Majority
AND IN THE MATTER OF RULEs 605 AND 606 OF THE CON- SOLIDATED RULES OF PRACTICE OF THE SUPREME COURT ,OF ONTARIO.
ON APPEAL FROM THE APPELLATE DIVISION OF THE SUPREME COURT OF ONTARIO
Judgment of the Court
J.-This is an appeal from the judgment of the Second Divisional Court of the Supreme Court of Ontario, dismissing an appeal from a judgment of Raney J., pronounced upon an application, under Rules 605 and 606 of the Consolidated Rules of Practice, on behalf of the respondent company as vendor, for an order declaring the rights of that company under an agreement in writing of the 27th of June, 1927, between the respondent company as vendor, and the appellant as purchaser, relating to certain lands in the township of East York.
The material parts of the agreement are these:
S.C.R.
Df.
On the 23rd of July the requisitions on title were delivered, and, by these and later requisitions, the appellant as purchaser,
(a) required evidence that a certain mortgage was in "good standing " and free from arrears of interest and principal, and
(b) demanded that certain rights of way should be surrendered and that an agreement for sale affecting part of the land should be discharged.
The respondent company appears to have satisfied the appellant as to the first of these requirements. But as to those comprised under head (b), the appellant was notified in due course that the respondent company was unable to comply with them. Some negotiations took place touching an offer by the respondent company to substitute other lands for those affected by the agreement and rights of way, but without result; and on the 18th of October, the solicitors for the respondent company wrote to the solicitors for the appellant that " our clients are ready to close and have instructed us to notify you on behalf of your client that unless this transaction is closed on or before the 25th inst., that they will cancel the agreement and withdraw therefrom."
The appellant having done nothing in consequence of this notice, the solicitors for the respondent company, on the 26th of October, orally informed the purchaser's solicitors, that the agreement was no longer in force. On the 3rd of November a caution was filed by the appellant in the Land Titles Office, and on the 9th of November the originating notice was served. The contention on the part of the respondent company was that the facts were such as to bring into play article 8 of the agreement, quoted above.
Mr. Justice Raney, after stating the facts substantially as I have stated them, and pointing out that since there were no material facts in controversy, the dispute fell within the scope of Consolidated Rule 605, proceeded: uci There is before us no report of the reasons for the judgment of the Second Appellate Division.
Several contentions were advanced in support of the appeal, of which it is only necessary to mention two. First, it is argued that the respondent company, by its conduct in answering the appellant's requisitions and in endeavouring to remove his objections, elected to abandon its rights under article 8. This contention fails in point of fact. The appellant was never misled into a belief that the respondent company had assumed the obligation of meeting the demands in the requisitions in respect of the agreement of sale and the rights of way. On the contrary, he was informed in due course that the respondent company was unable to comply with them. The proposal to substitute other lands was an act indicating, not a willingness to meet.the requisitions in these respects, but the opposite. Second, it is contended that, since the agreement of sale, to which exception was taken, and the rights of way mentioned, affected only an insignificant part of the lands in question, the appellant was entitled, if so advised, to insist upon specific performance with compensation in respect of the part so affected, notwithstanding the terms of article 8; and further, that he was entitled, before that article was put into operation, to be given adequate time to consider whether or not he should take that course. The answer to this contention is, that the right to rescind given by article 8 is not subject to an over-riding right vested in the appellant to insist upon specific performance with compensation, even though, but for the stipulations of that article, he might, on the facts, have been entitled to such relief. It is a right given to the vendor for his protection in just such situations as that we are now considering, and