Ellis v. MacPherson, (2005) 246 Nfld. & P.E.I.R. 211 (PEICA)

• Judge: Mitchell, C.J.P.E.I., McQuaid and Webber, JJ.A.
• Case Date: January 18, 2005
• Jurisdiction: Prince Edward Island
• Citations: (2005), 246 Nfld. & P.E.I.R. 211 (PEICA);2005 PESCAD 10;1996 CanLII 3715 (PE SCAD);1989 CanLII 274 (PE SCTD);246 Nfld & PEIR 211;[2005] PEIJ No 30 (QL)

Ellis v. MacPherson (2005), 246 Nfld. & P.E.I.R. 211 (PEICA);

  731 A.P.R. 211

MLB headnote and full text

Temp. Cite: [2005] Nfld. & P.E.I.R. TBEd. AP.014

Deborah MacPherson (appellant) v. Steven Ellis (respondent)

(S1-AD-1030; 2005 PESCAD 10)

Indexed As: Ellis v. MacPherson

Prince Edward Island Supreme Court

Appeal Division

Mitchell, C.J.P.E.I., McQuaid and Webber, JJ.A.

April 14, 2005.

Summary:

Ellis agreed to purchase a property from MacPherson. MacPherson refused to close the transaction. Ellis sued seeking, inter alia, specific performance and aggravated and/or punitive damages. He sought summary judgment for an order of specific performance of the agreement of purchase and sale, damages for rental of a warehouse on the property and an order for aggravated and/or punitive damages.

The Prince Edward Island Supreme Court, Trial Division, granted summary judgment. MacPherson appealed.

The Prince Edward Island Court of Appeal dismissed the appeal respecting specific performance but allowed the appeal respecting the order of the motions judge granting summary judgment for damages for rental of the warehouse and for punitive damages.

Barristers and Solicitors - Topic 1166

Authority - Extent of - Respecting sale of property - Ellis agreed to purchase a property from MacPherson - MacPherson refused to close the transaction - Ellis sued seeking, inter alia, specific performance - He sought summary judgment for an order of specific performance of the agreement of purchase and sale - MacPherson argued that the closing was one day late and that she had not agreed to an extension of one day to complete the transaction - However, the extension had been agreed to by her solicitor, who had requested the extension to facilitate the transfer of the cash balance of the purchase directly to his firm's trust account rather than by the delivery of a cheque to him on the date of completion provided for in the agreement - The motions judge granted summary judgment - The Prince Edward Island Court of Appeal dismissed MacPherson's appeal - The motions judge correctly held that MacPherson's solicitor was vested with the authority to grant the extension - See paragraphs 22 and 23.

Practice - Topic 1990

Pleadings - Particulars - Particulars of particular matters - Damages - Ellis agreed to purchase a property from MacPherson - MacPherson refused to close the transaction - Ellis sued - He sought summary judgment for, inter alia, an order of damages for rental of a warehouse on the property - The claim for this rental was not set forth in the statement of claim - A motions judge granted summary judgment - The Prince Edward Island Court of Appeal allowed MacPherson's appeal - If the rental claim could be considered to be caught by the paragraph in the claim seeking special damage for any additional losses suffered by Ellis as the result of MacPherson's failure to complete the transaction, particulars of these damages should have been delivered prior to the making of the summary judgment motion - Rule 25.06(9) of the Rules of Court required that the particulars of a claim for special damages be made known prior to the date of the trial - Similarly, if a party made a claim by way of summary judgment, particulars should be delivered prior to the motion for summary judgment in compliance with the spirit of rule 25.06(9) - See paragraph 34.

Sale of Land - Topic 8551

Remedies of purchaser - Specific performance - When available - Ellis agreed to purchase a property from MacPherson - There were four potato warehouses located on the land - They not only provided suitable storage facilities for storing, loading and grading potatoes, they were strategically located in relation to Ellis' operation - MacPherson refused to close the transaction - Ellis sued seeking, inter alia, specific performance - A motions judge granted Ellis' motion for summary judgment for specific performance, finding that warehouses had unique features vis-à-vis Ellis' operation and the use to which he wanted to put the warehouses - The Prince Edward Island Court of Appeal dismissed MacPherson's appeal - There was clearly no genuine issue for trial as to the suitability of the remedy of specific performance in this case - See paragraphs 29 and 30.

Cases Noticed:

Morton v. Cowan (2003), 175 O.A.C. 9; 229 D.L.R.(4th) 193 (C.A.), refd to. [para. 17].

Equity Waste Management of Canada et al. v. Halton Hills (Town) (1997), 103 O.A.C. 324; 35 O.R.(3d) 321 (C.A.), refd to. [para. 17].

Guarantee Co. of North America v. Gordon Capital Corp., [1999] 3 S.C.R. 423; 247 N.R. 97; 126 O.A.C. 1, refd to. [para. 18].

Hi-Tech Group Inc. v. Sears Canada Inc. (2001), 141 O.A.C. 56; 52 O.R.(3d) 97 (C.A.), refd to. [para. 20].

Vorvis v. Insurance Corp. of British Columbia, [1989] 1 S.C.R. 1085; 94 N.R. 321, refd to. [para. 36].

Whiten v. Pilot Insurance Co. et al., [2002] 1 S.C.R. 595; 283 N.R. 1; 156 O.A.C. 201, refd to. [para. 37].

Merry Estate, Re, [2002] O.T.C. 921; 62 O.R.(3d) 427 (Sup. Ct.), refd to. [para. 43].

Meredith v. Plaxton - see Merry Estate, Re.

T.A.E. v. M.E.E., [2003] O.A.C. Uned. 435 (C.A.), refd to. [para. 43].

Apotex Inc. v. Egis Pharmaceuticals (1991), 37 C.P.R.(3d) 335 (Ont. Gen. Div.), refd to. [para. 43].

Wasserman, Arsenault Ltd. et al. v. Stone et al. (2002), 164 O.A.C. 195 (C.A.), refd to. [para. 43].

Lac des Mille Lacs Indian Band v. Canada (Attorney General), [2002] O.T.C. 713 (Sup. Ct.), refd to. [para. 43].

Zesta Engineering Ltd. v. Cloutier et al., [2002] O.A.C. Uned. 288 (C.A.), refd to. [para. 43].

Gratton-Masuy Environmental Technologies Inc. et al. v. Building Materials Evaluation Commission (Ont.) (2003), 170 O.A.C. 388 (Div. Ct.), refd to. [para. 43].

Toronto (City) v. First Ontario Realty Corp. (2002), 59 O.R.(3d) 568 (Sup. Ct.), refd to. [para. 43].

Boucher et al. v. Public Accountants Council (Ont.) et al. (2004), 188 O.A.C. 201 (C.A.), refd to. [para. 43].

Jhaj v. York University, [2002] O.T.C. 24 (Sup. Ct.), refd to. [para. 43].

Counsel:

Kenneth L. Godfrey, for the appellant;

Janet M.R. Clark, for the respondent.

This appeal was heard on January 18, 2005, at Charlottetown, Prince Edward Island, by Mitchell, C.J.P.E.I., McQuaid and Webber, JJ.A., of the Prince Edward Island Court of Appeal. McQuaid, J.A., delivered the following reasons for judgment for the court on April 14, 2005.