Mohammad Younas Dar v. The Yards Corporation and Mazhar Hussain, 2019 ONCA 362

Case Summary

The appellant appealed a motion judge's decision dismissing his claim for unconscionability and upholding the respondent's cross-motion for summary judgment. The appeal concerned a forfeiture clause in an agreement between a purchaser and vendor. The Court of Appeal deferred to the motion judge's finding that there was no unconscionability based on the circumstances and relationship between the parties. The court also found that while the damages document may have overstated the vendor's losses, the damages were significant and the forfeited amount was not out of all proportion to those damages, failing to meet the criteria established in Redstone Enterprises Ltd. v. Simple Technology Inc.

Court of Appeal for Ontario

Date: 2019-05-03 Docket: C65907

Judges: Doherty, Rouleau and Brown JJ.A.

Parties

Between

Mohammad Younas Dar Plaintiff (Appellant)

and

The Yards Corporation and Mazhar Hussain Defendants (Respondent)

Counsel

Harinder Dhaliwal, for the appellant

Gasper Galati and Dina Peat, for the respondent

Hearing and Lower Court

Heard: May 2, 2019

On appeal from: The judgment of Justice O'Connell of the Superior Court of Justice, dated August 23, 2018.

Appeal Book Endorsement

[1] We defer to the motion judge's finding that, having regard to the circumstances surrounding the making of the agreement and the relationship between the parties, there is nothing that would justify a finding of unconscionability.

[2] Even if the document purporting to identify the damages suffered by the respondent (vendor) was properly received by the motion judge, it obviously overstated the damages suffered by the vendor. However, the damages were nonetheless significant and beyond the mere difference in the purchase price. We cannot say that the amount forfeited by the appellant (purchaser) under the agreement was "out of all proportion to the damages suffered". The appellant has not met the criteria laid down in Redstone Enterprises Ltd. v. Simple Technology Inc., 2017 ONCA 282.

[3] The respondent's cross-motion for summary judgment was properly granted. The appeal is dismissed. Costs to the respondent in the amount of $9,000, inclusive of disbursements and relevant taxes.