COURT OF APPEAL FOR ONTARIO
Feldman, Paciocco and Coroza JJ.A.
BETWEEN
Paul J. Hannivan and Pamela J. Hannivan
Plaintiffs/Moving Parties
(Respondents)
and
Muhammad Wasi and RE/MAX Aboutowne Realty Corp.
Defendants/Responding Parties
(Appellant)
AND BETWEEN
Muhammad Wasi
Plaintiff by Counterclaim/Responding Party
(Appellant)
and
Paul J. Hannivan and Pamela J. Hannivan
Defendants by Counterclaim/Moving Parties
(Respondents)
Dheeraj Bhatia, for the appellant
Mark A. De Sanctis, for the respondents
Heard: March 8, 2021 by video conference
On appeal from the judgment of Justice Clayton Conlan of the Superior Court of Justice, dated February 20, 2020, with reasons reported at 2020 ONSC 1060.
REASONS FOR DECISION
BACKGROUND
1On March 20, 2017, the appellant purchaser and the respondent vendors executed an agreement of purchase and sale (“APS”) for a residential property located in Oakville, Ontario. The purchase price was $1,155,000. The purchaser paid a $50,000 deposit. Both parties were represented by real estate agents throughout the process.
2The APS had a closing date of August 18, 2017. All requisitions affecting title to the property were to be submitted by August 1, 2017 at 6:00 p.m. The purchaser did not submit any requisitions before the deadline expired.
3After regular business hours on August 17, 2017, the day before the closing, counsel for the purchaser sent correspondence to the vendors’ real estate lawyer. The lengthy correspondence set out various concerns with the transaction. Of note to this appeal is the purchaser’s allegation that the vendors failed to comply with a term of the APS concerning a property survey. That term, found in Schedule A to the APS, is as follows:
The Seller agrees to provide, at the Seller’s own expense, not later than two weeks, an existing survey of said property showing the current location of all structures, buildings, fences, improvements, easements, rights-of-way, and encroachments affecting said property. The Seller will further deliver, on completion, a declaration confirming that there have been no additions to the structures, building, fences, and improvements on the property since the date of this survey.
4In the correspondence, counsel for the purchaser claimed that the APS was “null and void” due to the vendors’ failure to comply with the survey term. They demanded that the purchaser’s deposit be returned to him in full. On August 18, 2017, the vendors’ solicitor replied, stating that the purchaser had breached the APS and thereby forfeited his deposit.
5The transaction never closed. The vendors relisted the property for sale, ultimately selling it to another buyer for less than the original purchase price in the APS. The vendors sued the purchaser for the difference in the purchase price, plus other damages. The purchaser counterclaimed for, primarily, the return of his deposit.
6The vendors moved for summary judgment on their claim and the counterclaim. On February 20, 2020, a motion judge granted the motion in favour of the vendors on both the primary claim and counterclaim.
7The motion judge held that the purchaser repudiated the transaction and was not justified in doing so. The motion judge observed that the vendors provided to the purchaser’s real estate agent a document purporting to be a survey, nearly five months before the correspondence on behalf of the purchaser was sent declaring the APS null and void. He noted that the purported survey was signed by an Ontario land surveyor and dated. The motion judge recognized that this survey was “bare-bones” and did not show the current location of the items listed in the survey term of the APS. In his view, however, the purchaser was not entitled to repudiate the deal on this basis because a more detailed, original survey was “in no way essential to the transaction”.
8The purchaser asks this court to set aside the motion judge’s decision. He raises several grounds of appeal.
ANALYSIS
9First, the purchaser argues that the motion judge did not consider the vendors’ failure on the motion to plead or argue compliance with the survey term of the APS. We disagree. A fair reading of the vendors’ reply and defence to counterclaim, as well as their factum in the court below, does not disclose any deficiency in the vendors’ pleadings.
10Second, the purchaser asserts that the motion judge failed to consider the vendors’ admission, namely that they were aware that the purchaser intended to renovate the property, as evidence that a survey complying with Schedule A of the APS was essential to the transaction.
11We do not accept this assertion. In our view, the motion judge’s failure to mention the admission in his reasons does not mean he failed to consider it. The motion judge was clearly alive to the purchaser’s submission that it was his intention to renovate the property. Indeed, he noted the purchaser’s submission that summary judgment was not appropriate in this case because he needed an opportunity at trial to adduce further evidence on his intention to do major renovations to the property. That submission was quite properly rejected by the motion judge. Whether the vendors knew that the purchaser was going to renovate the property had nothing to do, generally, with the purchaser’s ability to close the transaction or his alleged entitlement to repudiate the APS.
12Third, the purchaser submits that the motion judge’s reasons were inadequate and failed to deal with the survey term. This submission has no merit. The motion judge focused on the survey term and provided concise reasons as to why the purchaser was not entitled to repudiate the APS.
13Fourth, the purchaser contends that the motion judge failed to consider various authorities put forward by the purchaser, including Domowicz v. Orsa Investments Ltd. (1993), 36 R.P.R. (2d) 174 (Ont. Gen. Div.). In Domowicz, a vendor was late in its delivery of a survey, precluding the purchaser from arranging financing for the transaction. The court held that the purchaser should have been accommodated by a reasonable extension of the closing date, and resolved the issue of liability in the purchaser’s favour: at pp. 1, 4, 21-22, and 25.
14In this case, the motion judge noted that the purchaser was relying heavily on Domowicz. However, the motion judge concluded that taking the purchaser’s position as high as it could be, even if the vendors did not strictly comply with the survey term contained in Schedule A of the APS, this would not have entitled the purchaser to refuse to close the transaction. This conclusion flowed from the fact that the survey had nothing to do with financing, zoning, or the purchaser’s ability to close the transaction. We see no basis to interfere with these findings.
15Finally, the purchaser argues that the motion judge misconstrued evidence, including expert evidence, and failed to properly consider submissions by the purchaser.
16We see no merit to this argument. The motion judge carefully reviewed the evidence and focused on whether the vendor’s alleged non-compliance with the survey term entitled the purchaser to repudiate the APS because it was essential to the bargain. He concluded that it was not. In reaching that conclusion, he considered the parties’ submissions and observed how counsel for the purchaser narrowed the analysis considerably when he stated that the purchaser’s entire case rested on the survey term.
DISPOSITION
17For these reasons, the appeal is dismissed. The vendors are entitled to their costs of the appeal in the agreed upon amount of $7,500, inclusive of disbursements and HST.
“K. Feldman J.A.”
“David M. Paciocco J.A.”
“S. Coroza J.A.”