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Contracts - Interpretation - Time. Drag v. Mehta
In Drag v. Mehta (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal of a trial APS specific performance order, here on a 'strict timing' point:[23] The normal remedy for breach of the duty of honest performance is damages: C.M. Callow Inc. v. Zollinger, 2020 SCC 45, [2020] 3 S.C.R. 908, at paras. 106-9. But this was not a damages case, as the parties had agreed that if the APS did not become null and void on December 9, specific performance was appropriate. We see no error in the trial judge’s holding that, in light of the misrepresentations by Schembri, Drag was not entitled to insist on the strict timing in the APS to declare the APS became null and void at 11:59 p.m. on December 9. There is abundant authority for the proposition that a party may not rely on strict timing where they have indicated, by words or conduct, that they will not do so and the other party has relied on that representation to their detriment: see e.g., Owen Sound Public Library Board v. Mial Developments Ltd. (1979), 1979 CanLII 1624 (ON CA), 26 O.R. (2d) 459, at para. 16 (C.A.); Petridis v. Shabinsky (1982), 1982 CanLII 1829 (ON SC), 35 O.R. (2d) 215, at paras. 20-22 (H.C.); Charles Rickards Ltd. v. Oppenheim, [1950] 1 K.B. 616, at 623 (Eng. & Wales C.A.). The trial judge found that was exactly what Schembri’s misrepresentations meant in so far as the timing for delivery of a waiver was concerned, and he found that Mehta relied on them to his detriment. . ADT Security Services Canada, Inc. v. Fluent Home Ltd.
In ADT Security Services Canada, Inc. v. Fluent Home Ltd. (Div Court, 2023) the Divisional Court considered the time required for a payment (here in a settlement) where none was specified by the parties:[7] In this case, there was nothing said during pre-trial discussions about the timing of the payment. Nothing in the context of the discussions founds an argument that payment was anything other than an immediate obligation. It is normal to allow some short period to generate a cheque or other payment, and where there has been no express agreement on the precise deadline, the law infers a “reasonable period” for payment. In this case, the reasonable options would be, in my view, seven days, ten days or thirty days. Thirty days is what the plaintiffs proposed, and what was approved by counsel for the defendants subject to instructions. In this context, I conclude that thirty days is a “reasonable period”.
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[18] As I indicated at the conclusion of the hearing, this is not a close call. The terms of settlement are simple. The manner in which the agreement was expressed conveyed the parties’ commitment to the settlement, and that commitment was relied on by the parties and the court in vacating the pending trial dates. The precise wording of the release is not an essential term in the context of this settlement: 1648290 Ontario Ltd. v. Akhaven, 2018 ONSC 6122 (Div. Ct.). Likewsie, the precise timing of payment of the settlement funds is not an essential term in the context of this settlement: Canada v. Stephen Moffett Ltd., 2021 FC 1223; Hughes v. The City of Moncton, 2006 NBCA 83. . Ju v. Tahmasebi
In Ju v. Tahmasebi (Ont CA, 2020) the Court of Appeal commented about unspecified time expectations in a real estate conveyance context:[20] Where there is no express reference in an agreement to the time of performance, the law requires performance within a reasonable time. What is reasonable will be determined upon the facts of the individual case: Illidge v. Sona Resources Corporation 2018 BCCA 368, at para. 61. The application judge was under no obligation to set out what date would have been reasonable. The key is that, in light of all of the operative facts, she concluded that August 7, 2018 was not reasonable.
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