Horth v. Slokker Canada Corp.
Horth v. Slokker Canada Corp.
Slokker Canada Corp., (appellants), and
J’Neene Horth and Chris Hauck, (respondents)
 O.J. No. 4151
Docket No. C29151
Ontario Court of Appeal
McMurtry C.J.O., Laskin and Borins JJ.A.
Heard: October 13, 1998.
Judgment: October 16, 1998.
Practice — Judgments and orders — Summary judgments — Setting aside — Triable issue.
Appeal by the defendant from summary judgment. The plaintiffs sued the defendant for damages resulting from a breach of a building contract. The plaintiffs claimed that the defendant breached its duty to obtain a building permit. The defendant argued that the plaintiffs improperly refused to remove a Certificate of Pending Litigation.
HELD: Appeal allowed. The summary judgment was set aside, except for the provision that the deposit and the amount paid for upgrades were to be returned to the plaintiffs. The issue of whether the defendant had a duty to do more than to apply for a building permit, and the issues relating to the Certificate of Pending Litigation, should have been left to the trial judge. As the plaintiffs no longer sought specific performance, the Certificate of Pending Litigation was ordered to be removed from title.
J. Gardner Hodder, for the appellant.
Michael Woods, for the respondent.
The following judgment was delivered by
¶ 1 THE COURT (endorsement):— We think that the motion judge was wrong to make a finding of liability against the appellant on a motion for summary judgment. In our view whether the appellant had a duty to do more than apply for a building permit, the scope of any such duty, and any damages flowing if the duty is established are all issues more appropriately left to the trial judge.
¶ 2 The appellant concedes, however, that it is obligated to return to the respondents the deposit and the amount paid for upgrades. Whether the certificate of pending litigation should have been registered on title and any damages flowing from the respondents’ unwillingness to remove it, depend on whether the appellant had a duty to try to rectify the driveway problem before terminating the agreement. Thus, issues relating to the certificate of pending litigation should also be left to the trial judge.
¶ 3 Finally, because the respondents are no longer seeking specific performance the certificate of pending litigation should now be removed from title.
¶ 4 Accordingly, the appeal is allowed. The judgment dated January 27, 1998 is varied by setting aside paragraph 2. The respondents’ motion for summary judgment, other than as reflected in paragraph 1, is accordingly dismissed. The order dated January 27, 1998 shall be varied by providing for an order removing the certificate of pending litigation from title. There shall be no costs of the motions before the motion judge. The appellant is entitled to its costs of the appeal.
– further cases
- A. v. A. (1992), 38 R.F.L. 382 (Ont.Gen.Div) – This case has been referred to a number of times in programs of Continuing Legal Education as an example of how to neutralize the opinion evidence of an expert. The result of the case was novel, as well. John Syrtash, author of Religion and Culture in Canadian Family Law, called the printers and stopped the presses so that his book could make mention of the result in this case.
- Erinway Holdings v. Barrette  O.J. No. 751 – Landlord/Tenant case.
- 419212 Ontario Ltd. v. Environmental Compensation Corp.  O.J. No. 2006 – A claim for compensation in an environmental matter.
- Homes v. Singh  O.J. No. 2657 DRS 94-06165 – Breach of contract.
- R. v. C. (T.) Ontario Judgments:  O.J. No. 2402 – Rights of young offenders.
- Byrne v. Purolator Courier Ltd.  O.J. No. 2261 No. 299/86 – Breach of contract.
- Lila v. Lila (1986), 3 R.F.L. 226 (Ont.C.A.) – This was a family matter decided by the Ontario Court of Appeal. It was included for many years in the Bar Admission Course materials on Family Law for the proposition it established concerning entitlement to interim support where there is an allegation of a fundamental repudiation of the marriage.
- Caleb v. Potts  O.J. No. 1125 – A Real Estate agent’s liability case.
- Siduak (c.o.b. P.M. Industries) v. Mironovich (c.o.b. Fashion Gem Imports)  O.J. No. 1953 DRS 94-01126 – Breach of Contract.
- Jewell v. Zorkin (1986), 4 W.D.C.P. 49 (Ont.Master) – This case concerned an interesting point of pleading in the area of libel law.
- R. v. Albino, Oct. 16, 1987, Ontario Lawyers’ Weekly – This case concerned an interesting point of criminal procedure asserting an accused’s right of election with respect to indictable offences.