Smith et al. v. Tellier et al.

THE CHIEF JUSTICE—This appeal from the judgment of the Ontario Court of Appeal, reversing the judgment of Keith J., raises the question whether a requisition on compliance with building restrictions had been satisfactorily answered by the vendors as of the date of closing of a contract of sale and purchase of certain residential premises. The requisition was made on April 28, 1971, some weeks in advance of a survey of the property which the purchasers obtained on May 24, 1971. On June 10, 1971, the vendors obtained directions for service with respect to an intended application under s. 62 of The Conveyancing and Law of Property Act, R.S.O. 1970, c. 85, to have the building restrictions discharged. The application was brought on June 11, 1971, and an order discharging the restrictions was obtained on June 23, 1971. No one appeared to contest the application.

The issue in this case arises because the time for appealing the discharge order was still running on June 30, 1971, the date of closing and, indeed, in view of the approaching Long Vacation, would

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have run into September, 1971. The agreed statement of facts shows that it was after correspondence between the solicitors for the parties that the vendors applied on June 23, 1971 to have the building restrictions discharged. It is also common ground that on the date of closing the vendors tendered not only a deed but also the order discharging the building restrictions. That order, while not specifying that those served did not appear, did approve the direction for service made on June 10, 1971 and did recite that it was made “upon hearing counsel for the applicants”, that is the vendors, no other counsel or person being mentioned.

The respondents purchasers tendered the money due on closing but at the same time required a final and conclusive order that the building restrictions were removed, either by way of proof that the time for appealing their discharge had run or that undertakings not to appeal or waivers of right to appeal, executed by the interested parties under the direction for service were available. Neither of these requirements being then met, they refused to close and an action for damages was brought by the vendors.

The case appears to have been argued on the footing that either there was or was not an effective, a final order upon which the vendors could rely as satisfactorily answering the purchasers” requisition. On the facts of this case, I would regard this statement of the issue as extreme on each side of the case. An order which is subject to appeal cannot be said to be effective for all purposes, even in respect of third parties, before the time for appeal has run. On the other hand, the fact that the time for appeal has not yet run will not invariably stay the full effectiveness of the order, even against third parties, if there is only an ephemeral prospect of an appeal. It is always necessary to consider the purpose for which the finality or want of finality of an order is urged, to consider who is affected by the order, and in what context its finality or lack of finality is asserted at

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What is evident from the record is that no one who was served objected or even appeared to oppose the making of the order of June 23, 1971. Apart entirely from any such procedural question as whether non-appearing parties served with notice of the discharge application would have an automatic right of appeal from the order that was made, (see Ontario Rules 35(3) and 48(2)), it could not be said that the purchasers” solicitor could be in any doubt about the fact that there was no possibility of an appeal. In my opinion, the vendors were correct in their position that in the circumstances they had satisfactorily answered the respondents” requisition.

I would accordingly allow the appeal, set aside the order of the Ontario Court of Appeal and restore the judgment of Keith J. The appellants are entitled to their costs throughout.

Appeal allowed with costs.

Solicitors for the plaintiffs, appellants: Bondy, Kirwin & Associates, Windsor.

Solicitors for the defendants, respondents: Enfield, Hemmerick, Henry, Lyonde & Wood, Toronto.