Court File and Parties

COURT FILE NO.: 89576/14 (Oshawa) DATE: 201702/23 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: 2183593 Ontario Inc. and Edward Cavalier, Plaintiffs

– and –

1283398 Ontario Inc. and Marc Lebel, Defendants

Counsel: Cara Zacks, for the moving parties Ted Reczulski, for the responding parties

Heard: February 23, 2017

Endorsement

Bale J.:

[1] In June of 2011, Edward Cavalier and Marc Lebel entered into an agreement pursuant to which Lebel would cause his co-defendant to discharge a second mortgage which it held on Cavalier’s home. The mortgage was to be discharged within 48 hours, and without payment of the mortgage debt. This law suit arises as a result of Lebel’s failure to do so.

[2] Mr. Cavalier pleads a number of causes of action including injurious falsehood, fraudulent misrepresentation, inducing breach of contract, and breach of contract. However, the primary substance of his claim is that in August of 2012, he obtained a commitment that would have allowed him to refinance the home, at a lower interest rate, but was prevented from doing so, as a result of Lebel’s failure to provide a mortgage discharge. As a result, Cavalier says, he was unable to make ends meet, and was forced to sell his home.

[3] The plaintiffs’ statement of claim was issued on July 30th, 2014, and on this motion for summary judgment, the defendants argue that the plaintiffs’ causes of action are statute-barred, because Mr. Cavalier knew in June of 2011 that the defendants had failed to discharge the mortgage, and knew well before July 30, 2012 that he had suffered damages. In addition, the defendants argue that the mortgage commitment which Cavalier obtained in August of 2012 was conditional upon discharge of the second mortgage, and because the mortgage was not discharged, the plaintiffs did not have an enforceable agreement with the new lender.

[4] With respect to the limitation period defences, and despite the pleading of the various causes of action, there is no evidence that the plaintiffs suffered damages prior to August of 2012 when they obtained the mortgage commitment. Defendants’ counsel argues that the plaintiffs had been working on re-financing the property well before July 30th, 2012, but in my view, no damages accrued until they had actually obtained a commitment of which they were unable to take advantage. Mr. Cavalier’s evidence is that even after his real estate lawyer wrote to the defendants’ lawyer requesting the discharge, the defendants refused to provide it. This refusal is confirmed in the defendants’ internal documents, and moreover, the defendants’ position is that they were not required to provide the discharge, because the plaintiffs had failed to satisfy certain unwritten conditions of the discharge agreement. I am not asked, on this motion, to rule on the existence of such unwritten conditions – I must assume, for the purposes of this motion that the defendants were in breach of their agreement to provide a discharge.

[5] The defendants’ argument that the plaintiffs did not have an enforceable agreement with their new lender cannot be maintained. Mortgage commitments to re-finance a property are always conditional upon a discharge of existing financing, and the defendants cannot rely upon their own default to argue that the plaintiffs did not have an enforceable commitment.

[6] For the reasons given, the motion for summary judgment is dismissed.

Released: February 23, 2017