Schneeberg v. Talon International Development Inc., 2011 ONCA 687

• Judge: Blair, Watt and Epstein, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: June 01, 2011
• Jurisdiction: Ontario
• Citations: 2011 ONCA 687;(2011), 285 O.A.C. 287 (CA)

Schneeberg v. Talon Intl. Dev. Inc. (2011), 285 O.A.C. 287 (CA)

MLB headnote and full text

Temp. Cite: [2011] O.A.C. TBEd. NO.017

Richard E. Schneeberg (applicant/respondent) v. Talon International Development Inc. (respondent/appellant)

(C52928; 2011 ONCA 687)

Indexed As: Schneeberg v. Talon International Development Inc.

Ontario Court of Appeal

Blair, Watt and Epstein, JJ.A.

November 8, 2011.

Summary:

The applicant purchaser entered into an Agreement of Purchase and Sale dated August 27, 2004 for a condominium hotel unit in the Trump International Towers to be developed by the respondent vendor. The purchaser sought a declaration that the vendor had breached the agreement by its failure to provide occupancy by the specified date and the return of all paid deposits, together with interest.

The Ontario Superior Court, in a decision reported at [2010] O.T.C. Uned. 5559, allowed the application. The vendor appealed.

The Ontario Court of Appeal dismissed the appeal.

Real Property - Topic 8818.1

Condominiums - Purchase and sale agreements - Termination clauses - The purchaser entered into an Agreement of Purchase and Sale dated August 27, 2004 for a condominium hotel unit to be developed by the vendor - In November 2009, the purchaser sought a declaration that the vendor had breached the agreement by its failure to provide occupancy by the specified date (March 20, 2009) and the return of all paid deposits, together with interest - The application judge allowed the application - The vendor appealed - The Ontario Court of Appeal dismissed the appeal - The court agreed with the application judge that the agreement did not provide the vendor with what would amount to an unlimited unilateral right to delay closing - It appeared that the parties intended that there would be terms in the agreement governing the vendor's right to extend the date for closing - However, there was a gap in the agreement as no such terms were inserted - Paragraph 20 specifically provided the purchaser with a right to terminate the transaction should there be a delay in the unit's completion for occupancy beyond March 20, 2009 - The absence of a "time of the essence" clause was irrelevant as the purchaser was invoking an enumerated contractual right - The purchaser did not waive his right to terminate the agreement.

Cases Noticed:

Dumbrell v. Regional Group of Companies Inc. et al. (2007), 220 O.A.C. 64; 85 O.R.(3d) 616; 2007 ONCA 59, refd to. [para. 38].

Commercial Alcohols Inc. v. Suncor Energy Products Inc., [2008] O.A.C. Uned. 716; 165 A.C.W.S.(3d) 448; 2008 ONCA 261, refd to. [para. 41].

Ventas Inc. et al. v. Sunrise Senior Living Real Estate Investment Trust et al. (2007), 222 O.A.C. 102; 85 O.R.(3d) 254; 2007 ONCA 205, refd to. [para. 41].

3869130 Canada Inc. et al. v. I.C.B. Distribution Inc. et al. (2008), 239 O.A.C. 137; 167 A.C.W.S.(3d) 82; 2008 ONCA 396, refd to. [para. 41].

RF Real Estate Inc. v. Rogers Telecom Holdings Inc. et al. (2009), 256 O.A.C. 329; 2009 ONCA 899, refd to. [para. 41].

Hawley et al. v. North Shore Mercantile Corp. et al. (2009), 255 O.A.C. 143; 2009 ONCA 679, refd to. [para. 41].

Zeubear Investments Ltd. et al. v. Magi Seal Corp. et al. (2010), 271 O.A.C. 126; 103 O.R.(3d) 578; 2010 ONCA 825, refd to. [para. 41].

SeaWorld Parks & Entertainment LLC v. Marineland of Canada Inc. (2011), 282 O.A.C. 339; 2011 ONCA 616, refd to. [para. 41].

Tercon Contractors Ltd. v. British Columbia (Minister of Transportation and Highways), [2010] 1 S.C.R. 69; 397 N.R. 331; 281 B.C.A.C. 245; 457 W.A.C. 245; 2010 SCC 4, refd to. [para. 42].

Hillis Oil and Sales Ltd. v. Wynn's Canada Ltd., [1986] 1 S.C.R. 57; 65 N.R. 23; 71 N.S.R.(2d) 353; 171 A.P.R. 353, refd to. [para. 55].

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. 61].

Counsel:

David M. Goodman, for the respondent;

Mark A. Klaiman, for the appellant.

This appeal was heard on June 1, 2011, by Blair, Watt and Epstein, JJ.A., of the Ontario Court of Appeal. The following decision was released for the court, by Epstein, J.A., on November 8, 2011.