O'Brien et al. v. McNabb et al., (2000) 135 O.A.C. 290 (CA)

JudgeMcMurtry, C.J.O., Borins and Feldman, JJ.A.
CourtCourt of Appeal (Ontario)
Case DateAugust 15, 2000
JurisdictionOntario
Citations(2000), 135 O.A.C. 290 (CA)

O'Brien v. McNabb (2000), 135 O.A.C. 290 (CA)

MLB headnote and full text

Temp. Cite: [2000] O.A.C. TBEd. AU.016

John O'Brien, Constance O'Brien, Tony Petty and Barbara Petty (plaintiffs/appellants) v. Donald Dennis McNabb, Bank of Nova Scotia and Stanley Michael Malouf (defendants/respondents) (C33945)

Gaetanne Claire Guillemette (plaintiff/appellant) v. Donald Dennis McNabb, Bank of Nova Scotia and Stanley Michael Malouf (defendants/respondents)

(C33946)

Indexed As: O'Brien et al. v. McNabb et al.

Ontario Court of Appeal

McMurtry, C.J.O., Borins and Feldman, JJ.A.

August 17, 2000.

Summary:

In 1985-86, a vendor entered into purchase and sale agreements regarding parcels of land. The agreements were subject to the vendor using due diligence to obtain sub­division approval in a timely fashion. In 1999 the vendor obtained subdivision ap­proval. The vendor applied to declare the agreements null and void, asserting that the condition precedent (subdivision approval) was not satisfied. The purchasers counter-applied for an order that the agreements were valid and they had enforceable equita­ble rights to the parcels of land. A trial of the issues was ordered. The vendor moved to determine whether the agreements created a valid equitable interest in the parcels of land or violated s. 50 of the Planning Act and were null and void, other than the long term tenancy provisions. Partial summary judg­ment was being sought because this matter represented the only real genuine issue for trial.

The Ontario Superior Court, in a decision reported at [2000] O.T.C. 21, granted sum­mary judgment. The only genuine issue for trial, which was a question of law, was whether the condition precedent was fulfilled within a reasonable period of time. The true condition precedent was not complied with in a reasonable period of time and the agree­ments were null and void insofar as creating any valid enforceable equitable interest in the parcels of land. The purchasers ap­pealed.

The Ontario Court of Appeal allowed the appeal, set aside the trial judge's judgments and ordered that each action was to proceed to trial.

Practice - Topic 5702

Judgments and orders - Summary judg­ments - Jurisdiction or when available - In purchase and sale agreements regarding parcels of land, the vendor had to use due diligence to obtain subdivision approval in a timely fashion - Fourteen years later the vendor obtained subdivision approval - The vendors moved to determine whether the agreements created a valid equitable in­terest in the parcels of land or were null and void and sought partial summary judgment - The Ontario Superior Court granted summary judgment, holding that whether the condition precedent was ful­filled within a reasonable period of time raised a question of law - The purchasers appealed - The Ontario Court of Appeal held that the trial judge erred in identifying the only issue as a question of law and proceeding to determine the claims.

Practice - Topic 5703

Judgments and orders - Summary judg­ments - Conditions precedent - [See Prac­tice - Topic 5702 ].

Practice - Topic 5708

Judgments and orders - Summary judg­ments - Bar to application - Existence of issue to be tried - [See Practice - Topic 5702 ].

Counsel:

Martin Sclisizzi, for the plain­tiffs/appel-lants;

Richard Forget, for the defen­dant/respon­dent McNabb.

This appeal was heard on August 15, 2000, by McMurtry, C.J.O., Borins and Feldman, JJ.A., of the Ontario Court of Appeal. The Court of Appeal delivered the following endorsement on August 17, 2000.

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