High Tower Homes Corp. v. Stevens, 2014 ONCA 911

• Judge: Hoy, A.C.J.O., Epstein and Hourigan, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: December 18, 2014
• Jurisdiction: Ontario
• Citations: 2014 ONCA 911;(2014), 328 O.A.C. 265 (CA)

High Tower Homes Corp. v. Stevens (2014), 328 O.A.C. 265 (CA)

MLB headnote and full text

Temp. Cite: [2014] O.A.C. TBEd. DE.042

High Tower Homes Corporation (appellant) v. Brett Jeremy David Stevens and Brett Jeremy David Stevens, Trustee (respondents)

(C58783; 2014 ONCA 911)

Indexed As: High Tower Homes Corp. v. Stevens

Ontario Court of Appeal

Hoy, A.C.J.O., Epstein and Hourigan, JJ.A.

December 18, 2014.

Summary:

A vendor offered adjacent properties for sale, attributing a below market value price for one property and a higher price for the second (tax purposes). The sale of one was conditional on the sale of the other. The purchaser amended its counter-offer (excluding the sale of both condition) to purchase the under-priced property. The vendor, not having the removal of the condition drawn to his attention, mistakenly accepted the counter-offer. The agreement required that the purchaser give notice of its waiver of conditions personally to the vendor. The purchaser failed to give personal notice, instead faxing the notice to the vendor's solicitor. The purchaser sued for specific performance or, alternatively, damages. The vendor counter-claimed for rectification of the agreement and a declaration that the agreement was null and void for want of personal service of the notice within the required time period. The purchaser sought partial summary judgment. A motions judge declared the agreement unenforceable and dismissed the motion. The failure to personally deliver the notice, as explicitly required by the agreement, rendered the agreement null and void. The vendor was not entitled to rectification. The purchaser appealed. The vendor cross-appealed, arguing that if the purchaser's appeal were allowed, all issues should be sent to trial.

The Ontario Court of Appeal dismissed the purchaser's appeal. It was unnecessary to deal with the cross-appeal.

Contracts - Topic 2053

Terms - Implied terms - From conduct - [See Sale of Land - Topic 956 ].

Contracts - Topic 2116

Terms - Express terms - "Entire agreement" or "four corners" clause - [See Sale of Land - Topic 956 ].

Contracts - Topic 2254

Terms - Conditions and warranties - Conditions - Waiver of - [See Sale of Land - Topic 956 ].

Contracts - Topic 9915

Promissory estoppel - Where applicable - Requirement of promise - [See Sale of Land - Topic 956 ].

Sale of Land - Topic 956

The contract - Conditions and warranties - Waiver - A purchase and sale agreement required that the purchaser's notice of its waiver of conditions was to be delivered personally to the vendor - The purchaser gave notice to the vendor's solicitor by fax - The vendor refused to complete - A motions judge held that the agreement was null and void for failure to personally deliver the notice, as explicitly required by the agreement - The purchaser appealed, arguing that delivery of the notice by fax and leaving the notice at the property (vendor lived on the adjacent property) constituted personal delivery - The purchaser also argued that delivery other than personally should have been implied, that the vendor had waived personal delivery by his conduct, and that promissory estoppel precluded the vendor from requiring personal delivery of the notice - The Ontario Court of Appeal dismissed the appeal - The agreement clearly provided for personal delivery of the notice - Notice by fax or leaving the notice at the property did not constitute personal delivery - The motions judge did not err in finding that the entire agreement clause precluded an implied term that delivery need not be personal - Even if the motions judge erred in interpreting the entire agreement clause, the court would not have implied a term permitting non-personal delivery - Even if the motions judge erred in finding that the entire agreement clause precluded any waiver of personal notice, there was no waiver of the personal delivery of notice condition by post-agreement conduct - Finally, promissory estoppel did not apply where there was no unambiguous promise or assurance intended to affect the vendor's right to personal delivery of the notice - Even if such a promise or assurance could be inferred, the purchaser would have been denied equitable relief because of its unclean "past record in the transaction" - See paragraphs 20 to 62.

Cases Noticed:

1376273 Ontario Inc. v. Knob Hill Farms Ltd., [2003] O.T.C. 526; 34 B.L.R.(3d) 95 (Sup. Ct.), dist. [para. 20].

Canadian Pacific Hotels Ltd. v. Bank of Montreal, [1987] 1 S.C.R. 711; 77 N.R. 161; 21 O.A.C. 321, refd to. [para. 20].

CivicLife.com Inc. v. Canada (Attorney General) (2006), 215 O.A.C. 43 (C.A.), refd to. [para. 20].

Colautti Construction Ltd. v. Ottawa (City) (1984), 5 O.A.C. 74; 46 O.R.(2d) 236 (C.A.), refd to. [para. 20].

Creston Moly Corp. v. Sattva Capital Corp. (2014), 461 N.R. 335; 358 B.C.A.C. 1; 614 W.A.C. 1; 373 D.L.R.(4th) 393; 2014 SCC 53, refd to. [para. 21].

Bhasin v. Hrynew et al. (2014), 464 N.R. 254; 584 A.R. 6; 623 W.A.C. 6; 27 B.L.R.(5th) 1; 2014 SCC 71, refd to. [para. 36].

Ford (G.) Homes Ltd. v. Draft Masonry (York) Co. (1983), 2 O.A.C. 231; 43 O.R.(2d) 401 (C.A.), refd to. [para. 39].

Technicore Underground Inc. v. Toronto (City) et al. (2012), 296 O.A.C. 218; 354 D.L.R.(4th) 516; 2012 ONCA 597, refd to. [para. 43].

Saskatchewan River Bungalows Ltd. and Fikowski v. Maritime Life Assurance Co., [1994] 2 S.C.R. 490; 168 N.R. 381; 155 A.R. 321; 73 W.A.C. 321, refd to. [para. 43].

DW Squared Limited Partnership v. Oxford Properties Canada Ltd., [2001] O.T.C. 739; 43 R.P.R.(4th) 155 (Sup. Ct.), refd to. [para. 51, footnote 4].

Maracle v. Travellers Indemnity Co. of Canada, [1991] 2 S.C.R. 50; 125 N.R. 294; 47 O.A.C. 333, refd to. [para. 57].

Engineered Homes Ltd. v. Mason et al., [1983] 1 S.C.R. 641; 47 N.R. 379, refd to. [para. 58].

Toronto (City) v. Polai, [1970] 1 O.R. 483 (C.A.), refd to. [para. 59].

Servello v. Servello (2014), 245 A.C.W.S.(3d) 330; 2014 ONSC 5035, refd to. [para. 59].

Authors and Works Noticed:

McCamus, John D., The Law of Contracts (2nd Ed. 2012), p. 774 [para. 39].

Counsel:

Ronald Allan, for the appellant;

Christopher E. Reed, for the respondents.

This appeal and cross-appeal were heard on November 7, 2014, before Hoy, A.C.J.O., Epstein and Hourigan, JJ.A., of the Ontario Court of Appeal.

On December 18, 2014, Hoy, A.C.J.O., released the following judgment for the Court of Appeal.