Court of Appeal for Ontario

Date: 20210407 Docket: C68446

Doherty, Rouleau and Miller JJ.A.

Between

Lucie Ann Marie Ritchie (formerly Brunet), Rahul Joshi and Erin Leslie Plaintiffs (Appellants)

and

Castlepoint Greybrook Sterling Inc. Defendant (Respondent)

Counsel: Geoffrey D.E. Adair, for the appellants Steve J. Tenai and Brian Chung, for the respondents

Heard: March 31, 2021 by video conference

On appeal from the judgment of Justice Paul Perell of the Superior Court of Justice, dated June 26, 2020, reported at 2020 ONSC 3840.

Reasons for Decision

[1] This appeal turns on the interpretation of an exculpatory clause (clause 28) in an agreement of purchase and sale relating to the preconstruction sale of condominium units in a proposed development.

[2] In our view, the appeal cannot succeed.

[3] On a plain reading of clause 28, the plaintiffs (appellants) were limited upon termination of the agreement by the respondent to the recovery of their deposit plus interest. We agree with the motion judge (paras. 81-85, 91-93), that the “Tarion” provisions incorporated into the agreement, which impose certain good faith obligations on the respondent, do not alter the plain meaning of clause 28.

[4] Clause 28 is concerned with the allocation of risk, as between the parties to the agreement, should the agreement be terminated. The allocation of risk is achieved through the limitation upon termination of the agreement of the respondent’s potential liability to the plaintiffs (appellants). As the motion judge held, the limitation on the respondent’s potential liability, agreed upon by the parties in clause 28, is not inconsistent with the letter of the Tarion provisions or the policy underlying those provisions.

[5] The appeal is dismissed. Costs of the appeal to the respondent in the amount of $25,000, inclusive of disbursements and all relevant taxes.

“Doherty J.A.”

“Paul Rouleau J.A.”

“B.W. Miller J.A.”