will be an inadequate remedy in all
    cases. Specific performance should not be granted absent evidence the property
    is unique to the extent its substitute would not be readily available:
Semelhago
    v. Paramadevan
, [1996] 2 S.C.R. 415, at para. 22. Whether
    a substitute is readily available depends on the facts of the particular case.
    Therefore, uniqueness is a fact-specific inquiry:
Di Millo v.
    2099232 Ontario Inc.
, 2018 ONCA 1051, 430 D.L.R. (4th)
    296, at para. 67, leave to appeal refused, [2019] S.C.C.A. No. 55.
[289]

Laches is an equitable doctrine that offers a defence to delayed
    equitable claims. Mere delay is insufficient to trigger laches. The party
    asserting laches must establish one of two things: (1) acquiescence on the
    claimants part; or (2) a change of its position arising from reasonable
    reliance on the claimants acceptance of the
status quo
:
Manitoba Metis Federation Inc. v. Canada (Attorney
    General)
, 2013 SCC 14, [2013] 1 S.C.R. 623, at paras.
    145-47;
Intact Insurance Company of Canada v. Lombard General
    Insurance Company of Canada
,

2015 ONCA 764, 128
    O.R. (3d) 658, at paras. 8-11.
C.

Application of the Law
[290]

The trial judge declined to order specific performance largely
    because she concluded that the Lands were not unique to Kerbel. In my view, she
    erred in three ways in reaching that conclusion.
[291]

First, the trial judge erred in law in relying on the evidence of
    the experts called to provide a value for the Lands to find that the Lands were
    not unique to Kerbel. The experts had used the direct comparison approach to
    value the Lands.  That approach required the experts to find comparable
    properties with similar characteristics to the Lands. While the direct
    comparison approach is an accepted method for valuing land, it does not speak
    to whether a property is unique in the legal sense. Put another way, because
    the direct comparison approach does not address the legal requirements for
    determining whether land is unique, it cannot be used as a proxy for that
    purpose. It was an error in law to do so.
[292]

Second, it was a palpable and overriding error for the trial judge
    to find that the only evidence on uniqueness was Mr. Kerbels bald assertion
    to that effect. In so doing, the trial judge neglected to consider the
    following points:
(1)

Kerbel already owns a 4.75% undivided interest in the Lands and fully
    owns the adjoining property, the Triple R Lands. No other property has both
    these characteristics;
(2)

In light of this courts ruling in the Triple R Lands Litigation, Kerbel
    is entitled to set off the purchase price adjustment for the Triple R Lands
    from the purchase price it is to pay Romandale for the Remaining Interest. Such
    a price reduction is not available for any other property that might come on
    the market and gives the Lands a quality that cannot be duplicated;
(3)

Kerbel has already made significant investments  in time, money, and
    expertise  in the development of the Lands;
(4)

With Romandales full knowledge and consent, Kerbel entered into the
    package of intertwined transactions in the 2005 August Agreement in order to
    secure a large tract of undeveloped land for the purposes of development and
    construction. The transactions in the 2005 August Agreement include Kerbels
    purchase of the Triple R Lands, which adjoins the Lands, and a right of second
    refusal on the Elgin South Property; and,
(5)

Kerbel is not seeking specific performance of a purely executory
    contract. It is seeking performance of a contract which it has already
    substantially performed. On the trial judges findings, Romandale received over
    $16.7 million of immediate value under the 2005 August Agreement. The upfront
    money Kerbel paid Romandale was to satisfy Romandales need for liquidity.
    Kerbel has upheld its end of the bargain by assuming the BNS mortgage,
    purchasing the initial 4.75% interest in the Lands, and purchasing the Triple R
    Lands.
[293]

Third, a property is unique if there is no readily available substitute
    property:
Semelhago
, at para. 22. One method
    of proving that there is no readily available substitute is to show that the
    property has a quality that cannot be readily duplicated elsewhere:
Erie
    Sand
, at paras. 115-16. The above considerations establish
    that the Lands have qualities that cannot be readily  if at all  duplicated
    elsewhere. They also show that, contrary to the trial judges finding, the
    Lands are not merely an investment for Kerbel with any number of suitable
    substitutes available. The Lands are unique to Kerbel.
[294]

While the trial judges analysis focused on the uniqueness of the
    Lands, I also view her to have fallen into error in failing to consider the
    effects of refusing to grant specific performance. In this case, if specific performance
    is not ordered, Romandale and Kerbel will remain co-owners of the Lands. As
    Kerbel points out, that situation was not expected, wanted, or provided for in
    the 2005 August Agreement. And, as the events of the past 12 years have shown,
    the situation is unworkable. This consideration militates in favour of finding
    that damages are an inadequate remedy.
[295]

The trial judge gave laches as a further reason for refusing to
    grant specific performance. In my view, she erred in law in this regard because
    Romandale made out neither of the two requirements enunciated in
Manitoba
    Metis Federation
.
[296]

First, Kerbel did not acquiesce in Romandales attempts to shut it
    out of the development process. As discussed above, counsel for Kerbel wrote to
    counsel for Romandale in February 2011, complaining about this conduct, stating
    it was a breach of Romandales obligations under the 2005 August Agreement, and
    demanding that Romandale confirm to the NMLG that Kerbels planning consultant
    had the sole authority to represent the Lands. Moreover, despite Romandales
    attempts to shut Kerbel out of the development process, Kerbel continued to be
    actively involved in the development process through the NMLG. Kerbel also
    continued to maintain that the 2005 August Agreement was in force until  in
    response to Romandales declaration in 2015 that it would not perform its
    obligations under the 2005 August Agreement  it started the 2016 Action.
[297]

Second, Romandale did not change its position in reliance on
    Kerbels alleged acceptance of the status quo. The trial judge found, at paras.
    118-19 and 339 of the Reasons, that there was no change in Romandales behavior
    and the status quo did not change after Kerbel and Fram entered into the
    Settlement Agreement.
[298]

Further, to the extent that the trial judge found reliance based on
    Romandales investment of time, money and effort into the Lands development,
    in my view she erred. Under the terms of the 2005 August Agreement, Romandale
    was obliged to cooperate with Kerbel in development of the Lands. Reliance
    cannot be claimed when it is a matter of compliance with ones legal
    obligations. And, in any event, Romandale can seek reimbursement for
    development costs from Kerbel under the terms of the 2005 August Agreement,
    just as it did in the past.
IX.

FRAMS CLAIM FOR DAMAGES
[299]

Fram asks that it be awarded damages of $11,997,500 for its loss
    respecting 50% of the Lands that go to Kerbel under the Settlement Agreement.
    Its very brief submissions are as follows. The 2005 August Agreement was a
    breach of the prohibition against Dispositions in s. 5.03 of the COAs. Upon
    breach, pursuant to s. 6.02(d) of the COAs, Romandale was obliged to sell the
    Lands to Fram for 95% of fair market value. As Romandale refused to do that,
    Fram is entitled to the difference in the market value of the Lands between
    then and trial. Fram says it mitigated its losses by entering into the
    Settlement Agreement and withdrawing its challenge to the validity of the 2005
    August Agreement. Because Romandales actions were responsible for Fram giving
    up its 50% interest in the Lands, Fram should be compensated in damages.
[300]

The foundation for Frams claim to damages is that Romandale
    breached the prohibition against Dispositions in s. 5.03 of the COAs when it entered
    into the 2005 August Agreement. However, the trial judge found against Fram on
    that matter. In paras. 168-90 of the Reasons, the trial judge gives a thorough
    explanation for her determination that Romandale did not breach the prohibition
    against Dispositions in s. 5.03 of the COAs by entering into the 2005 August
    Agreement (the 
Determination
). In
    its appeal, Fram did not challenge the Determination. Therefore, the
    Determination stands and Frams claim to damages must necessarily fail.

X.

The Costs Appeal
[301]

By order dated April 2, 2020 (the 
Costs Order
), the trial judge ordered costs in favour of Romandale in the
    amount of $2,708,651.57. Costs were awarded on a substantial indemnity basis
    and made payable on a joint and several basis by Fram and Kerbel.
[302]

Both Fram and Kerbel seek leave to appeal the Costs Order.
[303]

The general principle is that when an appeal is allowed, the order
    for costs below is set aside and the appellant is awarded costs below and on
    appeal:
St. Jean v. Cheung
, 2009 ONCA 9, 45
    E.T.R. 3(d) 171, at para. 4;
Climans v. Latner
,
    2020 ONCA 554, 449 D.L.R. (4th) 651, at para. 85. As I would allow the appeals,
    the general principle applies and the Costs Order is set aside. Thus, it is
    unnecessary to determine whether leave to appeal the Costs Order should be
    granted and, if so, whether the appeals against that order should be allowed.
[304]

Based on the parties brief submissions on this matter at the oral
    hearing of the appeals, I understand that all three agree that if the appeals
    are allowed, costs below should be awarded on a partial indemnity basis.
    However, they disagree on the basis by which those costs should be determined.
    Fram and Kerbel argue that this court should fix those costs at 60% of the full
    indemnity request contained in the bills of costs they submitted at trial.
    Romandale contends that, if the parties are unable to agree on the quantum of
    partial indemnity costs, costs should be assessed.
[305]

Romandale also challenges Frams entitlement to costs below. It
    submits that Fram has no appeal but, rather, only an economic interest in the
    outcome of Kerbels appeal. Consequently, if the appeals are allowed, Romandale
    says that Fram is not entitled to costs below.
[306]

For the reasons given in my determination of Romandales first alleged
    threshold flaw, I reject Romandales submission that Fram is disentitled to
    costs below.
[307]

The oral submissions do not provide the court with an adequate basis
    on which to quantify the costs below for Fram and Kerbel. I trust that the
    foregoing provides the parties with sufficient guidance that they can resolve
    the quantum of costs below among themselves. If they are unable to do that, as
    indicated in the disposition below, the parties may have recourse to this court
    to resolve the matter.
XI.

A COMMENT ON THE CONCURRING
    REASONS
[308]

My reasons do not address the first proposition set out in my
    colleagues concurring reasons because no party raised or argued the legal
    effect of Frams consent.
[309]

In terms of the second proposition  estoppel by convention  no party
    raised or argued the legal issues addressed by my colleague in his concurring
    reasons. Consequently, my reasons do not address those legal issues.
[310]

Accordingly, nothing in my reasons should be taken as approving of
    those parts of the concurring reasons relating to the first and second
    propositions.
XII.

Disposition
[311]

Accordingly, I would allow the appeals and declare that the 2005
    August Agreement is valid and enforceable, and I would order specific
    performance of Romandales obligations under the 2005 August Agreement.
[312]

Counsel for the parties advised that they had resolved the matter of
    costs of the appeals and that no order was required in that regard. Thus, I
    would make no order as to costs of the appeals.
[313]

In terms of costs below, if the parties are unable to resolve that
    matter, I would permit them to make written submissions to a maximum of 5
    double-spaced pages. I would give the Appellants 14 days from the date of
    release of this judgment to file their written submissions and Romandale 21
    days.
[314]

Neither Fram nor Kerbel specified what changes should be made to the
    Judgment if the appeals were successful. In light of that and the complexity of
    the pleadings, I will leave it to the parties to resolve that matter. I offer
    the following comments as guidance:


i.

because I would dismiss
    Frams request for damages and no appeals were taken in respect of the 2007
    Action and the 2008 Action, I would make no change to paras. 1 and 2 of the
    Judgment to the extent it dismisses those actions. However, that part of para.
    1 of the Judgment dismissing Kerbels crossclaim may need to be altered to
    reflect the result of these appeals;


ii.

I would set aside para.
    3 of the Judgment and substitute an order dismissing the 2016 Action;


iii.

I would set aside para.
    5 of the Judgment and substitute an order declaring that the 2005 August
    Agreement is valid and enforceable and an order for specific performance of
    Romandales obligations under it; and,



iv.

I would set aside para.
    6 of the Judgment.

Gillese J.A.
I agree. M.L.
    Benotto J.A.

SCHEDULE
    A: CHRONOLOGY OF EVENTS

2003

[1]

Romandale sells Fram an
    undivided 5% interest in two neighbouring farms in Markham known as the
    McGrisken Farm and the Snider Farm (the 
Lands
) and the parties enter into two identical sets of
    agreements, one set for each farm property: the Co-Owners Agreement (
COA
), which sets out the terms and conditions
    on which Romandale and Fram, as co-owners, hold title to the Lands; the
    Construction Management Agreement (
CMA
), under which Fram is to construct and sell
    residential units on the Lands, once they achieve Secondary Plan Approval (
SPA
); and the Development Management
    Agreement (
DMA
),
    which governs the development process for the Lands. Bordeaux Developments
    (Ontario) Inc. (Bordeaux) is also a party to the DMAs and, under its terms,
    is appointed the development manager. When the parties enter into these
    agreements, they expect to obtain SPA for the Lands around 2010.


[2]

Of these agreements,
    the COAs are the most significant for these appeals. The buy-sell provision in
    s. 5.07 of the COAs permits either co-owner, under certain conditions, to
    tender on the other an offer to sell its entire interest in the Lands and, at
    the same time, an offer to buy the others entire interest in the Lands on the
    same terms as the offer to sell. The non-tendering party must choose whether to
    buy out the tendering party or sell its interest. The buy-sell is available
    once SPA is obtained for the Lands or the DMA is terminated.



[3]

Section 6.02 of the
    COAs provides that if an Event of Default occurs and is continuing, the
    non-defaulting party can, among other things, bring proceedings for specific
    performance and/or buy the defaulting partys interest in the Lands at 95% of
    fair market value.



[4]

Development of the
    Lands depends on obtaining planning approval, including appropriate amendments
    to the official plan. These changes are made to the secondary plan, which
    provides more detailed policies for the development of a specific area. The
    process of obtaining development approval for specific lands is known as SPA.
    This is reflected in s. 5.07(a) of the COAs, which defines SPA as an amendment
    of the official plan of the Town of Markham applicable to the Lands, obtained
    in accordance with the Planning Act (Ontario).



[5]

When Romandale and Fram
    enter into these agreements in 2003, Romandale has not yet started the SPA
    process.


2004


[6]

With Frams consent,
    Romandale borrows $6 million from the Bank of Nova Scotia (
BNS
) secured by a mortgage on the Lands.


2005


[7]

With Frams consent,
    Romandale terminates the DMAs with Bordeaux.



[8]

In response, Bordeaux
    brings an action against Romandale and Fram, alleging the termination was
    invalid and of no force and effect.



[9]

The ongoing work to
    move the Lands through SPA continues through a new agreement between Fram and
    Romandale to co-manage development of the Lands.



[10]

BNS calls the $6 million mortgage.
    Romandale needs financing to repay the BNS loan by August 30, 2005. It also
    needs cash to make distributions to the Roman family. The solution is an
    agreement which Romandale and Kerbel enter into on August 29, 2005 (the 
2005 August Agreement
).



[11]

In the 2005 August Agreement, Kerbel agrees
    to pay off the BNS mortgage and extend the same amount as a new loan to
    Romandale under the same security and Romandale agrees to: (1) sell to Kerbel
    its 95% interest in the Lands, at a fixed price of $160,000 per acre; (2) sell
    to Kerbel (on behalf of the Roman family) the Triple R Lands for $175,000 per
    acre, subject to a price adjustment for non-developable acreage; and (3) grant
    Kerbel a right of second refusal over other lands called the Elgin South
    Property. The sale of Romandales interest in the Lands is to occur in two
    steps:



a.

an initial sale of 5%
  of Romandales interest in the Lands; and


b.

the sale of Romandales
  remaining interest in the Lands (
Remaining Interest
), conditional on:



i.

Romandale buying out
  Frams interest in the Lands pursuant to the buy-sell provisions in the COAs;
  or



ii.

Fram consenting to the
  transaction.


[12]

The second step of the sale of Romandales
    interest in the Lands to Kerbel is referred to as the 
Conditional Provision
.


[13]

All the transactions in the 2005 August
    Agreement have been completed, except the sale of Romandales Remaining
    Interest to Kerbel under the Conditional Provision.


[14]

Paragraph 5 of the 2005 August Agreement
    empowers Kerbel to cause Romandale to trigger the buy-sell provision in the
    COAs following SPA being obtained for the Lands. It also gives Kerbel full
    control over the development of the Lands.


[15]

When the parties entered into the 2005
    August Agreement, Romandale expected the Lands would advance through the
    planning process by approximately 2010 and Kerbel hoped that SPA might take
    only seven to ten years to unfold.


[16]

Ms. Roman-Barber tells Fram she reached an
    agreement with Kerbel under which Keel bought the Triple R Lands, assumed the
    BNS mortgage, and bought 5% of Romandales interest in the Lands. She does not
    disclose that Romandale has committed to sell its entire interest in the Lands
    through the Conditional Provision.

2007

[17]

In January, Romandale discloses to Fram
    that it sold its entire interest in the Lands to Kerbel. Frams repeated
    requests for a copy of the 2005 August Agreement are refused. Frams counsel is
    shown a copy of the agreement in April, on conditions.


[18]

In June, Romandale attempts to sell a
    further 7% interest in the Lands to Kerbel on the same terms as the 2005 August
    Agreement. This time it notifies Fram, which issues a notice of default for a
    prohibited disposition.


[19]

In July, Fram starts an action against
    Romandale and Kerbel, alleging that the 2005 August Agreement was a prohibited
    disposition under the COAs, and seeking an injunction restraining Romandale
    from any further sale of its interest in the Lands (the 
2007 Action
).


[20]

Fram also gives notice it will seek to
    exercise its remedy under the COAs to purchase Romandales interest in the
    Lands at 95% of fair market value.


[21]

In July, Ms. Roman-Barber produces a copy
    of the 2005 August Agreement as an exhibit to her affidavit on the injunction
    motion. This is the first time that Fram is provided with a copy of the
    agreement.


[22]

In her affidavit, Ms. Roman-Barber swears
    that The Agreement of August 29, 2005 is conditional upon [SPA] and The
    Buy/Sell Provisions are only exercisable after what is commonly known as
    [SPA].


[23]

Justice Forestell grants the injunction
    restraining Romandale from making any disposition of the Lands or any part of
    its interests in them, stating [t]he original intent of the [2005 August
    Agreement] was that the sale to [Kerbel] of the [Remaining Interest] would not
    occur until some time after SPA.

2008

[24]

Fram and Bordeaux start an action against
    Romandale and Kerbel based on alleged breaches of the CMAs (the 
2008 Action
). Under the CMAs, Fram had the right to construct
    residences on the Lands once SPA is obtained.


[25]

Kerbel, as owner of the Triple R Lands,
    together with neighbouring landowners, form the North Markham Landowners Group
    (NMLG) with the goal of engaging collectively with the relevant authorities
    about the development of their respective properties.


[26]

From 2008 onward, the NMLG retains
    consultants and commissions studies required for the development process and
    engages in that process with Markham. NMLGs development costs have been in the
    hundreds of thousands of dollars. Until 2011, Kerbel reimbursed Romandale for
    all costs associated with the Lands, including Romandales share of the NMLG
    cash calls that were made to fund the NMLG ongoing development activities.

2009

[27]

The anticipated development timeline for
    the Lands changes because of government decisions. As a result, development of
    the Snider Farm is delayed until 2021-2031 and of the McGrisken Farm until
    2031-2051. In addition, the Snider Farm is proposed for employment use, which
    would prevent residential development.


[28]

Ms. Roman-Barber makes further statements
    during examinations that the buy-sell would be triggered after SPA.


[29]

The 2007 and 2008 Actions are set down for
    trial in July. In November, they are consolidated.

2010

[30]

The parties attend pre-trial conferences,
    following which the trial is adjourned and the parties engage in settlement
    discussions.


[31]

At a judicial mediation in September 2010,
    the parties reach an agreement in principle on the main settlement terms. One
    of the agreed settlement terms is that the sale of Romandales Remaining
    Interest to Kerbel will occur after the Lands achieve SPA.


[32]

In a letter dated September 24, 2010, from
    Romandales counsel to counsel for Kerbel and Fram, he set out areas on which
    the parties had agreed, including That the sale of each of parcel will take
    place when that particular parcel achieves [SPA].


[33]

Various drafts are exchanged among counsel
    for the three parties, all of which include a provision to the effect that
    purchase and sale of Romandales Remaining Interest will take place after SPA.


[34]

Romandale withdrew from the settlement in
    October for reasons that include disagreement over registration of the
    injunction against the Lands. Its reasons do not include an objection to the
    provision that purchase and sale will take place after SPA.


[35]

Fram and Kerbel move forward with
    settlement and enter into final minutes of settlement, (the 
Settlement Agreement
) in December 2010. It provides that if Romandale
    does not concur in it and the 2007 and 2008 Actions proceed to trial:


1)

Fram would discontinue its claims against Kerbel and
  restrict its claims against Romandale to damages;


2)

Kerbel would grant Fram an option
  to purchase a 50% interest in Romandales Remaining Interest in the Lands, on
  the same terms and conditions as Kerbel might purchase Romandales Remaining
  Interest;


3)

If Fram exercises the option, it
  and Kerbel would enter into a joint venture agreement to develop the Lands with
  (effectively) an equal sharing of costs;


4)

Fram did not consent to
  Romandales sale of its Remaining Interest in the Lands to Kerbel; and


5)

It is Fram and Kerbels intention
  that the purchase and sale of Romandales Remaining Interest in the Lands
  pursuant to these Minutes of Settlement will take place after [SPA] for the
  Lands has been obtained.

2011

[36]

By letter dated January 28, 2011, counsel
    for Romandale advises Fram and Kerbel that Romandale objects to Kerbels land
    planner telling the North Markham Landowners Group (
NMLG
) that there was a change in the ownership of the Lands. The letter
    reiterates that Romandale conditionally sold the Lands to Kerbel under the 2005
    August Agreement and [t]he condition could only be satisfied by either a)
    secondary plan approval (which has not been achieved); b) or the consent of
    [Fram] to the transaction.


[37]

Romandale represents the Lands at the NMLG
    and instructs its planning consultant (and others working for it) to not share
    information with Kerbels planner.


[38]

Kerbels counsel sends a letter, dated
    February 17, 2011, to Romandales counsel complaining that Ms. Roman-Barbers
    conduct was a breach of para. 5 of the 2005 August Agreement in which Romandale
    ceded control of the development process for the Lands to Kerbel. It demands
    that Romandale confirm to the NMLG that Kerbels planning consultant has the
    sole authority to represent the Lands and threatens to commence proceedings if
    Ms. Roman-Barber did not comply with para. 5 of the 2005 August Agreement.


[39]

Romandales counsel responds by letter,
    dated February 25, 2011, asserting that its client had at all times acted in
    accordance with the 2005 August Agreement and was considering whether the
    Settlement Agreement was a breach of the 2005 August Agreement.

2012

[40]

In February, Romandale seeks payment from
    Kerbel of invoices and expenses incurred pursuant to the 2005 August Agreement.


[41]

In June, Romandale moves to amend its
    pleadings in the 2007 and 2008 Actions and for leave to commence claims against
    Kerbel, alleging the Settlement Agreement fundamentally breached the 2005
    August Agreement.

2013

[42]

Master Graham dismisses Romandales
    amendment motion, finding that the Settlement Agreement did not amount to a
    breach of the 2005 August Agreement because whatever the Kerbel defendants do
    with the [L]ands once Romandales interest in them is conveyed  is none of
    Romandales concern. Accordingly, he said, Romandales argument that the 2005
    August Agreement was breached is not tenable at law.


[43]

Romandale appeals Master Grahams order.


[44]

Meanwhile, Romandale and Kerbel were
    involved in litigation over the Triple R Lands (the 
Triple R Lands Litigation
), one of the transactions in the 2005 August
    Agreement. Under the 2005 August Agreement, Kerbel purchased the Triple R Lands
    for $175,000 per developable acre, subject to a purchase-price rebate
    calculated in reference to developable acreage. The parties disagreed about
    whether and how much rebate was owed. In February 2013, Romandale and Kerbel
    enter into a partial settlement in which they agree that if Kerbel is found to
    be entitled to a price adjustment, the determination of the non-developable
    lands is to be done pursuant to the terms of the [2005 August Agreement] and
    the Amendment.


[45]

Romandale leaves the NMLG.

2014

[46]

Romandale brings an action against Kerbel,
    alleging Kerbel breached the 2005 August Agreement by taking steps to reduce
    the amount of potential developable acreage on the Lands. It seeks a
    declaration that the 2005 August Agreement was terminated or, alternatively,
    damages (the 
2014 Action
).


[47]

Justice Kiteley dismisses Romandales
    appeal of Master Grahams order.


[48]

This court releases its decision in the
    Triple R Lands Litigation. It finds in favour of Kerbel, declaring that Kerbel
    was entitled to a purchase price reduction in accordance with the [2005 August
    Agreement].


[49]

NMLG enters into a funding agreement with Markham
    for the purpose of funding the municipalitys studies and reports related to
    future development of lands in north Markham. Kerbel pays all of the costs
    associated with the Lands under the funding agreement.

2015

[50]

Romandale retains new counsel and takes a
    new position. For the first time it claims that the buy-sell provisions in the
    COAs could be performed
before
SPA because the DMAs with Bordeaux had
    been terminated in February 2005.


[51]

Romandale obtains leave to amend its
    pleadings in the 2007 Action to allege, for the first time, that Kerbel
    repudiated the 2005 August Agreement by entering into the Settlement Agreement
    because the latter included a provision that the purchase and sale of its
    Remaining Interest would occur after SPA. Also for the first time, in its
    amended pleadings, Romandale asserts that it will not perform the 2005 August
    Agreement in any event. Until then, Romandales position in the 2007 Action
    mirrored its position in the 2014 Action: that it was entitled to damages from
    Kerbel if the court did not find that the 2005 August Agreement was terminated.


[52]

Justice Dunphy orders that Kerbel be added
    as a party to the 2007 Action, that the injunction be dissolved, and that
    Romandale be permitted to amend its pleadings to argue repudiation.

2016

[53]

Kerbel starts an action against Romandale
    seeking specific performance of the 2005 August Agreement (the 
2016 Action
).

2017

[54]

Kerbel files a crossclaim in the 2007
    Action seeking specific performance of the 2005 August Agreement and an order
    directing Romandale to comply with its terms.


[55]

Romandale files a defence to Kerbels
    crossclaim in the 2007 Action alleging that the 2005 August Agreement offends
    the rule against perpetuities.

2018

[56]

Shortly before the trial of the four
    actions begins in October 2018, Fram and Kerbel amend the Settlement Agreement
    to allow the sale of Romandales Remaining Interest to close immediately,
    rather than after SPA. The stated basis for this is to militate against the
    risk that the 2005 August Agreement could offend the rule against perpetuities.


[57]

Fram delivers its consent to Romandale to
    close the sale of its Remaining Interest under the 2005 August Agreement.


[58]

The trial of the four actions begins in
    October. SPA had not been obtained for the Lands.

Schedule B
:
    KEY Contractual Provisions
1.
Key Provisions in the COAs
Section
    1.01
Definitions:
Unless
    the subject matter or context otherwise requires:
[
     ]
(s)     Disposition
    means the sale (including judicial sale), assignment, exchange, transfer,
    lease, mortgage, hypothecation, pledge, encumbrance, devise, bequeath or other
    disposition or agreement for such by a Co-Owner of the whole or part of its
    Co-Owner's Interest, and a Disposition shall include an amalgamation, a
    transfer by arrangement, conversion, exchange, sale, assignment or trust of the
    Equity Shares or the issue of any treasury shares which in any case would
    result in a change of Control of a Co-Owner;
Section
    5.03
Dispositions:
Save
    for those Dispositions expressly permitted in this Agreement neither Co-Owner
    shall make or permit a Disposition without the consent of the other Co-Owner
    (which consent may be unreasonably or arbitrarily withheld) and any attempt to
    do so shall be void and the other Co-Owner shall, in addition to all other
    rights and remedies in law and in equity, be entitled to a decree or order
    restraining and enjoining such Disposition and the offending Co-Owner shall not
    plead in defence thereto that there would be an adequate remedy at law it being
    recognized and agreed that the injury and damage resulting from such default
    would be impossible to measure monetarily. Notwithstanding anything in this
    Agreement contained no Disposition may be made if:
(t)      as
    a
result

thereof,

the

other

Co-Owner

or

its

Co-Owner's

Interest

shall be

subject to any taxation to which it was not theretofore subject or to
    any governmental controls or regulations to which it was not subject prior
    thereto by reason solely of the nationality or residence of the transferee;

or
(u)     the
    Disposition is not permitted by law or any term of any Permitted Encumbrance or
    any agreement or document affecting the Co-Owners or the Lands unless any
    approval required by such Permitted Encumbrance, agreement or document has been
    obtained and is in effect; or
(v)     the
    Disposition is for less than all of the Co-Owner's Interest; or
(w)    such
    Co-Owner or any Affiliate of such Co-Owner is a Defaulting Party hereunder,
and any
    Disposition which would procure such result shall be void. The Co-Owners shall
    use their reasonable best efforts to obtain the consents of any third parties
    to any Disposition which would otherwise be permitted hereunder (provided,
    however, that a Co-Owner shall not be obligated to expend any funds, incur any
    liabilities or amend any agreements in order to obtain any such consent).
Notwithstanding
anything
    herein contained, no Disposition may be made unless the transferee enters into
    an agreement with any continuing Co-Owner (and satisfactory to its counsel
    acting reasonably) whereby the transferee shall be bound by and entitled to the
    benefit of this Agreement to the extent of the Co-Owners Interest which is the
    subject of the Disposition
.
Section
    5.07
Buy-Sell Provisions:
(a)

Provided
    that what is commonly called secondary plan approval (that is an amendment of
    the official plan of the Town of Markham applicable to the Lands, obtained in
    accordance with the Planning Act (Ontario)) (the 
Secondary Plan Approval
)
    has been obtained for the Lands, or if the Management Agreement has been
    terminated, then a Co-Owner who is not then a Defaulting Party (the 
Initiating
    Party
) may, at any time thereafter tender on the other party (the 
Recipient
    Party
), not less than two (2) copies of an agreement combining a separate
    offer to sell the Initiating Party's full title to all (but not less than all)
    of its Co-Owner's Interest in the Lands to the Recipient Party (the Sale
    Offer) and an offer to purchase all (but not less than all) of the Recipient
    Party's Co-Owner's Interest in the Lands (the Purchase Offer) at a price and
    upon such terms and conditions as may be set by the Initiating Party except
    that the purchase price must be paid by cash and the assumption of the
    assumable Permitted Encumbrances affecting the applicable co-Owner's Interest
    and save and except that the price and terms as to payment with respect to the
    Sale Offer for each one percent (1%) interest must be equal to and identical to
    the price and terms as to payment with respect to the Purchase Offer for each
    one percent (1%) interest and that the closing of the transaction resulting
    from the acceptance of the Sale Offer or the Purchase Offer Shall take place no
    earlier than 30 days and no later than 90 days after the expiration of the 100
    day period referred to in Subsection 5.07(b). On the completion date of the
    transaction contemplated in the Sale Offer the purchasing Co-Owner shall pay to
    the selling Co-Owner the balance of the purchase price by cash or certified
    cheque.
(b)     One
    business day after receipt of the Purchase Offer by the Recipient Party, the
    Initiating Party shall deliver to the Recipient, as a deposit, a certified
    cheque or bank draft in an amount equal to five percent (5%) of the purchase
    price stipulated in the Purchase Offer and such cheque or bank draft shall be
    payable to the Recipient Party's counsel, in trust. The Recipient Party shall
    have 100 days following the receipt of the Sale Offer and the Purchase Offer in
    which to elect either to accept the Purchase Offer or the Sale Offer.
(c)     If
    the Recipient Party shall elect to accept the Sale Offer it shall return to the
    Initiating Party its deposit (by way of certified cheque or bank draft)
    together with one (1) fully executed copy of the Sale Offer accompanied by the
    Recipient Partys certified cheque or bank draft as a deposit equal to 5% of
    the purchase price stipulated in the Sale Offer payable to the Initiating
    Party's counsel, in trust. If the Recipient Party shall not accept the Sale
    Offer it shall accept the Purchase Offer within the time limited. Failure of
    the Recipient Party to accept the Sale Offer or the Purchase Offer shall be
    deemed to mean that the Recipient Party has accepted the Purchase Offer.
(d)     To
    the extent not stated or contradicted in any Purchase Offer or Sale Offer, the
    closing thereof shall be completed in accordance with the terms and conditions
    referred to in Section 8.01 hereof.
Section
    5.10
Romandales Right to Sell:
Subject
    only to the provisions of Section 5.03(a), (b) and (d) but notwithstanding any
    other provision in this Agreement to the contrary, Romandale may upon 20 days
    notice to Frambordeaux, accompanied with a copy of a bona fide arm's length
    offer to purchase (the Offer), elect to sell in one or more transactions up
    to but not in excess of an undivided 39% interest in the Lands payable only in
    cash and by assumption of existing assumable Permitted Encumbrances, provided
    that any purchaser of such interest shall agree in writing that following such
    purchase and sale the Co-Owners Committee shall remain the same and that the
    representative of Romandale shall also be the representative of the purchaser
    that all decisions and actions of Romandale and the purchaser under or pursuant
    to this Agreement (including the exercise of all rights hereunder) shall be
    made by Romandale alone. Frambordeaux may, at any time within 10 days from
    receipt of the aforesaid notice, by written notice to Romandale, elect to sell
    all or part of its Co- Owner's Interest on the same terms and conditions as
    contained in the Offer (except that the consideration shall be adjusted in
    accordance with the ratio of Frambordeaux's Co-Ownership Proportion to
    Romandale's Co-Ownership Proportion) provided that if Frambordeaux elects to
    sell only a part of its Co-Owner's Interest, it shall retain at least an
    undivided 2% Co-Owner's Interest and if Frambordeaux elects to sell all or part
    of its Co­ Owner's Interest, Romandale or the purchaser shall be obligated to
    complete the purchase of Frambordeaux's Co-Owner's Interest pursuant to this
    Section 5.10.
Section
    6.02
Remedies Available to a Non-Defaulting Party:
If
    an Event of Default has occurred and is continuing, a Non-defaulting Party
    shall have the right to:
(a)     remedy
    such Event of Default and any event of default of the Defaulting Party under
    any other agreements Approved by the Co-Owners, and shall be entitled upon
    demand to be reimbursed by the Defaulting Party for any monies expended to
    remedy any such Event of Default and any other expenses incurred by such
    Non-defaulting Party, together with interest (calculated and payable monthly)
    at the lesser of the rate of 4% per annum in excess of the Prime Rate or the
    maximum rate then permitted at law from the date such monies were expended or
    such expenses were incurred to the date of repayment thereof; and/or
(b)     bring
    any proceedings in the nature of specific performance, injunction or other
    equitable remedy, it being acknowledged by the parties hereto that damages at
    law may be an inadequate remedy for a default or breach of this Agreement;
    and/or
(c)     bring
    any action at law as may be necessary or advisable in order to recover damages;
    and/or
(d)     arrange,
    upon written notice to the Defaulting Party, for a determination of the Fair
    Market Value (as determined pursuant to Section 6.03) of the Defaulting Party's
    Co-Owner's Interest as at the date of such notice and shall deliver written
    notice to the other Co-Owner of such Fair Market Value, and either
    contemporaneously with such first written notice or such second written notice,
    a Non-defaulting Party shall have the right to give written notice (Notice of
    Exercise) to the Defaulting Party that such Non-defaulting Party elects to
    purchase the Defaulting Party's Co-Owner's Interest at a price equal to
    ninety-five (95%) per cent of the Fair Market Value thereof payable only in
    cash and by the assumption of assumable Permitted Encumbrances affecting the
    Defaulting Party's Co-Owner's Interest and to purchase such interest at such
    price in which event the Defaulting Party shall sell and the Non-defaulting
    Party shall purchase such interest on the terms set forth in Subsections 6.03
    and 6.04 hereof.
2.
The 2005
    August Agreement
WHEREAS:
A.        Romandale,
    as to an undivided 95% interest, and Frambordeaux Developments Inc. (FDI), as
    to an undivided 5% interest, are the owners of the lands and premises
    consisting of 278 acres, more or less, described as part of Lot 25 in
    Concessions 4 and 5, Town of Markham (having P.I.N. 03055-0008 (LT) (the
    Snider Property) and 03056-0052 (LT) (the McGrisken Property))
    (collectively, the Snider/McGrisken Property) which are subject to a mortgage
    in favour of The Bank of Nova Scotia (the Bank) in the original principal amount
    of $6,000,000 registered as Instrument No. YR479080 (the BNS Mortgage);
B.        The
    amount outstanding under the BNS Mortgage is scheduled to become due and
    payable on August 30, 2005 and Romandale has requested 2001251 to acquire the
    mortgagee's interest under the BNS Mortgage and such of the Bank's additional
    security provided by Romandale in connection therewith as may be required in
    order to ensure that the BNS Mortgage is a good and valid first charge against
    title to the Snider/McGrisken Property (collectively, the Security) and
    thereafter extend its terms for repayment;
C.        Romandale
    has agreed to sell its interest in the Snider/McGrisken Property to 2001251 on
    the terms herein set out;
D.        Romandale
    and parties affiliated with Romandale are the owners of the lands and premises
    described as part of Lot 26, Concession 4, Town of Markham (having PIN
    03055-0009 (LT)) (the Triple R Property) and Romandale has agreed to cause
    the sale of such property to 2001251 on the terms herein set out;
E.         Romandale
    is the owner of the lands and premises described as part of Lot 24, Concession
    5, Town of Markham (being PIN 03056-0199 (LT)) (the Elgin South Property) and
    has agreed to grant to 2001251 a right of refusal to purchase such property on
    the terms herein set out;
NOW
    THEREFORE THIS AGREEMENT WITNESSES that, in consideration of 2001251 agreeing
    to acquire the BNS Mortgage and extend the term for repayment thereunder and in
    consideration of the other covenants contained herein, the parties agree as
    follows:
1.         BNS
    Mortgage
(a)        2001251
    or its affiliate shall acquire the mortgagees interest under the Security,
    including without limitation, the BNS Mortgage on or before the amount
    outstanding thereunder becomes due and payable. 2001251 and/or its designate
    shall be at liberty to contact the Bank at any time hereafter for the purposes
    of settling the terms and conditions in respect of the purchase of the BNS
    Mortgage. 2001251 shall receive a mortgage statement from the Bank setting out
    the current outstanding balance under the BNS Mortgage. Thereafter, the parties
    to the BNS Mortgage shall enter into an amending agreement whereby: (i) the
    term is extended such that all amounts secured thereby shall become due and
    payable upon the earlier of (A) the date that is three (3) years from the date
    of closing of 2001251s purchase of the BNS Mortgage and (B) the date upon
    which Romandale conveys the Remaining Portion (as hereinafter defined) of the
    Snider/McGrisken Property to 2001251 and (ii) the interest rate chargeable
    thereunder shall be 8% per annum payable interest only monthly in arrears.
(b)        Romandale
    shall pay the sum of $20,000 to 2001251 on the execution of this agreement to
    reimburse it for its costs and expenses incurred to date, and it shall pay to
    2001251 all further costs and expenses of 2001251 incurred in connection with
    the BNS Mortgage acquisition on the date that the mortgage assignment and
    amending agreement is executed by the parties an registered on title.
    Notwithstanding the foregoing, the parties agree that Romandale shall only be
    responsible up to the sum of $10,000 in respect of legal fees incurred in
    connection with 2001251's acquisition of the BNS Mortgage.
(c)        In
    connection with the acquisition of the BNS Mortgage by 2001251, Romandale shall
    cause its counsel Berkow Cohen LLP (Jack Berkow) and Gowling Lafleur Henderson
    LLP (John Whyte) (collectively, Romandale Counsel), to provide opinions in
    favour of 2001251(collectively, the Opinions), which shall be in forms
    acceptable to 2001251 and its counsel, Aird & Berlis LLP (Hayden Solomons),
    acting reasonably, and which shall include, without limitation, opinions that
    the BNS Mortgage is a good and valid first fixed mortgage registered against
    title in the Snider/McGrisken Property and that the BNS Mortgage and this
    Security has been validly assigned to 2001251, that there are no other
    financial encumbrances affecting title to the Snider/McGrisken Property and
    that acquisition and amendment by 2001251 of the BNS Mortgage on the terms and
    conditions as herein set out shall not constitute a transaction (including,
    without limitation, a Disposition as defined under the Co-Owner Agreement
    dated May 29, 2003 in respect of the Snider Property (the Snider Co-Owner
    Agreement) and as defined under the Co-Owner Agreement dated May 29, 2003 in
    respect of the McGrisken Property (the McGrisken Co-Owner Agreement)
    (collectively, the Snider Co-Owner Agreement and the McGrisken Co-Owner
    Agreement are referred to herein as the Co-Owners Agreements, and any
    amendments thereto) that requires the consent of FDI pursuant to the said
    Co-Owners Agreements.
2.         Sale
    of the Snider/McGrisken Property
Romandale
    shall sell 5% of its interest (the Initial Interest) in the Snider/McGrisken
    Property (being 4.75% of the total 100% ownership in the Snider/McGrisken
    Property (e.g. 95% Romandale and 5% FDI as of the date of this agreement) and,
    of FDI if it so desires, to 2001251 or its affiliate on the terms herein set
    out. Romandale shall sell its remaining interest in the Snider/McGrisken
    Property, being 95% of its interest in the Snider/McGrisken Property (the
    Remaining Interest) also on the terms herein set out save that the sale of
    the Remaining Interest is conditional for the benefit of the vendor and the
    purchaser on the valid exercise of the buy-sell rights under the Buy-Sell
    Provisions (as defined in paragraph 5 of this Agreement) and the completion of
    the buy-out of the interest of FDI, or, in the alternative, the consent of FDI
    to the transaction and save that financial figure shall be adjusted pro-rata to
    represent the said Remaining Interest. In respect of the foregoing, Romandale
    covenants to use reasonable best efforts to obtain the consent of FDI in
    respect of the sale of the Remaining Interest to 2001251 or its affiliate as
    aforesaid. For clarification, the following terms are applicable in respect of
    the Initial Interest but would be adjusted to reflect the aforesaid Remaining
    Interest at the time that Romandale is able to sell the Remaining Interest to
    2001251 or its affiliate as aforesaid:
(a)        The
    purchase price shall be based on the sum of $160,000 per acre which price will
    be calculated using the existing most recent survey of the subject property
    which Romandale represents and warrants accurately describes the subject
    property. With respect to the purchase of the Initial Interest, an initial
    deposit of $100,000 shall be paid immediately, and the balance of the purchase
    price shall be paid by certified cheque or bank draft on the closing of such
    transaction. With respect to the purchase of the Remaining Interest, the
    purchase price shall be reduced at the end of the 5
th
year of the
    term of the VTB #1 Mortgage (as hereinafter described) by the amount that the
    acreage of the non-developable land (being land prohibited from development by
    law) subject to environmental protection requirements, wood lots, land below
    top-of-bank and the set-backs from top-of-bank, streams and floodplain,
    existing easements, but not including up to half of the existing lake on the
    subject property to a maximum of two acres (the ND Land) exceeds 15% of the
    total acreage. The parties shall each retain their own consultant to determine
    the acreage of the ND Land and both parties shall agree upon a third
    independent qualified consultant to determine the acreage of the ND Land in the
    event that their own consultants cannot agree upon such acreage. In the event
    of such disagreement, the amount of the ND Land shall be deemed to be the
    average of the amounts determined by the 3 consultants. Such determination of
    the amount of acreage of the ND Land shall be final and binding upon the
    parties, with no rights of appeal therefrom. The parties shall each bear the
    cost of their own consultant and 50% of the cost of the third consultant.
(b)        The
    purchase price in respect of the purchase of the Remaining Interest shall be
    paid to the extent of 35% thereof by certified cheque on closing and the
    balance by way of a vendor take-back mortgage (the VTB #1 Mortgage) with a
    term of 7 years, bearing no interest, with two balloon principal payments of
    $9,500,000 each to be paid at the end of the 3
rd
year of the term
    and at the end of the 5
th
year of the term, respectively, with the
    price adjustment described in section 2(a) hereof to be applied at the time of
    such [later] payment. Notwithstanding the above, however, the parties further
    agree that the aggregate of the amount paid on closing and the two balloon
    principal payments shall not exceed 75% of the overall purchase price as
    adjusted pursuant to section 2(a) hereof.
(c)        The
    closing of the sale of the Initial Interest shall take place on the 31
st
day of January, 2006. The closing of the sale of the Remaining Interest shall
    take place sixty (60) days (or the next business day following such sixtieth
    (60
th
) day after the earlier of: (1) Romandale obtaining the consent
    of FDI pursuant to the Co-Owners Agreements to the sale of the Remaining
    Interest to 2001251 pursuant to the terms and conditions hereof, or (2)
    Romandale closing the purchase of FDI's co-ownership interest in the
    Snider/McGrisken Property pursuant to its rights under the Buy-Sell Provisions
    (as defined in paragraph 5 of this Agreement).
(d)       The
    occupants approved by Romandale (the Superintendents) shall be entitled to
    occupy the residence on the Snider/McGrisken Property as Superintendents and
    caretakers to maintain and supervise the property, and they are to pay all
    maintenance, utilities and fire and liability insurance costs (which insurance
    shall be obtained by them and with the owner noted on all insurance policies
    for the above coverages as loss payee). The Superintendents' right to occupy
    the property shall automatically terminate on the earlier of the 5
th
anniversary of the closing of the purchase and sale of the Initial Interest or
    Secondary Plan Approval being obtained for the Snider/McGrisken Property.
(e)        In the
    event of any final judgment or order or any execution in favour of Bordeaux,
    FDI or any third party which attaches to or creates an interest in or affects
    title to the Snider/McGrisken Property, then in such case, the purchase price
    hereunder for Romandale's interest in the Snider/McGrisken Property shall be
    reduced by the value of such judgment, order or execution as follows: (1) in
    the event that the purchase transaction in respect of the Initial Interest has
    not yet closed, a reduction in the cash component of the said purchase price,
    (2) in the event that the purchase transaction in respect of the Remaining
    Interest has not closed then the purchase price in respect thereof shall be
    reduced by a reduction first in the cash component of the said purchase price
    and the balance, if any, resulting in a reduction of the principal amount owing
    under the VTB #1 Mortgage, or (3) in the event that such purchase transaction
    in respect of the Remaining Interest has closed, a reduction in the principal
    balance, owing under the VTB #1 Mortgage. The parties covenant and agree to
    notify the other of the details of any such judgment, order or execution
    forthwith following first becoming aware of such judgment, order or execution.
3.         Sale
    of the Triple R Property
Romandale
    shall sell, or shall cause the owners to sell, the Triple R Property to 2001251
    or its affiliates on the terms herein set out:
(a)        The
    purchase price shall be based on the sum of $175,000 per acre which price will
    be calculated using the existing most recent survey of the subject property
    which Romandale represents and warrants accurately describes the subject
    property. The purchase price shall be reduced at the end of the 5
th
year of the term of the VTB #2 Mortgage (as hereinafter described) by the
    amount that the acreage of the ND Land within the Triple R Property exceeds 20%
    of the total acreage. The determination of the amount of acreage of such ND
    Land shall be made in the same manner as that described in section 2 (a)
    hereof;
(b)        The
    purchase price shall be paid to the extent of 70% thereof by certified cheque
    on closing and the balance by way of a vendor take-back mortgage (the VTB #2
    Mortgage) with a term of 7 years, bearing no interest, with a balloon principal
    payment of $1 million at the end of the 3
rd
year of the term. The
    price adjustment described in section 3(a) hereof shall be applied at the end
    of the 5
th
year of the term, and 50% of the balance owing under the
    VTB #2 Mortgage shall be paid at the end of the 6
th
year of the term
    and the balance at the end of the 7
th
year of the term;
(c)        The
    Superintendents shall be entitled to occupy the residence on the Triple R
    Property as Superintendents and caretakers to maintain and supervise the
    property, and they are to pay all maintenance, utilities and fire and liability
    insurance costs (which insurance shall be obtained by them and with the owner
    noted on all insurance policies for the above coverages as loss payee). The
    Superintendents' right to occupy the property shall automatically terminate on
    the earlier of the 5
th
anniversary of closing or Secondary Plan
    Approval being obtained for the Triple R Property.
(d)       2001251
    shall immediately provide a deposit to Romandale in the amount of $100,000 in
    respect of its obligations to purchase the Triple R Property pursuant to the
    terms hereof, together with an interest-free loan of $1,000,000 evidenced by a
    promissory note signed by Romandale which shall be repayable on the closing of
    the sale of the Triple R Property to 2001251 or its affiliates.
(e)        The
    closing of such sale shall take place on the date that is 70 days following the
    closing date of the transactions described in section 1 hereof (or the next
    business day thereafter in the event that such 70
th
day is not a
    business day).
4.         Elgin
    South Property
The
    Elgin South property is subject to an existing right of first refusal in favour
    of Angus Glen Farm (1996) Limited. On the closing of the acquisition of the BNS
    Mortgage, Romandale shall grant to 2001251 or its affiliate a right of second
    refusal to purchase such property on the same terms as contained in any offer
    to purchase that Romandale is prepared to accept. The form of such grant shall
    be in the same form as the existing agreement with Angus Glen Farm (1996)
    Limited. 2001251 shall be permitted to register notice of the aforesaid right
    of second refusal against title to the Elgin South Property. Romandale
    covenants and agrees to execute such further documents and to do all such
    further acts and things from time to time as requested by 2001251, to more
    effectively confirm and evidence the right of second refusal.
5.         Irrevocable
    Appointment
Romandale
    hereby agrees that, on consideration of entering of this agreement by 2001251,
    other good and valuable consideration and the sum of Ten Dollars ($10.00) paid
    by 2001251 to Romandale, the receipt and sufficiency of all of which is hereby
    acknowledged, Romandale hereby irrevocably appoints 2001251 as its exclusive
    true and lawful attorney and agent having full power of substitution, and
    2001251 is hereby fully authorized as such to act on behalf of and/or give
    binding instructions to Romandale solely in connection with the exercise of the
    buy-sell rights pursuant to the Buy-Sell Provisions (as hereinafter defined).
    Romandale agrees that any and all decisions, operations, conduct and actions
    relating to the development of the Snider/McGrisken Property shall be within
    the exclusive control of 2001251 and Romandale shall assist in facilitating
    such control to comply with Section 5.10 of the Co-Owners Agreements over all
    decisions, operations, conduct and actions exercisable by Romandale relating to
    the development and obtaining of development approvals for the Snider/McGrisken
    Property. Prior to the closing of the sale of the Remaining Interest, Romandale
    acknowledges and agrees that it may not transfer, sell, encumber or otherwise
    deal with or dispose of all or any part of the Snider/McGrisken Property
    without the prior written consent of 2001251. Romandale covenants and agrees to
    execute such further documents and to do all such further acts and things from
    time to time as requested by 2001251, to more effectively confirm and evidence
    the said attorney as it relates to the buy-sell rights. Romandale and 2001251
    shall cooperate in getting the Snider/McGrisken Property included under the
    Town of Markham urban envelope for development purposes, and Romandale shall
    make all reasonable steps to reduce land wastage to as small an amount as
    possible, using Joanne Burnett, Jeff Kerbel and/or his designate to act on behalf of Romandale in taking such steps. Romandale further acknowledges that
    the foregoing rights of 2001251 are intended, without limitation, to permit
    2001251 to cause Romandale to trigger Romandale's buy-sell rights under section
    5.07 of each of the Co-Owners Agreements in respect of the Snider/McGrisken
    Property (collectively, the Buy-Sell Provisions) following Secondary Plan
    Approval being obtained for the Snider/McGrisken Property such that Romandale
    acquires the co-ownership interest of FDI in the Snider/McGrisken Property and
    then conveys such interest to 2001251 in accordance with this Agreement and to
    restrict Romandale from dealing with the Remaining Interest or any part thereof
    in the Snider/McGrisken Property in any way whatsoever, subject to the terms
    and conditions of the Co-Owners Agreement.
6.         Development
    Costs
Romandale
    shall not be responsible for development costs incurred by 2001251 Ontario Inc.
7.         General
(a)        This
    agreement shall be a binding agreement between the parties hereto save that it
    shall be conditional upon compliance with the
Planning Act
.
(b)        Any
    notice given hereunder shall be in writing and given by personal delivery or by
    fax to the addresses set out on the signing page hereof. Such notice shall be
    deemed to have been given on the day of delivery or transmission if such was
    completed by 5:00 p.m. failing which it shall be deemed to have been given on
    the next day.
(c)        Time
    shall be of the essence hereof.
(d)       Romandale
    shall take all actions so as to ensure that all property interests conveyed
    pursuant to this agreement shall be good and marketable, free of all mortgages,
    liens and encumbrances.
(e)        This
    agreement may be executed and delivered by counterparts and by facsimile
    transmission, and if so executed and delivered, each document shall be deemed
    to be in original, shall have the same effect as if each party so executing and
    delivering this agreement had executed the same copy of this agreement and all
    of which copies when taken together shall constitute one and the same document.
3.
The Settlement Agreement
WHEREAS
Frambordeaux
    Developments Inc. (Frambordeaux) and Romandale Farms Limited (Romandale)
    are co-owners of two parcels of land which are the subject of these actions
    (the Lands) and are parties to Co-Owners Agreements governing their rights
    and obligations respecting their ownership of the Lands (the Co-Owners
    Agreements) which provide,
inter alia
, that each Co-Owner has a right
    of first refusal respecting an offer to purchase the other Co-Owners interest
    (the Right of First Refusal) and each Co-Owner has a buy-sell right in
    respect of the other Co-Owners interest (the Buy-Sell Provision), but that
    in both cases the rights may only be exercised after secondary plan approval
    has been obtained for the Lands, and that save for those dispositions expressly
    permitted by the Co-owners Agreements (whereby Romandale was permitted under
    certain conditions to sell up to 39% interest in the Lands), neither Co-Owner
    is permitted to dispose of its interest in the Lands without the consent of the
    other Co-Owner;
AND WHEREAS
Romandale and
    2001251 Ontario Inc. ("2001251") made an agreement dated August 29,
    2005 (the "August 29, 2005 Agreement") whereby Romandale agreed,
    inter alia, in respect of the Lands: to sell 5% of its interest (the
    "Initial Interest") in the Lands (being 4.75% of the total 100%
    ownership in the Lands) on the terms set out therein and originally scheduled
    to close January 31, 2006; and to sell its Remaining Interest in the lands
    (being 95% of its interest representing 90.25% of the total 100% ownership in
the
Lands) on the
    terms set out therein and at such time as Romandale could exercise its buy-sell
    rights under the Buy-Sell Provisions of the Co-Owners Agreements or
    Frambordeaux consented to the transaction;
AND WHEREAS
pursuant to the
    August 29, 2005 Agreement, Romandale transferred 5% of its interest in the
    Lands (being 4. 75% of the total Lands) to First Elgin Mills Developments Inc.
    ("First Elgin"), an affiliate of 2001251, on or about June 6, 2006;
AND WHEREAS
Romandale and
    First Elgin made a further agreement dated June 25, 2007, (the "June 25,
    2007 Agreement"), whereby Romandale agreed to sell a further 7% of its
    original 95% interest in the Lands (being 6.65% of the total 100% ownership in
    the Lands) to First Elgin for the same purchase price of $160,000 per acre
    subject to adjustment for net developable acreage as provided in the August 29,
    2005 Agreement;
AND WHEREAS
Frambordeaux
    sought and obtained an interlocutory injunction July 26, 2007 enjoining the
    defendants until further order of the Court from making any disposition of the
    Lands or any part of the interest of Romandale in the Lands;
AND WHEREAS
the Plaintiffs and
    the Defendants 2001251, First Elgin and Jeffrey Kerbel have agreed to
    settlement so that the right of 2001251 or its affiliate to acquire Romandale's
    Remaining Interest in the Lands pursuant to the August 29, 2005 Agreement may
    be exercised 60 days after Secondary Plan Approval for the Lands is obtained,
    and upon such acquisition the entire Lands shall at Frambordeaux' option be
    beneficially owned equally between 2001251 and Frambordeaux thereafter, so that
    a 50% undivided interest therein shall be beneficially owned by 2001251 or its
    nominee, and a 50% undivided interest therein shall be owned beneficially by
    Frambordeaux or its nominee.
THE
    PARTIES HERETO
agree as follows:

In
      the event Romandale will not concur in this settlement and these actions
      proceed to trial, Frambordeaux, Fram 405 Construction Ltd. and Bordeaux
      Homes Inc. shall not seek any relief against 2001251, First Elgin or
      Jeffrey Kerbel and shall not seek a declaration that the August 29, 2005
      Agreement is void nor that the June 6, 2006 transfer is invalid, but may
      pursue its claims against Romandale otherwise, including its claims for
      damages for breach of contract, misrepresentation and damages in lieu of
      specific performance, and all claims in these actions against 2001251,
      First Elgin and Jeffrey Kerbel shall be discontinued, with such
      discontinuance being an absolute defence for those defendants to any
      subsequent actions arising out of the circumstances pleaded.

2001251
      hereby grants an option to Frambordeaux to purchase a 50% interest in
      Romandale's Remaining Interest in the Lands to be acquired by 2001251 as
      described in paragraph 2 of the August 29, 2005 Agreement, on the same
      terms and conditions as 2001251 may purchase Romandale's Remaining
      Interest in the Lands, at such time or times as 2001251 may exercise its
      right to purchase all or part of Romandale's Remaining Interest, provided
      that in the event Frambordeaux exercises its option hereby granted, the
      respective interests of Frambordeaux and 2001251 shall be adjusted so that
      each of Frambordeaux and 2001251 (including their affiliates and related
      parties) beneficially hold an exactly equal percentage ownership interest
      (being an undivided 50% interest each) in the Lands.

In
      the event Frambordeaux exercises its option described in paragraph 2
      hereof, and all or part of Romandale's
Remaining
Interest
      shall have been purchased, 2001251, First Elgin and Frambordeaux shall
      assign all of their right, title and interest in the Lands to Fram First
      Elgin Developments Inc. which shall hold in trust for 2001251 or its
      nominee and for Frambordeaux or its nominee, each as to a 50% beneficial
      interest therein.

2001251
      and Frambordeaux, or their nominees, together with First Elgin Mills
      Developments Inc. and Fram First Elgin Developments Inc. shall enter into
      the form of joint venture agreement attached as Schedule "A"
      hereto and agree to share equally all costs relating to the acquisition of
      the Remaining Interest from Romandale, and all development costs incurred
      by either of them relating to the Lands since August 29, 2005 and going
      forward, and to make all decisions concerning the development and/or the
      exercise of all rights and obligations respecting the Lands, on a joint
      basis. Any disputes or disagreements shall be resolved by arbitration
      before a single arbitrator as the parties may agree, or failing such
      agreement, as may be appointed by a judge of the Ontario Superior Court.


Frambordeaux
      does not by this settlement agreement or otherwise consent to the
      transaction referred to in paragraph 2 of the August 29, 2005 Agreement.
      It is the intention of the parties hereto that the purchase and sale of
      Romandale's Remaining Interest in the Lands pursuant to these Minutes of
      Settlement will take place after Secondary Plan Approval for the Lands has
      been obtained.

The
      parties acknowledge that the legal description of the Lands is as set out
      in Schedule "B" appended hereto and that Notice of this
      Agreement pursuant to the Land Titles Act, R.S.O. 1990, c.L.5 may be
      registered against their respective undivided
interest
in the Lands
      and that Notice of Security Interest in respect of the option granted by
      this Agreement may be registered pursuant to the Personal Property
      Security Act, R.S.O. 1990, c. P. 10.

Dated:
    December 3
rd
, 2010


Lauwers
J.A. (
concurring
):

[315]

I would reach the same
    destination as my colleague, dismissal of the appeal, but by a different route.
    We part company on the role of estoppel by convention. I adopt my colleagues short
    forms in these reasons.

A.

OVERVIEW

[316]

I summarize my view of
    this appeal in the following propositions:

1)

When Fram consented to the sale of Romandales Remaining Interest in the
    Lands to Kerbel under the 2005 August Agreement on August 22, 2018, any
    estoppel against Romandale ceased to have practical effect and was therefore spent.
    It plays no further legal role in the contractual relations among the parties.
    Those relations are entirely structured and governed by their respective
    agreements.

2)

In any event, on the facts of this case, estoppel by convention does not
    arise.

3)

By entering into the Settlement Agreement, Kerbel did not breach the
    2005 August Agreement.

4)

Kerbel did not repudiate the 2005 August Agreement.

5)

Kerbel is entitled to specific performance of the 2005 August Agreement.

[317]

I will explain each of
    these propositions in turn, after restating the contractual context.

B.

THE
    CONTRACTUAL CONTEXT

[318]

The COAs between Fram
    and Romandale respecting the McGrisken and Snider Farms were signed in 2003.
    The COAs structure the relationship between Fram and Romandale.

[319]

The 2005 August Agreement
    between Kerbel and Romandale was signed in 2005. It included not only the
    McGrisken Farm and the Snider Farm, but also the Triple R Lands and the Elgin
    South Property, both of which were owned by or subject to the direction of
    Romandale. The 2005 August Agreement structures the relationship between Kerbel
    and Romandale. It has been fully performed except for the sale of Romandales
    Remaining Interest in the McGrisken and Snider Farms to Kerbel.

[320]

Fram and Kerbel signed
    the Settlement Agreement on December 3, 2010. The Settlement Agreement
    structures the relationship between Fram and Kerbel. Romandale was not a party
    to the Settlement Agreement. Romandale had participated in the September 2010 judicial
    mediation but withdrew in October 2010. (I observe that calling the
    exercise a judicial mediation gives it unwarranted gravity.) In the end, the
    Settlement Agreement was a business deal between Kerbel and Fram to which
    Romandale was not a party.

[321]

Romandale first raised
    the possibility that the Settlement Agreement breached the 2005 August
    Agreement in February 2011 but did not allege that by entering it Kerbel
    repudiated the 2005 August Agreement until 2015.

[322]

As I will explain, these
    three agreements remain in full force and effect and govern the parties to them.

C.

ANALYSIS

(1)

Any
    Estoppel Ceased to Have Practical Effect When Fram Consented to the Sale of
    Romandales Remaining Interest on August 22, 2018

[323]

The estoppel by
    convention raised by Kerbel and Fram against Romandale arises from the
    Settlement Agreement. Romandale argues that Kerbel repudiated the 2005 August
    Agreement by entering into the Settlement Agreement, which provided that the
    sale of Romandales Remaining Interest would take place only after the Lands
    obtained SPA. Kerbel, in turn, seeks an order for specific performance of the
    2005 August Agreement. Kerbel and Fram, together, argue that Romandale is
    estopped from resiling from Romandales earlier position that the buy-sell in
    the COAs could only be triggered upon SPA. That position was reflected in earlier
    representations to that effect made by all three parties, as my colleague has
    detailed at paras. 156-172. But for Frams 2018 consent, giving effect to this
    position would have the effect of extending the likely date for closing the
    COAs, and perforce the 2005 August Agreement, for many years, until after SPA.

[324]

My colleague defines
    the Shared Assumptions that underpin the estoppel by convention, at para. 153:

(1) the buy-sell provision in the COAs could not be triggered
    until after SPA had been achieved for the Lands; and (2) under the 2005 August
    Agreement, Kerbel could not cause Romandale to trigger the buy-sell under the
    COAs until after SPA.

She finds that Romandale is estopped from resiling
    from these Shared Assumptions. In her analysis, the estoppel continues to
    operate and prevents Romandale from resisting on order for specific performance
    of the 2005 August Agreement on the basis that it was fundamentally breached
    and repudiated by Kerbels entry into the Settlement Agreement.

[325]

However, as my
    colleague notes, the assumption that the buy-sell provision in the COAs could
    not be triggered until after SPA was a mistaken reading of s. 5.07 of the COAs.
    Romandale could have triggered the buy-sell under the COAs at any time after the
    DMAs were terminated in February 2005. Because the 2005 August Agreement was
    tied to the COAs, Kerbel could have caused Romandale to pull the trigger at any
    time after it signed that agreement. This understanding of the true trigger
    date is now common ground.

[326]

In August 2018, a few
    months before the trial started, Fram consented to the sale of Romandales
    Remaining Interest in the McGrisken and Snider Farms to Kerbel, pursuant to the
    2005 August Agreement. Under para. 2(c) of that agreement, The closing of the
    sale of the Remaining Interest shall take place sixty (60) days after Romandale
    obtaining the consent of [Fram]... to the sale of the Remaining Interest. Frams
    consent removed any obstacle to the closing of that transaction.

[327]

The alleged estoppel
    prevented Romandale from insisting on an earlier closing date than after SPA, which
    by 2010 was projected to be years if not decades into the future. But this
    purpose of the estoppel was rendered redundant by Frams 2018 consent. In my
    view, assuming the estoppel was founded and was enforceable against Romandale, it
    ceased to have practical effect and plays no further legal role in the
    contractual relations among the parties. Frams consent could not have revived
    the 2005 August Agreement if it had been repudiated by Kerbel but, as I explain
    below, Kerbel did not repudiate that agreement.

[328]

The relations among
    the contracting parties are entirely structured and governed by their
    respective agreements, which also govern the disposition of this appeal.

[329]

If I am mistaken in
    concluding that the estoppel was effectively spent in 2018, I next set out my
    reasons for holding that there was no estoppel by convention on the facts of
    this case.

(2)

Estoppel
    by Convention Is Not Made Out

[330]

I begin with the
    governing principles of estoppel by convention, review the evidence, and then apply
    the principles to the facts.

(a)

The Principles Governing Estoppel by Convention

[331]

The law on estoppel by
    convention, at least in Canada, is under-theorized. There has been little
    jurisprudence. The most authoritative statement is that of the Supreme Court in
Ryan v. Moore,
2005 SCC 38, [2005] 2 S.C.R. 53. Bastarache J. set out
    the criteria that form the basis of the doctrine, at para. 59, which I repeat here
    for convenience:

(1)     The parties dealings must have been based on a shared
    assumption of fact or law: estoppel requires manifest representation by
    statement or conduct creating a mutual assumption. Nevertheless, estoppel can
    arise out of
silence
(impliedly). [Emphasis in original.]

(2)     A party must have conducted itself, i.e. acted, in
    reliance on such shared assumption, its actions resulting in a change of its
    legal position.

(3)     It must also be unjust or unfair to allow one of the
    parties to resile or depart from the common assumption. The party seeking to
    establish estoppel therefore has to prove that detriment will be suffered if
    the other party is allowed to resile from the assumption since there has been a
    change from the presumed position.

[332]

Note the reference by
    Bastarache J. to the requirement for a manifest representation. This
    expression must be read in context. The key difference between estoppel by
    representation and estoppel by convention is that in estoppel by
    representation, one party must make a representation to the other party on
    which the other party relies, whereas, in estoppel by convention, neither party
    need have made a representation to the other party so long as they both proceeded
    on a shared assumption and were each aware of the others assumption: see
Ryan
    v. Moore
, at paras. 54, 62.

[333]

In
Grasshopper
    Solar Corporation v. Independent Electricity System Operator
, 2020 ONCA
    499, leave to appeal refused, [2020] S.C.C.A. No. 360 and No. 361, Huscroft
    J.A. made explicit another element of the test that I believe was implicit: the
    partys reliance on the shared assumption must have been reasonable. Huscroft
    J.A. noted, at para 54:

Although the doctrine of estoppel cannot vary the terms of a
    contract, it may operate to prevent a party from relying on the terms of the
    contract
to the extent necessary to protect the
    reasonable reliance of the other party
. Thus, the doctrine has the potential
    to undermine the certainty of contract and must be applied with care,
    especially in the context of commercial relationships between sophisticated
    parties represented by counsel. Estoppel is a fact specific doctrine and the
    concern noted by Bastarache J. in
Moore
, at para. 50 remains apposite:
    "estoppels are to be received with caution and applied with care". [Emphasis
    added, citation omitted.]

[334]

Huscroft J.A. added,
    at para. 55, that estoppel by convention is a relatively rare form of estoppel,
    and, at para. 56, Estoppel exists to protect
reasonable
reliance: it
    must be reasonable to adopt a particular assumption and reasonable to act in
    reliance on it (emphasis in original, citations omitted).

[335]

This orientation anchors
    estoppel by convention in the root principle of the common law of contract,
    which is to give effect to the reasonable expectations of contracting parties
    as set out in the text of their contract: see
Martin v. American
    International Assurance Life Co.
, 2003 SCC 16, [2003] 1 S.C.R. 158, at
    paras. 12, 16;
Ledcor Construction Ltd. v. Northbridge Indemnity Insurance
    Co.
, 2016 SCC 37, [2016] 2 S.C.R. 23, at para. 5;
Onex Corp. v.
    American Home Assurance Co.
,

2013 ONCA 117, 114 O.R. (3d) 161, at
    paras. 106, 108, leave to appeal refused, [2013] S.C.C.A. No. 178; and
Dumbrell
    v. The Regional Group of Companies Inc.
, 2007 ONCA 59, 85 O.R. (3d) 616, at
    paras. 51-53.
[13]


[336]

Parol evidence figures
    in this case. Evidence of what a party said or did is often admissible as part
    of the narrative of a contractual dispute. It is undoubtedly admissible to
    found an estoppel, as stated in
Chartbrook Limited v. Persimmon Homes
    Limited
, [2009] UKHL 38, at para. 42:

The rule excludes evidence of what was said or done during the
    course of negotiating the agreement for the purpose of drawing inferences about
    what the contract meant. It does not exclude the use of such evidence for other
    purposes: for example, to establish that a fact which may be relevant as
    background was known to the parties,
or to support a
    claim for rectification or estoppel. These are not exceptions to the rule. They
    operate outside it
. [Emphasis added.]

[337]

Such evidence is also
    available, by necessary implication, to challenge the veracity of an estoppel.

(b)

The Evidence

[338]

As the trial judge
    explained, the mistaken view of the trigger date appears to have originated in
    some correspondence from counsel for Fram in February 2007. It was then perpetuated
    in many statements, as my colleague outlines at paras. 156-172. Often, these
    statements were made by Romandales own representatives. This mistake was
    apparently not discovered until 2015 when Romandales new counsel pointed it
    out and it became the factual backbone to Romandales litigation strategy.

[339]

The trial judge described
    the situation, at paras. 103-105:

It is Romandale's position that "amidst the to-ing and
    fro-ing" of Fram and Romandale's counsel in respect of Romandale's alleged
    breach of the COAs, Fram's counsel set in motion a mischaracterization of the
    availability of the Buy-Sell in s. 5.07 of the COAs that pervaded subsequent
    pleadings and affidavits relied on by the parties and that was ultimately
    identified and rectified by Romandale in 2015 when it changed counsel. It is
    alleged that this began in a letter dated February 26, 2007, when counsel for
    Fram wrote to counsel for Romandale alleging a breach of the COAs and
    asserting:

The Elgin Mills Lands have not received Secondary Plan
    Approval, as defined in Section 5.07(a) in each of the Co-ownership Agreements.
    Therefore, the provisions dealing with Dispositions set out in Section 5.04,
    5.05 and 5.07 are inapplicable.

Whether or not this was the first time this incorrect position
    was stated or not, this position was clearly wrong in that as I have already
    stated, the Buy-Sell could also be triggered after termination of the DMAs,
    even
before SPA
, which I have found occurred in
    February 2005. This error in summarizing the Buy-Sell provisions of the COAs as
    only being available after SPA was also taken up by Kerbel and Romandale. For
    example, in the first recital to the Settlement Agreement the COAs are referred
    to, and with respect to the Buy-Sell provisions it is stated that "the
    rights may only be exercised
after secondary plan
    approval
has been obtained for the Lands ..." [emphasis added].

When Ms. Batner was retained by Romandale in 2015, Romandale
    was granted leave to amend its Statement of Defence to correct the
    mischaracterization that had pervaded the pleadings and tainted the parties'
    evidence until that time. As already stated, this error explains the evidence
    of Mrs. Roman-Barber and the positions of Romandale's former counsel in the
    period from 2007 to the time Ms. Batner was retained.

[340]

My colleague
    identifies the assumption that the buy-sell provision in the COAs could not be
    triggered until after SPA as the shared assumption on which estoppel by
    convention arises. This assumption, in her view, was held by all of the parties
    in 2010 when the Settlement Agreement was negotiated. Candidly, I doubt the
    veracity of this assertion, at least as it relates to Kerbel and Fram, and
    particularly to Mr. Kerbel.

[341]

The trial judge found that
    Mr. Kerbel knew he could have caused Romandale to trigger the buy-sell under
    the COAs at any time, because the DMAs had been terminated in February 2005:

In his affidavit Mr. Kerbel swore that he and Mrs. Roman-Barber
    deliberately agreed to defer triggering the Buy-Sell in the August 2005
    Agreement until
after SPA
because of Mr. Kerbel's
    reluctance to being dragged into the existing Bordeaux litigation regarding the
    DMAs and that their lawyers drafted the August 2005 Agreement to provide for
    this. He testified that he and Mrs. Roman-Barber and their lawyers agreed
    "and we specifically took [the DMAs] out of our deal because no judge had
    said [Bordeaux] was terminated".

Romandale argues that this was false evidence and I agree.
    First of all, Mr. Kerbel abandoned that position during his cross-examination,
    when he admitted he could have caused Romandale to trigger the Buy-Sell
before SPA
under the August 2005 Agreement, and indeed
    that he would have when the Bordeaux litigation resolved:

Q: [...
I]f the Bordeaux litigation
    settled, you would have caused Romandale to trigger the buy/sell
. You
    recall I asked you that question?

A:
Yes, Im going to say I would have.

Q: Pardon?

A:
I am going to say I would have.

Q:
You would have?

A:
Yes.

[...]

Q: And you wanted to be the decider on the timing and the
    amount of the buy/sell that Romandale would trigger with Fram.

A: Well,
the timing was as soon as I
    could
, but the amount, yeah.

Q: So when you say the timing was "as soon as I
    could", that just goes back to our last discussion.
As
    soon as possible, as soon as you were satisfied that the Bordeaux litigation
    wasn't a problem, you would have caused Romandale to trigger the buy/sell.
[14]

A:
Yes, I would have.
[Emphasis
    added by the trial judge.]

[342]

The trial judge stated,
    at para. 314, that the pith and substance of the 2005 August Agreement was an
    expedient land sale (Kerbel gets the Lands and Romandale gets the equity it required)
    without breaching the existing Land agreements [with Fram]. She noted
    accurately: There was zero benefit to Romandale in putting off closing.

[343]

What changed for all
    the participants was the development horizon. The trigger date acquired new saliency
    in 2009, when government decisions introduced a long delay in the development
    horizon. From development approvals that were, in 2005, anticipated in a few
    years, the development horizon went out many years, perhaps decades. The likely
    land use designations also changed, with the Snider Farm proposed for
    employment use, not residential development, reducing both the value of the
    Lands and Frams incentive as a home builder.

[344]

I noted in this
    courts decision in
First Elgin Mills Developments Inc. v. Romandale Farms
    Limited
, 2014 ONCA 573, 324 O.A.C. 153, at paras. 31-32: The process of
    moving raw land through the land development process is complex, time
    consuming, and expensive. I added: The outcome is frequently uncertain. This
    is known to experienced land developers like Kerbel and Fram and experienced
    owners of development lands like Romandale. The agreements between the parties were
    built around these uncertainties, which came to pass in this case.

[345]

Because of the changes
    in the development horizon and the likely development permissions, both Kerbel
    and Fram had a substantially reduced appetite to complete the transactions
    contemplated by the COAs and the 2005 August Agreement. The trial judge
    explained:

Both Mr. Giannone and Mr. Kerbel acknowledged at trial that
    these developments concerned them. They both admitted that they would have
    preferred shorter development timelines and a residential designation for the
    Snider Farm, as residential use would have made for a significantly better
    investment. Fram would have preferred residential land use rather than
    employment land use as the real way that Fram was to make money was largely
    tied to its homebuilding rights under the CMAs, which would be dead if the
    Lands remained employment lands.

Mr. Kerbel admitted that by 2009 as a result of these
    developments, he was no longer in the mindset of closing with Romandale as soon
    as possible. Mr. Giannone admitted that by 2010 the Lands were a materially
    "different product". Mr. Giannone also admitted that because of his
    concerns about the real estate market, when he entered into the Settlement
    Agreement with Kerbel, he was not committed to buying half of Romandale's
    remaining interest in the Lands. He wanted to have that option in the future. He
    was careful to ensure that by entering into the Settlement Agreement it could
    not be construed a consent under the Conditional Agreement because if Fram had
    consented, the deal between Romandale and Kerbel could have closed.

[346]

I make several observations
    about where things stood upon execution of the Settlement Agreement by Kerbel
    and Fram. It was drafted by Kerbel and Fram to reflect their interests. It was
    an advantageous deal for two canny land developers, entirely at the risk and
    cost of the majority landowner, Romandale. The Settlement Agreement states
    that, under the COAs, the buy-sell could only be exercised after SPA had been
    obtained and that Romandale would sell its Remaining Interest to Kerbel under
    the 2005 August Agreement when the buy-sell could be exercised or when Fram
    consented. The Settlement Agreement goes on to provide that the sale of
    Romandales Remaining Interest to Kerbel will take place after SPA is
    obtained. Effectively, under the terms of the Settlement Agreement, Kerbel
    agreed not to cause Romandale to trigger the buy-sell provision under the COAs
    as it was empowered to do under the 2005 August Agreement. This elongation of
    time spared both Kerbel and Fram the obligation to come up with the money to
    finance the acquisition of land whose value had become uncertain, until SPA,
    when its value could be ascertained.

[347]

This allowed Kerbel to
    put off paying Romandale the fixed price of $160,000 per acre, negotiated
    in 2005, for many years, perhaps decades. With inflation over the ensuing years,
    the constant dollar value of the land would decline over that time at the sole
    expense of Romandale.

[348]

This also saved Fram,
    for the same period of time, from having to respond to the buy-sell provision
    in the COAs. Fram instead acquired a solid development partner, in Kerbel, with
    whom to share acquisition and development costs, and risks. And both Fram and
    Kerbel, being formidable adversaries, eliminated litigation risk and cost
    between them by settling their actions against each other.

(c)

The Principles Applied

[349]

In my view, the
    invocation by Kerbel and Fram of estoppel by convention fails. Any application
    of estoppel by convention in this case requires this court to account for the
    role that the supposedly shared but mistaken assumption regarding the interpretation
    of the COAs actually played in the formation of the Settlement Agreement.

[350]

Given Mr. Kerbels
    evidence that he knew the buy-sell could be triggered after the termination of
    the DMAs, and before SPA, as quoted by the trial judge and repeated at para. 341,
    above, it is very unlikely that Kerbel in particular, and Fram by implication,
    shared in Romandales mistaken interpretation of the trigger date in the COAs. I
    infer that it is much more likely that they knowingly took advantage of Romandales
    mistaken view, which had been repeated on many occasions. Ignorance of the true
    trigger date on the part of Kerbel and Fram, two savvy land developers, is
    highly implausible. Kerbel and Fram used the trigger date as a vehicle to put
    off payment to Romandale indefinitely.

[351]

My colleague alludes
    to the fact that none of the parties to this appeal resisted the claim that
    they had all shared in the mistaken assumption that the buy-sell could only be
    triggered after SPA.

[352]

It is true that
    estoppel by convention was not resisted on this basis. However, the trial judge
    found, at para. 87, that Mr. Kerbel knew that [the buy-sell] could be
    triggered before SPA after termination of the DMAs. At para. 89, she found Mr. Kerbels
    evidence that he had forgotten this fact disingenuous. A finding that Kerbel
    shared in the mistaken shared assumption that my colleague identifies is
    inconsistent with the trial judges findings, to which I would defer as factual
    determinations of credibility. The inferences I have drawn from these
    determinations are inescapable.

[353]

Further, estoppels
    are to be received with caution and applied with care:
Ryan v. Moore
,
    at para. 50. Because the doctrine has the potential to undermine the certainty
    of contract [it] must be applied with care, especially in the context of
    commercial relationships between sophisticated parties represented by counsel:
Grasshopper Solar
, at para. 54,
per
Huscroft J.A. Applying due
    caution and care, I cannot find an estoppel by convention where, given the
    evidence, one does not arise on the facts and the law, however argued by
    parties whose concern is less for the law than for their individual advantage. Here,
    the claimed estoppel by convention cannot survive Mr. Kerbels knowledge, when
    the Settlement Agreement was negotiated, that the shared assumption was
    mistaken. This can be seen in two ways.

[354]

First, given the fact
    of Mr. Kerbels knowledge, I have difficulty accepting that the assumption that
    the buy-sell could not be triggered until after SPA was shared in the manner
    required for estoppel by convention. Bastarache J. notes that the crucial
    requirement for estoppel by convention, which distinguishes it from the other
    types of estoppel, is that at the material time both parties must be of a like
    mind:
Ryan v. Moore
, at para. 61 (citations omitted). Further,
    estoppel by convention requires mutual assent:
Ryan v. Moore
, at
    para. 62. Where one party knows that the other party is mistaken and chooses to
    acquiesce in their mistake rather than correct it, they were plainly not of
    like minds nor did they mutually assent.

[355]

Second, Mr. Kerbels
    knowledge that the assumption was incorrect renders unreasonable any reliance by
    Kerbel and Fram on the mistaken trigger date. Mr. Kerbel was under no
    illusion that this reading was not correct, as the trial judge found. Nor had
    he forgotten what the correct reading was, as she also found. As noted above, I
    would defer to those findings as factual determinations of credibility. They
    also comport with the commercial realities. It was not reasonable of Kerbel and
    Fram to rely on Romandales interpretation of the trigger date, knowing that it
    was mistaken.

[356]

These two reasons are
    sufficient to dismiss the estoppel by convention arguments put forward by
    Kerbel and Fram. I conclude that the legal basis for estoppel by convention is
    not made out on the facts of this case. This conclusion obliges me to consider
    whether Kerbel repudiated or breached the 2005 August Agreement, a task that my
    colleague was spared by her view of estoppel, and to which I now turn.

(3)

Kerbel
    Did Not Breach the 2005 August Agreement by Entering Into the Settlement
    Agreement with Fram

[357]

It is necessary to put
    the 2005 August Agreement in its proper context or factual matrix before
    assessing whether the trial judge properly assessed Kerbels alleged breaches.

(a)

The Context

[358]

The court must survey
    the contractual landscape in this case with a clear eye. In my view, the trial
    judges manifest sympathy for Romandale was misplaced. Romandale did not occupy
    the moral high ground in this bruising corporate battle, as I will explain.

[359]

It is a truism that
    contracting parties seek their own ends. An important aspect of contractual
    design, as Swan and Adamski observe, at p. 148, is allocating risk between the contracting
    parties:

[M]uch contract drafting is focused on the allocation of risk,
    on the need to make clear just how the risks associated with an activity or the
    actual operation of the contractual relation, are not only allocated but
    understood to be allocated. It is bizarre for a court to be  or to appear to
    be  unaware of this role, one performed by the majority of members of the
    legal profession. Solicitors would be aghast if a court, in interpreting a
    contract, were to focus on the parties intentions and ignore the efforts of
    one party to shape the others expectations, in the light of what the first
    party was prepared to do. Such intentions are nothing but a judicial
    construct, a chimera, and wholly fanciful.

[360]

The root contractual
    documents in this case are the 2003 COAs between Romandale and Fram. Romandale
    was looking for a land developer to assist it in bringing the Lands to the
    point at which they could be used for residential purposes. Fram became
    Romandales business partner for this purpose. As the trial judge found:

The plan was that Romandale and Fram would own the Lands and
    Bordeaux would manage the requirements for the development of the Lands, so
    they could be designated for residential use following [SPA], a stage of the
    municipal planning approvals process, Fram would then buy lots at market value
    and build homes and share the profits with Romandale.

[361]

The COAs, and the buy-sell
    provision in particular, were carefully designed to allow each party to extract
    the maximum value for its interest in the Lands at the point that either party chose
    to force the other to buy its interest.

[362]

By entering the COAs, Romandale
    got money (by selling the five percent interest in the Lands to Fram) and Fram
    got an exclusive option to purchase Romandales remaining interest. The key
    problem with the COAs was that Romandale was effectively stuck with Fram as a
    partner in developing the Lands. The COAs permitted Romandale to sell its
    remaining interest in the Lands to another developer, but only with Frams
    consent. Crucially, Frams consent, per s. 5.03 of the COAs, may be
    unreasonably or arbitrarily withheld, giving it control over any large
    disposition of the Lands by Romandale. (This provision was not unbalanced
    because it permitted Romandale to refuse consent to a disposition by Fram of
    its interest on the same basis.)

[363]

When Romandales need
    and appetite for money grew, it asked Fram to increase its interest in the Lands
    but Fram declined. Romandales need for more money, coupled with Frams
    reluctance to invest more, drove Romandale into a deal with Kerbel.

(b)

The 2005 August Agreement Favoured Kerbel

[364]

The 2005 August
    Agreement was cleverly designed to accomplish Romandales end of getting cash
    without breaching the COAs with Fram. Romandale did get more money. But Kerbel
    drove a careful bargain, recognizing both Romandales need for cash and the
    difficult and complex situation that the COAs posed for Kerbel with respect to
    Frams interest.

[365]

The 2005 August
    Agreement was drafted in Kerbels favour. This is not a surprise. Romandale had
    a strong need for funds and Kerbel was the able funder. As the trial judge
    stated, at para. 69, Romandale needed to refinance a $6,000,000 Bank of Nova
    Scotia (BNS) mortgage on the Lands and wanted cash to make distributions to
    Romandale and Roman family members. She noted, at para. 329, Romandale
    actually received $16,703,000 of immediate value from Kerbel: $6,000,000 in new
    mortgage financing to retire the BNS Mortgage, $2,128,000 cash on the sale of
    5% of the Elgin Mills Lands owned by Romandale, and $8,575,000 cash was paid on
    the sale of the Triple R Lands.

[366]

The text of the 2005
    August Agreement ceded a large measure of control to Kerbel, although it was
    constrained by Romandales need and obligation to continue to comply with the
    COAs. The agreement appointed Kerbel as attorney and agent for Romandale in
    material and specific respects. Section 5 was entitled "Irrevocable
    Appointment" and provides in part:

... Romandale hereby irrevocably appoints [Kerbel] as its
    exclusive
true and lawful attorney and agent having full
    power of substitution, and [Kerbel] is hereby fully authorized as such to act
    on behalf of and/or give binding instructions to Romandale solely in connection
    with the exercise of the buy-sell rights pursuant to the Buy-Sell Provisions
(as hereinafter defined).
Romandale agrees that any and
    all decisions, operations, conduct and actions relating to the development of
    the Snider/McGrisken Property shall be within the exclusive control of [Kerbel]
    and Romandale shall assist in facilitating such control to comply with Section
    5.10 of the Co-Owners Agreements over all decisions; operations, conduct and
    action exercisable by Romandale relating to the development and obtaining of
    development approvals
for the Snider/McGrisken Property.... Romandale
    and [Kerbel] shall cooperate in getting the Snider/McGrisken Property included
    under the Town of Markham urban envelope for development purposes, and Romandale
    shall take all reasonable steps to reduce land wastage to as small an amount as
    possible, using Joanne Burnett, Jeff Kerbel and/or his designate to act on
    behalf of Romandale in taking such steps. [Emphasis added.]

[367]

The control that Romandale
    granted to Kerbel was related to compliance with the COAs, as the trial judge found
    at para. 202. She noted, at para. 203, that Romandale continued to exercise
    control of the development process throughout.

[368]

The trial judge
    correctly observed, at para. 202: The opening sentence provides that Romandale
    appoints [Kerbel] as its agent solely in connection with the Buy-Sell
    provisions in the COAs. The trial judge added: This makes sense as it was
    Kerbel's intention to buy Romandale's remaining interest in the Lands and so it
    would want control over
when
Romandale triggered
    the Buy-Sell (emphasis added). I agree.

[369]

It is noteworthy that the
    2005 August Agreement did not bind Kerbel to a date by which it was required to
    pull the buy-sell trigger in the COAs. Although Mr. Kerbel testified to
    his reluctance to trigger the provision while Romandale was litigating with
    Bordeaux, nothing in the 2005 August Agreement required him to pull the trigger
    when that litigation ended, even though, as the trial judge observed, the
    Bordeaux litigation was expressly referred to in s. 2(e). (Recall that the
    Bordeaux litigation was settled in October 2014.)

[370]

Only Frams consent to
    the sale of Romandales Remaining Interest to Kerbel under the 2005 August
    Agreement could force Kerbel to close.

[371]

Despite finding that
    Kerbel would have wanted control over the timing of the triggering of the
    buy-sell, the trial judge later found, somewhat inconsistently, at paras.
    299-300, that the intention of the parties was to close as soon as possible and
    Kerbels discretion on when the buy-sell would be triggered was not so broad
    as to allow it to transform a deal that was intended to close as soon as
    possible into a deal that was not to close until decades away. She relied on
    the time is of the essence clause in para. 7 (c) of the 2005 August Agreement
    for this finding.

[372]

I agree with my
    colleagues statement, at para. 233, that the time is of the essence clause
    cannot be construed to mean that a short closing horizon was part of the pith
    and substance of the contract. With respect, the trial judge misapprehended
    the purpose and role of a time is of the essence clause in commercial
    contracts. Such a clause is engaged where a time limit is stipulated; it does
    not serve to impose a time limit but rather dictates the consequences that flow
    from failing to comply with a time limit stipulated in an agreement: see
Di
    Millo v. 2099232 Ontario Inc.
, 2018 ONCA 1051, 430 D.L.R. (4th) 296, at
    paras. 31-37, leave to appeal refused, [2019] S.C.C.A. No. 55. Benotto J.A. noted,
    in
Di Millo
, at para. 37:

Notably, while the option clause includes two time limits, it
    is silent as to the time limit for exercising the option. However, the
    application judge found, that providing notice to the Respondent that complies
    with the Agreement, 6 months after the option first arose, does not comply with
    the time is of the essence clause. In my view, he erred in finding
    that the time is of the essence clause was engaged where no time was
    stipulated in the contract for exercising the option and in finding that there
    was non-compliance with the time is of the essence clause. Those errors
    tainted his finding that the option had expired by the time the appellant gave
    notice.

Those words apply here with necessary modifications.
    The trial judges reliance on the time is of the essence clause was an error
    of law.

[373]

Mr. Kerbel testified
    that, in the early days when the development process looked like it would move
    quickly to a happy outcome, he wanted to close quickly. But the trial judge
    misapprehended this evidence to impose a contractual obligation on Kerbel to
    close as soon as possible, regardless. There is no express obligation in the
    2005 August Agreement to close as soon as possible and there is no legal basis
    for implying one. Implying such an obligation is neither necessary to give
    business efficacy to the contract, nor would it pass the officious bystander
    test: see
Energy Fundamentals Group Inc. v. Veresen Inc.
, 2015 ONCA
    514, 388 D.L.R. (4th) 672, at paras. 30-31;
M.J.B. Enterprises Ltd. v.
    Defence Construction (1951) Ltd.
, [1999] 1 S.C.R. 619, at para. 27;
Canadian
    Pacific Hotels Ltd. v. Bank of Montreal
, [1987] 1 S.C.R. 711, at p. 775.

[374]

The 2005 August
    Agreement provided Kerbel with other advantages. The fixed-price of $160,000
    per acre to be paid to Romandale on closing was above the 2005 current market
    value for the McGrisken and Snider Farms but the fact that it was a fixed-price
    contract minimized the risk to Kerbel and capped Romandales return. In other
    words, Romandale gave up its right to share in any increases in the value of
    the Lands, to Kerbels benefit. Had the development horizon contemplated by the
    parties in 2005 been met, then Romandales return would have been limited to
    the fixed-price; any increase in the value of the Lands thereafter would have
    been enjoyed by either Kerbel or Fram. One of them would have ended up with the
    Lands at a higher price through the buy-sell mechanism in the COAs, if they did
    not come to some other agreement.

[375]

The 2005 August
    Agreement gave Romandale the opportunity to carry out an end run on Fram and
    its exclusive option to buy the rest of the Lands. The agreement was cleverly
    designed but it put Fram and Kerbel on a collision course.

(c)

The Settlement Agreement

[376]

As noted earlier, the
    development horizon changed substantially. By 2010, Kerbel and Fram were in
    lawsuits with each other. Neither was anxious to acquire all of the Lands
    immediately through the operation of the buy-sell provision, nor did they wish
    to give up their interests in the land. Their way out of the impasse was the
    Settlement Agreement, by which they ended up sharing costs. This was a
    practical outcome for experienced land developers.

(d)

Kerbels Alleged Breaches of the 2005 August Agreement

[377]

Romandales revised
    litigation strategy targeted s. 5 of the Settlement Agreement:

[Fram] does not by this settlement agreement or otherwise
    consent to the transaction referred to in paragraph 2 of the August 29, 2005
    Agreement. It is the intention of the parties hereto that the purchase and sale
    of Romandales Remaining Interest in the Lands pursuant to these Minutes of
    Settlement will take place after Secondary Plan Approval for the Lands has been
    obtained.

[378]

The trial judge found
    that Kerbel breached the 2005 August Agreement, at para. 310: By entering into
    the Settlement Agreement, Kerbel totally fettered its discretion as to when to
    cause Romandale to trigger the Buy-Sell just because it no longer wanted to
    close the purchase of Romandale's Remaining Interest quickly.

[379]

First, the trial judge
    found, at para. 319, that Kerbel had a fiduciary duty to Romandale that it
    breached by entering into the Settlement Agreement.

[380]

There is no scope for
    the imposition of fiduciary duties on Kerbel. That would oblige Kerbel to act
    solely in the best interests of Romandale, which is the antithesis of the
    self-interest that contracting parties in commercial contracts are generally entitled
    to pursue. In
Hodgkinson v. Simms
, [1994] 3 S.C.R. 377, [1994] S.C.J.
    No. 84, the court said, at p. 414, para. 38:

Commercial interactions between parties at arm's length
    normally derive their social utility from the pursuit of self‑interest,
    and the courts are rightly circumspect when asked to enforce a duty (i.e., the
    fiduciary duty) that vindicates the very antithesis of self‑interest. [T]he
    law does not object to one party taking advantage of another
per se
,
    so long as the particular form of advantage taking is not otherwise objectionable.
    [Citations omitted.]

[381]

As noted, the wording
    of the 2005 August Agreement was in Kerbels favour in order to avoid any such
    subordination either to Romandale entirely or to some notional conception of
    their mutual best interests, as Romandale argues.

[382]

It is possible for a
    contracting party to accept a fiduciary duty. Romandale submits that because
    the 2005 August Agreement explicitly made Kerbel Romandales lawful attorney
    and agent for some purposes, that principle is applicable here. But this
    misconstrues the purpose of Kerbels appointment as Romandales attorney and
    agent, which was to leave the timing of the triggering of the buy-sell under
    the COAs in Kerbels sole control without any further dependence on Romandale. Kerbel,
    as the funder, wanted to control all aspects of the exercise of the buy-sell provisions
    in the COAs. As the trial judge herself stated, this made sense.

[383]

I would set aside the
    trial judges holding that Kerbel owed Romandale a fiduciary duty as an error
    in law.

[384]

Second, the trial
    judge found, at para. 310, that Kerbel breached its duty of good faith to
    Romandale under the 2005 August Agreement:

By entering into the Settlement Agreement with Fram, Kerbel
    acted in its own self-interest, to the detriment of Romandale's interests.
    Kerbel undermined the entire value of the August 2005 Agreement for Romandale.
    Without a doubt Kerbel did not act in good faith.

[385]

The trial judge
    invoked the the duty to act in good faith citing
Bhasin v. Hrynew
, 2014
    SCC 71, [2014] 3 S.C.R. 494, at para. 65, and the expectation that a party
    exercising discretion is required to do so in good faith, citing
Greenberg
    v. Meffert
(1985), 50 O.R. (2d) 755 (C.A.), at paras. 18 and 26, leave to
    appeal refused, [1985] 2 S.C.R. ix. Had the authorities been available, the
    trial judge would likely have invoked
C.M. Callow Inc. v. Zollinger
, 2020
    SCC 45, and
Wastech Services Ltd. v. Greater Vancouver Sewerage and
    Drainage District
, 2021 SCC 7, for the same propositions.

[386]

I do not agree. It is
    not obvious to me what role the doctrine of good faith in contractual
    performance should play in this complex commercial setting. Courts should be
    very reluctant to interfere in the dealings of hard-headed business people
    pursuing their competitive goals. This pursuit is not forbidden in a market
    economy: it is expected, as the Supreme Court observed in
Hodgkinson
, at
    p. 414, para. 38, quoted earlier.

[387]

The parties were
    sophisticated, resourced and professionally advised throughout. No doubt both
    Fram and Kerbel have deeper pockets but there is no scope for invoking the
    concept of unequal bargaining power in this context without, by necessary
    implication, imperilling any larger corporations ability to engage in commerce
    with smaller entities. The language in all of the agreements was carefully
    negotiated and chosen to allocate the parties respective risks and
    responsibilities, benefits and burdens.

[388]

This case illustrates
    operations in the real world. To achieve its ends, in negotiating the
    Settlement Agreement with Fram, Kerbel essentially pulled the same move on
    Romandale that Romandale had pulled on Fram in entering into the 2005 August
    Agreement with Kerbel.

[389]

Seen through the good
    faith lens, Romandale could be criticized for defeating Frams exclusive option
    to the Lands via the 2005 August Agreement with Kerbel. But all Romandale was
    doing was pursuing its own ends within the limits of the contractual language
    in the COAs in order to raise cash by extracting value from all of its lands,
    including the McGrisken and Snider Farms. (I note that by entering into the
    2005 August Agreement, Romandale did not breach the COAs, contrary to Frams
    assertions in the 2007 and 2008 actions. The trial judge dismissed those
    actions and Fram did not appeal the dismissals.)

[390]

Similarly, by entering
    into the Settlement Agreement, all Kerbel was doing was pursuing its own ends
    within the limits of the contractual language in the 2005 August Agreement in
    order to reduce its exposure to the land and to the risks posed by the
    litigation with Fram.

[391]

The text of a contract
    matters in discerning the parties reasonable expectations. Kerbel never
    undertook to perform its obligations under the 2005 August Agreement for
    Romandales benefit, or even for their mutual benefit, as Romandale argues.
    The parties reasonably expected that the commercial realities would pressure
    all sides to move with alacrity. But Kerbel did not bind itself to do so,
    wisely in retrospect, given how the commercial realities have changed. This is
    not unusual in the fraught sphere of land development in Ontario, and particularly
    in the area surrounding Toronto. What gutted the transactions was not the
    Settlement Agreement but the changed development horizon that affected all the
    parties adversely.

[392]

Nor is it clear to me
    what the invocation of good faith performance would contribute in this setting.
    I note the submission, recorded by the trial judge, at para.  326:

Romandale submits that it need not point to a specific date on
    which Kerbel must have caused it to trigger the Buy-Sell, nor does this Court
    need to pinpoint a date, in order to find that a fiduciary duty existed or to
    find that there has been a repudiatory breach arising from Kerbel's breach of
    same (among other contractual obligations). In this case, it is clear the line
    was crossed when Kerbel settled with Fram in 2010 and deliberately ensured the
    Buy-Sell would never be triggered before SPA (if at all), in furtherance of its
    own self-interests and in complete contravention of Romandale's interests.

[393]

Romandales refusal to
    specify a date is noteworthy because if the date does not comport with Kerbels
    best business interests, as permitted by the 2005 August Agreement, it would be
    purely arbitrary. I note in passing that the earliest date would be after the
    Bordeaux litigation settled, which was in October 2014.

[394]

Nor is it clear to me
    that, had Kerbel and Fram never entered into the Settlement Agreement and had
    Fram not consented to the sale, there would be any obligation on Kerbel even
today
to cause Romandale to trigger the buy-sell
    provision in the COAs.

[395]

Finally, I note that
    if there is a right date for the transfer of Romandales Remaining Interest
    to Kerbel, it would be sixty days after Fram consented to that transaction in
    2018, as that is precisely what is stipulated in the 2005 August Agreement.

[396]

To conclude, the trial
    judge erred in finding that Kerbel breached the 2005 August Agreement and its
    duty of good faith performance by entering into the Settlement Agreement with
    Fram. I do not find any basis here for judicial tweaking via the doctrine of
    good faith performance, or for any judicial interference in the ordinary
    operation of these carefully negotiated contracts, which embody the reasonable
    expectations of the parties and which are fully capable of execution on their
    precise terms.

[397]

If Kerbel breached the
    2005 August Agreement by entering into the Settlement Agreement with Fram, then
    that breach would have to be taken into account in the exercise of discretion
    as to whether to order specific performance. The behaviour of the parties is a
    relevant consideration in deciding whether to order specific performance:
Matthew
    Brady Self Storage Corporation v. InStorage Limited Partnership
, 2014 ONCA
    858, 125 O.R. (3d) 121, at para. 32, leave to appeal refused, [2015] S.C.C.A.
    No. 50;
Paterson Veterinary Professional Corporation v. Stilton Corp. Ltd.
,
    2019 ONCA 746, 438 D.L.R. (4th) 374, at para. 31, leave to appeal refused,
    [2019] S.C.C.A. No. 420. But here there is no such breach.

(4)

By
    Entering Into the Settlement Agreement, Kerbel Did Not Repudiate Its Obligations
    Under the 2005 August Agreement.

[398]

Because I have found
    that Kerbel did not breach the 2005 August Agreement, on that ground alone,
    there is no basis for finding that Kerbel repudiated that agreement.

[399]

However, in my view
    the trial judges approach to the repudiation issue was wrong in principle and
    requires comment. Recall that Romandale argued that it is not required to close
    the 2005 August Agreement because Kerbel had repudiated that agreement by
    entering into the Settlement Agreement. The trial judge agreed and refused
    Kerbels request for an order compelling Romandale to specifically perform the
    2005 August Agreement.

[400]

The trial judge
    deconstructed the 2005 August Agreement into constituent parts. This approach
    was wrong in principle. She extracted the conveyance of the McGrisken and
    Snider Farms from the 2005 August Agreement in order to deem that part of the
    agreement repudiated. This approach is not consistent with the holistic
    approach courts must take to carefully negotiated commercial agreements. Just
    as a court interpreting a contract must read the contract as a whole, a court analyzing
    whether a fundamental breach amounting to repudiation has occurred should
    consider both the alleged breach, and the obligations the breaching party has
    performed, in relation to the breaching partys obligations under the whole contract:
Sattva Capital Corp. v. Creston Moly Corp.
, 2014 SCC 53, [2014] 2
    S.C.R. 633, at para. 47;
1193430 Ontario Inc. v.
    Boa-Franc Inc.
(2005), 260 D.L.R. (4th) 659 (Ont. C.A.), at para. 50
,

leave to appeal refused, [2006] S.C.C.A. No. 2.

[401]

I conclude that the
    trial judge erred in recruiting the doctrine of repudiation, because of the
    substantial prior performance on Kerbels part, which was valued by the trial
    judge at about $16 million. There is no basis upon which it could be said that
    Romandale was deprived of substantially all of the benefit it contracted for
    under the 2005 August Agreement:
Boa-Franc

Inc.
, at para. 50;
Majdpour v. M&B Acquisition Corp.
(2001), 206 D.L.R. (4th) 627
    (Ont. C.A.), at para. 31;
Hunter Engineering Co. v. Syncrude Canada Ltd.
,
    [1989] 1 S.C.R. 426, at p. 499,
per
Wilson J.

[402]

Contrary to the submissions
    of Romandale and the trial judges determination, Kerbel did not repudiate the
    2005 August Agreement by entering into the Settlement Agreement, largely
    because much of the 2005 August Agreement had been performed to the benefit of
    both parties. It is simply too late for the proverbial egg to be unscrambled.
    It is too late for repudiation to play a useful role in analyzing the
    contractual relationships between Romandale and Kerbel.

(5)

Kerbel
    Is Entitled to Specific Performance of the 2005 August Agreement

[403]

I agree with my
    colleagues analysis, at paras. 290-298, and with her conclusion that Kerbel is
    entitled to specific performance of the 2005 August Agreement.

Released: April 1, 2021 E.E.G.

P. Lauwers J.A.


[1]
When the parties entered into the various agreements, Markham was still a town
    in Ontario. It did not become a city until 2012. For ease of reference, I will
    refer to the municipality simply as Markham.


[2]

This term is explained in para. 19 below.


[3]
SPA is defined in s. 5.07 of the COAs as an amendment of the official plan of
    the Town of Markham applicable to the Lands, obtained in accordance with the Planning
    Act (Ontario).


[4]

This term is explained in para. 20 below.


[5]

Romandales sale of 5% of its 95% interest in the Lands
    resulted in Kerbel acquiring a 4.75% undivided interest in the Lands.


[6]

Romandale received over $16 million in immediate value from
    Kerbel under the 2005 August Agreement.


[7]

In response, Bordeaux sues Romandale and Fram, alleging the
    termination was invalid and of no force or effect. Romandale settled the
    Bordeaux litigation in 2014.


[8]

The 2005 August Agreement was amended by an agreement dated
    March 14, 2006, to provide that any amount owing to Kerbel from a purchase
    price adjustment for non-developable acreage of the Triple R Lands, which was
    to be made at the end of the fifth year of the vendor takeback mortgage, would
    be set off against the eventual purchase price for the Remaining Interest in
    the Lands.


[9]

The parties were mistaken on this matter. Under s. 5.07 of the
    COAs, the buy-sell could have been exercised when the DMAs were terminated.
    Romandale terminated the DMAs in February 2005. Therefore, the buy-sell in the
    COAs could have been exercised as early as February 2005.


[10]

This may or may not have been a mistaken assumption. Whether,
    under the 2005 August Agreement, Kerbel could have required Romandale to
    trigger the buy-sell in the COAs before SPA is a point of contractual
    interpretation. As I have concluded that estoppel by convention applies to bar
    Romandale from contending that it could have been triggered pre-SPA, this point
    of contractual interpretation need not be decided.


[11]
As discussed below, the communications in
Ryan
    v. Moore

are an
example of alleged shared
    assumptions that do not have sufficient clarity and certainty to satisfy the
    first criterion.


[12]

It will be recalled that Kiteley J. upheld this ruling on June
    20, 2014.


[13]

Angela Swan and Jakub Adamski point out that courts have not
    always adopted an approach consistent with this principle: Contractual
    Interpretation in the Supreme Court: Confusion Reigns Supreme in Matthew
    Harrington, ed.,
Private Law in
    Canada: A 150-Year Retrospective
(Toronto: LexisNexis,
    2017) p. 115.
See also Edward J. Waitzer and Douglas Sarro, Protecting
    Reasonable Expectations: Mapping the Trajectory of the Law (2016) 57:3 Can.
    Bus. L.J. 285.


[14]
The Bordeaux action was settled in October 2014.
