McKee v. Montemarano et al., 2009 ONCA 359
| Judge | Doherty, Cronk and Rouleau, JJ.A. |
| Court | Court of Appeal (Ontario) |
| Case Date | April 15, 2009 |
| Jurisdiction | Ontario |
| Citations | 2009 ONCA 359;(2009), 251 O.A.C. 156 (CA) |
McKee v. Montemarano (2009), 251 O.A.C. 156 (CA)
MLB headnote and full text
Temp. Cite: [2009] O.A.C. TBEd. MY.014
Marvyn McKee and Paul McKee (plaintiffs/respondents in appeal) v. Saverio Montemarano, Saverio Montemarano in trust for a new company to be incorporated and Danhew Holdings Limited (defendants/appellants in appeal /defendant/respondent in appeal)
(C49175; 2009 ONCA 359)
Indexed As: McKee v. Montemarano et al.
Ontario Court of Appeal
Doherty, Cronk and Rouleau, JJ.A.
April 15, 2009.
Summary:
The sale of a real property did not close. The purchasers registered a caution against the property. The sellers sued for damages. The purchasers counter-claimed and cross-claimed. The parties agreed that the trial would be phased with phase 1 dealing with the validity of the agreement of purchase and sale between the parties.
The Ontario Superior Court, in a decision reported [2008] O.T.C. Uned. E67, declared the agreement of purchase and sale to be void and ordered that the caution be removed. The purchasers appealed.
The Ontario Court of Appeal dismissed the appeal.
Sale of Land - Topic 956
The contract - Conditions and warranties - Waiver - An agreement of purchase and sale provided that the sale of the subject property was conditional upon the purchasers performing due diligence - The purchasers were to give notice in writing "delivered to the Seller" no later than a certain time that either the condition was fulfilled or was waived - The purchasers delivered, on time, a written notice of waiver to the sellers' home, with a copy to the sellers' real estate representative - The trial judge declared the agreement of purchase and sale to be void where the written notice of waiver had to be brought to the personal attention of the sellers - As this did not occur on time, the delivery requirement for an effective waiver was not satisfied and the agreement of purchase and sale became void - The Ontario Court of Appeal upheld the decision - See paragraphs 1 to 13.
Words and Phrases
Delivered to the Seller - The Ontario Court of Appeal discussed the meaning of the expression "delivered to the Seller" found in a due diligence clause contained in an agreement of purchase and sale of real property - See paragraphs 3 to 13.
Counsel:
Patrick J. Monaghan, for the appellants Saverio Montemarano and Saverio Montemarano, in trust for a new company to be incorporated;
Geoffrey D.E. Adair and Don White, for the respondents, Marvyn McKee and Paul McKee;
Neil A. Kaufman, for the respondent, Danhew Holdings Limited.
This appeal was heard on April 15, 2009, by Doherty, Cronk and Rouleau, JJ.A., of the Ontario Court of Appeal. The Court of Appeal rendered a decision orally on April 15, 2009, with the following written endorsement released on May 1, 2009.
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Court Of Appeal Summaries (May 9, 2022 ' May 13, 2022)
...Purchase and Sale of Land, Waiver of Conditions, Notice, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, McKee v. Montemarano, 2009 ONCA 359, High Tower Homes Corporation v. Stevens, 2014 ONCA 911 Short Civil Decisions London District Catholic School Board v. Michail, 2022 ONCA 378......
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Jones v Temple Real Estate Investment Trust, 2018 ABQB 606
...Inc, 2014 ONCA 737; KPMG Inc v 0747825 BC Ltd, 2017 BCCA 277; High Tower Homes Corp v Stevens, 2014 ONCA 911; McKee v Montemarano, 2009 ONCA 359. In Ariston Realty, the Ontario Court of Appeal noted that a requirement of written notice, rather than actual notice, is intended to promote comm......
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Kazakevich v. Sychev, 2020 ONSC 3516
...day. Sychev relies upon the case of McKee v. Montermarano, 2008 CanLII 36163 (Ont. S.C.J.), at paras 21, 22 and 24, aff’d 2009 ONCA 359 for the proposition that an agreement should be held to be invalid if a “waiver [of one of its conditions] was not effectively delivere......
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Derakhshan v. Narula, 2017 ONSC 1996
...circumstances. Analysis [9] The Ontario Court of Appeal in Serra v. Serra, 2009 ONCA 359 (CanLII) has provided guidelines to the courts in identifying the three fundamental purposes of the costs 1) to indemnify su......
-
Jones v Temple Real Estate Investment Trust, 2018 ABQB 606
...Inc, 2014 ONCA 737; KPMG Inc v 0747825 BC Ltd, 2017 BCCA 277; High Tower Homes Corp v Stevens, 2014 ONCA 911; McKee v Montemarano, 2009 ONCA 359. In Ariston Realty, the Ontario Court of Appeal noted that a requirement of written notice, rather than actual notice, is intended to promote comm......
-
Kazakevich v. Sychev, 2020 ONSC 3516
...day. Sychev relies upon the case of McKee v. Montermarano, 2008 CanLII 36163 (Ont. S.C.J.), at paras 21, 22 and 24, aff’d 2009 ONCA 359 for the proposition that an agreement should be held to be invalid if a “waiver [of one of its conditions] was not effectively delivere......
-
Derakhshan v. Narula, 2017 ONSC 1996
...circumstances. Analysis [9] The Ontario Court of Appeal in Serra v. Serra, 2009 ONCA 359 (CanLII) has provided guidelines to the courts in identifying the three fundamental purposes of the costs 1) to indemnify su......
-
Derakhshan v. Narula, 2017 ONSC 1999
...an hourly rate of $425.00. Analysis [12] The Ontario Court of Appeal in Serra v. Serra, 2009 ONCA 359 (CanLII) has provided guidelines to the courts in identifying the three fundamental purposes of the costs 1) to indemnify ......
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Court Of Appeal Summaries (May 9, 2022 ' May 13, 2022)
...Purchase and Sale of Land, Waiver of Conditions, Notice, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, McKee v. Montemarano, 2009 ONCA 359, High Tower Homes Corporation v. Stevens, 2014 ONCA 911 Short Civil Decisions London District Catholic School Board v. Michail, 2022 ONCA 378......