Court File No.CV-19-616261-00CL ONTARIO SUPERIOR COURT OF JUSTICE COMMERCIAL LIST IN THE MATTER OF SECTION 60 OF THE TRUSTEE ACT, R.S.O. 1990, C. T.23, AS AMENDED, AND RULE 10 OF THE ONTARIO RULES OF CIVIL PROCEDURE, R.R.O 1990, REG. 194, AS AMENDED AND IN THE MATTER OF HI-RISE CAPITAL LTD. AND IN THE MATTER OF ADELAIDE STREET LOFTS INC. BOOK OF AUTHORITIES OF LANTERRA DEVELOPMENTS LIMITED (Re: Amendment of Minutes of Settlement and Agreement of Purchase and Sale) (Returnable April 22, 2020) April 21, 2020 Stikeman Elliott LLP Barristers & Solicitors 5300 Commerce Court West 199 Bay Street Toronto, Canada M5L 1B9 Ashley Taylor LSO#: 39932E Tel: (416) 869-5236 Email: [email protected] Sanja Sopic LSO#: 66487P Tel: (416) 869-6825 Email: [email protected] Fax : (416) 947-0866 Lawyers for Lanterra Developments Limited Court File No.CV-19-616261-00CL ONTARIO SUPERIOR COURT OF JUSTICE COMMERCIAL LIST IN THE MATTER OF SECTION 60 OF THE TRUSTEE ACT, R.S.O. 1990, C. T.23, AS AMENDED, AND RULE 10 OF THE ONTARIO RULES OF CIVIL PROCEDURE, R.R.O 1990, REG. 194, AS AMENDED AND IN THE MATTER OF HI-RISE CAPITAL LTD. AND IN THE MATTER OF ADELAIDE STREET LOFTS INC. BOOK OF AUTHORITIES OF LANTERRA DEVELOPMENTS LIMITED (Re: Amendment of Minutes of Settlement and Agreement of Purchase and Sale) (Returnable April 22, 2020) I N D E X TAB DOCUMENT 1. McLeod v. Schmidt., 2007 CarswellOnt 5037, [2007] O.J. No. 3039 K. Yamauchi, “The Courts’ Inherent Jurisdiction and the CCAA: A Beneficient or 2. Bad Doctrine?”, (2004) Canadian Business Journal, 40 CBLJ 250 3. Kozel v. Personal Insurance Co., 2014 CarswellOnt 1790, 2014 ONCA 130 Saskatchewan River Bungalows Ltd. v. Maritime Life Assurance Co., 1994 CarswellAlta 4. 769, [1994] 2 S.C.R. 490 5. Hatami v. 1237144 Ontario Inc., 2018 CarswellOnt 1740, 2018 ONSC 668 6. Voortman v. SPCVC Investments Inc., 2018 CarswellOnt 9632, 2018 ONSC 3602 TAB 1 Most Negative Treatment: Distinguished Most Recent Distinguished: Wilanmar Holdings Ltd. v. Meredith | 2008 CarswellOnt 7092, 173 A.C.W.S. (3d) 285 | (Ont. S.C.J., Nov 27, 2008) 2007 CarswellOnt 5037 Ontario Superior Court of Justice McLeod v. Schmidt 2007 CarswellOnt 5037, [2007] O.J. No. 3039, 159 A.C.W.S. (3d) 453 MURRAY McLEOD and JOANNE LYSY v. CONNIE SCHMIDT and MARY LOUISE SCHMIDT Master Dash Heard: July 26, 2007 Judgment: August 9, 2007 Docket: 06-CV-315458PD1 Counsel: Jeffrey Radnoff for Plaintiffs Sheila Monteiro for Defendant, Connie Schmidt Related Abridgment Classifications Contracts XIV Remedies for breach XIV.4 Specific performance XIV.4.c Availability in particular contracts XIV.4.c.x Sale of land Contracts XIV Remedies for breach XIV.4 Specific performance XIV.4.d Relation to other remedies XIV.4.d.i Damages Remedies III Specific performance III.2 Availability in particular contracts III.2.f Sale of land Remedies III Specific performance III.3 Relation to other remedies III.3.a Damages Headnote Remedies --- Specific performance — Availability in particular contracts — Sale of land Remedies --- Specific performance — Relation to other remedies — Damages — Adequacy of remedy — Unique property Table of Authorities Cases considered by Master Dash: Dawson v. Rexcraft Storage & Warehouse Inc. (1998), 26 C.P.C. (4th) 1, 111 O.A.C. 201, 164 D.L.R. (4th) 257, 1998 CarswellOnt 3202, 20 R.P.R. (3d) 207 (Ont. C.A.) — followed 1 JDM Developments Inc. v. J. Stollar Construction Ltd. (2004), 24 R.P.R. (4th) 133, 2004 CarswellOnt 4502, 2 C.P.C. (6th) 313 (Ont. S.C.J.) — followed John E. Dodge Holdings Ltd. v. 805062 Ontario Ltd. (2003), 34 B.L.R. (3d) 12, 10 R.P.R. (4th) 98, 63 O.R. (3d) 304, 168 O.A.C. 252, 223 D.L.R. (4th) 541, 2003 CarswellOnt 342 (Ont. C.A.) — followed Semelhago v. Paramadevan (1996), 1996 CarswellOnt 2737, 1996 CarswellOnt 2738, 197 N.R. 379, 3 R.P.R. (3d) 1, 28 O.R. (3d) 639 (note), 136 D.L.R. (4th) 1, 91 O.A.C. 379, [1996] 2 S.C.R. 415 (S.C.C.) — followed Rules considered: Rules of Civil Procedure, R.R.O. 1990, Reg. 194 R. 1.05 — referred to R. 34.15(1)(c) — referred to Master Dash: 1 The plaintiffs agreed to purchase a home from the defendant Connie Schmidt ("Connie") pursuant to a written agreement of purchase and sale. Five days later Connie advised she would not complete the sale. The plaintiffs seek summary judgment for specific performance. Connie raises two defences. Firstly she asserts there was no enforceable agreement because Connie's mother, the defendant Mary Louise Schmidt ("Mary"), who was a co-owner of the property, did not sign the agreement of purchase and sale. Secondly she asserts that the house is not unique and that damages are a sufficient remedy. Is There a Binding Enforcable Agreement? 2 Connie purchased 16 Coxwell Ave., Toronto (the "property") in August 2002 with funds from the sale of her former matrimonial home. The agreement to purchase the property in 2002 listed only Connie as purchaser, but Connie subsequently directed that title be taken in the name of herself and Mary because the bank providing the mortgage wanted two people on title, and her mother was someone Connie could trust. There was no written agreement between Connie and Mary. Mary did not contribute to the purchase price, although Connie claims that Mary contributed to the cost of renovations and half of the mortgage payments. There is no record of these payments as they were always made in cash. Connie's father, who is a contractor, personally helped with the renovation work. Connie used the third party Dale Campbell as her real estate agent on both the purchase and the sale of the property. 3 Connie listed the property for sale with Campbell in 2005, but it did not sell. Connie was the sole vendor and signatory on the listing agreement. Connie listed the property a second time, again with Campbell, on April 12, 2006 for $299,900. Again Connie was listed as the sole vendor and she was the sole signatory. Connie claims that Campbell pressured her into listing and selling the property, whereas Campbell gave evidence that Connie approached him. This is an issue in the third party claim issued against Campbell, but its resolution has no bearing on the issues on this summary judgment motion between the plaintiffs, who had no involvement or knowledge of such dealings, and defendants. The listing agreement contains the following term: 6. Warranty: I represent and warrant that I have the exclusive authority and power to execute this Authority to offer the Property for sale or lease and that I have informed you of any third party interests or claims on the property...which may affect the sale or lease of the Property. 4 On June 27, 2006 the plaintiffs offered to purchase the property from Connie for $300,000 pursuant to a written agreement of purchase and sale (the "APS"). Connie accepted the offer the same day. Connie was the sole vendor listed in the APS and she was the sole signatory as vendor. A $5000 deposit was paid. The offer was conditional for seven banking days on arranging financing and for ten banking days on an acceptable home inspection. Both conditions could be waived by the purchaser. The plaintiffs were never advised that there was a co-owner on title. 5 On June 30 the plaintiffs arranged for a house inspector to attend the property on July 3. On July 2 Connie called the plaintiffs' real estate agent, Colin Poponne, and stated that she would not allow the inspection to proceed and that she would not be proceeding with the sale of the property. Campbell then spoke to Connie and testified that Connie told him she no longer wished to sell because the property was worth more than $300,000. Connie gave evidence at her discovery that she had also told 2 Campbell about a month earlier that she felt the property was worth more money. It is undisputed that Connie did not tell either Poponne or Campbell at the time that her mother was a co-owner or that this played any role in her decision not to proceed with the APS with the plaintiffs. On July 5, 2006 the plaintiffs waived both conditions in the APS, within the time limits set out therein. Connie later consulted with a lawyer and was advised that the APS was unenforceable because her mother did not sign. 6 I must determine if there is a genuine issue for trial based on Mary's failure to sign the APS. The real issue is whether Mary authorized Connie to sell the property to the plaintiffs on behalf of both of them. Connie takes the position that Mary did not authorize Connie to sell the property on her behalf, had not agreed to the sale and in any event did not sign the agreement of purchase and sale. Connie was examined for discovery on May 2, 2007. She then filed an affidavit in response to this motion sworn June 13, 2007. She was cross-examined on her affidavit on July 4, 2007. In my view, given Connie's admissions on her examinations, there is no air of realty to Connie's defence on this ground. Mary, who is representing herself in this action, also submitted a short affidavit sworn June 13, 2007. Mary failed to attend a scheduled cross-examination on her affidavit, although properly served with notice of examination and on July 26, 2007 I struck her affidavit under rule 34.15(1)(c).