Court of Appeal for Ontario

Date: 2019-03-27 Docket: C65501

Judges: Lauwers, Benotto and Brown JJ.A.

Between

Shripragas Sivasubramaniam Applicant (Respondent)

and

Yar Mohammad and Jamila Khudabakhsh Respondents (Appellants)

Counsel

Eric Sherkin, for the appellants

Garth B. Dingwall, for the respondent

Heard and released orally: March 25, 2019

Appeal Information

On appeal from the judgment of Justice Robert Charney of the Superior Court of Justice, dated May 16, 2018, with reasons reported at 2018 ONSC 3073, 98 R.P.R. (5th) 130.

Reasons for Decision

[1] The appellants, Yar Mohammad and Jamila Khudabakhsh (the "Vendors"), appeal from the judgment of the application judge granting the respondent, Shripragas Sivasubramaniam (the "Purchaser"), specific performance of the Agreement of Purchase and Sale dated March 8, 2015 (the "Agreement") of residential property located in Ajax, Ontario.

[2] The Vendors do not take issue with the findings of the application judge that they breached the Agreement by failing to provide vacant possession of the property on the closing date and that the Purchaser did not terminate the Agreement but called for continued performance.

[3] The Vendors advance a single ground of appeal regarding the remedy of specific performance. They submit that the application judge erred in granting specific performance of the Agreement when the Purchaser waited 17 months after the date of breach before commencing his application.

[4] We see no error. The application judge correctly identified the applicable legal principles. The Vendors have not persuaded us that the application judge made any palpable and overriding errors in his factual findings that: the property was unique; an award of damages would not meaningfully do justice between the parties; the Purchaser's delay was not sufficient in the circumstances to disentitle him from obtaining an order for specific performance; and no hardship to the Vendors existed at the time the Agreement was made.

[5] In sum, we see no error in principle in the application judge's exercise of his discretion to grant specific performance.

[6] The appeal is dismissed.

[7] The respondent is entitled to his costs of the appeal fixed on a partial indemnity basis in the amount of $10,000, inclusive of disbursements and applicable taxes.

"P. Lauwers J.A."

"M.L. Benotto J.A."

"David Brown J.A."