



COURT OF APPEAL FOR ONTARIO

CITATION: Central Park Ajax Developments
Phase 1 Inc. v. Ajax (Town), 2019 ONCA 793

DATE: 20191004

DOCKET: C66052

Juriansz, Benotto and
    Miller JJ.A.

BETWEEN

Central Park Ajax Developments Phase 1 Inc. and
Lemine Real Estate Consulting Inc.

Plaintiffs (Appellants)

and

The
    Corporation of the Town of Ajax and Rob Ford

Defendants (Respondents)

Raivo Uukkivi and Jeremey Martin, for
    the appellants

John R. Hart and R. Andrew Biggart, for
    the respondents

Heard: September 25, 2019

On appeal from the judgment of Justice Anne M. Mullins of the Superior
    Court of Justice, dated September 28, 2018.

REASONS FOR DECISION

[1]

This appeal concerns whether the respondents, the
    Corporation of the Town of Ajax (the Town) and its Chief Administrative
    Officer, Rob Ford, validly invoked the repurchase terms under the amended
    development agreement (the agreement) between the appellants (collectively
    referred to as LeMine) and the Town. The agreement was in connection with
    LeMines wish to develop land. It set out the terms by which the agreement
    could be terminated, and the land repurchased by the Town.

[2]

The Town sought to invoke the repurchase terms under the agreement on
    the basis that there were grounds for termination because LeMines application
    for development had not been completed by the required date. LeMine took the
    position that the application was complete, and it was awaiting approval from
    the Town. LeMine brought an action against the Town.

[3]

The parties consented to an expedited and abridged trial to determine
    whether there were grounds for termination and repurchase. The trial judge
    found in favour of the Town; LeMine appeals.

[4]

At issue in this appeal is whether the trial judge erred by concluding
    that LeMines application was incomplete and that the Town could invoke the
    repurchase terms of the agreement.

[5]

The agreement dated June 2015 stipulated two grounds for termination:

(i)

LeMine intends to proceed with development that does not conform to the
    development plans, and fails to reach an agreement with the Town on revisions
    to the development plans; and

(ii)

LeMine fails to take reasonable steps to proceed with construction by
    July 15, 2016, provided it is not awaiting comments or confirmation of approval
    on any application from the Town.

[6]

The second ground is central to the appeal.

[7]

LeMine was to commence construction within a certain time, no later than
    12 months from the date of the satisfaction or waiver of the purchasers
    conditions (i.e., July 15, 2016). In early July 2016, as the 12-month deadline
    approached, LeMine sought an extension of time to satisfy itself as to the
    economic feasibility of the project. The Town did not grant the extension. Instead,
    the Town agreed that LeMine could submit a revised site plan to ensure greater
    return on investment for LeMine, and that the Town would consider these
    revisions. The trial judge concluded that these discussions effectively
    extended the deadline to July 15, 2017.

[8]

The revised site plan submitted by LeMine included a 12-storey building,
    rather than the original 10-storey plan, and additional parking. The Town was
    concerned,
inter alia
, about traffic and air quality issues and raised
    these issues with LeMine. LeMine did not respond to the Towns requests.

[9]

On July 17, 2017, the Town informed LeMine that it was terminating the
    agreement and exercising its right under the agreement to repurchase the lands.

[10]

At
    trial, LeMine took the position that its application was complete because it
    was waiting for responses from the Town. The Town submitted that the revised
    site plan application was incomplete, the time had expired, construction had
    not started, and it was entitled to invoke the repurchase terms under the
    agreement.

[11]

The
    trial judge found that LeMine was not awaiting confirmation of approval on any
    application. At no time did the Town receive fully realized roofing plans or
    elevation sketches for the proposed 12-story building. LeMine did not fully
    address traffic study concerns or deliver adequate materials to address air
    quality environmental approvals. In short, LeMine never made a complete site
    plan submission within the meaning of the contract. The submissions were
    inadequate for the Town of Ajax Council to approve or reject the proposal.

[12]

The
    trial judge further concluded that the Town had the right to repurchase the
    lands at the time it gave LeMine notice in July 2017. Correspondence between
    LeMine and the Town showed that the parties agreed construction was to commence
    by July 15, 2017, 12 months from the date LeMine waived the purchasers
    conditions under the agreement. LeMine failed to begin construction by this
    date, which enabled the Town to exercise its repurchase rights.

[13]

The
    issue on appeal turns on whether the site plan application submitted by LeMine
    was complete.

[14]

LeMine
    submits that the trial judge erred in failing to consider s. 41 of the
Planning Act
,
    R.S.O. 1990, c. P.13
to determine what constitutes a complete site plan.
    We do not agree. The trial judge found that the site plan application was
    incomplete as a result of LeMines failure to file the required materials. This
    was a finding of fact available to her on the record. There was no basis to
    import the
Planning Act
procedures and
    definitions into a straightforward contractual interpretation.

[15]

LeMine
    also submits that the trial judge conflated the concept of a complete site plan
    with one that is ready for approval. We disagree. The trial judge explained the
    completeness of a site plan was a necessary pre-requisite for its approval. At
    para. 53 of her reasons, the trial judge concluded:

Only when a site
    plan, or amendments thereto, are sufficient, meaning that all necessary aspects
    of a site plan have been addressed, are they submitted by staff to the approval
    authority. The approval authority for the site plan submissions of the plaintiff,
    under its agreement with [the Town], was council for the Town of Ajax. I find,
    as fact, and within the meaning of the contractual documents between the
    parties, that the plaintiff was not awaiting confirmation of approval on any
    Application from the Town at the time of service of the Notice. LeMine had had
    [
sic
] never made a complete site plan submission within the meaning of
    its contract with the defendant, which is to say sufficient for council to
    consider and approve or reject.

[16]

We agree with the trial judge that the
    application had not been completed within the meaning of the contract. The
    change from 10 storeys to 12 created a number of issues, which the Town raised
    and LeMine never addressed. The trial judge determined the completeness of the
    site plan based on the fact that LeMine had not submitted the additional requested
    materials to the Town. LeMine was not waiting for information from the Town.

[17]

LeMine was not awaiting comments or confirmation
    of approval from the Town. In fact, the Town was waiting for responses from
    LeMine with respect to changes to the original plan. On this basis the
    application was not complete. The trial judge was entitled to conclude that the
    Town had the right to invoke the repurchase terms of the agreement.

[18]

We do not accept LeMines submission that the
    trial was unfair. The parties agreed to the expedited and abridged process. No
    unfairness issues were raised at trial and we see no basis to do so now. Nor do
    we agree that the trial judges reasons are inadequate for appellate review.
    Finally, we do not agree with LeMine that the portions of Towns planners
    evidence upon which the trial judge relied constituted opinion evidence.

[19]

The appeal is dismissed with costs to the
    respondents fixed in the agreed upon amount of $85,000, inclusive of
    disbursements and HST.

R.G.
    Juriansz J.A.

M.L.
    Benotto J.A.

B.W.
    Miller J.A.


