Eastwalsh Homes Ltd. v. Anatal Developments Ltd., (1993) 62 O.A.C. 20 (CA)

• Judge: McKinlay, Griffiths and Doherty, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: March 17, 1993
• Jurisdiction: Ontario
• Citations: (1993), 62 O.A.C. 20 (CA);1993 CanLII 3431 (ON CA);12 OR (3d) 675;100 DLR (4th) 469;[1993] CarswellOnt 587;[1993] OJ No 676 (QL);30 RPR (2d) 276;62 OAC 20

Eastwalsh Homes Ltd. v. Anatal Dev. (1993), 62 O.A.C. 20 (CA)

MLB headnote and full text

Eastwalsh Homes Ltd. (respondent/appellant on cross-appeal) v. Anatal Developments Limited (appellant/defendant on cross-appeal)

(No. C10039)

Indexed As: Eastwalsh Homes Ltd. v. Anatal Developments Ltd.

Ontario Court of Appeal

McKinlay, Griffiths and Doherty, JJ.A.

March 17, 1993.

Summary:

Eastwalsh agreed to buy 147 unapproved building lots from Anatal. Anatal agreed to use its best efforts to obtain planning ap­proval. Planning approval was not obtained by the closing date (June 30, 1987) and, consequently, the agreement by its terms was terminated. Eastwalsh sued Anatal for, inter alia, damages for failure by Anatal to use its best efforts to obtain planning approval.

The trial judge awarded Eastwalsh dam­ages of $2,020,780 - see 72 O.R.(2d) 661. Anatal appealed.

The Ontario Court of Appeal allowed the appeal by reducing the damage award to nominal damages only of $1,000. The court affirmed a breach by Anatal but held that Eastwalsh failed to prove that there was a reasonable probability that planning approval could have been obtained within the time specified in the contract.

Contracts - Topic 6535

Illegal contracts - Violations of statute law, land planning prohibitions - East­walsh sued Anatal for damages for breach of an agreement for the sale of 147 unap­proved building lots - Anatal alleged that the agreement was invalid because it was contrary to s. 51(1) of the Planning Act, S.O. 1983, c. 1 - The Ontario Court of Appeal affirmed that the agreement was not a nullity - See paragraphs 18 and 26.

Damages - Topic 206

Entitlement - Chance, loss of, requirement of proof of reasonable probability of suc­cess - Eastwalsh agreed to buy 147 unap­proved building lots from Anatal - Anatal agreed to use its best efforts to obtain planning approval - Planning approval was not obtained within the time specified in the contract and Eastwalsh sued Anatal for damages for failure to use its best efforts to obtain approval - Anatal was found to be in breach of the contract but the Ontario Court of Appeal awarded East­walsh nominal damages only because Eastwalsh failed to prove that there was a reasonable probability that planning ap­proval could have been obtained within the time specified in the contract - See para­graph 58.

Damages - Topic 1037

Mitigation - In contract - Effect of failure to mitigate - Eastwalsh sued Anatal for damages for breach of a contract for the sale of 147 building lots - The Ontario Court of Appeal affirmed that Anatal was in breach of the contract - Eastwalsh's claim for dam­ages for loss of profits was dismissed because Eastwalsh made no efforts to mitigate its loss - See paragraph 27.

Cases Noticed:

Chaplin v. Hicks, [1911] 2 K.B. 786; 27 T.L.R. 458 (C.A.), refd to. [para. 35].

Tex-Mall Properties Ltd. v. Multi-Malls Inc. et al. (1980), 28 O.R.(2d) 6; 12 R.P.R. 77; 9 B.L.R. 240; 108 D.L.R.(3d) 399 (H.C.), affd. 37 O.R.(2d) 133; 128 D.L.R.(3d) 192 (C.A.), refd to. [para. 35].

Webb & Knapp (Canada) Ltd. et al. v. Edmonton (City), [1970] S.C.R. 588; 11 D.L.R.(3d) 544; 72 W.W.R. 500; 63 C.P.R. 21, refd to. [para. 40].

Kinkel v. Hyman, [1939] S.C.R. 364, refd to. [para. 41].

Carson v. Willitts, [1930] 4 D.L.R. 977; 65 O.L.R. 456 (C.A.), refd to. [para. 42].

Statutes Noticed:

Planning Act, S.O. 1983, c. 1, sect. 51(1) [paras. 18 and 26].

Counsel:

Joyce Harris and Donna E. Campbell, for the appellant;

Robert Clayton and Randy Pepper, for the respondent.

This appeal was heard on November 17 and 18, 1992, before McKinlay, Griffiths and Doherty, JJ.A., of the Ontario Court of Appeal. The decision of the court was delivered by Griffiths, J.A., and released on March 17, 1993.