Court File and Parties
COURT FILE NO.: CV-18-5450-00 DATE: 2023 07 06 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
YU ZHANG and JUN DAI Plaintiffs – and – PRIMONT HOMES (CALEDON) INC., SPECTRUM REALTY SERVICES INC. BROKERAGE, STEPHEN PAUL BOZZO, ZORICA AROMATARIO, HOMELIFE LANDMARK REALTY INC. BROKERAGE, and YU SI Defendants
Counsel: Self-Represented Plaintiffs H. Engell, for the Defendants
HEARD: May 9, 10, 11, 2023
JUDGMENT ON TRIAL
André J.
OVERVIEW
[1] The plaintiffs seek a declaration that the defendants misrepresented the location of a property they purchased and that, accordingly, they should be held liable for indemnity of any and all damages, costs, interest, and applicable taxes which the Court may impose. The defendants maintain that the plaintiff, Jun Dai, knew the location of the subject property and therefore was not misled by any information he received from Yu Si regarding the location of the property.
SUMMARY OF THE EVIDENCE
[2] In February 2017, Jun Dai had a conversation with Yu Si’s uncle about purchasing an investment property. He was then introduced to Yu Si. There is conflicting evidence regarding whether Yu Si told Jun Dai about the location of a property in Caledon, or whether Jun Dai knew the location of the property. Yu Si testified that Jun Dai led her husband and herself to an empty plot of land where a company called Primont was required to build a residence. Jun Dai testified that he went to the location which Yu Si indicated that she believed was the site for the proposed residence. Jun Dai got his relator, Yu Zhang, and his friends involved in the investment scheme. By April 2017, Jun Dai and Yu Zhang had made a down payment of $120,000 for a house projected to cost $1,232,500. In the summer of the following year, Mr. Zhang drove to the location of the property to see how the construction was proceeding. He noticed that construction had not started at the site. He later found out that the site where the residence was being constructed was approximately three kilometers north of the site that Yu Si had shown them.
ANALYSIS
[3] This trial raises the following issues:
a) Was there a valid agreement of purchase and sale between the plaintiffs and defendants?
b) Did Yu Si misrepresent the location of the site and the proposed residence?
c) If the second question is answered in the affirmative, what is the appropriate remedy?
A. Was there a valid agreement of purchase and sale between the plaintiffs and defendants?
[4] There is no despite that there existed such an agreement. On or about February 27, 2017, Jun Dai entered an Agreement of Purchase and Sale (“APS”) with Primont which provided inter alia that;
i) Jun Dai had agreed to purchase Lot No.: 42A, with the street address to be determined, in the town of Caledon, in the Regional Municipality of Peel; with the purchase price of $1,232,500.
ii) The dates of the offer and its acceptance were February 25 and 27, 2017, respectively;
iii) The closing date was March 14, 2019, “or as thereafter extended pursuant to the APS.”
iv) The APS permitted Jun Dai to transfer, assign, or redirect title to the subject property.
[5] By May 25, 2017, Jun Dai had paid a total amount of $120,000 as a down payment on the property.
B. Did Yu Si misrepresent the location of the site of the proposed residence?
[6] Ms. Si denies that she misrepresented the site of the future residence to Jun Dai and Mr. Zhang. She testified that she became a real estate agent with HomeLife in August 2015. She first heard about the Caledon development from her uncle in 2017. He told her that Mr. Dai was interested in the proposed development called Seasons Caledon. She then looked at HomeLife’s DropBox and saw the building’s floor plans, site and prices. She met Mr. Dai at the house where they discussed the development project. She told him she could help him obtain a lot. She denied advising Mr. Dai that she was the exclusive agent for the builder.
[7] Ms. Si testified that Mr. Dai told her he was very familiar with the west of the GTA, and that he offered to show her the location of the development. A HomeLife email indicated that the major intersection was Mayfield and Kennedy Road in Brampton. Her husband and herself drove to the intersection as Mr. Dai guided her husband to the intersection. Mr. Dai then said that the vacant lot northwest of the intersection should be the location of the project. She replied, “maybe, probably. I think I need to confirm.” The next day, Mr. Dai mentioned that he had a friend who was interested in buying a lot. She met Mr. Zhang one or two days after at her home. She denied that she drove Mr. Zhang to the Mayfield and Kennedy location. She visited the site on one occasion with Mr. Dai.
[8] I do not accept Ms. Yu Si’s testimony that Mr. Dai showed her the location of the proposed development rather than the other way around, for the following reasons.
[9] First, an email she received from HomeLife dated February 22, 2017, marked as Exhibit 4, indicated that “Primont Homes is having a final release on their project Seasons in Caledon located at Mayfield/Kennedy. ” [Emphasis added.]
[10] Second, Mr. Zhang testified that he visited Mayfield/Kennedy in May 2018 and saw no construction. He met Ms. Si and asked her to show him the location of the development. In a document marked as Exhibit 5, she placed an “X” in the vicinity of Mayfield and Kennedy as the location for the development. During the discovery hearing dated November 11, 2019, Ms. Si confirmed that she had gone with Mr. Dai to the “residential area there”, meaning Mayfield and Kennedy.
[11] Third, Mr. Zhang testified that he downloaded a document from the website of Primont Homes, which was marked as Exhibit 10 in this trial. The document specifically states that “[o]ur community is located at Kennedy and Mayfield, close to parks, schools, shopping and highways.” Mr. Zhang conceded under cross-examination that the property was in Caledon; however, he had formed the impression that the location at Kennedy and Mayfield was in Caledon.
[12] Under cross-examination, Mr. Zhang testified that Ms. Si told him, in reference to Mayfield and Kennedy, that “your lot would be there.” He conceded that he testified during the discovery hearing that Ms. Si had actually stated that the lot was “somewhere around here.” I do not view this evidence as being in conflict with Mr. Zhang’s trial testimony. The phrase “somewhere around here” cannot be taken to mean a site over three kilometers north of the Mayfield and Kennedy site.
[13] Mr. Engell submits that the plaintiffs are at fault for not seeking to confirm the exact location of the building site prior to May 2018. However, in my view, they would have had no reason to have done so. Mr. Zhang only found out in May 2018 that, contrary to what documents from Primont and what Ms. Si had led them to believe, the building location was not Mayfield and Kennedy.
[14] Fourth, counsel for the defendants suggest that the plaintiffs did not seek to confirm the location of the property on February 27, 2017, after Mr. Dai signed the APS. The contract simply stated “TBD” or to be determined. However, there was no apparent reason to seek to confirm the location of the residence given that the document provided by Primont indicated the intersection where the residence was going to be built. Finally, it is not unreasonable for the plaintiffs to have believed that the intersection of Mayfield and Kennedy Road was in Caledon. This location is at the upper northern limit of the City of Brampton and could well be regarded as being in Caledon.
[15] For the above reasons, I find that Ms. Si misrepresented the location of the site of the proposed residence which Mr. Dai and Mr. Zhang had contracted to buy from HomeLife. To that extent, the defendants breached its contract with the plaintiffs.
[16] Counsel for the defendants submits that the plaintiffs’ claim that Ms. Si was negligent by failing to confirm the true locations of the proposed development must fail given the jurisprudence for the proposition that where there is a debate regarding how a real estate agent should have conducted himself or herself, expert evidence is required: see Krawchuk v. Scherbak et al., 106 O.R. (3d) 598, 2011 ONCA 352, at paras. 125, 129-130.
[17] I disagree. The evidence establishes that Ms. Si identified the Mayfield/Kennedy intersection as the site where the residence which the plaintiffs purchased was to be built. She relied on the information received from HomeLife to provide that information to the plaintiffs. Mr. Zhang testified that they purchased the property because it was in a “mature” community with large houses and schools. I accept the evidence that the plaintiffs visited this location twice and drove around to confirm the type of community where the residence was to be built.
[18] Counsel for the defendants also suggest that the plaintiffs decided not to purchase the residence in May 2018 because of a downturn in the real estate market caused by legislation which imposed a tax on foreign buyers rather than because of any misrepresentation by Ms. Si. The plaintiffs disagreed. The enactment of this legislation, however, does not change the fact that Ms. Si improperly identified the Mayfield/Kennedy location as the site for development.
C. Appropriate Remedy
[19] The plaintiffs seeks the following:
A return of the down payment of $120,000;
$600,000 in profit they would have made given that the subject property is now worth $1.8 million and;
Costs of $80,000.
[20] In my view, the plaintiffs are entitled to the refund of their down payment of $120,000 and interest given the misrepresentation concerning the location of the property. I find that they had an option to hold onto the property rather than opt out of the contract. Had they done so, they would have realized a handsome profit given the increase in value of the property. However, they chose not to. To that extent, they are not entitled to a financial amount representing profit lost on account of their decision to withdraw from the agreement.
COSTS
[21] The plaintiffs were substantially successful in the trial and are entitled to their costs. While they were self-represented at trial, they retained counsel earlier on in the proceedings. The matter consumed a fair amount of time, discoveries were conducted, and materials were filed. The trial lasted approximately three days.
[22] In my view, costs in the amount of $30,000 in favour of the plaintiffs are fair and reasonable in the matter.
CONCLUSION
[23] Judgment for the plaintiffs:
The defendants, HomeLife Landmark Realty Inc. and Yu Si, are ordered to pay the plaintiffs, Yu Zhang and Jun Dai, the sum of $120,000 plus prejudgment interest as prescribed under the Courts of Justice Act for the period from February 25, 2017, to the date of this judgment.
The defendants, HomeLife Landmark Realty Inc. and Yu Si, are ordered to pay costs in the amount of thirty thousand dollars ($30,000) to the plaintiffs, Yu Zhang and Jun Dai, within ninety (90) days of today’s date.
André J.
Released: July 6, 2023
