1394918 Ontario Ltd. v. 1310210 Ontario Inc. et al., (2002) 154 O.A.C. 137 (CA)

• Judge: Carthy, Moldaver and Cronk, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: January 10, 2002
• Jurisdiction: Ontario
• Citations: (2002), 154 O.A.C. 137 (CA)

1394918 Ont. Ltd. v. 1310210 Ont. (2002), 154 O.A.C. 137 (CA)

MLB headnote and full text

Temp. Cite: [2002] O.A.C. TBEd. JA.028

1394918 Ontario Ltd. (plaintiff/respondent) v. 1310210 Ontario Inc., David Houston, Howard Cohen, Stanley Cohen and Judith Kalin, Executors of the Estate of the Late David Cohen, Dr. Howard Cohen, Stanley Cohen, and Judith Kalin (defendants/appellants)

(C35821)

Indexed As: 1394918 Ontario Ltd. v. 1310210 Ontario Inc. et al.

Ontario Court of Appeal

Carthy, Moldaver and Cronk, JJ.A.

January 10, 2002.

Summary:

The defendants brought a motion to have the plaintiff's action dismissed on the ground that the plaintiff had no capacity to commence or continue the action.

The Ontario Superior Court, in a decision reported [2001] O.T.C. Uned. 122, dismissed the motion. The defendants appealed.

The Ontario Court of Appeal dismissed the appeal.

Company Law - Topic 1270

Incorporation and organization - Pre-incorporation contracts - Persons entitled to sue on - The vendor entered into an agreement to sell land to the purchaser "Raymond Stern in trust for a company to be incorporated and not in his personal capacity" - The vendor terminated the agreement before closing - The solicitor for "Raymond Stern in trust for a company to be incorporated and not in his personal capacity" wrote the vendor's solicitor asserting an unlawful repudiation, his client's acceptance of the repudiation and his intent to pursue a claim for damages - The "company to be incorporated" was in fact incorporated and sued the vendor - The vendor moved for dismissal on the ground that the plaintiff company had no capacity to commence or continue the action - The Ontario Court of Appeal affirmed the dismissal of the motion where the purchaser's contractual right to sue for damages had subsisted and the company intended to adopt the contract when it sued the vendor.

Contracts - Topic 3665

Performance or breach - Repudiation - Effect of acceptance of repudiation - [See Company Law - Topic 1270 ].

Cases Noticed:

Sherwood Design Services Inc. et al. v. 872935 Ontario Ltd. et al. (1998), 109 O.A.C. 77; 39 O.R.(3d) 576 (C.A. ), refd to. [para. 5].

Szecket et al. v. Huang et al. (1998), 115 O.A.C. 300; 42 O.R.(3d) 400 (C.A.), refd to. [para. 5].

Heinhuis v. Blacksheep Charters Ltd. (1987), 46 D.L.R.(4th) 67 (B.C.C.A.), refd to. [para. 10].

Westcom Radio Group Ltd. v. MacIsaac et al. (1989), 36 O.A.C. 288; 70 O.R.(2d) 590 (Div. Ct.), refd to. [para. 10].

Moschi v. Lep Air Services Ltd., [1973] A.C. 331 (H.L.), consd. [para. 18].

Guarantee Co. of North America v. Gordon Capital Corp. (1999), 247 N.R. 97; 126 O.A.C. 1; 39 C.P.C.(4th) 100 (S.C.C.), consd. [para. 21].

Statutes Noticed:

Business Corporations Act, R.S.O. 1990, c. B-16, sect. 21 [para. 4].

Authors and Works Noticed:

Chitty on Contracts (28th Ed. 1999), pp. 1219 to 1220 [para. 23].

Fridman, G.H.L., The Law of Contract in Canada (4th Ed. 1999), p. 654 [para. 24].

Waddams, S.M., The Law of Contracts (4th Ed. 1999), p. 460 [para. 24].

Counsel:

Ronald S. Petersen, for the appellants;

Russell Kronick, Q.C., for the respondent.

This appeal was heard on October 9, 2001, by Carthy, Moldaver and Cronk., JJ.A., of the Ontario Court of Appeal.

The decision of the Court of Appeal was released on January 10, 2002, by Carthy, J.A.