



COURT OF APPEAL FOR ONTARIO

CITATION: High Tower Homes Corporation v. Stevens, 2014 ONCA
    911

DATE: 20141218

DOCKET: C58783

Hoy A.C.J.O., Epstein and Hourigan JJ.A.

BETWEEN

High Tower Homes Corporation

Appellant

and

Brett Jeremy David Stevens and Brett Jeremy David
    Stevens, Trustee

Respondents

Ronald Allan, for the appellant

Christopher E. Reed, for the respondents

Heard: November 7, 2014

On appeal from the judgment of Justice Jamie K. Trimble
    of the Superior Court of Justice, dated April 16, 2014.

Hoy A.C.J.O.:

INTRODUCTION

[1]

A vendor was mistaken as to the terms of an agreement of purchase and
    sale. Completion of the sale transaction would result in the purchasers acquisition
    of the property at an unintended price below market value. Did the motion judge
    err in concluding that the vendor could avoid completing the sale transaction
    by relying on the purchasers failure to give notice of its waiver of
    conditions personally to the vendor?

[2]

The purchasers arguments do not persuade me that there is a basis for
    this court to intervene with the motion judges conclusion. I would accordingly
    dismiss this appeal.

BACKGROUND

[3]

Brett Stevens, in his capacity as trustee (and in his personal capacity,
    the Vendor) owned a property (Blue Water) in Burlington. He and his then
    spouse owned the adjacent property (Avondale). It was their principal
    residence. Stevens and his spouse concluded that selling the two properties
    together would maximize their value. For tax planning purposes, they wished to
    allocate as much of the aggregate purchase price for the properties as possible
    to Avondale.

[4]

High Tower Homes Corporation (the Purchaser) expressed interest in the
    properties and submitted offers for both. The offers were not simply standard
    form documents. The Purchaser added Schedule A  consisting of two typed pages
    of additional provisions  to the Ontario Real Estate Association standard form
    of Agreement of Purchase and Sale. The added provisions superseded the standard
    terms to the extent of any conflict or discrepancy.

[5]

The Purchasers first offers for the two properties were presented
    together.

[6]

Schedule A to each of the Purchasers first offers included a clause
    entitled CONDITION FOR SALE OF ADJACENT PROPERTY to the effect that the sale
    of each property was conditional on the sale of the other. A series of further
    offers and counter-offers ensued. In a subsequent, fully re-typed offer for
    Blue Water, the Purchaser revised the text of the clause under the heading CONDITION
    FOR SALE OF ADJACENT PROPERTY to provide that the sale of Blue Water was
not
conditional on the sale of Avondale. The change was not black-lined and the
    Purchaser did not otherwise draw the change to the Vendors attention. No
    change was made to the corresponding clause in the Avondale offer.

[7]

On January 25, 2013, the Vendor accepted the Purchasers counter-offers
    to sell the properties. The agreement of purchase and sale for Blue Water (the
    Agreement) was in the form prepared by the Purchaser  that is, without the
    clause making the closing of the sale of Blue Water conditional on the purchase
    of Avondale.

[8]

All price increases in the course of the negotiations were made with
    respect to Avondale. Throughout, the price offered by the Purchaser for Blue
    Water remained at $1 million  an amount less than what Stevens had paid for
    Blue Water in 2008. Over the course of the negotiations, the price offered for
    Avondale increased from $3.5 million to $4.5 million.

[9]

Clause 7
[1]
to Schedule A of the Agreement contained a clause  entitled CONDITION FOR
    BUYERS BENEFIT  outlining conditions for the Purchasers benefit that could
    be waived 
by notice
in writing
to the Seller
, within the
    time period stated herein (on or before February 22, 2013) [emphasis added].
    If the conditions were not so waived, the Agreement would become null and void.

[10]

Clause
    3 of the standard terms of the Agreement, entitled Notices, provided, in relevant
    part:

In addition to any provision contained herein and in any
    Schedule hereto, this offer, any counter-offer, notice of acceptance thereof or
    any notice to be given or received pursuant to this Agreement or any Schedule
    hereto (any of them, Document) shall be deemed given and received when
    delivered personally or hand delivered to the Address for Service provided in
    the Acknowledgment below, or where a facsimile number or email address is
    provided herein, when transmitted electronically to that facsimile number or
    email address, respectively, in which case, the signature(s) of the party
    (parties) shall be deemed to be original.

[11]

No
    Address for Service was specified in the part of the Agreement entitled
    Acknowledgment and no facsimile number or email address was specified in the
    spaces in the Agreement immediately following the notice clause labelled FAX
    No. (For delivery of Documents to Seller) and Email Address (For delivery of
    Documents to Seller).

[12]

On
    Friday, February 22, 2013, the Purchasers solicitor gave notice to the Vendors
    solicitor, by fax, purporting to waive the conditions for the Purchasers
    benefit in clause 7 of Schedule A to the Agreement and seeking an extension of
    time for the waiver of conditions with respect to its purchase of Avondale.

[13]

According
    to Ivan Curic  an officer, director and principal of the Purchaser  the
    Purchasers solicitor also told him that he had to deliver the waiver to Blue
    Water and he allegedly did so (he thinks in the evening of February 22, 2013). Mr.
    Curic admits that he did not deliver the notice to the Vendor personally and
    the Vendors evidence was that nothing was left at Blue Water. The notice
    waiving the conditions was never delivered to the Vendor personally.

[14]

The
    Vendor was stunned when he learned of his mistake, and the Purchasers attempt
    to take advantage of it to buy only Blue Water, at a bargain price.

[15]

On
    February 25, 2013, the Vendors lawyer responded by fax to the Purchasers
    solicitor. The Vendors lawyer advised that the Agreement was at an end because
    the Purchaser had not given notice waiving the conditions for its benefit
    within the required time period in the manner required by the Agreement.

[16]

The
    Purchaser sued for specific performance and, in the alternative, damages in the
    amount of $5 million for breach of contract. The Vendor counter-claimed for a
    judgment rectifying the Agreement and a declaration that the Agreement and the
    agreement of purchase and sale for Avondale were both null and void. The
    Purchaser brought a motion for partial summary judgment declaring the Vendor
    liable for breach of the Agreement.

[17]

The
    motion judge declared the Agreement unenforceable and dismissed the Purchasers
    motion. He found that the Agreement was clear: notice should have been
    delivered personally to the Vendor and the Purchaser did not deliver its notice
    personally. Further, the entire agreement clause in the Agreement precluded
    the implication of terms to the contrary
[2]
and was a complete answer to the Purchasers argument that the Vendor had
    waived the requirement that notice be given by personal delivery.

[18]

The
    motion judge also concluded that the Vendor was not entitled to rectification
    of the Agreement.

[19]

The
    Purchaser appeals the dismissal of its motion. The Vendor cross-appeals, asking
    that if the Purchasers appeal be allowed, all issues, including his claim to
    rectification, be sent to trial.

ARGUMENTS ON APPEAL

[20]

The
    Purchaser makes five arguments on appeal:

1.

The Purchasers solicitors fax number was provided in the Agreement.
    The signed Agreement was faxed by the Vendors solicitor to the Purchasers
    solicitor and the Vendors solicitors fax number therefore appears on the top
    of each page. In this way, the Vendors solicitors fax number was provided
    herein, within the meaning of the notice provision. Therefore, fax delivery to
    the Vendors solicitor complied with the express notice provision in the
    Agreement.

2.

The motion judge should have found that by leaving the notice at Blue
    Water, Mr. Curic satisfied the requirement for personal delivery, as was found
    in
1376273 Ontario Inc. v. Knob Hill Farm Ltd.
(2003)
, 34 B.L.R. (3d) 95 (Ont. S.C.).

3.

A term that notice waiving the conditions in favour of the Purchaser
    could be given by fax to the Vendors solicitor and by hand delivery to Blue
    Water is necessary to give business efficacy to the Agreement and should be
    implied as a matter of presumed intention:
Canadian Pacific Hotels Ltd. v.
    Bank of Montreal
, [1987] 1 S.C.R. 711. And, as in
CivicLife.com Inc.
    v. Canada (Attorney General)
(2006)
,
    215 O.A.C. 43, the wording of the entire agreement clause does not preclude the
    implication of a term. The motion judge erred in concluding otherwise.

4.

The Vendor waived the personal delivery notice requirement, through his
    conduct or that of his solicitor. Alternatively expressed, the Vendor and the
    Purchaser amended the provisions of the Agreement by their actions during the
    course of the Agreement, as in
Colautti Construction Ltd. v. Ottawa (City)
(1984)
, 46 O.R. (2d) 236 (C.A.). An
    entire agreement clause does not necessarily preclude a party from asserting
    waiver, or that the Agreement was subsequently amended. The motion judge erred
    in concluding that the entire agreement clause in the Agreement did so.

5.

The motion judge failed to consider and apply the doctrine of promissory
    estoppel. The Vendor through his conduct waived strict compliance with the
    provisions in the Agreement regarding how notice was to be given, leading the
    Purchaser to suppose that he would not insist on strict compliance with the
    notice provision. This is an appropriate circumstance for equity to intervene
    and estop the Vendor from strict reliance on his rights.

[21]

Below,
    I address each of these arguments in turn. However, I first outline the
    standard of review that the Supreme Court held in
Sattva Capital Corp. v.
    Creston Moly Corp.,
2014 SCC 53, 373 D.L.R. (4th) 393 is to be applied to questions
    of contractual interpretation.

CONTRACTUAL INTERPRETATION: STANDARD OF REVIEW

[22]

In
Sattva
, Rothstein J., for the Supreme Court, wrote at para. 50:

Contractual interpretation involves issues of mixed fact and
    law as it is an exercise in which the principles of contractual interpretation
    are applied to the words of the written contract, considered in light of the
    factual matrix.

[23]

He
    explained at para 51:

One central purpose of drawing a distinction between questions
    of law and those of mixed fact and law is to limit the intervention of
    appellate courts to cases where the results can be expected to have an impact
    beyond the parties to the particular dispute. It reflects the role of the
    courts of appeal in ensuring the consistency of the law, rather than in
    providing a new forum for parties to continue their private litigation.

[24]

[D]eference
    [is owed] to first instance decision-makers on points of contractual
    interpretation:
Sattva
,

at para. 52.

[25]

There
    may be instances where a question of law  which attracts a correctness
    standard  can be extricated from the interpretation process. However, as
Sattva
cautions at para. 55, such instances will be rare.

[26]

Therefore,
    the motion judges conclusions that the Purchaser was required to deliver its
    written notice of waiver to the Vendor personally and that the manner by which
    the Purchaser gave notice in this case did not amount to personal delivery to the
    Vendor are entitled to deference, absent an extricable question of law.

ARGUMENTS 1 AND 2

[27]

I
    am not persuaded that either of the Purchasers first two arguments provides a
    basis for this court to interfere with the motion judges conclusions.

[28]

As
    for its first argument, there is no indication from the Purchasers factum
    below on the motion for partial summary judgment that the Purchaser argued at
    first instance that fax delivery to the Vendors solicitor constituted fax
    delivery in accordance with the Agreement. In any event, the Agreement included
    a specific spot where a fax number 
if any
 at which the Vendor could be given notice was to be specified. No fax number
    was specified in the spot in the Agreement designated for that purpose. Faxing
    the notice to the Vendors solicitor did not constitute notice via facsimile
    transmission in accordance with the Agreement.

[29]

As
    to its second argument, the Purchasers evidence that it had delivered the
    notice to Blue Water was contradicted by the Vendor and his former spouse. The
    motion judge did not make a finding that the Purchaser had delivered the notice
    to Blue Water, and I would be reluctant to make such a finding on this record.

[30]

In
    any event, the facts in this case are very different from those in
Knob
    Hill
. In that case, the notice clause required that notice to the
    corporate seller be delivered in person
at a specified address
. The
    court found that a notice  delivered by the hand of an individual  and
    addressed to and placed between the locked doors of the specified address,
    where it would surely be found when the doors were unlocked by a responsible
    person, was delivered in accordance with the notice provision: see
Knob
    Hill
, at para. 143. Here, clause 7 of Schedule A to the Agreement specifies
    that the conditions can only be waived by notice in writing
to the

Seller

    [emphasis added]. And clause 3 of the standard terms refers to a notice
    delivered personally or hand delivered to the Address for Service provided in
    the Acknowledgement below As noted above, no Address for Service was
    specified in the Acknowledgement. Further, the Vendor in this case is an
    individual, not a corporation as in
Knob Hill
, and Blue Water was not
    a place of business, as in the case of
Knob Hill
, where the notice
    would be surely found by a responsible person. The Vendor did not live at
    Blue Water and the Vendors evidence was that no notice was found at Blue
    Water.

ARGUMENT 3: IMPLIED TERMS

[31]

In
    my view, there is no basis for interfering with the motion judges conclusion
    that other provisions as to notice should not be implied. His interpretation of
    the entire agreement clause is entitled to deference. Moreover, I would not imply
    the term regarding notice that the Purchaser seeks to have implied. Therefore,
    even if the motion judge erred in his interpretation of the entire agreement
    clause, the Purchasers argument based on implied terms fails.

[32]

The
    entire agreement clause in the Agreement provided as follows:

This Agreement including any Schedule attached hereto, shall
    constitute the entire Agreement between Buyer and Seller. There is no
    representation, warranty, collateral agreement or
condition
, which
    affects this Agreement other than as expressed herein [emphasis added].

[33]

While
    the word condition was not modified by a phrase such as express or implied,
    in my view it was nonetheless open to the motion judge to find that the entire
    agreement precluded the implication of an implied term as to notice.

[34]

CivicLife
did not preclude the motion judge from coming to that conclusion.

[35]

The
    issue in
CivicLife
was whether the contract included a duty of good
    faith performance. Weiler J.A., writing for the court, concluded that it did,
    using the device of an implied term. At para. 52, she held that the wording of
    the entire agreement clause did not preclude the implication of such a term
    because it was already part of the contract. She further held that even if the
    entire agreement clause precluded such an implication on its face, the court
    had the discretion not to enforce the clause when to do so would be
    unconscionable, unfair, unreasonable or otherwise contrary to public policy.

[36]

In
Bhasin v. Hrynwew
, 2014 SCC 71, 27 B.L.R. (5th) 1  a decision released
    after this appeal was argued and on which the parties subsequently made written
    submissions  Cromwell J., writing for a unanimous court, clarified that the
    duty of good faith should not be thought of as an implied term. He recognized a
    new duty of honest contractual performance as a general doctrine of contract
    law that operates irrespective of the intentions of the parties. As such, the
    parties cannot exclude it by an entire agreement clause:
Bhasin
, at
    para. 74.

[37]

Seen
    in the light of
Bhasin
,
CivicLife
is about the importance of
    acting in good faith in contractual dealings, and not about the general ability
    to imply terms  whatever their nature  notwithstanding an entire agreement
    clause.

[38]

Because
    he was of the view that the entire agreement clause precluded the Purchaser
    from asserting that there were implied terms as to the manner of giving of
    notice, the motion judge did not expressly address whether a term should be
    implied that notice waiving the conditions in favour of the Purchaser could be
    given by fax to the Vendors solicitor and by hand delivery to Blue Water.

[39]

I
    would decline to imply such a term. As Cory J.A. (as he then was) held in
G.
    Ford Homes Ltd. v. Draft Masonry (York) Co.
(1983), 43 O.R. (2d) 401
    (C.A.), at p. 403: no term will be implied that is inconsistent with the
    contract. As mentioned above, the Agreement expressly provided a way in which
    the Vendor could be served: personally. There was no indication that the Vendor
    was evading personal service of the notice, and the Purchaser made no effort to
    serve the Vendor personally. To imply other terms in relation to notice would
    run contrary to the express notice provisions in the Agreement. The device of
    implying contractual terms is to be used sparingly and with caution: John D.
    McCamus,
The

Law of Contracts
, 2nd ed. (Toronto: Irwin Law,
    2012) at p. 774. Finally, I agree with the Vendor that implying the terms
    sought by the Purchaser is not necessary to give business efficacy
[3]
to the Agreement. Therefore, these terms should not be implied as a matter of
    presumed intention.

ARGUMENT 4: WAIVER

[40]

While
    the motion judge noted the Purchasers argument that the Vendor, through his
    lawyers course of conduct, had waived the requirement that any notice given
    pursuant to the Agreement be given in accordance with its express terms, the
    motion judge did not make a finding as to whether or not the Vendor had waived
    compliance with the notice provision. Rather, he concluded that the Purchasers
    waiver argument was defeated by the entire agreement clause in the Agreement.

[41]

At
    para. 58 the motion judge wrote, [w]aiver is nothing more than a representation
    by conduct or a collateral agreement affecting the [Agreement], both of which
    the [entire agreement clause] prohibits.

[42]

I
    would be inclined to agree with the Purchaser that this clause does not necessarily
    bar a claim that the Vendor waived a provision of the Agreement
after
the
    Agreement was concluded. However, as I explain below, I am not persuaded that
    the evidence in the record establishes waiver or amendment of the Agreement by
    post-agreement conduct. Therefore, if the motion judge erred in concluding that
    the entire agreement clause bars a claim asserting waiver, such error is of no
    moment.

[43]

In
Technicore Underground Inc. v. Toronto (City)
, 2012 ONCA 597, 354
    D.L.R. (4th) 516, at para. 63, Gillese J.A., writing for the court, summarized
    the essentials of waiver as set out by the Supreme Court of Canada in
Saskatchewan
    River Bungalows Ltd. v. Maritime Life Assurance Co.
, [1994] 2 S.C.R. 490:

Waiver occurs when one party to a contract (or proceeding)
    takes steps that amount to foregoing reliance on some known right or defect in
    the performance of the other party. It will be found only where the evidence
    demonstrates that the party waiving had (1) a full knowledge of the deficiency
    that might be relied on and (2) an unequivocal and conscious intention to
    abandon the right to rely on it. The intention to relinquish the right must be
    communicated. Communication can be formal or informal and it may be inferred
    from conduct. The overriding consideration in each case is whether one party
    communicated a clear intention to waive a right to the other party.

[44]

The
    Purchaser argues that negotiations had always or almost always been conducted
    through counsel and that through this course of conduct the Vendor waived his
    right to insist upon the prescribed method of notice.

[45]

The
    Purchaser points to the fact that the parties made offers and counter-offers by
    fax to their respective lawyers in the course of their negotiation of the
    Agreement and that the Vendor accepted the offer resulting in the Agreement by fax
    to the Purchasers solicitor.

[46]

The
    Purchaser also points to correspondence exchanged between its counsel and the
    Vendors counsel on February 20 and 21, 2013. The Purchasers lawyer faxed a
    letter to the Vendors lawyer on February 20, 2013 requesting confirmation that
    the $50,000 deposit had been received and that the conditional period expired
    on February 23, 2013. On or about February 21, 2013, the Vendors lawyer
    responded by fax, acknowledging receipt of the deposit and confirming that the
    conditional date was February 22, 2013 (February 23 landed on a Saturday).

[47]

In
    my view, the evidence does not demonstrate that the Vendor had an unequivocal
    and conscious intention to abandon his right to insist on strict compliance
    with the requirement that the Purchaser give notice in writing of its waiver of
    notice of conditions personally to the Vendor. I conclude this for several
    reasons.

[48]

First,
    it is important to recall that the Agreement contained two provisions governing
    the giving of notice of waiver of conditions for the benefit of the Purchaser:
    clause 7 of Schedule A and clause 3 of the standard terms. Clause 7 is a
    separate and specific obligation to give notice in writing to the [Vendor] in
    the case of a waiver of conditions for the benefit of the Purchaser. There is
    no equivalent stand-alone provision in respect of the delivery of offers or
    counter-offers, or communications regarding the deposit, or the condition
    waiver date. Any waiver resulting from the conduct that the Purchaser relies on
    could only be with respect to clause 3 of the standard terms  as that was the
    only clause applicable to such conduct  and not the independent requirement in
    clause 7 of Schedule A. It therefore cannot be said that the conduct relied on
    by the Purchaser demonstrates that the Vendor had an unequivocal and conscious
    intention to abandon his right to rely on the specific notice of waiver of
    conditions provision in clause 7.

[49]

Second,
    not only did the Agreement not contain a separate provision requiring notice
    in writing to the [Vendor] in the instances that the Purchaser seeks to rely
    on (i.e. the making of offers and counter-offers, the delivery of the deposit,
    and the discussion of the condition waiver date), in two of those instances the
    Agreement actually contemplated communication with a person other than the
    Vendor. The Agreement required the Purchaser to deliver the deposit to the
Vendors
    solicitor
within 2 business days of the acceptance of the Agreement. It did
    not require notice to the Purchaser confirming receipt of the deposit. Given
    that the deposit was to be paid to the Vendors solicitor, it is logical that
    the Purchasers lawyer would seek confirmation from the Vendors solicitor that
    it had been received. Similarly, in the case of the communication between
    counsel regarding the date when the conditional period expired, clause 20 of
    the Agreement permitted the Vendors and the Purchasers respective counsel to
    extend or abridge time on their behalf.

[50]

Third,
    the notice at issue is specifically required by clause 7 of Schedule A and is
    of critical importance. If the conditions in clause 7 were not waived by
    notice in writing to the [Vendor] within the applicable time period, the
    agreement would become null and void.

[51]

Fourth,
    this is not a case where a particular kind of notice (such as a notice of
    renewal of a lease
[4]
)
    had always been given in a particular manner, and accepted by the other party
    as having been validly given, despite not conforming to the notice provisions
    of the governing agreement.

[52]

Finally,
    the Purchasers lawyer did not seem to be of the view that sending a fax to the
    Vendors lawyer satisfied the requirement that notice in writing be given to
    the Vendor. According to Mr. Curic, the Purchasers lawyer instructed him to
    deliver the notice to Blue Water as well.

[53]

As
    to the Purchasers argument based on
Colautti
, whether the Purchaser
    waived the right to insist on strict compliance with the notice provisions and
    whether the Vendor and the Purchaser varied the notice provisions in the
    Agreement by post-agreement conduct essentially involve the same analysis, at
    least in this case.

[54]

In
Colautti
, after difficulties in the construction of a sewer line
    arose, the parties agreed that the proposed sewer line should be relocated. The
    contractor later sued for the additional costs it incurred in doing so. The
    contract  which the court described as one drawn by a municipality to protect
    taxpayers and as being so rigid and restricting  required that extra costs
    be authorized in writing. The court noted that over the course of the contract
    the city ordered several significant changes and additions. While none were
    authorized in writing, the city paid for all of them. At pp. 242-243, Cory J.A.
    (as he then was), writing for this court, wrote that the parties, by their
    conduct, have varied the terms of the contract which require extra costs to be
    authorized in writing. As a result, the City cannot rely on its strict
    provisions to escape liability to pay for the additional costs authorized by it
    in the event the contractor incurred those costs as a result of the citys
    error. The court did not make a determination as to whether the changes stemmed
    from an error by the city. Instead, it ordered a new trial.

[55]

For
    the same reasons that I am not satisfied that the Vendor waived the right to
    insist on strict compliance with the notice provisions, I am not satisfied that
    the parties by their conduct waived the terms of the Agreement that required
    that notice of waiver of conditions pursuant to clause 7 of Schedule A be
to
    the Vendor
.

ARGUMENT 5: PROMISSORY ESTOPPEL

[56]

Nor
    am I persuaded that the doctrine of promissory estoppel precludes the Vendor
    from requiring notice in writing to
him
that the Purchaser waived the
    conditions.

[57]

The
    Supreme Court set out the principles of promissory estoppel in
Maracle v.
    Travelers Indemnity Co. of Canada
, [1991] 2 S.C.R. 50 at p. 57:

The principles of promissory estoppel are well settled. The
    party relying on the doctrine must establish that the other party has, by words
    or conduct, made a promise or assurance which was intended to affect their
    legal relationship and to be acted on. Furthermore, the representee must
    establish that, in reliance on the representation, he acted on it or in some
    way changed his position.

[58]

The
    promise can be inferred from the circumstances, but must be unambiguous: see
Engineered
    Homes Ltd. v. Mason
, [1983] 1 S.C.R. 641.

[59]

Promissory
    estoppel is equitable relief. Therefore, the party seeking to invoke it must
    show that its past record
in the transaction
is clean: see
Toronto
    (City) v. Polai
, [1970] 1 O.R. 483 (C.A.), at pp. 493-494; see also
Servello
    v. Servello
, 2014 ONSC 5035, 245 A.C.W.S. (3d) 330, at paras. 107-108, 117.

[60]

For
    the same reasons that I am not convinced that the evidence makes out a basis
    for the Purchaser to assert waiver or variance of the Agreement by
    post-agreement conduct, I am not satisfied that an unambiguous promise or
    assurance which was intended to affect the Vendors right to require notice in
    compliance with the express terms of the Agreement can be inferred from the
    circumstances.

[61]

And
    even if one could be inferred, I would decline to grant relief to the Purchaser
    on the basis of promissory estoppel.  While  in the course of addressing the
    Vendors plea for rectification  the motion judge concluded that the
    Purchasers conduct was not equivalent to fraud, he also found that the
    Purchaser must have known that it was important to the Vendor that the
    properties be sold together. The motion judge characterized the Purchasers
    conduct as hard and pointed. In my view, the Purchasers past record in the
    transaction would be sufficient to deny relief on this equitable basis.

DISPOSITION

[62]

I
    would accordingly dismiss the appeal, and order costs in favour of the Vendor
    in the amount of $18,000, inclusive of HST and disbursements. Since I would
    dismiss the Purchasers appeal, I see no reason to address the Vendors
    cross-appeal.

Released:  AH                                  Alexandra
    Hoy A.C.J.O.

DEC 18 2014                                   I agree
    Gloria Epstein J.A.

I
    agree C. W. Hourigan J.A.





[1]
This clause appears as clause 4 of the agreement of purchase and sale for
    Avondale.



[2]
At para. 52 of
High Tower Homes v. Stevens et al.
, 2014 ONSC 2309, the
    motion judge in this case wrote: In this case, the contract was clear. Notice
    should have been delivered personally, and, given [the entire agreement
    clause], there can be no waiver or agreement contrary to the terms of the [Agreement].
    Given the issues before the motion judge, I interpret the words or agreement
    as responding to the Purchasers argument that the Agreement includes implied
    terms regarding the giving of notice.



[3]
In
Canadian Pacific Hotels
, Le Dain
    J. characterized the test for implied terms in fact at p. 775 as being the
    implication of a term as necessary to give business efficacy to a contract or
    as otherwise meeting the officious bystander test as the term which the
    parties would say, if questioned, that they had obviously assumed.



[4]
See
DW Squared Ltd. Partnership v. Oxford
    Properties Canada Ltd.
(2001)
, 43 R.P.R. (4th) 155 (Ont. S.C.),
    where the two prior notices of renewal of lease had been given by the same
    tenant and accepted by the same landlord in the same manner as the notice of
    renewal at issue.


