COURT OF APPEAL FOR ONTARIO
RE:
DRAVIDIAN MANAGEMENT LIMITED (Applicant (Respondent on Appeal)) – and – PAULINE VRHOUNIK (Respondent (Appellant on Appeal))
BEFORE: ABELLA, GOUDGE AND SIMMONS JJ.A.
COUNSEL: Ronald G. Chapman For the appellant
Donald E. Short And Christine P. Tabbert For the respondent
HEARD: June 20, 2001
On appeal from the judgment of Justice Anne M. Molloy dated January 8, 2001.
E N D O R S E M E N T
Released Orally June 20, 2001
1The respondent’s position throughout was that it was ready to close the transaction but with an abatement as determined by the court. In our view, the appellant did not clearly indicate that it regarded this as a repudiation of the contract which it accepted. The contract thus remained alive and it was then open to Molloy J. to proceed with a determination of the issue of specific performance with an abatement.
2In our view, she did so correctly. There was sufficient evidence to sustain her conclusion that the property was unique and that the abatement was properly valued at $281,000.
3We would also conclude that the term breached here was of sufficient importance to the essence of the deal that it must be treated as a condition. Given that this was the purchase of an income property, an error in the expenses sufficient to reduce the purchase price by 10% meets this threshold. On this score, as well, we agree with Molloy J.
4The appeal must be dismissed with costs.
"R.S. Abella J.A."
"S.T. Goudge J.A."
"J. Simmons J.A."