COURT FILE AND PARTIES

COURT FILE NO.: 284/13

DATE: 20141204

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jitendra Kumar Sood, Appellant

AND:

Karmen Tse , Respondent

BEFORE: Marrocco A.C.J.S.C.

COUNSEL:
Sender Herschorn, for the Respondent

Jitendra Sood appeared personally

HEARD: December 2, 2014

Fresh Evidence ENDORSEMENT

[1] Mr. Sood is a party to this proceeding. He is also a duly licensed barrister and solicitor in the Province of Ontario. The Mr. Sood entered into an agreement of purchase and sale of a condominium unit with Karmen Tse. Mr. Sood was selling the condominium; Karmen Tse was buying it. Ms. Tse paid a deposit of $16,000.

[2] The agreement of purchase and sale was conditional upon a status certificate confirming financial information which Mr. Sood had provided to Ms. Tse. The financial information concerned monthly maintenance fees and special assessments. The clause provided that the offer was conditional upon Ms. Tse’s lawyer reviewing the status certificate and finding it satisfactory. Mr. Sood as the seller was required to request the status certificate and any attachments within 10 banking days of acceptance of the offer. The clause also provided that unless Ms. Tse gave notice in writing no later than 6 PM on the third day following receipt of the status certificate that the condition was fulfilled the offer was null and void and the deposit was to be returned to her in full without deduction.

[3] The trial judge found that there was no extension of this expiry date which turned out to be May 20, 2011 at 6 PM. Ms. Tse decided to rely upon the condition and after 6 PM on May 20, 2011 demanded the return of her deposit. Mr. Sood would not return the deposit. Ms. Tse successfully sued him in Small Claims court. Mr. Sood appealed.

[4] Ms. Tse brought this motion for leave to introduce fresh evidence. Specifically, emails which passed between Mr. Sood and Mr. Aaron on May20, 2011.

[5] Mr. Sood testified at the Small Claims Court trial. Mr. Sood testified that he retained a lawyer, Mr. Robert Aaron, to act for him on the sale. Mr. Sood testified that he was not aware of the increase in maintenance fees or the special assessment. Mr. Sood testified that Ms. Tse proposed amending the agreement of purchase and sale as a result of the information in the status certificate. The effect of the amendment was to cause Mr. Sood to pay the special assessment and the increased maintenance fee for one year. Mr. Sood testified that Mr. Aaron could not advise him about accepting the amendment without seeing the status certificate. Mr. Sood testified that it was not possible for Mr. Aaron to review the status certificate until after the May 20, 2011, 6 PM deadline. Mr. Sood testified that Mr. Aaron wrote to Ms. Tse’s solicitor and asked for an extension of the deadline. And that at no time did the buyer refuse the extension.

[6] It is clear from the fresh evidence that Mr. Sood sent a copy of the status certificate to Mr. Aaron on May 20, 2011 at 2:29 PM immediately after Mr. Aaron requested it.

[7] Mr. Sood’s communication with Mr. Aaron were privileged at the time of the trial. They were therefore not available to Ms. Tse. As well, Mr. Sood did not bring the privileged emails to his trial. When Mr. Sood, who is a lawyer, attached his communications with Mr. Aaron to his claim against Mr. Aaron, he waived any solicitor client privilege attaching to those emails.

[8] It was not possible for Ms. Tse to produce these emails at the trial with which we are concerned. The issue of the May 20, 2011 deadline and its extension were decisive at that trial. The emails are authentic. It is true that Ms. Tse was successful at the trial. However there has been an appeal and the Divisional Court, if the appeal is successful, will have to decide whether to order a new trial or enter a decision in favour of Mr. Sood. These emails are relevant to that decision.

[9] I am satisfied that the test for the admission of fresh evidence is met with respect to these emails.

[10] The applicant/respondent also wishes to introduce Mr. Sood’s statement of claim against Mr. Aaron and Mr. Aaron’s statement of defense. These documents are unhelpful and leave to introduce them is refused.

[11] This application is granted in part. Mr. Sood will pay costs in the amount of $4000 forthwith.

MARROCCO A.C.J.S.C.

Date: 20141204