



COURT OF APPEAL FOR ONTARIO

CITATION: Philp v. Brunelle, 2016 ONCA 385

DATE: 20160519

DOCKET: C59689

Rouleau, Pardu and Benotto JJ.A.

BETWEEN

Laura Philp

Plaintiff (Appellant)

and

Lucille Brunelle

Defendant (Respondent)

Gregory Sidlofsky, for the appellant

Ewa Krajewska, for the respondent

Heard: May 5, 2016

On appeal from the judgment of Justice Todd L. Archibald
    of the Superior Court of Justice, dated October 31, 2014, with reasons reported
    at 2014 ONSC 6295.

ENDORSEMENT

[1]

The appellant submits that the trial judge erred in dismissing her
    claims for damages said to result from breaches of an agreement of purchase and
    sale for a home for special care and domiciliary hostel.

[2]

The agreement contained promises that there would be 21 paying residents
    in the home, and also that the septic system operated satisfactorily for a home
    for special care and domiciliary hostel, as of the date of closing. The
    agreement also advised that there was a written agreement with the neighbouring
    church for the shared use of its driveway, which agreement states that it must
    be maintained. The agreement of purchase and sale contained a further
    provision that the covenants, representations and warranties would remain in full
    force and effect, despite the closing, for a period of 30 days from the date of
    closing.

[3]

The trial judge dismissed all of the appellants claims based on alleged
    breaches of the above provisions. He found as a fact that the appellant had not
    proven that the septic system was not in good working order at the relevant
    time. He rejected the appellants argument that the contractual provision about
    the driveway agreement meant that there was a promise by the vendor that the appellant
    would have a right in perpetuity to use the churchs driveway, and rejected her
    evidence that the vendor had made an oral representation to that effect. He
    concluded that the reference to maintenance in the agreement meant only that
    the home had to physically maintain the driveway, so long as the church allowed
    its use.

[4]

Finally, the vendor had disclosed before closing that there were 18
    occupants in the home, although she also delivered a statutory declaration
    almost concurrently stating that there were 19 residents. The agreement
    specifically provided for a remedy in the event that there were fewer than 21
    paying residents in the home as of the date of closing:

If there are less than 21 paying residents as of the date of
    closing, then at the option of the Buyer, this Agreement shall be extended for
    not more than thirty (30) days to allow time to bring the census up to 21
    persons. If this is not accomplished within the said thirty (30) days, then
    this Agreement shall be null and void and the deposit returned to the Buyer
    without deduction

[5]

The appellant closed the transaction, knowing there were 18 residents,
    and accepted an abatement of the purchase price in the sum of $4,000 because of
    the shortfall. The trial judge found that the clause about the number of
    residents was a condition of closing, and that because the appellant chose to
    accept an abatement and close the transaction, rather than exercise her rights
    under the agreement, that clause merged in the deed on closing.

[6]

These findings were fatal to the appellants claims, and the appellant
    has not demonstrated any error which would justify appellate intervention. Given
    the particular provision dealing with any shortfall in the number of residents
    on the date of closing, it was not unreasonable for the trial judge to conclude,
    in effect, that the parties intended that this promise would merge in the deed
    on closing. As observed in
Fraser-Reid v. Droumtsekas
, [1980] 1 S.C.R.
    720 at p. 738, [t]here is no presumption of merger. Rather, the proper
    inquiry is whether the facts disclose a common intention to merge the warranty
    in the deed.

[7]

Absent palpable and overriding error, the trial judges findings are
    entitled to deference.

[8]

In light of the fact that the above findings were the primary basis upon
    which the trial judge dismissed the appellants claims, it is not necessary to consider
    the appellants other arguments, which challenge his alternative findings.

[9]

The appeal is accordingly dismissed, with costs to the respondent fixed at
    $20,000, inclusive of disbursements and HST.

Paul
    Rouleau J.A.

G.
    Pardu J.A.

M.L. Benotto J.A.


