Court File and Parties

OSHAWA COURT FILE NO.: CV-18-1453 DATE: 20180911 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Yitong Wang, Applicant AND: Balwan Chattarpaul, Kamilla Chattarpaul and Royal LePage Your Community Realty, Respondents

BEFORE: The Honourable Mr. Justice C.F. de Sa

COUNSEL: Holden Agnew-Pople, Counsel for the Applicant

HEARD: July 20, 2018

Endorsement

[1] The Applicant seeks an order declaring that she is entitled to the $20,000 deposit held in Royal LePage Your Community Realty’s trust account.

[2] The Respondents, Balwan Chattarpaul and Kamilla Chattarpaul (the “Purchasers”) and Yitong Wang (the “Applicant”) entered into an Agreement of Purchase and Sale, dated April 12, 2017, for the sale of the Property (the “Agreement”).

[3] The purchase price was $835,000. A deposit of $20,000 (the “Deposit”) was to be paid by the Purchasers to the Respondent Royal LePage Your Community Realty (“Royal LePage”) to be held in trust pending the completion of the sale in accordance with the terms of the Agreement.

[4] On or about April 18, 2017, the Purchasers deposited $20,000 to Royal LePage pursuant to the Agreement. The closing date of the Agreement was July 28, 2017.

[5] On May 1, 2017, the Purchasers signed a Waiver, by which they waived their condition that the Agreement was contingent on the Purchasers’ obtaining and reviewing a current Status Certificate and concomitant documentation and being satisfied regarding the contents of the documentation.

[6] On July 14, 2017, the Purchasers’ lawyer (“Mr. Sandhu”), in a letter to the Applicant’s lawyer (Ms. Godek”) requested an extension of the closing date to September 30, 2017. The Applicant agreed to extend the closing date to September 30, 2017.

[7] On September 28, 2017, the Respondents failed to close the transaction. Despite a number of requests to close the transaction, the Purchasers failed to do so.

[8] After the Agreement came to an end, the Applicant’s property was immediately relisted, and the Applicant’s property remained listed until another Agreement of Purchase and Sale was signed on May 6, 2018. The purchase price was $807,500 and the closing date was July 19, 2018.

[9] The Respondent, Royal LePage, is unwilling to release the Deposit to the Applicant without the Purchaser’s consent and/or without a court order.

Is the Applicant entitled to the deposit?

[10] Where a sale of land/property does not close due to default by the purchaser, the vendor is entitled to the deposit without having to prove actual damages (De Palma v. The Runnymede Iron & Steel Company, [1950] O.R. 1 (C.A.) at 8).

[11] The purpose of the forfeiture of a deposit was described in H.W. Liebig & Co. Ltd. v. Leading Investments Ltd. (1986), 25 D.L.R. (4th) 161 (S.C.C.) at p. 182 as compensation “for the fact that his property was taken off the market for a time as well as for his loss of bargaining power resulting from the revelation of an amount that he would be prepared to accept”.

[12] Here, the deposit was security to ensure that the Purchasers would close the deal. Accordingly, it was clearly forfeitable by reason of the Purchasers’ default. The damages suffered by the Applicant exceed the amount of the Deposit in this case.

[13] The Applicant is clearly entitled to the Deposit.

Decision

[14] I order that the Deposit ($20,000) held in the trust account of Royal LePage be paid to the Applicant.

Justice C.F. de Sa Date: September 11, 2018