Court of Appeal for Ontario

Date: 2022-05-02 Docket: C69846

Judges: Lauwers, Nordheimer and Zarnett JJ.A.

Between:

Madison Homes Cornell Rouge Limited Plaintiff (Respondent)

and

Liangfu Jiang Defendant (Appellant)

Counsel: Ran He and Ye Yuan, for the appellant Shane Greaves, for respondent

Heard: April 29, 2022

On appeal from the judgment of Justice Frederick L. Myers of the Superior Court of Justice, dated August 16, 2021.

Reasons for Decision

[1] Liangfu Jiang appeals from the summary judgment granted by the motion judge which awarded the respondent damages arising from a failed agreement of purchase and sale. At the conclusion of the hearing, we dismissed the appeal with reasons to follow. We now provide our reasons.

[2] On November 19, 2016, the appellant, together with his real estate agent, attended at the respondent’s sales office for the first time. They inquired of its sales representative about purchasing a pre-construction single-family home in Phase 6 of a residential subdivision known as Cornell Rouge in Markham, Ontario that was being developed by the respondent, along with other builders. November 19, 2016, was the first day of the release of the Phase 6 properties for sale.

[3] The appellant signed an agreement of purchase and sale (“APS”) that day for a home with a purchase price of $1,709,990, and a closing date of May 15, 2018.

[4] Between March 13, 2017 and August 15, 2018, the parties executed a series of amendments to the APS which increased the purchase price to $1,745,261.76 and extended the closing date to October 15, 2018. During this same period, the appellant paid monies to the respondent under the APS, as amended, in the aggregate total of $193,817.94.

[5] In October 2018, the appellant was not in a financial position to close the APS. He sought an extension of the closing date, but it was not granted by the respondent. On October 15, 2018, the appellant failed to close, and the respondent terminated the APS. The appraised value of the property as at October 15, 2018 was $1,100,000.

[6] On April 30, 2020, the respondent entered into a listing agreement to list the Property for sale on the Multiple Listing Service, and a month later, the respondent contracted to resell the property. The resale closed on July 22, 2020, and the resale price was $1,330,000. The respondent then commenced this action to recover the shortfall, along with other expenses such as the carrying costs and additional resale commission, by way of damages.

[7] The appellant raised two principal issues on the motion for summary judgment, only one of which he repeats on this appeal. That issue is that the respondent engaged in a misrepresentation that led the appellant to enter into the APS. The other issue was whether the respondent failed to act properly to mitigate its damages, but that issue was abandoned just prior to the hearing of the appeal.

[8] The misrepresentation alleged by the appellant is that the respondent’s sales representative told him that the prices for the homes would increase in the next phase of the development. However, as it turned out, they did not. The motion judge rejected the misrepresentation argument on a number of grounds. Among those grounds, he found that the alleged misrepresentation was not actionable because it was not a statement of fact, but rather a prediction and thus not information on which it would be reasonable to rely: Hembruff v. Ontario Municipal Employees Retirement Board (2005), 78 O.R. (3d) 561 (C.A.), at para. 76, leave to appeal refused, [2005] S.C.C.A. No. 549 and [2006] S.C.C.A. No. 3. He also found that there was no evidence that the statement, if made, did not reflect a belief that was honestly held by the sales representative who made it. He further found that there was no evidence the statement was negligently made.

[9] We do not see any error in the motion judge’s analysis of these aspects of this issue or the evidentiary basis relating to it. Given that conclusion, any error that the motion judge might have made regarding the question of the appellant’s reliance on the statement becomes irrelevant.

[10] In the result, the appellant has failed to establish any error in the motion judge’s conclusion that there was no genuine issue for trial.

[11] The appeal is dismissed. The respondent is entitled to its costs of the appeal fixed in the amount of $5,000, inclusive of disbursements and H.S.T.

“P. Lauwers J.A.”

“I.V.B. Nordheimer J.A.”

“B. Zarnett J.A.”