COURT FILE NO.: CV-16-5481-00 DATE: 20190628

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Tamika Wilson and Marcus Brito Plaintiffs/Defendants by Counterclaim

Counsel: Dalkeith Palmer, for the Plaintiffs/Defendants by Counterclaim

- and -

Upperview Baldwin Inc. and 2287531 Ontario Inc. Defendants/Plaintiffs by Counterclaim

Counsel: Christopher Statham, for the Defendants/Plaintiff by Counterclaim

HEARD: September 26, 2018 and October 2, 2018

REASONS FOR JUDGMENT

Kumaranayake J.

OVERVIEW:

[1] Tamika Wilson and Marcus Brito are married and have three children. Ms. Wilson is a teacher and Mr. Brito works in the financial industry. They decided to buy their first home and in 2015, they ultimately found a house which they wished to purchase. The house was being built by Upperview Baldwin Inc. (“Upperview”) in Whitby, in an area known as the Baldwin Woods Subdivision.

[2] Although Upperview had bought, in March 2014, 24 lots in this subdivision from 2287531 Ontario Inc., it was agreed that the numbered company would remain as the registered owner of each lot until Upperview sold each lot to another purchaser.

[3] On September 11, 2015, Ms. Wilson, Mr. Brito, and Upperview entered into an Agreement of Purchase and Sale (“APS”) for the purchase of the home being built by Upperview. The purchase price was $709,387 and Ms. Wilson and Mr. Brito paid a deposit of $40,000. The sale of the property was initially to close on August 10, 2016. However, the parties agreed to extend the closing date several times and finally, it was supposed to close on November 10, 2016. It did not.

[4] On November 10, 2016, Ms. Wilson and Mr. Brito requested a further extension as they had not received the funds from the bank extending a mortgage to them. They asked for the closing to take place on November 14, 2016. However, Upperview did not agree to this last request to extend the closing date and the sale was not completed.

[5] Ms. Wilson and Mr. Brito brought an action against Upperview and the numbered company. They say that Upperview did not act in good faith when it did not agree to the last request for an extension. Further, they claim that Upperview was aware and agreed that the bank Ms. Wilson and Mr. Brito were obtaining a mortgage from would have to complete an appraisal when the property was 97% or 98% complete before the funds would be released. They are asking for specific performance to compel Upperview to complete the transaction.

[6] Upperview and the numbered company have defended this action with a joint defence. They deny that Upperview acted in bad faith and they maintain that Upperview was ready to close on November 10, 2016, but Ms. Wilson and Mr. Brito were not ready to close on that date. They say that the APS was not conditional on Ms. Wilson and Mr. Brito obtaining financing. They have also brought a counterclaim in which they seek a declaration that Upperview can treat the APS as at an end and keep the $40,000 deposit.

[7] Upperview and the numbered company have brought this motion for summary judgment and request that Ms. Wilson and Mr. Brito’s action be dismissed and that the counterclaim be granted. They also seek to vacate an Order made on February 2, 2017, which was registered on title to the property and which limits Upperview’s ability to deal with the property.

ISSUES:

[8] The issues before me are:

a) Is this an appropriate case for summary judgment? b) Did Upperview have an obligation to agree to extend the closing date to November 14, 2016? c) Was there an implied term in the APS that the closing was subject to Ms. Wilson and Mr. Brito having financing in place? d) Is the property unique? e) Is Upperview entitled to a declaration that that it can treat the APS, dated September 11, 2015, as at an end? f) Has the deposit of $40,000 and all interest accrued been forfeited by Ms. Wilson and Mr. Brito? If so, is Upperview entitled to keep this deposit and the accrued interest? g) Should order of Bielby J., dated February 2, 2017, be vacated?

[9] For the reasons outlined below, I grant Upperview’s motion for summary judgment.

a) Is this an appropriate case for summary judgment?

[10] Yes, this is an appropriate case for summary judgment. Ms. Wilson and Mr. Brito maintain that there are triable issues and complexities that require a full trial l. I disagree. There is no genuine issue for trial and therefore summary judgment is appropriate in this case.

[11] Rule 20 of the Rules of Civil Procedure govern motions for summary judgment. Upperview is entitled to bring this motion as the pleadings are closed: see Rule 20.01(1) to (3).

[12] On a motion for summary judgment, I am required to grant the motion if I find that there is no genuine issue for trial. This is not discretionary: see Rule 20.04(2)(a).

[13] In determining whether there is a genuine issue for trial, I may weigh the evidence, evaluate the credibility of a deponent, and draw any reasonable inference from the evidence unless it is in the interests of justice that these powers are only used at a trial: see Rule 20.04(2.1). I am also guided by the Supreme Court of Canada’s decision in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, 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 on a motion for summary judgement. This will be the case when the process (1) allows the judge to make the necessary finding 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.

[14] The party responding to a motion for summary judgment may not rest on bald statements, mere allegations, or a self-serving affidavit. It must provide supporting evidence for its position and this evidence must raise a genuine issue for trial once the moving party establishes that there is no genuine issue for trial: see Rule 20.02.

[15] On a motion for summary judgment, both parties must put their best foot forward and provide a complete evidentiary record. I cannot speculate about evidence that is not in the evidentiary record before me. The Court of Appeal for Ontario summarizes this point in Chernet v. RBC General Insurance Company, 2017 ONCA 337, at para. 12:

It is trite law that both parties on a summary judgement motion are required to put their best foot forward. Summary judgment motions are decided by the evidence of the facts and by inferences drawn from those facts. Not by speculation about the facts.

I must treat the evidence before me as what would be before a trial judge.

[16] On this motion for summary judgment, there have been affidavits filed by Mark Chan, one of the principals of Upperview, and by Ms. Wilson. Much of the evidence before me is documentary evidence: the APS, correspondence between the lawyers acting on the real estate transaction, emails between the parties, and other documents related to the property (i.e. occupancy permit, pre-delivery inspection report, and appraisal reports). Both Mr. Chan and Ms. Wilson refer to Marco Tucciarone (the other principal of Upperview), Farrah Simpson (also part of Upperview), and Mr. Brito in their respective affidavits, however, none of these three individuals have filed an affidavit for this motion for summary judgment.

[17] Therefore, given the guiding principles outlined above, I find that based on the evidentiary record, there is no genuine issue for trial. Further, I find that this is not a case that requires a trial to understand its complexities. This is not a complex case and by granting summary judgment, a fair and just result is obtained in a timely, affordable and proportionate manner: see Hryniak, at para 28.

b) Did Upperview have an obligation to agree to extend the closing date to November 14, 2016?

[18] Upperview was not obligated to agree to a further extension of the closing to November 14, 2016, and in making this decision, Upperview did not act in bad faith. Ms. Wilson and Mr. Brito assert that Upperview did not meet its obligations under the APS. They called into question the occupancy permit that was issued, whether there was running water, and whether the house was substantially complete.

[19] Parties to a contract have an obligation to “perform their contractual duties honestly and reasonably and not capriciously or arbitrarily.”: see Bhasin v. Hrynew, 2014 SCC 71, [2014] 3 S.C.R. 494, at para. 63. The Supreme Court of Canada also found that a general duty of honesty “does not impose a duty of loyalty or of disclosure or require a party to forego advantages flowing from the contract; it is a simple requirement not to lie or mislead the other party about one’s contractual performance.”: see Bhasin, at para. 73.

[20] Upperview, Ms. Wilson, and Mr. Brito signed the APS on September 11, 2015. The APS related to the property with the municipal address of 8 Armour Street, Whitby. At that time, the house had not been built and the closing date was August 10, 2016. There were four agreed upon extensions of the closing date: October 24, 2016; November 8, 2016; November 9, 2016; and November 10, 2016. The first two extensions were requested by Upperview and the last two extensions were requested by Ms. Wilson and Mr. Brito.

[21] The APS set out the obligations of Upperview, Ms. Wilson and Mr. Brito. There are several clauses that are important to note. It contained the following provisions:

a) It was conditional on Ms. Wilson and Mr. Brito’s lawyer approving the APS. This condition was fulfilled and a Notice of Fulfillment of Condition was signed on September 23, 2015; b) The transaction would be completed on the closing date without any holdbacks provided that the house was substantially complete – “when the interior work has been substantially finished to permit the occupancy, notwithstanding that there remains grading or landscaping or other outside (or inside) work to be completed” (section 3 of APS); c) Time was of the essence (section 11); d) When Ms. Wilson and Mr. Brito would be in default and what would happen to the deposit of $40,000 (section 15); and e) The APS covered all aspects of the sale and it was “agreed that there is no representation, warranty, collateral agreement or condition affecting this Agreement of the Real Property or supported hereby other than as expressed herein in writing.” (section 24 of APS).

[22] As the home was a new build, a pre-delivery inspection (PDI) was required. This took place on November 7, 2016. Upperview maintains that on the date of the PDI, the home was substantially complete. There were 26 items noted on the PDI report to be remedied. These were set out in the PDI Form signed by Ms. Wilson, Mr. Brito and Mr. M. Tucciarone. These items included, for example, caulking, finishing baseboards, touching up paint, installing handles, installing countertops. It is not disputed that Mr. M. Tucciarone stated that these items would be remedied that day or the next day, November 8, 2016, the scheduled date for closing. Upperview also relies on the fact that as a new home, it is subject to a Tarion warranty.

[23] Ms. Wilson’s evidence is that the bank’s appraisal could not be completed on November 7, 2016, because the home was only 94% complete.

[24] On November 8, 2016, an occupancy inspection was completed and an Occupancy Permit was issued by the Town of Whitby. The Occupancy Permit indicated that, at the time of inspection, the “dwelling unit was not complete.” Further, it indicated that the building permit would not close until a final interior plumbing inspection was completed. However, and in bold, the Occupancy Permit indicated that “Permission to occupy is hereby granted.”

[25] It is not disputed that Ms. Wilson attended at the property on November 8, 2016. She brought her children with her. Mr. M. Tucciarone was also present. It is also not disputed that on that day, Ms. Wilson did not turn on any taps and therefore, she did not know if there was running water, despite her evidence that she was concerned that there was no running water.

[26] On November 8, 2016, Ms. Wilson and Mr. Brito’s real estate lawyer had asked Upperview’s real estate lawyer if the transaction would be completed on that day. Upperview’s lawyer responded on November 8, 2016, and confirmed that Upperview did expect to close that day. Further, he indicated that “this transaction is not conditional upon the Buyer’s lender appraising the property. If your Client requires an extension, they must request same in writing and we will respond with our extension terms.”

[27] The bank’s appraiser attended on November 8, 2016, but according to Ms. Wilson, indicated that not much had changed since the previous day. There is no direct evidence from the appraiser.

[28] Through their real estate lawyer, Ms. Wilson and Mr. Brito requested an extension of the closing date to November 9, 2016. Upperview’s real estate lawyer responded to this request on November 8, 2016, confirming the terms of the extension, which basically amounted to how much more Ms. Wilson and Mr. Brito would have to pay.

[29] In a second letter, sent on November 8, 2016, Upperview’s real estate lawyer informed Ms. Wilson and Mr. Brito’s real estate lawyer that Upperview was ready, willing and able to complete the transaction. It, however, agreed to the extension to November 9, 2016. Further, Upperview’s real estate lawyer stated that if the transaction was not completed on November 9, 2016, Upperview would “treat this transaction as at an end and terminated and shall reserve their legal rights and remedies going forward.” He also forwarded a copy of the Occupancy Permit to Ms. Wilson and Mr. Brito’s real estate lawyer.

[30] On November 9, 2016, Ms. Wilson and Mr. Brito’s real estate lawyer confirmed that they were seeking a further one day extension on the basis that the property was not complete and the appraisal had not been done. Again through its real estate lawyer, Upperview agreed to this request for a further extension to November 10, 2016.

[31] The bank’s appraiser completed the appraisal and a report, dated November 9, 2016, and provided to the bank on November 10, 2016. However, the bank indicated that it would not be able to process it and release the funds on that day. According to Ms. Wilson, the bank would not be able to release the funds until November 14, 2016, the next business day (the bank was closed on November 11, 2016).

[32] Ms. Wilson and Mr. Brito argue that Upperview had not met its obligations and it was not ready to close on November 8, 9, or 10, 2016. It was submitted in argument that Ms. Wilson did not have proof of when the occupancy permit was sent to Upperview. It is not clear to me what turns on this as Upperview’s real estate lawyer had already sent a copy of the Occupancy Permit to Ms. Wilson and Mr. Brito’s real estate lawyer on November 8, 2016.

[33] It was also submitted that because a final plumbing inspection had not been completed, the home was not ready. Ms. Wilson asks me to infer that there was no running water on November 8, 2016. I cannot make either of these inferences. The Occupation permit indicates that permission had been granted to occupy the house. Further, the evidence does not permit me to infer that there was no running water on November 8, 2016.

[34] I find that Upperview was willing and ready to close the transaction on November 8, 2016, November 9, 2016 and November 10, 2016. It was Ms. Wilson and Mr. Brito who were not able to close the transaction.

[35] The APS specifically addresses that the transaction should close when the home is substantially complete. It also provides in section 3 of the APS that substantially complete does not mean 100% complete.

[36] The provisions of the APS govern the sale and there is no reference in the APS that substantially complete means that the house was 97% or 98% complete. Upperview is not a party to the negotiations between Ms. Wilson and Mr. Brito and the bank. Further, the APS was not subject to a financing condition.

[37] On November 8, 2016, Upperview’s lawyer put Ms. Wilson and Mr. Brito’s lawyer on notice that if the transaction did not close on November 9, 2016, it would treat the transaction as terminated. Upperview did not have to agree to the extension to November 10, 2016, but it did. It did not represent that a further extension to November 14, 2016 would be granted only to then withdraw its consent. The relationship between the parties was becoming strained and Upperview was entitled to have finality.

[38] Upperview did not lie or mislead. It did not act in an arbitrary or capricious manner.

[39] Therefore, I find that that Upperview was not obligated to agree to a further extension of the closing date to November 14, 2016, and that in making this decision, Upperview did not act in bad faith. Upperview was ready to close on November 8, 2016; November 9, 2016; and November 10, 2016. Ms. Wilson and Mr. Brito were not ready to close on any of those dates.

c) Was there an implied term in the APS that the closing was subject to Ms. Wilson and Mr. Brito having financing in place?

[40] Contrary to what Ms. Wilson and Mr. Brito maintain, there was no implied term or agreement with Upperview that Ms. Wilson and Mr. Brito’s bank would conduct an appraisal when the property was 97% or 98% complete or that the closing would not take place until after this appraisal occurred and the funds for closing had been released by their bank.

[41] While the court can look to surrounding circumstances when interpreting contracts, “courts cannot use them to deviate from the text such that the court effectively creates a new agreement”: see Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633, at para. 57.

[42] The Supreme Court of Canada also notes at para. 59 of Sattva that:

The parole evidence rule precludes admission of evidence outside the words of the written contract that would add to, subtract from, vary, or contradict a contract that has been wholly reduced to writing. To this end, the rule precludes, among other things, evidence of the subjective intentions of the parties. The purpose of the parol evidence rule is primarily to achieve finality and certainty in contractual obligations, and secondarily to hamper a party’s ability to use fabricated or unreliable evidence to attack a written contract. [Citations omitted.]

[43] The APS was not conditional on financing or conditional on the lender being able to complete an appraisal.

[44] Ms. Wilson’s evidence was that Mr. Chan met with Ms. Wilson’s father, who was a mortgage broker, and that Mr. Chan was told that her father would be arranging the mortgage. Ms. Wilson’s evidence was that through conversations with Mr. Chan and Mr. M. Tucciarone and emails to Mr. Chan on October 27, 2016, and November 8, 2016, Upperview knew that Ms. Wilson and Mr. Brito’s ability to close depended on the bank obtaining a satisfactory appraisal of the house when it was 98% completed.

[45] There are two problems with this evidence. When she sent the email on October 27, 2016, Ms. Wilson sent it to Mr. Brito, not Mr. Chan. There is no evidence before me that Mr. Brito forwarded that email to Mr. Chan. Second, Mr. Chan states that he did not receive the email of November 8, 2016, as it was sent to an incorrect email address. Ms. Wilson maintains that she has successfully sent emails to Mr. Chan at markchan@upperviewhomes.com, but yet she did not produce any of these purported emails.

[46] Further, Ms. Wilson asserts that Mr. Chan and Mr. M. Tucciarone agreed to cooperate in order for Ms. Wilson and Mr. Brito to obtain the mortgage. Ms. Wilson relies on the following portion of section 29(c) APS:

Any financial institution(s) providing (or wishing to provide) mortgage, financing, banking and/or other financial or related services to the Purchasers and/or members of the Purchasers’ family, including without limitation, the Vendor’s construction lender(s) … or the financing of the Purchasers’ acquisition of the Property from the Vendor.

[47] Ms. Wilson deposed in her affidavit that the “foregoing excerpt pertains to a purchaser giving consent to the vendor to collect personal information for its own use. I believe that the foregoing shows that Upperview at all material times anticipated that most if not all purchasers would be arranging financing through a lending institution.”

[48] Section 29 of the APS relates to the consent by Ms. Wilson and Mr. Brito to Upperview collecting their personal information and sharing it with a variety of institutions, including lending institutions. While it may be correct that Upperview contemplated the need to share personal information of purchasers, and this may be an acknowledgement that purchasers needed to arrange financing, an agreement conditional on financing does not flow from this provision.

[49] The bank’s appraiser requested access to the home for October 27, 2016, but was told that there could not be access until November 7, 2016, and that the appraiser was aware that the closing was scheduled for November 8, 2016. The appraiser attended on November 7 and November 8, 2016. According to Ms. Wilson, on November 8, 2016, the home was only 94% complete and not much had changed. The appraiser attended again on November 9, 2016, and was able to complete the necessary appraisal.

[50] The APS was only conditional on the purchasers’ lawyer approving the APS. Ms. Wilson and Mr. Brito retained counsel and this condition was satisfied A notice of fulfillment dated September 23, 2015 was delivered. If Ms. Wilson and Mr. Brito required that the appraisal be completed and the bank extend funds for closing, then the APS should have been made conditional on these terms. There were no such conditions.

[51] The only condition was that their lawyer had to approve the APS. Their lawyer did approve it and no changes were requested.

[52] I accept that Mr. Chan and Mr. M. Tucciarone agreed to cooperate. However, I do not accept that this meant that they would ensure that financing would be in place for Ms. Wilson and Mr. Brito. I find that the agreement to cooperate was an agreement to permit the appraiser access to the home. This agreement did not need to be in writing as it did not change the terms of the APS.

[53] As set out in Section 11 of the APS, there “is no representation, warranty, or collateral agreement affecting this Agreement of the Dwelling of the Real Property, except as set forth herein in writing and this Agreement shall not be amended except in writing.” Section 24 of the APS has similar wording.

[54] Other than the APS, there is no further agreement in writing to support the claim that Upperview agreed that the closing would not proceed until the financing was in place. If accepted Ms. Wilson’s evidence, then I would be imposing a term into the APS. I would be changing the APS, which pursuant to Sattva, I should not do. The agreement between the parties is wholly captured in the APS.

d) Is the property unique?

[55] The property is not unique and therefore Ms. Wilson and Mr. Brito are not entitled to specific performance or damages. Further, Upperview did not breach the APS, they did.

[56] The Supreme Court of Canada provides guidance for when specific performance should be granted – there must be evidence that the property is unique to the extent that its substitute would not be readily available: see Semelhago v. Paramadevan, [1996] 2 S.C.R. 415, at para. 20.

[57] The onus is on the party seeking this remedy to prove that the property is unique. Further, uniqueness means “that the property has a quality (or qualities) that makes it especially suitable for the proposed use that cannot be reasonably duplicated elsewhere….the plaintiff must show that the property has distinctive features that make an award of damages inadequate.”: see John E. Dodge Holdings Ltd. v. 805062 Ontario Ltd., [2001] 56 O.R. (3d) 341 (Sup. Ct), at paras. 57, 60, upheld on appeal, [2003] 63 O.R. (3d) 304 (C.A.).

[58] Ms. Wilson and Mr. Brito rely on Justice Strathy’s finding that “if the late-tendering party can show that the delay is attributable to the other party, their right to claim specific performance is preserved”: see Walker v. Jones, [2008] 298 D.L.R. (4th) 344, at p. 375.

[59] Ms. Wilson’s evidence is that the property is unique for them because:

a) It has semi-custom features; b) It is in close proximity to the children’s grandparents and this is important for the children to visit their grandparents and for the grandparents to take care of the children while Ms. Wilson and Mr. Brito are at work; c) It is a corner lot and safer for their young children; d) It is close to a park; e) It has a mixture of rural and city features; f) It is one of the few lots in the subdivision that is 50 feet; g) It is close to a school; and h) It is one of the few corner lots that has large windows to allow natural light.

[60] I do not find that Ms. Wilson and Mr. Brito have established that the property is unique. The factors which have been identified are somewhat generic and not remarkable. Further, unlike the case before me, in Semelhago and John E. Dodge Holdings, the breach of the APS was by the vendor. Here, it was Ms. Wilson and Mr. Brito who breached the APS. Therefore, in my view, Walker does not assist Ms. Wilson and Mr. Brito as they have not established that the delay was caused by Upperview. As outlined above, I cannot find that Upperview is responsible for Ms. Wilson and Mr. Brito’s failure to be ready to close on November 10, 2016.

[61] I am not satisfied that Ms. Wilson and Mr. Brito have established that they are entitled to specific performance.

e) Is Upperview entitled to a declaration that it can treat the APS, dated September 11, 2015, as at an end?

[62] Upperview is entitled to treat the APS, dated September 11, 2015, as being at an end. As outlined above, I have found that Upperview fulfilled its obligations pursuant to the APS, was ready to close on November 10, 2016, acted in good faith, and had no obligation to agree to a further extension of the closing to November 14, 2016. In contrast, Ms. Wilson and Mr. Brito were not ready to close on November 8, 9, or 10, 2016. Further, I have held that the property is not unique and therefore Ms. Wilson and Mr. Brito are not entitled to specific performance or damages flowing from the failed closing.

f) Has the deposit of $40,000 and all interest accrued been forfeited by Ms. Wilson and Mr. Brito? If so, is Upperview entitled to keep this deposit and the accrued interest?

[63] Upperview is entitled to keep the deposit of $40,000 and the accrued interest.

[64] If the APS does not provide otherwise, the deposit if forfeited when the purchaser defaults: see J. E. R. Harrison Estates Ltd. v. 1205458 Ontario Ltd., [2003] 172 O.A.C. 238 (C.A.), at para. 20; and Tibor Urac v. Mohamed Ferawana, 2017 ONSC 385, at para. 32.

[65] In the matter before me, the APS does address the deposit upon default. Section 15.a of the APS outlines three instances when Ms. Wilson and Mr. Brito would be in default of the APS:

i. upon the non-payment of all or any portion of the Purchase Price, or any other sum due herein; ii. upon a breach of, or failure in the performance of observance of any covenant, term, agreement, restriction, stipulation or provision of this Agreement to be performed and/or observed by the Purchaser; iii. upon any lien, execution or encumbrance arising from any action or default whatsoever of the Purchaser being charged against or affecting the Real Property.

[66] Further, section 15.c of the APS states that if Ms. Wilson and Mr. Brito default, all monies paid by them, including the deposit and any accrued interest, “shall be forfeited to the Vendor as liquidated damages and not as a penalty.” I have already determined that Ms. Wilson and Mr. Brito were not ready to close on November 10, 2016. Therefore, they were in default under the APS and the deposit is forfeited.

[67] I am not satisfied that Ms. Wilson and Mr. Brito provided evidence that forfeiture of the deposit is disproportionate or unconscionable.

[68] Therefore, Upperview is entitled to retain the deposit of $40,000 as well as the interest that has accrued on the deposit.

g) Should the order of Bielby J., dated February 2, 2017, be vacated?

[69] This order should be vacated.

[70] After the pleadings were closed, Ms. Wilson and Mr. Brito brought a motion for leave to issue a certificate of pending litigation for the property. The motion came before Bielby J. on February 2, 2017. On consent, the following order was made:

THIS COURT ORDERS THAT the Defendant, Upperview Baldwin Inc., and any of its related companies, including 2287531 Ontario Inc. shall not transfer, charge or otherwise grant any interest to any party, other than in the ordinary course of business which may pertain to any lien rights, easements, etc., that may be necessary to complete any unfinished work on the land and premises legally described below as:

LOT 9, PLAN 40M2562; TOWN OF WHITBY, And, municipally known as 8 Armour Street, Whitby, Ontario

THIS COURT FURTHER ORDERS that this Order shall remain in effect until further Order of this Court, or the final disposition of the within motion.

[71] The motion for the certificate of pending litigation was adjourned to a long motion date of July 17, 2017, but then adjourned indefinitely. The Order of Bielby J. was registered on title to the property.

[72] The parties were in agreement that regardless of the disposition of the motion for summary, the Order of Bielby J. dated February 2, 2017, should be vacated and that the registration of this Order should be removed from title to the property.

ORDER

[73] Having carefully considered the materials filed and the submissions of counsel and for the reasons outlined above, I grant the motion for summary judgment and make the following order:

a) Ms. Wilson and Mr. Brito’s action is dismissed. b) Upperview Baldwin Inc. is entitled to treat the Agreement of Purchase and Sale, dated September 11, 2015, as at end. c) The deposit of $40,000.00 paid by Ms. Wilson and Mr. Brito is forfeited to Upperview Baldwin Inc. This shall include all accrued interest. d) The Order of Bielby J, dated February 2, 2017, is vacated and the registration of that Order on title shall also be vacated. e) The Defendants are presumptively entitled to costs. If the parties cannot resolve the issue of costs, then the timetable below shall be followed:

a. On or before July 30, 2019, the Defendants shall serve and file written submissions in 12-point font of no more than three pages. b. On or before August 20, 2019, the Plaintiffs shall serve and file written submissions in 12-point font of no more than three pages. c. There shall be no reply written submissions. d. In addition to their written submissions, the parties shall also file bills of costs and any offers to settle that are being relied upon with their respective written submissions.

Kumaranayake J.

Released: June 28, 2019