Court File and Parties

COURT FILE NO.: CV-12-136 DATE: 2018 Aug 2

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Multani Custom Homes Ltd. Plaintiff – and – 1426435 Ontario Ltd. Defendant

Counsel: Gerry Smits, for the Plaintiff Ted Cowan, for the Defendant

HEARD: July 24, 25 and 26, 2018

BEFORE: The Honourable Mr. Justice R. J. Harper

Judgment

Issues

[1] Specific performance of a real estate transaction involving 20 Morrell St., Brantford Ontario.

[2] Damages for Breach of Contract

Background

[3] The Plaintiff is an Ontario Corporation, having its head office in the City of Brantford, Ontario. It carries on the business of land development and the building of primarily residential homes in Brantford.

[4] The Defendant is an Ontario Corporation with its head office in the City of Brantford and the owner of certain property legally described as Part Block D Plan 428 as in A482963 Brantford City and municipally described as 20 Morrell St., Brantford.

[5] The Plaintiff and the Defendant entered into an Agreement of Purchase and Sale (APS) dated January 10, 2011. Pursuant to this APS, the Plaintiff was to purchase the Defendants property noted above, for $500,000.00. A deposit of $5,000.00 was paid upon the signing of the APS. The APS provided the following regarding the closing of the transaction:

a. The offer is conditional upon the Buyer obtaining at the Buyer’s expense, a re-zoning of the property satisfactory to the Buyer. The re-zoning may require the Buyer to conduct certain environmental audits on the property as deemed necessary by the planning department. The Buyer agreed to conduct any of the audits at their expense.

b. Both the Buyer and the Seller agree to proceed in a diligent manner to obtain the re-zoning.

c. Unless the Buyer gives notice in writing, delivered to the Seller personally, or in accordance with any to her provisions for delivery of notice in this Agreement of Purchase and Sale, or any schedule thereto not later than 5 p.m. on the 120th day from the final acceptance of this offer by both parties, that this condition has been fulfilled, this offer shall become null and void and the deposit shall be returned to the Buyer in full without deduction.

d. The Buyer shall have the right to obtain a further extension from the Seller, provided if the buyer provided evidence to the Seller that the rezoning is in process and a further extension is required to complete the process. (my emphasis).

e. This condition is included for the benefit of the Buyer and may be waived at the Buyer’s sole option by notice in writing to the Seller as aforesaid within the time period stated herein.

f. The Seller also agreed to execute all applications and other documents necessary.

g. The APS was also conditional upon the Buyer obtaining satisfactory financing within 30 days of the acceptance.

h. The closing shall take place within 30 days from the waiver of the zoning and financing conditions by the buyer.

i. Time remained of the essence throughout.

[6] Pursuant to (d) as set out above, the APS was amended to allow for completion of the environmental assessment that were in progress.

[7] The closing date was extended to December 31, 2011. It was subsequently further amended to allow for a closing date of February 29, 2012. This amendment provided that the Plaintiff was responsible for all of the extra costs that were incurred by the Defendant as a result of this further delay.

[8] The Defendant had been under financial pressures when he entered into the APS. He was behind in the municipal taxes. His parents were responsible on one of the mortgages on the property and he was indebted to the Business Development Bank. At the time of entering into the APS, July 10, 2011, his business was improving, however, the financial pressure still remained.

[9] Given the amendments agreed to allowing for the delay in closing until February 29, 2012, the pressures the Defendant faced were alleviated by the Plaintiff assuming the extra costs. In addition, the Plaintiff agreed to provide the Defendants with a non-refundable further deposit of $30,000. Refundable only if the transaction did not close as a result of the Defendant’s “activities”.

[10] A cascade of events occurred in February 2012 that resulted in the Plaintiff not being in funds to close on that day. I find that all of the significant events were not within the control of the Plaintiff. I will comment in more detail later in these reasons.

[11] Suffice it to say, at this point that a contributing factor that contributed to the Plaintiff not being in funds to close on February 29, 2012 was a technical glitch with the server at the offices of Mr. Clement, the lawyer for the Plaintiff for this transaction. The server did not send the documents to the lender’s lawyer. This was only discovered later when Mr. Clement asked the lender’s lawyers why they hadn’t approved the documents. The documents had to be faxed. All of this contributed to the purchaser not being in funds to close.

[12] The Plaintiff was in funds by the afternoon of the next day, March 1, 2012. On February 29, 2012 there was the following email exchange between Mr. Charles Mackenzie, the lawyer for the Defendant on this transaction, and Mr. Clement.

At 4:55 p.m., Mr. McKenzie emailed to Mr. Clement:

I have just received a telephone call from Marisa advising that you are not in mortgage funds and not likely to be able to close today.

The Teraview system will close at 5:00 p.m. today.

If the full closing funds are in the trust account of Mackenzie Law Professional Corporation by 5 p.m. today, we will immediately release the transfer to Multani Custom Homes Ltd. and complete our undertakings in the morning.

If the matter does not close today, we are instructed to claim the $35,000 as a forfeit. Your client may then wish to approach Mr. Ted Cowan Jr. directly with respect to offering a fresh agreement with 1426435 Ontario Ltd.

At 9:17 p.m. February 29, 2012 Mr. Clement emailed Mr. Mackenzie:

Mr. Mackenzie, you must surely be aware that equity will not permit your client to proceed in this fashion given that the closing was delayed only as a result of technological problems in sending executed documents to the lender’s lawyer. Please advise your client that the closing can take place tomorrow on the same terms save and except that our client will pay the per diem interest costs. Failure of your client to agree to same will surely result in litigation.

[13] The Defendant refused to close on March 1, 2012. The Plaintiff advised that it was in funds by the afternoon of March 1, 2012. The Defendant insisted that he would not negotiate further unless the Plaintiff acknowledged that the deal was dead.

[14] The Plaintiff brought this law suit and the Defendant filed a Statement of Defence. Subsequently the Defendant brought a motion for summary judgment that was heard by Justice Arrell. Justice Arrell released his reasons on July 10, 2013.

[15] In his reasons, reported at Multani Custom Homes Ltd. v. 1426435 Ontario Ltd., 2013 ONSC 4712, Arrell J. made a number of findings commencing at para. 8 of the reported decision:

[8] The plaintiff’s ran into significant difficulties in securing the mortgage funds for February 29, 2012. The defendant’s counsel in his submissions conceded that these difficulties were not through any fault of the plaintiff’s. These difficulties included an error in the documentation filed by the engineer regarding the record of site condition. This became a last minute issue regarding the loan agreement with the lender. As a result, new and revised closing documents were required by the lenders lawyer. This was not provided until late on February 27, 2012. This documentation had to be signed by the plaintiffs and a new package of documentation and instructions had to be prepared for the lawyer providing the I.L.A. on the transaction. The lenders then required additional title insurance policies. The documents had to be signed by power of attorney as the principal of the plaintiff was in India. The additional documentation could not get to the title insurer until 9:15 a.m. on March 1st, with the policy being received at 2:33 p.m. on March 1st. The mortgage funds were then advanced. In addition to the above, because of the new documents that had to be prepared, by the time they got to the courier’s office that office was closed. Documentation was scanned for the lender’s lawyer; however, the purchaser’s office experienced technical difficulties with all electronic correspondence on the day of closing through its server. This technical difficulty was not discovered until the end of the business day of February 29, 2012.

[9] I conclude that the failure to close this transaction was a result of a series of events beyond the control of the plaintiff. I conclude that no single event would have prevented the closing but the combination of all of the problems made closing on the date set impossible. I further conclude, based upon all of the evidence, that there is no doubt that the plaintiff had every intention of closing this transaction. It is alleged that it had expended considerable time and money prior to the closing date in doing preparatory work regarding re-zoning and environmental assessments.

[10] I also find as a fact that the defendant was willing and able to close this transaction on the date set for closing but refused to do so once that date expired. No evidence has been led as to why it would not close the following day.

[11] There is no evidence before me that the defendants would have suffered any prejudice in closing the transaction the next day.

[16] With respect to the issue of prejudice to the Defendant, the evidence before me confirms that the Defendant suffered no prejudice. He was asked that question specifically in cross examination and he could give no reasonable examples of prejudice.

[17] To be clear I find on the evidence before me:

a. The inability of the Plaintiff to be in funds to close on February 29, 2012 was as a result of a cascade of events outside of the control of the Plaintiff.

b. With respect to the claim of prejudice to the Defendant if he agreed to close on March 1, 2012, I find that there would be no prejudice.

[18] The lawyer for the Defendant, Charles Mackenzie testified that despite the fact that the Plaintiffs would pay the excess costs due to the one day delay, Mr. Cowan would be prejudiced. He stated that Mr. Cowan was in financial difficulty when he had agreed to sell the subject property. In his words Mr. Cowan was “in the trough”. He had to sell this property to protect his parents, get rid of the municipal taxes and the Business Development Bank. According to Mr. Mackenzie, at that time, the pressure on Mr. Cowan was immense.

[19] Mr. Mackenzie stated that Mr. Cowan’s business had fortunately picked up and by March 1, 2012 he “could see the light at the end of the tunnel”. Mr. Mackenzie stated that he thought Mr. Cowan was relieved when I told him the Plaintiff was not in funds to close on February 29, 2012.

[20] Mr. Mackenzie went on to state that he was very aware of the Eagle Case and other supporting jurisprudence relating to the term “time is of the essence”. He testified that the court in Eagle had discussed the meaning of delay and stated that whether the delay was 11 minutes of one day the same law applied. Mr. Mackenzie stated that time being of the essence really means something in our law. He reiterated that the prejudice was that if he closed the transaction one day later, he was subjecting himself to future higher rent costs after the 2 year rental agreement that was part of the deal and now that his business was doing better, his financial stress was no longer the same.

[21] In his written decision on the summary judgment motion in this case, Justice Arrell stated at para 20:

[20] The plaintiff argues that it was only through the benefit of seeing the conduct of the defendant on February 29, 2012 through its counsel and from March 1, 2012 forward in hindsight that it has understood that at some point during the course of the agreement of purchase and sale that the defendant’s desire to close the deal changed and its preference became to re-sell the property at a higher price based on the significant expenditure of out-of-pocket money and internal resources by the plaintiff and the perceived increased value of the property. The plaintiff argues these are triable facts that go to the issue of good faith and therefore the essence of this case. I agree. If the allegations made by the plaintiff are accepted by the trier of fact, and they have not been denied, then the plaintiff has a good cause of action. I do not feel that I have a full appreciation of the evidence on this issue to enable me to make dispositive findings on this central issue. The court, in my view, must hear evidence on this issue in order that a finding of fact and credibility can be made on the issue of good faith.

[22] The Plaintiff’s certificate of pending litigation was removed by Justice Arrell in his decision of July 10, 2012. In doing so he stated commencing at para 25:

[25] I have reviewed s.103(6) (a) and s. 116(6) of the Courts of Justice Act, R.S.O. 1990 C. 43 which sets out the factors allowing for the discharge of the certificate, one of which is where in the alternative the claimant claims money instead of an interest in the land.

[26] The remedy of specific performance is one that is peculiar to real estate transactions and is based on the fact that real estate is regarded as unique and of particular importance to the purchaser. That reasoning does not apply when land is purchased merely as an investment. Any loss of profits can be compensated for in damages. Heron Bay Investments Ltd. V. Peel-Elder Developments Ltd. at para 4; Mutual Apartments Inc. v. Lam at para 68; Hunter’s Square Developments Inc. v. 351658 Ontario Ltd. and .

[27] The onus is on the purchaser to persuade the court that the property is unique, of particular importance to it and there is no readily available substitute. Uniqueness requires proof. North American Construction (1993) Ltd. V. Deem Management Services Ltd. at para 56.

[28] The only evidence that this property is unique is what is stated by the plaintiff. It is a self-serving statement and I give it little weight. The plaintiff could have easily provided independent evidence of the uniqueness of this property if such evidence exists. The plaintiff has failed to persuade this court of any uniqueness to this property or that a substitute is not available.

[29] I conclude that based upon all the evidence before me that this property should not be tied up any longer. The defendants are an on-going business with real assets and real property. Indeed the plaintiff concedes that there is no evidence before me that the defendants cannot pay any damages that may be awarded should the plaintiff be successful in its lawsuit. Courts quantify difficult types of damages regularly and there is no reason such cannot be done in this case if the plaintiff is successful.

[23] There are two outstanding issues that are essential to be determined in this case:

a. Is the property located at 20 Morrell St., Brantford, unique to the purchasers;

b. Did the Defendant act honestly and in good faith in the performance of the APS and subsequent amendments?

Uniqueness of the Subject Property

[24] The evidence before me relative to the uniqueness of the subject property did not consist of “a self-serving statement” that should be given little weight. That was not the evidence at trial before me.

[25] The following witnesses testified on this issue at this trial:

Mandeep Multani; Ajay Kaushik; Daleep Multani; and Robert Phillips

[26] Daleep Multani is the father of Rob Multani and Mandeep Multani. Both sons were involved in the day to day operation of Multani Custom Homes Ltd. Rob did not testify. Daleep testified that Multani Homes has been in the business of securing land for development of various forms of residential accommodations since 1987. He stated that the business transformed to securing older industrial sites and looking into the viability of converting them and remediating them into residential units for resale. He stated that he liked to secure that type of land that could be remediated in order for the whole neighbourhood to benefit.

[27] Daleep stated that the first large project undertaking by Multani Homes for transformation from industrial to residential was on Ray Street in Brantford. This project spanned from 1990 through completion in 2005. It resulted in the construction of 44 condominium units and 12 semi-detached homes. According to Daleep, Multani homes has mostly specialized in the transformation of land fill and industrial site in Brantford since 2005.

[28] Daleep stated that Brantford is running out of this type of land and the search to find such lands was becoming more difficult. At the time they put an offer to purchase 20 Morrell St. they were developing a property only a few meters from 20 Morrell. He stated that the 20 Morrell Street site fit into their specialty type of housing development and it was so close to their other site that marketing the site would fit right into their planning.

[29] The timing of the 20 Morrell development would also allow them to keep their approximate 10 employees constantly working.

[30] Mandeep Multani described himself as the director of operations for their development company. His testimony largely corroborates that of his father. He confirmed that most of the work of Multani homes was in the Brantford area and has been for approximately 31 years. Their company is well recognized in Brantford and it is not contradicted that this company has been awarded numerous awards for their development.

[31] After searching out properties that would fall within their company’s operations, they located 20 Morrell St. They put in an offer that was accepted. They had conditions in the offer that were for their benefit. The conditions would allow them all of the necessary planning and environmental assessment that would be necessary in order to determine if the property was viable and could be re-zoned in order for them to build residential units.

[32] The plan was for them to be able to build 38 or 40 town house units on this site. He stated that he would estimate a potential profit of approximately $50,000 per unit. However, his father Daleep testified that they attempted to yield approximately $25,000 per unit.

[33] Ajay Kaushik was Multani Custom Homes’ general manager. He had been in that position since approximately 2004. He was in the real estate business selling homes at the time he took the position with Multani Homes. He stated that he would scout for properties that were appropriate. If accepted by the owners of Multani he would see the project though all of the stages to completion.

[34] Ajay testified that Multani Homes specialized in remedial industrial properties. He located 20 Morrell St. He was of the view that that property had special features that made it a fit for Multani. It was less that 100 metres from a development of residential properties that Multani was working to completion. It was a land mass consisting of approximately 21 acres that was close to two public schools and very near the 403 highway access, walking trails and a hospital.

[35] Ajay stated that once the offer was accepted he guided the development through the planning and environmental assessments in order to determine the viability. They engage the planning engineer, Rob Phillips that they often worked with. It was determined that the property was viable for this residential project.

[36] When the transaction did not close Multani had to search for properties outside of Brantford. There were no other properties like 20 Morrell within Brantford. They located a property in Simcoe. That development is underway.

[37] He felt the property was unique as it fit the business model for Multani. It was very close to the Multani development of 85 units and the new project emanating form 20 Morrell could be seen as an extension of the exiting project. The trades that they constantly employ could be kept working within the same construction area they had been for a lengthy period of time.

[38] According to Ajay, Multani spent approximately $100,000 in consulting, planning and environmental fees and other costs up to March 1, 2012. He stated that he kept Mr. Cowan informed of all of the reports relative to the planning and environmental assessments.

[39] Rob Phillips is a civil engineer. He received his Master’s degree in Civil Engineering in 1984 from the University of Toronto. Mr. Phillips became responsible for the concept planning and civil engineering consult for the 20 Morrell St. project of Multani Homes. He had worked on a number of development projects with Multani Homes and, as with those projects, he was familiar with the types of projects Multani worked on.

[40] Mr. Phillips would attend the planning meetings with the City and review the various inputs of the numerous departments within the City with the concept plans that he prepared for Multani Homes.

[41] According to Mr. Phillips the project was moving forward and he submitted to Multani Homes a justification report along with an application to the City. On April 7, 2017 he was advised that the project was on hold.

[42] He had invoiced Multani Homes approximately $15,000. He estimated that the total costs would be $25,000.

[43] I find that this project at 20 Morrell was unique to Multani Homes. It fit logically and financially into their business plan. They had carved out a specialty of developing infill lands. This property was such a property. They used all of their experts in planning and engineering to advance the project. The project was within 100 metres of another one of their developments that allowed Multani to use this site as a continuation of the ongoing development. In this sense, the property meets the requirement as a unique property subject to the remedy of specific performance. See Sivasubramaniam v. Mohammad, 2018 ONSC 3073.

Time of the Essence balanced with the Equitable Concept of Honest and Reasonable Performance of a Contract

[44] Justice Richetti dealt with facts and arguments similar to this case in the case of Deangelis v. Weldan Properties Inc., 2017 ONSC 4155. In that case, the plaintiff sought specific performance of an agreement of purchase and sale of a condominium property. The contract had a clause that required “time being of the essence”. On the closing date, the purchaser’s mortgage financing was not in place and the purchaser sought an extension of “just a few days.”

[45] When the purchaser advised the vendor in that case that they would not be in funds to close on the date set for closing, the vendor stated that they would not extend the closing and their deposit would be forfeited.

[46] Commencing at para. 39 Justice Richetti stated:

[39] The consequences of a parties inability to complete an agreement where there is a “time of the essence” provision was described in 2260695 Ontario Ltd. v. Invecom Associates Ltd., 2016 ONSC 3327. In 2260695 Ont., the purchaser alleged that the vendor acted in bad faith in failing to extend the closing.

[5] The contract made time of the essence save and except where the parties agreed to a time limit being abridged or extended. Such agreement was to be in writing (clause 14.3). It is generally understood that, when time is made to be of the essence, it means that the limits set are to be strictly adhered to. It is an indication the contract is to be one of specific terms and greater certainty:

How more clearly could contacting parties make conditions as to the timing of performance essential than by simply saying, time in all respects shall be of the essence of this agreement? In my opinion, the provisions in clauses 21 and 22 of this agreement, drawn as it was by a professional agent of Loblaw and entered into by sophisticated people of business acumen, clearly [page 548] signaled that any breach of any of the obligations in the agreement calling for performance at a specified time amounted to the breach of an essential element of the contract. That being the case, the law is clear that such breach may be treated by the other party as discharging the agreement and relieving against performance by that other party.

(1473587 Ontario Inc. v. Jackson, 74 OR (3d) 539, at para. 19)

and:

At common law the courts rigidly enforced agreements where time was of the essence.

(1376273 Ontario Inc. v. Knob Hill Farms Limited, 34 BLR (3d) 95, at para. 89, referring to Coslake v. Till (1826), 1 Russ. 376, 38 E.R. 146)

[16] Finally, it was submitted on behalf of the purchaser that the vendors breached the obligation of good faith in the performance of contracts as stipulated in Bhasin v. Hrynew, 2014 SCC 71, [2014] 3 S.C.R. 494. I do not agree. In an effort to place good faith properly in the framework available to interpret contracts and contractual obligations, the Supreme Court of Canada identified it as a “general organizing principle”:

…[A]n organizing principle states in general terms a requirement of justice from which more specific legal doctrines may be derived. An organizing principle therefore is not a free-standing rule, but rather a standard that underpins and is manifested in more specific legal doctrines and may be given different weight in different situations... It is a standard that helps to understand and develop the law in a coherent and principled way.

(Bhasin v. Hrynew, supra, at para. 64, referring to R. v. Jones, [1994] 2 S.C.R. 229, at p. 249; R. v. Hart, 2014 SCC 52, [2014] 2 S.C.R. 544, at para. 124; R. M. Dworkin, “Is Law a System of Rules?”, in R. M. Dworkin, ed., The Philosophy of Law (1977), 38, at p. 47)

[17] As a standard rather than a rule, the obligation to act in good faith does not place specific obligations on a contracting party. In Bhasin v. Hrynew, the court was careful to draw this distinction between the obligation to act in good faith from the duty of loyalty and trust owed to a fiduciary:

The organizing principle of good faith exemplifies the notion that, in carrying out his or her own performance of the contract, a contracting party should have appropriate regard to the legitimate contractual interests of the contracting partner. While ‘appropriate regard’ for the other party’s interests will vary depending on the context of the contractual relationship, it does not require acting to serve those interests in all cases. It merely requires that a party not seek to undermine those interests in bad faith. This general principle has strong conceptual differences from the much higher obligations of a fiduciary. Unlike fiduciary duties, good faith performance does not engage duties of loyalty to the other contracting party or a duty to put the interests of the other contracting party first.

[Emphasis added]

(Bhasin v. Hrynew, supra, at para. 65)

[18] The case goes on to define a new common law duty arising out of the obligation of good faith:

It is appropriate to recognize a new common law duty that applies to all contracts as a manifestation of the general organizing principle of good faith: a duty of honest performance, which requires the parties to be honest with each other in relation to the performance of their contractual obligations.

[Emphasis added]

(Bhasin v. Hrynew, supra, at para. 93)

[47] The Plaintiff, in this case seeks a similar interpretation of Bhasin v. Hrynew as the plaintiff in Deangelis. In this case the assistant to the lawyer acting for the purchasers, Multani Homes, sent an email to the vendors solicitor at 4:35 p.m. on the day of closing stating that the their clients had arrived late at their offices and as a result there was a delay in the lender’s solicitors receiving and approving the mortgage documents in order to provide funds. The assistant merely advised that they would not be in funds to close that day.

[48] The vendor’s lawyer emailed a reply that stated that if funds were not received by the time Teraview closed at 5 p.m., the vendor was treating the deal as being at an end and the deposit would be forfeited.

[49] At approximately 9:37 p.m. the purchaser’s lawyer sent an email to the vendor’s solicitor claiming that they were having technical problems in their office and he was of the view that equity would intervene and as they would be in funds the next day, closing should take place as there would be no prejudice to the vendor.

[50] I do not agree with the Plaintiff’s argument that equity should intervene under these circumstances. The Defendant did not act in bad faith. Justice Richetti in Deangelis v. Weldan Properties Inc., 2017 ONSC 4155, made the following comment commencing at para 41:

[41] It would be tempting to let principles of fairness and equity direct a finding that a three day delay in the closing in the four year history of the Agreement, is a minor breach resulting in a financial windfall to the builder and, therefore, the Agreement should be upheld.

[42] However, in my view, it would be wrong in law to find that insisting on compliance with a term of the agreement, agreed to by both parties with the assistance of counsel, amounts to bad faith depriving a party of the ability to strictly enforce an agreement where time is of the essence. Such a determination would mean that no party could insist on strict compliance of the term of an agreement because to do so would or might amount to bad faith. This would throw the law of contract into chaos by creating uncertainty in the enforcement of contracts.

[43] Such a decision would also be contrary to numerous authorities which provide that, when a party fails to comply with its obligation to complete the transaction at a specified time and there is a time of the essence clause, the other party has the right to terminate the agreement. See 1473587 Ontario Inc. v. Jackson.

[20] The holding of parties to their bargain in this respect perhaps met its zenith in Union Eagle Ltd. v. Golden Achievement Ltd., [1997] A.C. 514, [1997] 2 All E.R. 215 (P.C.) in which completion of the purchase of a $4.2 million flat was to take place on or before September 30, 1991 and before 5:00 p.m. that day. The purchaser's agent arrived at 5:10 pm. and the vendor rescinded the contract at 5:11 pm. Citing the practicalities of business as the reason for restraining equity from relieving against clear contractual terms, Lord Hoffman wrote at para. 9:

... in many forms of transaction it is of great importance that if something happens for which the contract has made express provision, the parties should know with certainty that the terms of the contract will be enforced. The existence of an undefined discretion to refuse to enforce the contract on the ground that this would be "unconscionable" is sufficient to create uncertainty. Even if it is most unlikely that a discretion to grant relief will be exercised, its mere existence enables litigation to be employed as a negotiating tactic. The realities of commercial life are that this may cause injustice which cannot be fully compensated by the ultimate decision in the case.

He concluded his opinion with this advice at para. 18, which I think entirely applicable to the case before me:

The fact is that the purchaser was late. Any suggestion that relief can be obtained on the ground that he was only slightly late is bound to lead to arguments over how late is too late, which can be resolved only by litigation. For five years the vendor has not known whether he is entitled to resell the flat or not. It has been sterilised by a caution pending a final decision in this case. In his dissenting judgment, Godfrey J.A. said that the case "cries out for the intervention of equity". Their Lordships think that, on the contrary, it shows the need for a firm restatement of the principle that in cases of rescission of an ordinary contract of sale of land for failure to comply with an essential condition as to time, equity will not intervene.

[44] The appeal from 1473587 was dismissed by the Court of Appeal. See 1473587 Ontario Inc. v. Jackson.

[45] It does not assist Deangelis to suggest the fault of the failure to complete the Agreement was that of the bank and not themselves as purchasers. Weldan has no agreement with the bank. The bank owes no duty to Weldan. If the failure to advance the funds lay with the bank, Deangelis' remedy may likewise lay with the bank.

[51] I agree with and adopt Justice Richetti’s analysis. The APS was at an end when the purchaser’s assistant advised the vendor’s lawyer that they would not be in funds to close on the date assigned for closing, February 29, 2012. The Plaintiff is not entitled to damages nor is the plaintiff entitled to specific performance of the APS.

[52] The Applications of the Plaintiff are dismissed.

[53] If costs cannot be agreed to a time to argue costs may be scheduled with the trial coordinator.

The Honourable R. J. Harper

Released: August 2, 2018