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Civil Litigation - Application - Conversion to Action [R38.10]. Pine Glen Thorold Inc. v. Rolling Meadows Land Development Corporation
In Pine Glen Thorold Inc. v. Rolling Meadows Land Development Corporation (Ont CA, 2025) the Ontario Court of Appeal dismissed a plaintiff-purchaser's appeal, here from a dismissed claim that "arose from an agreement of purchase and sale pursuant to which Rolling Meadows agreed to sell land to Pine Glen to be developed into individual residential lots (the “APS”)".
Here the court notes a trial court's ability to treat an application as an action [under R38.10 'Disposition of Application']:[60] In this case, Pine Glen initially chose to bring an application, but it could have brought an action for damages instead. Nor did Pine Glen try to convert its application to an action when it became aware that it would suffer damages because of the delay in completing the transaction. Rule 38.10 empowers the court to order a trial of all or part of an application and to treat the proceeding as an action. As part of an action, Pine Glen could have sought damages in addition to its claim for declaratory relief. If necessary, to avoid further delay in closing its sales, Pine Glen could have brought a motion for interim relief compelling the closing in the context of an action. All these procedural paths were open to Pine Glen. The option that it chose instead, the combination of an application followed by an action, is an abuse of process because it amounts to litigation by instalment: Skypower CL 1 LP and Others v. Ontario Power & HMQ, 2014 ONSC 6950, at para. 31, aff’d 2015 ONCA 427; Catalyst, at para. 66; PricewaterhouseCoopers Inc v. Perpetual Energy Inc, 2022 ABCA 111, 98 C.B.R. (6th) 161, at paras. 81-82.
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