Court of Appeal for Ontario

Date: 2019-04-08 Docket: C65945

Panel: Simmons, Juriansz and Miller JJ.A.

Parties

Between

1303943 Ontario Inc. and Erin Patricia Dowse Applicants (Respondents)

and

Dajlan Troka In Trust, Isabella Troka Enterprises Inc. and RE/MAX West Realty Inc. Respondents (Appellants)

Counsel

Marek Z. Tufman and G.A.P. Tufman, for the appellants

M. Gosia Bawolska and Kara L. Denny, for the respondents

Hearing and Appeal

Heard: April 5, 2019

On appeal from the judgment of Justice Sandra Nishikawa of the Superior Court of Justice, dated September 4, 2018.

Appeal Book Endorsement

[1] We reject the appellants' argument that the application judge erred in failing to convert the application and counter-application to an action. In our view, although the application judge's reliance on s. 3 of the Vendors and Purchasers Act was misplaced, the application was authorized under rr. 14.05(3)(d) and (h).

[2] The appellants' allegations and continued negotiations were irrelevant to whether the respondents were prima facie entitled to the deposits. That question was squarely within r. 14.05(3)(d) as it involved interpretation of the written contracts.

[3] There were no material facts in dispute concerning the appellants' claim for relief from forfeiture. The application judge found the issues of fact raised by the appellants more apparent than real and inconsistent with the written record. We agree with that conclusion and with her conclusion that the expert's report was not submitted in the form of admissible evidence.

[4] Finally, the deposits were true deposits and there was no evidence to support a finding that retaining them was disproportionate or unconscionable on the facts of this case. Appeal dismissed.

[5] Costs of the appeal are to the respondents on a partial indemnity scale fixed in the amount of $7,000, inclusive of disbursements and HST.