COURT FILE NO.: CV-20-00003492 DATE: 20220228

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

MANSOOR AHMAD AND ALI AHSAN Plaintiffs – and – MANAR ASHASK and EVAN ONEER SADIK Defendants

Counsel: Bhupinder Nagra, for the Plaintiffs Dennis Van Sickle, for the Defendants

HEARD: October 12, 13 and November 25, 2021

REASONS FOR JUDGMENT

J. Di Luca J. :

[1] This action arises from a failed real estate deal involving a residential property. The plaintiffs seek specific performance of the Agreement of Purchase and Sale. They want the house they contracted to buy and want it for the agreed upon price. The defendants argue that the parties never formed a valid contract, and in the alternative, that damages are the appropriate remedy, not specific performance.

[2] This matter first came before me as an application on September 3, 2021. After hearing initial submissions from counsel, it became readily apparent that significant factual issues and credibility assessments were required in order to fairly determine the dispute. As a result, I made an order directing a trial before me.

[3] The trial was heard on October 12 and 13, 2021. By agreement, the affidavits filed by the parties served as their evidence in-chief and opposing counsel conducted viva-voce cross-examinations. The evidence was supplemented by submissions made on November 25, 2021, following which I reserved my decision. I now provide my reasons.

[4] I will start with a review of the relevant portions of the evidence in order to provide an overview of the factual landscape. I note that the defendants raise issues about the veracity of their own initial affidavits and, as a result, I will review the unfolding of the defendants’ evidence in some detail. Later in these reasons, when I address the specific legal issues raised, I will set out my findings of fact and credibility determinations.

The Search for a Suitable Property

[5] In April of 2020, the plaintiff, Mansoor Ahmad, decided he wanted to purchase a residence for his family. At that time, he was living in a two-bedroom apartment along with four other family members.

[6] The co-plaintiff, Ali Ahsan, is Mr. Ahmad’s nephew. He did not testify at trial and it appears that he had no significant role in the events relating to this matter.

[7] In order to find a suitable property, Mr. Ahmad retained the services of a licensed real estate agent, Mr. Tahir Mangatt. Mr. Ahmad and Mr. Mangatt were friends and had known each other for approximately 10 years.

[8] According to Mr. Ahmad, he provided the following search criteria for the property:

a. Purchase price between $850,000 and $875,000; b. Double car garage; c. Corner lot; d. At least four bedrooms; e. Move-in ready with no carpet; f. Ideally in Bradford area and the mosque, prayer centre and highway; g. At least 2500 sq. ft. in size with 9 ft. ceilings on both main and upper levels and a laundry on the main level; h. A driveway with parking for at least 4 cars; and, i. A good size backyard requiring limited maintenance.

[9] Mr. Mangatt confirms that he was provided with a list of search criteria, though the list he provides in his affidavit is, in some regards, different:

a. Purchase price between $750,000 and $850,000; b. Double car garage with a large driveway; c. Good size lot to accommodate extra parking; d. Four bedrooms; e. Move ready condition, no carpet and no renovations needed; f. Ideally in Bradford area and near the mosque, prayer centre and highway; g. At least 2500 sq. ft. in size with good ceiling height (which is 9 ft. or higher in current market) on main and upper floor; h. Driveway with parking for four cars; i. Good sized backyard with no maintenance required; and, j. No more than 10 years old.

[10] Mr. Ahmad testified that he communicated with Mr. Mangatt mainly by telephone and in person. He denied sending any emails or texts regarding the property search criteria and explained that he would have conveyed the search criteria verbally around April of 2020. Mr. Mangatt took no notes of the property search criteria and had no other documentation confirming the specific criteria provided.

[11] Mr. Ahmad explained that all of the search criteria were important to him, but not all were “mandatory.” In particular, he agreed that criterion (g) relating to the size of the home, ceiling height and laundry location and criterion (i) relating to the condition of the backyard were not mandatory requirements.

[12] Mr. Ahmad agreed that there was an element of compromise and flexibility on some of the search criteria. That said, the budget and the proximity to religious services were key features he was looking for. He was unclear on whether the corner lot location was something he would be flexible on.

[13] Mr. Mangatt explained that it was his understanding that all of the search criteria were important, but some were more important than others. While his evidence was not entirely clear, he essentially agreed that there was some flexibility to the search criteria provided.

[14] Based on the search criteria, Mr. Mangatt located approximately 30 different listings which were forwarded to Mr. Ahmad by email. Mr. Ahmad reviewed the listings for approximately 20 to 30 properties, and arranged to view between 10 and 15 properties, including one which was not in Bradford and a few that were not on corner lots. For a variety of reasons, none of these properties were an acceptable match.

[15] Mr. Mangatt then found the listing for the subject property at 100 Hopkins Crescent in Bradford. The property was listed for $879,000 and it was a property that met many of the search criteria. Mr. Mangatt arranged for a viewing and Mr. Ahmad and his family went to see the property. According to Mr. Ahmad, he and his family “loved” the property and it had everything they needed. It was professionally upgraded and needed no further renovations. It was located close to Highway #400 which was important to Mr. Ahmad given his employment as a truck driver. Of significant importance, the home was located approximately 800 metres from the Ahmadiyyan Muslim Community prayer centre located in a residence at 239 Armstrong Crescent.

The Events Relating to the Agreement of Purchase and Sale

[16] After seeing the property, Mr. Ahmad immediately decided to put in an offer for $840,000. The offer was signed back and it appears that there was some further negotiation on the price as set out in the annotations on the Agreement of Purchase and Sale. Ultimately, it appears that Mr. Ahmad agreed to purchase the property for $865,000 with a $25,000 deposit.

[17] In terms of timing, the initial offer was made on June 27, 2020. The initial offer resulted in various sign backs and counteroffers which were made on June 28 and 29, 2020. The various sign backs and counteroffers resulted in amendments to the Irrevocability Clause, which extended the applicable deadlines for acceptance. While the exact timing of the acceptance of the final sale price by the plaintiffs is an issue I will deal with later in these reasons, the Agreement of Purchase and Sale was finally accepted on June 30, 2020.

[18] In accordance with the agreement, the plaintiffs paid the required deposit of $25,000. The deposit was accepted by the defendants without issue.

[19] The agreement had an anticipated closing date of September 29, 2020, and was conditional on financing and an inspection. While the defendants now dispute this, it appears that these conditions were waived on July 15, 2020 and July 7, 2020, respectively. I will address the waiver issue later in these reasons.

[20] On September 22, 2020, as the September 29, 2020 closing date was approaching, the plaintiffs’ real estate counsel, Mr. Gurpreet Singh Mangat, sent a requisition letter to the defendants’ real estate counsel, Mr. Rocco Russo.

[21] After the requisition letter had been sent, the defendants made a request to extend the closing date to November 30, 2020. The reason conveyed for the request was that the defendants had learned of liens on the property that had been placed by the Canada Revenue Agency (“CRA”) and they needed time to have the liens removed in order to convey clear title.

[22] This request was conveyed to the plaintiffs by Mr. Mangatt. Mr. Ahmad had already given notice to his landlord. However, he managed to extend his tenancy until November 30, 2020. Mr. Ahmad agreed to extend the closing date in order to accommodate the defendants’ request.

[23] An Amendment to the Agreement of Purchase and Sale was prepared on September 24, 2020, and was irrevocable by the defendants until 11:00 p.m. on that same date. This amending agreement substituted a new closing date of November 30, 2020, and also sought to include a new clause relating to the assumption of rental contracts for an air conditioner and a hot water tank. The issue relating to rental contracts was new and had not been discussed prior.

[24] According to Mr. Mangatt, he delivered the amending agreement to the plaintiffs in person as they were anxious and concerned about the proposed extension. Following discussions between Mr. Mangatt and the plaintiffs, Mr. Mangatt contacted the defendants’ real estate agent, Mr. Corvinelli, and asked him to disclose the cost of the rental contracts that the plaintiffs were being asked to assume.

[25] Under the section titled “Confirmation of Acceptance”, it appears that the plaintiffs signed the document at “10100 p.m.” Both Mr. Mangatt and Mr. Ahmad testified that the document was physically signed at 10:00 p.m. and in any event, before the expiry time of 11:00 p.m.

[26] Mr. Mangatt acknowledged his understanding that the amending agreement had to be accepted before 11:00 p.m. or it would expire, leaving the original closing date in place. He further acknowledged that while all the documents relating to the deal were signed electronically using a time stamped digital signature computer program, this amending agreement was signed in person using a pen. As such, the amending agreement has no electronic date stamp setting confirming the precise time of the signatures. Mr. Mangatt agreed that he did not affix his signature as a witness even though he could have. Nonetheless, Mr. Mangatt maintained that the document was signed in his presence before the expiry time of 11:00 p.m.

[27] According to Mr. Mangatt, once the document was signed, he spoke with Mr. Corvinelli by telephone and advised him that his client had accepted the proposed amendments. Mr. Mangatt did not, however, provide the signed amending agreement to Mr. Corvinelli at that time as he still had not received the final figures for the rental contracts. That said, he assured Mr. Corvinelli that once the figures were received, he would release the signed amending agreement and he did so a day or two later once the rental figures were provided.

[28] Mr. Mangatt explained that while he held back the signed amending agreement pending confirmation of the rental figures, he likely would have provided it even if the figures had not been disclosed. In his view, the house was an ideal fit for the plaintiffs and the rental amounts would not likely have been a deal breaker.

[29] Mr. Mangatt also confirmed that on September 26, 2020, he received a revised amending agreement with a new deadline. Mr. Mangatt understood that this was provided by Mr. Corvinelli because Mr. Corvinelli was concerned that the time for accepting the original amending agreement had passed. Mr. Mangatt explained that a new amending agreement was not required as he had in his possession the original amending agreement which had been signed on time.

[30] I pause to note that Mr. Mangatt’s version of events on the issue of the amending agreement stands without direct contradiction. The defendants did not call Mr. Corvinelli as a witness.

[31] As the new closing date neared, Mr. Ahmad and his family began packing and were excited about the upcoming move. On November 16, 2020, Mr. Mangatt received an email from the defendants’ real estate agent, Mr. Corvinelli, advising that the respondents were seeking litigation counsel and that there was a problem with the closing.

[32] The plaintiffs were “completely taken aback” as they were ready to close the deal. They had given notice of their intention to vacate their rented apartment and were advised by their landlord that they had to vacate by November 30, 2020, as the landlord had arranged for new tenants.

[33] The plaintiffs immediately retained counsel who, on November 23, 2020, wrote to real estate counsel for the defendants advising that the plaintiffs were ready and able to close the deal as agreed upon, failing which would be immediately bringing an application in court seeking specific performance. The defendants’ real estate counsel replied and advised that he was no longer acting for the defendants.

[34] On November 25, 2020, plaintiffs’ counsel sent an email to Mr. Corvinelli, attaching a copy of the earlier letter to real estate counsel and providing the defendants until the end of the day to confirm that the closing was proceeding. As no response was received, the plaintiffs commenced an application on November 26, 2020 seeking specific performance of the Agreement of Purchase and Sale or in the alternative, damages.

[35] The real estate deal never closed.

The Defendants’ Version of Events

[36] Ms. Evan Oneer Sadik is Mr. Manar Ashask’s wife. They are the joint owners of the subject property, where they reside along with their children.

[37] When served with the initial application, the defendants retained counsel who prepared affidavits for them, both dated May 4, 2021. Three days later, the defendants changed counsel and revised affidavits were prepared, both dated May 7, 2021.

[38] The May 7, 2021, affidavit from Ms. Sadik recants certain aspects of her May 4, 2021 affidavit and seeks instead to adopt Mr. Ashask’s May 7, 2021 affidavit. While defendants’ counsel sought to rely only on her May 7, 2021 affidavit as her evidence in-chief at trial, she was cross-examined on her May 4, 2021 affidavit extensively and it was admitted as an exhibit in cross-examination. For ease of reference, I review the affidavits filed in chronological order.

[39] In her May 4, 2021 affidavit, Ms. Sadik states that she and her husband are struggling financially and have no other place to live. She explains that they bought the house for $870,000, and it is subject to a first mortgage of $696,000 and a second mortgage of $70,000. She notes that $656,542 is owing on the first mortgage and the second mortgage is in default and subject to an action commenced by the mortgagee. The amount owing on the second mortgage is $85,696. She lists other debts including property tax arrears and a vehicle finance charge. She also explains that neither she nor her husband are gainfully employed.

[40] Importantly, Ms. Sadik confirms that “a few weeks before the scheduled completion” of the agreement to sell the home, she learned of the CRA liens totaling $76,835 which were in relation to Mr. Ashask’s tax debts.

[41] Mr. Ashask also swore an affidavit on May 4, 2021, which was included in the response to the application. In this affidavit, Mr. Ashask asserts that he has read the affidavit provided by his wife and believes its contents to be true. He also explains that he and his wife are not in a position to meet their financial commitments in order to close the sale of the home. He further states that he has been “trying to work with an insolvency professional” and believes that he could sell the house to pay off debt and help with the couple’s financial difficulties. He also explains the efforts he undertook upon learning of the CRA liens.

[42] In these initial affidavits, both Ms. Sadik and Mr. Ashask assert that apart from any equity in the home, they have no other assets.

[43] On May 7, 2021, Ms. Sadik swore another affidavit. In this affidavit, she claims that she did not read the May 4, 2021 affidavit before signing it. She further explains that she is not fluent in English and the first affidavit was translated into English by her son, Emmanel. She claims she did not understand everything that was in the original affidavit. She further states Mr. Ashask has now translated her original affidavit for her as well as his new affidavit dated May 7, 2021. She asserts that she agrees with everything in Mr. Ashask’s new affidavit.

[44] Appended to her May 7, 2021 affidavit is a sworn solemn declaration signed by Mr. Ashask asserting that he is competent to translate from Assyrian to English and is fluent in both languages. He also asserts that he translated his May 7, 2021 affidavit and Ms. Sadik’s affidavit of the same date. Interestingly, he does not assert that he translated Ms. Sadik’s May 4, 2021 affidavit.

[45] In his May 7, 2021 affidavit, Mr. Ashask asserts “English is my second language. I have a limited ability to read and write in English.” He does not specifically address the contents of his May 4, 2021 affidavit. He also asserts the following:

a. The parties entered in an Agreement of Purchase and Sale for the subject property on June 27, 2020; b. While the agreement was conditional upon an inspection and financing, neither he nor Ms. Sadik were aware of these conditions; c. He denies that these conditions were waived in a timely fashion, and suggests that the Agreement of Purchase and Sale has been void as of July 6, 2020; d. The plaintiffs failed to tender on September 29, 2020, the date scheduled for closing; e. The parties never agreed to amend the Agreement of Purchase and Sale and the purported amendment to the Agreement of Purchase and Sale is fraudulent; f. The amending agreement was not accepted by the plaintiffs before 11:00 p.m. on September 24, 2020 and as a result, the proposed amendment became void leaving the original closing date of the agreement in place; g. The amending agreement was signed after September 24, 2020. On this issue, Mr. Ashask refers to a text message purportedly received from Mr. Corvinelli as proof of this assertion. I pause to note again that Mr. Corvinelli was not called as a witness. As I will discuss later in these reasons, his text and email statements are not admissible for the truth of their contents. In any event, his text message does not support the meaning ascribed to it by Mr. Ashask, it merely confirms that at 9:19 p.m., Mr. Corvinelli sent a revised amending agreement for Mr. Ashask to sign and then followed up the next day. h. While Mr. Corvinelli sent a revised amending agreement on September 24, 2020, extending the Irrevocability Clause to September 25, 2020, Mr. Ashask and his wife intentionally declined to sign it. i. On September 28, 2020, Mr. Corvinelli sent an email suggesting that the amending agreement had in fact been signed on September 24, 2020. This email shocked Mr. Ashask. He sent a reply to Mr. Corvinelli but never received a further response.

[46] On July 14, 2021, Mr. Ashask swore a third affidavit, in which he asserts the following:

a. The time stamps on the plaintiffs’ signatures which finalized the initial Agreement of Purchase and Sale are 3:46 p.m. and 3:47 p.m., respectively, though the time of acceptance is stated as 2:15 p.m. The initial offer was open for acceptance until 2:30 p.m. and as such, the acceptance occurred once the offer had already expired and was therefore invalid. Mr. Ashask claims that he only learned of this on September 25, 2020. b. The plaintiffs failed to waive the finance condition in a timely fashion, and failed to execute an amendment to extend the finance condition in a timely fashion. In any event, the plaintiffs also failed to waive the finance condition by the purported new date. c. There was an issue between Mr. Ashask and Mr. Corvinelli regarding the agreed upon real estate commission, which was to have been resolved by Mr. Corvinelli providing an updated commission agreement. He failed to do so as of September 29, 2020. d. There was also an issue regarding the proper attribution of the expenses relating to the air conditioner and hot water tank. According to Mr. Ashask, Mr. Corvinelli failed to properly account for the fact that Mr. Ashask had pre-paid an amount for the air conditioner and should have been entitled to a credit for the amount. e. On September 27, 2020, Mr. Ashask attended at Mr. Corvinelli’s main office and met with the broker in charge, Mr. Friedman. He told Mr. Friedman about the “void offer to sell” and commission issues and indicated that he would not sign the new amending agreement unless certain conditions were met. He asked Mr. Friedman to return the deposit to the plaintiffs. f. On November 16, 2020, Mr. Ashask again met with Mr. Friedman and the owner of the brokerage. He re-iterated his earlier complaints and concerns and again asked that the deposit be returned. He followed up this meeting with an email to Mr. Corvinelli on November 27, 2020.

Cross-Examination of the Defendants

(i) Evan Oneer Sadik

[47] At the outset of her cross-examination, Ms. Sadik stated that her May 4, 2021 affidavit was only partially true. She explained that she does not know how to read English and that the affidavit was translated to her in Arabic when she swore it. She further explained that the lawyer who prepared the affidavit added things that were not true.

[48] Ms. Sadik confirmed that in the cross-examination on her affidavit conducted on August 5, 2021, she stated that the affidavit was true and accurate. However, she explained that she may have been confused and/or mistaken when she said this. She stated that she was confused because she swore two affidavits, one on May 4 and one on May 7, 2021.

[49] Ms. Sadik was then taken through the contents of her May 4, 2021 affidavit in an effort to determine which paragraphs were true and which were false. She agreed that many of the facts stated in the May 4, 2021 affidavit were true and accurate.

[50] For example, she agreed that the home was encumbered with two mortgages, a first mortgage in the amount of $696,000 and a second mortgage in the amount of $70,000. She agreed that they were in arrears on property taxes. She also agreed that neither she nor her husband were currently earning employment income.

[51] Ms. Sadik sought to retract, modify or qualify many of the other facts asserted in the affidavit. For example, Ms. Sadik denied that the family was “struggling financially” and wanted to sell to home to ease their financial burden and pay off debts. She described one paragraph stating such an assertion as “a lie.” She explained that the family did not have financial difficulties and the reason why the family was selling their home was so they could move closer their son’s school. When challenged on why she never mentioned this fact during the cross-examination on her affidavit, she maintained that she had in fact stated it, but the interpreter must not have interpreted the comment properly.

[52] Ms. Sadik agreed that they were in arrears of $5,895 of property taxes but denied that this was related to financial difficulties the family was facing. She maintained that the property tax arrears were to be paid from proceeds of the house sale.

[53] While Ms. Sadik agreed that they had been unable to pay the second mortgage on their home, she suggested that this assertion related to an inability to pay off the whole mortgage not the monthly payments. When directed to the portion of the affidavit that states “It [the second mortgage] is in default”, Ms. Sadik maintained she the does not know what “default” means. Nonetheless, she acknowledged that an action had been commenced against her and her husband by the second mortgagee.

[54] In relation to the paragraph wherein she asserts, “we entered into an agreement of purchase and sale…”, Ms. Sadik explained that she did not know how to read and write English and did not understand what she was signing. She merely trusted the real estate agent who told her to sign. When confronted with her cross-examination answers wherein she said she understood that they were selling their home, she explained that her answers were correct, she understood that they were selling the home but did not understand what the “papers” were. Nonetheless, she acknowledged that she knew the house was selling for a specific price, knew that there was a specific closing date and further knew that as a result of the CRA liens, her real estate lawyer advised that they could not close on the scheduled date.

[55] In terms of the extension of the closing date, while Ms. Sadik agreed that they asked for the extension, she denied signing the amendment agreeing to the extension. She explained that her husband changed his mind and did not want to sell the home any longer as there were problems with the agreed upon commission and there were “mistakes in the papers.” She elaborated that the problem with the commission related to an agreement with their real estate agent to work for a reduced commission which was never properly reflected in the paperwork. She explained further that when her husband started going through the documents carefully, he noted problems with the plaintiffs’ signatures and then realized that something was wrong.

[56] Towards the end of her cross-examination, Ms. Sadik confirmed that since the commencement of these proceedings, she and her husband had re-financed the home and paid out the second mortgage. They did this despite the presence of a Certificate of Pending Litigation (“CPL”) on title. The new second mortgage was for approximately $200,000. When asked whether she and her husband had received approximately $69,000 in equity out of the home once the new second mortgage was used to pay off existing debts, Ms. Sadik replied that she was unsure of the amount. She denied knowing that the new second mortgage was also now in default and that the home was subject to a Notice of Sale.

[57] Ms. Sadik did, however, agree that she and her husband re-listed the property for sale for $1.159 million with a listing agreement dated July 23, 2021. When counsel suggested that this was done at a time when she knew that plaintiffs were seeking specific performance of the Agreement of Purchase and Sale, she explained that the plaintiffs do not “deserve the house” because of all the “paper forging.”

(ii) Manar Ashask

[58] Mr. Ashask denied any knowledge of his initial affidavit. He explained that the lawyer he had at the time, “just opened the camera” and said, “just sign.” He signed the affidavit without reading it and without an oath or affirmation being administered. Mr. Ashask explained that he trusted the lawyer who prepared the affidavit but the lawyer then “stabbed him in the back.” He also trusted other lawyers involved with the real estate deal and they too “stabbed him in the back.”

[59] Contrary to the assertion in his May 4, 2021 affidavit, Mr. Ashask denied reading his wife’s affidavit of the same date and claims he had no knowledge of its contents until he read it later. He explained that while his son interpreted the affidavit for his wife, she did not know what was in it.

[60] Despite the assertions contained in his May 4, 2021 affidavit, Mr. Ashask very strongly disagreed that he was having financial trouble at the time. When directed to a passage in the May 4, 2021 affidavit, wherein he asserts that he was in no position to meet his financial commitments, he explained that the assertion was not true and went on to explain he had recently sold two units for $1.2 million and made a profit of $280,000. He explained that his counsel knew about this even though it was not reflected in the affidavit.

[61] Mr. Ashask also repeatedly explained that had no trouble with finances. He denied having difficulties with the CRA or being in arrears on property taxes. He explained that his accountant had made errors. He also explained that he had not paid property tax because the size of his property had not been properly reflected in the property tax assessments.

[62] While he agreed that he was in default on the second mortgage, he maintained that it was not due to financial difficulties. Rather, it was related to COVID and he simply needed two months to pay the arrears. Nonetheless, he agreed that the second mortgage went to a power of sale and ultimately resulted in the issuance of a Statement of Claim, though he maintained that he had never received a default notice.

[63] When directed to the paragraph of his affidavit which asserts that he and his wife have no assets apart from the home, he explained that the paragraph “is false” and that he has a lot of money “back home.” He clarified that the paragraph related to assets in Canada and explained that back home he buys and sells cars, has money and also has land worth $1 million.

[64] In terms of the stated intention to file for bankruptcy, Mr. Ashask again denied the veracity of his affidavit. He explained that it was his lawyer’s idea to include the assertion, not his own. He denied the suggestion that he had admitted to having financial difficulties during his earlier cross-examination.

[65] In terms of the CRA liens, he recanted the assertion in his affidavit suggesting that he was not in a position to clear the liens. He maintained that it was his accountant who caused the problems with the CRA and not an issue stemming from his financial condition.

[66] Mr. Ashask repeatedly placed blame on the professionals he hired to assist with various tasks. He explained that his accountant caused the problem with the CRA liens. He complained to Law Society over the conduct of his real estate lawyer. He blamed his earlier litigation counsel for the inaccurate affidavit material and shoddy advice. He also blamed the real estate agents involved in the deal, noting that “they are the big fault.”

[67] In particular, he blamed Mr. Corvinelli, whom he felt pressured him to sell the house. He explained that it was Mr. Corvinelli who suggested listing the home for $879,000 and not $889,000 which was a price that Mr. Corvinelli felt was unobtainable. He denied that one of the reasons for agreeing to the suggested listing price was because the second mortgage on the property was in default.

[68] When Mr. Ashask was directed to the Agreement of Purchase and Sale, he maintained that he did not sign the document and did not “click these things”, referring to the various initials that appear on the first page. He explained that it was his wife who was “clicking” on the signatures and initials and she was doing it at Mr. Corvinelli’s urging.

[69] Nonetheless, Mr. Ashask admitted that he agreed to sell the property for $865,000, but maintained that he did not agree to the specific price which was at Mr. Corvinelli’s insistence. He also denied initialling the changes in relation to the price, though he admitted that he knew that the initial closing date was September 29, 2020.

[70] While Mr. Ashask had a recollection of the conditions included in the Agreement of Purchase and Sale, he maintained that did not understand them. He also claimed to have no knowledge of an amendment to one of the condition clauses that extended the date for the waiving of the condition. Lastly, he denied any knowledge that the conditions were waived and suggested that the first time he saw the waivers was when they were filed in court.

[71] He denied any knowledge of the requisition letter that was sent to his real estate lawyer in relation to the anticipated closing of the deal, suggesting he knew “nothing…zero…” about it. That said, he agreed that as of September 2020, he believed that the deal was proceeding to closing.

[72] In terms of the discovery of the CRA liens, Mr. Ashask explained it was not a big issue. He maintained that he did not seek an extension of the closing date in order to deal with the liens, though he agreed that he was advised to do so by his real estate lawyer.

[73] When asked why he could not close the deal as planned on September 29, 2020, Mr. Ashask explained that he believed the documents for the deal were fraudulent. He also learned that provisions were not made for the cost of an air conditioner and hot water rental that had been pre-paid. He wanted these issues addressed as they had not been mentioned in the Agreement of Purchase and Sale. As well, he had not received confirmation from Mr. Corvinelli regarding an agreed upon reduction in the real estate commission.

[74] According to Mr. Ashask, the real reason he needed the extension was in order to deal with the other issues on the deal. To that end, Mr. Ashask went to speak with Mr. Corvinelli’s manager on September 27, 2020 and complained about the state of the documents.

[75] When shown the Amendment to the Agreement of Purchase and Sale relating to the extension of the closing date, Mr. Ashask explained that he never agreed to the extension and in fact never asked for it. His son read the document to him and he signed it without knowing what it meant. Mr. Ashask agreed that the document made reference to the air conditioner and hot water rental, but stated that the document did not address the issue relating to the reduced commission.

[76] Furthermore, Mr. Ashask explained that in his view the document was “fraudulent” as it was not signed by the plaintiffs prior to the expiry of the 11:00 p.m. deadline. He explained that he had “proof” from Mr. Corvinelli that the document was not signed on time.

[77] Based on his view of the “fraudulent” documents, Mr. Ashask refused to sign a further amended agreement that Mr. Corvinelli prepared. By this time, he had decided that the plaintiffs were never going to get his home, no matter how much money they offered. Mr. Ashask claims he was shocked when he eventually learned that the document granting an extension of the closing date had been signed.

[78] On September 27, 2020, Mr. Ashask claims he advised Mr. Corvinelli’s manager that he would not sell the house. In his view, “everything stopped” on September 27, 2020. The deal was over and there was no closing scheduled for November 30, 2020, and no keys were provided to the real estate agent in advance of the original closing date of September 29, 2020.

[79] When shown a letter from his real estate lawyer, Mr. Russo, to Mr. Mangat, the real estate lawyer for the plaintiffs, dated October 30, 2020, which indicated that Mr. Russo had been discharged that day, Mr. Ashask could not explain why his real estate counsel continued to act for him more than one month after the deal was supposedly terminated. Mr. Ashask maintained that this letter was sent without his knowledge.

[80] Mr. Ashask was asked about emails with Mr. Corvinelli dated November 16, 2020 and relating to the issue of the commission. Mr. Ashask again could not explain why he was engaged in these discussions if the real estate deal had been terminated as of September 27, 2020.

[81] Mr. Ashask was also asked questions about the current state of the property. He admitted knowledge of the CPL that had been permitted by order of M.L. Edwards J. He agreed that notwithstanding the CPL, he obtained a new second mortgage that allowed him to take approximately $68,000 in equity out of the home. He also admitted that he was now in default of the new second mortgage and that notice of sale had been given and an action had been commenced. That said, Mr. Ashask maintained the mortgagee was at fault for the default on the mortgage and not him.

[82] Mr. Ashask also agreed that he re-listed the property for sale, despite the lawsuit, for a price of $1.159 million. He denied that the almost $300,000 price increase was the real reason why he refused to close. He emphatically asserted “I will never sell to them, even if they come with $2 million.”

Evidence of Uniqueness and Value of Home

[83] Mr. Ahmad and Mr. Mangatt gave evidence on the uniqueness of the subject property in support of the claim for specific performance. As set out already, Mr. Ahmad had a list of criteria that he wanted and Mr. Mangatt tried to find properties that had as many of the specified criteria as possible. Both assert that the subject property was a perfect and instant fit as it met most of the search criteria. Mr. Mangatt asserts that in November 2020, he was unable to find a comparable home at the same price point as prices had, by then, increased.

[84] Mr. Mangatt was not qualified as an expert in real estate values. He did not sign an Acknowledgement of Expert’s Duty. He agreed that he has a financial stake in the outcome of the trial. In particular, he acknowledged that if specific performance is ordered, he stands to receive a commission of approximately 2.5% or roughly $21,600, but if the action is dismissed he gets nothing.

[85] Mr. Mangatt’s evidence was proffered as essentially participant lay opinion that the subject property is unique. In this regard, he explained that prices for similar properties have increased significantly since July 2020. In his initial affidavit, he provides listings for two roughly comparable homes with a price of approximately $1.1 million, though he notes that both of these properties do not share the same key attributes as the subject property. He also notes that the increase in market values has resulted in home selling above their asking price. In his reply affidavit, Mr. Mangatt provides further listings reflecting increasing home values. He opines that as of July 2021, a comparable home would be valued between $1.25 and $1.3 million.

[86] The defendants called Ms. Indra Kissoon to give expert evidence on the uniqueness and value of the home. Ms. Kissoon signed an Acknowledgment of Expert’s Duty. She is a licensed realtor who has been representing buyers and sellers of residential real estate since 2008. She is also a licensed real estate broker. While she has bought and sold homes in many geographic areas, her main area of focus is the area north of Toronto, including Bradford.

[87] Ms. Kissoon opines that there is nothing specifically unique about the subject property. In her view, there were other properties available at the time that better met the plaintiffs’ search criteria. She also opines that the fair market value of the subject property would have been $905,700 on September 29, 2020, and $911,800 as of November 30, 2020. She based these figures on comparable properties that were for sale in the same geographic area at the relevant times. As of July 13, 2021, she estimates that the property has a current market value of $1.17 million.

Analysis and Findings

[88] The plaintiffs argue that the initial Agreement of Purchase and Sale was validly executed and binding. They argue that they waived the conditions on the agreement in a timely fashion, and then very fairly agreed to extend the closing date to accommodate the defendants who ran into financial trouble as a result of CRA liens which had been placed on the property. The plaintiffs were ready, willing and able to close the deal on either September 29, 2020 or November 30, 2020, and it was the defendants who repudiated the contract. Given the uniqueness of the home and the conduct of the defendants, the plaintiffs claim that the only appropriate remedy is specific performance.

[89] The defendants raise three main arguments. First, they argue that as a result of the plaintiffs’ failure to accept the initial signed-back offer in a timely fashion, no valid agreement of purchase and sale ever came into effect. Second, they argue that the plaintiffs failed to waive the conditions in a timely fashion and that this failure voided the agreement, assuming one had even been reached. Lastly, the defendants argue that the plaintiffs back-dated the amending agreement to make it look like they had accepted the new closing date in a timely fashion. As a result, there was no change to the closing date and the original closing date remained in effect. As the plaintiffs failed to tender on the original closing date, they are at fault for repudiating the deal. The defendants argue that there is no liability for breach of contract, but if there is, the appropriate remedy is damages and not specific performance.

[90] Having considered the arguments in context with the evidence, I am readily satisfied that the parties entered into a valid agreement of purchase and sale. I am also satisfied that the conditions were waived in a timely fashion. I am further satisfied that as the initial closing date approached, it was the defendants who sought an extension of the of the closing date as they were not in a position to close given their discovery of the CRA liens on title to the home. I accept the evidence that the amendment to the agreement of the purchase and sale was executed in a timely fashion. I find that at the time of the amendment, Mr. Ashask had a change of heart and decided he no longer wanted to sell the home to the plaintiffs. I find that Mr. Ashask came to believe that he had been taken advantage of in the deal. This view was likely fostered by changing market conditions and also by his unsubstantiated belief that the plaintiffs and a number of the professionals involved in this case all committed various wrongs against him. The reality is that Mr. Ashask simply decided he was not going to sell his home to the defendants no matter what they were willing to pay.

[91] I find that the defendants openly and intentionally repudiated the Agreement of Purchase and Sale. While in the ordinary course, a measure of damages would be appropriate, in the circumstances of this case, I am satisfied that specific performance is appropriate.

Overall Credibility Assessments

[92] I commence my analysis of the issues with some overall credibility assessments.

[93] I find Mr. Ahmad to be a generally credible witness. He gave his evidence in a straightforward and consistent fashion. He was not significantly impeached on any significant issues. His evidence was also cohesive and consistent with the documentary evidence followed. When compared with Mr. Ashask and Ms. Sadik, I have no hesitation accepting Mr. Ahmad’s evidence wherever it is inconsistent with theirs.

[94] In terms of Mr. Mangatt, he too gave his evidence in a relatively straightforward and consistent manner. While he was not impeached on any issue of significance, he did agree that he had a financial stake in the outcome of this case. He also purported to offer objective opinion evidence on the value of the home despite being a participant witness in the matter and despite his financial stake in the case. While I mainly accept his evidence in terms of the events leading up to and after the Agreement of Purchase and Sale, I place little weight on his evidence where it purports to provide an objective opinion on the value of the home.

[95] Turning to the defence evidence, I find both Mr. Ashask’s and Ms. Sadik’s evidence to be almost entirely lacking in credibility. Their evidence was composed of a string of convenient denials that did not withstand the scrutiny of cross-examination.

[96] I do not accept their explanation for the content of the initial affidavits filed on the application. On their evidence, their initial litigation counsel concocted a fraudulent version of events focussed on financial difficulties that did not exist, then had them swear the affidavits without having them properly translated or even reviewed for accuracy. I find this explanation entirely implausible and I reject it.

[97] I find that their evidence had a malleable quality to it. It appeared to change and shift as needed to accommodate the arguments they wanted to advance. To give an example, Mr. Ashask repeatedly denied knowledge of the nature of the documents used in the transaction. He explained that he did not understand the documents and/or did not sign them. However, in many instances, cross-examination revealed that he actually understood and/or had signed the various documents despite his assertions otherwise. In other instances, he explained in detail how he “studied” the documents and discovered that they were “fraudulent.”

[98] As well, both Mr. Ashask and Ms. Sadik were impeached on a number of inconsistencies both internal and external, including inconsistencies with earlier sworn evidence. I will note a couple examples out of many available on the evidence. As between them, they were inconsistent on the issue of who sought the extension of the closing date. Ms. Sadik agreed that they sought the extension, though she denied signing any documents in this regard. Mr. Ashask repeatedly maintained that they never sought the extension, despite the various documents and evidence suggesting otherwise. Both Mr. Ashask and Ms. Sadik admitted to having sworn affidavits that were contradictory to later affidavits and evidence, though they sought to blame the contradictions on their lawyers and their lack of facility with the English language. Both Mr. Ashask and Ms. Sadik maintained that they had no financial difficulties despite the fact that both of their second mortgages were in default and had resulted in litigation, they had arrears of property tax and also arrears of income taxes which resulted in liens. On this issue, not only did Mr. Ashask deny financial difficulties, he veered into essentially boasting about how much money he has.

[99] I also find that their evidence had an overtly self-serving quality to it. They sought to lay blame on everyone else involved with the case. In particular, Mr. Ashask advanced a litany of complaints against all professionals involved with this matter and explained that everyone “stabbed him in the back.”

[100] Lastly, Mr. Ashask was argumentative and combative throughout his testimony. His evidence was fractured and difficult to follow as he routinely interrupted counsel with answers that often did not relate to the questions asked. The manner in which he presented his evidence conveyed a distinct impression that he was intent on conveying a version of events unhindered by objective realities.

[101] Ultimately, I am unable to accept either Mr. Ashask’s or Ms. Sadik’s evidence wherever it is inconsistent with that of Mr. Ahmad.

The Hearsay Issue

[102] Part of the evidentiary record contains emails and texts by Mr. Corvinelli. During colloquy with counsel and in the course of submissions, it became clear that counsel for the defendants sought to rely on Mr. Corvinelli’s emails for the truth of their contents.

[103] Mr. Corvinelli was not called as a witness.

[104] In seeking to rely on the emails and texts for the truth of their contents, counsel advances two arguments. First, he argues they are admissible under the Ontario Evidence Act as business records. This argument has no merit. The emails and text capture conversations between Mr. Corvinelli and Mr. Mangatt relating to the real estate transaction. They are simply not business records either under statute or common law.

[105] Second, counsel argues that in an application, Rule 39.01(5) of the Rules of Civil Procedure specifically allows for hearsay. While this rule does permit hearsay, it is restricted to hearsay on non-contentious matters. Mr. Corvinelli’s involvement in and knowledge of the real estate deal in this case is hardly non-contentious. Mr. Ashask himself has significant concerns with Mr. Corvinelli’s conduct in relation to the real estate deal.

[106] In any event, even if the proposed hearsay fell within the rule, this matter is no longer being heard as an application. It is a trial. The ordinary rules of evidence apply.

[107] As I indicated to counsel, Mr. Corvinelli’s text and email utterances are inadmissible for the truth of their contents, except in any instance where Mr. Corvinelli, through the doctrine of agency, was speaking on behalf of the defendants, in which case his utterances would be admissible at the behest of the plaintiffs as admissions against interest. That said, I will consider them as narrative so that the admissible portions of the conversations, introduced through other witnesses, can be understood in context.

The Validity of the Initial Agreement of Purchase and Sale

[108] I turn next to the first main argument which deals with the validity of the original Agreement of Purchase and Sale. On this issue, I am easily satisfied that the parties entered into a valid and binding Agreement of Purchase and Sale. I am not prepared to find that the timing of the acceptance by the plaintiffs renders the contract a nullity.

[109] I start my analysis of this issue by noting that the Agreement of Purchase and Sale used the standard Ontario Real Estate Association (“OREA”) form as a template. This document, which is regularly used in routine residential real estate transactions, contains a number of standard terms and conditions that frame the transaction. The document is also populated by the particulars of the transaction in question as specified by the parties.

[110] In this case, several terms of the agreement are noteworthy. First, the agreement contains a standard “Time is of the Essence” clause (Clause 20), which provides that “Time shall in all aspects be of the essence hereof provided that the time for doing or completing any matter provided for herein may be extended or abridged by an agreement in writing…”.

[111] Second, the agreement contains a clause dealing with the provision of any notice pursuant to the agreement (Clause 3). This clause requires notice to be provided in writing to the seller/buyer or the seller/buyer’s broker either in person or electronically.

[112] Lastly, the agreement contains an “Irrevocability Clause” (Clause 1) that requires either the seller or buyer to hold an offer/counteroffer open and irrevocable for a specified period of time, see Forest Hill Homes (Cornell Rouge) Limited v. Wei, 2020 ONSC 5060. The clause provides that where a seller or buyer, as the case may be, fails to give timely notice of acceptance, the offer or counteroffer becomes null and void.

[113] I also note that the standard form OREA agreement of purchase and sale is intended to be used during real estate negotiations and as such, it documents offers and any counteroffers. In other words, the document captures the “back and forth” of negotiation. The document only becomes a finalized agreement of purchase and sale when the operative offer or counteroffer is finally accepted and the opposing side executes the portion of the document titled “Confirmation of Acceptance.”

[114] In this case, the Agreement of Purchase sale reveals that the initial offer to purchase the home was made by the plaintiffs on June 27, 2020. The offer was for $840,000. The document reveals that a number of counteroffers were then exchanged. Ultimately, the document reflects an agreed upon purchase price of $865,000 with a $25,000 deposit. The final offer was made by the defendants as sellers. This offer was irrevocable until June 30, 2020 at 2:30 p.m.

[115] The “Confirmation of Acceptance” portion of the document suggests that the acceptance of this final offer was made by the plaintiffs at 2:15 p.m. on June 30, 2020. However, while “2:15 pm” is the time typed onto the form, the electronic timestamps for the signatures applied by the plaintiffs are 3:46:36 p.m. and 3:47:51 p.m., respectively. Given the evidence about how the electronic signatures work, I find that the “Confirmation of Acceptance” was not signed at 2:15 p.m., but rather was signed electronically at the time indicated in the digital timestamp. While I do not have direct evidence on when the acceptance would have been communicated to the defendants or their agents, I infer it would have been shortly after the electronic signatures were applied.

[116] The defendants argue that by the time the plaintiffs electronically signed the document, the offer had expired and was null and void. As such, the defendants argue that no valid and binding agreement of purchase and sale ever came into existence.

[117] I reject this argument. The defendants accepted the deposit that was paid in accordance with the terms of the agreement. Far from raising any objection to the fact that the offer had not been accepted in a timely fashion, the defendants acted as though a valid and binding agreement had come into force. Indeed, Mr. Ashask himself admitted in his evidence before me that he agreed to sell his house for $865,000. It was only much later, and well into this litigation, that the defendants took the position that the agreement was void ab initio. Indeed, this issue was first raised by Mr. Ashask in his third affidavit, sworn July 14, 2021, wherein he claimed that he only learned of the problem with the timing of the acceptance on September 25, 2020.

[118] In my view, upon expiry of the irrevocability time period at 2:30 p.m. on June 30, 2020, the defendants were no longer bound by their counteroffer. They could offer the property to anyone else. They were also not bound by the mere act of acceptance by the plaintiffs. In other words, once the plaintiffs provided a “Confirmation of Acceptance” at some point after 3:46 or 3:47 p.m. on June 30, 2020, it would have been open to the defendants to simply say “no, thanks.” However, they did not do so.

[119] In this regard, I adopt the analysis of Dunphy J. in Republic Developments Inc. v. Butt, 2021 ONSC 756 at paras. 48-49. The late “Confirmation of Acceptance” was essentially a further counteroffer by the plaintiffs. The defendants, by their conduct in accepting the deposit, signalled acceptance of this counteroffer and a valid agreement of purchase and sale came into force. Viewed objectively, the conduct of the defendants unequivocally signalled the formation of a valid and binding contract, see Saint John Tug Boat Co. Ltd. v. Irving Refinery Ltd., [1964] S.C.R. 614 at p.621 and Owners, Strata Plan LMS 3905 v. Crystal Square Parking Corp., 2020 SCC 29, at para. 37.

[120] Alternatively, I am also prepared to find that by accepting the deposit and failing to raise any objection over the timing of the acceptance, the defendants essentially waived strict compliance with the “time is of essence” clause. As Ferguson J. states in Webster v. BCR Construction, 2012 ONSC 2217, at para 48:

Even where a time of essence provision is found to exist, a party can only rely on it if they meet a number of common law conditions. First, they must demonstrate that they themselves were “ready, desirous, prompt and eager” to carry out the agreement: see Domicile Developments Inc. v. MacTavish (1999), 88 A.C.W.S. (3d) 1096 (Ont. C.A.) at para. 10. Second, they cannot be the cause of the default they seek to take advantage of: see Brickles v. Snell (1916), 30 D.L.R. 31 (P.C.); Campbell v. Sovereign Securities & Holdings Co. (1958), 13 D.L.R. (2d) 195 (Ont. H.C.) at para. 4, affirmed Campbell v. Sovereign Securities & Holdings Co. (1958), 16 D.L.R. (2d) 606 (Ont. C.A.). Finally, they cannot rely on a time of essence provision where they have waived the provision or otherwise acquiesced to the delay: see Union Eagle Ltd. v. Golden Achievement Ltd., [1997] 2 All E.R. 215 (P.C.).

[121] Lastly, I also reject the argument that the parties were not ad idem on the nature of the agreement and therefore no agreement was actually reached. On this issue, the defendants note that when the parties sought to later extend the closing date, they negotiated further terms relating to the rental of the air conditioning unit and hot water tank. According to the defendants, this demonstrates that the parties had not reached consensus ad idem.

[122] To determine whether the parties reached a meeting of the minds, or consensus ad idem, the court applies an objective test. The court considers whether a reasonable person, apprised of all the circumstances, would believe the parties had reached an agreement, see Luo et al. v. Chen et al., 2019 ONSC 680 at paras. 31-32, and Bawitko Investments Ltd. v. Kernels Popcorn Ltd. (1991), 79 D.L.R. (4th) 97 (Ont. C.A.). Even a failure to sign an agreement does not invalidate it, provided that the parties have agreed to its essential terms, see Erie Sand and Gravel Ltd. v. Seres’ Farms Ltd. (2009), 2009 ONCA 709, 97 O.R. (3d) 241 (C.A.) and Kernwood Ltd. v. Renegade Capital Corp..

[123] This argument has no merit. The parties had reached an agreement on the essential terms of the deal. At some point, Mr. Ashask turned his mind to the rental cost of the air conditioner unit and the hot water heater. He decided that he should be compensated for the amounts he had pre-paid for the air conditioning unit and that the plaintiffs should assume the rental agreement for the hot water heater. When the amendment was sought for the extension of the closing date, this issue was raised with the plaintiffs and they ultimately agreed to a term addressing the issue. While I will have more to say about the unfolding of the amendment extending the closing date and adding the condition relating to these expenses, I do not see issue of these expenses as being essential terms to the Agreement of Purchase and Sale. The evidence supports a finding that they were essentially after-thoughts that were addressed by further amendment to the Agreement of Purchase and Sale. Moreover, it would seem incongruous for the defendants to suggest that the parties had not formed a consensus ad idem because of the absence of a condition relating to these expenses, when they were the ones who later sought to amend the Agreement of Purchase and Sale to include the condition. If the absence of the condition truly reflected an absence of consensus, there would have been no agreement to amend.

[124] I have also considered the evidence relating to the real estate commission. It appears that Mr. Ashask had a dispute with Mr. Corvinelli’s real estate brokerage over the exact percentage of the commission that would be applied on the sale. It also appears that Mr. Corvinelli agreed to a reduced commission that was not properly reflected in the listing agreement. I am not prepared to find that Mr. Ashask’s dispute with his real estate brokerage over the amount of the commission to be applied on sale reflect a failure to reach consensus ad idem on the real estate transaction with the plaintiffs. It is a separate issue that does not affect the validity of the agreement to sell the home.

The Waiver of the Conditions

[125] I turn next to the issue of the conditions. The Agreement of Purchase and Sale was finalized on June 30, 2020 when the “Confirmation of Acceptance” was completed by the plaintiffs. Schedule A to the Agreement of Purchase and Sale listed two specific conditions: (a) the offer was conditional on the buyer obtaining financing, and (b) the offer was conditional on the buyer arranging for a home inspection. Both of these conditions were to be waived in writing “not later than five (5) business days”, failing which the offer would be null and void and the deposit would be returned.

[126] The home inspection condition was waived on July 7, 2020. The defendants raise a number of issues in relation to this waiver. First, the defendants argue that the date of the contract was June 27, 2020 and not June 30, 2020. Assuming that to be the case, the defendants argue that the condition was not waived within five business days as required by the condition set out in Schedule A to the Agreement of Purchase and Sale.

[127] I reject this argument. The date of the initial offer to purchase was June 27, 2020. The contract was only finalized on June 30, 2020 after the exchange of various offers and counteroffers. While Schedule A to the Agreement of Purchase Sale refers to the agreement between the parties “dated the 27 day of June, 2020,” as does the opening sentence of the Agreement of Purchase and Sale, this merely reflects the manner in which the forms were initially filled out. The contract came into existence on June 30, 2020, and that is the operative date for determining when the five business days expire. To find otherwise would potentially lead to absurdity as the time for waiving the conditions would start to run before an agreement had been finally accepted.

[128] I find that the home inspection condition was waived on July 7, 2020, which is within five business days of June 30, 2020. While I note that the electronic signatures were applied by the plaintiffs at 11:54 p.m., and not 5:30 p.m. as stated on the form, this time discrepancy is of no moment in the circumstances as it is still within 5 business days of June 30, 2020.

[129] I also find that receipt of the waiver was acknowledged by Mr. Corvinelli with an electronic timestamp of 2:57 p.m. on July 8, 2020, though I note that the form states “11:00 pm on 7 th day of July.” While this results in a potential discrepancy, it is important to note that no evidence was called suggesting that Mr. Corvinelli did not receive the waiver on July 7, 2020. The possibility that he received the waiver on the 7 th of July but did not sign the acknowledgment until the 8 th of July, is an issue I will return to in a moment.

[130] Turning to the waiver of the financing condition, while the phrasing of this condition initially required that it be waived “not later than five (5) business days” after the agreement came into existence, the deadline was extended to July 15, 2020 following an Amendment to the Agreement of Purchase and Sale. The amendment appears to have been offered by the plaintiffs on July 7, 2020, and accepted by the defendants on July 8, 2020. Receipt of the waiver of this amended financing condition was acknowledged by Mr. Corvinelli at 8:00 a.m. on July 15, 2020. The waiver was signed by one plaintiff at what appears to be 5:39 p.m. on July 14, 2020, and the other plaintiff at 12:44 a.m. on July 15, 2020.

[131] Returning to the issue of the earlier waiver, the fact that the amendment relates only to the financing condition suggests that by July 8, 2020, everyone was on the same page regarding the waiver of the inspection condition. In other words, this evidence supports an inference that the inspection condition was waived without issue and there was no need to extend the time for its waiver. This evidence also resolves the issue relating to Mr. Corvinelli’s acknowledgment of having received the waiver of the inspection condition.

[132] Ultimately, I find that both conditions were waived in a timely fashion. This conclusion is buttressed by the absence of any timely complaint by the defendants, who at no time prior to the litigation took the position that the Agreement of Purchase and Sale was null and void as a result of the failure to waive the conditions in a timely fashion. As a final note, Mr. Ashask denied any knowledge relating to the conditions or their waiver. I reject this evidence as it is inconsistent with the documentary evidence, including the amendment extending the deadline for waiving the financing condition and the various signatures on the documents.

The Amendment Relating to the Closing Date

[133] The final issue relates to the validity of the amendment to the Agreement of Purchase and Sale relating to the closing date. The initial Agreement of Purchase and Sale provided for a closing date of September 29, 2020.

[134] I find that the parties were working towards meeting that closing date. The plaintiffs had given notice to their landlord and were making plans for the move. On September 22, 2020, real estate counsel for the plaintiffs, Mr. Mangatt, sent a requisition letter to Mr. Russo, real estate counsel for the defendants.

[135] I accept Mr. Mangatt’s evidence that on September 23, 2020, he received a call from Mr. Corvinelli advising that the defendants required an extension of the closing date as they had discovered the CRA liens on the property. I reject as obviously false, Mr. Ashask’s attempts to claim that he never requested the extension. It is obvious he did. Not only did he seek an extension of the closing date, but he also sought the addition of a clause dealing with the rental of the air conditioning unit and hot water tank. Moreover, there is no evidence suggesting that the plaintiffs were the ones who either requested or even needed the extension.

[136] The document amending the Agreement of Purchase and Sale was signed electronically by the defendants at 12:03 p.m. on September 24, 2020. The offer to amend was irrevocable until 11:00 p.m. that same day.

[137] The plaintiffs signed the document in writing and not using electronic signatures. The “Confirmation of Acceptance” purports to be signed by Mr. Ahmad at “10100 pm” on September 24, 2020.

[138] The defendants argue that this document was not signed in time and that as a result the proposed amendment never came into existence. I will address each of their arguments, but I start with the observation that the effect of the proposed amendment was simply to extend the original closing date from September 29, 2020 to November 30, 2020 (in addition to dealing with the air conditioning and hot water rentals). If the amendment never came into existence, what remained was a valid and binding Agreement of Purchase and Sale that required the parties to close as had been originally intended, on September 29, 2020. The failure to complete the amendment would not undermine the validity of the Agreement of Purchase and Sale.

[139] When I consider the evidence in relation to the amendment, I make the following findings. First, I accept the evidence from Mr. Ahmad and Mr. Mangatt that the document was signed by the plaintiffs in person. While I acknowledge that this is the only document they physically signed, I do not see that as a basis for rejecting their evidence. Mr. Mangatt explained that he went to see the plaintiffs in person because they were getting anxious over the deal. This makes sense.

[140] I do not view Mr. Mangatt’s financial interest in the outcome of the trial as tainting his evidence on this issue. I am not prepared to find that Mr. Mangatt would lie about this issue in order to make a relatively modest commission.

[141] I also accept that the document was signed before 11:00 p.m. on September 24, 2020. I acknowledge that it would have been preferable for the plaintiffs to use an electronic signature instead of merely signing in ink. The electronic signature would have provided a time stamp. While the absence of the time stamp does raise a concern, I am prepared to find that Mr. Ahmad and Mr. Mangatt are probably telling the truth about the time when the document was signed. The delay in signing the amendment was caused by Mr. Ashask’s failure to respond to the plaintiffs’ request for particulars regarding the costs of the air conditioner and hot water heater. On this issue, I note that at 9:15 p.m. on September 24, 2020, Mr. Ashask told Mr. Corvinelli that he would give him the final numbers “tomorrow.”

[142] In reaching this conclusion, I have considered the issue relating to Mr. Corvinelli’s preparation of the second amendment document which purported to extend the irrevocability time. On this issue, Mr. Ashask maintains that Mr. Corvinelli presented the second amendment agreement because the first one had not been signed on time. This is not accurate. Mr. Corvinelli appears to have presented a second amending document at approximately 9:19 p.m. and again at 9:35 p.m., presumably in response to Mr. Ashask indicating that he would get the cost figures for the air conditioner and hot water tank “tomorrow.”

[143] I find that what likely happened is that Mr. Corvinelli prepared a second amending document as a backup, in case the first one was not signed in time. This would have made sense as his client, Mr. Ashask, had yet to provide the final figures for the air conditioner and hot water rental, so it would reasonably have been anticipated that the plaintiffs might hold off on signing before 11:00 p.m. Instead, they signed it. I accept Mr. Mangatt’s evidence that the anticipated costs of the air conditioner and the hot water tank was not a deal breaker.

[144] Mr. Mangatt testified that he and Mr. Corvinelli had a discussion on the evening of the 24 th of September, wherein Mr. Corvinelli indicated that he had prepared a second amending document with an extended time/date for acceptance. Mr. Mangatt assured Mr. Corvinelli that the second amending document was not needed as he had the first amending agreement signed by the plaintiffs and in his possession. He further advised Mr. Corvinelli that he would send it to him as soon as he received the details of the rental costs for the air conditioner and hot water tank.

[145] I accept that Mr. Mangatt called Mr. Corvinelli once he had the signed amending agreement in his hands. I further find that he told Mr. Corvinelli that he would provide it once the final figures for the rentals were provided. Importantly, Mr. Corvinelli was not called as a witness, so Mr. Mangatt’s evidence on this issue stands uncontradicted.

[146] In any event, by the time Mr. Ashask received the second amending document, he was adamant that he would not sell the house to the plaintiffs because of “all the fraud” and he refused to sign the document.

[147] In terms of the impact of the amending document, while I accept that it was signed before 11:00 p.m. on September 24, 2020 and that Mr. Corvinelli was verbally advised of this fact before 11:00 p.m., the evidence is clear that it was not delivered either physically or electronically until a later point in time. In these circumstances, delivery of the signed amending document is not in accordance with clause 3 of the Agreement of Purchase and Sale that requires any notice be in writing and delivered personally or electronically.

[148] While it is tempting to simply view the failure to transmit the signed amending document as technical non-compliance, especially in view of the verbal notification and in view of Mr. Ashask’s failure to provide information relating to the rental costs in a timely fashion, it is not necessary to make that determination in this case.

[149] The failure to strictly comply with clause 3 of the Agreement of Purchase and Sale creates a scenario where, despite the signed amending document, the closing date of November 30, 2020 never came into existence. Instead, the closing date of September 29, 2020 remained in effect.

[150] On Mr. Ashask’s own evidence, he had decided by this point that he would no longer sell the house to Mr. Ahmad. He refused to sign the second amending document presented by Mr. Corvinelli. As well, on September 25, 2020, it appears that he went to Mr. Corvinelli’s brokerage office, spoke with a manager and advised them that he would not honour the deal and that the deposit should be returned.

[151] I find that Mr. Ashask, through his actions and words on September 24 and 25, 2020, repudiated the contract. He was not going to honour his side of the deal on September 29, 2020.

[152] Even if I am wrong on this issue and the amending agreement validly extended the closing date to November 30, 2020, I nonetheless would find that Mr. Ashask had to no intention of closing on that date as well. His evidence on this issue is perfectly clear.

[153] I turn next briefly to the issue of tender. The defendant argues that the plaintiffs did not tender on either September 29 or November 30, 2020. They further argue that the inference from the failure to tender is that the plaintiffs were not ready, willing and able to close, and that as a result they are the ones who repudiated the deal.

[154] I reject this argument. The plaintiffs would have had no reason to tender on September 29, 2020. As far as they knew, they had agreed to an extension of the closing date until November 30, 2020. The extension had been requested by the defendants and the plaintiffs accommodated the request. They had also waived conditions including a financing condition. I accept that in order to accommodate this request, the plaintiffs sought and obtained an extension from their landlord. I infer from all of this that if the closing had not been extended, the plaintiffs would have been in a position to close on the date originally chosen.

[155] In terms of the November 30, 2020 closing, I note that in the days leading up to the closing, the plaintiffs were advised the defendants had no intention of closing. On November 23, 2020, litigation counsel for the plaintiffs wrote to real estate counsel for the defendants seeking confirmation that the defendants were prepared to honour the deal. Counsel advised that the plaintiffs were willing and able to close and that a failure to respond to the letter would be viewed as an anticipatory breach. Real estate counsel replied and advised that he had been discharged by the defendants on October 30, 2020.

[156] On November 25, 2020, litigation counsel for the plaintiffs sent an email to Mr. Corvinelli, providing a copy of the November 23, 2020 letter and asking for a prompt reply advising that her clients were in the process of commencing an application.

[157] No response was received. The application was issued on November 27, 2020.

[158] In these circumstances, I see no merit to the suggestion that the plaintiffs should have tendered on November 30, 2020. There was a clear repudiation of the agreement by the defendants, see Bethco Ltd. et al. v. Clareco Canada Ltd. (1985), 22 DLR (4th) 481 (Ont.C.A.). As the Court of Appeal notes in Di Millo v. 2099232 Ontario Inc., 2018 ONCA 1051 at paras. 45-49:

For a party to be entitled to specific performance, the party must show he or she is ready, willing and able to close: Time Development Group Inc. (In trust) v. Bitton, 2018 ONSC 4384, at para. 53; see also Norfolk v. Aikens (1989), 41 B.C.L.R. (2d) 145 (C.A.). While tender is the best evidence that a party is ready, willing and able to close, tender is not required from an innocent party enforcing his or her contractual rights when the other party has clearly repudiated the agreement or has made it clear that they have no intention of closing the deal: McCallum v. Zivojinovic (1977), 16 O.R. (2d) 721 at p. 723 (C.A.); see also Dacon Const. Ltd. v. Karkoulis, [1964] 2 O.R. 139 (Ont. H.C.).

In McCallum, at p. 723, this court explained that the renunciation of a contract may be express or implied:

The renunciation of a contract may be express or implied. A party to a contract may state before the time for performance that he will not, or cannot, perform his obligations. This is tantamount to an express renunciation. On the other hand a renunciation will be implied if the conduct of a party is such as to lead a reasonable person to the conclusion that he will not perform, or will not be able to perform, when the time for performance arises.

The purchaser in McCallum made it clear that he did not intend to complete the transaction on the closing date and this renunciation relieved the vendors from the obligation to tender.

The principles around the requirement to tender are summarized succinctly by Perell J. in Time Development Group, 2018 ONSC 4384, at paras. 56-57:

Tender…is not a prerequisite to the innocent party enforcing his or her contractual rights. Tender is not required from an innocent party when the other party has clearly repudiated the agreement. Numerous cases have held that the law does not require what would be a meaningless or futile gesture. Moreover, when there is an anticipatory breach, the innocent party need not wait to the date for performance before commencing proceedings for damages or in the alternative for specific performance of the agreement. [Citations omitted.]

Thus, when a party by words or conduct communicates a decision not to proceed to closing, the other party is released from any obligation to tender in order to prove he was ready, willing and able to close: see Kirby and Siversky v. Cameron, [1961] O.R. 757 (C.A.); Kloepfer Wholesale Hardware v. Roy, [1952] 2 S.C.R. 465.

The Remedy of Specific Performance

[159] I turn lastly to the issue of remedy. The plaintiffs argue that specific performance is appropriate in this case, based on the features of the home and the conduct of the defendants. The defendants argue that there is nothing sufficiently unique or distinct about the home that warrants specific performance. In their view, damages adequately address the loss occasioned by the defendants’ repudiation of the agreement.

[160] The rationale for awarding the equitable remedy of specific performance is that in certain circumstances, damages do not afford an adequate compensation for a breach of contract, see Lucas v. 1858793 Ontario Inc. (Howard Park), 2021 ONCA 52 [“Lucas”] at para. 69.

[161] In Semelhago v. Paramadevan, [1996] 2 S.C.R. 415, the Supreme Court of Canada discussed the circumstances in which specific performance is available. The Court rejected the traditional approach that specific performance was the automatic remedy for failed real estate deals. The Court noted that while at one time the common law regarded every piece of real estate to be unique, this was no longer the case as residential properties in the modern real estate world are mass produced much in the same way as other consumer products. If a deal falls through for one property, another is frequently, though not always, readily available.

[162] While the Supreme Court has made it clear that the realities of the modern real estate world must be considered, it is no longer the case that homes are simply mass produced, especially in the Greater Toronto Area. This point was made by Charney J. in 1954294 Ontario Ltd. v. Gracegreen Real Estate Development Ltd., 2017 ONSC 6369 [“Gracegreen”] at para. 151 as follows:

Before proceeding further, I would observe that while the premise upon which the Supreme Court’s decision in Semelhago was based—that “Residential, business and industrial properties are all mass produced much in the same way as other consumer products”— may have been true in 1996, it does not necessarily reflect the current real estate and development market in the Greater Toronto Area. In a housing market in which land is in increasingly limited supply and home sales are often characterized by bidding wars among prospective purchasers, it is no longer accurate to assume that residential properties are “mass produced”, at least within the GTA. This does not abrogate the stated principles applicable to granting specific performance, but it does suggest that the criteria will be more easily met within the present GTA housing market.

See also Gao v. Park, 2021 ONSC 4560, at para. 67.

[163] Nonetheless, specific performance should not be granted in the absence of evidence that the property can not be readily substituted, see Lucas, supra, at para. 69. Ultimately it still falls to the plaintiff to “establish a fair, real, and substantial justification by showing that damages would be inadequate to compensate for its loss of the subject property”, see Lucas, supra, at para. 69.

[164] In deciding whether to order specific performance, the court is required to assess and weigh three factors: (i) the nature of the property involved, (ii) the adequacy of damages as a remedy, and (iii) the behaviour of the parties, having regard to the equitable nature of the remedy, see Landmark of Thornhill Ltd. v. Jacobson (1995), 25 O.R. (3d) 628 (C.A.), at p. 636 and Erie Sand and Gravel Limited v. Tri-B Acres Inc., 2009 ONCA 709, at paras. 110-118.

(i) The Nature of the Property

[165] In assessing the nature of the property, the court considers the property’s physical attributes, the purchaser’s subjective interests, and the circumstances of the underlying transaction, see Lucas, supra, at para. 73. While the property needs to have a degree of “uniqueness”, singularity or incomparability are not required. The issue is whether the property has qualities that make it especially suitable for the purchaser and those qualities are not readily duplicated elsewhere. A rising real estate market can result in a situation where the qualities of a subject property are not such that a comparable property is no longer available within the plaintiff’s price range, see Walker v. Jones (2008), 298 D.L.R. (4th) 344, at para. 165; Sivasubramaniam v. Mohammad, 2018 ONSC 3073, at paras. 84 and 92, aff’d 2019 ONCA 242.

[166] An assessment of uniqueness must take into account all the surrounding circumstances. This includes: the purchaser’s “wish list”, the market conditions, the location, the type of home, the condition of the home, the lot, the finished areas of the home, the quality of finishes, the availability of comparable homes with the same attributes in the same price range, the proximity to certain amenities, etc., see Datta v. Eze, 2020 ONSC 4796, at para. 44.

[167] Turning to facts of this case, I accept the evidence of Mr. Ahmad and Mr. Mangatt relating to the “wish list” of features that framed the search for the property. I reject the submission that this “wish-list” is a self-serving criteria list concocted after the fact by Mr. Ahmad and Mr. Mangatt to support the litigation. The fact that it was not reduced to writing does not undermine this conclusion. On the evidence before me, I find that Mr. Ahmad was a focussed real estate purchaser who was looking for a home that met his and his family’s specific needs. I accept that he would have formed the search criteria at the time of the search and not after the fact.

[168] While I accept that the individual features on the “wish list” were not all “mandatory” in the strictest sense, the fact that the plaintiffs had room for some flexibility of criteria within their price range does not mean that they were content to take just any house. The main criteria included price, location in the Bradford area and more specifically, proximity to the highway and the local prayer centre, sufficient space to park cars, double car garage, corner lot, move-in ready condition with low maintenance landscaping.

[169] I accept the evidence that plaintiffs viewed a number of listing and saw a selection of properties. I also accept the evidence that this property instantly stood out as an ideal fit given the search criteria.

[170] The defendants’ expert witness, Ms. Kissoon, compiled a number of comparator properties, which in her opinion suggest that a number of properties meeting many of the plaintiff’s search criteria were available for purchase between September 30, 2020 and December 30, 2020. In cross-examination, Ms. Kissoon was taken to various features of the listings she compiled. She agreed that many of these listing had features that differed from the subject property.

[171] Importantly, Ms. Kissoon agreed that property values had increased at the time of the scheduled closing date for the real estate deal. Based on her estimates, the house was worth $905,700 in September of 2020 and $911,800 by November 2020. In July 2021, when she swore her affidavit, she estimated the value of the home at $1.17 million. The value had increased further by the time of trial.

[172] I note that the values for the home provided by Mr. Mangatt are higher. However, I am not prepared to accept his opinion on the issue. I appreciate that he is an experienced realtor. However, he has a stake in the outcome of the trial and is not in any sense an independent expert.

[173] When I consider this evidence, I am satisfied that at the time of the Agreement of Purchase and Sale, the home had a requisite degree of uniqueness for the purchasers. The home met specific search criteria which related to their proposed use of the home and their religious practices. When they first saw the house, they immediately decided to buy it. They put in no offers on other homes. While I accept that the home was perhaps not singularly unique, by the time of the breach of contract, comparable homes were no longer in the price range suitable for the plaintiffs. As well, many of the homes in the comparator samples did not share the same attributes which were of subjective importance to the plaintiffs.

[174] On the whole, I am satisfied that this factor tips in favour of specific performance.

(ii) The Adequacy of Damages

[175] A party’s ability to pay damages is a factor to be considered in assessing whether specific performance is an appropriate remedy, see Dhatt v. Beer, 2021 ONCA 137 at para. 43, and UBS Securities Canada, Inc. v. Sands Brothers Canada, Limited, 2009 ONCA 328 at para. 103.

[176] In this case, there are manifest concerns about the defendants’ ability to pay damages. They initially filed affidavits revealing that they were in dire financial straits and that Mr. Ashask was considering bankruptcy. They subsequently recanted these sworn affidavits and took the position that they had no financial difficulties whatsoever. That said, they acknowledged that they had defaulted on a second mortgage on their home and had been served with a statement of claim. They were also behind with the CRA, who had placed liens on the home, and with property taxes.

[177] The defendants, despite the CPL on title, somehow managed to re-finance their home with a new second mortgage. The increased amount of this second mortgage allowed them to essentially take the equity out of their home. The new second mortgage also went into default and became the subject of enforcement proceedings.

[178] Viewed against this backdrop, there is very good reason to doubt Mr. Ashask’s claim that he is simply prepared to sell his home to pay any damages ordered. This factor tips strongly in favour of specific performance.

(iii) The Conduct of the Parties

[179] The final factor to consider is the conduct of the parties. This is undertaken with a view to weighing the equities, see Lucas, supra, at para. 80 and Paterson Veterinary Professional Corporation v. Stilton Corp. Ltd., 2019 ONCA 746 at para. 31.

[180] I am satisfied that the plaintiffs have “clean hands.” They entered into an Agreement of Purchase and Sale in good faith. They paid the required deposit, waived conditions as required, and were moving towards closing when the defendants sought to extend the closing date. They accommodated the defendants in this regard and continued to move towards the new closing date. When it became clear that the closing would not occur, they took immediate steps to retain litigation counsel, and in anticipation of the breach, commenced an application before the date of the closing.

[181] The defendants initially agreed to sell their home. They ran into financial difficulties and needed an extension of the closing. At some point, Mr. Ashask simply decided that he was no longer going to sell the home, “no matter how much money” the plaintiffs were going to give him. His reasons for doing so are specious. He decided, without any reasonable basis, that the plaintiffs had committed “fraud” with the paperwork and no longer “deserved” his house. He also later re-financed the home, withdrew equity, and re-listed the home for sale despite the presence of a CPL relating to this litigation and despite knowing that the plaintiffs were seeking specific performance. Taken as a whole, I am satisfied that the defendants acted in bad faith.

[182] As a matter of equity, this factor tips very strongly in favour of specific performance.

[183] When I consider all the factors together, I am satisfied that this is an appropriate case for specific performance.

Conclusion and Orders

[184] Based on the foregoing, I am prepared to grant judgement in favour of the plaintiffs and grant the following Orders:

a. A declaration that the Agreement of Purchase and Sale for the acquisition of 100 Hopkins Crescent, Bradford, East Gwillimbury, dated June 27, 2020 and effective June 30, 2020, is valid and binding; b. An Order for specific performance of the Agreement of Purchase and Sale with a new closing date to be agreed to amongst the parties; and, c. An Order for leave to issue a writ of possession without notice.

[185] The parties are to agree upon a new closing date. If the parties are unable to do so, a further appearance before me by Zoom can be scheduled through the trial coordinator for the purpose of addressing the issue.

[186] If the parties cannot agree on costs, the plaintiffs are to serve and file their submissions on costs within 15 days from the date of this decision, and the defendants will have 15 days thereafter to serve and file their submissions. The submissions are to be no more than five pages, double spaced, exclusive of any cost outline and offers to settle. If no submissions are received within the time period set out herein, no costs order shall be made.

J. Di Luca J. Released: February 28, 2022

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: MANSOOR AHMAD AND ALI AHSAN Plaintiffs – and – MANAR ASHASK and EVAN ONEER SADIK Defendants REASONS FOR JUDGMENT The Honourable Justice J. Di Luca Released: February 28, 2022