Gregory W. Roberts

The plaintiff vendor and defendant purchaser entered into an agreement of purchase and sale for a property.

The purchaser paid an $80,000 deposit.

On the closing date, the purchaser's lawyer emailed the vendor's lawyer stating the purchaser did not have financing and could not close.

The vendor's lawyer responded with a letter accepting the anticipatory breach, stating the deposit was forfeited and the vendor would sue for damages.

The purchaser argued the acceptance was not clear and unequivocal because the vendor had discussions with a real estate agent about extending the closing.

The court found the vendor's lawyer's letter was a clear and unequivocal acceptance of the anticipatory breach and the discussions did not constitute a waiver.

The court ordered the $80,000 deposit paid to the vendor as damages and dismissed the purchaser's counterclaim.

The moving party purchaser failed to close on a condominium unit and subsequently moved into the unit without permission.

The responding party vendor obtained a default judgment terminating the agreement, forfeiting the deposits, and granting a writ of possession after the moving party failed to attend the hearing.

The moving party brought a motion to set aside the default judgment under Rule 38.11 of the Rules of Civil Procedure.

The court applied the test for setting aside default judgments and dismissed the motion, finding that while the moving party's failure to attend was a mistake and she moved promptly, she did not have an arguable defence on the merits for failing to tender funds on closing.

The plaintiffs brought a motion seeking a non-party production order in an action where the statement of claim had not yet been issued and served.

The documents were sought primarily to support a motion in the Court of Appeal for leave to introduce fresh evidence in a separate appeal.

The court held that Rules 30.10 and 31.10 of the Rules of Civil Procedure permit non-party production only where necessary to fairly proceed to trial.

Because the action was not yet ready for trial and the plaintiffs’ purpose was to obtain evidence for an appellate motion rather than the trial itself, the request constituted an abuse of process.

The court further held that it lacked jurisdiction to grant such relief and that any request for evidence to support a fresh evidence motion should be made to the Court of Appeal.