Eastwalsh Homes Ltd. v. Anatal Development Corp., (1995) 80 O.A.C. 141 (CA)

• Judge: Laskin, J.A.
• Court: Court of Appeal (Ontario)
• Case Date: February 15, 1995
• Jurisdiction: Ontario
• Citations: (1995), 80 O.A.C. 141 (CA)

Eastwalsh Homes Ltd. v. Anatal Dev. (1995), 80 O.A.C. 141 (CA)

MLB headnote and full text

Eastwalsh Homes Ltd. (plaintiff/respondent/appellant on cross-appeal) v. Anatal Development Corporation and Anatal Developments Limited (defendants/appellants/respondents on cross-appeal)

(No. C20883)

Indexed As: Eastwalsh Homes Ltd. v. Anatal Development Corp.

Ontario Court of Appeal

Laskin, J.A.

March 10, 1995.

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. Eastwalsh was ordered to pay Anatal's party and party costs of the appeal. The Deputy Registrar assessed the costs at $43,738.11. Eastwalsh appealed.

The Ontario Court of Appeal dismissed the appeal.

Practice - Topic 8332

Costs - Appeals - Costs of appeal - Cost of preparation of documents for use on appeal - Eastwalsh agreed to buy 147 unapproved building lots from Anatal - Anatal agreed to obtain planning approval - Planning approval was not obtained - Eastwalsh sued Anatal for, inter alia, dam­ages for failure by Anatal to use its best efforts to obtain planning approval - East­walsh was awarded damages of $2,020,780 - Anatal appealed - The Ontario Court of Appeal reduced the damage award to $1,000 and awarded Anatal party and party costs - The Deputy Registrar assessed costs at $43,783.11 (from $67,403.30) including an allowance of $23,161.50 for preparation of the appeal including the writing of the factum - Eastwalsh appealed on the ground the amount allowed for preparation should be reduced to $12,365 - The Ontario Court of Appeal dismissed the appeal.

Cases Noticed:

Kelleher v. Knipfel Estate (1982), 37 O.R.(2d) 92 (C.A.), consd. [para. 7].

Oakville Storage & Forwarders Ltd. v. Canadian National Railway Co. (1987), 27 C.P.C.(2d) 56 (Ont. H.C.), refd to. [para. 9].

Canadian Express Ltd. v. Blair (1992), 10 C.P.C.(3d) 141 (Ont. Gen. Div.), consd. [para. 11].

Walker v. CFTO Ltd. (1994), 23 C.P.C.(3d) 296 (Ont. Gen. Div.), consd. [para. 12].

Statutes Noticed:

Courts of Justice Act, R.S.O. 1990, c. C-43, sect. 6(1)(c) [para. 2]; sect. 131 [para. 9].

Rules of Civil Procedure (Ont.), rule 57 [para. 9]; rule 58.06(1), rule 58.06(1)(h) [para. 10].

Counsel:

Randy A. Pepper, for Eastwalsh Homes Ltd.;

Kim Beatty, for the defendants.

This appeal was heard in chambers on February 15, 1995, before Laskin, J.A., of the Ontario Court of Appeal, who delivered the follow­ing judgment which was released on March 10, 1995.