Douglas Daniel Dymock, Joan Margaret Dymock, Johannes Berkers v. Wilhelmina Maria Berkers (Plaintiffs by, 2013 ONSC 4703

CITATION : Fra-Laine Elevators Ltd v. Dymock, 2013 ONSC 4703 COURT FILE NO.: 6925-12 DATE: 2013/07/10 SUPERIOR COURT OF JUSTICE – ONTARIO RE: Fra-Laine Elevators Ltd., Donald Vanhevel and Karen Simmers (Plaintiffs) -and- Douglas Daniel Dymock, Joan Margaret Dymock, Johannes Berkers and Wilhelmina Maria Berkers (Defendants) AND BETWEEN: Douglas Daniel Dymock, Joan Margaret Dymock, Johannes Berkers and Wilhelmina Maria Berkers (Plaintiffs by Counterclaim) -and- Donald Vanhevel (Defendant by Counterclaim) BEFORE: Justice H. A. Rady COUNSEL: Rod R. Refcio, for the plaintiffs Daniel J.

MacKeigan, for the defendants HEARD: July 10, 2013 ENDORSEMENT [ 1 ] Mr. Refcio, on behalf of the plaintiffs, seeks an order transferring certain property to them. The notice of motion does not stipulate on what basis the court is being asked to grant this relief. [ 2 ] In oral submissions, Mr. Refcio said that he was seeking a ruling today that his clients are entitled to specific performance of an agreement of purchase and sale and that there are no facts in dispute. [ 3 ] In my view, what is being sought here is

summary judgment pursuant to Rule 20 or perhaps declaratory relief pursuant to Rule 14, although I note that this action was commenced by statement of claim rather than by application. [ 4 ] It is further my view that an order for specific performance would, in essence, finally determine the dispute between the parties. It is therefore a motion for

summary judgment in favour of the plaintiffs. [ 5 ] Having read the pleadings and the affidavits filed in connection with this motion, I have concluded that

summary judgment is not available at this time. There are triable issues respecting the validity of contracts and some disputed factual issues, including allegations of misrepresentations and undue pressure. There is also a counterclaim. There can be no question but that the plaintiffs can assert a claim that specific performance ought to be granted.

However, on the basis of the record before me, I do not believe that specific performance should be or could be ordered today. [ 6 ] In my view, it is impossible on this record to have a full appreciation of the facts and issues in order to ensure justice is done – that is the test for Rule 20 relief as set out by the Court of Appeal in Combined Air . [ 7 ] The lawsuit should proceed in the normal course with documentary and oral discovery and a trial in due course. [ 8 ] The motion is dismissed. ______________________ Justice H. A. Rady Delivered Orally: July 10, 2013