) ) JOANNE PERRY, EXECUTOR v. TRUSTEE UNDER THE LAST WILL AND, 2013 ONSC 4610

CITATION : Joanne Perry, Executor and Trustee under the Last Will and Testament of Garnet Perry, deceased, and Joanne Perry v. Luc Cholette, 2013 ONSC 4610 COURT FILE NO.: 09-1118 DATE: 2013/07/10 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) JOANNE PERRY, EXECUTOR AND TRUSTEE UNDER THE LAST WILL AND TESTAMENT OF GARNET PERRY, DECEASED, AND JOANNE PERRY Plaintiff – and – LUC CHOLETTE Defendant ) ) ) ) ) ) ) ) ) Craig M. Bater, for the Plaintiff Judith Wilcox, for the Defendant ) ) ) HEARD: June 17, 18 and 19, 2013 LEROY, J.

REASONS FOR decision [ 1 ] The plaintiffs claim damages against the defendant for the breach of a written contract to purchase their small yacht, dated July 11, 2006. The issue is that of deciding what Garnet Perry and Luc Cholette agreed to do with this agreement on or about May 5, 2007, the scheduled closing date. The analysis involves a search for corroborative evidence that supports the inferences sought by the parties.

Background [ 2 ] Desperation and opportunity brought Luc Cholette into the Perry business orbit in 2006. [ 3 ] Garnet Perry was the sole shareholder of Formax Plastics Limited (Formax) and was desperate. I assume but do not know that he enjoyed some financial success over the years. Title to the family home, registered to Joanne Perry, was clear of encumbrance and there were registered savings. Unfortunately, by the year 2006 the business was in distress. Mr.

Perry was sixty-nine years of age; the corporate owner’s equity was spent; the corporation was trying to carry debt in the range of one million dollars; expenses exceeded revenue; and Mr. Perry was drawing on personal savings to operate. [ 4 ] Mrs. Perry, however thought they were financially secure. She said that they bought and sold three boats over the years. The last acquisition was a thirty-eight foot yacht purchased new in 2001 for $465,000.00, largely financed.

She said they decided in early 2006, prior to the signing of the impugned contract, to abandon boating as their primary recreational pursuit and engage in activities associated with a recreational vehicle (RV). They acquired a high end RV, largely financed in 2006 and Mrs. Perry said they acquired a new car for her use in the same time period. [ 5 ] Joanne Perry was insulated from the fact of and the consequences of the business failure. Mrs. Perry seldom, if ever, ventured into Formax premises. Mr. Perry did not burden his spouse with the stresses of operating a failing small business and was alone with them.

He urgently needed help. [ 6 ] Enter investment banker, Brian Edwardson. His review of the corporate records revealed the full extent of the financial distress. His areas of expertise included effective work out of creditor arrangements, refinancing and business method. He also knew the defendant, Luc Cholette, a successful local businessman who was interested in the challenge and risk/reward associated with salvaging a distressed business. [ 7 ] Edwardson and Cholette agreed to attempt a business renaissance with Mr. Perry. They presented as Mr. Perry’s opportunity to salvage the business and his achievements.

In return for part-time services and advice, Edwardson was assigned fifteen percent of the common shares of Formax. In return for his energy, full time services and skill set, Cholette was assigned forty-five percent of the common shares and appointed company president. Mr. Perry retained forty percent of the shares. In 2006, when this arrangement was made, the value of the common shares of the company was nominal.

[ 8 ] Messrs. Cholette and Perry began working together. It seemed to be a good fit. It happened that Mr. Cholette was interested in buying a pleasure boat at the time. No doubt Mr. Perry would have mentioned that he and Mrs. Perry owned the yacht, that it was listed for sale and might be a good fit for Mr. Cholette. [ 9 ] Mr. Perry was eager to emancipate his bank account from the cost of servicing the yacht expenses. He may have listed it with a broker for sale, however it was in the water and debt service and marina expenses had to be paid.

The Written Agreement [ 10 ] They agreed to the sale price, interim possession and terms and the closing date. They settled on a selling price of $230,000. Mr. Cholette agreed to immediate possession and to a net net lease arrangement at the rate of $1,500 per month pending closing. They targeted May 5, 2007 as the closing date. They were inclined to seal the deal by handshake. Mr. Edwardson recommended a written agreement and cobbled together the document that is at the centre of this litigation. In that respect the written agreement was an afterthought. Messrs.

Perry and Cholette signed the agreement on July 11, 2006. Mr. Perry took the document home for Mrs. Perry’s signature. That was the extent of Mrs. Perry’s involvement in the transactions at the time. [ 11 ] The plaintiff submits that Mr. Edwardson drafted the written agreement for the defendant’s benefit and that I should apply contra proferentum to its

interpretation. The evidence is that Mr. Edwardson thought the preferred prudent practice would be to document the terms of the agreement in writing. He and Mr. Cholette concurred with the premise that Mr. Perry had equal involvement in the drafting and settling of terms of agreement. There is no evidence to the contrary. [ 12 ] Although the Purchase agreement is attached to the Lease agreement as a

schedule there is no dispute between the parties that the purport of the agreement was the intended transfer. The lease was for a fixed term, namely July 5, 2006 to May 5, 2007 or closing. Little turns on the reason for the ten-month delay in closing, whether it was related to Mr. Cholette’s cash flow or Mr. Perry’s objective of circumventing sales commission or both. [ 13 ] These documents illustrate the benefits of professional legal services. Mr. Edwardson is not legally trained. He pulled these documents from his precedent files and inputted modifications without knowing the import.

I accept that his goal was no more than to document the fact of a deal. He did not intend to craft an all-encompassing final word contract. He is unfamiliar with the term “time of essence”. Paragraphs 2 and 3 of the lease agreement are in direct conflict. Either the words in paragraph 2 “or upon the completion of the acquisition of the subject sport yacht” or paragraph 3 are redundant. If the lease was intended to run until a closing, no matter how delayed, then paragraph 3 adds nothing to the agreement. [ 14 ] Paragraph 5 of the purchase agreement confirms the Perrys’ financial vulnerability.

They agreed to sell the yacht for $90,000 less than the security holder’s security interest in it. They would have to withdraw the sum of $90,000 from their private resources to close or secure this balance by mortgaging the family home. The agreement states the obvious, namely that the plaintiffs would have to arrange something with the security holder to allow the sale to close by delivery of good and clear title upon closing. Anything less results in substantial failure of performance by vendors. [ 15 ] Mr. Edwardson testified and I accept that he went to the bank with Mr.

Perry and tried to work out a forgiveness arrangement for the yacht debt. The bank responded in the negative. There is no evidence that either of the Perrys did anything at any material time to arrange terms of discharge that would allow closing. Mrs. Perry confirmed that Mr. Perry did not reveal the amount of the deficit or approach her about having to mortgage the home to sell the yacht. [ 16 ] The purchase agreement provides for closing on or about May 5, 2007 and allows for an extension by mutual written consent of the parties.

May 5, 2007 [ 17 ] The transfer contemplated by the written purchase and lease agreements did not close on May 5, 2007 or ever. Mr. Cholette continued in possession of the yacht on a net net basis. The rent was increased by $900.00 per month to $2,400.00 per month. [ 18 ] Messrs. Perry and Cholette are the only parties to their discussions relative to their intentions at the time. I doubt that either referenced the written agreement in those discussions. [ 19 ] Mrs. Perry testified that Mr. Perry advised her that the deal did not close because Mr.

Cholette preferred to postpone until after the legal issues involved in his divorce were resolved. Mr. Edwardson testified that he was unaware of their discussions or if they extended the sale date. He said Mr. Perry advised him that the extra $900 per month would be credited to the purchase price “if a sale took place”. [ 20 ] Mr. Cholette recalls that he and Mr. Perry began talking about closing prospects three or so days before May 5. He recalls that Mr. Perry said he would arrange to provide clear title but did not, then or ever. Mr. Cholette was in funds to close on May 5, 2007.

He denies the closing was postponed at his request out of concern over divorce complications. [ 21 ] They did not

schedule another closing date. Mr. Cholette denies leaving the agreement in limbo. In effect, he says they agreed to mutually waive performance, effectively rescinding the purchase agreement and they negotiated a stand-alone rental arrangement of indeterminate duration. There were no discernible damages flowing from the vendor’s breach and ensuing waivers. The vendors retained title to a yacht they believed could be sold more than $230,000 and the rent increase neutralized the debt service charges until a better deal could be made. Mr. Cholette retained possession of the yacht and the purchase funds and paid increased rent.

[ 22 ] Mr. Cholette explained the basis for the agreement to increase the rent-charge as follows: The initial commitment to pay $1,500 per month was in return for possession before closing and represented indemnity for the interest cost of the purchase price – as indicated in the agreement. He was not prepared to pay the time cost for the remaining $90,000 or a return on investment while he was planning to acquire title to the yacht. He explained that once the acquisition plan was shelved they had to consider all that figures into a leasehold agreement including return on investment.

He says that while $1,500 covered interest costs on $230,000 the $2,400 covered that and allowed for fair profitability. [ 23 ] Mr. Cholette agreed with Mr. Perry’s disclosure to Mr. Edwardson that if they ever did agree to resurrect the plan to purchase the yacht the extra $900 per month would be credited against the balance due on closing. They did not establish the duration of the rental agreement. Given the fact that there were active sale negotiations with James Bonell on June 28, 2007, the expectation was short term. Post May 5, 2007 [ 24 ] Mr.

Perry became ill in early July 2007 and died from complications on July 22,

Section 13 of the Evidence Act , R.S.O. 1990, c. E.23 applies. Does independent evidence, either direct or circumstantial corroborate the positions of the plaintiffs or the defendant? [ 25 ] The plaintiffs did not adduce evidence to suggest that Mr. Perry approached the lender to arrange terms to permit closing. [ 26 ] Messrs. Edwardson and Cholette met Mrs. Perry for the first time after Mr. Perry’s decease. Mr. Edwardson attempted to marshal and collate her financial affairs. He arranged a sale of the recreational vehicle for less than the lien. He alerted Mrs. Perry to the deficit on the yacht.

The plaintiffs did not adduce evidence to suggest that Mrs. Perry approached the lender at any material time to arrange terms to permit closing [ 27 ] The company owned a $400,000 face value life insurance policy on Mr. Perry’s life. I assume but do not know that the policy face value was related to Mr. Perry’s owner’s equity in Formax at the time the policy was purchased. Mrs. Perry incorrectly assumed she was entitled to the proceeds and failed to connect the linkage between share value at death and the implications for transfer. The value of Mr. Perry’s 40% share ownership was nominal when he died.

The company and its creditors had first interest to the proceeds and dispersal contrary to those interests would have been an undue preference. [ 28 ] Mrs. Perry and counsel attribute bad faith to Mr. Cholette. Both emphasized that the company (Cholette and Edwardson) stopped payment from the company to Mr. Perry’s account after his decease. Their umbrage arises from a misunderstanding of the circumstances.

The company was not in a position to pay dividends, the shares were of nominal value and no employer is expected to remit salary without service. [ 29 ] Personality and compatibility count in business relationships. After a little over three years of negotiations Luc Cholette transferred his shares in Formax to Mrs. Perry in September 2010 in return for a release. Mr. Edwardson testified that with the benefit of the life insurance proceeds, creditor negotiation and their services, the corporate debt was reduced from $1,000,000 in 2006 to $200,000 in September 2010.

Edwardson and Cholette both explained their decision to withdraw was driven by their inability to reach principled resolution with Mrs. Perry. [ 30 ] Mr. Cholette testified that he verbally notified Mrs. Perry in September 2007 of his decision to terminate the rental agreement for the yacht. He did not follow up in writing. Mrs. Perry denies that discussion. [ 31 ] Mr. Cholette attended to winterizing and storage in the fall of 2007. He said that he did this because he recognized that Mrs. Perry was emotionally and financially incapacitated as the result of recent events.

She had neither the will nor means to maintain this yacht. That is borne out by the fact that both contracts (Cholette and Villeneuve) involved settlement of outstanding marina accounts. [ 32 ] Mr. Cholette continued to make the monthly rent payment of $2,400 through to February 2008. He honoured the net net aspect of his possession until the spring of 2008. He advised Mrs. Perry after paying the February 2008 rent that that was the last payment. There was an unpleasant conversation between them at Formax at the end of February 2008 and Mr.

Cholette gave her $2,400 on the corporate account for the March 2008 rent. That was the last payment. Mrs. Perry was impervious to the possibility that performance of the written sale agreement was mutually waived by her husband and Mr. Cholette on or about May 5, 2007. [ 33 ] Mrs. Perry’s response to notice of termination was risky. In the usual rental case the owner will pursue repossession on stoppage in payment, if only to protect value. Few will look after an asset as well as the owner. In this case the yacht represented a “hot potato” to Mrs.

Perry and she was averse to resumption of possession insisting that Mr. Cholette owned the problem. [ 34 ] Mr. Cholette actively tried to negotiate a sale of the yacht in June 2007 – Bonelle and August 2008 – Villeneuve and Corbeil, he listed it for sale with a broker in April 2008, he advertised it in the Boat trader in July 2008 and he arranged a reduction in insurance coverage in May 2008. [ 35 ] Mrs. Perry issued a statement of claim against Mr. Cholette in August 2008 based on the July 11, 2006 contract. Mr. Cholette delivered the keys to the boat to Mrs.

Perry’s counsel and discontinued attempts at assisting in the sale following service of process. [ 36 ] Mrs. Perry asserts that the only inference available from these events is that Mr. Cholette knew the purchase contract remained alive and he was trying to mitigate his losses by his actions. Mr. Cholette explained his actions as manifestations of altruism consistent with the agreement he made with Mr. Perry. He said that he was aware of Mrs. Perry’s vulnerabilities, they were business partners and he was simply trying to help her out.

He said he gave her five or six months’ notice of his intention to terminate the rental agreement. [ 37 ] Mrs. Perry sold the yacht on August 4, 2009 for $127,000 plus $3,000 in outstanding marina accounts. She claims the price

difference and unpaid rental benefits from March 2008 until August 2009. [38] The sell price at the time was not unreasonable. The decline in the market value of recreational yachts year to year isrelentless. In the circumstances, Mrs. Perry was very much in a buyer’s market and I accept Mr. Fortin’s advice to accept any reasonableoffer as prudent and reasonable. [39] The evidence is that the decline in market value of the yacht was unrelated to anything Mr. Cholette did or did not do in termsof use and maintenance. Mr. Villeneuve purchased the yacht without an inspection.

He did not attempt to negotiate a price reductionafter inspection. [40] If, in these reasons, mitigation of damages was an issue I would have concluded that Mrs. Perry was less than reasonablyassiduous in pursuit of mitigation. As noted, Mrs. Perry would be expected to seize control and possession of the yacht after theSeptember 2007 notice or at the latest after the February 2008 meeting. She would have been allowed a reasonable time after that toarrange a sale. She waited for over a year to initiate steps to mitigate her loss and I would have denied that portion of the claim accruedin that time period.

Analysis [41] Corroboration contemplated by s. 13 of the Evidence Act must be evidence independent of the evidence of the interested partyshowing or indicating that his/her evidence on a material issue is true. The corroborating evidence can be either direct or circumstantial. It can consist of a single piece of evidence or several pieces considered cumulatively. It can be evidence of active steps taken by thedeceased or of the lack of steps taken otherwise expected of him – Burns Estate v.

Mellon (2000), (ON CA), 48 O.R.(3d) 641. [42] I do not agree with the plaintiffs’ submission that in interpreting this written contract ambiguities are to be construedunfavourably against the defendant. The defendant did not draft the agreements and the only evidence is that Mr. Edwardson drafted theagreements from a position of neutrality on instruction from both of Messrs. Perry and Cholette. [43] I do not agree with the defence position that time was of the essence to the written agreement.

For time to be of the essence ofthe written purchase agreement it would have to be stated or there are circumstances rendering it inequitable to treat time as a non-essential term. The time stipulations in the agreements are not stated to be of essence. Notwithstanding the relentless reduction in valuethat expensive recreational chattels incur that is not a factor in this case. Equity presumes that time is not of the essence and the yacht isneither a perishable nor a chose vulnerable to rapid value fluctuations. [44] The fact that the marina operator concluded ownership is not probative to our issue.

Title to the yacht did not change into Mr.Cholette’s name. He had exclusive possession and care obligations as renter. For one and one-half years he exerted all of the trappingsof a renter with a net net rental agreement. Those trappings are indistinguishable from those of ownership. Where does the evidence of steps taken or steps not taken otherwise expected, point? [45] The failure by the plaintiffs to deliver satisfactory assurances for clear title on May 5, 2007 was a breach of the contract, butnot one in and of itself that would excuse Mr.

Cholette from closing were the vendors in a position to close within a reasonable time afterMay 5, 2007. The contract in that sense remained alive until it closed, Mr. Cholette made time of the essence and the plaintiffs remainedunable to close or they agreed that the prospects for closing within a reasonable time were remote and mutually waived performance ofthe written contract. [46] The deal did not close and Mr. Cholette did not put Mr. Perry on notice that time would become of the essence.

He did nothave to because both knew the prospects for closing in a reasonable time were remote, to the point of disappearance. [47] My finding is that evidence is more consistent with an agreement to mutually waive performance than one that left thecontract in limbo. [48] On the one side, liberation from the crushing costs of carrying the yacht was a high priority for Mr. Perry. He was 70 years ofage. The anxiety that flows from financial pressure is consuming. It was in Mr. Perry’s interest to reduce family debt. He wanted toclose. He went to the lender who would not relent on the payout statement.

He knew as soon as that meeting ended that he could notrefinance without going to Mrs. Perry. [49] His inaction could be consistent with the explanation he gave to Mrs. Perry, namely that closing was postponed because Mr.Cholette did not wish to complicate his divorce by adding another asset to the mix. Indeed, there was no need to approach the lenderuntil they intended to close nor to inform Mrs. Perry of the details of their financial predicament. [50] That explanation does not stand to reason.

The plaintiffs did not adduce evidence or explanation as to how closing a dealmade before separation would complicate the equalization after separation. One asset would be exchanged for another. Equalizationnumbers are fixed as of the date of separation. All that Mr. Perry had to do to force a timely closing was arrange a process to deliverclear title. He did not. The uncontroverted evidence is that Mr. Cholette was in funds on May 5, 2007 and was ready to close. [51] The more likely conclusion is that the deal did not close because Mr. Perry could not digest the consequences of informingMrs.

Perry as to the amount of the deficit and the need for a mortgage on their home. Mr. Perry, a proud and honourable man who heldout hope for financial renaissance, was reluctant to reveal the full extent of their financial constriction to Mrs. Perry. It was bad enoughthat he had to solicit external help and lose control of his company. The prospect of having this conversation with Mrs. Perry had to bedaunting.

Without putting too fine a point on it, few spouses at that stage in life in their circumstances would be comfortable abouthaving to solicit the unsuspecting spouse for consent to mortgage her home for $90,000 so they can sell a boat she has already said wassold for too little.

[ 52 ] The immediate consequences from agreeing to waive performance of the sale agreement were similar. Mr. Perry opted for the short term expedient to resolve cash flow hoping time would bring a remedy to the capital deficit issue. There was no need to approach Mrs. Perry, explain the true nature of their financial distress and seek her consent to mortgage the matrimonial home. This outcome permits the expedient white lie assigning blame to Cholette. There was no reason to think that Mrs. Perry, who never visited the business premises, would ever know differently.

In the meantime they would look around for another deal and sustain the illusion of financial stability while the business recovered. If the business recovered sufficiently Mr. Perry would be able to refinance without resort to the home security. [ 53 ] The agreement to increase the rent by $900 per month is corroboration for the defence position. It is the expedient one would expect of business partners who trust, respect and aspire to be fair to each other. Fifteen hundred dollars per month was reasonable as preliminary to a sale agreement.

It was unreasonable for purposes of a stand-alone rental arrangement. [ 54 ] In the capacity of business associate, Mr. Cholette was sensitive to Mrs. Perry’s loss and to the impact of the realization that she was not a wealthy widow. He testified that he gave notice to Mrs. Perry in September 2007 of his intention to terminate the rental agreement. I believe him. He and Mr. Perry had a stand-alone verbal rental agreement and verbal notice was reasonable. He communicated to Mrs. Perry in the context of what he and Mr. Perry discussed and agreed to and Mrs. Perry completely missed the nuance of this notice.

That notice is itself circumstantial evidence of the fact of the fresh agreement. I do not accept her denial of notice in September 2007. I do accept that Mrs. Perry would have been overcome by the events beginning in July 2007 and there is more than one forgotten or misunderstood conversation from that time. [ 55 ] Why would Luc Cholette try to sell the yacht after he terminated the rental? Why did he arrange a reduction in the insurance coverage?

The plaintiff submits these actions are consistent with cognizance that the purchase agreement remained in force on its terms and was mitigating his damages. [ 56 ] Mr. Cholette asserts that his actions were driven solely by concern for Mrs. Perry’s interests. He did the “right” thing. [ 57 ] I accept that Mr. Cholette was sensitive to the consequences of ending the rental agreement with Mrs. Perry. Her financial and emotional circumstances were precarious. She told him she was living on the money he paid her for the yacht. She was a new partner. She knew little about how to run the business or sell a yacht.

His task was to achieve the best on both fronts even if the boat piece fell into damage control. He knew that Mrs. Perry was no longer interested in recreational boating and could not afford it. [ 58 ] The plaintiff argues that the intermittency in Mr. Cholette’s asserted altruism renders that part of his version not believable. [ 59 ] Mr. Cholette gave notice in September 2007. He paid rent for a period of six months before stopping payment. That was not unfair notice. Mr. Cholette is not expected to know what Mrs. Perry took from his notice. Mr. Cholette would have accepted very short notice if the yacht sold.

But for impecuniosity, the plaintiffs would not have seen notice as an issue. [ 60 ] Successful business people make things happen. He knew, perhaps at the end of February 2008, there were going to be problems with Mrs. Perry over the Formax shares and the yacht. He held out for a mutually favourable outcome on all fronts. A timely third party yacht sale would dissolve, or at least relieve some of the contention and perhaps infuse a sense of good faith into their negotiations. [ 61 ] As it turned out, the relationship could not be saved. I am not convinced that, had Mr. Cholette negotiated a sale, Mrs.

Perry would be mollified. She thought that $230,000 was low. She was not attuned to the market for her yacht until after the discussion with Mr. Fortin in 2009 so an agreement lower than $230,000 in 2008 would have been an affront. [ 62 ] Mr. Cholette’s offer to purchase the yacht as part of the corporate share resolution negotiations does not suggest that he believed he remained obliged on the written agreement. The nature of a negotiation is the pursuit of agreement through discussion and compromise. Effective interest based negotiations are aimed at mutual problem solving. It was no secret that Mrs.

Perry held intractable views on their outstanding issues including the yacht sale agreement. I do not know why Mr. Cholette introduced the yacht into the company ownership negotiations; however, that he did does not further the plaintiff’s search for corroboration of their assessment of the events on May 5, 2007. [ 63 ] Lastly, an inclination to lend assistance or facilitate under the aegis of altruism has limits for everyone. It is one thing to facilitate a sale. It is in another quantum to expect gratuitous subsidy in the amount of $2,400 per month. Mrs.

Perry was intractable relative to their contractual standing and there had to be a point where it became necessary to crystallize the matters in dispute. Conclusion [ 64 ] The plaintiff bears the burden of proving liability on a balance of probabilities. She did not succeed. The circumstantial evidence that includes the ages and financial circumstances of the plaintiffs, that Mr. Perry did not enlist Mrs. Perry’s involvement in financing the deficit, that Mrs.

Perry was shielded from knowledge and concern for their constricted financial circumstances, the rent increase of $900.00 per month, the sale negotiations with James Bonell in June 2007 and that Mr. Cholette gave notice to terminate the rent agreement is more aligned with the defendant’s version of events and corroborates his case. [ 65 ] But for Mr. Perry’s decease this action would not have happened. [ 66 ] My finding is that Messrs. Perry and Cholette agreed to waive performance of the written lease and purchase agreement on May 5, 2007.

It was apparent to both that although there were steps that could be taken to refinance the deficit they were not going to be implemented in a reasonable time. They agreed to a new rental agreement with a significantly higher rent charge. Mr. Cholette gave not unreasonable notice of termination of the rental agreement. I put it that way because I accept that had Mrs. Perry’s response been more reasonable and directed at negotiating a longer but finite notice period, I expect Mr. Cholette would have been amenable to some extension. Mr.

Cholette’s sales efforts do not point only to his recognition of liability under the purchase agreement. They are equally consistent with the response expected of a business partner aiming for efficacy in the overall relationship.

[ 67 ] The plaintiffs rely on a poorly drafted written agreement that was a marginal improvement over the handshake originally intended by the parties. There is nothing in the writing that precludes the principals from verbally agreeing to waive performance. That is what the only two negotiators did. At the time, had the parties adverted to the benefit of mutual releases they would have been exchanged without financial consideration. The plaintiffs believed the yacht was worth more than $230,000, were convinced that they could bargain someone else for more and Mr. Cholette could buy another one.

In the meantime Mr. Perry did not have to seek out Mrs. Perry’s agreement to mortgage their home after having disparaged the selling price and Mr. Cholette continued with exclusive possession and paid the increased rent. [ 68 ] Mr. Cholette and Mr. Perry, personally and as Mrs. Perry’s apparent agent relied on the agreement to waive performance of the written contract. They knowingly and intentionally relinquished their rights under the written contract. It is not open to Mrs. Perry to unilaterally resurrect it. [ 69 ] The plaintiffs’ claims are dismissed.

The parties have thirty days to make written submissions on costs. Justice Rick Leroy Released: July 10, 2013 CITATION: Joanne Perry, Executor and Trustee under the Last Will and Testament of Garnet Perry, deceased, and Joanne Perry v. Luc Cholette, 2013 ONSC 4610 COURT FILE NO.: 09-1118 DATE: 2013/07/10

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: JOANNE PERRY, EXECUTOR AND TRUSTEE UNDER THE LAST WILL AND TESTAMENT OF GARNET PERRY, DECEASED, AND JOANNE PERRY Plaintiff v. LUC CHOLETTE Defendant REASONS FOR JUDGMENT Justice Rick Leroy Released: July 10, 2013