CITATION: Lakeshore Landmark Development Corp. v. Mondelez Canada Inc. 2016 ONSC 2313

COURT FILE NO.: CV-15-531587

DATE: April 5, 2016

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Lakeshore Landmark Development Corp. v. TCI Realty Holdings Inc. and Mondelez Canada Inc.;

BEFORE: MASTER C. WIEBE

COUNSEL: Jason J. Annibale and Cara Zacks for Mondelez Canada Inc. and TCI Realty Holdings Inc.; Richard Quance and Daniel Waldman for Lakeshore Landmark Development Corp.;

HEARD: March 30, 2016 at Toronto, Ontario.

REASONS FOR DECISION

I. INTRODUCTION

[1] The defendants, Mondelez Canada Inc. (“Mondelez”) and TCI Realty Holdings Inc. (“TCI”), bring a motion for an order discharging a certificate of pending litigation (“CPL”) that was registered on July 3, 2015 on the title to lands known municipally as 2150 Lake Shore Boulevard West, Toronto (“the Property”) pursuant to an ex parte order from Master Short that was obtained by the plaintiff, Lakeshore Landmark Development Corp. (“Lakeshore”), on July 3, 2015. The defendants also seek declarations that Lakeshore has no interest in the Property and that the deposits paid by Lakeshore to the defendants are forfeited.

[2] Having reviewed the motion material and heard argument, I have decided to grant the motion in its entirety.

II. BACKGROUND

[3] I will review the facts that are largely not in dispute. The Property is a large property located in the City of Toronto on the north side of Lakeshore Blvd. West, and was where the Christie bakery manufacturing facility was located before it closed in September, 2013. Mondalez is the beneficial owner of the Property. TCI is the nominee title holder of the Property. They will be called “the Sellers.”

[4] Lakeshore was specifically incorporated for the purpose of purchasing the Property by its principal, Issa El-Hinn (“Mr. Hinn”). Mr. Hinn alleges that he intended to use Lakeshore to purchase other properties in the future. Lakeshore will be called “the Buyer.”

[5] The Sellers listed the Property for sale in June, 2013. They set up a virtual data room in the summer of 2013 for potential purchasers to conduct due diligence. They wanted to sell the Property as soon as possible.

[6] Mr. Hinn was interested in purchasing the Property for development. On October 29, 2014, he advised the Sellers that the Buyer would make an offer to buy the Property in accordance with the form of the agreement of purchase and sale (“APS”) in the virtual data room.

[7] On March 20, 2015, the parties executed an APS with an effective date of March 23, 2015 and a closing date of April 30, 2015. The APS specified the following: the purchase price was $75,000,000; an initial deposit of $500,000 (“Initial Deposit”) had to be paid on or before March 25, 2015; time was of the essence; the Sellers were to deliver a “statement of adjustments” at least five business days before closing and undertake to make re-adjustments, including items inadvertently omitted from the statement; the APS was the entire agreement between the parties; the APS could not be amended, modified, discharged or “waived” except by an written agreement between the parties; the Buyer acknowledged that it had completed its due diligence investigation; the only remedies available to the Buyer in the event of the Sellers’ default was the return of the Initial Deposit or “an action for specific performance”; and specific performance was a reasonable and acceptable remedy for the Buyer should the Sellers default.

[8] On April 23, 2015, the Buyer advised the Sellers that it could not close on April 30, 2015 because it could not before the closing date provide its lender, Romspen Investment Corporation (“Romspen”), with the required key man life insurance for the financing of the purchase.

[9] On April 30, 2015, the closing day, the parties negotiated an amending agreement extending the closing deadline repeatedly that day to facilitate the negotiations. They entered into a written amending agreement (“First Amending Agreement”) that extended the closing to June 1, 2015. The First Amending Agreement specified the following: the Initial Deposit was released and was not refundable; the purchase price was increased by $450,000 to compensate the Sellers for carrying the Property during the extension and any lost opportunity cost; a further deposit of $300,000 (“the Replacement Deposit”) was to be paid on or before May 4, 2015; there was an acknowledgment that no further amendments to the sale documents were required. There was no expressed clause specifying that time was of the essence or waiving the “time is of the essence” clause in the APS.

[10] On May 4, 2015 at 5:17 p.m. the Buyer’s lawyers confirmed in an email that the wire transfer of the Replacement Deposit had gone through. They attached a bank receipt. As this was after the close of business, the bank receipt, delivered on May 4, 2015, specified that the wire transfer was confirmed as of May 5, 2015.

[11] Mr. Hinn did not get the key man insurance in time to close on June 1, 2015. On May 25, 2015, Mr. Hinn advised the Sellers that he needed another extension of the closing date. The Sellers made it clear in response that the Buyer should make no further requests for extension.

[12] On June 1, 2015, the closing day, the parties negotiated another amending agreement extending the closing deadline repeatedly that day to facilitate the negotiations. They entered into a second amending agreement (“Second Amending Agreement”) that extended the closing to June 29, 2015. The Second Amending Agreement specified the following: the purchase price was increased by $435,000 to compensate the Sellers for carrying the Property during the extension and any lost opportunity cost; an increase in the Replacement Deposit of $85,000; the immediate non-refundable release of $300,000 of the Replacement Deposit to the Sellers; the non-refundable release of the $85,000 Replacement Deposit to the Sellers on or before June 17, 2015; an acknowledgment that no further amendments to the sale documents were required; and a right given to the Sellers to sell the Property to another buyer on or after July 6, 2015. Again, there was no expressed clause specifying that time was of the essence or waiving the “time is of the essence” clause in the APS. The $300,000 Replacement Deposit was released on June 1, 2015.

[13] On June 17, 2015, the Buyer informed the Sellers that time was no longer of the essence given the conduct of the parties, and that the $85,000 Replacement Deposit would be paid on June 18, 2015, not June 17, 2015 as specified in the Second Amending Agreement. The Sellers responded the same day asserting that time remained of the essence and that they would accept the $85,000 on June 18, 2015 without prejudice to that position. The $85,000 was paid on June 18, 2015.

[14] On June 19, 2015 the Sellers sent an email enclosing a draft statement of adjustments. The statement erroneously credited the Buyer with payment of the 2015 realty taxes for the Property. The Sellers reaffirmed that time was of the essence. The document had the following at the end: “E. & O.E.” The five-day deadline in the APS for the delivery of a statement of adjustments was June 22, 2015.

[15] On June 23, 2015 the Buyer advised that Mr. Hinn had not secured the key man insurance and that the closing would have to be extended yet again. The Sellers responded on June 24, 2015 stating that they intended to close on June 29, 2015.

[16] On June 24, 2015 the Sellers sent a revised draft statement of adjustments giving credit to the Sellers for payment of the 2015 realty taxes for the Property. The next day, June 25, 2015, the Buyer advised that the July 2, 2015 tax installment had not been paid. It also took the position that the statement of adjustments was late and, therefore, further evidence that time was no longer of the essence. The Sellers immediately sent a third draft statement of adjustments revised to show this fact. This variation to the draft statement of adjustment meant an increase in payment by the Buyer of $311,267.20. The Sellers also reasserted that time was of the essence and that they intended to close on June 29, 2015.

[17] On June 29, 2015 the Sellers purported to be ready, willing and able to close. On that same day the Buyer stated that the Sellers tender was imperfect due to the alleged late statement of adjustments, and that the closing should be reasonably extended. The sale did not close.

[18] On June 30, 2015 the Buyer sent a proposed third amending agreement that extended the closing to August 28, 2015, allowed the Sellers to sell to a different buyer on or after September 4, 2015, and made time expressly of the essence. There was no response.

[19] On July 2, 2015, a Thursday, the Buyer, concerned about July 6, 2015 (the Monday on which the Sellers could sell to another buyer), asked the Sellers for immediate confirmation of their intentions. The Sellers’ lawyer responded that he could not get instructions until July 6, 2015, given the American holiday on Friday, July 3, 2015. The Buyer then asked the Sellers’ lawyer for a written undertaking from the Sellers not to sell the Property without five business days written notice. There was no response.

[20] On July 2, 2015 the Buyer commenced the within action against the Sellers for, inter alia, specific performance of the APS. On July 3, 2015, a Friday, the Buyer moved before Master Short ex parte for a CPL. The motion was adjourned for a few hours to allow Buyer’s counsel to contact Sellers’ counsel. Buyer’s counsel left voicemails offering either to have the Sellers speak to the motion that day or adjourn the motion to allow the Sellers to properly appear on condition they undertook not to sell while the motion was pending. Sellers’ counsel responded by email that there would be no sale “until I speak to your office.” Without the undertaking, Master Short granted the CPL on July 3, 2015. The Buyer then registered the CPL and served its Statement of Claim, the motion material and the order.

[21] On July 6, 2015 the Sellers’ lawyer sent an email advising of their intention to attack the CPL. In the same email, he stated that “our clients remain prepared to sell the property on the following terms . . .” There was then a list of terms that included an extension of the closing to 1:00 p.m. on July 16, 2015 with time remaining of the essence. There was no response.

[22] On July 7, 2015, the Sellers provided the Buyer with a statement of adjustments for this proposed new closing date. In the covering email, the Sellers’ lawyer asked for “comments” on the July 6, 2015 email. There was no response.

[23] On July 8, 2015, the Sellers asked for confirmation by noon on July 9, 2015 that the Buyer was prepared to proceed with the July 6, 2015 proposal, failing which “we will take it that our offer to settle has been rejected.” There was no response.

[24] On July 15, 2015 the Sellers purported to terminate the APS because of the Buyer`s inability to pay the purchase price and close. The Sellers served their Statement of Defence and Counterclaim the same day. The Buyer responded by affirming the APS and expressing its intention to close on August 28, 2015.

[25] Late in the afternoon of August 28, 2015 the Buyer sent an email expressing its intention to close. The Sellers responded the next day stating that they would not close.

[26] On September 9, 2015 the Buyer sent an email stating that “the hurdle has been crossed.” On September 29, 2015 Mark Hilson of Romspen provided Mr. Hinn with a letter stating that Romspen agreed to provide the financing “upon 30 days prior written notice, provided . . . the Borrower delivers to us an undertaking to comply with the Life Insurance Requirements within a reasonable period of time after closing.”

[27] Although not in the motion material, Mr. Annibale advised that the Buyer entered into another agreement of purchase and sale with a different buyer on October 9, 2015 for a purchase price of about $52 million plus an amount for conversion. The closing of this sale awaits the outcome of this motion.

[28] The Sellers brought this motion initially on November 26, 2015 before me. I adjourned the motion to a special appointment on March 30, 2016.

III. ISSUES

[29] Having reviewed the motion material and heard the arguments, I believe that the following are the issues to be determined:

a) Does the Buyer have a triable issue for a claim to an interest in the Property?

b) If so, should the court exercise its discretion to discharge the CPL?

c) Should the CPL be discharged due to material non-disclosure at the ex parte motion?

d) If the CPL is discharged, should I declare that the Buyer has no interest in the Property and that the deposits are forfeited?

IV. ANALYSIS

(a) Does the Buyer have a triable issue for a claim to an interest in the Property?

[30] The court’s jurisdiction to discharge CPLs is found in the Courts of Justice Act, R.S.O. 1990, c. C.43, section 103(6). The relevant part of this subsection is subsection 103(6)(a)(ii) which states that a court may discharge a CPL where the party who claims it “does not have a reasonable claim to an interest in the land claimed.”

[31] As set out in the decision of Master Muir in Dynacorp Canada Inc. v. Curic, 2010 ONSC 2603 at paragraphs 14 and 15, there are several established aspects of the first part of the motion to be born in mind: the onus of establishing whether there is such a triable issue rests on the party moving to have the CPL discharged; the court must examine the whole of the evidence and must not accept the pleadings and affidavits uncritically; and the threshold for the motion is whether there is a “triable issue,” not whether the plaintiff will likely succeed; see also Ambassador Electric Inc. v. Fernwood Builders (London) Ltd., 2014 ONSC 3738 at paragraph 46. I will apply these propositions to this case.

[32] Mr. Quance argued that the Buyer has a triable issue for a claim to an interest in the Property for one of the following two reasons:

• The parties, by their conduct, waived the time of the essence clause by the time of the closing on June 29, 2015. The new closing date proposed by the Buyer on June 30, 2015, namely August 28, 2015, was reasonable. The new closing date proposed by the Sellers on July 6, 2015, namely July 16, 2015 was unreasonable. Therefore, the APS remained in effect and was improperly terminated by the Sellers on July 15, 2015. In the event of default by the Sellers, the APS gave the Buyer one remedy, namely an action for specific performance, which justifies the CPL.

• In the alternative, if the parties did not waive the time of the essence clause by the time of the closing on June 29, 2015, the Sellers did not terminate the APS, as was their right. They waived the right to terminate the APS on July 6, 2016 by imposing in a new closing date, July 16, 2015, which they then breached by improperly and prematurely terminating the APS on July 15, 2015. Again, the Buyer’s only remedy in the event of the Sellers’ default was an action for specific performance, which justifies the CPL.

[33] Mr. Quance argued that there were several events whereby the parties, by their conduct, waived the time of the essence clause. First, there were the many extensions of the closing, none of which expressly stated that time remained of the essence. Second, there was the “May 5, 2015” payment of the instalment, namely a payment that was one date after the deadline specified in the First Amending Agreement. Third, there was the payment of the instalment on June 18, 2015, which was one day after the deadline specified in the Second Amending Agreement. Fourth, there was the “late” statement of adjustments, with the statement of adjustments not being finalized until June 25, 2015, namely three days after the deadline specified by the APS.

[34] Mr. Annibale argued that the totality of the evidence on the motion showed unequivocally that there was no waiver of the time of the essence clause at any time, that the Sellers therefore had a right to terminate the APS as of June 29, 2015, that the Sellers’ proposal on July 6, 2015 was an offer to settle the action and the CPL and not a waiver of the Sellers’ right to terminate the APS, and that the Sellers rightfully exercised their right to terminate when the Buyer did not accept the offer within the time specified to made the offer workable.

[35] In determining whether a waiver has taken place, I am mindful of the very helpful article that was written by Paul M. Perell (as he then was) entitled, “Putting Together the Puzzle of Time of the Essence,” The Canadian Bar Review, Vol. 69 No. 3, September 1990, at pgs. 452-454. At page 453, Mr. Perell stated that a time of the essence clause may be waived as follows: “Waiver involves one party leading the other to understand that the strict rights of the contract will not be insisted upon.”

[36] Having reviewed the evidence presented on the motion, I have concluded that there is no triable issue of a waiver of the time of the essence clause at any time. There was no such waiver.

[37] Concerning the closing extensions, the APS stated clearly that a waiver of a term had to be by agreement in writing. Each of the two extensions was carefully drafted by the parties as an amendment to the APS. There was a reference in each case to the original APS and a statement that no further amendments were required. This in effect amounted to a reaffirmation in both Amending Agreements of the time of the essence clause.

[38] Mr. Quance relied upon the decision in Hutts v. Hancock, 1954 ONCA 111, 1954 CarswellOnt 38 where parties to an agreement of purchase and sale of land that contained a time of the essence clause extended the closing several times. The court found that, as these extensions did not expressly refer to time being of the essence, time being of the essence was waived by the extensions. I find the facts of the Hutts case distinguishable from this case. In Hutts the originally specified closing was allowed to pass without comment or tender. This would have amounted to a waiver of the time of the essence clause. As none of the extensions then referred to time being of the essence, it is understandable that the court would find that the clause was waived. In our case, each extension was carefully negotiated in advance of closing with the closing deadline in mind. Indeed, on the closing dates, the final negotiations were done with the deadline being postponed hour-by-hour, minute-by-minute. The extensions then did not waive the time being of the essence clause. Therefore, the parties, in word and deed, reaffirmed the time being of the essence clause with each extension.

[39] Concerning the alleged “late” payments of installments, I find that neither of these payments amounted to a waiver of the time of the essence clause. The May 5, 2015 payment was clearly a payment that took place on May 4, 2015, the specified deadline. The receipt generated on May 4, 2015 was dated the next day solely because the payment was made after the close of business on May 4, 2015. As to the June 18, 2015 payment, the Sellers clearly stated on June 17, 2015, the deadline date, that they would accept the payment one day late without prejudice to time remaining of the essence. This is not conduct that, using Mr. Perell’s words in “Putting Together the Puzzle of Time of the Essence” op. cit. at page 453, would have led the Buyer to believe that time of the essence had been waived.

[40] Concerning the statement of adjustments, there was considerable argument. The Buyer’s argument is that the “statement of adjustments” deadline referred to in the APS meant that the final statement of adjustments had to be delivered by that deadline, not the first draft. I do not find this argument tenable in light of the wording of the APS. Clauses 7.2 and 15.2 of the APS state that “a statement of adjustments” shall be delivered at least five business days before closing. It does not say “the” or “the final” statement of adjustments. Furthermore, clause 7.2 states that “adjustments shall be made as of the date of Closing Date on an accrual basis,” and clause 15.2(l) states that there must be “an undertaking by Seller to re-adjust the Adjustments, including any items inadvertently omitted from the statement of adjustments.” These clauses clearly contemplate ongoing adjustments to the statement of adjustments up to the closing. Based on the evidence presented, I find that the Buyer met the APS deadline specified for delivering “a statement of adjustments” and that the time of the essence clause was not waived by the exchange of the various statements.

[41] Incidentally, I note that the erroneous reference to the 2015 realty taxes in the June 19, 2015 statement of adjustments dated from the earlier versions of the statement of adjustments that had been delivered for the previous closing dates. The Buyer should therefore have been aware of this issue and been able to prepare for the adjustment well before June 25, 2015, particularly given its knowledge of the realty tax documents in the virtual data room in 2014.

[42] Mr. Annibale presented the decision of the Court of Appeal in 2068895 Ontario Inc. v. Snyder, 2012 ONCA 757 to make a further point on this issue. In this decision, the Court found that a “possible defect” in the purchase price on a sale of land that arose from a possible error in the seller’s statement of adjustments “did not justify a refusal to close the transaction.” The buyer relied on this possible error to not tender on closing, while the seller did tender. Mr. Annibale argued that, similarly, the error concerning the 2015 realty taxes in the June 19, 2015 draft statement of adjustments did not in any event justify not closing. I agree, particularly as the adjustment meant an increase in the purchase price of slightly more than half of 1% of the purchase price and was an adjustment that was well within the Buyer’s proposed financing facility. Mr. Quance tried to distinguish the Synder decision on the basis that time remained of the essence in that case, whereas it did not in ours. I do not agree. I have found that time otherwise remained of the essence in our case.

[43] I make one further observation at this point. Had I accepted the Buyer’s argument that time of the essence had been waived (which I have not), I note that there is no credible evidence that the Buyer was ready to close on its proposed closing date of August 28, 2015. The Buyer sent an email no sooner than September 9, 2015, 12 days after August 28, 2015, stating that the “hurdle has been crossed.” The Hilson letter of September 29, 2015 makes no reference to the financing being available on August 28, 2015. Indeed, the letter is unclear as to whether the financing was certain as of September 29, 2015. In 1245519 Ontario Ltd. v. Rossi, 2008 CarswellOnt 940 at paragraph 12 Justice Himel states that a purchaser who does not have the funds for closing cannot rely on specific performance. I agree.

[44] Therefore, I find that there is no triable issue concerning the waiver of the time of the essence clause. There was none. Therefore, I also find that there is no triable issue that the Seller’s tender on June 29, 2015 was acceptable and that the Buyer breached the APS by not tendering that day. It is obvious to me that the only reason the closing did not take place on that day was that the Buyer did not have the funds.

[45] This means that the Sellers were in a position to terminate the APS as of June 29, 2015. The next question is whether the Seller waived their right to terminate the APS with their proposal on July 6, 2015.

[46] Having reviewed that proposal and the correspondence surrounding it, I have concluded that it was not such a waiver. The Sellers remained silent until July 2, 2015. On July 2, 2015 the Sellers’ counsel made it clear that they could not get instructions before Monday, July 6, 2015, due to the American holiday on July 3, 2015. On July 3, 2015, while the ex parte CPL motion was pending, the Sellers’ counsel assured the Buyer’s counsel that there would be no sale “until I speak to your office.” When Sellers’ counsel finally got instructions on July 6, 2015, they advised the Buyer in a lengthy email that day (marked “with prejudice”) that they would be attacking the ex parte CPL. At the end of the email they added that, while the Sellers remain concerned that the Buyer did not have the funds to close, they “remain prepared to sell the property to your client” on terms that then followed, one of which was a closing extension to July 16, 2015. Other terms were the ending of the lawsuit and the CPL. This document on its face was not a waiver by the Sellers of their right to terminate the APS. It was an offer to settle the action by extending the closing.

[47] Subsequent correspondence clearly underscored the fact that this was an offer to settle. On July 7, 2015, the Sellers’ counsel sent a Statement of Adjustments asking for comments “in the event your client is prepared to close the transaction as described in our email.” On July 8, 2015, the Sellers’ counsel advised that the Buyer needed to confirm its willingness to close in accordance with the July 6, 2015 “offer to settle” by noon on July 9, 2015 in order to get the transaction ready for closing on July 16, 2015. This correspondence reinforced the existence of an offer that had not been responded to. It cannot in any way be viewed as a waiver of the right to terminate.

[48] As a result, I find that there is no triable issue that the Sellers were within their rights to terminate the APS on July 15, 2015 when they received no response to their offer. Therefore, there is no triable issue as to the Buyer’s claim to an interest in the Property. It has none.

(b) Should the court exercise its discretion to discharge the CPL?

[49] Having determined that there is no triable issue as to the Buyer’s claim to an interest in the Property, I do not have to explore the question over which there was considerable argument, namely whether the court should exercise its discretion to discharge the CPL. That would only have become necessary had I determined that there was such a triable issue. I will not, therefore, make a determination of this point.

[50] However, I will comment that the factors outlined in the leading case on this point, 572383 Ontario Inc. v. Dhunna, 1987 CarswellOnt 551 (Ont. Master), would have made it difficult for me to discharge the CPL on these grounds. Yes, the Buyer is a shell corporation as it was incorporated to purchase the Property. Statements of future intention to purchase property do not change the fact that the corporation has no present assets. However, it would have been difficult for the Sellers to argue that the Property was not unique and that damages were an adequate alternative given the clear statements in the APS that specific performance was the only remedy for the Buyer in the event of the Sellers’ default. It was also not clear to me whether the harm done to the Sellers by leaving the CPL in place would have been outweighed by the harm done to the Buyer by discharging the CPL. The new purchase price appears to be comparable, if not lower than, the purchase price in the APS, while the down payments that the Buyer stands to lose total almost $900,000. But, again, I do not have to, and I do not, make a determination on this point.

(c) Should the CPL be discharged due to material non-disclosure at the ex parte motion?

[51] There was also considerable argument about whether there was material non-disclosure by the Buyer at the ex parte motion before Master Short. Again, given my ruling as noted above, I do not have to rule on this point.

[52] However, I will say that, based on what I have read, it appears that Master Short was not made aware of the detail in the arrangements and dealings between the parties, and was therefore led to believe that there may be a triable issue that time of the essence had been waived. Therefore, when the Sellers did not appear on the motion and did not give an undertaking not to sell during an adjournment of the motion, the Master appears to have concluded that the CPL had to be issued to protect the Buyer’s apparent interest in the Property. Having reviewed the detail in the arrangements and dealings between the parties, I have come to a different conclusion as to whether the Buyer has a triable claim to an interest in the Property. It does not in my view.

(d) Should I declare that the Buyer has no interest in the Property and that the deposits are forfeited?

[53] The Sellers seek a declaration from me that, having determined that the Buyer has no triable claim to an interest in the Property, I should take the next step and declare that the Buyer in fact has no interest in the Property and that its deposits are forfeited, thereby effectively ending the action.

[54] My initial concern was that I have no jurisdiction to issue such a declaration, as I was of the view that only judges could issue declarations of right. Mr. Annibale made an effective argument that I do have such a jurisdiction by operation of section 97 of the Courts of Justice Act, R.S.O., c. C.43, namely the section which confers on the “Superior Court of Justice” the power to make binding declarations of right. He also pointed me to the decision of Justice Kiteley in Hakim Optical Laboratory Ltd. v. Phillips 2007 CarswellOnt 8238 where Her Honour stated that a Master has the jurisdiction to make a declaration that a lease is renewed. Mr. Quance did not disagree with these arguments.

[55] I am, therefore, driven to the conclusion that I have the jurisdiction to issue the requested declarations. Furthermore, given my previously stated conclusions, I have no option but to declare, and I do declare, that the Buyer has no interest in the Property.

[56] It is clear to me as well that all of the deposits were given under the APS and the two Amending Agreements on a non-refundable basis. Furthermore, they represent compensation to the Sellers for the costs of extending the closing. They should be forfeited, particularly since the Buyer ended up being in default of the APS, as I have found it was. Therefore, I also declare that the deposits are forfeited.

V. CONCLUSION

[57] In light of my conclusions stated above, I grant the Sellers’ motion for an order discharging the CPL, and declaring that the Buyer has no interest in the Property and that the deposits are forfeited.

[58] This leaves only the issue of costs of the motion. Concerning costs, the parties submitted Costs Outlines at the conclusion of the argument. The Buyer’s Costs Outline showed actual costs of $99,008.79 and partial indemnity costs of $71,079.71. The Sellers’ Costs Outline showed substantial indemnity costs of $142,683.57 and partial indemnity costs of $97,130.73.

[59] Generally costs follow the event. If the parties are unable to agree on costs, counsel may file written submissions on costs. Submissions may not exceed three pages. The Sellers’ submissions must be served and filed by April 19, 2016. The Buyer’s submissions must be served and filed by May 3, 2016. Reply submissions, if any, must be served and filed by May 6, 2016.

[60] Given the amounts in issue, the parties are also to confer as to whether they wish to make oral submissions on costs. If they do and only if they agree, they are to schedule an appearance before me on one of my regular motion dates for a time that is no longer than two hours to argue the issue of costs.

DATE: April 5, 2016 __________________________

MASTER C. WIEBE