



COURT OF APPEAL FOR ONTARIO

CITATION: LeBlanc v. Ontario, 2021 ONCA 204

DATE: 20210331

DOCKET: C68152

Rouleau, Brown and Miller JJ.A.

BETWEEN

Terry LeBlanc

Plaintiff (Appellant)

and

Her Majesty the Queen in Right of Ontario

Defendant (Respondent)

Andrew Ostrom, for the appellant

Eunice Machado and Peter Entecott, for the respondent

Heard and released orally: March 30, 2021 by video conference

On appeal from the
    order of Justice Grant R. Dow of the Superior Court of Justice, dated February
    5, 2020.

REASONS FOR DECISION

[1]

The appellant was the high bidder in a Sheriffs auction of a judgment
    debtors residential property. The property was auctioned pursuant to a Notice
    of Sheriffs Sale of Land that had been posted in the
Ontario Gazette
online, a local newspaper, and on a bulletin board at the Parry Sound courthouse.

[2]

The appellant attended the auction after seeing the notice in the
Ontario
    Gazette
. The lowest appraised value of the property was $520,000. The
    appellants winning bid was $260,000. No Agreement of Purchase and Sale was
    executed, but the appellant provided the required deposit of $26,000.

[3]

The next day, the appellant was advised that the sale had been cancelled
    and his deposit would be returned. The explanation he was given was that the
    Attorney Generals policy was not to accept bids of less than 60% of the lowest
    appraised value, which for this property was $320,000. The appellant took the
    position that he was contractually entitled to purchase the property for the
    amount of his bid.

[4]

The judgment debtor later satisfied the judgment against her, and the
    judgment creditor withdrew the writ of seizure and sale.

[5]

There is disagreement over the terms of the auction, caused in part by
    the Sheriffs office having published notices with different wording. The notice
    of sale posted in the courthouse stated the sale is subject to cancellation by
    the sheriff without further notice up to the time of the satisfaction of the
    sale terms. The notice of sale posted in the
Ontario Gazette
and the
    newspaper read this sale is subject to cancellation by the sheriff without
    further notice up to the time of sale. Both versions also stated the sale was
    subject to other conditions as announced.

[6]

The appellant brought an action against the Crown seeking damages in the
    amount of $264,883 for breach of contract. On a motion for summary judgment, the
    action was dismissed.

[7]

The motion judge dismissed the action on three bases:

1.

The contract permitted the Sheriff to unilaterally cancel the sale at
    the time it was cancelled;

2.

S. 142 of the
Courts of Justice Act
shields the Respondent from
    liability; and

3.

Principles of equity permit the court to decline to enforce the
    contract.

[8]

The appellant appeals on the basis that each of these propositions
    constitute errors of law.

Analysis

[9]

The motion judge made a finding of fact that the rules governing the
    auction read out by the auctioneer were taken from the Notice of Sale posted at
    the courthouse. Although the appellant disputes this finding, it is an
    inference that was available to the motion judge on the evidence before him,
    and we would not disturb it. Additionally, as the motion judge reasoned, the
    appellant had been alerted by the Notice published in the
Gazette
that
    the sale would be subject to other conditions as announced. The conditions
    read by the auctioneer from the Notice of Sale posted at the courthouse were
    thus contemplated by the terms contained in the
Gazette
.

[10]

The
    motion judge found, and we agree, that the Notice of Sale allowed for the unilateral
    cancellation of the sale up to the time of the satisfaction of the sale
    terms. It is significant here that at the time the sale had been cancelled, matters
    had not even advanced to the point of drawing up a formal Agreement of Purchase
    and Sale.

[11]

It
    is not necessary that we consider the additional ground that the motion judge
    erred in his interpretation and application of s. 142 of the
Courts of
    Justice Act
. Neither is it necessary that we consider whether the courts
    equitable jurisdiction is relevant to the matters in dispute.

DISPOSITION

[12]

The
    appeal is dismissed. Costs are awarded to the respondent in the amount of
    $5,500 inclusive of disbursements and HST.

Paul Rouleau J.A.

David Brown J.A.

B.W. Miller J.A.


