Domicile Developments Inc. v. MacTavish, (1999) 120 O.A.C. 375 (CA)

• Judge: Brooke, Laskin and Rosenberg, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: June 07, 1999
• Jurisdiction: Ontario
• Citations: (1999), 120 O.A.C. 375 (CA)

Domicile Dev. Inc. v. MacTavish (1999), 120 O.A.C. 375 (CA)

MLB headnote and full text

Temp. Cite: [1999] O.A.C. TBEd. JN.018

Domicile Developments Inc. (plaintiff/respondent) v. Duncan MacTavish (defendant/appellant)

(Docket: C29093)

Indexed As: Domicile Developments Inc. v. MacTavish

Ontario Court of Appeal

Brooke, Laskin and Rosenberg, JJ.A.

June 7, 1999.

Summary:

On February 1, 1995 a builder and a buyer signed an agreement for the construc­tion of a residence. The price was $450,000 and the buyer paid a deposit of $5,000. On April 15, 1995 the buyer advised the builder that the buyer would not proceed with the purchase of the residence. The builder advised the buyer that the builder did not accept antici­patory breach of the agreement and that the builder would proceed with the construction. The builder built and sold the completed residence to a third party and then claimed damages from the buyer. The builder failed to complete the house by the date specified in the agreement.

The Ontario Court (General Division) allowed the builder's claim and awarded the builder damages of $111,173 plus prejudg­ment interest - see 50 O.T.C. 263. The buyer appealed.

The Ontario Court of Appeal allowed the appeal and dismissed the builder's action. The Court of Appeal stated that the agree­ment specified that time was of the essence and when the builder defaulted by failing to complete on time, the builder should have reinstated time of the essence by setting a new closing date which the builder failed to do. The Court of Appeal stated that because of the builder's breach the buyer could no longer be held liable.

Sale of Land - Topic 6064

Completion - Time - Time of the essence -Effect of breach by both parties - Mac­Tavish hired a builder to build a house - 45 days later MacTavish advised the builder that he would not complete with the agreement - The builder refused to accept the anticipatory breach and built the house but the house was not completed on time - The Ontario Court of Appeal dis­missed the builder's claim for damages - The court stated that time was of the essence and when the builder failed to complete on time, the builder should have reinstated time of the essence by setting a new closing date which the builder failed to do - The court stated that because of the builder's breach the buyer could not be held liable - See paragraphs 11 to 14.

Cases Noticed:

Asamera Oil Corp. v. Sea Oil & General Corp. and Baud Corp., N.V., [1979] 1 S.C.R. 633; 23 N.R. 181, refd to. [para. 9, footnote 2].

Mills v. Haywood (1877), 6 Ch.D. 196, refd to. [para. 10, footnote 4].

King et al. v. Urban & Country Transport Ltd. et al. (1974), 1 O.R.(2d) 449 (C.A.), refd to. [para. 10, footnote 4].

Kwon v. Cooper (1996), 89 O.A.C. 239 (C.A.), refd to. [para. 14, footnote 8].

Authors and Works Noticed:

Perell and Engell, Remedies and the Sale of Land (2nd Ed. 1998), p. 47 [para. 12, footnote 7; para. 16, footnote 9].

Perell, Putting Together the Puzzle of Time of the Essence (1990), 69 Can. Bar Rev. 417, p. 436 [para. 16, foot­note 9].

Salvatore, Carter and Perell, Agreements of Purchase and Sale (1996), pp. 206-208 [para. 9, footnote 3].

Waddams, Stephen M., The Law of Con­tracts, pp. 419-432 [para. 9, footnote 1].

Counsel:

David Migicovsky and Shawn Minnis, for the appellant;

Dougald Brown, for the respondent.

This appeal was heard on April 15 and 16, 1999 by Brooke, Laskin and Rosenberg, JJ.A., of the Ontario Court of Appeal. The decision of Laskin, J.A., with Brooke and Rosenberg, JJ.A., concurring, was released on June 7, 1999.