Court File and Parties

Court of Appeal for Ontario Date: 20230519 Docket: C70505

Trotter, Sossin and Copeland JJ.A.

Between

Margaret Mary Plewes Plaintiff/Defendant by Counterclaim (Respondent)

and

Raana Chaudhry and Simran Chaudhry Defendants/Plaintiff by Counterclaim (Appellants)

Counsel: Matthew Morden, for the appellants David Winer and Paul Casuccio, for the respondent

Heard and released orally: May 12, 2023

On appeal from the judgment of Justice Susanne Boucher of the Superior Court of Justice, dated April 12, 2022.

Reasons for Decision

[1] This appeal arises out of a post-closing dispute over the allocation of HST liability following the sale of a mixed-use property (i.e., commercial, farming, and residential). Initially, the vendor, the respondent on this appeal, and the purchaser, the appellants, sued each other. The vendor withdrew her claim. The trial proceeded on the purchaser’s counterclaim.

[2] Ultimately, the trial judge dismissed the counterclaim because she found that the purchaser suffered no loss; arguably, she benefitted from a windfall. We agree with this finding. It justified the trial judge’s dismissal of the counterclaim; it requires the dismissal of this appeal.

[3] In the circumstances, it is not necessary to address whether the claim was barred by s. 224.1 of the Excise Tax Act, R.S.C., 1985, c. E-15. Nor is it necessary to decide whether there was a post-closing entitlement to re-adjust, as a result of the purchaser’s decision to apply for HST registrant status post-closing, that in turn resulted in a reassessment by the Canada Revenue Agency.

[4] The appeal is dismissed. The respondent is entitled to costs in the amount of $15,000, inclusive.

“Gary Trotter J.A.”

“L. Sossin J.A.”

“J. Copeland J.A.”