



COURT OF APPEAL FOR ONTARIO

CITATION: Dexter Road
    Development Corp. v. Itkine, 2015 ONCA 81

DATE: 20150204

DOCKET: C59049  C59050

Feldman, Cronk and Hourigan JJ.A.

BETWEEN

Dexter Road Development
    Corp.

Applicant

(Respondent in Appeal)

and

Victor
    Itkine and Rina Itkina

and Canadian Imperial
    Bank of Commerce

Respondents

(Appellant)

AND  BETWEEN

Victor Itkine and Rina Itkina

Plaintiffs (Appellants)

and

Frederick
    Joseph Leach and

Frederick
    Joseph Leach and Arleen Jane Podohordeski

Estate
    Trustees of the Estate of Elsie Jane Leach, Deceased

Defendants (Respondents)

Douglas Christie, for the appellants

Howard D. Gerson, for the respondents in the Leach Proceedings

Marco Drudi, for the respondent Dexter Road Development
    Corp.

Heard and released orally:  January 22, 2015

On appeal from the judgments of Justice Kelly P. Wright of
    the Superior Court of Justice, dated June 4, 2014.

ENDORSEMENT

[1]

This is a consolidated appeal of two judgments following a Rule 21
    motion.  The appellants sought a determination that an option agreement (the Option
    Agreement) was invalid because it failed to comply with the provisions of s. 50(21)
    of the
Planning Act
, R.S.O. 1990, c.P.13 (the Act).  The motion
    judge declared that the Option Agreement was valid.

[2]

The underlying action arose from the sale, approximately 20 years ago,
    of 107 Pemberton Road, in Richmond Hill, Ontario (the Property). The Property
    represents the whole of a lot on a plan of a subdivision. The purchasers, the
    Montesanos, acquired the Property from Frederick and Elsie Leach and granted
    the Leaches an option to repurchase a portion of the Property within 21 years,
    less 10 days from the date of closing. The Option Agreement was conditional on
    compliance with the Act and the Leaches were made responsible for all costs
    related to the severance. The Option Agreement did not specifically reference
    s. 50 of the Act.

[3]

The Option Agreement has been assigned twice since the original
    purchase.  The first assignment was made to a numbered company.  The second
    assignment was made to the respondent Dexter Road Development Corp. (Dexter).
    The appellants acquired the Property from a successor in title to the
    Montesanos.

[4]

The appellants brought a motion pursuant to rule 21.01 for a
    determination that the Option Agreement did not comply with the Act because it
    failed to expressly refer to s. 50 of the Act, as they say was required by s.
    50(21). The Leaches brought a cross-motion for summary judgment pursuant to Rule
    20, seeking to validate the Option Agreement. Dexter commenced an application
    seeking the same relief.

[5]

The motion judge held that the Option Agreement is compliant with the
    Act and that the respondents have a valid and enforceable interest in the Property.

[6]

The appellants advanced two principal arguments on appeal. First, they
    submit that for the Option Agreement to be valid, it must refer on its face to
    compliance with s. 50 and not merely the Act in general. Second, the motion
    judge erred in relying on the
Legislation Act
,
2006
, S.O.
    2006, c. 21, in coming to her conclusion that the Option Agreement was valid.

[7]

We would not give effect to either ground of appeal.

[8]

We do not accept the submission that the case law supports the
    proposition that s. 50 must be specifically referenced. To the contrary, in our
    view, by making the Option Agreement conditional upon compliance with the Act,
    the Option Agreement satisfied the statutory requirement that there be an
    express condition that it would only be effective if the requirements of s. 50
    were satisfied. Reference to the Act in general is sufficient to meet the
    obligation imposed by s. 50(21) because it is impossible to effect a severance
    that is in compliance with the Act, but not s. 50 of the Act.

[9]

The motion judge did not improperly apply the
Legislation Act 2006
.
    She noted that the legislation was not in force at the time of the execution of
    the Option Agreement and, in any event, it does not apply to private contracts.
    The motion judge simply referred to that legislation by analogy, as she was
    entitled to do, in her analysis whether a general reference to the Act
    constitutes a reference to the provisions of the Act.

[10]

The
    appeal is, therefore, dismissed with costs fixed in the amount of $7,500 to the
    Leach respondents and $4,000 to Dexter, inclusive of disbursements and HST.

K.
    Feldman J.A.

E.
    A. Cronk J.A.

C.
    W. Hourigan J.A.


