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SALE OF LAND - Agreement of purchase and sale - Breach of - Specific performance

Wednesday, December 18, 2019 @ 6:26 AM  


Lexis Advance® Quicklaw®
Appeal by the defendant from summary judgment granting the respondent purchaser specific performance of an agreement of purchase and sale. The respondent wanted to purchase the appellant’s property for a condominium development. The property was encumbered by four leases. Only one tenant remained at the time of closing. The agreement of purchase and sale stated that estoppel certificates for the tenancies were to be provided to the respondent five days prior to closing. The remaining tenant provided an altered estoppel certificate on the date of closing. A correct estoppel certificate was not provided until one hour prior to the time set for closing. The respondent then requested an extension until the next morning which the appellant refused. The motion judge found that the property was critical to the respondent’s development plans and that it had thus established the uniqueness of the property. The motion judge also found that the appellant breached the agreement of purchase and sale since it did not deliver the estoppel certificate as provided by the agreement, it delivered an altered estoppel certificate which also amounted to a breach of the agreement, and only delivered the suitable estoppel certificate on the day of closing one hour prior to closing. The motion judge found that in these circumstances, the appellant was no longer in a position to insist on time being of the essence. The estoppel certificate was a critical factor in the respondent’s development plans, and the delivery of a proper certificate approximately one hour before the scheduled closing precluded the appellant from relying on the provision in the agreement making time of the essence.

HELD: Appeal dismissed. The motions judge did not make findings of deceit and fraudulent misrepresentation that were not pleaded or argued. The statement of claim clearly pleaded an absence of good faith and lack of honesty. The motions judge was clearly alive to the state of the evidentiary record before him. Both parties agreed that the case was appropriate for summary judgment and neither counsel asked the motions judge to have recourse to the expanded summary judgment powers. The motions judge was not required to resolve all the inconsistencies in the evidence. The motions judge did not ignore key evidence or make palpable and overriding errors with respect to the timeline of events.

Fortress Carlyle Peter St. Inc. v. Ricki's Construction and Painting Inc., [2019] O.J. No. 5613, Ontario Court of Appeal, J.C. MacPherson, S.E. Pepall and P.D. Lauwers JJ.A., November 4, 2019. Digest No. TLD-December162019006