



COURT OF APPEAL FOR ONTARIO

CITATION: Vandenberg v. Wilken, 2019 ONCA 262

DATE: 20190403

DOCKET: C64690

Feldman, Pepall and Roberts JJ.A.

BETWEEN

Pieter Adriaan Vandenberg, Catherine Ann
    Vandenberg  
    and 1060205 Ontario Inc.

Plaintiffs (Respondents)

and

Robert Wilken and Angela Wilken

Defendants (Appellants)

Michael A. Polvere, for the appellants

David J. Kirwin, for the respondents

Heard: March 21, 2019

On appeal from the order of Justice Raikes of the Superior
    Court of Justice, dated November 6, 2017, with reasons reported at 2017 ONSC
    6665.

REASONS FOR DECISION

[1]

This appeal arises out of a failed commercial farm real estate
    transaction that the appellant vendors refused to close because of their
    allegations of unconscionability,
non est factum
, collusion and
    conspiracy against the respondent purchasers and third party real estate
    agents.

[2]

The appellants appeal from the order of partial summary judgment granted
    to the respondents with respect to the validity of the agreement of purchase
    and sale and its breach by the appellants. The respondents resist the appeal
    but are content that the order dismissing their claim for specific performance
    survive.

[3]

The respondents brought an action for specific performance of the sale to
    them of the appellants farm property, alternatively claiming damages for
    breach of the agreement. They subsequently moved for judgment enforcing the
    agreement of purchase and sale and granting specific performance. There was no
    motion with respect to the appellants counterclaim or the third party claim
    against the real estate agents.

[4]

Following service of the motion for summary judgment, the appellants
    delivered a statement of defence and counterclaim, and issued a third party
    claim against the real estate agents, who represented both the appellants and
    the respondents on the transaction, claiming that the agents exerted undue
    pressure on the appellants and forced them to enter into the agreement, making
    it unconscionable.

[5]

The motion judge granted summary judgment declaring the agreement of purchase
    and sale valid, but denied the remedy of specific performance and ordered a
    trial regarding damages.

[6]

In coming to this determination, the motion judge made a number of adverse
    findings of credibility against the appellants with respect to their interactions
    with the real estate agents. The motion judge summarized his conclusions as
    follows:

I am convinced that the [appellants]
    simply suffer from a case of sellers remorse. They were not misled nor were
    they pressured to sign the offer back. They wanted full price for their properties
    and that is what they got. In the days after they had the agreement in hand,
    they had a change of heart. Their story of what happened before and after the
    agreement was entered into is simply not credible.

[7]

The motion judge determined the evidence did not establish any prospect
    of a finding of an unconscionable transaction, and even if a court could find
    that the agents misrepresented the effect of signing back the counter-offer,
    the [appellants] remedy lies against the agents, not the innocent
    [respondents].

[8]

The appellants submit the motion judge erred in granting partial summary
    judgment to the respondents in the main action when there are genuine issues of
    fact and credibility requiring a trial, and a real risk of inconsistent
    findings being made in the trial of the counterclaim and third party claim.

[9]

We agree.

[10]

We
    appreciate that the motion judge was endeavouring to give effect to the shift
    in culture directed by the Supreme Court in
Hryniak v. Mauldin
, 2014
    SCC 7, [2014] 1 S.C.R. 87, that the enhanced powers under r. 20.04 of the
Rules
    of Civil Procedure
be employed to achieve 
a proportionate, more expeditious and less
    expensive means to achieve a just result (paras. 28, 49).  The difficulty,
    here, however, is that in ordering a partial summary judgment, the motion judge
    failed to heed the Supreme Courts further instruction and caution at para. 60:

The "interest of
    justice" inquiry goes further, and also considers the consequences of the
    motion in the context of the litigation as a whole. For example, if some of the
    claims against some of the parties will proceed to trial in any event, it may
    not be in the interest of justice to use the new fact-finding powers to grant
    summary judgment against a single defendant. Such partial summary judgment may
    run the risk of duplicative proceedings or inconsistent findings of fact and
    therefore the use of the powers may not be in the interest of justice. On the
    other hand, the resolution of an important claim against a key party could
    significantly advance access to justice, and be the most proportionate, timely
    and cost effective approach.

[11]

The
    motion judge was required but failed to consider whether in granting partial
    summary judgment there was a risk of duplicative or inconsistent findings at
    the trial of the counterclaim and third party claim, and whether granting
    partial summary judgment was advisable in the context of the litigation as a
    whole:
Butera v. Chown, Cairns LLP
, 2017 ONCA 783, at para. 28.  As
    this court further observed in
Butera
, at para. 34:

A motion for partial summary judgment should be considered to
    be a rare procedure that is reserved for an issue or issues that may be readily
    bifurcated from those in the main action and that may be dealt with expeditiously
    and in a cost effective manner.

[12]

None
    of these factors was present here.

[13]

First,
    the issues were not readily bifurcated. The appellants allegations of
    unconscionability are inextricably intertwined with and therefore affect the
    determination of the validity of the agreement of purchase and sale. Moreover,
    the motion judge made numerous findings of credibility concerning the
    appellants and their relationship with their real estate agents that are at the
    core of the counterclaim and third party claim. The motion judges findings
    will either constrain the trial judge or lead to the risk of inconsistent
    findings on the same issues at trial.

[14]

Further,
    in the light of the appellants assertions of Mr. Wilkens disability that in
    part grounded their allegations of unconscionability, it was incumbent on the
    motion judge to consider whether in those circumstances, oral evidence was
    required to determine the issues of credibility on which the decision turned.

[15]

Finally,
    the motion judges order did not result in the issues ultimately being dealt
    with in an expeditious and cost effective manner:  the partial summary judgment
    did not dispose of the respondents damages claim, the counterclaim or the
    third party claim, which must proceed to trial.

[16]

As
    a result, the appeal is allowed and paras. 1 and 3 are set aside.

[17]

The
    appellants are entitled to their partial indemnity costs of the appeal fixed as
    agreed in the amount of $12,500, and to their partial indemnity costs of the
    motion below in the amount of $20,000.  Both amounts are inclusive of
    disbursements and HST.

K.
    Feldman J.A.

S.E.
    Pepall J.A.

L.B.
    Roberts J.A.


