O'Brien v. McNabb

O'Brien v. McNabb

The motions judge erred by characterizing and deciding a factual issue (whether a condition precedent was fulfilled within a reasonable time) as a question of law and by exceeding the narrow scope of the partial summary judgment motions; because that factual issue constituted a genuine issue for trial, the summary judgments were set aside and the actions were ordered to proceed to trial.

Citation
C33946, C33956
Parties
Plaintiff/appellant: John O'Brien; Plaintiff/appellant: Constance O'Brien; Plaintiff/appellant: Tony Petty; Plaintiff/appellant: Barbara Petty; Plaintiff/appellant: Gaetanne Claire Guillemette; Defendant/respondent: Donald Dennis McNabb; Defendant/respondent: Bank of Nova Scotia; Defendant/respondent: Stanley Michael Malouf
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
17 August 2000
Procedural Posture
Civil Appeal From Summary Judgment / Court of Appeal Decision on Motions for Summary Judgment, Appeal Allowed and Remitted to Trial
Outcome
Appeal allowed; judgments of Kozak J. set aside; actions remitted to trial; costs in the cause.
Legal Topics
Summary Judgment, Condition Precedent, Equitable Interest, Planning Act S.50, Reasonable Time, Partial Summary Judgment
Source Language
English
Property Law Civil Procedure Planning Law Equity Summary Judgment Condition Precedent Equitable Interest Planning Act S.50 +2 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 3 Authorities cited 3 Party arguments 2
Sign in to unlock

Parties

John O'Brien

Plaintiff/appellant

Constance O'Brien

Plaintiff/appellant

Tony Petty

Plaintiff/appellant

Barbara Petty

Plaintiff/appellant

Gaetanne Claire Guillemette

Plaintiff/appellant

Donald Dennis McNabb

Defendant/respondent

Bank of Nova Scotia

Defendant/respondent

Stanley Michael Malouf

Defendant/respondent

Procedural Posture

Civil Appeal From Summary Judgment / Court of Appeal Decision on Motions for Summary Judgment, Appeal Allowed and Remitted to Trial

Legal Issues

  1. 1 Whether the fulfillment of the condition precedent within a reasonable time is a question of law or fact
  2. 2 Whether the agreements of purchase and sale created a valid equitable interest in land or violated s.50 of the Planning Act and were therefore void
  3. 3 Whether the motions judge exceeded the scope of the partial summary judgment motions by deciding factual issues

Ratio Decidendi

The motions judge erred by characterizing and deciding a factual issue (whether a condition precedent was fulfilled within a reasonable time) as a question of law and by exceeding the narrow scope of the partial summary judgment motions; because that factual issue constituted a genuine issue for trial, the summary judgments were set aside and the actions were ordered to proceed to trial.

Court Disposition

Appeal allowed; judgments of Kozak J. set aside; actions remitted to trial; costs in the cause.

Orders

  • Judgments of Kozak J. set aside.
  • Each action is to proceed to trial.