Court File and Parties

COURT FILE NO.: CV-17567087 DATE: 20190516 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N : NAM DEK LEE Plaintiff – and – JIN MO and EDGE ON TRIANGLE PARK INC. Defendants

COUNSEL: David Wagner and Peter Askew for the Plaintiff No one appearing for the Defendants

HEARD: January 7, 2019

FAVREAU J. :

Introduction

[1] The plaintiff, Nam Dek Lee, brings a motion for summary judgment against the defendant, Jin Mo, who acted as Mr. Lee's lawyer on a failed real estate transaction.

[2] Mr. Lee entered into an agreement of purchase and sale to purchase a condominium unit in Toronto from the defendant, Edge on Triangle Park Inc. (the "Builder"). There was some delay in Mr. Lee's ability to secure a mortgage for the transaction, and the closing date was extended a number of times.

[3] Mr. Lee claims that Mr. Mo failed to communicate and seek instructions from him on numerous occasions throughout the transaction, and that it was Mr. Mo's final request to extend the closing date without instructions from Mr. Lee that led the Builder to terminate the agreement, thereby causing Mr. Lee's losses.

[4] For the reasons that follow, the motion for summary judgment is dismissed. I find that I am not able to make a fair determination of the issues in this case based on the record before me.

Adjournment issue

[5] Mr. Mo, who is self-represented, did not attend the motion. However, he contacted the Court via email a few days before the date of the motion indicating that the plaintiff had agreed to an adjournment.

[6] At the hearing of the motion, Mr. Lee, through his counsel, indicated that there was no agreement to an adjournment, and he opposed the adjournment.

[7] Therefore, at the beginning of the hearing, the first issue I had to address was whether to adjourn the motion. After hearing submissions from counsel for the plaintiff, I indicated that I would not adjourn the motion and I proceeded to hear the plaintiff's argument.

[8] Before addressing the merits of the motion, it is important to provide my reasons for not adjourning the motion.

[9] The record put forward by the plaintiff clearly demonstrates that Mr. Mo had a history of delay in this proceeding before the motion for summary judgment was even scheduled:

a. The plaintiff commenced his action on January 4, 2017, after which he had to bring a motion for substituted service of the claim on Mr. Mo. In an endorsement dated April 20, Master Short, who dealt with the motion, found that the motion was "unnecessary", and set a schedule for the delivery of Mr. Mo's statement of defence and delivery of his affidavit of documents.

b. The plaintiff then had to bring a motion to compel the production of Mr. Mo's Schedule "A" documents. In an endorsement dated September 29, 2017, Master Graham indicated that Mr. Mo had served his documents after receiving the motion record. Master Graham set a schedule for examinations for discovery, and made an order that the discovery evidence was to be used as evidence on the motion for summary judgment.

c. On November 28, 2017, the parties attended a Chamber's appointment before Cavanagh J. at Mr. Mo's request for the purpose of setting a schedule for a motion for summary judgment to be brought by Mr. Mo. Cavanagh J. declined to set a schedule because Mr. Mo had failed to serve his motion materials. In his endorsement, Cavanagh J. confirmed that Mr. Mo was to be examined for discovery on November 30, 2017 and that Mr. Mo waived his right to examine Mr. Lee. He also confirmed again that the discovery evidence could be used on the motion for summary judgment.

[10] It appears that Mr. Mo never pursued his stated intention to bring a motion for summary judgment. However, on July 6, 2018, the plaintiff's counsel and Mr. Mo attended Civil Practice Court, at which time a motion for summary judgment to be brought by Mr. Lee was scheduled for January 7, 2019. As part of the order, the parties were required to attend a case conference for the purpose of fixing a timetable leading up to the motion.

[11] On August 22, 2018, counsel for Mr. Lee and Mr. Mo attended before Gilmore J. to fix a timetable for the motion. Gilmore J. set a timetable that required the plaintiff to serve his materials by September 21, 2018, and that required Mr. Mo to serve his responding materials by October 19, 2018. The direction setting the timetable provided that the dates were peremptory on Mr. Mo.

[12] As provided for in the timetable, the plaintiff served his motion materials on September 21. 2018. On September 26, 2018, Mr. Mo sent a responding email in which he claimed that the plaintiff's materials were "way too much off the court-ordered timetable", and stating that a new timetable and motion date would be necessary. Later that morning, counsel for the plaintiff responded that the materials had been provided in accordance with the timetable, and that "[o]ur client will not consent to an adjournment of the January summary judgment hearing…"

[13] By October 22, 2018, Mr. Mo had not responded to this email nor had he served his responding motion materials. Counsel for the plaintiff sent him an email that day noting that they had not received responding materials and stating that "[w]e will be opposing any request for an adjournment of the summary judgment hearing".

[14] On October 23, 2018, Mr. Mo responded stating as follows:

I have been staying in Seoul since 9/6/18 looking up on my mom. I was planning to return in time to prepare/serve the material but got held up (My mom developed a serious bed sore) She is stabilizing but not out of the woods yet… So it seems I have to request a deferment of the agreed-on timetable. Please apprise me of your suggestions, which I shall consider with an open mind under the circumstances.

[15] Later on October 23, 2018, counsel for the plaintiff responded that "[u]nfortunately your history of delay makes it impossible for us to agree to an extension based on the circumstances you have described". Mr. Mo did not respond to this email.

[16] On November 7, 2018, the plaintiff's counsel served a supplementary motion record on Mr. Mo. There was no response from Mr. Mo.

[17] On January 3, 2018, the plaintiff's counsel sent a motion confirmation to the Court with a copy to Mr. Mo.

[18] Mr. Mo wrote to the Court with a copy to plaintiff's counsel as follows:

The plaintiff's 'confirmation' forwarded hereto to me is in error and as such should be disregarded.

I had informed opposing counsel that I am overseas on a grievous personal matter (specifically, to attend to my mom on her deathbed).

The plaintiff, via his counsel, had agreed to postpone the summary judgment proceeding mutas mutandi (on the basis of the time table previously settled on before a Master).

Now his counsel entirely unexpectedly serve you with 'confirmation' with cc to me. I believe this is an extremely unconscionable act, on the part of opposing counsel.

[19] Mr. Mo attached a photo to the email stating that it showed his mother "on her deathbed as proof of the bona fides , taken an hour or so ago". He then asked that the Court disregard the motion confirmation.

[20] It goes without saying that counsel are expected to agree to reasonable adjournment requests and that the Court should grant adjournments in circumstances where parties face a family crisis or other unexpected personal circumstances.

[21] However, given the history of this matter, Mr. Mo's request for an adjournment was neither credible nor reasonable.

[22] Mr. Mo clearly misled the Court in his January 4, 2019 email when he stated that the plaintiff had agreed to an adjournment. As of September 26, 2018, Mr. Lee's counsel made it clear to Mr. Mo that Mr. Lee would not agree to an adjournment. Mr. Mo first raised the issue of his mother's health on October 23, 2018, and Mr. Lee's counsel again advised that there would be no consent to an adjournment. Despite this clear communication from the plaintiff, Mr. Mo took no steps to obtain an adjournment in advance of the scheduled motion date and he then misled the Court by stating that the plaintiff had agreed to an adjournment. In addition, rather than providing medical evidence about his mother's health, Mr. Mo chose to send a photo of his mother in a hospital bed as proof of her illness.

[23] In Re Estate Szegedi, [2005] O.J. No. 3248, at para. 17, this Court held that "[w]here a litigant seeks to avoid compliance with a court order due to medical causes, it usually will not be sufficient to do so without firsthand medical evidence".

[24] In Royal Bank of Canada v. Puzzolanti, 2018 ONCA 917, at para. 7, the Court of Appeal held that "[w]aiting until the last minute to request an adjournment is contrary to the principles surrounding the adjudication of summary judgment motions…" The Court went on to state that it was also contrary to the Consolidated Practice Direction for Civil Actions, Applications, Motions and Procedural Matters in the Toronto Region that provides that adjournments will not be granted within 2 days of the scheduled motion "except in extenuating and exceptional circumstances". In the normal course, a serious family health issue would qualify as such an extenuating circumstance. However, here, Mr. Mo evidently knew about the issue several months before the motion.

[25] Given Mr. Mo's history of delay in this proceeding, given that he was put on notice over three months before the motion date that the plaintiff would not consent to an adjournment and given that Mr. Mo did not provide the Court with any independent evidence to support his statement about the seriousness of his mother's condition, I found that it was appropriate to deny the adjournment and to proceed with the motion. Mr. Mo is not an unsophisticated litigant. He is a lawyer, who should have known to seek an adjournment in advance of the motion date in circumstances where it was made clear to him that the plaintiff would not consent to an adjournment, and who certainly should have known not to mislead the Court about there being a consent to the adjournment.

[26] While I have ultimately decided to dismiss the motion, it should be clear to Mr. Mo that his conduct created a real risk that this action could have been decided against him in his absence if the plaintiff’s record had been sufficient for me to do so. In the future, Mr. Mo would be well advised to never mislead the Court and to ensure that he meets timelines set by the Court.

Background facts

[27] In support of the motion, Mr. Lee swore an affidavit in which he set out the history of his dealings with Mr. Mo. In addition to Mr. Lee's affidavit, as mentioned above, the transcript from Mr. Mo's examination for discovery forms part of the evidentiary record on the motion for summary judgment.

Mr. Mo's representation of Mr. Lee

[28] On October 9, 2010, Mr. Lee entered into an agreement of purchase and sale (the "APS") to purchase a pre-construction condominium unit in Toronto from the Builder. At the time he entered into the agreement, Mr. Lee was not represented by counsel.

[29] The purchase price for the condominium was $250,400, and the APS required Mr. Lee to make four deposits of $12,520 each between October 9, 2010 and October 8, 2014. Mr. Lee made these payments for a total of $50,080.

[30] The APS provided that title to the condominium unit would be "on the later of the Occupancy Date or a date established by the Vendor".

[31] In the fall of 2014, Mr. Lee retained Mr. Mo to act for him for the purpose of completing the transaction. Mr. Lee states in his affidavit that he retained Mr. Mo because he wanted a lawyer who was fluent in Korean and an expert in real estate law.

[32] There was no formal retainer agreement between Mr. Lee and Mr. Mo.

[33] Mr. Lee's evidence is that he advised Mr. Mo that he would need a mortgage in order to close the transaction. However, he did not take any steps to obtain a mortgage because he believed that it was premature to do so before a closing date was established. Mr. Lee states in his affidavit that he was relying on Mr. Mo to coordinate the closing date with the vendor, and to let him know when he should have the mortgage in place.

[34] On April 30, 2015, the Builder sent a letter to Mr. Mo advising that the closing date was set for May 30, 2015. Mr. Lee claims that, from that date going forward, there were many occasions on which Mr. Mo failed to let him know about communications from the Builder and to seek instructions on timelines for closing, which led to delay in Mr. Lee obtaining a mortgage and ultimately resulted in the Builder terminating the transaction and Mr. Lee losing his deposit.

[35] Following a series of extensions, which Mr. Lee claims were unilaterally set by Mr. Mo and not properly communicated to him, on July 2, 2015, the Builder's lawyer wrote to Mr. Mo indicating that the Builder was terminating the agreement due to Mr. Lee's default and that it intended to retain the deposit as liquidated damages.

[36] Mr. Mo and Mr. Lee then met on July 10, 2015, at which point Mr. Lee instructed Mr. Mo to advise the Builder that he would be prepared to close the deal by July 24, 2015 “no matter what”. Mr. Mo wrote to the Builder that day setting out this proposal, but he did not get a response until July 20, 2015. At that point, Mr. Mo unilaterally advised the Builder that Mr. Lee could not close the deal for another ten days, after which the Builder indicated that it was not interested in reviving the deal.

Mr. Lee's claim against the defendants

[37] Mr. Lee commenced the action against Mr. Mo and the Builder on January 4, 2017. In the claim, Mr. Lee alleges that Mr. Mo was negligent in his representation of Mr. Lee, including by failing to communicate regularly with Mr. Lee and by unilaterally seeking to extend closing dates without informing Mr. Lee or seeking his instructions. Mr. Lee also claims that Mr. Mo failed to provide information requested by Mr. Lee's proposed lenders, which led to delay in obtaining financing for the purchase. Mr. Lee alleges that Mr. Mo's negligence caused the Builder to terminate the APS.

[38] Mr. Lee claims the following damages against Mr. Mo:

a. $50,080 for the loss of deposit;

b. $4,610 for the mortgage application fee;

c. $2,450 for legal fees paid to Mr. Mo;

d. $649,75 for the cost of the condominium inspection; and

e. An amount for his loss attributable to the increase in the value of the condominium.

[39] Mr. Mo has defended the action. In his statement of defence, Mr. Mo denies that he failed to communicate with Mr. Lee and the lender, and he alleges that the deal did not close because of Mr. Lee's delay in securing a mortgage.

[40] The Builder has gone into bankruptcy, and the action against the Builder is therefore stayed.

Materials received following argument of the motion

[41] At the hearing of the motion for summary judgment, I expressed a number of concerns about the materials filed in support of the motion. It is worth outlining those concerns and how they were addressed, because they do have an impact on the outcome of the motion.

[42] My first concern is with respect to the evidence that Mr. Mo contributed to the delay in Mr. Lee’s ability to obtain a mortgage. In his affidavit, Mr. Lee includes a few paragraphs in which he provides hearsay evidence from the mortgage broker on this issue. In addition, he attaches what he describes as a “communication log” prepared by the mortgage broker, which appears to set out various communications between the mortgage broker, Mr. Lee, Mr. Mo and the lender. While hearsay evidence is permitted on a motion for summary judgment pursuant to Rule 20.02(1) of the Rules of Civil Procedure, much of the evidence on this issue is unattributed and, in some cases, is double hearsay. Under the circumstances, I expressed a concern that I could not make a determination about whether Mr. Mo’s actions contributed to the delay in obtaining a mortgage. In response, counsel for Mr. Lee indicated that, for the purposes of the motion, they only relied on Mr. Mo's actions after the Builder purported to terminate the APS, at which point Mr. Lee had received a mortgage commitment letter from a lender.

[43] My second concern was that, in support of the claim for damages arising from the increase in the value of the condominium, Mr. Lee relied on an expert opinion that does not comply with Rule 53.03(2.1) of the Rules of Civil Procedure. The evidence consists of an affidavit sworn by Marvin Newman, who identifies himself as a Vice President and Broker at a Sutton Group real estate brokerage firm. Mr. Newman’s affidavit includes two reports he prepared setting out his opinion on the market value of the condominium in July 2015 and in September 2018. Mr. Newman’s affidavit does not include his background or qualifications nor does it include a Form 53 acknowledgment of his duties as an expert. At the conclusion of the hearing, I gave the plaintiff's counsel an opportunity to provide cases addressing the consequences of this deficiency, which they did. Having reviewed these cases, they do not alleviate my concerns. For example, in Michienzi v. Kuspira, 2012 ONSC 2273 (Sup.Ct.), at para. 23, which was a pretrial motion about experts who were expected to testify at trial, the motion judge held that three of the proposed expert witnesses would not be allowed to testify if they did not sign Form 53 acknowledgments in advance of trial. In Mitisav v. General Motors Corp., 2014 ONSC 2342 (Sup. Ct.), the motion judge dismissed a motion for summary judgment, holding, at para. 10, that he expected that the expert evidence would comply with Rule 53.03 at trial and, at para. 11, that where judgment is being sought "compliance with Rule 53.03(2.1) of the Rules should be considered as mandatory”. Consequently, in my view, Mr. Newman’s evidence in its present form cannot support Mr. Lee’s claim for the loss of the increase in the value of the condominium.

[44] Finally, my third concern was that there was no evidence that the condominium unit was ultimately sold by the Builder to another purchaser, and the price at which it was sold. Given the Builder’s bankruptcy, I raised this concern because it was not clear from the record that the Builder was in a position to sell the condominium by the time the deal fell apart. Again, I allowed Mr. Lee's lawyers to file additional evidence on this point. Following the hearing of the motion. I received a brief affidavit sworn by one of the plaintiff’s lawyers, attaching the parcel register, which appears to confirm that the unit was sold in November 2015. Given my analysis on causation below, it turns out that this evidence has no bearing on the outcome of the motion but it may be relevant at trial.

Test on a motion for summary judgment

[45] Under rule 20.04(2) of the Rules of Civil Procedure, summary judgment is to be granted if the Court is satisfied that there is no genuine issue requiring a trial.

[46] As set out in Hryniak v. Mauldin, 2014 SCC 7, at para. 49, there will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits using the summary judgment process. This is the case when the process: "(1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result."

[47] On a motion for summary judgment, the judge should first determine if there is a genuine issue requiring a trial based on the evidence before him or her without using the fact-finding powers in rule 20.04(2.1). If there appears to be a genuine issue requiring a trial, rule 20.04(2.1) permits the motion judge, at his or her discretion, to: (1) weigh the evidence, (2) evaluate the credibility of a deponent, or (3) draw any reasonable inference from the evidence unless it is in the "interest of justice" for these powers to be exercised only at trial: Hryniak, at para. 66. The motion judge is also permitted to use the expanded powers under rule 20.04(2.2) to direct procedures such as a mini-trial, rather than a full trial.

[48] In Danforth (London) Ltd. v. London (City), 2018 ONSC 4203 (Sup. Ct.), at para. 33, Grace J. emphasized that the materials on a motion must be sufficient to make a fair and just determination of the issues in the case without a trial:

Establishing that the motion judge is in a position to make findings of fact and to apply the law with conviction is critical to the moving party's success. If the motion material is sufficient to allow a fair and just determination of the issues raised without a trial, summary judgment should be granted. If not, the motion should, of course, be dismissed: Fontenelle v. Canada (Attorney General), 2018 ONCA 475 at para. 25. I return to Hryniak. At para. 50, Karakatsanis J. added:

When a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective. Similarly, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve the dispute... [T]he standard for fairness is not whether the procedure is exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.

Analysis

[49] In order to succeed on his claim in negligence against Mr. Mo, Mr. Lee must demonstrate that Mr. Mo fell below the standard of care and that he caused Mr. Lee’s damages. Mr. Lee must also prove the damages he is claiming.

[50] In this case, while I am not making a final determination on the issue, there is certainly plenty of evidence in support of the allegation that Mr. Mo fell below the standard of care expected of a lawyer. A lawyer "is required to bring reasonable care, skill and knowledge to the performance of the professional service he has undertaken": Central & Eastern Trust Co. v. Rafuse, [1986] 2 S.C.R. 147 at 523. Such duties include an obligation to keep a client informed, seek a client's instructions on matters of importance and carry out a client's instructions: Millican v. Tiffin Holdings Ltd. (1964), 49 D.L.R. (2d) 216 (Alta. T.D.), at 219, aff'd [1967] S.C.R. 183. In this case, there is evidence of several instances when Mr. Mo failed to keep Mr. Lee informed and to seek his instructions about the extension of deadlines for closing. Most notably, as addressed further below, Mr. Mo sought to extend the July 24, 2015 date without consulting Mr. Lee about whether such an extension was necessary.

[51] However, even if I were to accept that Mr. Lee's evidence establishes that Mr. Mo fell below the standard of care, I am not satisfied that the record allows me to determine that Mr. Mo caused Mr. Lee's losses and the measure of those losses.

Whether the record supports a finding that Mr. Mo caused Mr. Lee's losses

[52] As indicated above, for the purposes of this motion, Mr. Lee's lawyers focused on Mr. Mo’s conduct following notice from the Builder that it was terminating the APS.

[53] In King Lofts 1 Ltd. v. Emmons, 2013 ONSC 6113 (Sup. Ct.), at para. 78, aff'd at 2014 ONCA 215, Perell J. described the test for causation in a solicitor's negligence case as follows:

For a lawyer to be liable for professional negligence, it is not enough that he or she breached a duty of care; it also must be proven that the misconduct caused the client's loss and that the client has suffered damages as a result. The general test for causation is the "but for" test on a balance of probabilities, and, thus, the plaintiff client must show that the injury would not have occurred "but for" the negligence of the lawyer: Folland v. Reardon, (2005), 74 O.R. (3d) 688 (C.A.); Royal Laser Corp. v. Rivas, 2012 ONSC 1170; Dinevski v. Snowdon, 2010 ONSC 2715 at paras. 130-131.

[54] Therefore, in order to find that Mr. Mo caused the transaction to fail, Mr. Lee must establish that, but for Mr. Mo’s actions, the deal would have closed. I am not satisfied that the record on the motion allows me to conclude that Mr. Mo's actions caused the Builder to refuse to reopen the transaction. First, it is not clear that the Builder had in fact agreed to extend the closing date to July 24, 2015, and, second, it is not clear that Mr. Lee would have been in a position to obtain a mortgage for the purpose of closing on that date. This conclusion is based on my review of the evidence of what occurred during the relevant time period.

[55] On July 2, 2015, the Builder's lawyer wrote to Mr. Mo advising that the Builder was terminating the APS on the basis of Mr. Lee's default.

[56] After Mr. Lee was advised by Mr. Mo of the Builder's intention to terminate the APS, Mr. Lee's evidence is that he met with Mr. Mo on July 10, 2015, at which point he instructed Mr. Mo to advise the Builder that he was prepared to close on July 24, 2015 "no matter what". Based on this conversation, on July 10, 2015, Mr. Mo wrote to the Builder's lawyer proposing that the closing date be extended to July 24, 2015 and stating that "it is my client's pledge that he will have the mortgage lender meet the new date 'no matter what'".

[57] It appears that there was no immediate response from the Builder. However, on July 20, 2015, the Builder's lawyer responded in an email stating "My client just responded. Is your client still in a position to close on July 24?"

[58] Mr. Mo did not advise Mr. Lee of this communication, but instead wrote to the Builder's lawyer as follows:

I just saw your email. Your client responded only yesterday and seems to have given until 4/24 to 're-close'. That's only 4 days' notice. No, my client cannot close by then, obviously. Since their termination letter on 7/2 the mortgage deal was put on hold-obviously, there was not point to pursue anymore. So my client (actually, my former client - since my retainer with him terminated on 7/2 as well as the consequence of the termination of the contract same day). The mortgage deal needs to be re-activated. As such I suggest 10 days from today. Please respond.

[59] The Builder's lawyer responded three hours later by email, stating "[m]y client has advised that it is not interested in reinstating the agreement of purchase and sale".

[60] Mr. Lee argues that Mr. Mo's email of July 20, 2015 caused him to lose the opportunity to close the deal. However, I am not satisfied that this exchange is sufficient for me to make such a finding. By July 2, 2015, the Builder had terminated the deal because Mr. Lee had not yet obtained the funds for closing. While Mr. Lee takes the position in his materials that he did not have a mortgage in place when the initial closing date was set because of Mr. Mo's negligence, this position was not pressed on the motion nor is the record before me sufficient to make such a finding.

[61] As of July 10, 2015, the Builder had terminated the deal and, at Mr. Lee's request, Mr. Mo tried to revive it. However, the email from the Builder's lawyer of July 20, 2015, is not sufficient to establish that the Builder was still prepared to close the deal. He asked a question about whether Mr. Lee was still in a position to close on July 24th. He did not indicate that his client had in fact agreed to re-open the agreement and extend the closing date to July 24th. Notably, in his response, the Building's lawyer stated that his client was not interested in reinstating the deal; he did not state that his client was no longer interested in reinstating the deal. In my view, more is needed to prove that, but for Mr. Mo's email of July 20th, the Builder would have agreed to close on that date. At trial, one would expect a representative from the Builder and possibly the Builder's lawyer to be called as witnesses for the purpose of giving evidence on this issue.

[62] In any event, I am not satisfied that Mr. Lee has established that he would have been in a position to close the transaction on July 24, 2015. The evidence on the motion of Mr. Lee's efforts to obtain a mortgage is fairly scant. In his affidavit, Mr. Lee states that he obtained a mortgage commitment letter in June and that he would therefore have been able to close by July 24, 2015. However, the communications log which Mr. Lee claims to have obtained from the mortgage broker includes a notation dated July 9, 2015 about a discussion with the lender which says "if there would be any possibility to waive the termination" and a notation from July 10, 2015 that says “Received Cancelling this file from the Lender". This suggest that the lender was no longer prepared to advance the funds after the July 2, 2015 termination, and there is no evidence that the lender would change its position and make the funds available by July 24, 2015 if the Builder had agreed to reopen the deal and set the closing date for July 24, 2015. It is therefore not possible to conclude that Mr. Lee could have closed the deal on July 24, 2015, even if the Builder had been prepared to extend the closing date to that time.

[63] This does not mean that Mr. Lee cannot prove at trial on a balance of probabilities that, but for Mr. Mo's conduct, the deal would have closed. However, the record before me has too many unanswered questions about the Builder's intentions and Mr. Lee's ability to close for me to conclude that there is no genuine issue for trial as to whether Mr. Mo caused Mr. Lee’s losses.

Whether the record allows for the determination of Mr. Mo's damages

[64] If I had been satisfied that Mr. Mo had caused Mr. Lee to lose the opportunity to purchase the condominium, I would have found that the record establishes that Mr. Lee is entitled to damages for the loss of his deposit, the application fee, the legal fees paid to Mr. Mo and the cost of the condominium inspection as there is documentary evidence to support these claims. However, I am not satisfied that the record establishes Mr. Lee’s claim for the loss of the increase in the value of the condominium.

[65] Mr. Lee claims that he should be entitled to the increase in value of the condominium up to the time of judgment or, alternatively, up to the date of the breach. Mr. Lee's lawyers recognize that where a plaintiff claims damages as a result of a failed transaction, the general approach to assessing damages is based on the value of the loss on the date of the breach: Webster v. BCR Construction, 2012 ONSC 2217 (Sup. Ct.), para. 88. The rationale for this principle is that, in the normal course, a plaintiff should be able to use the funds that were to be used for the failed deal for another purchase.

[66] Mr. Lee's lawyers argue that, in this case, Mr. Lee has not been able to make another purchase because the Builder kept the deposit and he therefore has not had access to the cash necessary to use the deposit to buy another condominium. The only evidence in support of this position is a statement by Mr. Lee in his affidavit to the effect that "[a]s my deposits were retained by the Builder when the deal was terminated, I could not afford to pay a deposit for a new condominium…" In my view, this bald statement is insufficient to establish that Mr. Lee could not mitigate his damages. In any event, Mr. Lee's lawyers have not provided any authority in support of their position that damages for the loss of the increase in value of the condominium should be calculated as of the date of judgment.

[67] Regardless of the applicable date for valuing Mr. Lee’s loss based on the increase in the value of the condominium, as indicated above, I have concerns about the admissibility of Mr. Newman’s evidence which purports to quantify this loss.

[68] Under the circumstances, even if I had found that the record on the motion was sufficient to conclude that Mr. Mo caused Mr. Lee's damages, I would not have been satisfied that I could determine the quantum of Mr. Lee's claim based on the increase in value of the condominium.

Next steps in the litigation

[69] As indicated above, I have concluded that this is not an appropriate case for summary judgment. Despite the fact that Mr. Mo did not respond to the motion, judgment can only be granted if the evidence supports the claims advanced. Unfortunately, there are too many deficiencies in the evidence put forward by the plaintiff to allow a fair and just determination of the issues raised without a trial.

[70] In my view, this is not a case that can be remedied through a mini-trial as permitted by Rule 20.04(2.2). The deficiencies in the evidence are not limited to a discrete issue or witness. Rather, throughout these reasons, I have identified a number of areas of deficiency that span the length of the relationship between the parties and that likely require evidence from third parties. This does not mean that the trial will be lengthy, but, in my view, the matter does require a trial.

[71] Given Mr. Mo's conduct and the delay in moving this matter forward, I want to ensure that the plaintiff is able to get a trial date as soon as practicably possible. I expect that the next step in the process will be for the plaintiff’s counsel to set the matter down for trial and to obtain pre-trial and trial dates. However, Rule 20.05 gives me the power to make directions with respect to the conduct of the trial. Given that I did not hear submissions on this issue, I will not speculate as to what directions may be appropriate. However, if the plaintiff or the defendant wishes to obtain directions for the purpose of ensuring that the trial proceeds expeditiously and efficiently, I am prepared to hold a case conference to address these matters. Either party can contact my assistant for the purpose of setting a date for a case conference.

Conclusion

[72] For the reasons above, the plaintiff's motion for summary judgment is dismissed.

[73] Given Mr. Mo's conduct detailed above and that he did not respond to the motion, he is not to be awarded any costs of the motion. In the event that the plaintiff is successful at trial, I leave it to the trial judge to decide whether his costs or a portion of his costs of this motion should be paid by Mr. Mo.

[74] As mentioned above, the parties can contact my assistant to schedule a case conference for the purpose of seeking directions for the trial pursuant to Rule 20.05(2).

FAVREAU J. RELEASED: May 16, 2019

COURT FILE NO.: CV-17567087 DATE: 20190516 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N : NAM DEK LEE Plaintiff – and – JIN MO and EDGE ON TRIANGLE PARK INC. Defendants

REASONS FOR JUDGMENT

FAVREAU J. RELEASED: May 16, 2019