COURT OF APPEAL FOR ONTARIO

CITATION: 2068895 Ontario Inc. v. Snyder, 2012 ONCA 757

DATE: 20121107

DOCKET: C54394

Simmons, Armstrong and Watt JJ.A.

BETWEEN

2068895 Ontario Inc. and 2068896 Ontario Inc. and Moldenhauer Developments Inc.

Appellants (Plaintiffs)

and

John Frederick Snyder and Carole Snyder

Respondents (Defendants)

and

2068895 Ontario Inc. and 2068896 Ontario Inc. and Moldenhauer Developments Inc.

Appellants (Plaintiffs)

and

Cesare Divito and Sylvia Divito

Respondents (Defendants)

Alan S. Price, for the appellants

Bruce C. Robertson and Naaila Sangrar, for the respondents

Heard and released orally: October 29, 2012

On appeal from the judgment of Justice Katherine M. van Rensburg of the Superior Court of Justice, dated September 2, 2011.

ENDORSEMENT

[1] We are sceptical that the trial judge proceeded correctly by resorting to evidence of a prior draft of para. 9 of the Agreements of Purchase and Sale to find ambiguity before assessing whether para. 9 in the finalized Agreements of Purchase and Sale was ambiguous on its face.

[2] In any event, however, in our view, the outcome of this appeal turns on the events that occurred on the closing date. The vendor respondents tendered closing documents on the basis of their interpretation of the purchase price calculated under para. 9 in their respective Agreements of Purchase and Sale. The purchaser did not tender at all and, at trial, acknowledged that it was not in funds to close the transactions on the closing date. After the closing date, counsel for both vendor respondents advised the purchasers that they considered the transactions at an end.

[3] At para. 110 of her reasons, the trial judge said:

I find that the disagreement as to purchase price was not an impediment to the closing of the transactions. The purchaser admitted that the difference in price using the alternative calculations was insignificant.

[4] Although this finding was made under a heading in the trial judge’s reasons that assumed that the vendors’ interpretation of the purchase price was correct, in our view, it nonetheless amounts to a finding that any error in the vendor respondents’ Statements of Adjustments was not a material defect in the tender in all the circumstances of this case. In these circumstances, although possibly defective, the vendor respondents’ tender did not justify a refusal to close the transactions: see the Honourable Mr. Justice Paul M. Perell, “Tender”, Practice Gems – Best Practices for Tendering in Real Estate Transactions (Toronto: The Law Society of Upper Canada, 2009).

[5] Accordingly, even if the vendor respondents’ interpretation of para. 9 were incorrect, the trial judge did not err in dismissing the appellants’ action. Time was of the essence of the transactions and the appellant purchasers were not in a position to close on the closing date.

[6] The appeal is therefore dismissed.

[7] Costs of the appeal are to the respondents fixed on a partial indemnity scale in the amount of $8,000.00 inclusive of disbursements and applicable taxes. Order to go for payment out to the respondents.

“Janet Simmons J.A.”

“Robert P. Armstrong J.A.”

“David Watt J.A.”