February 5, 2018

The Ontario Court of Appeal’s reasoning in Bennett v. Bennett Estate[1] is illustrative of the fact that if one is faced with two means of advancing a claim (whether they diverge in a yellow wood or not is not important here), one must be careful when deciding which claim to make. Moreover, the claim must be properly supported by the evidentiary record.


Four brothers – Dennis, George, Donald, and John – split up a large parcel of land into four separate properties and entered into an agreement between them which established a right of first refusal.

In 2006, Donald died and was survived by his wife Darlene.

In 2009, John died and was survived by his wife Joyce.

In 2012, Joyce offered to sell her property to Miron Topsoil Ltd. (“Miron”). Darlene provided notice that she would be exercising her right of first refusal.

Both Darlene and Miron maintained that they were entitled to purchase the property and each brought a motion for summary judgement.

The motion judge found that the brothers’ agreement clearly limited the right of first refusal to parties to the agreement, namely, the four brothers. The right of first refusal, then, could not extend to Darlene as she was never a party to the agreement. Everyone agreed that Donald’s estate would have been entitled to exercise the right of first refusal, but Darlene had not brought her claim on behalf of the estate, choosing instead to bring the claim personally. The motion judge granted summary judgment to Miron. Darlene appealed.

Entitlement as Estate Trustee v. “Family Member”

The appeal turned on the distinction between Darlene’s claim to exercise her right of first refusal on behalf of Donald’s estate, on the one hand, and her right as a “family member” under the agreement, on the other.

The parties to the agreement all agreed that Donald’s estate would have been entitled to exercise the right. Darlene, however, took a different tack and based her claim that she had a right to purchase the property on the fact that she is a “family member” as defined in the brother’s agreement.

After the motion judge granted summary judgement in favour of Miron, Darlene amended her claim and submitted that she had in fact been exercising her right on behalf of Donald’s estate all along. However, Darlene at no point established facts on the record which could have supported this new argument. There was no evidence before the motion judge, nor was there evidence before the Court of Appeal, concerning Darlene’s ability to exercise the right of first refusal on behalf of Donald’s estate. As the Court of Appeal observed in respect of Darlene’s summary judgement motion, “[T]he motion judge was asked to determine the appellant’s entitlement on the basis that she was a ‘family member’. He cannot be faulted for having done so”.

The Court of Appeal further found that, although Darlene’s claim as a “family member” had been properly supported by the record, it too failed. They concluded that the motion judge’s interpretation of the agreement (i.e. that on its face it limited the right of first refusal to parties to the agreement) was entitled to deference. There was no legal error found in his judgement, nor was there a palpable and overriding error in his analysis that would allow the Court of Appeal to intervene. As such, Darlene’s appeal was dismissed with costs awarded against her.


It is often the case that the claim less travelled is done so for a reason. Less travelled or not, one must always properly support the claim one intends to assert in court.

[1] 2018 ONCA 45