Applicant failed to establish that it was successor to or equitable assignee of repurchase option

Real Property - Sale of Land - Agreement of purchase and sale

Applicant sought specific performance to enforce its purported right to purchase land from respondent, pursuant to 1998 agreement of purchase and sale between applicant's purported predecessor, I Inc., and respondent. Agreement provided I Inc., as vendor, option to repurchase property from respondent if it was not developed as church within 10 years. In dismissing application, judge found that applicant failed to establish that it was successor to I Inc. or equitable assignee of repurchase option. Applicant appealed. Appeal dismissed. Absence of schedule of “Excluded Assets” to transfer agreement left critical gap in applicant's claim that it was successor because it had “assumed burdens and become vested with rights” of I Inc. and its alternative claim that it was equitable assignee because intention was for applicant to have benefit of repurchase option. Application judge could not determine if agreement had been transferred to applicant on record before her. Application judge did not err in not exercising her discretion to receive additional evidence. Application judge raised issue of missing schedule of “Excluded Assets” at hearing of application. There was no request for adjournment, and schedule was never provided. Applicant did not identify what additional evidence it wished to provide. Application judge was concerned that to allow additional evidence would be unfair to respondent; this exercise of discretion did not warrant appellate intervention.

Genstar Development Partnership v. The Roman Catholic Episcopal Corporation of the Diocese of Hamilton in Ontario (2019), 2019 CarswellOnt 9582, 2019 ONCA 506, J.C. MacPherson J.A., M. Tulloch J.A., and A. Harvison Young J.A. (Ont. C.A.); affirmed (2018), 2018 CarswellOnt 17055, 2018 ONSC 4119, Pollak J. (Ont. S.C.J.).

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