Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20211108 DOCKET: C68792

MacPherson, Simmons and Nordheimer JJ.A.

BETWEEN

Antonio Giancola and Angelina Giancola Plaintiffs (Respondents)

and

Alexandre Dobrydnev Defendant (Appellant)

Counsel: Arkadi Bouchelev, for the appellant Christopher Belsito, for the respondents

Heard: November 3, 2021 by video conference

On appeal from the judgment of Justice Mark L. Edwards of the Superior Court of Justice dated October 5, 2020, with reasons reported at 2020 ONSC 6007.

Reasons for Decision

[1] Mr. Dobrydnev appeals from the summary judgment granted by the motion judge in which he ordered the appellant to pay to the respondents the sum of $306,130.54. He subsequently ordered that the appellant pay costs in the amount of $40,000. At the conclusion of the hearing, we dismissed the appeal with reasons to follow. We now provide our reasons.

[2] The issues between the parties arose out of a failed residential real estate transaction. The appellant had agreed to purchase a house from the respondents. The day before the closing, the appellant raised an issue about a possible problem in the basement of the home. He asked for a reduction in the purchase price and a postponement of the closing date.

[3] While the respondents were open to a postponement of the closing date, they were not prepared to reduce the purchase price. The appellant then advised that he would not close the transaction.

[4] The appellant says that a few days before the closing date, he visited the property and noticed a problem in the basement. He says that he had not noticed the problem earlier because the area had been covered with a carpet. The appellant was very concerned about what he saw because it suggested that there had been a problem with the foundation of the home. He says that in response to questions he asked, the respondents told him that there had been a major flood some years earlier, that the foundation walls had cracked, and that repairs had been made. The appellant says that the respondents refused to provide any documentation regarding the repairs or tell him who had done the work. He does say, however, that the respondents admitted that the work had been done without getting a building permit.

[5] The appellant filed two expert reports on the motion. The thrust of the expert reports was that the repairs were significant and ought to have been disclosed.

[6] The respondents deny the appellant’s allegations. They say that the problem in the basement was obvious to anyone who viewed the property. They say that the appellant did not raise any issue with them when he visited the property. The respondents produced photographs taken by their real estate agent that showed the problem area in the basement.

[7] The motion judge reviewed the evidence. He was satisfied that, notwithstanding the conflict in the evidence, he was in a position to resolve the issue without the need for further evidence or for the matter to go to trial. He noted the corroboration for the respondents’ position provided by the photographs from their real estate agent. He also noted that the respondents’ real estate agent had confirmed that the subject area in the basement was not hidden from any potential purchaser.

[8] The motion judge rejected the appellant’s evidence in part because the appellant waited until the day before the closing to raise this issue. The motion judge observed that the appellant, on his own evidence, had learned about the problem six days earlier. The motion judge also found that between those two dates, the appellant had received a mortgage commitment that left him over $200,000 short of the amount he needed to complete the purchase.

[9] The motion judge also rejected the appellant’s expert evidence. He pointed out that neither expert had actually seen the property but rather had relied almost exclusively on what the appellant had told them in forming their opinions.

[10] The appellant raises a number of errors said to have been made by the motion judge. We agree with only one. The motion judge erred in relying on the hearsay evidence of a home inspection that was undertaken by the subsequent purchaser of the home. However, this error was not material to the motion judge’s conclusion and does not detract from the other aspects of his analysis, including his point that the appellant could have made his offer to purchase conditional on a home inspection but chose not to do so.

[11] Finally, the motion judge concluded that any issue with respect to the basement of the property was readily apparent to any potential purchaser. Therefore, the principle of caveat emptor applied.

[12] The appellant has failed to demonstrate any error that goes to the core of the analysis undertaken, and conclusion reached, by the motion judge. The motion judge provided detailed reasons in which he reviewed the evidence and explained his approach to it. The findings that the motion judge made were available to him on the evidence. There is no basis for us to interfere with his decision.

[13] It is for these reasons that the appeal was dismissed. The respondents are entitled to their costs of the appeal which are fixed in the agreed amount of $8,380, inclusive of disbursements and HST.

“J.C. MacPherson J.A.”

“Janet Simmons J.A.”

“I.V.B. Nordheimer J.A.”