Court of Appeal for Ontario
Citation: 2329131 Ontario Inc. v. Carlyle Development Corp., 2014 ONCA 132 Date: 2014-02-19 Docket: C57641
Before: Gillese, Epstein and Benotto JJ.A.
Between:
2329131 Ontario Inc. and 2327451 Ontario Inc. Plaintiffs (Respondents)
and
Carlyle Development Corp. and Carlyle Consolidated Holdings Inc. Defendants (Appellants)
Counsel: Alvin Meisels, for the appellants Jonathan Kulathungam, for the respondents
Heard: February 6, 2014
On appeal from the judgment of Justice Katherine E. Swinton of the Superior Court of Justice, dated August 21, 2013, with reasons reported at 2013 ONSC 4876, 34 R.P.R. (5th) 161.
Endorsement
[1] The appellants were the vendors of a property and entered into an agreement to sell it to the respondents. The closing date was extended several times. The parties tried to close on August 3, 2012, but the appellants had not provided certain documents that the respondents’ bank required before it would release the funds.
[2] The appellants took the position that they were not obliged to deliver the documents because certain requisition were made past the deadline, time was of the essence, and the respondents had failed to deliver the funds required for closing on the closing date.
[3] The respondents successfully moved for partial summary judgment and specific performance.
[4] The appellants say the motion judge erred by:
- drawing inferences of fact that were inconsistent with the evidence or palpably wrong; and
- finding that this was an appropriate case for summary judgment.
[5] We accept neither submission and would dismiss the appeal.
The First Issue
[6] The first issue is squarely disposed of by a single fact: the motion judge made her findings on the explicit basis that she assumed the appellants’ version of events was the correct one.
[7] Further, the facts were largely undisputed and most of the numerous criticisms made about the motion judge’s factual findings are immaterial to the outcome of the case.
[8] The motion judge concluded that the “time is of the essence” clause had been waived, but she added that even if she were wrong in reaching this conclusion, the appellants could not rely on the clause. This was because, on any version of events, the appellants were not ready to close on August 3. They had failed to tender several documents that were required as conditions of closing.
[9] While the appellants argue that the respondents waived all conditions when they offered to close in escrow, we reject this submission. Even on the appellants’ submission, waiver could only have taken place if the appellants had accepted the respondents’ offer to close in escrow. The appellants refused to even contemplate this offer.
[10] The motion judge correctly held that, as the parties were not ready to close on August 3, the appellants could only reinstate the “time is of the essence” clause in these circumstances by giving the respondents reasonable notice of the new closing date and stating that time was of the essence for this new date: see Domicile Developments Inc. v. MacTavish (1999), 1999 ONCA 3738, 45 O.R. (3d) 302 (C.A.), at pp. 307-308. There is no dispute that the appellants did not do those things.
The Second Issue
[11] We see nothing in the second issue.
[12] In our view, the motion judge’s conclusion that none of the issues before her required a trial is unassailable. She had a full appreciation of the evidence and was satisfied that there were no genuine issues requiring a trial.
[13] A consideration of Hryniak v. Mauldin, 2014 SCC 7, which was decided after the motion below, reinforces the motion judge’s conclusion. Hryniak encourages the use of a summary judgment motion to resolve cases in an expeditious manner, provided that the motion can achieve a fair and just adjudication (para. 4). We are satisfied that the decision below is a fair and just adjudication.
Disposition
[14] Accordingly, the appeal is dismissed, with costs to the respondents fixed at $18,000, all inclusive.
“E.E. Gillese J.A.”
“Gloria Epstein J.A.”
“M.L. Benotto J.A.”