The difficulty with the application judge’s approach is that r. 14.05 permits an application for a declaration in relation to an agreement of purchase and sale, as in this case. However, if a factual controversy that is real, relevant and material emerges, and could affect the outcome of the case, then the controversy must be resolved before the decision can be justly rendered. In my view it is not open to an application judge to sidestep an issue on the basis that it has become “controversial”. The method of resolution in applications is usually the trial of an issue, which can be as short and efficient as the application judge directs. In the spirit of Hryniak v. Mauldin, 2014 SCC 7,  1 S.C.R. 87, it would be most efficient if the application judge remained seized of the matter.
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