Court File and Parties

Court File No.: C70195 Date: 2022-09-01 Court of Appeal for Ontario

Before: Miller, Nordheimer and Sossin JJ.A.

Between: LIV Communities, Plaintiff (Respondent) And: Fida Kasi, Defendant (Appellant)

Counsel: Marek Tufman, for the appellant Colleen Yamashita, for the respondent

Heard: August 30, 2022

On appeal from: The order of Justice John Krawchenko of the Superior Court of Justice dated December 7, 2021.

Reasons for Decision

Overview

[1] This appeal concerns the decision of the motion judge dismissing a motion to set aside a default judgment against Firda Kasi, the appellant. The underlying dispute involved an agreement for the purchase and sale of a residential property, which the respondent vendor alleged that the appellant purchaser had breached. The appellant did not respond to the statement of claim and in November 2019, Milanetti J. granted default judgment against the appellant for $236,093.28 in damages as a result of the property subsequently being sold at a lesser price, plus interest of $14,165.60, and the forfeiture of a $100,000 purchase deposit.

[2] The appellant’s main ground of appeal is that the respondent corporation, LIV Communities, was not the party with whom the appellant contracted, and was not the owner of the subject property at the time of the APS in May 2015. Therefore, LIV Communities could not have sustained damages.

[3] At the conclusion of oral submissions, we dismissed the appeal with reasons to follow. These are our reasons.

Analysis

[4] The APS was between the appellant as purchaser and “Landmart Homes operating as LIV Communities” as vendor. Landmart Homes had changed its name to LIV Communities in 2015. LIV Communities was a partnership registered under the Business Names Act, R.S.O. 1990, c. B.17.

[5] The motion judge accepted the respondent’s evidence that Landmart Homes and LIV Communities were one and the same, and that the owner of the land, LIV Developments Ltd., held the land in trust for LIV Communities, pursuant to a trust declaration signed in 2013 (though in his reasons, the motion judge mistakenly referred to this declaration as having been signed in 2017).

[6] The respondent concedes that the APS listing the vendor as “Landmart Homes operating as LIV Communities” was in error. At the time of the APS, Landmart Homes no longer existed. However, the decision not to list the actual owner of the property – LIV Developments Ltd. – in the APS was not inadvertent. Cliff Caise, the Chief Financial Officer for the respondent, gave evidence on the motion that it is “common practice” for an entity other than the owner of the property to be listed on an APS with a purchaser.

[7] Whether common or not, this practice seems questionable to the extent it misleads purchasers – particularly unsophisticated purchasers – as to whom they are contracting with. In this case, however, the record makes clear that the appellant understood he was dealing with LIV Communities. For example, the deposits he paid were to LIV Communities, and the documentation relating to the sale featured the LIV Communities logo. Further, the motion judge found the appellant to be a sophisticated party with respect to the real estate transaction.

[8] With respect to the appellant’s other arguments, they were not strenuously advanced in oral argument and the appellant is repeating the same arguments rejected by the motion judge. The appellant has not identified any reversible error in the reasons of the motion judge. The motion judge made findings open to him on the evidence in the record, much of which was uncontradicted. We see no basis to interfere with the motion judge’s decision.

Disposition

[9] It is for these reasons that the appeal was dismissed.

[10] The appellant shall pay to the respondent costs in the amount of $8,500, all inclusive, as agreed by the parties.

“B.W. Miller J.A.”

“I.V.B. Nordheimer J.A.”

“L. Sossin J.A.”