Not sure what the point of that make-work project is.
you'd think that the outcome can avoided in the future by structuring a sale as a share purchase agreement for a project-specific holding company (not my area - so if I'm wrong, happy to hear why). so I wouldn't think there's any kind of precedent for achieving substantive outcomes here.
As I understand the decision (I'm not a lawyer); the substance was this.
- Minto had a conditional purchase agreement; with a specified time limit in it.
-The time period passed/agreement expired.
-Minto therefore moved to withdraw its appeal as it had no legal basis on which to proceed and no opportunity for financial gain, as they now lacked any option to purchase the site if successful.
-The owner found another prospective buyer in Tricon.
- The owner wanted Tricon to be able to assume the appeal.
- The Tribunal found that Minto was never the owner's agent, it wasn't the owner's proposal, it was Minto's.
- Ergo neither Tricon nor 'the owner' had any legal standing to challenge Minto's withdraw. Therefore, the appeal died, as its proponent was gone.
You can't substitute an appellant on a non-existent case.
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This could have been structured from day 1, with Minto acting as the owner's agent; however, there is no indication that the owner wanted this; and this is an explicit position from Minto that they did NOT want this.
The argument was made that since Minto was to purchase the land; and bare full financial responsibility for any ensuing development; its financial interest was to acquire the land for as little as possible.
By definition, this is in opposition to the interests of 'the owner/seller' who would wish to maximize the purchase price.
The owner/seller was never proposed to take any ownership stake in or put up any capital towards the Minto proposal.
Therefore, when Minto chose to withdraw; the application died.
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Had Minto agreed to sell their proposal to Tricon/the site owner, this ruling may have been different.
However, the fact that Tricon's idea for the site is rental is not an immaterial difference in the project.
It was not clear to the tribunal that a substantially similar building was being contemplated.
Which may have further impaired the application to transfer; even if Minto had consented, which they did not.
Minto expressly opposed this; and made arguments amounting to unfair gain that would be received by the owner at Minto's expense if they were able to assume the appeal.
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But that's just my lay person's read (which may or may not be correct) , and I would encourage anyone to read the decision for themselves.
outline.com
www.thestar.com
