COURT OF APPEAL FOR ONTARIO
Doherty, Hourigan and Fairburn JJ.A.
BETWEEN
Country Wide Homes Upper Thornhill Estates Inc.
Plaintiff
(Respondent)
and
Wei Ge
Defendant
(Appellant)
Derrick M. Fulton, for the appellant
Emilio Bisceglia and Sonja Turajlich, for the respondent
Heard: In Writing
On appeal from the judgment of Justice Janet Leiper of the Superior Court of Justice, dated October 24, 2019.
REASONS FOR DECISION
Overview
1On October 4, 2016, the parties signed an agreement of purchase and sale (“APS”) that forms the subject of this appeal. The respondent company is the vendor, developing a high-end neighbourhood called “The Enclave”. The appellant agreed to buy Lot 66. In accordance with the terms of the APS, the respondent built the appellant’s home. About a week before the date scheduled for closing, just over two years after the APS had been signed, the appellant claimed that the agreement was “null and void”.
2The respondent sued the appellant for specific performance and brought a motion for summary judgment for breach of the APS. The motion judge granted the motion, concluding that the APS is valid and enforceable and that the respondent is entitled to specific performance of that contract. She gave the appellant 120 days to complete the transaction in accordance with the terms of the APS.
3This is an appeal from that decision.
The Alleged Errors in Granting Summary Judgment
4We start with the standard of review. Absent an extricable error of law, deference is owed to findings on a summary judgment motion. This includes deference to factual determinations. Decisions as to whether there are genuine issues for trial are questions of mixed fact and law, and require palpable and overriding error before this court will interfere: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at paras. 81-84.
5We see no such errors.
6The appellant’s primary issue on appeal rests with the motion judge’s conclusion that the materials filed by the appellant did not “provide any foundation for setting aside the agreement.” That conclusion is summarized in the following passage from the motion judge’s reasons:
There is no issue with the agreement, its contents, or the steps taken after it was signed. The main complaints appear to be with the fact that it is a lengthy document, signed by a non-English speaker, and without solicitor review. Yet, the [appellant] does not say in his affidavit that he did not understand the contents: his words are more in the nature of argument than evidence.
I agree with the [respondent]: there is no legal foundation for a defence that the agreement is void. The complaints are vague. No caselaw has been provided to establish that any of the complaints in the affidavit would give rise to a setting aside of the agreement. The purchaser has not established any misrepresentation.
7The appellant argues that the motion judge was wrong in her conclusion that there was no evidence supporting the suggestion that the agreement was void. We disagree.
8The appellant filed three affidavits on the motion. Two of them were sworn by counsel, largely focusing on a dispute over whether the motion should go ahead or be adjourned to a later date. The final affidavit was sworn by the appellant. The motion judge characterized the appellant’s affidavit in the following manner:
[The purchaser’s] affidavit does not allege any details of any misrepresentation. It complains of the fact that there was a warning in the agreement concerning water and the vapour barriers. It also complains that he did not have an option for solicitor review. His pleadings, which were adopted as part of his evidence in the affidavit alleged misrepresentation, but again provided no details as to what the misrepresentation was.
9A review of the appellant’s affidavit supports the motion judge’s characterization of its contents.
10The appellant points to the fact that the APS contained a clause, required by the Ministry of the Environment, that warned about the ground water in the subdivision, and remediation efforts of lands within the development. The appellant argues that the import of that clause was not explained to him. As a Mandarin speaking purchaser, he says that he did not understand the clause. He also argues that he was pressured into the purchase, having been told that an offer would only be considered if there were no conditions attached. Accordingly, the appellant suggests that he was deprived of the ability to have a solicitor review the agreement.
11The motion judge correctly concluded that these arguments did not support the suggestion that there had been misrepresentations.
12In any event, the appellant had a Mandarin-English speaking real estate agent with whom he was able to fully communicate. He is not a novice to the real estate market. He initialed every page of the APS and its schedules, including the pages containing the Ministry of Environment warning. He also specifically initialled the crossing out of the condition involving solicitor review. Finally, each page of the APS contained the following block letter phrase: “oral representations do not form part nor can they amend this agreement.” These factors undermine the appellant’s position that he did not know and was misled about the contents of the APS.
13The appellant also argues that the motion judge erred by failing to consider the impact that expert evidence may have had on calculating the decrease in property value arising from the Ministry of Environment warning. Yet, the appellant did not file any expert evidence on the motion, as would have been his right. He cannot now complain that the motion judge did not take into account something that may or may not materialize in the future. He was required to put his best foot forward on the motion.
14The appellant also maintains that the respondent’s affidavit evidence was insufficient because the affiant, the Vice President of the respondent company, was not in the room when the APS was signed. There is no merit to this suggestion. The respondent’s affiant familiarized himself with all documents and had discussions with the real estate agent who was present at the time of signing. The affiant also states his source of knowledge wherever it is based upon information from a third party.
15The appellant also claims that there was a breach of natural justice because he was denied an adjournment. The history of that denial is informative as to why this ground of appeal also fails.
16Less than a week before it was scheduled to be heard, the appellant asked that the motion date be vacated. That request was denied. Then on the eve of the motion, the appellant filed materials in support of an application to adjourn. That application was denied.
17The motion went ahead, but was adjourned for completion more than two months later. During that time, the appellant attempted to have the Divisional Court review the motion judge’s decision denying the adjournment request. The Divisional Court dismissed that application. On the return date for the motion, over the objection of the respondent, the appellant was permitted to file new affidavit evidence and a factum, all of which was taken into account by the motion judge.
18In these circumstances, we are satisfied that the appellant was afforded natural justice.
19The appellant also contends that, because there are a number of purchasers who refused to close their properties in the same subdivision, that the summary judgment in this case will risk inconsistent verdicts in the future. We do not agree. The other transactions will turn on their own details.
The Alleged Error Relating to Remedy
20Finally, the appellant claims that the motion judge erred in ordering specific performance of the APS. He says that: (a) there was insufficient evidence justifying specific performance; and (b) the motion judge misapprehended the evidence on this point. Again, we see no error in the motion judge’s reasons.
21The motion judge correctly stated the law respecting when the court should consider ordering specific performance and the fact that this remedy is available to vendors: Matthew Brady Self Storage Corporation v. InStorage Limited Partnership, 2014 ONCA 858, 125 O.R. (3d) 121, at paras. 33-34, leave to appeal refused, [2015] S.C.C.A. No. 50. As set out in Matthew Brady, at para. 40, looking at the contract broadly, and the transaction as a whole, the key factors are:
(i) whether on the facts as a whole, damages will afford the vendor an adequate and complete remedy or whether a money award will be sufficient to purchase substitute performance; (ii) whether the vendor has established some fair, real and substantial justification for the granting of specific performance; and, (iii) whether the equities as between the parties favour the granting of specific performance.
22The motion judge took into account all of the facts, including that there is now a flood of inventory in the housing development, making it difficult to mitigate damages or quantify a fair amount for the failure to close. Indeed, as of the date of the motion, no houses in The Enclave had been sold for about a year.
23Moreover, the motion judge concluded that there was no evidence that the property was a carbon copy of other properties without any unique characteristics and, in fact, there was evidence of a variety of changes and customizations. As noted by the motion judge, in accordance with the APS, the respondent customized the home at the appellant’s request as it was being built. While the appellant refers to these as “cosmetic changes”, the motion just judge came to a factual conclusion to the contrary. We defer to that finding of fact. As she pointed out, there were no fewer than five customizations, including the expansion of a bedroom and use of finishes selected by the appellant. As the motion judge said: “the bump out of the bedroom, and particular finishes on a $3 million property”, although not necessarily “highly unusual”, reflected a “set of qualities decided upon by the purchaser.”
24We note that in responding to the alleged error in the motion judge’s reasons for specific performance, the respondent points to her having relied upon Landmark of Thornhill Limited v. Jacobson, 1995 CanLII 1004 (ON CA), [1995] 25 O.R. (3d) 628, in support of the proposition that the “defaulting party bears the onus of showing a lack of uniqueness”. The appellant has not suggested that the motion judge erred in that statement of law. As the matter was not argued before us, we decline to comment, but simply emphasize the holding in Semelhago v. Paramadevan, 1996 CanLII 209 (SCC), [1996] 2 S.C.R. 415, decided a year after Jacobson, where the court found that “specific performance should … not be granted as a matter of course absent evidence that the property is unique to the extent that its substitute would not be readily available” [Emphasis added]. See also: Matthew Brady, at para. 31.
25Regardless, the motion judge’s reasons do not turn on her view of the onus. Rather, they turn on her findings of fact, which include the determination that, at this stage, the $3 million home is unique and that damages would not be an adequate or complete remedy or substitute for specific performance.
26We see no error in that conclusion.
Application to Admit Fresh Evidence
27On the eve of the appeal, the appellant asked for an adjournment because he said that he had “critical” evidence necessary to a just determination of the appeal. The appellant was granted the opportunity to file an application to admit fresh evidence. That application has now been received and considered.
28The appellant filed an affidavit suggesting that Lot 66, along with all of the houses subject to similar litigation, has been listed for sale. The appellant argues that the listing of Lot 66 for sale is inconsistent with the respondent’s position on specific performance as it demonstrates the respondent’s belief that damages were capable of being assessed.
29The appellant asks that the fresh evidence be admitted and the appeal be adjourned so that he can “develop that evidence through disclosures and examinations, in furtherance of its interest and that of the litigation as a whole inclusive of this appeal.” The appellant argues that, through the development of the evidence, it will become clear that specific performance in not an available remedy and the integrity of the respondent will be adversely reflected upon, something that may inform other aspects of the litigation.
30There is no need to hear from the respondent on this point. There is clear evidence of an email exchange between counsel, strongly suggesting that the listing of Lot 66 involved an administrative error, one that was immediately remedied once it was brought to the respondent’s attention. In other words, Lot 66 is not longer on the market. In any event, even if the listing of Lot 66 was not through administrative error, the brief listing of the property does not constitute evidence that is sufficiently cogent to have impacted the original decision granting specific performance or any other aspect of the decision.
31The fresh evidence application is dismissed.
Conclusion
32The appeal is dismissed.
33The appellant obtained a stay of the specific performance order pending appeal. Costs of that motion were reserved to the panel hearing the appeal. We would not impose costs on the fresh evidence motion as the respondent was not required to respond. Taking the motion to stay and the appeal into account, the appellant will pay costs in the amount of $10,000 to the respondent, inclusive of taxes and disbursements.
“Doherty J.A.”
“C.W. Hourigan J.A.”
“Fairburn J.A.”
