. Airport Business Park Inc. v. Huszti Holdings Inc.
In Airport Business Park Inc. v. Huszti Holdings Inc. (Ont CA, 2023) the Court of Appeal considered a contractual term that triggered on the obtaining by a land vendor of an easement discharge. In a separate application, discharge was obtained by court order and shortly after registered on title. Subsequent to the time limit required for the easement discharge, the respondent to the easement application appealed (no stay was sought and it was dismissed 8 months later). Regardless, the purchaser claimed that the vendor has missed the easement discharge deadline and the contractual term had not been met - here on the basis that the 'satisfaction' offered was not final until all appeals were either exhausted or the appeal time limits had run-out. The vendor sought a declaration and won on this point, but on Divisional Court appeal the purchaser advanced successfully on the case of Smith et al. v. Tellier et al. (1974), 1974 CanLII 37 (ON CA), 4 O.R. (2d) 154 (C.A.) (“Smith (ONCA)”) for the proposition that the discharge order was "in a sense interlocutory” until appeal rights had been exhausted".
This was a further appeal of that order, which was allowed - thus reinstating the first level declaration holding that the contractual term had been satisfied [see paras 28-57].
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