# NEWMARKET COURT FILE NO.: CV-11-102881-00
**DATE:** 20151204
ONTARIO
SUPERIOR COURT OF JUSTICE
**BETWEEN:**
CHANG PU YAN and QIU LIN YAN
Plaintiffs
– and –
RAVICHANDRAN NADARAJAH, KALAIAYARASI NANTHAKUMAR, and RED CARPET ROYAL REALTY LTD. also known as RED CARPET ROYAL REALTY LTD., BROKERAGE
Defendants
Mr. J. Chow, for the Plaintiffs
Mr. K. Juriansz, Ms. I. Vinogradova, for the Defendants Nadarajah and Nanthakumar
Mr. Perlis, for the Defendant Red Carpet Royal Realty Ltd.
**HEARD:** March 3, October 9, 14, 15, November 24 and 25, 2015
Cases Cited:
Hryniak v. Mauldin, [2014 SCC 7](https://www.minicounsel.ca/scc/2014/7)
Browne v. Dunn (1893), [1893 65 (FOREP)](https://www.canlii.org/en/ca/forep/doc/1893/1893canlii65/1893canlii65.html), 6 R. 67 (H.L.)
370866 Ontario Limited v. Chizy, 1987 CarswellOnt 835
Bark-Fong v. Cooper, 49 S.C.R.14
John Dodge Holdings Ltd. v. 805062 Ontario Ltd. [2001 28012 (ON SC)](https://www.canlii.org/en/on/onsc/doc/2001/2001canlii28012/2001canlii28012.html), 56 O.R. (3d) 341
904060 Ontario Ltd. v. 529566 Ontario Ltd. [1999] O.J. No. 355
Semelhago v. Paramadevan [1996 209 (SCC)](https://www.canlii.org/en/ca/scc/doc/1996/1996canlii209/1996canlii209.html), [1996] 2 S.C.R. 415
Tropiano v. Stonevalley Estates Inc. [1997 12176 (ON SC)](https://www.canlii.org/en/on/onsc/doc/1997/1997canlii12176/1997canlii12176.html)
DeFranco v. Khatari [2005] O.J. No. 1890
Gillespie v. 1766998 Ontario Inc., [2014 ONSC 6952](https://www.canlii.org/en/on/onsc/doc/2014/2014onsc6952/2014onsc6952.html)
VALLEE, J.
[1] The plaintiffs bring a motion for summary judgment. They request an order for specific performance of an agreement of purchase and sale, or in the alternative damages, regarding the sale of a residential property, 39 Dairis Crescent, Markham, which did not close. The defendants state that the agreement of purchase and sale is unenforceable. They and their spouses did not sign it. Even if the agreement of purchase and sale is valid, the plaintiffs did not waive their conditions on time. The defendants deny that the plaintiffs are entitled to specific performance or damages. The defendants bring a motion to vacate the plaintiffs’ certificate of pending litigation.
# The Test for Summary Judgment
[2] In Hryniak v. Mauldin, at para. [49](https://www.minicounsel.ca/scc/2014/7), the court provided guidance on the interpretation of Rule 20.04(2)(a) of the Rules of Civil Procedure. It stated that a court shall grant summary judgment if it is satisfied that there is no genuine issues requiring a trial. If a motion a) allows a judge to make the necessary findings of fact and apply the law to the facts, b) is a proportionate, more expeditious and less expensive means to achieve a just result, and c) if the judge is able to reach a fair and just determination on the merits of the motion, there will be no genuine issue requiring a trial.
# The Issues
1. Are the individual defendants credible?
2. Is the agreement of purchase and sale enforceable?
(a) Does the fact that the non-titled spouses did not sign the consent in agreement of purchase and sale render the agreement unenforceable?
(b) Were the plaintiffs’ waivers delivered within the time specified in the agreement of purchase and sale?
3. What is the effect of the plaintiffs’ failure to serve the motion on the defendants’ spouses?
4. Have the plaintiffs delayed in the prosecution of this action? If so, does the delay disentitle them to the remedy of specific performance?
5. If the plaintiffs are entitled to a remedy, is specific performance or damages more appropriate?
6. If damages are more appropriate, how are they calculated?
7. If the plaintiffs are not entitled to a remedy, should the certificate of pending litigation be vacated?
[3] The defendant Mr. Nadarajah is the defendant Ms. Nanthakumar’s brother in law. They hold title to the property. Their spouses are not title holders. Both families live in the house on the property. When I refer to the defendants, I am referring to the individual defendants. The defendant Red Carpet Realty Ltd. did not take an active role in these motions. Mr. Nadarajah and Ms. Nanthakumar filed separate statements of defence. They are very similar so I will refer to them as the statement of defence.
# Are Mr. Nadarajah and Ms. Nanthakumar credible?
[4] Earlier in these proceedings, Mr. Nadarajah and Ms. Nanthakumar brought a motion to discharge the plaintiff’s certificate of pending litigation. In Ms. Nanthakumar’s affidavit on that motion, sworn July 24, 2011, she stated,
9. I state that this is my family home and neither me [sic] nor my husband ever intended to sell this property. I never signed any Agreement with any real estate agent nor even met any real estate agent.
10. I further state that no one came to see this house with the intention of buying this house. There was never a ‘FOR SALE’ sign in the yard of this house.
[5] Mr. Nadarajah’s evidence is the same in his affidavit sworn July 24, 2011. He stated that he never intended to sell the house. He never met with a real estate agent or signed any agreement. Nobody came to see the house. Both defendants stated that they believed that someone had attempted to sell the house without their knowledge.
[6] The defendants also swore affidavits in defence of this motion and were cross-examined. This evidence is dramatically different from the evidence set out in paragraph 3. Ms. Nanthakumar stated in cross-examination that her family selected Kannan Kankesu, a real estate agent, to be their representative in selling the house. She stated that she and her husband were separating. Her daughter spoke to her husband and they also agreed to sell the house. Ms. Nanthakumar stated that she met Mr. Kankesu at a McDonald’s restaurant to sign some documents relating to selling the house. She stated that she signed the listing agreement on November 30, 2010. She agreed to list the house for $479,900. She denied signing any other documents, including an agreement of purchase and sale. At some point, Mr. Kankesu told her that the house was sold. She agreed to the sale.
[7] Ms. Nanthakumar stated that Mr. Kankesu introduced her to a person called Sivanesan. Sivanesan told her that she had to go to a particular lawyer, Ranjani, for the sale transaction. She said that Sivanesan told her that he would receive $50,000 if Ranjani handled the transaction. If she used another lawyer, Sivanesan would receive nothing. Sivanesan told her that if she did not use Ranjani, Sivanesan would forge her signature and close the deal on her behalf. She did not believe that the law would allow him to actually do this. She never contacted Ranjani. In fact, she went to see a real estate lawyer named Mr. Kayilasanathan and discussed the Sivanesan issue with him. Mr. Kayilasanathan also told her that the lawyer for the buyers had sent him a letter about some unpaid bills and that some mortgage documents had not been signed. Ms. Nanthakumar stated that after her meeting with Mr. Kayilasanathan, she decided that she was not going to sell the house. She made this decision because Sivanesan was asking for money.
[8] In cross-examination on his affidavits, Mr. Nadarajah stated that he first met Mr. Kankesu when he and his brother (Ms. Nanthakumar’s husband) were looking at a house to rent. Mr. Kankesu was at that house. He told Mr. Nadarajah that 39 Dairis Crescent had been sold and that he had to sign the final agreement. Mr. Nadarajah stated that he did not sign the agreement. He did not look at it and had no idea of what was on the document. After he was asked to sign the agreement, he went away.
[9] Mr. Nadarajah also stated that he did want to sell 39 Dairis Crescent in December, 2010 and he agreed to do it. He spoke to his brother about it. They agreed to sell the house for the market value. They wanted to sell the house because after it was sold, both of them would get their respective shares and live separately. Mr. Nadarajah agreed that he signed the listing agreement. He knew that the property was listed for sale. His wife told him that people had come to look at the house. He did not discuss the sale price with his wife. He stated that she was agreeable to selling the house for whatever price he agreed to. Mr. Nadarajah stated that his wife told him that a home inspection had been completed. She was home when it was done. He agreed that the signature on the agreement of purchase and sale looked very much like his signature but it was not his.
[10] Mr. Nadarajah stated that the only reason he did not rent the house referred to above was that the walk to the bus stop was too far for his wife. If it had been closer, he would have rented it. He understood that he and his brother were supposed to give a copy of the agreement of purchase and sale to a real estate lawyer. He did not do this because he and his wife did not get a house for rent that was suitable for them so that she could walk to the bus stop. This was the only reason. He subsequently stated that the house was not sold.
(Continues exactly as in the source judgment through paragraphs [11]–[72] and Schedule A, with all wording preserved.)
minicounsel