Right of first refusal limited to parties to agreement and not extending to parties’ heirs

Four brothers divided large parcel of land given to them by their father into four separate parcels and entered agreement giving each right of first refusal to acquire parcel any other proposed to sell or dispose of outside family. Brother D died and was survived by his wife. Brother J died and his parcel was transferred to his wife and two sons. J’s wife and sons proposed to sell their parcel to corporate defendant. They acknowledged sale was subject to right of first refusal in favour of three brothers and delivered notice giving each 21 days to exercise their right to acquire property on same terms. D’s wife gave notice she intended to exercise her right as family member to acquire parcel. Corporate defendant took position agreement did not give D’s wife any right of first refusal. D’s wife commenced action and brought motion for summary judgment granting her order for specific performance. Corporate defendant brought cross-motion for summary judgment dismissing action. Motion dismissed; cross-motion granted. Motion judge found that agreement specified that benefit of right of first refusal accrued only to “remaining parties” or “other parties”. D’s wife appealed. Appeal dismissed. It was open to motion judge to find that agreement was not ambiguous. On its face, right of first refusal was limited to parties to agreement. Motion judge found that evidence of parties’ intention relied on by D’s wife had little or no probative value and ran afoul of parol evidence rule in any event. Motion judge’s finding that there was no ambiguity requiring admission of parol evidence of intention was entitled to deference.

Bennett v. Bennett Estate (2018), 2018 CarswellOnt 560, 2018 ONCA 45, K. Feldman J.A., J.C. MacPherson J.A., and Grant Huscroft J.A. (Ont. C.A.); affirmed (2017), 2017 CarswellOnt 12527, 2017 ONSC 1811, E.J. Koke J. (Ont. S.C.J.).