COURT OF APPEAL FOR ONTARIO
Laskin, Sharpe and Huscroft JJ.A.
BETWEEN
Dr. Ganesh Ram and GFunk Inc.
Plaintiffs (Respondents)
and
Talon International Inc.
Defendant (Appellant)
Symon Zucker and Nancy Tourgis, for the appellant
Mavis J. Butkus, for the respondents
Heard and released orally: October 27, 2016
On appeal from the judgment of Justice Heeney of the Superior Court of Justice, dated September 18, 2015.
ENDORSEMENT
1The trial judge found that the Agreement of Purchase and Sale terminated on its own terms and thus the respondent purchasers were entitled to a return of their deposit.
2On appeal the vendor submits that the trial judge made one factual error and two errors of law. The factual error the vendor alleges is that by virtue of the amending agreements time became of the essence. The two legal errors the vendor alleges are first, the purchasers could not terminate the agreement without setting a new closing date; and second, the trial judge erred by putting the onus for setting a new closing date on the vendor. In making these submissions the vendor relies on the decision of this court in Domicile Developments Inc. v. MacTavish, 1999 CanLII 3738 (ON CA), 45 O.R. (3d) 302 (C.A.).
3We do not accept the vendor’s submissions. As Ms. Tourgis fairly acknowledged, Domicile and any implications it may have had for this case were not argued before Justice Heeney. Moreover, this case turned not on the ability of the parties to close, which was the case in Domicile, but on the terms on which they were to close.
4We now turn to the errors the vendor alleges. First, the trial judge found correctly that the Agreement of Purchase and Sale did not contain a time of the essence clause. Also the Agreed Statement of Facts did not provide that the parties agreed time was of the essence.
5The amending agreements do contain a provision that “time shall continue to be of the essence”, but these provisions contradict the original agreement of purchase and sale. In view of the absence of a time of the essence provision in the original agreement, or any reference to such a clause in the agreed statement of facts, we decline to give effect to this term in the amending agreements. We add that the alleged factual error the vendor now relies on was not argued before the trial judge.
6Second, we agree with the trial judge that the Agreement ended in accordance with para. 19 of the Agreement of Purchase and Sale because despite the vendor’s assurances it never provided the purchasers with a revised occupancy statement. The purchasers could hardly be obliged to set a new closing date without this revised statement.
7Third, the trial judge was correct to lay the blame for the failure to close on the vendor. The vendor through its lawyer (not counsel on this appeal) represented to the purchasers he would sort out their concerns. But then he failed to do so. The trial judge’s finding at para. 31 of his reasons is fatal to the vendor’s appeal. At para. 31 the trial judge found:
Mr. Silver’s message indicated that the closing of the transaction would go over for a few days until the plaintiffs’ concerns were sorted out, he failed thereafter to either address the plaintiffs’ concerns or establish a new closing date. Two emails from Mr. Lake were sent and were not responded to.
8In substance, the trial judge found that having assured the purchasers he would address their concerns and having not done so, the vendor is now estopped from claiming the agreement was not at an end and that the purchasers were not entitled to return of their deposit.
9The appeal is therefore dismissed. The respondents are entitled to their costs of the appeal in the agreed amount of $9400 inclusive of disbursements and applicable taxes.
“John Laskin J.A.”
“Robert J. Sharpe J.A.”
“Grant Huscroft J.A.”