COURT FILE NO.: CV-18-03884
DATE: 20190919
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: RAJDEEP DHATT and KAMAL SIDHU, Plaintiffs
AND
KIRANDEEP KAUR GHAG and KAMALJIT SINGH, Defendants
BEFORE: Daley, RSJ.
COUNSEL: Paul H. Mand, for the Plaintiffs
Yoginder Gulia, for the Defendants
HEARD: August 29, 2019
E N D O R S E M E N T
[1] The plaintiffs in this Rule 76 Simplified Procedure Action moved for summary judgment.
[2] The action arises from a failed real estate transaction wherein the plaintiffs were the vendors and the defendants were the purchasers.
[3] The parties entered into an agreement of purchase and sale on September 25, 2017. The defendants agreed to purchase the subject property by way of a $20,000 deposit at the time of acceptance of the offer by the plaintiffs, with the balance remaining of $1,080,000 to be paid to the plaintiffs by the defendants on or before the closing date.
[4] The closing of the transaction was set for January 11, 2018. The evidence is that the plaintiffs were ready willing and able to complete the transaction in accordance with the agreement of purchase and sale on the set closing date, however the defendants did not tender the balance of the monies owing on closing date or on two extensions of the original closing date.
[5] As a result of the defendant’s failure to close the transaction, the plaintiffs entered into another agreement of purchase and sale with a new purchaser in the amount of $1,077,000 with a closing date of August 29, 2018.
[6] In this action, the plaintiffs seek damages based on the difference in the closing price as between the agreement of purchase sale entered into with the defendants, and the price in the sale transaction, which ultimately closed. They also seek reimbursement with respect to interest, property taxes, utilities, maintenance, real estate commission and legal fees.
[7] The defendants responded to the motion for summary judgment and filed an affidavit on behalf of the defendant, Kirandeep Kaur Ghag. In this affidavit, the deponent sets out the history of the purchase transaction with the plaintiffs as well as details regarding the defendants’ efforts at engaging in settlement discussions with the plaintiffs.
[8] Nowhere in the evidence submitted on behalf of the defendants do they assert that they complied with the terms of the agreement of purchase and sale they entered into with the plaintiffs. No evidence is offered by the defendants that would in any way support a position that they were not in breach of the agreement of purchase and sale for failing to have closed on the date set for closing and paid the balance of the purchase price.
[9] The defendants’ evidence with respect to their liability in respect of the alleged breach of the agreement of purchase and sale solely addresses the issue of what the damages were sustained by the plaintiffs as a result of their breach. The defendants called for an opportunity to obtain full productions from the plaintiffs and to conduct examinations or cross-examinations of them.
[10] The defendants did offer evidence regarding the quantum of damages that may have been sustained by the plaintiffs.
[11] As to the resale of the property, the defendants offered evidence that the new purchaser made an offer on May 8, 2018 in the amount of $1,092,500, which offer was subsequently lowered on May 17, 2018 to $1,077,500. It was urged on behalf of the defendants that the plaintiffs failed to offer evidence as to why the price was reduced.
[12] During his submissions on behalf of the defendants, counsel fairly acknowledged that they did not have a defence to the alleged breach of the agreement of purchase and sale, however he urged that there were several triable issues with respect to the matter of damages to which the plaintiffs may be entitled.
[13] During his submissions on behalf of the plaintiffs, counsel also acknowledged that the evidence submitted on the summary judgment motion on behalf of the plaintiffs with respect to damages contained numerous errors and miscalculations. The evidentiary record with respect to the plaintiffs’ possible entitlement to damages was wholly inadequate and confusing to say the least.
[14] A party responding to a summary judgment motion must put their best foot forward in terms of adducing evidence that will foreclose the granting of the summary judgment being sought.
[15] Rule 20.04 (2) (a) directs that the court “shall grant summary judgment if…the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.” This subsection of the Rule must be read in combination with Rule 20.04 (2.1) which provides: “In determining under clause (2) (a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interests of justice for such powers to be exercised only at trial: (1) weighing the evidence; (2) evaluating the credibility of the deponent; (3) drawing any reasonable inference from the evidence.”
[16] In the present case, the defendants have not tendered any evidence disputing liability for breach of the contract entered into in the form of the agreement of purchase and sale. In fact, counsel for the defendants disclosed what would otherwise be correspondence and communication covered by settlement privilege that demonstrated that the defendants acknowledged liability to the plaintiffs, however disputed the quantum of damages occasioned by the breach.
[17] It was asserted by the defendants in the affidavit material submitted on their behalf that they would have been ready willing and able to close the transaction, however the evidence is uncontradicted that they failed to close on an extended closing date of March 9, 2018, and again on a further occasion on March 16, 2019.
[18] It is clear that the defendants do not have a defence to the claim of the breach of the agreement of purchase and sale and that their position in response to the statement of claim and this summary judgment motion is entirely with respect to the proper measure of damages sustained by the plaintiffs as a result of their breach.
[19] While the Court of Appeal has stated that a high degree of caution should be exercised when considering a motion for partial summary judgment, I have concluded that this is an appropriate case for the granting of a judgment in favour of the plaintiffs on liability with the matter of damages, including mitigation, only proceeding to trial.
[20] In its decision in Buttera v. Chown, Cairns LLP, 2017 ONCA 783, the Court of Appeal stated that there are four potential problems with the granting of partial summary judgment namely:
(1) Delay – as a partial summary judgment will often only resolve one element of the action and only increase fees and delay if the motion is appealed;
(2) Expense – motion for partial summary judgment may be very expensive;
(3) Wasted judicial resources – judicial time spent on comprehensive reasons for decision that do not dispose of an action may be wasted time;
(4) Inconsistent findings – the motion record on a partial summary judgment motion may not be as fulsome as the record at trial and as such there is a risk of possible inconsistent findings.
[21] This case, in my view was suitable to consideration as a summary judgment motion and I have further concluded that a partial summary judgment granted in this case does not give rise to the concerns outlined above. Having this matter adjudicated as to damages will not cause significant delay. Further the cost of the summary judgment motion has been modest and involved less than one hour of submissions in court and very basic evidentiary material filed. Similarly, the judicial resources needed to consider this motion were modest in relative terms. Finally, as the issues requiring trial are entirely related to the quantification of proper damages that flow from the undisputed breach of the agreement purchase and sale, there is little or no likelihood that there will be any inconsistent findings on the trial relating to damages.
[22] Furthermore, given that this is a Rule 76 Simplified Procedure Action, there is further economy in proceeding with this matter to trial simply on the issue of damages.
[23] In the result, I have determined that this is a proper case for partial summary judgment and I find that the defendants did breach the terms of the agreement of purchase and sale by the plaintiffs by their failure to close the transaction as required by that agreement, and further they are as a result liable for all proper damages flowing from that breach.
[24] The evidence as to damages submitted by the plaintiffs was fraught with errors and incomplete and as well the evidence with respect to mitigation of damages was also confusing and uncertain. I have therefore found that there is an issue requiring a trial, namely with respect to the plaintiffs’ damages flowing from the defendants’ breach of contract.
[25] I have therefore concluded that this action must proceed to trial on the issue of damages and both counsel agreed during submissions that if I were to make such an order that the most economical way in which to conduct this trial is as a summary trial in accordance with Rule 76.12.
[26] From the record submitted it is unclear as to whether all of the required steps regarding the conduct of a simplified procedure action under Rule 76 have been complied with including the service of affidavits of documents and so forth.
[27] The parties are hereby ordered to comply with all terms and conditions of Rule 76 with respect to the conduct of simplified procedure actions prior to trial.
[28] In due course a pretrial conference shall be scheduled and conducted in accordance with Rule 76.10.
[29] Further, the matter shall proceed to trial as a summary trial and the presentation of evidence shall be in accordance with the terms and time limits set forth in that rule.
[30] With respect to costs on this motion, counsel for the plaintiff shall serve and file submissions of costs of no longer than three pages, along with a costs outline within 15 days. Similar cost submissions shall be served and filed by counsel for the defendants within 15 days thereafter. No reply submissions shall be filed.
Daley, RSJ
DATE: September 19, 2019
COURT FILE NO.: CV-18-03884
DATE: 20190919
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: RAJDEEP DHATT and KAMAL SIDHU, Plaintiffs
AND
KIRANDEEP KAUR GHAG and KAMALJIT SINGH, Defendants
BEFORE: Daley, J.
COUNSEL: Paul H. Mand, for the Plaintiffs
Yoginder Gulia, for the Defendants
ENDORSEMENT
Daley, RSJ.
DATE: September 19, 2019