Ravichandran v. Ravindran, 2013 ONSC 1055

CITATION: Ravichandran v. Ravindran 2013 ONSC 1055

COURT FILE NO.: DC-12-00418-00

DATE: 20130220

ONTARIO

DIVISONAL COURT

SUPERIOR COURT OF JUSTICE

BETWEEN:

Suganthini Ravichandran

Plaintiff/Appellant

– and –

Shyamaladevi Ravindran

Defendant/Respondent

Josephiine Chester, for the Plaintiff/Appellant

No one appearing, for the Defendant/Respondent

HEARD: October 10, 2012

REASONS FOR DECISION

EDWARDS j.:

[1] This is an appeal from the decision of the learned judge of the Richmond Hill Small Claims Court, in which the plaintiff’s action was dismissed. No one appeared responding to this appeal.

The Facts

[2] On September 9, 2007, the plaintiff entered into an agreement of purchase and sale with the defendant for the purchase of the plaintiff’s condominium at 3380 Eglinton Avenue, Suite 904, Toronto, Ontario. The purchase price for the condominium was $131,000. The plaintiff provided a deposit of $10,000 towards the purchase of the condominium.

[3] Included in the agreement of purchase and sale was a schedule which provided for various conditions, one of which provided:

This offer is conditional upon the purchaser (the plaintiff) at his own expense, being able to arrange a satisfactory mortgage within fifteen days following the date of acceptance, otherwise this offer shall be null and void and the deposit shall be returned to the purchaser in full without interest or any deduction. This condition is included for the sole benefit of the purchaser and may be waived at his option by notice in writing to the vendor within the time period stated herein.

[4] The plaintiff was unable to arrange satisfactory financing, within the fifteen days specified for in the agreement. There was no evidence at trial to suggest that the plaintiff ever waived the aforesaid condition.

[5] In dismissing the plaintiff’s action, the learned trial judge in his reasons stated as follows:

The plaintiff maintained that she did not waive the condition re financing, paragraph (i) of Schedule “A” to the agreement of purchase and sale, dated September 9, 2007. The defendant insists that the financing condition was waived but did not produce a written waiver of the condition. Both positions support the fact that the plaintiff needed to:

(i) Waive the condition in writing if the financing was not available to her. This would have made the agreement null and void and she would have been entitled to receive her deposit back. This condition was inserted for the purchaser’s benefit only…

There is no documentary evidence or other corroborating evidence that the plaintiff was ready and willing to close on October 15, 2007. At that point, the agreement is null and void at the inactivity of the plaintiff and the defendant is entitled to forfeit the $10,000 deposit under the agreement of purchase and sale.

Position of the Plaintiff

[6] It is the position of the plaintiff that the learned trial judge erred in fact (or in law) in finding the plaintiff needed to waive the condition in writing if the financing was not available to her, and that would have made the agreement null and void, entitling the plaintiff to receive her deposit back. It is submitted by the plaintiff that the learned trial judge made a palpable and overriding error misapprehending the agreement of purchase and sale and the above-noted condition.

Conclusion

[7] Where an alleged error on the part of a trial judge is an error of law, the standard of review is one of correctness. Where the error of law is one of a question of fact, an appellate court will only replace the findings of the trial judge where there is palpable and overriding error. In this case, it would appear that the learned trial judge has made an error of both fact and of law in misconstruing the agreement. Where the learned trial judge suggested that the plaintiff needed to waive the condition in writing if the financing was “NOT” available to her, he misapprehends the purpose for which the condition was inserted. If the plaintiff was unable to obtain financing, there would be no reason for the plaintiff to waive the condition, as to do so would put the plaintiff in the position where she could not tender the necessary funds on closing. More importantly if the Plaintiff has waived the condition in a situation where she has no financing to close the transaction would put the plaintiff in an untenable situation. Why would the plaintiff on this fact scenario waive the condition inserted for her protection? The only reason why the plaintiff would waive the condition would be if the plaintiff did have financing such that she would then be in a position to close the transaction.

[8] On the facts before the learned trial judge, the proper interpretation of the condition would have been one that where the plaintiff was unable to obtain the financing within the fifteen days, following the date of acceptance of the offer for purchase and sale, then the offer became null and void. The offer did not become null and void, as suggested by the learned trial judge, because of the inactivity of the plaintiff as of October 15, 2007. Rather, the offer became null and void once the fifteen day period had elapsed and the plaintiff did not have financing. Under the circumstances, the appeal is allowed. The plaintiff shall have judgment for the $10,000 deposit. The condition provides the $10,000 deposit shall be returned to the plaintiff in full, without interest. The plaintiff is entitled, however, to post-judgment interest from the date of these reasons. The plaintiff shall also have her costs of this appeal fixed in the amount of $3,000.

Justice M.L. Edwards

Released: February 20, 2013