1061590 Ont. Ltd. v. Jockey Club (1995), 77 O.A.C. 196 (CA)
MLB headnote and full text
1061590 Ontario Limited (plaintiff/respondent) v. The Ontario Jockey Club (defendant/appellant) and Fraser & Beatty (defendant)
(C19245)
Indexed As: 1061590 Ontario Ltd. v. Ontario Jockey Club et al.
Ontario Court of Appeal
Grange, Osborne and Abella, JJ.A.
January 27, 1995.
Summary:
The parties entered into a purchase and sale agreement. The agreement included a provision which permitted the purchaser to terminate the agreement if it believed, acting reasonably, that there was environmental contamination of the land or soil conditions. The purchasers had the land tested and terminated the agreement. The vendors contested the termination and the purchasers applied for summary judgment. A motions judge allowed the purchaser’s application and awarded summary judgment. The vendors appealed.
The Ontario Court of Appeal, Grange, J.A., dissenting, dismissed the appeal.
Practice – Topic 5702
Judgments and orders – Summary judgments – Jurisdiction or when available – [See
Sale of Land – Topic 7406
].
Practice – Topic 5702
Judgments and orders – Summary judgments – Jurisdiction or when available – The Ontario Court of Appeal stated that the purpose of Civil Procedure Rule 20 was “to remove from the trial system, through the vehicle of summary judgment proceedings, those matters in which there is no genuine issue for trial. … The onus of establishing that there is no triable issue is on the moving party” – Nonetheless, the court further opined that “a respondent on a motion for summary judgment must lead trump or risk losing” – See paragraph 36.
Sale of Land – Topic 7406
Remedies – General – Escape clauses – Effect of – Environmental contamination – The parties entered into a purchase and sale agreement – The agreement included a provision which permitted the purchaser to terminate the agreement if it “believed, acting reasonably, that environmental contamination of the land or soil conditions, were such that either would increase the cost of developing the land or delay its development” – The purchaser had the land professionally tested for contamination and, relying on the escape provision, terminated the agreement – The vendors contested the termination – The Ontario Court of Appeal, Grange, J.A., dissenting, allowed the purchaser’s motion for summary judgment, stating that the purchaser acted pursuant to the escape provision and therefore, there was no genuine issue for trial – See paragraphs 1 to 53.
Cases Noticed:
Pizza Pizza Ltd. v. Gillespie (1990), 75 O.R.(2d) 225 (Gen. Div.), refd to. [para. 36].
Ungerman (Irving) Ltd. et al. v. Galanis and Haut (1991), 50 O.A.C. 176; 4 O.R.(3d) 545 (C.A.), refd to. [para. 36].
Statutes Noticed:
Rules of Court (Ont.), rule 20.01(1), rule 20.04(1), rule 20.04(2) [para. 35]; rule 39.03(2) [para. 40].
Counsel:
P.S.A. Lamek, Q.C., and I.V.B. Nordheimer, for the appellant;
Paul J. Pape, for the respondent.
This appeal was heard on September 27, 1994, before Grange, Osborne and Abella, JJ.A., of the Ontario Court of Appeal. On January 27, 1995, the judgment of the court was released, including the following opinions:
Osborne, J.A. (Abella, J.A., concurring) – see paragraphs 1 to 54;
Grange, J.A., dissenting – see paragraphs 55 to 66.
