Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20210914 DOCKET: C68789

Benotto, Brown and Harvison Young JJ.A.

BETWEEN

Forest Meadows Developments Inc. Applicant (Appellant)

and

Narges Shahrasebi Respondent (Respondent)

Counsel: Mark A. Ross and Vladimira M. Ivanov, for the appellant Eddy Battiston and Harold Rosenberg, for the respondent

Heard: September 9, 2021 by video conference

On appeal from the judgment of Justice Jana Steele of the Superior Court of Justice, dated September 3, 2020.

Reasons for Decision

[1] The appellant Forest Meadows Developments Inc. appeals the order by the application judge dismissing its application for a declaration that the respondent was in breach of an Agreement for Purchase and Sale (“APS”), which was an agreement for the purchase and sale of land and a custom pre-built dwelling on the land.

[2] Briefly, the dispute arises out of the following circumstances. The APS was signed in March 2017. It provided that the closing would take place on March 25, 2018. Construction began in the fall of 2018. In 2019, there were a number of extensions of the closing date occasioned by the appellant which were contemplated by the APS. There was another extension to August 29, 2019, which the application judge found to have been requested by the appellant in return for a discount on certain upgrades. In May 2019, the parties executed an amendment to the APS which extended the closing date to October 29, 2019. That closing did not take place. The respondent argues that she was ready to close on that date despite the fact that her house had not yet sold and that the failure of the appellant to close on that date was a breach of the APS entitling her to terminate the contract and receive back her deposit and all monies paid. The discussions in the months leading up to October 29, 2019, were attempts to negotiate a better price for the upgrades and possibly a price reduction.

[3] The appellant argues that it had relied on the respondent’s representations that she would not be able to close, slowing down construction and preparation for the final appraisal, which would be necessary to close and a prerequisite for the respondent to obtain the financing that had been preapproved.

[4] The appellant commenced this application arguing that the respondent had made representations that she would not close on October 29 because her house was not selling at the price necessary to finance the purchase of the new property, that she was in anticipatory breach, and that the appellant was entitled to terminate the contract.

[5] In dismissing the application, the application judge found that there had been no anticipatory breach or representations that could have given rise to reasonable reliance by the appellant.

[6] All the issues raised by the appellant turn on one central question of fact: did the respondent say or represent that she would not be able to close on October 29, 2019? The application judge expressly found that she did not. This finding of fact attracts a high level of deference and we see no palpable or overriding error to justify the intervention of this court.

[7] While the appellant also raises certain extricable issues of law, such as whether the APS could be amended by subsequent representations or conduct on the part of the respondent, these also depend on finding that the representation that the respondent could not close on October 29 was actually made.

[8] The application judge’s findings were well grounded in the record before her. She found that while the respondent had certainly communicated the difficulty she was having selling her house for the price necessary, she had never said that she would not be able to close on that date.

[9] There is no basis to interfere with this key finding on the part of the application judge. Without it, there was no representation that the respondent would not be able to close, and the question of whether the appellant reasonably relied does not arise. Nor can the question of whether an oral contract or representations could amend the APS in light of the entire agreement clause arise as the application judge’s finding was that there was no agreement to extend the October 29 closing date, oral or otherwise.

[10] We also find that there is no merit to the argument that the application judge erred in failing to give weight to the September 12 meeting between the respondent, her husband, and Mr. Tiz, a representative of the appellant, which was surreptitiously recorded by the appellant. She gave good reasons for so declining, namely, that there was ample written correspondence between the parties and their counsel and that there was clearly unfairness where the appellant knew they were taping the recording while the respondent and her husband did not.

[11] Lastly, the application judge gave clear reasons for the findings of fact made.

[12] The appeal is dismissed.

[13] The appellant shall pay the respondent her partial indemnity costs of the appeal fixed in the amount of $27,926, inclusive of disbursements and applicable taxes.

“M.L. Benotto J.A.”

“David Brown J.A.”

“A. Harvison Young J.A.”