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SALE OF LAND - Agreement of purchase and sale - Breach of - Vendor

Wednesday, February 03, 2021 @ 6:25 AM  


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Appeal by the purchasers from partial summary judgment declaring that they breached the Agreements for the purchase of two abutting residential properties. The appellants were unable to close for lack of financing. The appellants argued they entered into two separate Agreements for the conveyance of abutting lands which contravened the Planning Act and that the respondent seller delivered a defective Statutory Declaration prior to the first scheduled closing. The seller blacked out the word “not”, so that it read that the seller would retain the title in abutting property after closing of each of the two transactions, thereby contravening the subdivision control provisions of the Planning Act. The motion judge viewed the Agreements as constituting in substance a single transaction that did not sever the lands. He found that the Buyers breached the Agreements when they failed to pay the amounts due on closing. The motion judge held that the facts regarding the breach of contract issue were not in dispute, making this one of the rare cases in which partial summary judgment was appropriate. He directed a trial on the issues of damages and forfeiture of the deposit.

HELD: Appeal dismissed. The motion judge did not err in holding that the appellants breached the Agreements. The Agreements were not contrary to the Planning Act. The seller’s tender of closing documents was not defective. Simultaneous conveyances of abutting properties involving the same parties merged the properties for Planning Act purposes. The motion judge’s finding that the parties regarded the sale and purchase of the properties as a single transaction was amply supported by the evidence. By entering into the two Agreements to sell the abutting properties to the same purchaser with the same closing date, the parties clearly treated the purchase and sale of the properties as a single transaction. Whether the seller’s amendments to the Statutory Declaration resulted from an error or from punctiliousness was irrelevant. Documentary evidence regarding the seller’s conduct demonstrated that the amendments to the Statutory Declarations were made in the context of the seller’s communicated intention that the Agreements would culminate in the simultaneous conveyance of the properties. When read in the context of the seller’s communications showing that the Agreements, in substance, called for simultaneous conveyances, the amendments of the Statutory Declarations could not be characterized as a defect in the tendered documents or a failure to effectively answer the appellants’ requisition. On the issues as framed by the pleadings and the affidavit evidence, the risk of inconsistent findings of fact on the issues of liability and the issues of forfeiture and damages was minimal. The court, however, strongly disagreed with the seller’s decision to move for partial summary judgment and refrain from filing any evidence of damages and with the motion judge’s acquiescence in hearing the motion so framed. This, however, was not a ground for appellate intervention. To set aside the partial summary judgment solely on the basis that the process added cost and delay would, in its own turn, only add more cost and delay.

Malik v. Attia, [2020] O.J. No. 5378, Ontario Court of Appeal, G.R. Strathy C.J.O., D.M. Brown and G. Huscroft JJ.A., December 10, 2020. Digest No. TLD-February12021006