COURT OF APPEAL FOR ONTARIO

CITATION: Bronfman-Thomas v. Carreno, 2013 ONCA 566

DATE: 20130916

DOCKET: C56948

MacPherson, MacFarland and Rouleau JJ.A.

BETWEEN

Brenda Bronfman-Thomas aka Brenda Thomas

Applicant (Appellant)

and

Sonia Carreno and Simon Davidson Jennings

Respondents (Respondents in Appeal)

Application Pursuant to Rules 14.05(3)(d) and (h) of the Rules of Civil Procedure, and Section 97 of the Courts of Justice Act, R.S.O. 1990, c. C. 43.

Peter C. Wardle, for the appellant

Heidi Rubin and Adrienne Lei, for the respondents

Heard and released orally: September 11, 2013

On appeal from the judgment of Justice Sidney N. Lederman of the Superior Court of Justice, dated March 27, 2013.

ENDORSEMENT

[1] The appellant purchaser sought the return of her $100,000 deposit, paid by her in relation to a real estate transaction that did not close in July, 2011. The purchase price was $1,510,000.

[2] After entering the Agreement of Purchase and Sale, the appellant discovered the existence of an open building permit in relation to some construction on the subject property in 2007.

[3] In his reasons for judgment, the application judge carefully reviewed the facts including the exchange of letters between the solicitors on the date that had been scheduled for the closing.

[4] He concluded, in our view correctly, that the requisition in relation to the open building permit could be "satisfactorily answered by a commitment to provide title insurance as contemplated by the Agreement of Purchase and Sale".

[5] The trial judge was faced with the opinions of two real estate experts who did not agree on the issue about whose obligation it was to obtain and produce the title policy of insurance. The application judge accepted Mr. Radomsky's opinion which was supported by Ms. Kee's evidence in relation to the related underwriting of such a policy. This clearly was a matter for the application judge. We see no error in his acceptance of the Radomsky opinion over that of Mr. Troister.

[6] The appellant's lawyer was alerted to the fact that title insurance was available by fax sent at 3:55 p.m. - the fact that she did not monitor her fax machine after 4:00 p.m. and did not therefore see Mr. Zarowsky's fax until after 6:00 p.m. is not the fault of Mr. Zarowsky.

[7] As the application judge found, the vendors were ready to close and in a position to do so prior to 6:00 p.m. until which time the Agreement of Purchase and Sale was still in full force and effect.

[8] The Agreement could and ought to have closed before the 6:00 p.m. deadline. The purchaser's failure to respond to Mr. Zarowsky's proposal caused the transaction to fail as the application judge found.

[9] We see no error. The application judge's conclusion accords with the evidence before him which he accepted.

[10] The appeal is dismissed.

[11] As agreed by counsel, the costs of the appeal are to the respondents on a partial indemnity scale fixed in the sum of $8,500.00 inclusive of disbursements and HST.

“J.C. MacPherson J.A.”

“J. MacFarland J.A.”

“Paul Rouleau J.A.”