IN THE SUPREME COURT OF NOVA SCOTIA
Citation: Eagles v. Buchanan, 2008 NSSC 22
Date:20080125
Docket: SN 247764
Registry: Sydney
Between:
Ralph Eagles and Bernice Eagles
Respondents
Plaintiffs
and
Earl Buchanan and Mary Buchanan-Beaton
Applicants
Defendants
D E C I S I O N
Judge: Justice Suzanne M. Hood
Heard: October 4, 2007, in Sydney, Nova Scotia
Final Written
Submissions: December 14, 2007
Written Decision: January 25, 2008
Counsel: Christopher T. Conohan for the Respondents/Plaintiffs
Darlene MacRury for the Applicants/Defendants
By the Court:
[1] The parties entered a rent to own agreement on June 27, 2003 with respect to a property at 5 James Street in Glace Bay. The purchase price was to be $43,000.00 payable by two deposits of $3,250.00 in April and June 2003 and the balance to be made by payments of $600.00 beginning August 1, 2003. In addition, Ralph and Bernice Eagles (the “Purchasers”) were to be responsible for the payment of all accounts associated with the property including real property taxes, water and insurance. The purchaser’s son moved into the property and the purchasers spent time and money renovating the property.
[2] In 2005, a dispute arose about the payments for taxes, water and insurance required under the agreement and Earl Buchanan and Mary Buchanan-Beaton (the “Vendors”) gave the purchasers a Notice to Quit. The Purchasers then commenced an action on June 3, 2005 to enforce the agreement or, alternatively, for damages. In September 2005, they sought injunctive relief prohibiting the Vendors from taking possession of the property. The parties agreed to an interim arrangement for the Purchasers to make payments through their lawyer’s office. The payments were to be $600.00 per month for rent and $142.00 per month for taxes, water and insurance.
[3] After March 2007, payments from the Purchasers stopped and the Vendors now seek summary judgment and a recovery order for the property.
[4] Bernice Eagles filed an affidavit in the summary judgment and recovery order application. She says in her affidavit that she thought she provided sufficient post-dated cheques to last through November 2007. She says she continued to put money into the account on which the cheques were to be drawn. She also says she heard nothing from the Vendors about not receiving any payments. Attached to her affidavit is a copy of a bank book printout showing $750.00 deposited in each of April, May, June, July, August and September.
[5] The Vendors say that the Purchasers’ action for specific performance of the agreement should be dismissed because the Purchasers breached the agreement. It is not disputed that payments were not made after March 2007, although the Purchasers are willing and able to remedy the default.
[6] Defendants can apply for summary judgment pursuant to Rule 13.01(a). They must establish that there is no genuine issue of material fact requiring trial and, if they do so, then the plaintiffs must show that their claim has a real chance of success. The material facts with respect to the Purchasers’ claim for specific performance is whether payments were made. Clearly, they were not and I am therefore satisfied that there is no genuine issue of material fact requiring trial with respect to the claim for specific performance.
[7] The Vendors say that the alternative claim of the Purchasers for the money they spent on the property should be left for trial along with the issue of whether the Vendors would be unjustly enriched.
[8] The Purchasers must satisfy me that their claim for specific performance has a real chance at trial.
[9] The agreement between the parties does not provide for a means of terminating the agreement. It provides in clause 8:
8. In the event that the Purchaser shall not pay any monthly amount due, the Vendor shall have the option of either requiring all amounts due and owing to be paid immediately or retain all payments up to the default and treating the agreement as NULL AND VOID.
[10] Although a Notice to Quit was given in 2005, no such notice, or in fact any correspondence, was received by the Purchasers from the Vendors in 2007 after the payments fell into default. The Vendors did not invoke the acceleration clause or tell the Purchasers that they were treating the agreement as null and void. Their response was to bring an application for summary judgment and a recovery order.
[11] Rule 13.02 (g) provides that, on a summary judgment application, the court may grant relief from forfeiture where there is a claim for possession of land. In my view, under the circumstances of this case, it is appropriate to grant relief from forfeiture and deny the summary judgment application. The issues should be decided at trial.
[12] I have three reasons for so concluding:
1) Unlike the situation in Gilbert v. Fotherby, 2007 NSSC 211 where summary judgment and a recovery order were granted, it is not clear the Vendors in this case have done what the court concluded the plaintiffs in that case had done. Justice Robertson said in para. 70:
[70] In my view, the plaintiffs clearly established the breach of essential terms of the Agreement, their election to treat the contract at an end and their entitlement consequently to possession of the premises.
It should be left trial to determine if the actions of the Vendors constituted an election to treat the contract at an end.
2) The Vendors gave no notice of the breach or an opportunity for the Purchasers to remedy the default. As Justice Haliburton said in Francis v. Clarke, 1997 S.AR. (D) No. 01438 at p. 12:
... Equity surely would require that they have reasonable notice of their default and an opportunity to rectify that default before the termination of their lease.
Whether, in the circumstances of this case, notice and an opportunity to cure the default should have been given, is an issue for trial.
3) In all the circumstances of this case it would, in my view, be inequitable and manifestly unjust to the Purchasers to leave then with only a claim for money where it appears that the default in payment occurred because of a slip and not any inability or unwillingness of the Purchasers to pay.
[13] In my view, these issues can best be determined at trial when all the facts surrounding the rent to own agreement, the work done to the property and payments made can be put before a trial judge.
[14] The application for summary judgment and a recovery order is dismissed.
Costs shall be in the cause.
Hood, J.