A vendor sought a declaration that an agreement to sell was repudiated by the purchaser. The purchaser in turn sought judgment declaring the Agreement to Purchase valid and for an order setting a new closing date.
The vendor and purchaser disputed the interpretation of the Agreement, which was a sale of 144 acres for development. There were wetlands on the parcel. The purchaser took the position that the purchase price should be abated and the closing date extended while an environmental adjustment was conducted to lower the price. The vendor, on the other hand, sought a ruling that the purchaser breached the agreement without an abated purchase price and had no right to a new closing date. The purchaser failed to close or tender on the agreed upon closing date, so the vendor maintained the agreement was at an end.
The court allowed the vendor’s application and dismissed the purchaser’s position. It was obvious to all parties that wetlands did exist at the time they executed the agreement and no provisions were inserted contemplating any abatement of the purchase price. The vendor did not have to consult adjoining landowners or others with regard to the wetlands as the purchaser would be in the best position to know how the wetlands could be incorporated into its development. There was no waiver of time of essence although there had been a prior extension of the closing date and the purchaser’s refusal to close was a repudiation of the agreement and accepted by the vendor. The agreement was therefore at an end. (Matichuk v Quattro Holdings Ltd, 2013 ABCA 340)
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In another case, the plaintiff purchased commercial property from the defendant and then sued for breach of contractual obligation to provide 600 ampere electrical service. The plaintiff alleged that the defendant misrepresented that the property indeed had 600 ampere service.
The action was commenced in September 2006, well within two years of the purchase of the property (June 2005). However, the action did not proceed and in October 2008 the court issued a Status Notice. This required the plaintiff to take positive action or the case would be dismissed. A number of adjournments took place and finally the Status Hearing was held in January 2010. A new timetable was agreed upon but the plaintiff again failed to take steps within the required time limits.
At the Status Hearing in September 2011, the court dismissed the plaintiff’s action. Because of the delay, the court held the plaintiff was not absolved for prior lack of conduct simply because an order was made in June 2010 with a new schedule. The court considered the entire history of delay and notwithstanding that there was no proof of actual prejudice to the defendant and the plaintiff offered no reasonable explanation for the delay, the Court of Appeal upheld the dismissal.
This is an extreme case of procrastination and failure to enforce one’s alleged legal rights through breach of service. (1196158 Ontario Inc. v. 6274013 Canada Limited, 2011 ONSC 5410).
Full decisions are available at www.canlii.org.
Donald Lapowich, Q.C. is a partner at the law firm of Koskie, Minsky in Toronto, where he practices civil litigation, with a particular emphasis on real estate litigation and mediation, acting for builders, real estate agents and lawyers.
