



COURT OF APPEAL FOR ONTARIO

CITATION: D'Ascenzo v. Nichols, 2017 ONCA
    578

DATE: 20170706

DOCKET: C63100

MacPherson, Cronk and Benotto JJ.A.

BETWEEN

Scott Andrew D'Ascenzo, 1702620 Ontario Inc. and
    1686977 Ontario Inc.

Plaintiffs
    (Respondents/

Appellants by way of
    cross-appeal)

and

Carl Albert Nichols

Defendant (Appellant/

Respondent by way of
    cross-appeal)

Marcus Boire, for the appellant/respondent by way of
    cross-appeal

Jean-François Laberge and Manou Ranaivoson, for the
    respondents/ appellants by way of cross-appeal

Heard: July 4, 2017

On appeal from the judgment of Justice Paul Kane of the Superior
    Court of Justice, dated December 6, 2016.

REASONS FOR DECISION

[1]

The appellant, Carl Nichols, appeals from the judgment of Kane J. of the
    Superior Court of Justice granting partial summary judgment to the respondents
    Scott DAscenzo and related numbered companies. The judgment relates to two
    pieces of vacant land the respondents sought to purchase from the appellant.
    Between 2006 and 2013, the respondents made payments to the appellant totalling
    $168,727.74 with respect to the two properties, yet to date title to the
    properties remains with the appellant.

[2]

The motion judge ordered rescission and damages with respect to one of
    the properties (Petting Zoo) and issued a certificate of pending litigation,
    with a view to potential transfer to the respondents, with respect to the other
    property (Lot 511).

[3]

On appeal, the appellant seeks to overturn the motion judges decision
    on the basis that the respondents defaulted on their debt obligation and
    therefore forfeited their interest in both properties. In the alternative, the
    appellant seeks to vary the judgment and alleges the motion judge erred in
    determining the appropriate remedies for both properties.

[4]

In 2006, the respondents sought to purchase from the appellant (a) the
    appellants shares in 1702620 Ontario Inc. (170) which owned a commercial
    plaza called Buckhorn Plaza, (b) the Petting Zoo vacant land, and (c) the Lot
    511 vacant land.

[5]

The parties agreed on the terms of the share purchase agreement pursuant
    to which Nichols sold his shares in 170 to DAncezno for $280,000. This
    transaction was completed and is not a subject of this appeal.

[6]

The share purchase agreement included the terms by which Nichols was to
    sell the Petting Zoo and Lot 511 to DAscenzo. In addition to various monetary
    terms, the agreement contemplated that the bulk of the purchase price was to be
    the subject of a vendor take back mortgage. It also required that the purchase
    of Lot 511 would be completed simultaneously with the closing of the share
    purchase transaction which had a closing date of November 14, 2006. This did
    not happen because Nichols did not take the required steps to have Lot 511
    severed pursuant to the
Planning Act
, R.S.O. 1990, c. P.13. No
    mortgage was ever registered on title to either property.

[7]

The share purchase transaction closed on November 24, 2006. Since the
    closing, as of January 2013, DAscenzo had made payments to Nichols towards the
    purchase of the Petting Zoo and Lot 511 totalling $168,727. DAscenzo did not
    make any further payments after January 2013. After that point, DAscenzo
    demanded clear title to the Petting Zoo because he alleged he had paid for it
    in full, and said he would pay the remaining $27,500, owing for Lot 511, when
    Nichols cleared up the title issues relating to the severance of that property.

[8]

Nichols refused to convey title to the Petting Zoo and informed
    DAscenzo he was foreclosing on Lot 511. To date, Nichols has not transferred
    title to either property to DAscenzo and Nichols only recently has sought the
    required severance for Lot 511. Nichols continues to be the legal owner of both
    properties.

[9]

The respondents commenced an action and brought a motion for summary
    judgment which was granted in part on the terms set out above. The motion judge
    referred other issues on for a trial and stayed seized of the proceedings.

[10]

The appellant appeals against the partial summary judgment, essentially
    on four grounds.

[11]

First, the appellant contends that the issues determined by the motion
    judge were not appropriate for resolution on a summary judgment basis; a trial
    was required.

[12]

We do not accept this submission. There was a comprehensive record
    before the motion judge including all the relevant commercial documents and
    extensive affidavit evidence and cross-examinations thereon from the parties
    and their joint lawyer. As we have said, the motion judge granted summary
    judgment on some issues and referred others on for a trial. We see no error in
    his division of the various issues in this respect.

[13]

Second, the appellant submits that the motion judge erred by not
    concluding that the respondents had breached the contract by not continuing their
    monthly payments towards the mortgage.

[14]

We are not persuaded by this submission. The reason DAscenzo stopped
    making payments in 2013 was that Nichols had taken no steps to obtain severance
    of Lot 511. As explained by the motion judge:

Mr. Nichols admitted on his examination for discovery that even
    though the plaintiffs were making monthly amortized payments of the combined
    purchase prices of the two properties, with interest, he failed to instruct Mr.
    Merla [the parties lawyer] to proceed with the severance application as to the
    511 Land.

Mr. Nichols 10 years later in October of 2016 has still not
    obtained the required severance of the 511 Land.

[15]

Third, the appellant asserts that the motion judge erred in granting
    rescission of the agreement to purchase the Petting Zoo. The appellant says
    that this component of his order is inconsistent with his order of specific performance
    of the purchase of Lot 511.

[16]

We disagree. Although rescission is probably the wrong legal term (it
    is evident from the motion judges reasons that he meant repudiation), it was
    clearly open to the motion judge, on the question of remedy, to treat the two
    properties separately and to determine that DAscenzo, after spending so much
    money over many years towards the purchase of the Petting Zoo, was entitled to
    treat the contract as at an end and to obtain damages as restitution of monies
    paid.

[17]

Fourth, and relatedly, the appellant argues that the motion judge erred
    by granting specific performance of the Lot 511 purchase. He says that DAscenzo
    never was willing, able and ready to close this component of the transaction.

[18]

We do not accept this submission. The motion judge did not order
    specific performance. He found that DAscenzos entitlement to specific
    performance of Lot 511 was established except for the crucial issue of
    severance which he determined will have to be established in a trial as to
    that issue. Accordingly, he directed that a Certificate of Pending Litigation
    be registered on title to Lot 511.

[19]

In the end, we agree with the respondents summary in their factum, at
    paras. 4 and 6:

The agreement for Lot 511 was supposed to close simultaneously
    with a share purchase agreement signed by the parties and did not do so because
    of the Appellants conduct. The transaction did not close at the originally
    stipulated date as deficiencies on title were discovered.  The Appellant was
    responsible for correcting the deficiencies in order to provide clear title to
    the Respondents.  The Appellant failed to correct them in a timely manner,
    despite a separate agreement to extend closing being executed to provide time
    for same, and despite the Appellants acknowledgement of his obligation to do
    so. Once the said deficiencies were corrected, title was supposed to be
    conveyed to Mr. DAscenzo. To this day, the Appellant has not fulfilled his
    obligations.



The Appellants position is factually and legally incorrect and
    would lead to a patently and manifestly unfair result.  The Appellant argues
    that his own breach should entitle him to the forfeiture of the monies paid by
    the Respondents over six years to the tune of over $168,000.00. In addition,
    the Appellant argues that he should also retain title to both properties.

[20]

The appeal is dismissed. The respondents are entitled to their costs of
    the appeal fixed at $16,000, inclusive of disbursements and HST.

J.C. MacPherson J.A.

E.A. Cronk J.A.

M.L. Benotto J.A.


