Court of Appeal for Ontario

Date: 2018-11-15 Docket: C65407

Panel: Hoy A.C.J.O., Feldman and Huscroft JJ.A.

Between

Mikmada Development Group Inc. in Trust for a Company to be Formed Applicant (Appellant)

and

Michael Patrick Conlon and Sandra Janet Campbell Respondents (Respondents)

Counsel

Barry Eakins, for the appellant

Andrea M. Habas, for the respondents

Heard and Released

Heard and released orally: November 15, 2018

Appeal Information

On appeal from the judgment of Justice Marvin Kurz of the Superior Court of Justice, dated April 23, 2018, with reasons reported at 2018 ONSC 2598, [2018] O.J. No. 234 (Sup. Ct.).

Reasons for Decision

[1] This appeal arises out of a failed real estate transaction.

[2] Counsel for the respondent sellers gave written notice to the appellant that the respondents were treating the agreement of purchase and sale (the "Agreement") as "void" and of no further legal effect because of the appellant's failure to pay a further deposit due under the Agreement.

[3] The application judge agreed that the respondents were entitled to treat the Agreement as at an end, and that their counsel's notice had terminated the Agreement. He further found that the respondents did not waive their termination of the Agreement by, among other things, negotiating with the appellant following termination.

[4] The appellant does not challenge the application judge's finding that the respondents' termination of the Agreement was effective. It argues that the application judge erred in his understanding and application of the doctrine of waiver.

[5] We disagree.

[6] At para. 35 of his reasons, the application judge correctly set out the law of civil waiver, as summarized by this court in Technicore Underground Inc. v. Toronto (City), 2012 ONCA 597, 354 D.L.R. (4th) 516. How the application judge applied this law to the facts of this case is a matter which attracts deference from this court.

[7] We reject the appellant's argument that the fact that the negotiations between the parties took place following the termination of the Agreement was not a proper consideration. The application judge's conclusion that the respondents did not waive their right to insist upon time being of the essence, or their termination of the Agreement based on the appellant's breach, is amply supported by the record. We see no basis to interfere with it. Moreover, we agree with the application judge that the continued negotiations following termination support the conclusion that the respondents were not prepared to close in accordance with the Agreement, but were prepared to complete a transaction on different terms.

[8] Accordingly, the appeal is dismissed. The respondents are entitled to the costs of their appeal fixed in the amount of $14,000, inclusive of HST and disbursements.

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

"K. Feldman J.A."

"Grant Huscroft J.A."