



COURT OF APPEAL FOR ONTARIO

CITATION: Di Millo v. 2099232 Ontario Inc., 2018 ONCA 1051

DATE: 20181219

DOCKET: C65032

Rouleau, Pardu and Benotto JJ.A.

BETWEEN

Giuseppe Di Millo

Applicant (Appellant)

and

2099232 Ontario Inc.
, 2051407 Ontario Inc.
    and Inderjeet Dhugga

Respondents (
Respondent
)

Antonio Conte, for the appellant

James S. G. Macdonald, for the respondent

Heard: September 12, 2018

On appeal from the order
    of Justice Jamie K. Trimble of the Superior Court of Justice, dated February 6,
    2018, with reasons reported at 2018 ONSC 816.

Benotto J.A.:

[1]

Giuseppe Di Millos claim for specific performance of an option to
    repurchase land was dismissed by the application judge. He appeals on the basis
    that the application judge misapprehended the facts, misunderstood the nature
    of the application and erred in law.

[2]

For the reasons that follow, I would allow the appeal.

Facts

[3]

The appellant had, for many years, owned a large parcel of industrial
    land in Bolton, Ontario. He severed certain lots and, in 2012, sold two lots to
    the respondent, 20999232 Ontario Inc. The purchase price for both lots was
    $1,160,000. The respondent paid $360,000 in cash and the appellant took back a mortgage
    of $800,000.

[4]

The agreement of purchase and sale included an option clause in Article
    9.01(u), which read as follows:

Covenant to Build and Option to Purchase
 The Purchaser [i.e. the respondent] covenants and agrees with the Vendor [i.e.
    the appellant] that within thirty (30) months from the Closing Date it shall
    complete construction upon the Real Property of an industrial building to the
    extent that the roof, heating, plumbing, concrete flooring, exterior, paving
    and landscaping is completed as certified by the Vendors consulting engineer
    or architect. The Purchaser agrees that if the Purchaser shall fail to complete
    construction, as aforesaid, within the aforesaid thirty (30) month period, the
    Vendor shall have the option to repurchase the Real Property at the sale price
    paid by the Purchaser to the Vendor, pursuant to Section 2.01 hereof, after
    deducting there from any agents commissions paid or incurred by the Vendor in
    connection with the sale of the Real Property to the [Purchaser] and upon payment
    by the Vendor of the balance of the Purchase price due upon such repurchase of
    the Real Property, the Purchaser, its successors and assigns, will release and
    reconvey to the Vendor all its right, title and interest in and to the Real
    Property. Such agreement arising from the exercise of this option by the Vendor
    shall be completed thirty (30) days after the date of notification to the
    Purchaser of the exercise of such option. A provision to this effect may be
    inserted in the conveyance of the Real Property [from] the Vendor, its
    successors or assigns, if applicable, and the Purchaser shall, and agrees to,
    execute all instruments or documents to give effect to the provisions of this
    paragraph.

[5]

It essentially provides that the respondent was to build a specified
    industrial building within 30 months of closing (by March 2015) failing which
    the appellant would have the option to buy back the land at the original
    purchase price, less real estate commission paid on the original sale. Once the
    option was exercised, the sale back to the appellant was to be completed thirty
    days after notice of the exercise the option was given to the respondent. The
    agreement was silent as to when the notice of the exercise of the option had to
    be given.

[6]

The agreement of purchase and sale also included a clause whereby the
    respondent agreed not to sell, assign or transfer its interest in the agreement
    without the prior written consent of the appellant.

[7]

By March 2015, the respondent had not taken any steps to build on the
    property. It asked for and was given a one-year extension by the appellant. A
    year later  by March 2016  the building still had not been started.

[8]

The appellants lawyer wrote to the respondents lawyer on June 6, 2016
    advising that he was exercising the option. There was no response to this
    letter. The circumstances surrounding the receipt of this letter are unclear. The
    sender produced a fax confirmation form showing that it was delivered. The
    recipient solicitor testified that he did not recall receiving it. Yet, the
    principal of the respondent swore an affidavit indicating that his lawyer told
    him about the June 6 letter on or about that date. In any event, both parties
    agreed that the June 6 letter was not an effective exercise of the option,
    presumably because it was not sent directly to the respondent.

[9]

On August 22, 2016, the respondent entered into an agreement of purchase
    and sale to sell the property to a third party. The respondent did not seek the
    appellants consent prior to doing so.

[10]

The
    appellant retained a new lawyer. The new lawyer sent a letter to the respondent
    and the respondents lawyer on September 24, 2016 exercising the option. The
    application judge noted that, in accordance with the terms of the agreement, this
    would have placed the closing date on October 24, 2016.

[11]

Upon
    receiving the letter of September 24, 2016, the respondent requested another
    year extension. The appellant refused and insisted on a reconveyance. By then,
    the appellant had learned that the respondent had placed two additional mortgages
    of $500,000 and $150,000 on the property. He asked that they be discharged
    prior to closing.

[12]

On
    October 6, 2016, the appellants lawyer sent an email to the respondents
    lawyer, which ends with the following paragraph:

If your client continues to refuse to reconvey or to remove the
    $500,000 mortgage, then we will be commencing an application to the Courts. I
    will allow
until next Wednesday
for your positive response that your
    client will be complying, failing which I will commence the application
    immediately thereafter. [Emphasis added.]

[13]

On
    the following Tuesday, October 11, 2016, the following response was received: I
    have been retained by [the respondent]. I have instructions to accept service
    of any originating process on behalf of my client.

[14]

The
    appellant started an application requesting specific performance and discharge
    of the mortgages. However, on April 17, 2017, after learning that the mortgages
    that were placed on the property without his consent were legitimate mortgages,
    the appellant purchased one of the two mortgages for approximately $500,000. He
    says he purchased the mortgage to provide evidence that he had the funds to
    close.
[1]
He says he also wanted to solve the problem of how to recover the excess of the
    amount of the encumbrances on the property by purchasing the mortgage, which
    was registered collaterally on the house of the principal of the respondent.

[15]

Although
    the appellant had initially requested discharge of the two mortgages placed on
    the property by the respondent in his notice of application, by the time of the
    application to the court, the appellant simply requested specific performance
    of the option with credits for the encumbrances. This was made clear to the
    court in the opening statement and the appellant filed a supplementary
    affidavit outlining these events.

[16]

It
    took a year for the application to be heard.

Decision of the Application Judge

[17]

The
    application judge dismissed the application. He concluded that the appellant
    did not meet the requirements of the option. The application judge found that
    the timing of the notice was outside the reasonable notice period contemplated
    by the Agreement and it did not comply with the time is of the essence
    clause. The June notice was three months after the appellant could have first exercised
    the option and the September notice was six months after.

[18]

Although
    this was sufficient to dispose of the matter, the application judge found the appellant
    was not ready, willing and able to close and that his failure to tender was
    fatal to his claim for specific performance.

Position of the Parties

[19]

The appellant argues that the application judge made various
    palpable and overriding errors with respect to the facts and misapprehended the
    nature of the application. The appellant further submits that the application
    judge erred in law by finding that the option had expired even though the
    agreement did not specify the time period within which the option could be exercised.

The appellant says the application
    judge also erred in finding that that the appellants failure to tender meant
    he was not entitled to specific performance.

[20]

The respondent
    states that
the
    agreement required the appellant to set a closing date to complete the purchase
    within 30 days of exercising the option, and the appellant did not do so. Further,
    the respondent contends that the appellant failed to establish that he was
    ready, willing and able to close on any day subsequent to September 24, 2016
    (i.e., the date the appellant gave notice exercising the option) and,
    therefore, specific performance is not available to him. The respondent states
    that the fact that the appellant did nothing to complete the purchase after
    exercising the option was not caused in any way by the respondent.

Analysis

[21]

The
    main issue on this appeal is whether the application judge erred in concluding
    that the appellant was not entitled to specific performance. There is no issue
    that the respondent failed to comply with its obligation under the option clause
    to build an industrial building on the property. Rather, what is at issue is
    whether the appellant did what he needed to do and whether specific performance
    is an appropriate remedy.

[22]

In
    particular, the appeal raises the following issues:

1.       Did
    the application judge misapprehend the facts and the nature of the application?

2.       Did
    the application judge err in finding the option had expired?

3.
Is the appellants claim for specific performance defeated
    by his failure to tender?

4.       Is the
    appellant entitled to the remedy of specific performance under
Semelhago v.
    Paramadevan
?

Issue #1: Did the application judge misapprehend the the
    nature of the application and the facts?

[23]

A
    review of the record indicates that the application judge misunderstood the
    nature of the application before him.

[24]

The
    application judge stated at the outset of his reasons that the appellant was
    requesting a mandatory injunction requiring the Respondents to discharge the 2
nd
and 3
rd
mortgages on the property. He further stated that he was
    provided with no admissible evidence concerning the appellants purchase of the
    second mortgage. These statements were incorrect.

[25]

The
    supplementary affidavit of the appellant filed on consent during opening
    submissions detailed the appellants purchase of the second mortgage. It was
    referred to and was before the court. Further, the appellants counsel made it
    clear that the claim was for specific performance of the option with credits
    for the encumbrances, not a discharge of the mortgages.

[26]

It
    is not clear to what, if any, extent the application judges misapprehension
    about the nature of the application impacted his analysis and so I do not
    conclude it was a palpable and overriding error. However, as I explain below,
    his erroneous statement that there was no admissible evidence concerning the
    appellants purchase of the mortgage infected the analysis of whether the
    appellant was ready, willing and able to close.

[27]

The
    appellant also submits that the application judge made other palpable and
    overriding errors. In light of my conclusions on the other issues, it is
    unnecessary to address the appellants additional arguments on this point.

Issue #2: Did the application judge err in finding that the
    option had expired?

[28]

The
    application judges first reason for disposing of the appellants application
    was that he was out of time when he gave notice that he wanted to exercise the
    option. He found that notice was given outside the reasonable notice period contemplated
    by the Agreement. One of the reasons he gave for reaching that conclusion was
    that there was non-compliance with the time is of the essence clause.

[29]

The
    appellant argues that the application judge erred in concluding that the option
    had expired. I note that the respondent does not argue otherwise. Rather, the
    respondent contends that the application judges decision is supportable on the
    basis that the appellant did not tender, the third issue I will address.

[30]

I
    agree with the appellant that the application judge erred in concluding that
    the option had expired. In my view, his error flows from his misapprehension of
    the nature of a time is of the essence clause.

[31]

A
    time is of the essence clause is engaged where a time limit is stipulated in
    a contract. The phrase time is of the essence means that a time limit in an
    agreement is essential such that breach of the time limit will permit the
    innocent party to terminate the contract.

[32]

Garners
    Dictionary of Legal Usage,
3d ed. (Oxford: Oxford University Press, 2011)
    explains time is of the essence as follows, at p. 895:

When a contractual stipulation relating to the time of
    performance is of the essence of a contract, a partys failure to meet that
    stipulation automatically justifies the other partys rescinding the contract 
    no matter how trivial the failure. If, on the other hand, time is not of the
    essence, then the failure to comply with a stipulation about time will justify
    rescission only if there is substantial failure in performance.

[33]

Similarly,
    Geoff Hall explains that [t]he phrase [time is of the essence] is meant to
    evoke the notion that failure to observe stipulations in a contract as to when
    certain events are to occur will entitle the other party to rescind the
    contract: Geoff R. Hall,
Canadian Contractual Interpretation Law
, 3d
    ed. (Toronto: LexisNexis, 2016), at p. 379.

[34]

Geoff
    Hall explains how time is of the essence clauses are somewhat unusual from
    the perspective of contractual interpretation at p. 380:

From the broader perspective of contractual interpretation,
    time-is-of-the-essence clauses are an interesting phenomenon in that they
    operate somewhat independently of the principles of contractual interpretation
    generally. Unlike most other contractual provisions, the meaning of such
    clauses does not particularly turn on the intentions of the parties. Rather,
    the mere invocation of the phrase imports a series of rules of law which are
    imposed on the parties.

These rules of law include, for example, the rule that
    only a party who is ready to perform can rely upon a time is of the essence
    clause to terminate the contract for the other partys non-compliance with the
    provision: Hall, at p. 382.

[35]

These
    descriptions of time is of the essence clauses highlight that a time is of
    the essence clause does not serve to impose a time limit but rather dictates
    the consequences that flow from failing to comply with a time limit stipulated
    in an agreement.

[36]

In
    this case, clause 14.1 of the agreement states that Time shall be of the
    essence in all respects of this Agreement. While I agree that the time is of
    the essence clause applies to the option clause, it only applies insofar as
    the option clause stipulates time limits.

[37]

Notably,
    while the option clause includes two time limits, it is silent as to the time
    limit for exercising the option. However, the application judge found, that
    providing notice to the Respondent that complies with the Agreement, 6 months
    after the option first arose, does not comply with the time is of the essence
    clause. In my view, he erred in finding that the time is of the essence
    clause was engaged where no time was stipulated in the contract for exercising
    the option and in finding that there was non-compliance with the time is of
    the essence clause. Those errors tainted his finding that the option had
    expired by the time the appellant gave notice.

[38]

In
    light of the application judges error, it is open to this court to determine
    whether the option was exercised within a reasonable time. When, as here, there
    is no time specified for the exercise of an option, a reasonable time limit is
    implied:
SBS Sealants Inc. v. Robroy Industries Ltd.
(2002), 59 O.R.
    (3d) 257 (C.A.), at para. 16.

[39]

Recently,
    this court considered an option to purchase in the context of an interest in
    land. In
2123201 Ontario Inc. v. Israel Estate
, 2016 ONCA 409, 130
    O.R. (3d) 641, at paras. 19-21, Laskin J.A. explained that the life of an
    option is governed by the rule against perpetuities:

An option to purchase gives the option holder the right but not
    the obligation to purchase land.  An option holder has an equitable interest
    in the land, contingent on the holders election to exercise the option.
    Because an option to purchase creates an interest in land, it is specifically
    enforceable at the time the option is granted. But to remain valid the option must
    be exercised within the perpetuity period.

[40]

The
    question of when, within the 21-year period, it is reasonable for an option to
    be exercised depends upon the particular circumstances of the case. Here, the
    respondent did not appear interested in timely compliance. It had not even
    started building within 30 months. It requested and received a year-long
    extension. Even after receiving the September 2016 notice, it requested a
    further extension since it had yet to start building. The respondent never
    asserted that the option had expired, or was about to expire.

[41]

In
    this context, I conclude that the option had not expired at the time the
    appellant gave notice in September. Notice was provided within a reasonable
    time.

Issue #3: Is the appellants claim for specific performance
    defeated by his failure to tender?

[42]

The
    application judge found that the appellant did not tender and his failure to do
    so was sufficient grounds to dispose of the application for specific
    performance. He noted that, in essence, the appellant relied on anticipatory or
    repudiatory breach but concluded that the appellant, as the optioning party, was
    still required to tender.

[43]

The
    application judge also refused to accept the appellants statement that he was
    ready, willing and able to close. He found that it was nothing more than a
    bald statement, noting that there was no evidence he had such funds. He
    also commented on the appellants failure to prepare any closing documents.

[44]

The
    appellant argues that the application judge erred in law by finding that he was
    required to tender where it was clear that tender of the purchase price would
    be futile. He also says he was, in fact, ready, willing and able to close.

[45]

For
    a party to be entitled to specific performance, the party must show he or she
    is ready, willing and able to close:
Time Development Group Inc. (In trust)
    v. Bitton
, 2018 ONSC 4384, at para. 53; see also
Norfolk v. Aikens
(1989), 41 B.C.L.R. (2d) 145 (C.A.). While tender is the best evidence that a
    party is ready, willing and able to close, tender is not required from an
    innocent party enforcing his or her contractual rights when the other party has
    clearly repudiated the agreement or has made it clear that they have no
    intention of closing the deal:
McCallum v. Zivojinovic
(1977), 16 O.R.
    (2d) 721 at p. 723 (C.A.)
; see also
Dacon Const.
    Ltd. v. Karkoulis
,
[1964] 2 O.R. 139 (Ont. H.C.)
.

[46]

In
McCallum
, at p. 723, this court explained that the renunciation of a
    contract may be express or implied:

The renunciation of a contract may be express or implied. A
    party to a contract may state before the time for performance that he will not,
    or cannot, perform his obligations. This is tantamount to an express
    renunciation. On the other hand a renunciation will be implied if the conduct
    of a party is such as to lead a reasonable person to the conclusion that he
    will not perform, or will not be able to perform, when the time for performance
    arises.

[47]

The
    purchaser in
McCallum
made it clear that he did not intend to complete
    the transaction on the closing date and this renunciation relieved the vendors
    from the obligation to tender.

[48]

The
    principles around the requirement to tender are summarized succinctly by Perell
    J. in
Time Development Group
, at paras. 56-57:

Tender  is not a prerequisite to the innocent party enforcing
    his or her contractual rights. Tender is not required from an innocent party
    when the other party has clearly repudiated the agreement. Numerous cases have
    held that the law does not require what would be a meaningless or futile
    gesture. Moreover, when there is an anticipatory breach, the innocent party
    need not wait to the date for performance before commencing proceedings for
    damages or in the alternative for specific performance of the agreement.
    [Citations omitted.]

[49]

Thus,
    when a party by words or conduct communicates a decision not to proceed to
    closing, the other party is released from any obligation to tender in order to
    prove he was ready, willing and able to close: see
Kirby v. Cameron
, [1961] O.R. 757 (C.A.);

Kloepfer
    Wholesale Hardware v. Roy
, [1952] 2 S.C.R. 465.

[50]

In
    my view, the appellant was relieved of the obligation to tender when the
    respondent clearly communicated a decision not to proceed with the transaction.
    On October 6, 2016, the appellants lawyer requested confirmation that the
    respondent would close failing which he would begin an action. The respondents
    reply was an invitation to commence the action. Further, in violation of the
    agreement, the respondent tried to resell the property without notice to or the
    consent of the appellant. Viewed reasonably and objectively, it was clear that
    the respondent was not going to close.

[51]

In
    taking issue with the appellants failure to tender, the respondent relies on
Pierce
    v. Empey
, [1939] S.C.R. 247, for the proposition that all terms of the
    option as to time must be strictly observed. In particular, the respondent
    refers to the following passage at p. 252:

It is well settled that a plaintiff
    invoking the aid of the court for the enforcement of an option for the sale of
    land must show that the terms of the option as to time and otherwise have been
    strictly observed. The owner incurs no obligation to sell unless the conditions
    precedent are fulfilled or, as the result of his conduct, the holder of the
    option is on some equitable ground relieved from the strict fulfilment of them.
    [Citations omitted.]

[52]

The
    respondent says that
Pierce v. Empey
is still good law and that it
    should be applied in this case, where the appellant failed to take steps to
    close within the stipulated timeline.

[53]

I
    agree that
Pierce v. Empey
is good law but note that it did not involve
    anticipatory repudiation and does not speak to a situation like the one before
    this court, where the respondent clearly communicated a decision not to proceed
    with the transaction.

[54]

Thus,
    I am satisfied that the appellant was not required to tender, although he was
    required to demonstrate he was ready, willing and able to close to be entitled
    to specific performance.

[55]

The
    application judge was not satisfied that the appellant was ready, willing and able
    to close. On that point, he said there was no evidence he had the funds to
    close. On my review of the record, he was incorrect.

[56]

As
    the application judge noted, the appellant made the following statement in his
    affidavit: I have always been ready, willing and able to pay the amount
    required to be paid under the option agreement. This evidence is supported by two
    other pieces of evidence in the record.

[57]

Counsel
    for the respondent asked the appellant on cross-examination:

Q.      Paragraph 13. The first sentence  this is your
    Affidavit. I have always been ready, willing and able to pay the amount required
    to be paid under the option agreement.  It says in the Affidavit, 294,000.
    You dont really have a specific recollection of that amount; am I correct?

[58]

Shortly
    after, the appellants counsel, Mr. Conte, and the respondents counsel had the
    following exchange:

A.     [I]f your question is, did he have that amount in the
    bank? He did.

Q.      At what point did he have it in the bank?

A.      For a long time. Hes had a lot of money in the bank
    for a long time. As you know, he took over the second  the first mortgage now
     or the second mortgage now and hes paid 500  And he paid that from his
    savings.

[59]

The
    fact the appellant purchased one of the mortgages for $500,000 was supported by
    the appellants June 26, 2017 supplementary affidavit. As noted above, the application
    judge overlooked the existence of the supplementary affidavit.

[60]

The
    fact that the appellant had the $500,000 he used to purchase the mortgage in
    his savings for a long time is supported by Mr. Contes evidence on behalf of
    his client.

[61]

While
    it would have been preferable if the appellant had personally answered the
    question, in light of the rules on examinations, the answer of counsel is
    deemed to be the answer of the appellant. Rule 31.08 provides:

Questions on an oral examination for discovery shall be
    answered by the person being examined but, where there is no objection, the
    question may be answered by his or her lawyer and the answer shall be deemed to
    be the answer of the person being examined unless, before the conclusion of the
    examination, the person repudiates, contradicts or qualifies the answer.

[62]

There
    was no objection to Mr. Conte answering for the appellant and the appellant did
    not repudiate, contradict or qualify the answer. No further questions on the
    issue were put to him. The answer is deemed to be the appellants answer.

[63]

In
    short, the application judge erred in finding that there was no evidence the
    appellant had the necessary funds to close. I am satisfied that the appellant
    was ready, willing and able to close. As to his failure to tender any
    documents, I have already explained why in the circumstances of this case it
    was unnecessary for the appellant to undertake the futile step of preparing any
    documents.

Issue #4: Is the appellant entitled to specific performance ?

[64]

I
    have concluded that the appellants failure to tender does not preclude him
    from obtaining a remedy of specific performance. I have also concluded that he
    has demonstrated that he was ready, willing and able to close, which is a
    prerequisite to obtaining the remedy of specific performance. I turn to one
    final issue  whether specific performance is an appropriate remedy on the
    facts of this case.

[65]

In
Semelhago v. Paramadevan,
[1996] 2 S.C.R. 415, at para. 21, the Supreme
    Court of Canada stated that [i]t cannot be assumed that damages for breach of
    contract for the purchase and sale of real estate will be an inadequate remedy
    in all cases. Specific performance should not be granted absent evidence that
    the property is unique or, in other words, that its substitute would not be
    readily available: para. 22.

[66]

In
Erie Sand and Gravel Ltd. v. Seres Farms Ltd
., 2009 ONCA 709, 97 O.R.
    (3d) 241, at para. 110, this court agreed that specific performance is not to
    be ordered for breach of contract unless damages are inadequate. Gillese J.A.
    cited
John E. Dodge Holdings Ltd. v. 805062 Ontario Ltd.
(2003), 63
    O.R. (3d) 304 (C.A.), explaining what is meant by unique:

[116]  Weiler J.A., writing for the court, referred to para.
    23 in
1252668 Ontario Inc. v. Wyndham Street Investments Inc.,
[1999]
    O.J. No. 3188, 27 R.P.R. (3d) 58 (S.C.J.) and stated, at para. 39:

I agree that in order to
    establish that a property is unique the person seeking the remedy of specific
    performance must show that the property in question has a quality that cannot
    be readily duplicated elsewhere. This quality should relate to the proposed use
    of the property and be a quality that makes it particularly suitable for the
    purpose for which it was intended.

[67]

Whether
    or not a substitute is readily available will depend on the facts of the
    particular case. Uniqueness is therefore a fact-specific inquiry.

[68]

The
    parties did not address the subject of uniqueness nor the availability of
    damages in lieu of specific performance. However, the record before the
    application judge provides a sufficient basis for this court to consider the
    issue. I turn now to the record.

[69]

The
    appellant sold a specific lot consisting of two acres of land as part of his
    plan to develop a larger parcel into a subdivision. The subdivision plan was
    registered on the lands owned by the appellant.

[70]

Article
    9 of the agreement between the parties details the respondents obligations.
    These include the respondents agreement to get written consent from the
    appellant for any application for rezoning, and an agreement not to oppose any
    efforts by the appellant to have the subdivision property severed or rezoned or
    to have the subdivision plan amended. The respondent also agreed to keep the property
    neat and tidy and not to interfere with the appellants installation of services.

[71]

Under
    the option clause found in Article 9.01(u), the respondent undertook to build a
    building of certain specifications to be certified and approved by the
    appellants consulting engineer or architect. The appellant described it in his
    affidavit as a high quality industrial building.

[72]

In
    my view, this case is similar to
11 Suntract Holdings Ltd. v. Chassis
    Service & Hydraulics Ltd.
(1997), 36 O.R. (3d) 328 (Gen. Div.), where Lax
    J. concluded that damages were an inadequate remedy and granted an order for
    specific performance. In
Suntract,
the purchaser required the subject
    property to further their goals to develop nearby lands that they owned. The
    property was considered unique because the purchasers plan was to use it to
    provide access to its development property. Any other property in any other location
    could hardly be a substitute. The plan could not go forward without the 11
    Suntract property.

[73]

Similarly,
    the land in question is sufficiently unique to satisfy the test in
Semelhago
,
    from a subjective and objective standpoint. There cannot be a substitute
    property in another location that would meet the goals of the subdivision plan.
    It is exactly for the purpose of the subdivision plan that the appellant
    entered into the option agreement. The appellant provided the municipality with
    $400,000 as security, to be released when the subdivision was fully developed.
    When the respondent failed to build on the property as he had contracted to do,
    the appellant could not complete the development of the subdivision. Only
    specific performance is an adequate remedy in this case.

[74]

In
    conclusion, the appellant is entitled to specific performance of the option to
    purchase.

DISPOSITION

[75]

The
    appeal is allowed with costs payable to the appellant in the agreed upon amount
    of $15,000 inclusive of disbursements and applicable taxes.

M.L. Benotto J.A.

I agree Paul Rouleau
    J.A.

I agree G. Pardu J.A.

Released: December 19, 2018

PR





[1]

The appellant understood the amount due on closing was
    $294,460 after the commission on the original sale and the amount owing under
    the vendor-take-back mortgage were deducted from the original sale price.


