Smith et al. v. Tellier et al.

Smith et al. v. Tellier et al.

Where a court grants a s.62 order discharging building restrictions and those served do not appear or object so that there is no realistic prospect of an appeal, the order is sufficiently final in context to satisfy a purchaser's requisition on title at closing; purchasers are not justified in refusing to close on the sole ground that the appeal period had not yet expired.

Citation
[1976] 2 SCR 255
Parties
Vendors Plaintiffs Appellants: Charles Raymond Smith and Eileen Theresa Smith; Purchasers Defendants Respondents: James Tellier and Sandra Tellier
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
13 November 1975
Procedural Posture
Civil Appeal (sale of Land) / On Appeal to the Supreme Court of Canada From the Court of Appeal for Ontario
Outcome
Appeal allowed; order of Ontario Court of Appeal set aside; judgment of Keith J. restored; appellants awarded costs.
Legal Topics
Requisition on Title, Building Restrictions, Appeal Period and Finality of Orders, Section 62 Conveyancing and Law of Property Act R.s.o. 1970 C.85, Closing Obligations, Vendor Remedies (damages)
Source Language
English
Property Law Conveyancing Civil Procedure Contract Law (sale of Land) Requisition on Title Building Restrictions Appeal Period and Finality of Orders Section 62 Conveyancing and Law of Property Act R.s.o. 1970 C.85 +2 more

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Parties

Charles Raymond Smith and Eileen Theresa Smith

Vendors Plaintiffs Appellants

James Tellier and Sandra Tellier

Purchasers Defendants Respondents

Procedural Posture

Civil Appeal (sale of Land) / On Appeal to the Supreme Court of Canada From the Court of Appeal for Ontario

Legal Issues

  1. 1 Whether a s.62 order discharging registered building restrictions obtained before closing but with the appeal period unexpired satisfied the purchasers' requisition on title at closing
  2. 2 Whether an order subject to appeal can be treated as sufficiently final in context where there was no realistic prospect of appeal
  3. 3 Whether purchasers were justified in refusing to close absent proof that appeal period had run or undertakings not to appeal

Ratio Decidendi

Where a court grants a s.62 order discharging building restrictions and those served do not appear or object so that there is no realistic prospect of an appeal, the order is sufficiently final in context to satisfy a purchaser's requisition on title at closing; purchasers are not justified in refusing to close on the sole ground that the appeal period had not yet expired.

Court Disposition

Appeal allowed; order of Ontario Court of Appeal set aside; judgment of Keith J. restored; appellants awarded costs.

Orders

  • Appeal allowed
  • Order of the Ontario Court of Appeal set aside