The plaintiff brought a motion seeking relief from forfeiture of a deposit totaling approximately 28% of the purchase price for a condominium, arguing it would be unconscionable for the vendor to retain the full amount.
The court applied the two-part test for relief from forfeiture under section 98 of the Courts of Justice Act, requiring the forfeited sum to be out of proportion to damages and its retention to be unconscionable.
While the deposit percentage was higher than the vendor's usual 20% and the upper range of 25% found in some case law, the court found no indicia of unconscionability, such as inequality of bargaining power, an unfair bargain, or unsophistication on the plaintiff's part.
The vendor's conduct, including crediting a previous deposit and offering extensions, weighed against a finding of unconscionability.
The motion was dismissed, and the vendor was entitled to retain the full deposit.
