Bowser v. Prager, (1999) 95 O.T.C. 302 (SC)

• Judge: Weekes, J.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: April 16, 1999
• Jurisdiction: Ontario
• Citations: (1999), 95 O.T.C. 302 (SC)

Bowser v. Prager (1999), 95 O.T.C. 302 (SC)

MLB headnote and full text

Temp. Cite: [1999] O.T.C. TBEd. MY.004

Gregory Allan Bowser (plaintiff) v. Karl Prager (defendant)

(257-97)

Indexed As: Bowser v. Prager

Court of Ontario

Superior Court of Justice

Bracebridge

Weekes, J.

April 22, 1999.

Summary:

The plaintiff commenced an action for specific performance of an agreement of purchase and sale of a home. The defendant argued that he was mentally incompetent at the time of the transaction.

The Ontario Superior Court held that while the defendant was depressed at the time he entered the agreement, he was not so mentally incapacitated that he should be entitled to avoid the agreement. The court held, however, that specific performance would not be awarded because to do so would create undue hardship for the defendant. The court held that it was appropriate to award damages in lieu of specific performance.

Contracts - Topic 754

Parties - Capacity - Persons of unsound mind and drunkards - Depression - See paragraphs 1 to 16.

Contracts - Topic 4110

Remedies for breach - Specific performance - Sale of land - See paragraphs 1 to 16.

Family Law - Topic 635

Husband and wife - Marital property - Matrimonial home - Disposition of - Consent of spouse - See paragraphs 24 and 25.

Sale of Land - Topic 1119

The contract - Parties - Husband and wife - Consent of spouse - General - See paragraphs 24 and 25.

Sale of Land - Topic 8551

Remedies of purchaser - Specific performance - When available - See paragraphs 1 to 16.

Sale of Land - Topic 8755

Remedies of purchaser - Damages - In lieu or specific performance - See paragraphs 1 to 16.

Cases Noticed:

1110049 Ontario Ltd. v. Exclusive Diamonds Inc. et al. (1995), 83 O.A.C. 391; 25 O.R.(3d) 417 (C.A.), refd to. [para. 14].

Statutes Noticed:

Family Law Act, R.S.O. 1990, c. F-3, sect. 21(1) [para. 24]; sect. 21(2) [para. 25].

Authors and Works Noticed:

Sharpe, Robert S., Injunctions and Specific Performance (1988), para. 10.370 [para. 14].

Waddams, The Law of Contracts (3rd Ed.), para. 651 [para. 10].

Counsel:

N.B. Roche, for the plaintiff;

Hugh A. Taylor, for the defendant.

This case was heard on March 2, 4, 12 and April 16, 1999, before Weekes, J., of the Ontario Superior Court, who delivered the following decision on April 22, 1999.