Graham v. Sable Developments Inc., 2019 BCSC 1157

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Graham v. Sable Developments Inc., 2019 BCSC 1157 Date: 20190716 Docket: 17958 Registry: Salmon Arm Between: Judy Graham, Stephen Seelinger, Kelly Bunnah and 1271487 Alberta Ltd. Plaintiffs And Sable Developments Inc. Defendant Before: The Honourable Mr. Justice Marchand Reasons for Judgment Counsel for the Plaintiffs: R.A. Chorneyko Counsel for the Defendant: S.M. Kelly Place and Date of Trial/Hearing: Kamloops, B.C. June 25, 2019 Place and Date of Judgment: Kamloops, B.C.

July 16, 2019 Introduction [ 1 ] Judy Graham and Stephen Seelinger are common law partners who own and live at #309 – 326 Mara Lake Lane in Sicamous, in a strata development known as Legacy on Mara Lake (“Legacy”). Ms. Graham’s son, Kelly Bunnah, owns and lives at #509. [ 2 ] A predecessor to Sable Developments Inc. (“Sable”) developed Legacy and sold unit #309 to 1271487 Alberta Ltd. (“127 Ltd.”) and unit #509 to Mr. Bunnah in 2013. 127 Ltd. is a holding company owned by Ms. Graham and Mr. Seelinger. 127 Ltd. purchased unit #309 for tax planning purposes. In 2014, Ms. Graham and Mr.

Seelinger learned that the tax advice they had received was faulty and, at the expense of their tax advisor, 127 Ltd. transferred unit #309 to Ms. Graham and Mr. Seelinger. [ 3 ] The plaintiffs allege that they were induced to purchase units #309 and #509 by the promise that they could use four additional parking stalls until the developer had completed “Phase 2” of its development. The plaintiffs did in fact use the additional parking stalls with no issue until 2018.

At that time, Sable demanded that the plaintiffs vacate the additional parking stalls, even though Phase 2 had not been started, never mind completed. The plaintiffs have brought this action to enforce what they characterize as a collateral parking licence agreement. [ 4 ] Relying on an “Entire Agreement” clause within the contracts of purchase and sale, Sable says there was no enforceable collateral agreement regarding additional parking stalls.

Sable submits that it has gratuitously allowed the plaintiffs to use four additional parking stalls in accordance with the terms of a letter sent by the developer to the plaintiffs after they entered into the contracts of purchase and sale. Sable says the plaintiffs no longer have any right to use the additional parking stalls and seeks to have the plaintiffs’ claim dismissed. [ 5 ] The matter has come before me by way of

summary trial. Preliminary Issues [ 6 ] Sable objects to the admissibility of an affidavit provided by a legal assistant from the office of counsel for the plaintiffs, which attaches a copy of an internal email between two employees of the developer dated March 5, 2013. Sable submits that the affidavit was late and should not be introduced into evidence through the affidavit of a legal assistant without any context. [ 7 ] Despite its late service, I admit the affidavit and attached email. The email came from Sable’s documents and speaks for itself. It does not require context to be understood. In my view, admission of the email merely closes the loop on what transpired and causes no

prejudice to Sable. Coming as it did, after the negotiations between the plaintiffs and the developer concerning the additional parking stalls had concluded, admission of the email does not alter the outcome of the case. [ 8 ] Sable also objects to a Reply filed by the plaintiffs seeking alternative relief. As will be seen, I am granting the primary relief sought by the plaintiffs so there is no need for me to consider the appropriateness of their Reply. Background [ 9 ] The background is not in serious dispute. [ 10 ] In February 2013, Mr.

Seelinger entered negotiations with the developer for the purchase of two condominium units within Legacy, one for Mr. Seelinger and Ms. Graham, and the other for Mr. Bunnah. In due course, the developer agreed to sell unit #309 to 127 Ltd. for $410,000 and unit #509 to Mr. Bunnah for $250,000. The price included two parking stalls for each of the units. [ 11 ] Parking was very important to the plaintiffs. They were concerned that the two stalls associated with each unit would be inadequate for their needs and hoped to secure additional parking as part of their purchases.

As a result, they had a number of communications with the developer’s Sales Director, Kevin Blackwell. [ 12 ] The uncontested evidence is that Mr. Blackwell explained to Mr. Seelinger that “Phase 1” of the development had created parking stalls over and above what was required for purchasers within Phase 1. Mr. Blackwell further explained that these extra parking stalls were intended for purchasers within Phase 2. Until Phase 2 was built, Mr. Blackwell explained that the extra parking stalls were the property of the developer to deal with as it wished. On behalf of the plaintiffs, Mr.

Seelinger endeavoured to secure the use of additional parking stalls until Phase 2 was complete. [ 13 ] On February 19, 2013 at 9:47 a.m., Mr. Seelinger emailed proposals to purchase units #309 and #509 to Mr. Blackwell. One of the terms proposed by Mr. Seelinger with respect to each unit provided as follows: Two extra parking stalls (one per level) done as a separate agreement with developer, rent to be $1 per unit per month until phase #2 of project completed, with option to purchase for 25% of build value (Build value $25,000) if phase #2 does not move forward. [ 14 ] At 2:54 that afternoon, Mr.

Blackwell responded “No” with respect to Mr. Seelinger’s proposals regarding extra parking stalls. Instead, Mr. Blackwell offered the following: Extra Parking Stall - … We can lend you 2 stalls at no cost until Phase 2. We can’t offer any future contracts for possible sales of these extra parking stalls, as they belong to Phase 2 only. [ 15 ] On February 20, 2013, Mr. Seelinger replied to Mr. Blackwell on behalf of the plaintiffs offering to purchase unit #309 for $410,000 and unit #509 for $250,000. With respect to the extra parking for each unit, Mr.

Seelinger wrote: Parking – one extra stall on both p1 and p2 to be loaned as discussed for 2 [years], with some sort of agreement that if phase #2 const is delayed or canceled that the extra [stalls] on loan could be retained until const of phase #2 is complete. [ 16 ] On February 21, 2013, Mr. Blackwell replied to Mr. Seelinger and Mr. Bunnah that the developer was in agreement with the purchase prices and various other terms. With respect to the extra parking stalls, Mr. Blackwell wrote: Extra Parking 4 Stalls total (2 per unit) will be rented to units 309 + 509 for a 2 year term at no cost.

At the end of 2 years if parking stalls are not required by developer then agreement will be continued to be rented for future. This will be a letter signed by developer and sent to you during the condition period. [ 17 ] On February 22, 2013 at 8:31 a.m., Mr. Seelinger emailed Mr. Blackwell to “clarify the terms of the sale for both Units.” With respect to extra parking for each unit, Mr.

Seelinger wrote: Two Extra parking stalls… to be loaned from Developer for a 2 year period minimum as a separate agreement to purchase [of each] unit, with the added agreement that until the loaned stalls have to be placed on Title with completion of Construction of Phase 2 of the Legacy, they will continue to be loaned to the Owner [of each unit]. [ 18 ] At 9:20 a.m. that morning, Mr. Blackwell replied: Yes the terms listed [in Mr. Seelinger’s email] are as we discussed and agreed to. The Parking wording will come from the developer in a letter but that is the basis.

They are already on title for phase 2, so that wording doesn’t [necessarily] work, but will come up with something. [ 19 ] In subsequent emails, various other details of the purchases were tidied up, including that 127 Ltd. would be the purchaser of unit #309. [ 20 ] Mr. Seelinger’s uncontested evidence is that the “acquisition of the [additional] parking stalls was… a crucial factor” in the plaintiffs’ decision to purchase the condominium units. [ 21 ] On March 5, 2013, the developer formally accepted offers from 127 Ltd. and Mr. Bunnah to purchase units #309 and #509 for $410,000 and $250,000 respectively.

The contracts of purchase and sale indicated that each purchase included one boat slip, two parking stalls and one storage locker and were subject to typical conditions for the benefit of the purchasers. The conditions with respect to Mr.

Bunnah’s purchase of unit #509 were to be waived or fulfilled by March 15, 2013. The conditions with respect 127 Ltd.’s purchase of unit #309 were to be waived or fulfilled by April 12, 2013. [ 22 ] The contracts of purchase and sale were silent with respect to the extra parking stalls but did include “Entire Agreement” clauses that provided as follows: Entire Agreement/Representations.

The Purchaser acknowledges and agrees that this Agreement constitutes the entire agreement between the parties with respect to the sale and purchase of the Strata Lot and supersedes any prior agreements, negotiations or discussions, whether oral or written, of the Vendor and Purchaser, and that there are no representations, warranties, conditions, or collateral contracts, express or implied, statutory or otherwise, or applicable hereto, made by the Vendor, its agents or employees, or any other person on behalf of the Vendor, other than those contained herein and in the Disclosure Statement, including, without limitation, arising out of any sales brochures, models, websites, representative view sets, showroom displays, photographs, illustrations or renderings or other marketing materials, specifications, details, dimensions and floor plans set out in any materials viewed by the Purchaser or made available for his viewing.

In particular, the Purchaser acknowledges and agrees that the materials, specifications, details, dimensions and floorplans set out in any materials viewed by the Purchaser are approximate and subject to change without notice in order to comply with building site conditions and municipal, structural and Vendor and/or architectural requirements. [ 23 ] Also on March 5, 2013, Mr. Blackwell emailed the General Manager of the developer, Mary Jo Kryczka, regarding “Parking Stall Letters” as follows: Hi Mary Jo Here is the

summary of the parking. For both units 309 + 509. 1 Parking Stall on Level 1… and 1 Parking Stall on Level 2… 2 Year agreement at no charge to rent the stalls. After 2 Years the agreement will be renewed on a quarterly basis until such time as Developer needs the stalls for Phase 2. Let me know if there [are] any questions. [ 24 ] The President of the developer, Sam Boguslavsky, signed identical letters regarding additional parking stalls addressed to 127 Ltd. and to Mr. Bunnah on March 14 and 15, 2013 respectively.

These letters provided as follows: Please accept this letter as written confirmation that upon closing… the Purchaser will be granted the temporary use of Two (2) additional underground parking stalls. The Purchaser shall be provided with the exclusive use of [two identified parking stalls]… for a period of Two (2) years beginning on the Closing Date. At the end of the two year period, provided the Developer does not require the use of the stalls the Developer shall notify the Purchaser in writing and this agreement shall be renewed on a quarterly basis.

As no monies are being exchanged for the temporary use of the Two (2) stalls…, there is no financial compensation owing to either the Developer or the Purchaser in conjunction with this agreement. This agreement is exclusive to the Purchaser as named above and is for his sole and exclusive use only so long as he is the owner of [identified unit]. This agreement is non-transferable. [Emphasis in original.] [ 25 ] Though Mr.

Boguslavsky gave evidence in cross-examination on his affidavit that the usual practice would have been for the letters addressed to the plaintiffs to have been sent at the time they were signed, the uncontested evidence is that the plaintiffs did not receive the letters until later. The plaintiffs received the letter addressed to Mr. Bunnah on March 18, 2013, three days after he was required to waive or fulfill the conditions for his benefit in the contract of purchase and sale with respect to unit #509.

The plaintiffs received the letter addressed to 127 Ltd. on an unspecified date after 127 Ltd. was required to waive or fulfill the conditions for its benefit in the contract of purchase and sale with respect to unit #309. [ 26 ] The sale of unit #509 to Mr. Bunnah appears to have completed on March 27, 2013. The sale of unit #309 to 127 Ltd. appears to have completed on June 14, 2013. [ 27 ] Mr. Seelinger was concerned that the letters regarding the additional parking stalls derogated from his understanding of the agreement he had reached with Mr. Blackwell. At some point, Mr. Seelinger contacted Mr.

Boguslavsky to suggest a meeting to discuss and clarify the contents of the letters. That meeting did not occur until July 2013. [ 28 ] At the July 2013 meeting, Mr. Seelinger raised the issue of what Mr. Boguslavsky meant when he wrote that after two years the plaintiffs could continue to use the additional parking stalls “provided the Developer does not require use of the stalls”. The uncontested evidence is that Mr. Boguslavsky told him that meant when they were required for Phase 2, when it was completed. When Mr. Seelinger raised the issue of quarterly renewals after the first two years, Mr.

Boguslavsky reassured Mr. Seelinger that was just a formality and that the developer did not really intend to send any quarterly notices. Mr. Boguslavsky told Mr. Seelinger that he had no reason to be concerned about the parking stalls moving forward.

[29] Nothing much happened with respect to the plaintiffs’ use of the extra parking stalls for several years. The only events ofconsequence involved 127 Ltd. transferring ownership of unit #309 to Mr. Seelinger and Ms. Graham and the developer beingamalgamated into Sable. Mr. Seelinger and Ms. Graham did not seek the permission of the developer or Sable to transfer the benefit ofthe additional parking stalls from 127 Ltd. to themselves personally.

None of the parties took any steps to “renew” the parkingarrangements after the first two years. [30] The developer made somewhat similar arrangements with other purchasers for additional parking stalls. In the summer of 2018,Sable gave notice to all unit owners with “expired temporary parking arrangements” to vacate their additional parking stalls. All of theowners, except the plaintiffs, have complied with Sable’s request to stop using their additional parking stalls. Suitability for

Summary Trial [31] I agree with the parties that this case is suitable for

summary trial. There is no serious dispute on the facts and the

summary trialprocedure is appropriate and proportionate for this type of case. Legal Principles [32] The parties referred me to three authorities, Balfour v. StormCloud Network (Canada) Incorporated, 2015 BCSC 1232 (BalfourBCSC), Balfour v. Tarasenko, 2016 BCCA 438 (Balfour BCCA) and Zippy Print Enterprises Ltd. v. Pawliuk (1994), (BC CA), 100 B.C.L.R. (2d) 55 (C.A.). [33] In Balfour BCCA at paras. 44-46, the Court of Appeal succinctly summarized the basic principles of contract law.

The Courtheld: [44] A contract involves an exchange of promises, acts, or acts and promises, as a result of which each party receives something ofvalue from the other. The promises are reciprocal undertakings as to the future conduct of the promisors. . A promise based solely on apast act or obligation is simply gratuitous, and not binding in nature. In order to create an enforceable bargain, a promise must besupported by new consideration: see G.H.L.

Fridman, The Law of Contract in Canada, 6th ed. (Toronto: Thomson Carswell, 2011), at 3-5, 82-85, 108. [45] In The Law of Contract in Canada, Professor Fridman explained the modern meaning of consideration. In doing so, he noted,with approval, the definition expressed by Barry C.J. in Robertson v.

Robertson (1933), (NB CA), 6 M.P.R. 370 at 389(N.B.C.A.): The principal requisite and that which is the essence of every consideration, is that it should create some benefit to the party promising orsome trouble, prejudice or inconvenience to the party to whom the promise is made. [46] A binding contract may be evidenced in writing, orally, by conduct or by a combination thereof. When reduced to writing,subject to certain exceptions, extrinsic evidence is not admissible to add to, subtract from, vary or contradict its terms.

While in principlea related but independent oral collateral agreement may also be concluded, such agreements are rare and an intention to create bindinglegal relations must be proved strictly. In addition, and importantly, to be enforceable an alleged collateral contract cannot stand if itclearly contradicts the terms of the written agreement: Hawrish v. Bank of Montreal, (SCC), [1969] S.C.R. 515. [34] Oral extrinsic evidence is also known as “parol evidence”. . The general rule is that oral extrinsic evidence is not admissible toadd to, subtract from, vary or contradict a written contract.

This is known as the “parol evidence rule”: Balfour BCSC at para. 26, aff’dBalfour BCCA. [35] With respect to the

interpretation of contracts, the Court in Balfour BCCA adopted the following passage from Athwal v. BlackTop Cabs Ltd., 2012 BCCA 107 at paras. 42-43: [42] The contractual intent of parties to a written contract is objectively determined by construing the plain and ordinary meaning ofthe words of the contract in the context of the contract as a whole and the surrounding circumstances (or factual matrix) that existed atthe time the contract was made, unless to do so would result in an absurdity. Where the language of a contract is not ambiguous (that is,when viewed objectively it raises only one reasonable

interpretation), the words of the written contract are presumed to reflect theparties’ intention. An

interpretation that renders one or more of the contract’s provisions ineffective will be rejected. [43] Extrinsic evidence to explain the meaning of an unambiguous contractual provision is not admissible. Evidence of a party’ssubjective intention in executing the contract, or of their understanding of the meaning of the words used in the contract, is not admissibleto vary, modify, add to or contradict the express words of the written contract. This is particularly so where a contract contains an “entireagreement” clause.

As was noted by the authors of Cheshire, Fifoot and Furmston’s Law of Contract, 13th ed. (London, UK:Butterworths, 1996) at p. 127, “the court is usually concerned not with the parties’ actual intentions but with their manifested intention.” [36] In Zippy Print Enterprises Ltd. v. Pawliuk (1994), (BC CA), 100 B.C.L.R. (2d) 55 (C.A.), the Court ofAppeal explored whether a general exclusion clause in a standard form contract overrode a pre-contractual oral representation thatinduced a party to enter the contract.

While recognizing that a properly framed exclusion clause could limit liability flowing from amisrepresentation, that was not always so. At paras. 41-42, the Court held: [41] In short, apart from the application of an exclusion clause, a commercial enterprise cannot make an intentional oralrepresentation designed to persuade a customer or other party to enter into a standard form contract of adhesion and then, by invoking theParol Evidence Rule, rely on the fact that the contract is in writing to escape liability flowing from the fact that the representation isuntrue.

In those circumstances the oral representation will be regarded as forming an essential element in the relations between the

parties, either on the basis that the written contract document was not intended to form the entire agreement between the parties (the onecontract theory), or, alternatively, on the basis that the oral representation, when it was acted upon by the person to whom it was madeentering into the written contract, became a separate or collateral contract on which liability may be founded (the two contract theory). [42] Of course, on either theory, liability for the damages flowing from the falsity of the representation can be excluded by a properlyframed exclusion clause which both parties have considered and which both parties intend should limit liability flowing from therepresentation.

But if the exclusion clause is part of a standard form contract of adhesion it will not operate to exclude liability in contractin the face of an explicit representation which induced the making of the contract. In those circumstances the more specific term, namelythe explicit representation, will prevail. For examples of cases where the general exclusion clause, excluding representations and liabilityarising from representations, has given way before the specific representations that were intended to induce the making of the contract,see, in England, Esso v. Mardon (C.A.), Evans v.

Merzario (C.A.), Dick Bentley Productions Ltd. v. Harold Smith (Motors) Ltd. (C.A.)and, in Canada, Sperry Rand Canada Ltd. v. Thomas Equipment Ltd. (N.B.C.A.), Roberts v. Montex Development Corp., (BC SC), [1979] 4 W.W.R. 306 (B.C.S.C.), and particulary Betker v. Williams (1992), (BC CA), 63 B.C.L.R.(2d) 14 (B.C.C.A.). [37] In Grewal v. Grewal, 2017 BCSC 573, Fleming J. reviewed the law on collateral contracts and entire agreement clauses atparas. 36-50.

At para. 49, Fleming J. concluded as follows: [49] Considered together, the authorities establish the effect of an entire agreement clause on an oral collateral agreement dependsprimarily on the parties' reasonable intentions. The court determines whether they objectively intended the entire agreement clause toapply to a collateral agreement with reference to the factual matrix.

Important factors are the sophistication of the parties, whether theterms of the written agreement were negotiated with the benefit of legal advice, the words used in the entire agreement clause andperhaps the extent to which the collateral agreement induced one party to enter into the main agreement. [38] Though Balfour and Grewal dealt with oral collateral agreements, and Zippy Print dealt with oral representations and anexclusion clause, in my view, the principles expressed in these cases apply equally to written collateral agreements and entire agreementclauses. [39] The topic of implied contractual terms also came up during the parties’ submissions.

Though the parties did not refer me to anyauthority on the point, the Court in Athwal summarized the principles at para. 48: [48] There is a presumption against adding an unexpressed term to a contract by implication unless: (

i) it is necessary to do so in orderto give the contract business efficacy (this does not include a test of reasonableness for the contract); (ii) to correct an obvious oversightfor which there is “no dispute” that the parties intended to include such a term in the contract (i.e. the implied term “goes withoutsaying”); (iii) the term can be clearly and precisely formulated; and (iv) the term will not conflict or be inconsistent with an express termof the contract.

However, a term of a contract may only be implied where it is necessary to give legal effect to the parties’ presumedintention, as expressed in the contract, and to give business efficacy to the contract. The onus is on the party seeking to establish animplied term of a contract. See Perin v. Shortreed Joint Venture Ltd., 2009 BCCA 478 at para. 27. Analysis [40] The main issue in this case is whether the “Entire Agreement” clauses in the standard form contracts of purchase and saleentered by the plaintiffs override the separate agreement the parties reached regarding additional parking.

In my view, they do not. [41] The objective of the Entire Agreement clauses is plain. It is to protect the developer and provide certainty to the parties aboutthe terms of the contracts of purchase and sale. The clauses specifically state that the written contracts of purchase and sale “supersedeany prior agreements… whether written or oral” and that there are “no… collateral contracts… other than those contained herein”.

Thenon-exhaustive list of examples of matters that do not form part of the contracts make clear that typical pre-contractual exchangesbetween the developer and the plaintiffs did not form part of the contracts. The pre-contractual agreement of the parties with respect toadditional parking stalls was, however, atypical. [42] The developer induced the plaintiffs into parting with $660,000 to purchase two condominium units, in part, by the promise toprovide two additional parking stalls for each of the two units. Mr.

Seelinger’s pre-contractual pre-occupation with additional parkingdemonstrates that the inducement was an important, if not critical, factor in the plaintiffs’ decision to purchase their units. A classiccollateral contract was formed. [43] While the exact wording of the collateral contract was not completely buttoned down, the terms were plain enough. If theplaintiffs purchased two units, the developer would provide the plaintiffs with two additional parking stalls for each unit for a minimumof two years until the completion of Phase 2. As Mr. Blackwell said to Mr.

Seelinger in his email of February 22, 2013, “that is thebasis”. Mr. Seelinger referred to this as a “separate agreement” and Mr. Blackwell agreed. [44] Though Mr. Seelinger holds himself out as a person with considerable business experience, the Entire Agreement clauses werein a standard form that the plaintiffs had essentially no ability to negotiate. There is no suggestion that either the developer or theplaintiffs set their minds to the terms of the Entire Agreement clauses. In fact, there is no suggestion that the plaintiffs’ attention waseven drawn to these clauses.

Further, given the nature, number, specificity and importance of the written communications between Mr.Seelinger and Mr. Blackwell, there can be no serious dispute that the parties intended that the terms of the Entire Agreement clauseswould limit the developer’s liability to live up to its separate agreement with the plaintiffs regarding the additional parking stalls. [45] Viewed objectively, the parties’ intentions were clear. They intended to be bound by the terms of the collateral parkingagreement in spite of the wording that might suggest otherwise in the Entire Agreement clauses.

On the authority of Zippy Print, themore specific agreement with respect to the additional parking stalls must prevail.

[ 46 ] Though the parties’ conduct following the formation of the collateral parking agreement cannot be relied on to determine their contractual intent, I take comfort from the fact that their post-collateral contract conduct demonstrates their understanding that they were bound by the separate agreement regarding additional parking stalls. [ 47 ] After the plaintiffs had committed to their purchases, Mr. Boguslavsky provided letters to them outlining their right to use the additional parking stalls. In the letters, Mr. Boguslavsky correctly characterized the arrangement as an “agreement”.

There was nothing “gratuitous” about it. [ 48 ] When Mr. Boguslavsky purported to unilaterally change the terms of the additional parking agreement by way of the letters, Mr. Seelinger called him on it. Mr. Boguslavsky responded by reassuring Mr. Seelinger that the developer would in fact live up to the terms of the original agreement – and for five years, that is exactly what the developer did. “Renewals” were never part of the additional parking agreement and, as Mr. Boguslavsky reassured Mr. Seelinger, no renewal agreements were ever sent by the developer or Sable.

Phase 2 was not completed and the plaintiffs continued to use their additional parking stalls. [ 49 ] With respect to unit #309, Sable submits that its agreement with 127 Ltd. ended when 127 Ltd. transferred unit #309 to Mr. Seelinger and Ms. Graham personally in 2014. I do not agree. [ 50 ] Despite the statement in Mr. Boguslavsky’s letters of March 14 and 15, 2013 that “the Agreement is not transferable”, the original and enforceable collateral agreement Mr. Seelinger reached with Mr. Blackwell regarding additional parking stalls is silent with respect to transferability.

In these circumstances, Sable submits that the additional parking agreement was only with 127 Ltd. and now that 127 Ltd. no longer owns unit #309, the additional parking agreement is at an end. The plaintiffs submit that, if anything, 127 Ltd. continues to enjoy the benefit of the additional parking agreement and exercises that benefit by allowing Mr. Seelinger and Ms. Graham to use the additional parking. [ 51 ] The positions of both sides to the dispute require the court to imply an unexpressed term into the contract.

Sable would have the court imply a term that, without further agreement, the contractual right of 127 Ltd. to use the additional parking stalls continues only so long as 127 Ltd. owns unit #309. The plaintiffs would have the court imply a term that 127 Ltd. could use the additional parking stalls, however it sees fit, until the completion of Phase 2 – even if 127 Ltd. no longer owns unit #309. Both positions are problematic. With the developer’s implied term, in the event of a transfer of unit #309 from 127 Ltd. to Mr. Seelinger and Ms.

Graham, the very people intended to benefit from the additional parking agreement would lose that benefit. With the plaintiffs’ implied term, the developer would lose all control of the additional parking stalls until the completion of Phase 2. [ 52 ] It is obviously necessary to imply a transferability term to give the contract business efficacy. The question is what term to imply.

In my view, neither of the terms advanced by the parties fits the bill. [ 53 ] Though 127 Ltd. was the purchaser of unit #309, the objective of the additional parking agreement was to allow the intended human occupiers of the unit, namely Mr. Seelinger and Ms. Graham, to use the additional parking stalls until the completion of Phase 2. Had the parties foreseen what has actually transpired with respect to the ownership of unit #309 and set their minds to transferability, there can be no serious dispute about what would have happened. They would have agreed that, on a transfer of the unit from 127 Ltd. to Mr.

Seelinger and Ms. Graham, Mr. Seelinger and Ms. Graham could continue to use the additional parking stalls until the completion of Phase 2. This term is precise and not inconsistent with the terms of the additional parking agreement. Conclusion and Order [ 54 ] In the result, I grant judgment in favour of Mr. Seelinger, Ms. Graham and Mr. Bunnah. The additional parking agreement remains in full force and effect and they have the exclusive right to make use of the additional parking stalls until the completion of Phase 2 for so long as they own and occupy units #309 and #509. [ 55 ] Mr. Seelinger, Ms.

Graham and Mr. Bunnah shall also have their costs. “L.S. Marchand J.” MARCHAND J.