Plaintiff/purchaser and defendant/vendor entered into agreement of purchase and sale (“APS”). The plaintiff was in the business of developing and operating gas stations and intended to develop the subject property for use as a gas station.
There was a 10 day period to allow conditions to be fulfilled. Shortly thereafter the deal was at an end. The vendor sold the property to another party. The purchaser claimed that the vendor did not allow conditions to be fulfilled and prematurely sold the property. The plaintiff registered a caution and thereafter brought an action for specific performance and a motion for issuance of a Certificate of Pending Litigation (“CPL”). The purchaser asserted that the property was extremely rare and well suited to a project it had been hoping to develop for some time.
The plaintiff did not show that he could not be compensated by an award of monetary damages or that such damages were incapable of calculation. The court concluded that damages were a viable alternative.
The zoning of the property was not unique. The fact that the property was large and suitable for use of a gas station and already had a 2 storey building, convenience store and quick serve restaurant, did not bring it to the requisite level of uniqueness. The plaintiff had developed many properties over the years and the court found that the plaintiff was not specifically waiting for this particular property. The court therefore found that the test for a CPL was not met and ordered that the caution be removed.
Shcolyar v. 1241 Scaw Inc. 2019 CarswellOnt 9665 (S.C.J.)