NEWMARKET COURT FILE NO.: CV-15-122196-00
DATE: 20180412
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
KELVIN-HOI LAM
Plaintiff/Defendant by Counterclaim
– and –
HUI JUAN CHEN also known as HUI-JUAN CHEN
Defendant/Plaintiff by Counterclaim
Michael D. Magonet, for the Plaintiff/Defendant by Counterclaim
David M. Goodman, for the Defendant/Plaintiff by Counterclaim
HEARD: March 16, 2018
REASONS FOR DECISION
DiTOMASO J.
THE MOTION
[1] This is a motion for summary judgment by the plaintiff purchaser, Kelvin-Hoi Lam (“Mr. Lam”) against the defendant vendor, Hui Juan Chen also known as Hui-Juan Chen (“Ms. Chen”), to compel the specific performance of an Agreement of Purchase and Sale (the “APS”) of a residential property located at 101 Aitken Circle, Markham (the “Property”) or, in the alternative, for an award of damages by reason of Ms. Chen’s failure to close the transaction.
[2] Following the parties having entered into the APS, a dispute arose respecting two easements that were registered against the Property. Mr. Lam maintained that the easements were material and that, absent the discharge of same, Ms. Chen was in breach of the APS and that Mr. Lam was entitled to a rescission of the APS or to an abatement in the purchase price to proceed with the transaction. By contrast, Ms. Chen maintained that the easements did not constitute a breach of the APS entitling Mr. Lam to an abatement or to a rescission of the APS.
[3] There were unsuccessful negotiations between counsel representing the parties, with the transaction not closing on the original date of closing. This motion is not concerned with whether the easements constituted a breach of the APS. Rather, this motion relates to the enforceability of an alleged abatement agreement concluded between the parties within the context of the easement dispute.
[4] According to Ms. Chen, an Offer was made by her that she would close with an abatement of $20,000, but that Offer was rejected by the solicitor for Mr. Lam (“Mr. Lee”), who stated that the solicitor for Ms. Chen should “get me more money”. The position of Mr. Lam is that this Offer of a $20,000 abatement was live and was never rejected and was accepted unequivocally on time, before it expired. The position of Ms. Chen is that the request to “get me more money” operated as a rejection or Counter-Offer and the $20,000 Offer was no longer open for acceptance at that point in time.
[5] Ms. Chen maintains that there is no enforceable abatement agreement since, during the course of oral negotiations between counsel, the abatement offer was allegedly rejected or withdrawn.
[6] Mr. Lam then sued for specific performance and/or damages. He brings this motion for summary judgment based not on the original APS but on the alleged “offer and acceptance” subsequent to the original closing date.
[7] In support of this motion, Mr. Lam has sworn two Affidavits, and further, he has also put forward an Affidavit sworn by his solicitor, Mr. Lee, which speaks directly to Mr. Lee’s dealing with Ms. Chen’s real estate real estate solicitor, Mr. Tsang, and the alleged conclusion of the abatement agreement. Ms. Chen has not sworn an Affidavit to resist this motion and relies solely on a responding Affidavit, sworn by Mr. Tsang. Both Mr. Tsang and Mr. Lee have been cross-examined on their respective Affidavits.
OVERVIEW
[8] The facts are largely not in dispute. What is in dispute is the legal effect resulting from the conversation between Mr. Lee and Mr. Tsang sometime during the afternoon of December 10, 2014.
[9] A concise summary of the facts can be found in the Factum submitted on behalf of Mr. Lam from paragraph 6 to 23, as follows:
On or about October 9, 2014, the parties entered into the Agreement further to which they agreed that the Plaintiff would purchase the Property from the Defendant for the purchase price of $1,290,000.00. It was agreed that the purchase and sale would close on December 8, 2014 (the “Transaction”)[^1].
The parties subsequently signed an amendment to the Agreement, further to which the purchase price was amended to $1,272,500.
By letter of requisition forwarded on November 24, 2014, by the Plaintiff’s real estate solicitor, Shirley Yee, to the Defendant’s real estate lawyer, Mr. Tsang, Ms. Yee sought a number of requisitions including requisitions in respect of two easements (collectively referred to as the “Easements”) registered against the Property[^2].
It was the Plaintiff’s position that a release of the Easements had to be provided by the Defendant, failing which the Plaintiff would be entitled to rescind the Agreement and have his deposit returned.
Despite the Requisition Letter, the Defendant failed to release the Property from the Easements and claimed that the Easements were within the exceptions under the Agreement, a position with which the Plaintiff took issue.
On December 4, 2014, Mr. Tsang provided to Ms. Yee the closing documents, in escrow: keys, statement of adjustments, re-direction re-funds, mortgage payout statement, declaration of possession, undertaking and affidavit, warranties and bill of sale, undertaking to discharge, and declaration re: HST[^3].
By letter dated December 8, 2014, the Plaintiff’s real estate lawyer, Ms. Yee, tendered on Mr. Tsang the closing documents and balance due on closing to the Defendant less a $40,000.00 abatement of the Purchase Price, in order to account for the Easements affecting the Property. While, in his Affidavit, Mr. Tsang stated that “to the best of my recollection, no actual tender of funds took place”, on his cross-examination, Mr. Tsang did admit that Ms. Yee did in fact tender the closing documents and the balance of funds due on closing (less the $40,000 abatement) under cover of the aforesaid correspondence[^4].
Thereafter, Mr. Tsang and Mr. Lee were involved in negotiations with respect to the Easements and any resulting abatement and reduction to be made in the purchase price.
On December 10, 2014 at 4:24 PM, Mr. Tsang sent Mr. Lee a letter by fax wherein, on behalf of the Defendant, he made an offer to settle in writing to complete the Transaction on December 11, 2014, with an abatement of $20,000.00 in respect of the purchase price. In his correspondence, Mr. Tsang specifically expressed that the said offer would remain open for acceptance until the next day, on December 11, 2014 at 12:00 PM[^5].
On December 10, 2014, prior to the fax from Mr. Tsang containing the $20,000 abatement offer coming to Mr. Lee’s attention, Mr. Lee had a telephone discussion with Mr. Tsang to discuss issues relating to the Transaction and what could be done to bring the parties towards resolution in respect of the Easements and any related abatement to be agreed upon. At that time, Mr. Lee was not aware of the existence of the faxed abatement offer and, accordingly, he did not and could not have responded to that offer. Further, Mr. Lee did not make any offers or counteroffers during the conversation (the “Conversation”). Rather, Mr. Lee simply invited Mr. Tsang to seek instructions from his client to agree to a better number than a $20,000 abatement which the Defendant had previously tabled in response to an earlier offer that the Plaintiff had proposed involving a $40,000 abatement[^6]. (I note that the timing and nature and effect of the conversation between Mr. Lee and Mr. Tsang goes to the heart of the issue.)
After the Conversation, the written faxed offer to proceed with the Transaction with an abatement of $20,000.00 (the “Abatement Offer”) came to Mr. Lee’s attention for the first time[^7].
In accordance with the Plaintiff’s instructions to close the purchase of the Property with an abatement to the purchase price of $20,000.00, Mr. Lee responded to Mr. Tsang by email on December 11, 2014 at 11:18 AM, prior to the deadline set out in the Abatement Offer, and accepted the offer in writing. In addition, and to further formalize the Plaintiff’s acceptance of Mr. Tsang’s offer, Mr. Lee also sent a letter to Mr. Tsang via fax at 11:34 AM on the same date confirming the Plaintiff’s acceptance of the Offer (the “Abatement Agreement”). Again, both acceptances are in writing and were communicated to Mr. Tsang prior to the written deadline set out by Mr. Tsang to respond to the Abatement offer[^8].
Further, to close the Transaction on the December 11, 2014, closing date as per the Abatement Agreement, one Raymond Eng from Ms. Yee’s office attended at Mr. Tsang’s office before noon on December 11, 2014 to tender, including the delivery up of a further $20,000 cheque (together with the other funds and documents previously tendered on Mr. Tsang on December 8, 2014). On his cross-examination, Mr. Tsang admitted that he received the Plaintiff’s closing package on the morning of December 11, 2014, which he refused to accept because the Defendant was not prepared to close the Transaction[^9].
On December 11, 2014, at 3:43 PM and 4:10 PM respectively, after the deadline set out in the Abatement Offer, and after the Plaintiff had already accepted same in writing and tender had been made by the Plaintiff, Mr. Lee received two letters by fax from Mr. Tsang. In the first letter, Mr. Tsang claimed that he had withdrawn the offer. In the second letter, while Mr. Tsang admitted that this was not the case, he purported to withdraw the offer of an abatement of $20,000.00 made on December 10, 2014, (which Mr. Lee had already accepted on behalf of the Plaintiff), on the alleged basis that Mr. Lee had verbally rejected the offer. However, Mr. Lee had not rejected the offer. In fact, and as Mr. Lee confirmed in writing, Mr. Lee had already accepted the offer on behalf of the Plaintiff[^10].
Mr. Lee was shocked that Mr. Tsang purported to withdraw the Abatement Offer on the basis that Mr. Lee had allegedly verbally rejected the offer over the phone. Again, the Plaintiff asserts that the offer was duly accepted in writing prior to the deadline as specifically provided for in Mr. Tsang’s correspondence, and Mr. Lee had in no way rejected the offer during the course of the telephone conversation held between counsel on December 10, 2014 (or any subsequent conversation)[^11].
Consistent with the above, Mr. Lee directed email correspondence to Mr. Tsang on December 11, 2014, at 5:13 PM, wherein, among other things, Mr. Lee took clear issue with Mr. Tsang’s purported withdrawal of the Abatement Offer, any suggestion on Mr. Tsang’s part that he had advised during the Conversation (that took place on December 10, 2014) that the offer had been withdrawn, and to confirm that action may be taken should the Defendant fail to close the transaction[^12].
At no time following Mr. Lee’s email correspondence to Mr. Tsang of December 11, 2014, as referenced above, did Mr. Tsang direct any written response to Mr. Lee in any way to take issue with same. Instead, Mr. Tsang left a voicemail message from Mr. Lee on December 12, 2014 at 9:07 AM wherein Mr. Tsang, referring to his correspondence of December 11, 2014, apologized for having made a mistake and stating that there had been a “misunderstanding”[^13].
In brief, the Plaintiff was ready, willing and able to close the Transaction in accordance with the Abatement Agreement, which was made in writing and documented by the parties’ counsel on their behalves. However, the Defendant refused to close the transaction[^14].
THE ISSUES
[10] The following issues are to be determined:
(a) Whether there is a genuine issue requiring a trial;
(b) Whether Mr. Lam is entitled to the remedy of specific performance and recoverable costs.
POSITIONS OF THE PARTIES
Position of the Purchaser, Mr. Lam
[11] Mr. Lam submits that he is entitled to summary judgment and recoverable costs. He asserts this is an appropriate case for summary judgment and any issue in respect of credibility can be resolved on the evidentiary record before the court. He maintains that a live Offer was presented by Mr. Tsang to Mr. Lee on December 10, 2014 and that Offer was accepted by him before the time of expiration set out in the Offer. He submits that the Offer contained all of the essential terms capable for acceptance. He asserts that when Mr. Lee had a conversation with Mr. Tsang on December 10, 2014, Mr. Lee did not have before him the Offer contained in Mr. Tsang’s letter, dated December 10, 2014. Rather, Mr. Lee and Mr. Tsang had further discussions and negotiations during that telephone call with Mr. Lee asking Mr. Tsang to get him more money. Mr. Lam asserts that any such discussions did not amount to the rejection or repudiation of the Offer which Mr. Lee had not yet seen. Mr. Lam further denies that the Offer was withdrawn during that conversation because the Offer never existed or was presented at that time.
[12] It is submitted that Mr. Lam’s motion for summary judgment is based on offer and acceptance, all documented in writing, of an abatement agreement dealing with this transaction involving the sale of real property. He submits that the terms of the abatement agreement are clear and reflected in written communication as exchanged between the counsel for the parties and supported by the evidence.
[13] Mr. Lam also submits that he is entitled to a claim for specific performance and recoverable costs. He asserts that the Property is unique to him and cannot be replaced by similar property. In addition, he claims costs thrown away for professional fees arising from Ms. Chen’s failure to close the transaction in the amount of $6,367.30 (excluding the costs of this action). In the alternative, he advances a claim for damages.
Position of the Vendor, Ms. Chen
[14] Ms. Chen submits that Mr. Lee was aware of Mr. Tsang’s Offer when they had a telephone conversation on December 10, 2014. It is submitted that when Mr. Lee asked Mr. Tsang to “get me more money”, that had the legal effect of rejecting or repudiating Mr. Tsang’s Offer. In the end, Ms. Chen submits that there was no abatement agreement capable of being enforced. Mr. Lee’s request for more money amounted to either a rejection or a counter-offer which resulted in no abatement agreement.
[15] In any event, Ms. Chen submits that this is not an appropriate case for summary judgment. There are genuine issues requiring a trial regarding the credibility of Mr. Lee and Mr. Tsang and the legal effect of what resulted from their telephone conversation on December 10, 2014.
[16] Further, Ms. Chen submits that as there was no enforceable abatement agreement, Mr. Lam is not entitled to seek specific performance, recoverable costs and/or alternative damages. She also asserts that the subject Property is not unique and that the remedy of specific performance does not apply in these circumstances. She submits that the motion for summary judgment ought to be dismissed.
ANALYSIS
Summary Judgment Motion
[17] Rule 20.04(2)(a) provides that:
(2) The court shall grant summary judgment if,
(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence[^15];
[18] The summary judgment rule affords a motion judge with the following powers on a summary judgment motion:
(2.1) In determining under clause (2) (a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at trial:
Weighing the evidence.
Evaluating the credibility of a deponent.
Drawing any reasonable inference from the evidence[^16].
[19] In Hryniak v. Mauldin[^17], the Supreme Court of Canada articulated a new approach to summary judgment under Rule 20 by expanding the use of summary judgment as an alternative model for adjudication that should be more widely available to provide litigants with less expensive and more timely access to justice. The Supreme Court of Canada held that summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims.
[20] In Hryniak, the Supreme Court of Canada articulated the following roadmap to a motion for summary judgment:
On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring a trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicated the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.[^18]
[21] A responding party to a motion for summary judgment is obliged to put his best foot forward and in that context must do more than simply assert an uncorroborated fact. The respondent to the motion for summary judgment must set out in affidavit material or other evidence, specific facts and coherent evidence showing that there is a genuine issue for trial in default of which the court may simply decide against the responding party on the ground that it failed to file affidavit material or other evidence as required, or in the alternative, may draw adverse inferences from the failure[^19].
[22] Summary judgment motions must be granted whenever there is no genuine issue requiring a trial. In Hryniak, the Supreme Court of Canada held that there will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process:
(i) Allows the judge to make the necessary findings of fact;
(ii) Allows the judge to apply the law to the facts, and
(iii) Is a proportionate, more expeditious and less expensive mean to achieve a just result[^20].
[23] In accordance with the principles stated in Hyrniak, supra, for the following reason, I find that there are no genuine issues requiring a trial. I find that I am able to reach a fair and just determination on the merits on this evidentiary record. In this case, the process allows this Court to make the necessary findings of fact, allows the Court to apply the law to the facts and is a proportionate, more expeditious and less expensive means to achieve a just result. Further, the determination of the essential questions will lead to a fair and just result and will serve the goal of timeliness, affordability and proportionality in light of the litigation as a whole[^21].
[24] I further find that on the issue of credibility, I am able to make findings on this evidentiary record without the need for credibility to be determined at trial. No better evidence would be available to a trial judge than would be available before me on this motion.
Findings
[25] The critical question to be determined is whether Mr. Lee had before him Mr. Tsang’s Offer of December 10, 2014 when he stated to Mr. Tsang that Mr. Tsang should “get me more money”. As stated, Mr. Lam takes the position that this offer of the $20,000 abatement was live, and was never rejected and was accepted unequivocally on time, before it expired. The position of Ms. Chen is that the request to “get me more money” operated as a rejection or Counter-Offer and the $20,000 Offer was no longer open for acceptance at that point in time. In issue is whether the parties, through their solicitors, concluded an abatement agreement based on the exchange of emails and letters in writing or whether there never was any enforceable agreement and, accordingly, Mr. Lam’s motion for summary judgment and specific performance must fail.
[26] For the following reasons, I find that Mr. Lee did not have before him the Offer contained in Mr. Tsang’s letter of December 10, 2014 when Mr. Lee and Mr. Tsang had a conversation sometime in the afternoon of December 10, 2014. Rather, I find that Mr. Lee did not become aware of Mr. Tsang’s offer until after their conversation. That being the case, I find that it was not possible for Mr. Lee to even know about the existence of such an offer at the time of his conversation with Mr. Tsang. It was not possible for Mr. Lee to reject, repudiate or make a counter-offer in respect of Mr. Tsang’s Offer, regarding which Mr. Lee did not even know existed at the time of the conversation.
[27] Further, I reject the position advanced on behalf of Ms. Chen that Mr. Lee somehow must have known about the Offer at the time of his conversation with Mr. Tsang. The argument that Mr. Lee knew that Mr. Tsang “thought” that Mr. Lee was calling him about Mr. Tsang’s letter is not borne out by the evidence. It is pure speculation. I find that Mr. Lee and Mr. Tsang, in their telephone conversation, did not even reference the letter. I find that during the time of their conversation, Mr. Tsang’s Offer had not even been sent to Mr. Lee. I accept Mr. Lee’s evidence that he saw the Offer for the first time after the Offer had been accepted. I find that there was offer and acceptance of the abatement agreement and Mr. Lam is entitled to summary judgment.
[28] In arriving at this conclusion, I have considered the evidence of Mr. Tsang and Mr. Lee contained in their Affidavits, evidence on their cross-examinations and admissions obtained on the cross-examination of Mr. Tsang. The summary of this evidence was referred to on the hearing of this motion and also was referred to by counsel for Mr. Lam in his Factum at paragraphs 24, 25 and 26, which evidence I accept, as follows:
Mr. Tsang’s Affidavit
The affidavit evidence provided by Mr. Tsang speaks primarily to those communications and events that took place prior to the Abatement Offer extended by Mr. Tsang to Mr. Lee on December 10, 2014 at 4:24 PM, wherein he made an offer to complete the Transaction on December 11, 2014, with an abatement of $20,000.00 on the purchase price. Accordingly, in practical terms, these matters have no bearing on the issues in dispute on this motion – whether there was offer and acceptance of the Abatement Agreement. Consistent therewith, on his cross-examination, Mr. Tsang admitted that he was indeed aware of all of the issues raised in his Affidavit pre-dating the Abatement Offer at the time same was made[^22].
The only affidavit evidence provided by Mr. Tsang that speaks to the offer and acceptance issue is set out in paragraphs 20, 21, and 22 of the Tsang Affidavit wherein Tsang states:
(a) He made the Abatement Offer because his client had entered into a separate agreement to buy new property and, because of that agreement and the pressures of this transaction, he had been instructed to make the offer;
(b) He had a telephone conversation with Mr. Lee the morning of December 11, 2014, but does not remember the full conversation;
(c) In this conversation, Mr. Lee asked whether his client was standing firm on the $20,000 figure and asked him to get a few thousand dollars more;
(d) He told Mr. Lee that his client was tired of the Plaintiff’s continuous demands, and was not willing to close the transaction any longer;
(e) Mr. Lee said words to the effect that had he known that the Defendant was so firm, he would not have fanned the flames;
(f) He took the above as a complete repudiation of the Abatement Offer and the offer was verbally withdrawn;
(g) At the time Mr. lee accepted the Abatement Offer in writing, Mr. Lee knew that the offer had been withdrawn.
Mr. Lee’s Affidavit
- Mr. Lee’s Affidavit evidence, as firmly supported by the documentation produced, confirms the following:
(a) Mr. Lee did not have any telephone conversation with Mr. Tsang on December 11, 2014, wherein the written abatement offer of $20,000 set out in Mr. Tsang’s December 10th letter (as accepted by the Plaintiff) was either withdrawn or repudiated, something that also did not occur when counsel spoke on December 10, 2014, as, again, Mr. Lee had not even seen the Abatement Offer at the time of the Conversation[^23];
(b) In actual fact, Mr. Lee did not have any telephone conversation with Mr. Tsang altogether on December 11, 2014, consistent with Mr. Lee’s review of his docket entries for this file which confirmed that, while Mr. Lee did record time for this matter in respect of his telephone conversation with Mr. Tsang on December 10, 2014, there is no docket entry for any such telephone conversation had with Mr. Tsang on December 11, 2014[^24];
(c) As well, Mr. Lee has produced email correspondence directed at his request by his partner, Iris Chung, to one Joseph Shum on December 11, 2014 at 9:48 am, and Mr. Lee’s related email to Mr. Shum of 10:36 am the same day. Mr. Shum is a real estate broker that Mr. Lee had earlier consulted with (before receiving the Abatement Offer) to get a better idea as to the loss in value arising from the easement issues should the transaction not close. A review of this correspondence confirms that at that time same was sent out (9:48 and 10:36 am on December 11, 2014), it was already determined that the closing of the Transaction on the basis of the Abatement Offer would be proceeding. Further, within less than an hour of the second email, Mr. Lee directed the written response to Mr. Tsang accepting in writing the Abatement Offer. Clearly, Mr. Lee would not have directed these communications on December 11, 2014, if it had been the case that Mr. Tsang had withdrawn the Abatement Offer during the course of any earlier telephone conversation[^25].
Admissions obtained on the Cross-Examination of Tsang
- Significant admissions were obtained on the cross-examination of Tsang, only serving to further support the basis for an Order to issue for summary judgment in favour of the Plaintiff. In this regard:
(a) Further to his review of Mr. Lee’s Affidavit, Mr. Tsang’s acknowledged that Mr. Lee had kept a better record than he did of what had transpired because Mr. Lee had documented things relatively contemporaneously to when things happened and he did not do so in the same fashion. In this regard, Mr. Tsang did not have time to take as much notes as Mr. Lee did and it became evident to Mr. Tsang when he reviewed the Lee Affidavit that Mr. Lee had a better tracking of time, that he (Mr. Tsang) did not have a “very good track of time”, and that he “didn’t have time to take as much notes as [he] should have”[^26].
(b) Mr. Tsang does not have any form of correspondence documenting any withdrawal of the Abatement Offer before same was accepted in writing by Mr. Lee. Further, Mr. Tsang confirmed that he does not have any notes or correspondence (to anyone), other than what has been produced, documenting any withdrawal or rejection of the Abatement Offer, and he only directed his December 11th letters to Mr. Lee purporting to maintain that the Abatement Offer had been withdrawn after Mr. Lee had already accepted same in writing[^27].
(c) Further to his review of the Lee Affidavit, Mr. Tsang admitted that he did not speak to Mr. Lee on December 10, 2014 where the Abatement Offer was allegedly withdrawn or repudiated as he maintained in his Affidavit. Rather, Mr. Tsang indicated that he wished to correct his affidavit evidence to indicate that the discussions that he had in this regard with Mr. Lee took place between approximately 4:00 to 5:00 pm on December 10, 2014 (the Abatement Offer having been sent by Mr. Tsang to Mr. Lee at 4:24 pm that day). At the time that he swore his Affidavit, Mr. Tsang was not sure one way or the other. Because some time had passed, his recollection is not clear[^28].
(d) In crafting the written Abatement Offer which set out the three elements of price, closing date, and timeframe for acceptance, Mr. Tsang confirmed that the same was drafted as such because he wanted to express an offer that was capable of being accepted so that there would be no confusion as to its terms[^29].
(e) When Mr. Tsang spoke with Mr. Lee on December 10, 2014, he did not consider Mr. Lee’s request to “get me more” to be a counter-offer[^30].
(f) At the time that he directed the Abatement Offer to Mr. Lee, his client had previously extended a $20,000 abatement offer[^31].
(g) Mr. Tsang confirmed that during the telephone conversation of late afternoon on December 10, 2014 that he maintains he had with Mr. Lee, (i) Mr. Lee did not advise him that the Abatement Offer had been rejected; (ii) Mr. Lee did not propose another figure aside from the $20,000 Abatement Offer amount; (iii) Mr. Lee did not reference his receipt of the Abatement Offer; and, (iv) Mr. Tsang did not discuss and reference the Abatement Offer (his December 10th correspondence) in his discussions with Mr. Lee[^32].
(h) Following his December 11, 2014 letters to Mr. Lee, Mr. Tsang did leave the voicemail message for Mr. Lee as referred to above wherein, referring to his two letters, he apologized for having made a mistake and stating that there had been a misunderstanding[^33].
(i) With respect to Mr. Tsang’s affidavit evidence that the reason he was instructed to make the Abatement Offer was because the Defendant was under pressure because funds were needed by the Defendant to close an agreement that the Defendant had entered into to purchase another property, Mr. Tsang admitted that his client was still under the same pressure on both December 10, 2014 (before the acceptance of the Abatement Offer) and December 11, 2014 (after the offer was accepted in writing) and that nothing had changed on this front, a matter that was only addressed subsequently, weeks later, when the Defendant had resiled from that transaction and lost her deposit[^34].
[29] I find Mr. Lam’s motion for summary judgment is based on the Offer and acceptance, all documented in writing of an abatement agreement dealing with the transaction involving the sale of 101 Aitkens Circle, Markham. I find the terms of the abatement agreement are clear and reflected in the written communications exchanged as between counsel for the parties. The telephone conversation between Mr. Lee and Mr. Tsang where Mr. Lee said that Mr. Tsang should “get me more money” amounts to nothing more than further discussions and negotiations between the parties. Those words cannot be construed as a rejection, repudiation or counter-offer. The evidence does not support Mr. Lee uttering those words when he had Mr. Tsang’s offer in front of him. Such a proposition advanced on behalf of Ms. Chen is simply not supported by the evidence, even the evidence of Mr. Tsang himself. At best, Ms. Chen has asserted in contradiction to clear terms established in writing that:
(a) The Abatement Offer had been withdrawn[^35];
(b) The Abatement Offer had not been withdrawn but rejected[^36];
(c) The Abatement Offer was both repudiated and withdrawn on a telephone conversation had between counsel on December 11, 2014;
(d) This alleged repudiation and withdrawal instead took place during a telephone conversation had on December 10, 2014;
in a conversation in which, admittedly, no reference was made even to the Abatement Offer, which took place on December 10, 2014 between 4:00 and 5:00 pm, when there is no dispute that the Abatement Offer was only faxed to [Mr. Lam’s] counsel at 4:24 pm on that same day.
Credibility
[30] I find that there is no credibility issue which requires a trial judge to hear viva voce evidence in order to evaluate and make a determination as to what lawyer to believe as between Mr. Tsang and Mr. Lee which would necessitate this matter proceeding to trial. Even accepting Mr. Tsang’s evidence, I find that it is clear that he agrees Mr. Lee kept better records of the communications as between them; that he did not take notes or otherwise document any rejection or withdrawal of the abatement offer, which was extended and accepted in writing; and, that he does not have a full recollection of events, given the passage of time, that would serve to undermine what is directly documented in writing. Further, and significantly, Mr. Tsang has also admitted that the discussions had on December 10, 2014 did not even reference the abatement Offer or any specific withdrawal or rejection of same, and that a previous $20,000 abatement offer had been made.
[31] For these reasons, I find that there exists a written abatement offer communicated by Mr. Tsang to Mr. Lee which was accepted in writing within the specific time frame provided for acceptance. The acceptance was in writing, both by email and fax before noon on December 11, 2014. I find that the Offer was never repudiated, rejected or withdrawn. Ultimately, I find the abatement agreement is in force and effect and therefore enforceable.
Specific Performance and Recoverable Costs
[32] With respect to Mr. Lam’s claim for specific performance, he has sworn an Affidavit that confirms that the property is indeed unique to him and cannot be replaced by a similar property. In this regard, among other things, I accept Mr. Lam’s evidence and I find the following
(a) Mr. Lam sought to purchase the Property to use as his family residence;
(b) The Property is in close proximity to the residence of Mr. Lam’s daughter and grandson;
(c) Mr. Lam’s wife is particularly fond of the layout and the backyard which is difficult to find in the area in which the Property is situate;
(d) The Property is in an older district, such that houses are unique with their own characteristics;
(e) The Property is located in the heart of Unionville and within walking distance to historic Main Street Unionville and Too Good Pond Park;
(f) In addition, the Property is located next to 16th Avenue and Kennedy, in close proximity to two High Schools – Pierre Elliot Trudeau High School and Markville Secondary School – in addition to being in close proximity to both Highway 407 and Highway 404;
(g) The Property is a four bedroom home with hardwood finishes for the living room, dining room, office and family room with approximately 3742 square feet, and this is rare for the location;
(h) The Property has an irregular lot size with frontage of approximately 18.01 metres by a depth of approximately 33.68 metres;
(i) The ceiling in the basement at the Property is 8 feet which is not common in the houses in this location;
(j) The house has a second suite in the basement equipped with a bathroom and kitchen. Mr. Lam’s family plan was for his son to move in with Mr. Lam and his wife and to reside in the basement further to which Mr. Lam’s son would assist Mr. Lam by contributing to the carrying the costs for the Property[^37].
[33] I find the Affidavit evidence tendered by Mr. Lam and referenced above is uncontroverted and was not in any way called into question on Mr. Lam’s cross-examination. To the contrary, on his cross-examination, Mr. Lam further testified:
(a) He was renting a home, where he still resides, prior to entering into the Agreement. Mr. Lam and his wife were looking for a property to put an offer on in the Unionville area, where the Property is located, because Mr. Lam and his wife wanted to be close to their daughter and grandchildren who Mr. Lam’s wife wished to babysit. Mr. Lam’s family goal was to live close with their daughter and the Property is the only property that they put an offer on at the time[^38].
(b) Mr. Lam has only owned two houses over the years (i.e., he has not been involved in purchasing homes for resale or commercial purposes)[^39].
(c) The reasons for Mr. Lam to purchase the Property are indeed as set out in the preceding paragraph[^40].
[34] Mr. Lam has provided further affidavit evidence that is also uncontroverted and which I accept, that he searched the market for a property similar to the Property, but has been unable to find any such property. Consistent therewith, on his cross-examination, Mr. Lam testified that:
(i) he and his wife have considered some 20 other potential houses in the same area and there has been nothing suitable available as these other properties were either too small, too far a distance from the Plaintiff’s daughter’s residence, or the price was outrageously ridiculous; and
(ii) Mr Lam actually put an offer on one house just at the end of the street on which the Property is located at 5 Dalecroft Circle which offer was unsuccessful and he was outbid[^41].
[35] By way of undertaking, Mr. Lam has also provided a list of 21 properties that he and his wife looked at as part of their efforts to secure a suitable replacement property, as well as a copy of the deposit cheque issued in respect of Mr. Lam’s offer on 5 Dalecroft Circle property. That offer was unsuccessful as Mr. Lam was outbid[^42].
[36] I find Ms. Chen has not tendered any evidence at all, calling into question the uniqueness of the Property to Mr. Lam, such as a list or information and particulars of any other suitable properties in the areas that she could maintain would have been available for purchase by Mr. Lam. Further, no evidence has been tendered by Ms. Chen to otherwise call into question Mr. Lam’s evidence in support of his claim for specific performance.
[37] I find Mr. Lam has incurred costs thrown away for professional fees arising from Mr. Chen’s failure to close the transaction in the sum of $6,367.30 (excluding the costs of this action). I accept the documentary evidence produced by Mr. Lam in support of these costs thrown away and paid to Shirley Yee and Mr. Lee’s firm for legal services in this regard[^43].
[38] I accept the authorities referred to by counsel for Mr. Lam referred to in his submissions and in his Factum. The question of uniqueness is canvassed in those cases. Found at paragraphs 43-49 of the Factum, are legal principles which I accept, as follows:
Specific performance of an agreement of purchase and sale of property can be granted if the Plaintiff can demonstrate that the subject property is unique in the sense that its substitute would not be readily available. The Plaintiff does not have to demonstrate that the property is unique in a strict dictionary sense that it is entirely different from any other property. It is enough for the Plaintiff to demonstrate that the property has a quality that makes it especially suitable for the Plaintiff’s proposed use and that they cannot be reasonably duplicated elsewhere[^44].
There is a subjective aspect to uniqueness which will normally be more significant in residential purchases. Uniqueness does not require proof that the property is entirely different from every other property nor does it require that the Plaintiff must establish that the property is incomparable. In circumstances where the Plaintiff establishes that the property satisfies his stated criteria and is particularly suited to his proposed use, the Court is prepared to grant an order for specific performance[^45].
There is subjective and objective aspect to uniqueness. Normally, the subjective aspect will be less significant in commercial transactions and more significant in residential purchases, unless the motivation in the latter case is principally to earn profit. In terms of the subjective aspect, the Court should examine this from the point of view of the Plaintiff at the time of contracting. In some cases, there may be a single feature of the property that is significant, but where there are a number of factors, the property should be viewed as a whole. Frequently, the purchase of a home is one of, if not the most significant acquisition made in one’s lifetime. Not surprisingly, subjective factors feature prominently in the selection of a home. In circumstances where the house is in a particularly desirable location for the Plaintiff, this is a factor that has been relied upon by the Courts in assessing the Plaintiff’s entitlement to specific performance[^46].
The Courts have found that the proximity of the property to the Plaintiff’s family members, where this is a factor of concern to the Plaintiff, assists in establishing the uniqueness of the property grounding an order for specific performance[^47].
In the face of evidence of uniqueness to the Plaintiff purchaser, a vendor can challenge the presumption of uniqueness by providing evidence that the property can be replaced for the purchaser’s purpose. The Court will consider whether, for example, the Defendant vendor has put forward evidence of replacement properties that would be suitable for the Plaintiff’s purposes and have held that the failure to adduce such evidence is relevant in the Court’s determination to grant an order for specific performance[^48].
To resist the Plaintiff’s claim for an order for specific performance, Mr. Tsang has stated that the Plaintiff has failed to move this action forward expeditiously such that the Plaintiff is disentitled to specific performance and Mr. Tsang has purported to set out part of the history of matters in terms of the progress of this litigation. The Plaintiff submits that there is no form of meaningful delay in terms of advancing this litigation forward that disentitles the Plaintiff to an order for specific performance. Consistent therewith, an Affidavit has also been tendered for the Plaintiff by the Plaintiff’s counsel’s assistant, Shelley Waterman, whose Affidavit has addressed in some detail the history of this matter and the absence of any delay on the part of the Plaintiff. To the extent that this is any form of issue for the Court, the history of the litigation as set out in the Waterman Affidavit will be reviewed with the Court[^49].
In the Yan v. Nadarajah case, the Court had the opportunity to consider a delay defence advanced by the Defendant vendor in circumstances where there was an unexplained delay of one year in which the Plaintiffs appeared to have taken no steps and two other periods of delay in which the Plaintiff was taking some steps but could have been moving the matter forward more efficiently. In the Yan case, the Court held that the delay in question did not constitute any form of bar to granting specific performance. As noted by the Court, referring to the decision in Bark-Fong v. Cooper, [1913 CarswellBC 277 (S.C.C.)]:
The doctrine of laches, it has been frequently said, is not a technical doctrine, and in order to constitute a defence there must be such a change of position as would make it inequitable to require the defendant to carry out the contract, or the delay must be of such a character as to justify the inference that the plaintiffs intended to abandon their rights under the contract or otherwise to make it unjust to grant specific performance. It cannot be said that anything has occurred which makes it inequitable that the respondent should be called upon to perform his contract; the only change suggested is that the property has risen in value. I confess I do not see why that should be regarded as a ground for thinking it is unfair that the defendant should be held to his contract.
[39] I find that Mr. Lam has established his claim for specific performance. The Property is indeed unique to Mr. Lam and cannot be replaced by a similar property. I also find there is no delay that would operate as a bar to granting specific performance.
[40] Accordingly, Mr. Lam shall have judgment for specific performance of the APS on the basis of the abatement agreement concluded, plus damages in the amount of $6,367.30 for professional costs thrown away by reason of Ms. Chen’s failure to close the transaction.
[41] I am satisfied there is no genuine issue requiring a trial. I find that an award of damages would not be adequate to compensate Mr. Lam nor would damages be a true substitute for specific performance.
CONCLUSION
[42] For these reasons, Mr. Lam shall have summary judgment for specific performance of the APS on the basis of the abatement agreement concluded, plus damages in the sum of $6,367.30 for professional costs thrown away. The parties shall attempt to agree on a reasonable closing date to transfer title of 101 Aitken Crescent, Markham, from Ms. Chen to Mr. Lam and appropriate adjustments. If they cannot agree, they may take out an appointment to attend before me to address any outstanding issues, including the outstanding counterclaim.
COSTS
[43] The parties have agreed that costs will be determined by way of written submissions. Within 10 days of the receipt of these reasons, counsel for Mr. Lam shall serve and file with my judicial assistant at Barrie, a concise 2 page summary of position in respect of costs, together with a costs outline and draft bill of costs and any relevant authorities. Counsel for Ms. Chen shall thereafter serve and file the same materials within the following 10 days. Thereafter, if required, counsel for Mr. Lam will serve and file any reply materials within the next 5 days.
DiTOMASO J.
Released: April 12, 2018
[^1]: Affidavit of Kien Chong Sammy Lee sworn September 6, 2017 (“Lee Affidavit”), Supplementary Motion Record, Paragraph 3, Exhibit “A”, Agreement of Purchase and Sale.
[^2]: Lee Affidavit, Supplementary Motion Record, Paragraph 5, Exhibit “C”, Requisition Letter.
[^3]: Lee Affidavit, Supplementary Motion Record, Paragraph 6, Exhibit “D”, Correspondence from Mr. Tsang dated December 4, 2014.
[^4]: Affidavit of Kelvin Hoi Lam sworn July 7, 2016 (“Lam Affidavit”), Motion Record, Paragraph 9, Exhibit “E”, Correspondence from Ms. Yee to Mr. Tsang dated December 8, 2014; and, Tsang Transcript, p. 24-25; Q 81-82.
[^5]: Lee Affidavit, Supplementary Motion Record, Paragraph 8, Exhibit “E”, Facsimile from Mr. Tsang to Mr. Lee dated December 10, 2014.
[^6]: Lee Affidavit, Supplementary Motion Record, Paragraph 9.
[^7]: Lee Affidavit, Supplementary Motion Record, Paragraph 10.
[^8]: Lee Affidavit, Supplementary Motion Record, Paragraph 11, Exhibit “F”, Email and facsimile from Mr. Lee to Mr. Tsang dated December 11, 2014.
[^9]: Supplementary Affidavit of Kelvin-Hoi Lam sworn September 20, 2017 (“Supplementary Lam Affidavit”), Second Supplementary Motion Record, Paragraph 5; Tsang Transcript; p. 57-58; Q 241-242; p 59-60 Q 247-251; and, Third Supplementary Motion Record of the Plaintiff, Undertakings, Tab 4, Letter dated October 25, 2017 from Mr. Magonet to Mr. Goodman re: Lam Undertakings/Under Advisements.
[^10]: Lee Affidavit, Supplementary Motion Record, Paragraph 12, Two facsimiles from Mr. Tsang to Mr. Lee dated December 11, 2014.
[^11]: Lee Affidavit, Supplementary Motion Record, Paragraph 13.
[^12]: Lee Affidavit, Supplementary Motion Record, paragraph 14, Exhibit “H”, Email correspondence from Mr. Lee to Mr. Tsang dated December 11, 2014.
[^13]: Lee Affidavit, Supplementary Motion Record, Paragraph 17; and, Tsang Transcript; p 61; Q 257-259; p 65; Q 274.
[^14]: Lam Affidavit, Motion Record, Paragraphs 14 & 15.
[^15]: Rule 20.04(2)(a).
[^16]: Rule 20.04(2.1).
[^17]: Hryniak v. Mauldin, 2014 SCC 7.
[^18]: Hryniak, supra at para. 66.
[^19]: Rules of Civil Procedure, Rule 20.04. Combined Air Mechanical Services Inc. v. Flesch, 2911 ONCA 764.
[^20]: Hryniak, supra at para. 49.
[^21]: Hyrniak, supra, at para. 66.
[^22]: Tsang Transcript; p 35; Q 122.
[^23]: Lee Affidavit, Supplementary Motion Record, paragraph 15(a).
[^24]: Lee Affidavit, Supplementary Motion Record, Paragraph 15(b).
[^25]: Lee Affidavit, Supplementary Motion Record, Paragraph 15(c), Exhibit “I”, Email exchange dated December 11, 2014.
[^26]: Tsang Transcript; p 49-49; Q 186-192; p 52 Q 208-210; p 65; Q 274.
[^27]: Tsang Transcript; p 46-47; Q 176-179; p 55-56; Q 228-231.
[^28]: Tsang Transcript; p 47-49; Q 182-184 & 186-192; p 50; Q 195-198.
[^29]: Tsang Transcript; p 42-43; Q 159; p 43 Q 162-163.
[^30]: Tsang Transcript; p 53; Q 218.
[^31]: Tsang Transcript; p 30; Q 102.
[^32]: Tsang Transcript; p 54-55; Q 222-225.
[^33]: Tsang Transcript; p 61; Q 257-259; p 65; Q 274.
[^34]: Tsang Transcript; p 36-37; Q 127-130; p 38-39; Q 137-140.
[^35]: Tsang letter to Lee #1.
[^36]: Tsang letter to Lee # 2.
[^37]: Lam Affidavit, Motion Record, Paragraph 6.
[^38]: Lam Transcript; p 4-5; Q 11-15; p 8; Q 31; p 12; Q 50; p 49; Q 196-198.
[^39]: Lam Transcript; p 21; Q 94.
[^40]: Lam Transcript; p 10; Q 42.
[^41]: Lam Affidavit, Motion Record, Paragraph 7; and Lam Transcript; p 6-7; Q 22-28; P 8; Q 31-33.
[^42]: Third Supplementary Motion Record of the Plaintiff, Undertakings, Tab 4, Letter dated October 25, 2017, from Mr. Magonet to Mr. Goodman re: Lam Undertakings/Under Advisements.
[^43]: Supplementary Lam Affidavit, Second Supplementary Motion Record, paragraph 4.
[^44]: McLeod v. Schmidt, 2007 CarswellOnt 5037.
[^45]: Marvost v. Stokes, 2011 ONSC 4827; 2012 ONCA 74.
[^46]: deFranco v. Khatri, 2005 CarswellOnt 1744.
[^47]: Yan v. Nadarajah, 2015 ONSC 7614; 2017 ONCA 196.
[^48]: Yan v. Nadarajah, supra.
[^49]: Waterman Affidavit sworn September 11, 2017, Tab 2, Supplementary Motion Record.