Court of Appeal for Ontario

Date: 2019-01-07 Docket: C65012

Judges: Rouleau, van Rensburg and Zarnett JJ.A.

Between

Matthew Vatcher, Samantha Janetos Vatcher and Mary Janetos Plaintiffs (Respondents)

and

Dilruba Raihan Quazi, MD Khalequzzaman and Forest Hill Real Estate Inc. Defendants (Appellants)

Counsel

David Marcovitch, for the appellants

Terry Corsianos, for the respondents

Heard and released orally: January 7, 2019

On appeal from: the judgment of Justice Peter J. Cavanagh of the Superior Court of Justice, dated January 26, 2018.

Reasons for Decision

[1] This appeal concerns a house purchase. The appellants agreed to purchase the respondents' property. After the market declined and they were unable to sell their own home, they failed to complete the purchase. The respondents sued for damages, ultimately selling the house at a lower price. They were awarded summary judgment for $135,841.24 and $8,000 in costs.

[2] Three arguments are raised on appeal.

Procedural Fairness

[3] First, the appellants, who were self-represented throughout the proceedings in the Superior Court, argue that they were denied procedural fairness. In particular, they say that the motion judge ought to have adjourned the motion so that they could obtain the evidence of their broker in response to the motion, as well as legal counsel. They also assert that the scheduling of the motion did not take into consideration their personal circumstances and that they ought to have been given time to provide responding materials.

[4] We do not give effect to this ground of appeal. Although the appellants did not attend court on the date that the motion was scheduled, the scheduling judge made it clear in his endorsement that they could move for an adjournment. The appellants were aware of the requirements and deadlines for submission of responding materials. They did not respond to a letter from opposing counsel setting out a proposed schedule. On the day of the hearing of the motion, the motion judge made every effort to assist the appellants who had not filed any materials in response to the motion. Although they did not request an adjournment, the motion judge explored with them the option of retaining counsel and whether they had a defence to the respondents' claim. Although the appellants referred to the broker having given certain assurances, there was no indication, even after probing by the motion judge, that the broker could offer evidence to assist in the defence of the motion or that the appellants were seeking an adjournment to put forward evidence. Indeed, it was only after the motion judge read out his reasons granting the motion that the appellants requested an adjournment and suggested that they wanted the opportunity to bring the broker to court. The refusal at that stage to grant an adjournment was a proper exercise of the motion judge's discretion and there was no unfairness in how the motion proceeded.

Interpretation of the Agreement

[5] The appellants' second argument is that the motion judge erred in rejecting their interpretation of the agreement. According to the respondents' affidavit, the appellants' offer to purchase contained conditions that they did not accept and struck out. Instead, their agent inserted a handwritten notation "buyer to provide additional deposit of $10,000 as soon as buyer sells property located at Kennedy/Eglinton – 131 Treverton and after deal is closed we will provide the money." The respondents' evidence was that this term was inserted for their benefit as they were dissatisfied with the amount of the deposit.

[6] The motion judge concluded that the inserted words did not make the agreement conditional. The words only addressed the deposit. There is no reason to interfere with the motion judge's interpretation of the agreement which was reasonable and entirely consistent with the evidence. Again, the explanation for the failure to close the transaction at the time was that the market had declined and the appellants were unable to get a mortgage. The appellants offered to negotiate a lower purchase price, but did not take the position that the agreement was conditional.

Mitigation of Damages

[7] Finally, the appellants assert that the motion judge erred in his conclusion that the respondents had mitigated their damages when they sold the property for $610,000 in October 2017, three months after the scheduled closing with the appellants and for $120,000 less than the amount the appellants had agreed to pay. We disagree. The respondents delivered a supplementary affidavit that referred to the downturn in the market and the sale they were able to conclude. This evidence, which was unchallenged at the motion, was sufficient to support their claim for damages and adequately demonstrated their efforts to mitigate.

Decision

[8] For these reasons, the appeal is dismissed. Costs to the respondents fixed at $7,500 inclusive of HST and disbursements.

"Paul Rouleau J.A." "K. van Rensburg J.A." "B. Zarnett J.A."