Jonathan Gross

The plaintiffs brought a summary judgment motion seeking return of their deposits and damages for breach of an Agreement of Purchase and Sale for a condominium unit.

The defendant vendor brought a cross-motion for possession and damages.

The central issue was which party breached the APS by failing to close.

The vendor delivered a Statement of Adjustments containing approximately $60,000 in additional charges that were either unauthorized or unsupported by evidence.

The plaintiffs refused to close pending clarification or removal of these charges.

The court found the vendor's demand for additional payment constituted an anticipatory breach of contract, entitling the plaintiffs to terminate the agreement and recover their deposits.

The court also granted the vendor possession of the unit and damages for occupancy fees, property taxes, and condominium fees incurred during the plaintiffs' continued occupation.

This is an appeal from an order of the Commercial List judge concerning insolvency proceedings.

The appellants, Bryton, sought to exercise an option to purchase a property and obtain orders declaring the option valid and immune from challenge by other creditors under various acts (Fraudulent Conveyances Act, Assignments and Preferences Act, Canada Business Corporations Act oppression remedy, and Bankruptcy and Insolvency Act).

The application judge dismissed Bryton's request for a vesting order and declaratory relief, finding that the claims were not res judicata and that declaratory relief was not the appropriate vehicle to pre-emptively bar unadjudicated creditor claims.

The Court of Appeal upheld the application judge's decision, confirming that the validity of the option was not res judicata and that the refusal to grant declaratory relief was a proper exercise of discretion, as the application procedure was not suitable for dismissing unproven claims.