Court of Appeal for Ontario

Date: 2018-06-18 Docket: C64513

Panel: Hoy A.C.J.O., Rouleau and Benotto JJ.A.

Between

Christopher Kennelly and Jupiter Equities, LLC Respondents

and

Hassan Hashemi Appellant

Counsel

Hassan Hashemi, self-represented

Scott W. Beattie, for the respondents

Heard: June 11, 2018

On appeal from: The judgment of Justice R.A. Lococo of the Superior Court of Justice, dated September 26, 2017.

Reasons for Decision

[1] The appellant, Hassan Hashemi, appeals the judgment of the application judge declaring that he is in breach of the agreement dated January 26, 2017 (the "Agreement") for the sale to and purchase by the respondents of a property in Niagara-on-the-Lake (the "Property"); and that the respondent, Jupiter Equities, is entitled to the return of the deposit paid under the Agreement.

[2] On the court day before the appeal was heard, the appellant advised that he would seek a 60-day adjournment of the appeal to obtain transcripts and hire counsel. He renewed this request at the opening of the hearing. The respondents opposed his request for an adjournment.

[3] After hearing submissions from the parties, we declined to grant the adjournment sought.

[4] The appellant was aware since at least March 14, 2018 that his counsel would seek to be removed from the record if he were not paid forthwith. The appeal was originally scheduled to be heard on April 25, 2018. Before removing himself from the record on April 26, 2018, appellant's counsel secured an adjournment to today's date to provide the appellant with time to retain new counsel or to prepare to represent himself. Counsel had filed and served a factum on behalf of the appellant before he obtained an order removing him from the record.

[5] After his counsel removed himself from the record, the appellant filed notice that he would represent himself. The appellant submitted that he would prefer to retain counsel but that prospective counsel required more time to prepare and to obtain transcripts. He advised that if the requested adjournment were granted, he proposed to retain the counsel who represented him on the application below.

[6] The appellant provided no evidence of any steps taken to retain counsel, his ability to retain counsel, or that counsel on the application is prepared to act for him. This absence of evidence was significant given the several changes of counsel in the period leading up to the scheduled closing date of the transaction. Further, given the arguments in his factum and the fact that there was no oral evidence on the application, we did not see why transcripts of the attendance before the application judge were required for the appeal. In these circumstances, we concluded that a further adjournment was not appropriate and proceeded to consider the appeal on the merits.

[7] The appellant was not the original vendor under the Agreement. He was the tenant in possession of the Property and the assignee of the third mortgage on the Property. The assignor of the third mortgage had served a notice of power of sale before the Agreement was concluded. The parties and the application judge accepted that the Agreement applied in the circumstances and, for the purposes of our analysis, we assume the same.

[8] The appellant submits that the application judge erred in finding him in breach of the Agreement. He argues that he was entitled under the Agreement to close the sale of the Property at any time up to February 28, 2017, and, contrary to the application judge's conclusion, he was therefore entitled to extend the closing date after failing to complete the transaction at the agreed-upon closing time of 2:30 p.m. on February 24, 2017, and did not breach the Agreement by failing to complete the transaction at that time.

[9] We reject this argument.

[10] The Agreement provided that the closing date was February 14, 2017, but that the "seller" had the option to delay the closing up to two weeks. The seller extended the closing date to February 23, 2017 and then the parties agreed that the closing time would be 2:30 p.m. on February 24, 2017 (the "Closing Time"). The appellant did not attempt to further extend the closing date before the Closing Time. The Agreement provides that time is of the essence and it is clear that the appellant was not ready, willing, and able to close at the Closing Time.

[11] We agree with the application judge that the respondents ceased to be obligated to complete the purchase of the Property and were entitled to the return of their deposit when the appellant failed to complete the purchase and sale transaction at the Closing Time. The appellant was not entitled to unilaterally extend the closing date under the Agreement after he failed to complete the transaction at the Closing Time.

[12] Accordingly, the appeal is dismissed. The respondents are entitled to their costs of the appeal, fixed in the amount of $10,000, including HST and disbursements.

"Alexandra Hoy A.C.J.O."

"Paul Rouleau J.A."

"M.L. Benotto J.A."