Hannivan v. Wasi, 2020 ONSC 1060

COURT FILE NO.: 3578/17 DATE: 2020 02 20 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Paul J. Hannivan and Pamela J. Hannivan, Plaintiffs (Moving Parties) AND: Muhammad Wasi and Re/Max Aboutowne Realty Corp., Defendants

AND BETWEEN: RE: Muhammad Wasi, Plaintiff by Counterclaim (Responding Party) AND: Paul J. Hannivan and Pamela J. Hannivan, Defendants by Counterclaim

BEFORE: Conlan J.

COUNSEL: Mark A. De Sanctis, Counsel for Paul J. Hannivan and Pamela J. Hannivan, Plaintiffs (Moving Parties and Defendants by Counterclaim) Dheeraj Bhatia, Counsel for Muhammad Wasi, Defendant (Plaintiff by Counterclaim and Responding Party)

HEARD: February 10, 2020

ENDORSEMENT – MOTION FOR SUMMARY JUDGMENT

I. Introduction

[1] The Plaintiffs, Paul J. Hannivan and Pamela J. Hannivan (“Hannivans”), have sued the Defendant, Muhammad Wasi (“Wasi”), with regard to a failed real estate transaction.

[2] On March 20, 2017, the Hannivans and Wasi executed an Agreement of Purchase and Sale (“APS”) whereby the Hannivans would sell to Wasi a residential property located at 233 Sabel Street in Oakville, Ontario. Both sides had separate real estate agents working for them throughout the process.

[3] Wasi is a certified real estate agent as well and has been since sometime in 2017.

[4] The purchase price was $1,155,000.00. Wasi paid a $50,000.00 deposit. That money is being held by the listing brokerage, which explains why there is a second Defendant in the action, which party had no involvement in the current Motion before the Court.

[5] The transaction was set to close on August 18, 2017. The date to complete all requisitions was August 1, 2017 at 6:00 p.m. No requisitions were submitted on behalf of Wasi before that deadline expired.

[6] On August 17, 2017, at 5:41 p.m., the day before the closing date, counsel for Wasi sent correspondence to the Hannivans’ real estate lawyer. That correspondence was lengthy and set out numerous concerns about the transaction, including but not limited to the Hannivans’ alleged failure to comply with a term of the APS that dealt with a survey of the property. That term, found in Schedule A to the APS (see page 44 of the Motion Record of the Moving Plaintiffs), is set out below.

The Seller agrees to provide, at the Seller’s own expense, not later than two weeks, an existing survey of said property showing the current location of all structures, buildings, fences, improvements, easements, rights-of-way, and encroachments affecting said property. The Seller will further deliver, on completion, a declaration confirming that there have been no additions to the structures, buildings, fences, and improvements on the property since the date of this survey.

[7] The August 17, 2017 correspondence from Wasi’s lawyer stated, in part, that the deal was “null and void” and demanded that the deposit paid by Wasi be returned to him in full.

[8] On August 18, 2017, the solicitor acting for the Hannivans responded by stating that Wasi had breached the APS and, as such, he had forfeited the $50,000.00 deposit.

[9] The transaction did not close on August 18, 2017, and it never closed. Rather, the Hannivans relisted the property for sale and, in relatively short order, sold it to another buyer for $920,000.00, which sum was $235,000.00 less than what the deal had contemplated with Wasi.

[10] The Hannivans sued Wasi for the difference in the purchase price, $235,000.00, plus other damages, for a total claim of $253,647.44, plus interest and costs.

[11] Wasi counterclaimed for, in the main, the return of his $50,000.00 deposit.

[12] The Hannivans move for summary judgment on their claim and on the counterclaim. Wasi opposes the Motion and asserts that a proper adjudication of the issues requires a trial.

[13] The Motion was heard over one-half day of Court time in Milton on February 10, 2020. Judgment was reserved.

[14] For the reasons that follow, the Motion is granted. Judgment is ordered in favour of the Hannivans both in respect of the claim and the counterclaim.

II. Analysis

[15] In my view, this is a clear case for summary judgment. I am satisfied on a balance of probabilities that there is no genuine issue requiring a trial, with regard to both the claim and the counterclaim. Rule 20.04(2)(a) of the Rules of Civil Procedure.

[16] Applying the framework set out by the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, 2014 CarswellOnt 640, strictly on the basis of the materials filed, and without the need to engage the expanded fact-finding powers or to hear oral evidence, I conclude with confidence that I can (i) make the necessary findings of fact (the facts are almost entirely undisputed in this case), (ii) apply the law to the facts, and (iii) achieve a just result.

[17] Quite frankly, counsel have made this a relatively easy task. In oral argument, counsel for Wasi narrowed the analysis considerably when he stated that “our entire case rests on this paragraph”, referring to the survey term in Schedule A to the APS, set out above. Responsibly, counsel for Wasi submitted that if his client’s survey argument is unsuccessful, then Wasi loses the case.

[18] Well, the survey argument is unsuccessful, and Wasi loses the case. Put more technically sound, there is no genuine issue requiring a trial on the survey issue, and thus, summary judgment shall be granted in favour of the Hannivans.

[19] At one point in oral argument on the Motion, counsel for Wasi submitted that summary judgment ought not to be granted in this case because Wasi wants an opportunity at trial to bolster his evidence that he intended to do major renovations to the property and needed an original survey in order to obtain municipal approval for those renovations. That additional evidence, I was told by Wasi’s counsel, may even include expert opinion.

[20] With respect, that is not the way that the Courts adjudicate motions for summary judgment. Litigants on each side are required to put their best foot forward. There could always be a plea for more time to present more evidence at trial, however, that notion runs completely contrary to the spirit and intention of the new regime set down by the Supreme Court of Canada in Hryniak, supra.

[21] So what exactly is the alleged problem here with the survey of the property? We know that a document was provided to Wasi’s real estate agent way back on March 20, 2017, nearly five months before the correspondence on behalf of Wasi was sent declaring the APS to be null and void. We know that the said document (see page 59 of the Motion Record of the Moving Plaintiffs) purports to be a survey of the property and is, in fact, signed by an Ontario Land Surveyor and dated. We know that Wasi missed the requisitions deadline. We know that, on the day before the closing, after the normal end of business hours, Wasi, through his lawyer, complained about the alleged survey.

[22] There is no question that the said document is “bare-bones”. It does not appear to show the current location of all of the things listed in the term at Schedule A of the APS.

[23] In these circumstances, did that entitle Wasi to repudiate the deal (which the letter from his lawyer dated August 17, 2017 clearly did) and refuse to close the transaction?

[24] The answer, in my opinion, is clearly “no”.

[25] There is a recent decision directly on point – Hatami v. 1237144 Ontario Inc., 2018 ONSC 668 (S.C.J.), affirmed by the Court of Appeal for Ontario at 2018 ONCA 1061. Set out below are paragraphs 48 and 49 of the decision of the Honourable Mr. Justice Monahan, including footnote 18 referred to in paragraph 48.

[48] In any event, even if Cohen had failed to provide a copy of the survey, this would not have entitled Hatami to refuse to close the transaction. Courts have been willing in certain circumstances, such as where the provision of a survey was essential to the transaction, to permit a buyer to refuse to close the transaction on the basis that the seller has failed to meet its obligations in this regard. [18] Here, although the Agreement provided that Seller would provide any existing survey upon request, it also required the Buyer to obtain an up-to-date survey at its own expense in the event that this was required in order to close the transaction. Thus, unlike in Domowicz, 123 Ontario was not under an unqualified obligation to provide an up-to-date survey for the Property.

Footnote [18] These were the circumstances in Domowicz, where the agreement of purchase and sale required the vendor to provide a survey and its failure to do so prevented the buyer from arranging financing for the transaction.

[49] Moreover, again in contrast to Domowicz, any alleged failure on the part of 123 Ontario to provide a survey in no way affected Hatami’s ability to close the transaction. As noted above, on August 15, 2016, Amouzgar indicated that Hatami was prepared to close the transaction provided only that the Property was zoned commercial. No reference was made to the requirement to provide a survey. As such, Hatami’s reliance on the fact that 123 Ontario had failed to deliver a survey prepared 20 years earlier as the basis for her refusal to close the transaction is a purely technical objection, raised after-the-fact, in an effort to avoid her own obligations under the Agreement

[26] It is interesting to note that the decision in Domowicz v. Orsa Investments Ltd. (1993) 36 R.P.R. (2d) 174 (Gen. Div.), referred to by Justice Monahan, is the same case relied on heavily, almost exclusively, by counsel for Wasi.

[27] I draw the same conclusions in our case as Justice Monahan (affirmed by the Court of Appeal) did in Hatami, supra. Taking Wasi’s position as high as it could be, even if it could be said that the Hannivans did not strictly comply with the survey term as contained at Schedule A of the APS, which assumption is inconsistent with the only expert opinion evidence tendered on this point by either side, that of Sidney Troister, this would not have entitled Wasi to refuse to close the transaction. A different, perhaps more detailed, original survey was in no way essential to the transaction. It had nothing to do with financing. It had nothing to do with zoning. It had nothing to do, generally, with Wasi’s ability to close the transaction. It did not go to the root of the bargain.

[28] I suspect this is precisely why very little to nothing was done by Wasi to complain about what he had been provided with on March 20, 2017 until just hours before the scheduled closing date.

[29] It is, given the above, not necessary to deal with the Hannivans’ alternative argument that Wasi waived the survey requirement. Suffice it to say that Wasi’s real estate agent, before August 17, 2017, clearly communicated in writing that a different survey was not required. Although there is some assertion put forward by Wasi that his agent did that without his instructions or approval, I note that there is no formal claim by Wasi against his former agent, at least none that was brought to the Court’s attention in the materials filed on this Motion. The Hannivans’ waiver argument has substantial merit.

III. Conclusion

[30] I reject Wasi’s survey argument, and thus, summary judgment shall follow in favour of the Hannivans.

[31] The Order requested at paragraphs 114, 115, and 116 of the Hannivans’ Factum dated January 13, 2020 is hereby granted.

[32] The Hannivans are entitled to some costs. I will accept written submissions if the costs cannot be resolved between the parties. The Hannivans shall file within thirty calendar days of today, and Wasi shall file within fifteen calendar days after receipt of the Hannivans’ submissions. There shall be no reply on behalf of the Hannivans. Each submission shall be strictly limited to three pages in length, excluding attachments.

Conlan J. Date: February 20, 2020