Court of Appeal for Ontario

Date: 2018-02-26 Docket: C64186

Judges: Feldman, Benotto and Brown JJ.A.

Between

Olayinka Dada and Oluwatoyin Dada Applicants (Appellants)

and

Brantford Communities Ltd. and Empire Pleasantview Communities Ltd. Respondents (Respondents)

Counsel

Derek Schmuck, for the appellants

Brendan Clancy, for the respondents

Heard and released orally: February 26, 2018

On appeal from: the judgment of Justice Alan Whitten of the Superior Court of Justice, dated July 18, 2017.

Reasons for Decision

[1] The appellants ask this court to find that the application judge misapprehended or ignored aspects of the evidence in finding that the appellants' failure to close the purchase transaction was due to their own negligence and that of their lawyers.

[2] We can see no error in the application judge's findings based on the record before him, and no basis to interfere with his conclusion.

[3] In holding that part of the consequences of that negligence was that the appellants would forfeit their deposit and upgrade fees paid, the application judge did not expressly refer to the concept of unconscionability: see Redstone Enterprises v. Simple Technology Inc., 2017 ONCA 282, at para 15.

[4] However, the application judge was aware from the record that the respondents resold the property before the hearing for an increase of $240,000 over the original purchase price. In our view, given his finding of the appellants' responsibility for the failure to close, the application judge did not consider the forfeiture of the deposit and upgrade fees to be unconscionable, in the circumstances, even though the respondent did receive a significant benefit.

[5] The appeal is therefore dismissed, with costs fixed in the amount of $8,500, inclusive of disbursements and HST.

K. Feldman J.A.

M.L. Benotto J.A.

David Brown J.A.