2609413 Ontario Inc. v. Brant

2609413 Ontario Inc. v. Brant Collection Decisions of the Court of Appeal Date 2025-11-18 Neutral citation 2025 ONCA 788 Docket numbers COA-24-CV-1281 Judges Thorburn, Julie; Coroza, Steve A.; Gomery, Sally A. Subject Civil Decision Content

COURT OF APPEAL FOR ONTARIO CITATION: 2609413 Ontario Inc. v. Brant, 2025 ONCA 788 DATE: 20251118 DOCKET: COA-24-CV-1281 Thorburn, Coroza and Gomery JJ.A.

BETWEEN 2609413 Ontario Inc. Plaintiff/Moving Party (Respondent) and Amanda Ellis Brant also known as Amanda Elizabeth Brant also known as Amanda Elizabeth Ellis*, Barton J. Seguin and Halliwell Seguin LLP Defendants/Responding Parties (Appellant*) Nour Jomaa, for the appellant Ronald Sleightholm, for the respondent Heard: September 18, 2025 On appeal from the judgment of Justice Maria V. Carroccia of the Superior Court of Justice, dated November 28, 2024.

REASONS FOR DECISION [1] Following the hearing, this appeal was dismissed with reasons to follow. These are our reasons. [2] The appellant, Amanda Brant, was married to the late Robbie Allen Brant. Mr. Brant was the holder of a preliminary medical cannabis cultivation licence. Mr. Brant also owned a property in Amherstburg (the “Property”). In December 2017, Mr. Brant was in the process of transferring the cannabis licence to a numbered corporation, of which he and the appellant were the sole officers. [3] When Mr. Brant died suddenly in January 2018, the appellant became the sole owner of the Property, and the sole authorized signatory of the numbered corporation. Around the time of Mr. Brant’s death, the respondent, 2609413 Ontario Inc. (“260”), approached the appellant, and expressed an interest in acquiring the Property and all rights associated with the cannabis licence. [4] The parties entered into an Agreement of Purchase and Sale (“APS”) for the Property. Prior to signing the APS, the parties also entered a “Transfer and Consultancy Agreement” (the “Agreement”) dated February 6, 2018. The Agreement provided for the payment of two $300,000 installments from 260 to the appellant for “consulting services”, in addition to the sale of the Property. [5] Pursuant to the Agreement, 260 was to pay the appellant $300,000 upon the signing of the APS for the Property. A further

$300,000 was payable upon the receipt of a cultivation licence from Health Canada, which was to take place no later than May 31, 2018. [6] The first payment was made in installments in accordance with the Agreement, upon the closing of the Property. The second payment was not made by May 31, 2018, nor had 260 received the cultivation licence from Health Canada by that date. The sale of the Property closed on August 9, 2019. Since the second payment had not yet been made, a mortgage was registered in favour of the appellant in the sum of $300,000. The sum of the mortgage was due a year from its registration, on August 9, 2020. [7] 260 never received the cannabis licence from Health Canada. After 260 defaulted on the mortgage, the Property was sold under a Power of Sale. The proceeds of the sale were received in trust by Barton J. Seguin and Halliwell Seguin LLP. The appellant claimed that she was entitled to $300,000 of these funds in order to discharge the mortgage. [8] Consequently, 260 commenced proceedings, and brought a motion for summary judgment against the appellant. [9] Before the motion judge, the appellant asserted that the mortgage represented a forbearance agreement and argued that her receipt of $300,000 was not contingent on the receipt of a cannabis cultivation licence. According to the appellant, 260 granted the mortgage as security for payment of the $300,000

in exchange for her agreement to an extension of time to complete the purchase of the Property. For its part, 260 argued that this sum was only payable to the appellant upon receipt of the licence, as clearly outlined in the APS, and the Agreement. [10] The motion judge granted summary judgement to 260, finding that the second $300,000 payment was contingent on 260 receiving a cultivation licence. Since no licence was ever received, the payment never became due. Accordingly, she granted judgment in the amount of $305,732.88, inclusive of prejudgment interest in the amount of $5,732.88, and a direction to the Land Registrar to delete, vacate and expunge the mortgage from the register. The motion judge also directed that the sum of $300,000—which was being held in trust—be released to 260. [11] In this appeal, the appellant renews her claim that the mortgage was a forbearance agreement. The appellant argues that the motion judge erred by granting summary judgment to 260. The appellant advances two submissions.[1] [12] First, the appellant submits that the motion judge erred by failing to examine the plain terms of the mortgage, which does not contain any condition tying payment to the receipt of a cultivation licence. [13] We do not accept this submission. The motion judge properly examined other documents in addition to the mortgage. In her reasons, the motion judge also

considered the terms of the APS and the Agreement which contained language that contradicts the appellant’s submission. The motion judge stated: [52] The APS specifically provides that upon closing, the purchaser shall pay a consulting fee to Amanda Brant “in accordance with the Consulting Services Agreement”. That included the payment of $300,000 “upon receipt of Cultivation Licence by Purchaser issued by Health Canada”. The mortgage is specifically referred to as “security for payment-of said balance”. [53] The importance to the plaintiff of obtaining a cultivation licence is clearly apparent, and clearly reflected in both the agreement and the APS. The second payment due under the agreement was contingent upon the plaintiff obtaining that licence and the mortgage was put in place to secure the payment. [Emphasis added.] [14] It was open to the motion judge to conclude on the evidence that the mortgage was not a standalone unconditional obligation to pay, but that the reference in the APS to the mortgage as “an amount of $300,000, as security for payment of said balance of Consulting Serving [sic] Fee” was a reference to the fee under the Agreement. The Agreement explicitly specified that the fee was contingent on 260 receiving a cultivation licence. In our view, the motion judge did not commit a reversible error by examining the terms of the APS and Agreement because these

documents were part of the factual matrix. The terms of the mortgage could not be considered in isolation. Accordingly, it was open to the motion judge to find that the appellant’s entitlement to $300,000 was conditional. [15] Second, the appellant argues that the motion judge committed a palpable and overriding error by failing to reconcile uncontradicted key pieces of evidence that the appellant tendered. [16] For example, counsel for the appellant placed considerable emphasis on the wording of the Statement of Adjustments, which was tendered at closing. This document states that at the time of closing, the appellant was to receive a credit of $600,000. In the appellant’s submission, this reinforces her position that the second $300,000 payment was owed to her unconditionally. [17] We are not persuaded by the appellant’s submission. The motion judge stated, at para. 16 of her reasons: The APS was amended twice to extend the closing date for the completion of the sale. Those amendments, one signed December 14, 2018, and one signed April 9, 2019, provided for extensions of the closing date, and payment of additional costs by the plaintiff to the defendant. Those included non-refundable deposits and sums to be credited towards the payment of the “consulting fee of $600,000”. [18] Whether the motion judge referred explicitly to the Statement of Adjustments or not, her reasons

indicate that she was alive to the language in the various agreements that $600,000 was to be credited to the appellant. [19] We do not find support for the submission that the motion judge ignored the appellant’s evidence. The motion judge refers explicitly to the appellant’s evidence with respect to the alleged forbearance agreement at several points throughout her reasons, but in the end, she was not persuaded that there was any ambiguity in the terms of the Agreement. The motion judge stated at para. 54: Although the defendant characterizes the mortgage as a “forbearance agreement” meaning that she consented to delay enforcing the debt owed, the plain words of the agreement suggest that it was security for payment upon the contingent event occurring, that is that the cultivation licence being obtained by the plaintiff. While the motion judge did not refer to every piece of evidence tendered by the appellant, we see no palpable and overriding error in her interpretation of the written documents tendered at trial. [20] For these reasons, the appeal is dismissed with costs of the appeal payable to 260 in the amount of $6,000, all-inclusive. “Thorburn J.A.” “S. Coroza J.A.” “S. Gomery J.A.” [1] The appellant also advanced a ground of appeal relating to whether it was appropriate for the motion judge to grant summary judgment, given the conflicting evidence. This argument was not pressed in oral argument. In any event, we see no merit to the submission. The appellant in the court below agreed that summary judgment was an appropriate manner to deal with the dispute and we do not find otherwise.