Pearson et al. v. Keating et al., (1992) 56 O.A.C. 398 (DC)

• Judge: McDermid, J.
• Court: Ontario Court of Justice General Division (Canada)
• Case Date: January 13, 1992
• Jurisdiction: Ontario
• Citations: (1992), 56 O.A.C. 398 (DC)

Pearson v. Keating (1992), 56 O.A.C. 398 (DC)

MLB headnote and full text

Ernest Pearson and Sharon Pearson (plaintiffs/respondents) v. Irene Ann Keating (defendant/respondent) and Colin MacDonald (third party/appellant)

(736/90)

Indexed As: Pearson et al. v. Keating et al.

Ontario Court of Justice

Divisional Court

McDermid, J.

June 22, 1992.

Summary:

Vendors successfully sued a purchaser for damages flowing from the purchaser's failure to close on the date fixed for closing. The purchaser's lawyer, a third party to the action, appealed.

The Ontario Divisional Court allowed the appeal, dismissed the vendors' claim, the judgment against the purchaser and the third party claim.

Sale of Land - Topic 6056

Completion - Time - Waiver of time for closing - An agreement of purchase and sale specified that time was of the essence - The purchaser's lawyer failed to close on the date set for closing - The parties agreed to close on the following day with­out reservations - The Ontario Divisional Court concluded that the lawyer breached a term that went to the root of the contract, but that he was not liable for resulting damages - The agreement to extend the date constituted an implied waiver by the purchasers of the lawyer's breach.

Sale of Land - Topic 6062

Completion - Time - Time of the essence - Waiver of - [See Sale of Land - Topic 6056 ].

Cases Noticed:

Thompson v. Trepil Realty Ltd., [1962] O.R. 956 (H.C.), dist. [para. 5].

DiCenzo Construction Co. Ltd. v. Glassco (1978), 90 D.L.R.(3d) 127 (Ont. C.A.), dist. [para. 5].

Hashman et al. v. Anjulin Farms Ltd. (1972), 31 D.L.R.(3d) 490 (S.C.C.), dist. [para. 5].

Fraser-Reid et al. v. Droumtsekas et al., [1980] 1 S.C.R. 720; 29 N.R. 424; 103 D.L.R.(3d) 385, dist. [para. 5].

Authors and Works Noticed:

Fridman, The Law of Contract (2nd Ed. 1986), p. 496 [para. 7].

Counsel:

B.B. Bovan, for the plaintiffs/respondents;

I.A. Keating, in person;

J.D. Skinner, for the third party/appellant.

This appeal was heard on January 13, 1992 and February 26, 1992, before McDermid, J., of the Ontario Divisional Court, who released the following judgment on June 22, 1992: