Court of Appeal for Ontario

Date: 2018-02-06

Docket: C63870 and C63871

Judges: Laskin, Miller and Paciocco JJ.A.

Parties

Between

Claude St. Amand Applicant (Respondent)

and

Lynn Tisi Respondent (Appellant)

Counsel

Derek A. Schmuck, for the appellant

Duncan M. MacFarlane, for the respondent

Heard: December 21, 2017

On appeal from: The judgment of Justice Theresa Maddalena of the Superior Court of Justice, dated May 19, 2017, with reasons reported at 2017 ONSC 3125, 78 R.P.R. (5th) 124.

Reasons for Decision

A. Overview

[1] The appellant, Lynn Tisi, appeals the decision of the application judge declaring that there was no valid Agreement of Purchase and Sale between the parties.

[2] The respondent, Claude St. Amand, a builder, agreed to build a home in Welland for Tisi. Their mutual real estate agent, Alain Raby, prepared an Agreement of Purchase and Sale. St. Amand signed the Agreement electronically on November 2, 2016; Tisi signed it on November 4, 2016.

[3] In addition to signing the Agreement, Tisi made changes to Schedule D to the Agreement. Schedule D sets out the standard specifications for the home. In six places, Tisi struck out the phrase "builder's samples", and initialled the changes. These changes were not initialled by St. Amand, and the application judge found that St. Amand was unaware of them at the time.

[4] St. Amand began to build the home. But in mid-January 2017, the parties reached an impasse over the choice of supplier for the kitchen cabinets. Tisi was unhappy with St. Amand's choice of supplier. She wanted to use her own supplier, a company called Mission Cabinetry, and she insisted that St. Amand pay Mission Cabinetry a $20,000 deposit. St. Amand refused to use Mission Cabinetry because he did not know the company and could not warrant its work for the Tarion Home Warranty Program.

[5] With the impasse unresolved, each party then brought an application to court. St. Amand sought a declaration that the Agreement of Purchase and Sale was void. Tisi sought specific performance and tied up the property by putting a certificate of pending litigation against it. The application judge found in favour of St. Amand. At para. 37, she concluded that there was no valid Agreement, because "[t]hese parties were not on the same page" and "[t]here was never a true meeting of the minds."

[6] On her appeal, Tisi submits that the application judge made numerous errors of law in concluding that there was no valid Agreement of Purchase and Sale between the parties. She also seeks leave to introduce fresh evidence to show that St. Amand was aware of the changes to Schedule D before he began to build the home. In response, St. Amand also seeks leave to introduce fresh evidence. For the brief reasons that follow, we decline to admit the fresh evidence and we dismiss Tisi's appeal.

B. Discussion

(1) The Fresh Evidence Motions

[7] The application judge found that St. Amand first learned of Tisi's changes to Schedule D in January 2017, some two and half months after he signed the Agreement of Purchase and Sale. At para. 53 of her reasons she said: "[P]rior to this time, the amendments and interlineations were neither disclosed to him nor agreed to by him." Tisi seeks to undermine the application judge's finding by filing the affidavit of the parties' mutual real estate agent, Raby, whom Tisi has sued separately. If necessary, St. Amand seeks leave to file his affidavit to respond to Raby's affidavit.

[8] Paragraph 134(4)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43, permits this court to receive fresh evidence in a civil appeal. The test for admitting fresh evidence is well established. The party seeking to introduce the fresh evidence must show that the proposed evidence:

• Is credible;
• Could not have been obtained by reasonable diligence before trial or application; and
• If admitted, would likely be conclusive of an issue in the appeal.

The overriding criterion is that fresh evidence will be admitted only where it is in the interests of justice to do so. See: Center City Auto Sales Inc. v. Kalsatos, 2013 ONCA 373, at paras. 3-4; and Sengmueller v. Sengmueller (1994), 17 O.R. (3d) 208 (C.A.), at para. 9.

[9] Even if the evidence proffered by Tisi is credible and might be relevant to an issue on the appeal, it does not meet the "due diligence" requirement, and the interests of justice do not warrant its admission.

[10] A failure to meet the due diligence requirement is not always a bar to admitting fresh evidence. There are, however, cases where a failure to exercise due diligence renders the admission of the fresh evidence not in the interests of justice: see e.g. Stekar v. Wilcox, 2017 ONCA 1010, at para. 27; and Mason v. Mason, 2016 ONCA 725, 403 D.L.R. (4th) 64, at para 197. The due diligence requirement plays a particularly important role in civil proceedings, where the need for finality is a principal consideration:

Most often, evidence offered on appeal seeks to place different facts before the appeal court than were considered by the court of first instance. In the typical case, the appellant asks the appeal court to consider the new evidence in combination with the evidence adduced in the lower court, and to arrive at different factual findings based on the enhanced evidentiary record. In essence, the appellant asks for a reconsideration of the facts based on evidence not adduced in the court below. Finality concerns, especially important in civil proceedings, demand a restrictive approach to the admissibility of evidence on appeal. The due diligence inquiry, an important consideration in determining whether to admit fresh evidence on appeal, reflects the restrictive approach taken to the admission of fresh evidence on appeal. [Emphasis added.]

See: Iroquois Falls Power Corp. v. Ontario Electricity Financial Corp., 2016 ONCA 271, 398 D.L.R. (4th) 652, at para. 49, leave to appeal refused, [2016] S.C.C.A. No. 279.

[11] Stekar is a recent example of a case where an appellant's failure to meet the due diligence requirement alone was sufficient to bar admission of the evidence. In dismissing the motion for fresh evidence, the court observed at paras. 30-31 that:

With reasonable due diligence, [the individual whose evidence the appellant sought to proffer] could have been contacted before or during the trial — or even shortly after its conclusion, rather than many months after the release of the trial judgment. …

Nothing in the appellant's materials on his fresh evidence motion suggests that the information … could not have been obtained prior to or during the trial. To the contrary, the motion materials confirm that it was only after the release of the trial judgment that the appellant renewed his efforts to contact [the individual]. It is not open to the appellant, at this late date, to attempt to 'shore up' the case he led at trial by now introducing evidence that readily could have been obtained at a much earlier date upon the exercise of reasonable diligence. [Emphasis added.]

[12] The court's comments in Stekar are applicable to the present case. Raby's evidence could have been obtained before the applications were heard, instead of many months after the release of the application judge's judgment. The question when St. Amand became aware of the changes to Schedule D was a live issue before the application judge. Knowing that it was a live issue, and knowing that Raby – who prepared the Agreement of Purchase and Sale – might be able to offer evidence on this issue, Tisi seemingly chose not to contact Raby or lead his evidence.

[13] It is not in the interests of justice to admit the fresh evidence, both because of finality concerns, and because Tisi should not be permitted to try to shore up or recharacterize her case at this late stage with evidence she could have obtained much earlier. We therefore dismiss both motions.

(2) Did the Application Judge Err in Declaring That There Was No Valid Agreement of Purchase and Sale Between the Parties?

[14] In her factum, Tisi has set out a long list of alleged errors of law made by the application judge. None of these alleged errors bear on the essence of the application judge's reasons or what caused the parties' initial arrangement to fall apart.

[15] The application judge made two key findings of fact that are fatal to Tisi's position on appeal.

[16] The first finding relates to the interpretation of Schedule D to the Agreement of Purchase and Sale. Schedule D, under the heading "Cabinetry Package", stipulated: "Suppliers can vary based on purchaser's preference. Could be a Lowes Cabinet or from Upper Kitchen Cabinets Supplies." Tisi took the position that this clause entitled her to pick her own supplier for the kitchen cabinets.

[17] The application judge found otherwise. At para. 33, she found that "the agreement does not state Tisi could attend to a cabinetmaker of her sole choice."

[18] The second finding relates to the impact of Tisi's amendments to Schedule D on the validity of the Agreement. At paras. 34-37, the application judge observed that Tisi's amendments revealed the parties' inability to agree on material terms. On one hand, Tisi had made "not … insignificant amendments", which Tisi believed "permitted her to use whatever supplier she wished and compel St. Amand to pay". On the other hand, St. Amand had expected "that what would be used would be his builder's samples in accordance with his suppliers."

[19] And thus, the application judge found that, by Tisi's amendments to Schedule D and Tisi's understanding of the impact of these amendments, "Tisi made a fundamental change to the Agreement of Purchase and Sale". On this basis, the application judge concluded that the parties had "different perspectives of what is in this contract … [and] what it is intended to say", which demonstrated there had been no meeting of the minds.

[20] Both of the application judge's findings are entitled to deference from this court and we decline to interfere with them. These findings are sufficient to decide this appeal.

[21] Even apart from these findings, and setting aside the legal niceties of the case, St. Amand acted reasonably throughout and Tisi did not.

[22] St. Amand was reasonably justified in refusing to use a kitchen supplier he had never dealt with and in refusing to pay this supplier a $20,000 deposit from his own money. Even so, St. Amand proposed to Tisi that she contract directly with Mission Cabinetry and pay for its work, and that he would then give her a credit against the purchase price for the home. Tisi refused. She continued to insist St. Amand had to agree to pay for her choice of supplier. Her position was unreasonable and it was at odds with application judge's finding.

[23] Then Tisi asked St. Amand to put together a proposal for her to buy the home on an "as is" basis. St. Amand did so. Tisi never replied to the proposal. Instead, she registered a certificate of pending litigation against the property.

[24] The application judge might have looked at this dispute differently. But her decision is consistent with the equities of the case, which overwhelmingly favoured St. Amand.

C. Disposition

[25] The appeal is dismissed with costs, including the costs of the fresh evidence motions, in the amount proposed by St. Amand, $9,000, inclusive of disbursements and HST.

"John Laskin J.A."

"B.W. Miller J.A."

"David M. Paciocco J.A."