COURT FILE NO.: CV-13-472121 CV-12-466872

DATE: 20200604

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

KLARA KAZAKEVICH

Plaintiff

– and –

KONSTANTIN SYCHEV

Defendant

AND BETWEEN:

Bryan B. Skolnik, for Klara Kazakevich as Plaintiff in Action No. CV-13-427121 and Aaron Postelnik for Klara Kazakevich as Defendant in Action No. CV-12-466872

Ioulia Melekhovets, for Konstantin Sychev, in both actions as Defendant, Plaintiff by Counterclaim and Plaintiff

Harry Perlis, for Angelika Bekman, in both actions as Defendant by Counterclaim and Defendant, and for RE/MAX Vision Realty Group Inc. as Defendant in Action No. CV-12-466872

No one appearing for Century 21 Heritage Group Ltd., the claim against it having been previously dismissed against it on consent

KONSTANTIN SYCHEV

Plaintiff by Counterclaim

– and –

ANGELIKA BEKMAN

Defendant by Counterclaim

AND BETWEEN

KONSTANTIN SYCHEV

Plaintiff

– and –

KLARA KAZAKEVICH, ANGELIKA BEKMAN, RE/MAX VISION REALTY GROUP INC. and CENTURY 21 HERITAGE GROUP LTD.

Defendants

HEARD: February 10, 11, 12, 13, 14, 18, 19 and 21

Kimmel J.

Table of Contents

Overview.. 1

Summary of Disposition. 3

Issues to be Decided. 4

Findings of Fact 4

Agreed or Uncontested Facts and Chronology. 4

The Key Party Witnesses. 8

Disputed Facts. 9

The Additional Legal Fees Claimed to Have Been Incurred by Kazakevich. 9

The Dealings between the Sychevs and Bekman Before the Offer to Purchase Saul Court 9

Sychev’s Understanding of the APS Conditions and Waiver 10

The Negotiation of the APS. 11

The Waiver of the Lawyer’s Approval Condition. 16

The Amending Agreement and Removal of the Home Inspection Condition. 20

The Financing Condition and Its Waiver 22

The Financial Wherewithal of the Sychevs. 26

The List Price for 191 Patricia Avenue. 26

The Efforts to Sell 191 Patricia Avenue. 28

Findings of Credibility. 29

Analysis of the Identified Issues. 31

The APS Was Validly Formed. 31

The Conditions of the APS Were Duly Waived. 32

The Validity of the APS and Waiver of its Conditions has not been Negated by Non-est Factum or Fraud or Misrepresentations About its Binding Effect 33

Sychev Anticipatorily Breached the APS and It Was Validly Terminated. 34

Kazakevich’s Damages. 34

Alleged Breaches of Duties by Kazakevich as Selling Agent Have not been Established. 34

It has not been Established that Bekman was Negligent in the Performance of her Duties and Advice to Sychev in Connection with his Purchase of Saul Court 35

It has not been Established that Bekman was Negligent in the Performance of her Duties and Advice Given to the Sychevs as the Selling Agent for Patricia Avenue. 38

It has not been Established that Bekman Made Misrepresentations to Sychev. 39

Limits on Damages Flowing from Bekman’s Alleged Negligence, Conspiracy or Misrepresentations 40

Final Disposition and Costs. 40

REASONS FOR JUDGMENT

Overview

[1] These two actions were tried together. They arise from a failed residential real estate transaction between Klara Kazakevich and Konstantin Sychev. All of the key participants in the transaction are of Russian descent and they all speak fluent Russian. Their dealings were conducted in Russian. Mr. and Mrs. Sychev testified through a Russian-English interpreter at the trial. The other witnesses all testified in English.

[2] Kazakevich agreed to sell her house at 31 Saul Court in Vaughn, Ontario to Konstantin Sychev under an agreement of purchase and sale dated May 25, 2012 (the “APS”). The purchase price was $2,380,000.00 and the scheduled closing date was September 28, 2012. Kazakevich is a licensed real estate agent and she represented herself as the vendor’s agent on this transaction. Angelika Bekman, who at the time was a licensed real estate agent with RE/MAX Vision Realty Group Inc., acted for Sychev as the purchaser’s agent. Bekman was also initially retained by Sychev and his wife Zarema Sycheva as the selling agent for their home located at 191 Patricia Avenue in Toronto, Ontario. For ease of reference, Mr. and Mrs. Sychev will either be referred to as such or together as the “Sychevs”. Konstantin Sychev is also referred to as “Sychev”.

[3] All of the conditions of the APS were waived by Sychev. When the Saul Court agreement went firm (the conditions having been waived), Kazakevich entered into an agreement to purchase a new home at 7 Gilbert Drive in Aurora, Ontario with the same closing date, September 28, 2012.

[4] The Sychevs were confident that their home on Patricia Avenue would sell quickly. The APS was not conditional upon the sale of their existing home. However, by August 2012, the Sychevs had not sold their home on Patricia Avenue. If Sychev had wanted to extend the closing on Saul Court, he would have had to agree to terms that had been dictated by the vendor of 7 Gilbert, from whom Kazakevich sought a corresponding extension. Sychev did not agree to those terms. He asked to be released from the APS transaction but Kazakevich did not sign the proposed mutual release. In mid-September, the Sychevs’ lawyer advised Kazakevich that they would not be completing the purchase of 31 Saul Court.

[5] Kazakevich eventually re-sold the 31 Saul Court property for a reduced purchase price of $2,150,000.00 and incurred additional commission, carrying and financing costs in the completion of that transaction, which eventually closed on March 28, 2013. Kazakevich claims damages in Action No. CV-13-427121 (the “Kazakevich Action”) for the difference in the purchase price and her additional costs, totalling $345,057.12.[^1] This is the admitted amount of her losses (subject to proof of liability, which Sychev disputes). Kazakevich seeks a further sum of $2,749.29 for additional legal fees said to have been incurred on the sale of 31 Saul Court, which are not admitted and ultimately were not proven.

[6] The stated reason for Sychev not closing the APS in September 2012 was that one of the conditions for the purchaser’s lawyer’s approval of the APS (the “Lawyer’s Approval Condition), had not been waived on time rendering the APS null and void and at an end. At the trial, Sychev’s position was that the waiver was received and signed by Kazakevich after the expiry of the Lawyer’s Approval Condition deadline on May 31, 2012 and backdated by Kazakevich and Bekman without disclosure or explanation to Sychev that this missed deadline had voided the APS. The alleged fraud and breaches of duties by both real estate agents is relied upon as grounds to relieve Sychev of any obligation to complete the APS and in support of his claim for the return of his deposit (paid in two installments, $33,099.00 shortly after signing and a further $17,000.00 paid on July 3, 2012).

[7] In his action against Kazakevich, Bekman and RE/MAX (Action No. CV-12-466872, the “Sychev Action”) and in his counterclaim against Bekman in the Kazakevich Action, Sychev raises various other arguments about: (i) the circumstances under which the APS was negotiated, (ii) the fairness of the transaction and its terms (including terms that were not included), (iii) the failure of the real estate agents to ensure that he fully understood the terms of the APS and the risks of waiving or removing the conditions to it (being the Lawyer’s Approval Condition, a Home Inspection Condition and a Financing Condition), (iv) pressure that is said to have been exerted upon him to complete the transaction, and (v) alleged promises of a home inspection notwithstanding his waiver of the Home Inspection Condition.

[8] Further allegations are made in the Sychev Action against Bekman alone for her alleged failure to protect the Sychevs against what is now alleged to have been an unfavourable transaction for their purchase of Saul Court, her alleged negligence in her efforts to sell their home at 191 Patricia Avenue and her assurances (misrepresentations) that everything would be alright and not to worry, that he would be able to get out of the APS transaction at any time right up until the September 28, 2012 closing date. If Sychev is found liable to Kazakevich, he claims that Bekman is responsible for any damages owing to Kazakevich and he also seeks damages from Bekman equal to the amount of the deposit paid on Saul Court. Although Sychev claimed other damages in his statement of claim, none were proven at trial.

[9] While the basic chronology and some of the facts are not disputed, there are some significant contradictions in the evidence of the parties. This has required me to make findings about the credibility of the key witnesses, Mr. and Mrs. Sychev, Ms. Kazakevich and Ms. Bekman. For reasons that will become apparent, I prefer the testimony of Kazakevich and Bekman over that of the Sychevs where it conflicts.

[10] On the central question of whether the Lawyer’s Approval Condition was waived, and the waiver was accepted, within the time required under the APS, I accept the testimony of Kazakevich and Bekman and find that it was. Sychev has not established that this waiver was backdated by them. I also find that Sychev waived or agreed to the removal of the other conditions of the APS (the Home Inspection Condition and the Financing Condition), that he understood that he was doing so and understood that the effect was to affirm his obligations under the APS, rather than allow the APS to terminate and be at an end.

[11] Sychev has not established that Bekman owed a duty to investigate the Sychevs’ financial circumstances in order to determine whether they could afford to buy Saul Court. They received a mortgage commitment from Home Trust, after which Sychev waived the Financing Condition on June 8, 2012 and the APS transaction became unconditional. All of the dealings regarding the conditions of the APS took place on or before June 8, 2012.

[12] Thereafter, Bekman tried to sell the Sychev’s home on Patricia Avenue but was unable to. The Sychevs have not established on a balance of probabilities that she was negligent in her efforts to do so. Nor have they proven that she made any misrepresentations about the price or timing for the sale of their home that they reasonably relied upon.

[13] There is no question that the Sychevs required the proceeds from a sale of Patricia Avenue to help fund the purchase of Saul Court. The Sychevs were so confident in their ability to sell their home on Patricia Avenue quickly and at a good price that they did not initially heed the advice of Bekman about the list price or presentation of their home for sale. I do not need to go so far as to find that they are to blame for the lack of third-party purchaser interest in Patricia Avenue after it was listed as Bekman alleges, but I am not satisfied that Bekman is at fault for that lack of interest, as they allege.

[14] Nor can Bekman be blamed for the Sychevs’ decision not to sell Patricia Avenue before buying Saul Court. The Sychevs had previous experience in the Toronto real estate market. Their experience included advice from another real estate agent that they should sell an existing property before committing to buy another one. Bekman gave them similar advice, to sell first.

[15] The APS contained conditions that were favourable to Sychev and that would have enabled him, as the purchaser, to get out of the transaction to buy Saul Court if he had wished to do so. The last of the conditions in the APS expired on June 8, 2012. At that time, Sychev wanted and intended to proceed with the APS transaction to purchase Saul Court. That desire and intention waned as the Sychevs’ confidence in the sale of 191 Patricia Avenue diminished, but it was too late for them to get out of the deal by the time they were prepared to accept advice from professionals about the strategy for the sale of their home. They latched on to Mrs. Sycheva’s interpretation of an email sent by Kazakevich to Bekman on June 1, 2012 that Bekman forwarded to Mrs. Sycheva[^2] on September 10, 2012 as an excuse for not closing. The alleged backdating that Mrs. Sycheva read into this email has not been established. That leaves Sychev with no justification for his refusal to close on the Saul Court purchase.

Summary of Disposition

[16] I am granting the relief sought by Kazakevich in her action against Sychev (CV-13-472121) and awarding Kazakevich $345,057.12 in damages, payable by Sychev. Sychev’s action against Kazakevich, Bekman and RE/MAX (CV-12-466872) is dismissed. Sychev’s counterclaim against Bekman in the Kazakevich action is also dismissed.

Issues to be Decided

[17] The following issues arise in the Kazakevich Action against Sychev:

a. Was the APS validly formed?

b. Were all of the conditions of the APS duly waived, rendering it a binding and enforceable contract?

c. Can the validity of the APS or the waiver of its conditions be negated by non-est factum or the alleged fraud or misrepresentations about the binding effect of the APS?

d. Did Sychev anticipatorily breach the APS and was it validly terminated by Kazakevich as a result?

e. What amount of damages is Kazakevich entitled to be paid by Sychev if he is found to have been in breach of the APS?

f. Did Kazakevich breach any duty owed to Sychev as the selling agent?

[18] The following issues arise in the Sychev Action as against Bekman and RE/MAX and in Sychev’s counterclaim in the Kazakevich Action against Bekman:

a. Was Bekman negligent in the performance of her duties and advice to Sychev as his real estate agent in connection with the negotiation and execution of the APS for Saul Court and/or in connection with the waiver of the APS conditions?

b. Was Bekman negligent in the performance of her duties and advice as the selling agent for the Sychevs’ home on Patricia Avenue?

c. Did Bekman make misrepresentations to Sychev about his ability to perform a home inspection and to get out of the transaction to purchase Saul Court under the APS after its conditions had been waived?

d. If Bekman was negligent, conspired with Kazakevich, or made misrepresentations, what damages can be claimed to flow from this alleged wrongdoing?

Findings of Fact

Agreed or Uncontested Facts and Chronology

[19] An agreed statement of facts was filed, based on a request to admit and response thereto marked as Exhibit 1 at the trial. A joint document brief ultimately comprised of 102 tabs was marked as Exhibit 2 at the trial. The documents contained in Exhibit 2 were all admitted as to authenticity. No exceptions were noted. The following factual findings are based upon the admitted facts and facts arising from the admitted documents in Exhibit 2 and the trial testimony of the witnesses that is not in conflict.

[20] Kazakevich owned the Saul Court property. She had accepted two prior offers on the Saul Court property, one that did not go through due to financing and one that she agreed to release.

[21] After showing the Saul Court property to the Sychevs the first time, Bekman returned a few days later and presented an initial offer from the Sychevs for the purchase of Saul Court for $1.8 million that Kazakevich rejected because the price was too low. The Sychevs were outside when this offer was presented. They did not make a further offer to increase their price at that time.

[22] They Sychevs asked to see the Saul Court property again, with the intention of increasing their offer. Bekman attended with the Sychev family at the Saul Court property on May 25, 2020. Mr. and Mrs. Kazakevich were both present.

[23] Kazakevich as vendor and Sychev as purchaser entered into the APS on or about May 25, 2012. The APS was to be completed on September 28, 2012 at a purchase price of $2,380,000.00 subject to adjustments. The initial deposit of $33,000.00 was due upon acceptance of the APS by Kazakevich on May 25, 2012.

[24] A deposit of $33,099.00 was paid by Sychev to Kazakevich by three payments made on May 28, 2012, of $13,200.00, $9,900.00 and $9,999.00. The later timing and slightly higher amount of this initial deposit was addressed in an amending agreement.

[25] The APS contained certain conditions for the benefit of Sychev, namely:

a. A Lawyer’s Approval Condition that provided as follows:

This Offer is conditional upon the approval of the terms hereof by the Buyer’s Solicitor. Unless the Buyer gives notice in writing delivered to the Seller personally or in accordance with any other provisions for delivery of notice in this Agreement of Purchase and Sale or any Schedule thereto not later than 6:00 p.m. on May 31, 2012, that this condition is fulfilled, this Offer shall be null and void and the deposit shall be returned to the Buyer in full without deduction. This condition is included for the benefit of the Buyer and may be waived at the Buyer’s sole option by notice in writing to the Seller as aforesaid within the time period stated herein.

b. A Home Inspection Condition that provided as follows:

THIS AGREEMENT OF PURCHASE AND SALE IS CONDITIONAL UPON the Buyer obtaining at his expense an inspection of the subject property by a qualified home inspector within Five [5] banking days from the date of acceptance of this offer. In the event such inspection reveals any deficiencies in the subject property which the Buyer is unwilling to accept and the Seller is unwilling to remedy then this offer shall become null and void and the Buyer’s deposit shall be returned in full without interest or deduction. This condition is included for the benefit of the Buyer and may be waived at his sole option.

c. A Financing Condition that provided as follows:

THIS AGREEMENT OF PURCHASE AND SALE IS CONDTIONAL within Five [5] banking days from the date of acceptance of this offer, upon the Buyer, or the Buyer’s Agent, arranging at the Buyer’s expense satisfactory financing, failing which this offer shall become null and void and the Buyer’s deposit shall be returned in full without interest or deduction. This condition is for the benefit of the Buyer and may be waived at his sole option.

[26] Under the APS, the buyer and seller’s brokerage firms were appointed as agents of the buyer and seller, respectively, for the purpose of giving and receiving notices. Notices could be personally delivered or delivered to the indicated address of the brokerage firm.

[27] Prior to the execution of the APS, Bekman agreed, as the co-operating broker, to accept a reduced commission of 1.25% of the selling price plus HST (half of the usual co-operating broker’s commission).

[28] The APS was amended by amending agreement dated June 1, 2012 (the “Amending Agreement”) to delete the Home Inspection Condition and to extend the Financing Condition from 5 banking days to 10 banking days. It also was amended to reflect the actual amount of the initial deposit installment amount paid of $33,099.00 (from the specified amount of $33,000.00).

[29] On June 8, 2012, Tatiana Babitch, a mortgage broker with whom the Sychevs consulted, received a written mortgage commitment from Home Trust approving them for a mortgage loan in the amount of $1,380,000.00. One of the conditions of that commitment was that Sychev had to have $1,000,000.00 to contribute to the purchase of Saul Court, either from the sale proceeds of the Sychevs’ existing home at 191 Patricia Avenue, or in cash from some other source. This commitment was also subject to verification by Home Trust that Mr. and Mrs. Sychev each had a minimum gross annual income of $200,000.00.

[30] The Financing Condition was waived by Sychev on June 8, 2012.

[31] Kazakevich intended to use the proceeds from the closing of the sale of the Saul Court property pursuant to the APS to purchase a new property. Kazakevich entered into an agreement to purchase 7 Gilbert Drive, Aurora Ontario (the “New Property”) on or about June 9, 2012 with the same scheduled closing date, of September 28, 2012.

[32] The Sychev’s home at 191 Patricia was listed for sale with Bekman on June 13, 2012 for a list price of $1,460,000.00.

[33] The second installment of the deposit in the amount of $17,000.00 was due on June 30, 2012 and was paid by Sychev to Kazakevich on July 3, 2012. The total deposit paid by Sychev to Kazakevich was $50,099.00.

[34] The list price for 191 Patricia was reduced to $1,428,000.00 on August 3, 2012.

[35] The Sychevs’ listing agreement with Bekman for 191 Patricia was cancelled on August 23, 2012. They re-listed the property with her that same day at a new list price indicated on MLS to be $1,388,000.00. In this listing, buyer’s agents were also offered an enhanced co-operating broker’s commission of 2.75% (.25% more than the usual rate of 2.5%, with the result that Bekman would receive only 2.25% as the selling agent).

[36] Sychev requested an extension of the closing date for the Saul Court property by proposed amending agreement sent to Kazakevich by Bekman on August 27, 2012.

[37] On August 30, 2012 the Sychevs asked Bekman to provide copies of the papers about the APS conditions.

[38] The Sychevs listed 191 Patricia with Lene Preje, a real estate agent with whom they had worked in the past.

[39] Copies of the June 1, 2012 and May 31, 2012 waiver and related email correspondence between Bekman and Kazakevich were forwarded to Mrs. Sycheva on September 10, 2012.

[40] Kazakevich approached the vendor of her New Property on Gilbert Drive about extending the closing of that property and presented the financial and other terms requested by the seller of the New Property by email sent to Bekman on September 11, 2012, asking Sychev to agree to identical terms. Sychev did not agree to the terms requested.

[41] On or about September 11, 2012 Sychev signed and sent to Kazakevich a proposed amendment and mutual release seeking to terminate his purchase of the Saul Court property. Kazakevich did not agree to or sign the proposed amendment or mutual release.

[42] On September 12, 2012 Sychev asked to do an inspection of the Saul Court property and its septic system, which was refused by Kazakevich.

[43] On September 12, 2012, the Sychevs advised Bekman, who in turn advised Kazakevich, that they did not intend to close the transaction to purchase Saul Court on September 28, 2012 and were intending to get out of the deal. By this time, both Kazakevich and Sychev were both consulting with legal counsel.

[44] Kazakevich attended at the Sychevs’ home at 191 Patricia Avenue with another agent on or about September 12, 2012.

[45] On or about September 17, 2012, correspondence was exchanged between legal counsel that confirmed Sychev would not be closing the transaction under the APS as scheduled on September 28, 2012.

[46] Kazakevich was at all material times ready, willing and able to complete the APS until it was made clear that Sychev did not intend to do so. By letter dated September 26, 2012, Kazakevich’s lawyer communicated to the lawyer for the Sychevs that, as a result of Sychev’s anticipatory breach of the APS, she was treating the transaction as at an end and would be proceeding to mitigate her damages. The APS did not close.

[47] Kazakevich relisted the Saul Court property. It was eventually sold to a third-party purchaser at a purchase price of $2,150,000.00 under an agreement of purchase and sale dated January 2, 2013 (the “Third-Party Sale”). The Third-Party Sale was completed on March 28, 2012.

[48] This Third-Party Sale partially mitigated Kazakevich’s losses. Her losses (if liability is established) are agreed to include:

a. $230,000.00 being the difference between the purchase price under the APS and the price received under the Third-Party Sale;

b. $27,120.00 being the difference in the net commission payable under the APS and that payable on the Third-Party Sale (because of the reduced commission that Bekman agreed to);

c. $11,299.89 for carrying costs of the Saul Court property from September 28, 2012 through March 28, 2013; and

d. $76,637.23 for the financing costs Kazakevich incurred in connection with her purchase of the New Property which closed in September 2012 as scheduled.

[49] The list price for the sale of 191 Patricia was reduced a number of times between September 2012 and March 2013 and it eventually sold for $1,147,000.00. The last list price before that sale was $1,170,000.00.

[50] The Sychevs registered a mortgage on July 30, 2013 from Home Trust for a different home that they purchased, in the principal amount of $1,068,750.00.

The Key Party Witnesses

[51] All of the party witnesses in this case are of Russian descent and Russian is their first language. Bekman’s mother introduced her to Mrs. Sycheva. Mrs. Sycheva had offered advice to Bekman on some personal matters and that led to them talking and eventually to Mrs. Sycheva asking Bekman to help the Sychevs look for a new house and sell their existing home. Bekman has been a licensed real estate agent since 2004 and a real estate broker since 2012. She moved from RE/MAX, where she worked in 2012, to Superior Realty in 2016.

[52] Kazakevich is 71 years old. She immigrated to Canada in 1984. She worked as a real estate agent for seventeen years until she retired in 2012. Kazakevich and her husband decided to sell Saul Court and downsize to a smaller home. Mr. Kazakevich had a security company and he had installed the alarm at the Sychevs’ home at 191 Patricia Avenue. That connection was a coincidence.

[53] Sychev is 44 years old. He immigrated to Canada from Russia in 2004. He worked in renovations and now makes jewellery and wooden products for sale. Mrs. Sycheva is 46. She immigrated to Canada from Russia in 2003. She is an astrologist and works in an on-line jewellery business.

Disputed Facts

[54] There are a number of areas of controversy between the evidence of Kazakevich and Bekman on the one hand and the Sychevs on the other, about which findings of fact are required to enable me to decide this case. Some factual contentions depend upon my acceptance of the testimony of one or more of these witnesses, who the opposing side contends is not credible. The parties’ submissions were rife with arguments about the credibility of the parties opposite.

[55] My findings of fact are all made based on the civil standard of proof on a balance of probabilities.

The Additional Legal Fees Claimed to Have Been Incurred by Kazakevich

[56] Kazakevich seeks additional damages (not agreed by Sychev) for $2,749.29 out of the legal fees she incurred in connection with the sale of Saul Court. While Kazakevich asserts that these are additional fees that would not have been charged if the sale to Sychev had been completed (or, put another way, that were incurred as a result of the aborted sale of Saul Court to Sychev), her lawyer did not testify to this. In her real estate lawyer’s account for the Third-Party Sale of Saul Court, $600.00 is identified as attributable to the aborted transaction. Her lawyer, Stephen Shub, was not asked about this line item on the account or about additional fees that would not have been charged if the sale to Sychev had been completed.

[57] The evidence does not establish the claimed additional amounts paid by Kazakevich to her lawyer as a result of the aborted sale to Sychev. Some evidence from the lawyer would have been needed to establish this.

The Dealings between the Sychevs and Bekman Before the Offer to Purchase Saul Court

[58] The Sychevs’ connection to Bekman was through Mrs. Sycheva. That much is agreed. However, Mrs. Sycheva says they first met through Bekman’s mother and became good friends. Bekman denies they were good friends. She says that they became acquainted when the Sychevs’ accountant, whom she knew, had asked Bekman to introduce Mrs. Sycheva to a Russian speaking lawyer in 2011, at which time Bekman introduced her to Martha Sotov.

[59] Their paths had crossed from time to time. Bekman acknowledges that Mrs. Sycheva had offered and given her astrological adviceon some personal matters. Bekman testified that Mrs. Sycheva called her on May 19, 2012 to ask Bekman if she would help them find a house.

[60] Bekman’s May 19, 2012 notes of her initial meeting with the Sychevs about the new home that they were looking for indicated that they were looking for something in Vaughan on a big lot with a ravine or a pond for a price of up to $2,500,000.00. The Sychevs deny telling Bekman that they were looking for a house in that price range. They say it was above their means.

[61] There are documents confirming that Bekman sent Mrs. Sycheva some initial listings to look at of homes for sale on Arnold Avenue in Vaughan Ontario with list prices of $2,299,000.00, $2,598,000.00 and one that had sold for $2,680,000.00. Bekman says that Mrs. Sycheva had told her she was interested in looking at homes on that street. Bekman testified that she sent these listings to Mrs. Sycheva before they went to see the homes and that she was never told that these were outside of their price range. Sychev also testified that they saw the listings for the properties on Arnold before they visited these homes and that they did not tell Bekman that the price was too high before they went to see these homes.

[62] Mrs. Sycheva denies receiving, or looking at, copies of these listings ahead of time (or at all). She claims they were just given the address to go to and that they were not interested in any of these homes because they were too expensive and too old. Mrs. Sycheva testified that she was too busy in May 2012 and did not open the emails that Bekman sent her with various listings for her to look at. Yet the record discloses that she expressed displeasure with a listing that Bekman had sent for a property for them to see on Flamingo Road, which is inconsistent with her testimony that she was not looking at the listings ahead of time.

[63] The significance of this is that it undermines the credibility of the Sychevs’ position that the Saul Court purchase price was above their means or what they wanted to pay, if they were willingly looking at houses listed in the same price range as Saul Court. I find that they were doing so, that they did give Bekman that price range in their initial meeting as was recorded in her May 19, 2012 notes, and that they did not indicate to Bekman that a house in the $2.5 million price range was out of their financial means.

Sychev’s Understanding of the APS Conditions and Waiver

[64] Prior to the failed transaction for their purchase of the Saul Court property, the Sychevs had worked with another real estate agent, Lene Preje, in connection with the purchase and sale of three other residential properties in Toronto. Bekman also testified that she had previously assisted them with a transaction involving an investment property.

[65] Sychev admitted that, from his involvement in other residential purchase and sale transactions prior to the APS for Saul Court, he was familiar with the inclusion in the agreements of purchase and sale of conditions about home inspections, financing and a lawyer’s approval and that he understood how those conditions worked: that if a condition is not waived or fulfilled the deal is dead. Not all of these conditions were included in every prior real estate transaction that he had been involved with, but each of them had been included in at least one prior transaction such that he was familiar with each of them.

[66] Sychev also admitted that he understood that if these conditions were included:

a. If he conducted a home inspection and was not satisfied, he could choose not to buy the property;

b. If he could not get financing, he did not have to waive the financing condition; and

c. If the lawyer reviewed the APS and told him it was a bad agreement, he did not have to waive the lawyer’s approval condition; and

d. If he did not waive the conditions, the deal would be dead, and he could get his deposit back and walk away.

[67] Sychev admitted in cross-examination that he knew (or expected) at the time of the APS that it would contain a Lawyer’s Approval, Home Inspection and Financing Condition. Sychev denied in cross-examination that he personally requested that these conditions be included in the APS for Saul Court. When confronted with his discovery testimony during which he said that he did ask Bekman to include these conditions he said he did not deal directly with Bekman, that it was his wife who did so. Bekman testified that Mrs. Sycheva told her to make sure to include in their offer for Saul Court a financing condition and Bekman responded that she always included that and that she also intended to include conditions for home and septic inspection and lawyer’s approval. Mrs. Sycheva did not give any evidence to indicate that she did not request that these conditions be included in the APS.

[68] Mrs. Sycheva also acknowledged being familiar with these types of conditions and the concept of waiving them (which would make a deal final) from prior transactions. She understood that it was customary for them to be included. However, she says they were never discussed with Bekman in connection with the APS transaction. Mrs. Sycheva testified that her husband did not understand the conditions or what it meant to waive them. She suggested that he was nervous and just agreed with what the lawyers said to him when he was being questioned both at discovery and at trial. That does not accord with my impression of Sychev’s trial testimony. Sychev’s admissions about his understanding of these conditions and the implications of not waiving them were clear and unequivocal. His testimony overrides his wife’s views about what he did or did not understand.

[69] I find that Sychev did understand at the relevant times that the Lawyer’s Approval, Home Inspection and Financing Conditions had been included in the APS for his benefit and that he had the right not to waive them with the result that the APS would have been at an end.

The Negotiation of the APS

[70] Bekman and Mrs. Sycheva agree that it was Mrs. Sycheva who first saw the Saul Court property when she was driving by it one day, and that she called Bekman and asked her to make them an appointment to see it because she liked the look of the house and the area.

[71] All of the key witnesses, Kazakevich, Bekman, and Mr. and Mrs. Sychev, testified about the events leading up to the execution of the APS. On points of disagreement, the evidence lines up on two sides. For the most part the evidence of Kazakevich and Bekman was consistent. The evidence of Mr. and Mrs. Sychev was also mostly consistent.

(a) The Sychevs’ Understanding of the APS and its Conditions

[72] The Sychevs presented two offers to purchase Saul Court. According to Bekman, they first visited the property on May 24, 2012. Afterwards, they instructed her to prepare an offer for them to purchase it for $1.8 million. Bekman testified that she translated the first offer to the Sychevs before it was signed, including all of the terms and conditions that she had included in it and that she explained all the terms to the Sychevs. The Sychevs deny this and say that she explained nothing to them and just presented a form of offer to Sychev which he signed. This is not in line with the Sychevs’ testimony about the APS conditions (described above). Mrs. Sycheva instructed Bekman to include certain conditions in the offer she prepared for Sychev to purchase Saul Court and, under those circumstances, I find it to be more likely that Bekman did review the APS and its conditions with the Sychevs as she testified to.

[73] That offer was presented to Kazakevich by Bekman while the Sychevs were outside waiting in their car. Kazakevich rejected that offer immediately. She testified that she did not bother to review any of its other terms and conditions because the price was too low. The Sychevs were advised of this immediately by Bekman and they left.

[74] The Sychevs asked Bekman to arrange for them to visit the Saul Court property a second time, with an intention of presenting a higher offer. Mrs. Sycheva testified that this second visit occurred on the same day as the first one, but she was the only one who said that. She was also initially mistaken in her testimony about whether the Sychev children attended at the first visit. It is clear from the documents and other testimony that the second visit occurred on May 25, 2012.

[75] Bekman contacted Kazakevich and made arrangements for a second visit to the Saul Court property on May 25, 2012. Bekman testified that she brought with her a form of offer that was the same as the first one that had been presented on behalf of the Sychevs, but with the price blank. Bekman says that the draft APS was her form of agreement that she had prepared upon the Sychevs’ instructions, so that they could present an offer on the Saul Court property when they visited it for the second time on May 25, 2012.

[76] Bekman and Kazakevich both testified that, after discussing and coming to an agreement on a price while they were all outside in the backyard, they moved inside. Bekman had brought a prepared form of offer into which the agreed price was handwritten. Kazakevich then began to review the other terms and conditions contained in the form of offer presented and she made some handwritten changes and additions. Kazakevich testified that the Sychevs were present while she reviewed the APS and that the conditions contained in it and that all of the changes and additions she made were discussed among all of them in Russian.

[77] Mrs. Sycheva was the only one who testified that Bekman’s form of offer was torn up by Kazakevich and that the signed APS was based on a form of APS that was printed by Kazakevich while they were at the house on Saul Court on May 25, 2012. It does not make sense that Kazakevich would make handwritten changes to the form of offer if she had it on her computer and printed it. If that were the case, she could have typed rather than handwritten in her changes. I find that the form of offer that was amended and finalized on May 25 and that became the APS was based on the original form that Bekman had prepared upon the instructions of the Sychevs and that the same form was used for both of the Sychevs’ offers.

[78] Kazakevich testified that the expiry dates of each condition were discussed one by one with the Sychevs in Russian as they went through the offer. Bekman confirmed that the expiry date for each condition was reviewed: May 31 for the Lawyer’s Approval Condition and June 1 for the Home Inspection and Financing Conditions. Bekman says she specifically explained to the Sychevs that they had five business days to do a home inspection and to get financing and that by June 1 they either had to be satisfied or waive those conditions to continue with the transaction. She also testified that she explained to them, if they were not satisfied, they could get their deposit back but if they waived the conditions then the deal became firm and they would proceed with the purchase.

[79] Both Mr. and Mrs. Sychev testified that none of the conditions contained in the APS were reviewed with or explained to them.

[80] I prefer Bekman and Kazakevich’s testimony over that of the Sychevs. Given that this was the second offer being presented by Bekman on behalf of the Sychevs I also accept Bekman’s testimony that the conditions were discussed with them before they were included in the first offer. Considering their admitted familiarity with these types of conditions, it is not plausible that the Sychevs would have instructed an offer to be submitted by Bekman without some appreciation of which of the typical conditions in favour of the buyer had been included. This is consistent with Bekman’s testimony that the Sychevs were not first-time buyers and that it was apparent to her that they were familiar with these types of standard conditions.

[81] I find that Sychev was aware that the APS contained the Lawyer’s Approval Condition, Home Inspection Condition and Financing Condition and that the Lawyer’s Approval Condition expired on May 31 and the others expired on June 1, 2012. I also find that these conditions were generally explained to and reviewed with the Sychevs and that they generally understood them based on the explanations they received from Bekman and their experience in prior real estate transactions. I further find that the Sychevs understood that the satisfaction or waiver of the conditions would determine whether or not their purchase of the Saul Court property would proceed after the APS had been signed.

(b) The Closing Date

[82] The Sychevs testified that they wanted a November 2012 closing date, but that they were pressured by Bekman to agree to an earlier date. Bekman testified, to the contrary, that the Sychevs were the ones who wanted an earlier closing date as they felt that would secure their children spots in the local school. Bekman testified that she advised them to ask for a longer closing date to give them more time to sell their existing property but that the Sychevs did not heed her advice. They were confident that they would not have any trouble selling 191 Patricia and that they wanted an earlier closing date.

[83] Kazakevich testified that she expressed her preference to the Sychevs for a November 2012 closing date so that she would have more time to look for and close the new house that she intended to buy. She further testified that she questioned the Sychevs about whether they needed to sell their home on Patricia Avenue to fund the purchase of Saul Court and whether they were leaving themselves enough time to do so. Kazakevich testified that Mrs. Sycheva responded to her that she only needed five days to sell 191 Patricia Avenue and that Mrs. Sycheva was firm in her desire for an earlier closing date because the kids could start school if they were closing in September. Kazakevich testified that, after talking it over with her husband, they agreed to give the Sychevs the earlier closing date that they were asking for, and they settled on September 28, 2012.

[84] I prefer the testimony of Bekman and Kazakevich over that of Mrs. Sycheva. I was not presented with any logical reason why either Bekman or Kazakevich would have pressured the Sychevs to close earlier. To the contrary, it would have been in Bekman’s interests as their real estate agent to give them more time to sell their existing property since they needed those sale proceeds to close on Saul Court. Further, there was no evidence presented of any reason why Kazakevich would have wanted an earlier closing date when they signed the APS. Kazakevich did not enter into her agreement to purchase the New Property until June 9, 2012 and she set the closing date on that purchase to align with the September 28, 2012 closing date on Saul Court.

[85] I find that the September 28, 2012 closing date was requested by the Sychevs and that this was based on Mrs. Sycheva’s own assessment that her home on Patricia Avenue could be sold quickly and her view that this closing date would assist in the registration of her children in the local school for that fall.

(c) The Purchase Price and Deposit

[86] When the Sychevs returned to make their second offer to purchase the Saul Court property, they knew that Kazakevich considered their prior offer to be too low. Kazakevich had not made a counteroffer.

[87] The Sychevs, Bekman and Kazakevich all testified that there was a discussion in the backyard of the Saul Court property on May 25, 2012 about the purchase price. Although it was not her usual practice to allow a buyer to negotiate directly with a seller and/or seller’s agent, Bekman testified that she acceded to Mrs. Sycheva’s request to do so in this case. Bekman says that she was able to talk privately with the Sychevs about the price and other matters during the negotiations by stepping off to one side of the patio in the backyard. Kazakevich confirmed in her testimony that there were times during the price negotiations when the Sychevs spoke privately with Bekman.

[88] Mrs. Sycheva says that the direct dealings were at Bekman’s suggestion and that there was no privacy or opportunity for them to receive proper explanations and advice from Bekman about the APS and its conditions, without Kazakevich overhearing them. They eventually settled on the purchase price of $2,380,000.00 for the Saul Court property. That was indicated to the Sychevs to be the lowest price that Kazakevich would accept.

[89] The Sychevs offer as presented included a $25,000.00 deposit. Kazakevich expressed concern that the deposit was too low and asked for it to be increased. She acceded to the Sychevs’ request to allow them to pay the deposit in two installments, the first of $33,000.00 and the second of $27,000.00). Those changes were handwritten into the APS before it was signed.

[90] Although the Sychevs now say that they could not afford this purchase price and that it was not in their best interests to enter into the APS for the purchase of a home at a price above their means, there is no evidence that this concern about the purchase price or their ability to pay it was ever raised by them with Bekman or Kazakevich, when the APS was being negotiated or at any time. There is insufficient evidence for me to assess the net worth of the Sychevs and whether they had the means to make this purchase. The fact that they asked to pay the increased deposit amount that Kazakevich requested in two installments instead of one is not an objective indication of their lack of funds to buy this home. There are other reasons, such as liquidity and cash flow considerations, for why a buyer might want to pay a deposit in installments that are not a function of the buyer’s net worth.

[91] Similarly, Bekman’s offer to reduce her commission to make up the differential in the purchase price between what Kazakevich was insisting upon and what the Sychevs were willing to pay does not “prove” that the Sychevs could not afford the agreed upon purchase price. It is equally consistent with the Sychevs being tough negotiators. Bekman does not recall the precise reason for why she agreed to this, whether it be in appreciation of her clients, to assist them or otherwise. There is nothing untoward about Bekman agreeing to discount her commission to bridge the gap to allow the Sychevs to purchase Saul Court, particularly when she had the prospect of also having a commission on the sale of their existing home on Patricia Avenue.

[92] Nor is there any evidence that the APS purchase price was above the market value of the Saul Court property. The fact that it was sold over six months later for a lower amount, after the APS had been aborted, does not establish what the fair market value of that property was in May 2012 when Sychev agreed to purchase it.

[93] I find that the Sychevs wanted to buy the Saul Court property and gave no indication that it was priced outside of their financial means. Sychev willingly agreed to purchase the property for the stated purchase price and deposit and indicated his agreement to these amounts by initialling the corresponding handwritten changes to the form of offer that Bekman had prepared. These amounts were arrived at in the course of a bona fide negotiation during which the Sychevs had access to advice from their agent, Bekman. There is no evidence that they were deprived of any information or advice as a result of the circumstances under which they were negotiating that might have led to a different agreement about the purchase price or deposit amounts.

(d) The Removal of the Septic Inspection Condition

[94] The form of offer presented on behalf of the Sychevs contained a condition allowing for sewage and septic systems inspections until June 8, 2012, at the Buyer’s expense. The final executed APS had this condition crossed out by Kazakevich. Bekman and Kazakevich both testified that this condition was removed because Kazakevich explained that she had all of the documentation available that she would have produced to them to satisfy the condition and she showed it to Bekman and the Sychevs. Kazakevich explained that she had this documentation readily available because purchasers under previous offers had asked her to clean the septic tank and she had recently done so, even though the septic tank was relatively new and she did not feel it needed to be cleaned.

[95] Bekman testified that she went over this with the Sychevs. They also still had the protection of the Home Inspection Condition until June 1, 2012. She testified that the Sychevs were satisfied with this and Sychev indicated this by initialling this change on the form of offer he had signed.

[96] Mrs. Sycheva testified that she did not understand the documentation that was presented to be compliant with the condition in that it simply showed the last time the septic tank had been cleaned and did not provide any details of the original installation of the septic system to establish that it was “new”. She testified that when she questioned Bekman about the sufficiency of the work underlying the documentation, based on the cost having only been a few hundred dollars, Bekman told her that she was not reading the documents (which were in English) correctly.

[97] Mrs. Sycheva complains about the removal of the condition that had been included in their form of offer for the Buyer’s inspection of the sewage and septic systems. Mrs. Sycheva says that this was an important condition generally and specifically for this APS because she noticed a smell in the backyard. Sychev confirmed in his testimony that he toured the outside of the property with Mr. Kazakevich on May 25, 2012 before the APS was signed, and that he was aware that there was a septic system in place. He gave no evidence about any bad smell or concerns that he had about this septic system, nor any evidence about the removal of this condition.

[98] There was no evidence of there being any problem with the installation, inspection or operation of the septic system at the Saul Court property or that the condition could not have been met if it had been included in the APS. I make no finding in that regard.

[99] I accept the testimony of Bekman and Kazakevich and find that the removal of the septic inspection condition was discussed with the Sychevs for the reasons that Kazakevich gave at the time and that the Sychevs were aware of its removal and understood the implications of it not being included.

[100] Until June 1, 2012, Sychev had the Home Inspection Condition which he did not avail himself of. Even if the septic inspection condition had remained in the APS, Sychev has not established that he would not have availed himself of the septic inspection condition to bring the APS to an end on June 8, 2012, the very day that he waived the Financing Condition.

The Waiver of the Lawyer’s Approval Condition

[101] There were two documents tendered into evidence at trial entitled “waiver.” The first has the typed date of May 31, 2012 and it indicates that the buyer (Sychev) is waiving the Lawyer’s Approval Condition.

[102] After some contradictions in Sychev’s own trial testimony,[^3] it was confirmed on the record by Sychev’s counsel that it is not his position that he did not sign the waiver of the Lawyer’s Approval Condition. Neither of the Sychevs testified about a specific date on which Sychev signed the waiver of the Lawyer’s Approval Condition. Neither of them testified that it was signed on a date other than May 31, 2012. The document states above Sychev’s signature that it was signed at 5:00 p.m. on May 31, 2012. The date of May 31, 2012 also appears to the right of Sychev’s signature.

[103] Sychev alleges that this document was backdated and that it was not signed on May 31, 2012. The Sychevs did not deny attending a meeting with Bekman to sign documents relating to the APS but they contend that there is no “proof” that their meeting with Bekman (at which she says this first waiver of the Lawyer’s Approval Condition was signed) took place on May 31, 2012. It was argued on behalf of Sychev that it is implausible that they could have met when Bekman says they did because of the time of day and the location of the meeting that Bekman describes.

[104] Bekman says this waiver of the Lawyer’s Approval Condition was signed by Sychev at a meeting that took place around 5:00 p.m. on May 31, 2012 between Bekman and Mr. and Mrs. Sychev at a coffee shop at Bathurst and Elgin Mills. Bekman says that she contacted the Sychevs that day because the Lawyer’s Approval Condition was expiring. Bekman’s phone records confirm that she made calls to the Sychevs that day, shortly before noon and then again at 4:53 p.m. That second call lasted for about three minutes.

[105] Bekman testified that those calls were to arrange a meeting with the Sychevs to discuss the APS conditions that were about to expire. She says that her meeting with them took place shortly after the second call at a coffee shop location that was determined to be convenient for all to get to quickly at that time of day. She could not recall where they were all coming from but says that they were all close by and arrived at the coffee shop shortly after the call. Bekman says she reviewed with the Sychevs at that meeting that if they were still satisfied with their deal to purchase Saul Court, they could waive the condition or, if not, the deal would come to an end.

[106] Sychev alleges in his pleadings that he would not have signed the waiver of the Lawyer’s Approval Condition if he had known that the APS was at an end and that he could have gotten his deposit monies back. He did not testify to this at trial. This assertion is inconsistent with Sychevs testimony about his general understanding that if such a condition was not waived the deal would come to an end. He also testified that his general intention in May and June 2012 was to complete the APS. Sychev admitted during his cross-examination that although he did not read this document before he signed it, if they had discussed that this was a waiver of the Lawyer’s Approval Condition at the time, he would have signed it because he wanted to go ahead with the transaction.

[107] I find that Sychev signed the waiver of the Lawyer’s Approval Condition on May 31, 2012 and that Bekman did explain to him and he understood that, by doing so, he was waiving this condition of the APS and his purchase of Saul Court was not terminating.

[108] The Sychevs also challenge whether the waiver of the Lawyer’s Approval Condition was provided to Kazakevich on May 31, 2012, and specifically whether it was received by her by 6:00 p.m. on May 31, 2012 as the APS required it to be.

[109] Kazakevich and Bekman both testified that the waiver of the Lawyer’s Approval Condition signed by Sychev was given to Kazakevich by Bekman, and receipt was acknowledged by Kazakevich in writing (as seller’s agent), at a meeting that occurred between them at a Tim Horton’s coffee shop at Bathurst and Rutherford Road at around (shortly before) 6:00 p.m. on May 31, 2012. Since this was the only copy of the waiver, Bekman took it with her after the meeting and agreed to send a copy to Kazakevich. Kazakevich was on her way to another appointment. Bekman testified that she tried to send a copy of the waiver with acknowledgment to Kazakevich later that evening by facsimile from her house.

[110] Neither Mr. or Mrs. Sychev were present at the meeting that took place between Kazakevich and Bekman, but they question the credibility of it having occurred on May 31 based on an exchange of emails between Bekman and Kazakevich that took place the next day. On June 1, 2012, after having received from Bekman the proposed amending agreement to extend the Financing Condition and remove the Home Inspection Condition, Kazakevich wrote:

Two more things we have to clear:

Condition on Buyer’s Solicitor was due on May 31, 2012…I suggest the waiver dated May 31 will do…

And Amendment has to be acknowledged by Buyer.

Thank you.

Klara

[111] Kazakevich explained in her testimony that what she intended by this email (perhaps inelegantly expressed in English) was to remind Bekman that she needed a copy of the waiver of the Lawyer’s Approval Condition that had been signed and acknowledged on May 31 and that Sychev also needed to acknowledge receipt of the signed Amending Agreement that extended the Financing Condition and removed the Home Inspection Condition that were set to expire on June 1, 2012. The unsigned Amending Agreement had been sent by Bekman to Kazakevich earlier that day.

[112] When she was examined for discovery, Bekman did not recall the email or what it meant or that she did anything about it when she received it. At trial, Bekman testified that this email suggested that Kazakevich had not received the copy of the signed waiver that she had sent by facsimile, and that this prompted her to send the waiver of Lawyer’s Approval Condition signed May 31, 2012 to Kazakevich again on June 1, 2012.

[113] Mrs. Sycheva “interprets” this June 1, 2012 email differently and urges the court to do so as well. She says that it reflects a missed deadline (by indicating that the waiver “was due”) and a suggestion that as long as the waiver is [back] “dated May 31” that will do.

[114] Mrs. Sycheva testified that she discovered this cover up after Bekman forwarded to her on September 10, 2012 a string of emails dating back to May 31, 2012 (including the above June 1, 2012 email). Mrs. Sycheva says that Bekman confessed to her after forwarding the June 1 email to her in September 2012 that Bekman and Kazakevich had backdated the waiver of the Lawyer’s Approval Condition to May 31, 2012. Mrs. Sycheva testified that Bekman played for her an audio recording that Bekman had made of a conversation with Kazakevich in which this backdating was discussed, but this audio recording was not produced at trial. Mrs. Sycheva also claims to have overheard a telephone conversation that Bekman had with Kazakevich on her speaker phone in which Bekman is said to have told Kazakevich about this confession and been scolded for it.

[115] Kazakevich was not asked about these conversations during her initial testimony. Since it was raised for the first time in Mrs. Sycheva’s trial testimony, Kazakevich was recalled at the end of the trial. She denied that either conversation took place between her and Bekman. Bekman also denied making any confession to Mrs. Sycheva or that she spoke to Kazakevich about backdating the waiver of the Lawyer’s Approval Condition.

[116] To corroborate her story, Mrs. Sycheva claims that, after this confession and the phone conversation that she overheard between Bekman and Kazakevich, the Kazakevichs began harassing the Sychevs to pressure them to complete the APS transaction, by phone calls and coming to their home on Patricia Avenue. Specifically:

a. Mrs. Sycheva says that she received phone calls initially from Kazakevich directly, and then when she stopped answering the calls, from a phone number that Mrs. Sycheva says was associated with Mr. Kazakevich’s security business. Mrs. Sycheva produced some screen shots of calls from a phone number she says was Mr. Kazakevich’s. Mrs. Kazakevich did not confirm that the phone number belonged to her husband and denied that the calls were made when she was questioned about them in cross-examination.

b. Mrs. Sycheva says that Kazakevich secretly arranged to come to their home on Patricia Avenue under the false pretext of an appointment made by another real estate agent. Kazakevich acknowledged that she made arrangements to go and see the Sychevs’ home on Patricia Avenue with a friend of hers who was a real estate agent who made the appointment (since her requests for appointments had been declined). She said it was her lawyer who suggested that she go to see for herself the condition of the Sychevs’ home and whether it was sellable and clean after they advised that they were not going to close on Saul Court. The lawyer, Shub, confirmed that it would be consistent with his usual advice to a client to go and look at the property that a buyer who was trying to get out of a transaction was selling, even though he did not recall specifically telling Kazakevich to go to look at 191 Patricia Avenue.

[117] The Sychevs have not proven that Kazakevich made harassing phone calls. They are not corroborated by any other evidence and have been denied by Kazakevich. Nor does the visit by Kazakevich to their home amount to harassment. While it may not have been appropriate for Kazakevich, who is a licensed real estate agent, to arrange to come to their house under a false pretext through another agent, there is no suggestion that she confronted the Sychevs, pressured them while she was there, or that she even knew that they were aware of her having come to their house. These alleged calls and Kazakevich’s visit to the Patricia Avenue house do not corroborate Mrs. Sycheva’s story about Bekman’s alleged confession about backdating and the damning phone call afterwards.

[118] The alleged backdating of that document has not been proven.

[119] I find Bekman and Kazakevich to be generally credible and I accept their testimony that the May 31, 2012 waiver of the Lawyer’s Approval Condition was acknowledged to have been received by Kazakevich by 6:00 p.m. on that day, as the document indicates in the bottom portion where she signed it. I also accept Kazakevich’s explanation of the June 1, 2012 email, to be a follow up to be provided with a copy of the signed waiver. All of this is consistent with the document having been signed by Sychev around 5:00 p.m. and received by Kazakevich at around 6:00 p.m. on May 31, 2012, as indicated on the face of the document itself.[^4]

The Amending Agreement and Removal of the Home Inspection Condition

[120] The Amending Agreement dated June 1, 2012 and acknowledged by Sychev extends the Financing Condition to June 8, 2012 and deletes the Home Inspection Condition. Sychev confirmed that this document appears to have been signed and acknowledged by him on June 1, 2012.

[121] I have already reviewed Sychev’s testimony about his general understanding of this type of condition. He testified that although he did not read the specific documents that he signed relating to the APS transaction, including this Amending Agreement dated June 1, 2012, he understood that it would be typical to have Home Inspection and Financing Conditions in a purchase transaction such as this. He confirmed his general understanding of these conditions, and that he understood that if he did not waive them the APS transaction would be at an end.

[122] Bekman testified that she reviewed with the Sychevs which conditions were being removed or waived and the implications of so doing when each of the May 31, June 1 and June 8, 2012 documents were signed. She explained that the reason she did not ask Sychev to sign the Amending Agreement relating to the Home Inspection and Financing Conditions on May 31 when Sychev signed the waiver of the Lawyer’s Approval Condition was because these conditions did not expire on May 31, so she wanted to allow an extra day for the Sychevs to consider whether they wanted to go ahead with the APS transaction.

[123] Bekman testified that she asked Sychev on June 1 if he wanted to request an extension of the Home Inspection Condition since they would be asking to extend the Financing Condition to June 8 (discussed in the next section of these reasons). Sychev told her that he did not need to do a home inspection because he had already done an extensive review of the outside of the property with Mr. Kazakevich and did not want to spend the money on an inspection. On that basis, the Home Inspection Condition was removed from the APS, rather than extended to a later date.

[124] Sychev says, like all of the other documents, he did not review the Amending Agreement and that he was unaware that he had waived the Home Inspection Condition. Mrs. Sycheva also testified that Sychev did not review or understand the removal of the Home Inspection Condition contained in the Amending Agreement (or the waiver that he signed on June 8, 2012 of the Financing Condition, discussed in the next section of these reasons), and that none of these documents or their effects were explained by Bekman.

[125] They Sychevs were adamant in their testimony thatthey would not have given up the right to do a home inspection. Mrs. Sycheva testified that Bekman told her on numerous occasions that they could do a home inspection whenever they wanted to and that they could get out of the APS at any time after that inspection if they were not satisfied, right up until the September 28, 2012 closing date.

[126] Bekman denies that she said this or that she gave any assurance to the Sychevs that they would be able to get out of the APS after the conditions had all been removed or waived. This would not only have been directly contrary to the purpose and effect of the June 1, 2012 Amending Agreement, but I find it to be implausible that an experienced real estate agent such as Bekman would make such a statement to a client, knowing that it was not true. There is no obvious reason for her to have said this, and no theory of why she would do so was even postulated. It is also not plausible that the Sychevs, with experience in other real estate transactions, would have believed that they could get out of the APS right up until closing. That makes no commercial sense.

[127] Although Mrs. Sycheva says that she asked repeatedly about the home inspection after June 1, 2012 and was told by Bekman that Kazakevich was away but that it would be arranged, there is no record of Mrs. Sycheva asking for a home inspection until an exchange of text messages on September 12, 2012, at which time Kazakevich refused to allow the requested home inspection.

[128] By that time, it had already been communicated to Kazakevich that the Sychevs did not want to close the transaction.[^5] On September 11, 2012, after they were presented with the terms for extending the closing date from the sellers of the New Property that Kazakevich was buying, the Sychevs responded with a request for a mutual release to terminate the APS. Under these circumstances, the Sychevs’ request on September 12, 2012 to do a home inspection was disingenuous since they had already indicated that they were looking to get out of the APS transaction by then.

[129] I do not accept the suggestion that making a request for a home inspection in September 2012 is corroboration for the Sychevs’ stated belief that they had the right to do a home inspection and not to close if there was anything unsatisfactory right up until the closing date. Based on text messages produced from Mrs. Sycheva’s phone, it is more likely that at this point the Sychevs were just record building at the suggestion of their counsel after they had decided that they were going to try to get out of the APS transaction.

[130] While Sychev may not have been able to read documents written in the English language that he signed, including the June 1, 2012 Amending Agreement, I find that it was explained to him by Bekman that this document was removing the Home Inspection Condition and extending the Financing Condition to June 8, 2012 and that Sychev understood the implications of doing this. By this Amending Agreement, Sychev gave up the right to do a home inspection of Saul Court and affirmed his desire to proceed with the APS transaction.

The Financing Condition and Its Waiver

[131] Sychev’s conduct after June 1, 2012 is also consistent with his intention to complete the APS transaction. Mortgage financing was arranged, after which he waived the Financing Condition (which, if not waived, would have resulted in the APS coming to an end on June 8, 2012). The second waiver that Sychev signed, of the Financing Condition, is dated June 8, 2012. It is stated to have been signed by Sychev at 5:00 p.m. on that date. Receipt is acknowledged by Kazakevich on the same date, at 9:40 p.m. There is no allegation that this document was backdated.

[132] As has been already reviewed in these reasons, Sychev admits that he understood generally what a financing condition was and that, if not waived, the deal would be at an end. He testified that, like all other transaction documents, he did not read this waiver and did not know that was what he was signing at the time. However, he did admit in cross-examination that he would have waived the Financing Condition once he had arranged mortgage financing.

[133] As of June 1, 2012, when the Financing Condition was extended to June 8, 2012, the Sychevs had not been able to arrange mortgage financing. After being told that they would not qualify for mortgage financing for the purchase of Saul Court by their bank (RBC) and another mortgage company Allegra, Bekman recommended that the Sychevs contact a mortgage broker who she knew, Tatiana Babitch.

[134] Mrs. Sycheva testified that when she expressed concern and suggested that they put a hold on the transaction because they had received refusals from two banks, Bekman told her not to worry because they could still get out of the transaction. After the Sychevs’ initial unsuccessful efforts to arrange mortgage financing towards the end of May 2012, Mrs. Sycheva texted Bekman to say that she was upset that they had not been able to get satisfactory mortgage financing. Bekman replied “don’t worry.” At trial, Bekman could not recall why she replied in this way. The evidence indicates that it was around this time that she put the Sychevs in touch with Tatiana Babitch, the mortgage broker who assisted the Sychevs in securing their mortgage financing,

[135] According to Babitch, she was the one who suggested (prior to the June 1, 2012 Amending Agreement) that a request be made to extend the Financing Condition for five business days, to June 8, 2012. She testified that she was of the view that the mortgage company might need approximately that much time to complete the review of their mortgage application.

[136] Babitch speaks Russian fluently and testified that she communicated with the Sychevs in Russian. Babitch testified that she spoke to Mrs. Sycheva and was provided with a copy of the APS, their identifying information, and probably their bank statements for the past three months. Babitch was not sure whether Home Trust had requested the Sychevs’ Notices of Assessments from prior years before issuing its June 8, 2012 mortgage commitment. She explained that they sometimes asked for that to make sure that there were not outstanding income tax issues.

[137] Babitch testified that the Sychevs were approved for mortgage financing by Home Trust on June 8, 2012 and that, upon Bekman’s request, she requested and received a confirmation of such in writing that day. Home Trust’s June 8, 2012 mortgage commitment extending financing of $1,380,000.00 to the Sychevs was addressed to Babitch. This financing commitment was subject to confirmation of the Sychevs’ gross annual income being $200,000.00 each. It was also conditional upon the Sychevs having $1,000,000.00 to contribute to the purchase which could be sourced from the sale of their existing property. Although there was no signed copy of this mortgage commitment available to tender into evidence at trial, Babitch confirmed that she had received at the time a signed version of the unsigned document that was tendered into evidence at trial.

[138] Babitch testified that she received information from the Sychevs about their gross annual income. That information was the basis on which the June 8, 2012 Home Trust mortgage commitment was stated to be subject to verification of the Sychevs’ minimum annual gross income of $200,000.00 each. Babitch says she explained to the Sychevs that they would have to certify their annual income as a condition of the eventual mortgage financing. She testified that the information contained on Stated Income Declaration subsequently signed by the Sychevs, indicating that they had gross annual earnings of $200,000.00 each was based on what they had previously told her and also based on their banking information.

[139] Babitch testified that she brought the Stated Income Declarations to a meeting that she had with the Sychevs at a coffee shop in mid-June (they appear to be dated June 19, 2012) and explained the contents of these Stated Income Declarations to the Sychevs prior to witnessing their signatures on them. At no time did the Sychevs tell her that the indicated amount of their annual earnings on the documents they signed was inaccurate. Sychev did not deny that Babitch reviewed all the mortgage commitment and all of its conditions with the Sychevs when they met, he simply said he did not remember what they discussed at this meeting.

[140] Babitch testified in a direct and forthright manner and her testimony was not shaken on cross-examination. No reason was suggested for her to have been untruthful about the matters she attested to. I accept her account of what she was told and what transpired between her and the Sychevs in relation to the Home Trust mortgage commitment.

[141] There are three main areas of discrepancy in the evidence about this mortgage financing and the waiver of the Financing Condition.

[142] First, Sychev challenges the authenticity of the Home Trust mortgage commitment, questioning why the version that was produced was not signed and questioning why Home Trust would give them a mortgage when two other mortgage lenders had said they did not qualify. He further points out that CRA Notices of Assessment were not consistent with the stated expectation that they each had gross annual income of $200,000.00 and disclosed income amounts that could not have supported the monthly mortgage payments. I will come back to the conflicting evidence about the Sychevs’ Stated Income Declaration provided to Home Trust and their reported income to CRA.

[143] On this point of the authenticity of the Home Trust mortgage commitment, I accept Babitch’s testimony and find that the Sychevs were approved, that the Home Trust June 8, 2012 commitment letter was legitimate and that a signed version of it existed at the time. The authenticity of the Home Trust mortgage commitment is further corroborated by the fact that the Sychevs were subsequently able to get a mortgage for $1,068,750.00 for the purchase of a different (less expensive) home in Vaughan that they closed on in July 2013, despite the fact that their reported gross annual income reported to CRA in 2012 and 2013 could not support the monthly mortgage payments under that mortgage either.

[144] Second, it is submitted that Sychev did not understand that he was waiving the Financing Condition on June 8, 2012. This is based on his testimony that he did not read any of the APS transaction documents that he signed, but has to be considered in light of his admitted understanding of financing conditions and of the effect of waiving them in general, as well as the testimony of Babitch that she suggested extending the Financing Condition to June 8 and Bekman’s testimony that she explained to Sychev that he was signing a waiver of the extended Financing Condition based on the Home Trust mortgage commitment received on June 8, 2012.

[145] Sychev does not say that the signature on the waiver document is not his, nor does he challenge whether it was in fact signed on June 8, 2012. Taking into account the above testimony as well as Sychev’s admission that he would have signed a waiver of the Financing Condition once he had a mortgage commitment, and the fact that Home Trust had provided a mortgage commitment for the purchase of Saul Court on that same day, I find that it is more likely than not that Sychev did intend to waive the Financing Condition and understood that he was doing so when he signed the June 8, 2012 waiver.

[146] Third, the Sychevs gave various explanations and backtracked in their evidence about the declaration they provided to Babitch and Home Trust about each having gross annual incomes of $200,000.00. Sychev’s evidence about this was different at trial than it was on discovery. A few months before the trial, the Sychevs were ordered to produce their Notices of Assessment from their annual income tax filings during the time period in question. Those filings indicated a very different picture of their combined gross annual income, reported to be $110,000.00 in 2011, $50,000.00 in 2012 and $60,000.00 in 2013.

[147] Before the Sychevs’ Notices of Assessment from CRA were produced, Sychev testified on discovery that the stated annual gross income of $200,000.00 for each of them indicated in the Stated Income Declarations provided to Home Trust was accurate. He testified on discovery (read-in at trial and also put to him on cross-examination) that these income statements were true, that they each earned approximately $200,000.00 on an annual basis and that he understood that this information was being relied upon for their mortgage application. Mrs. Sycheva claimed to have been present during Sychev’s examination for discovery when he testified that the Stated Income Declaration amounts of $200,000.00 each were accurate and she explains that he was nervous and mistaken, but she did not correct him because no one asked her to, then or afterwards, until the trial.

[148] After their Notices of Assessment were produced, both Mr. and Mrs. Sychev testified at trial that those Notices of Assessment were the accurate representations of their gross annual incomes. They both denied telling Babitch that their annual gross income was $200,000.00 and denied that they had provided the figure indicated on the Stated Income Declarations when they signed them. Mrs. Sycheva surmised that Babitch had simply indicated whatever number she deemed necessary to get the approval and blames Babitch if the figure was incorrect

[149] Mrs. Sycheva admitted in cross-examination that they had access to money from their corporations that they could have used to pay their mortgage. She testified that if that should have been included in their income tax returns, and if their personal gross annual incomes reported to CRA was not accurate, that was the fault of their accountants. At a different point, she testified in relation to the levels of income indicated in the Notices of Assessment that they still could have worked harder to earn more income after they had the mortgage, in order to meet the monthly payments.

[150] I accept Babitch’s testimony and find that the Sychevs did tell her that their annual gross income was $200,000.00 each and that they signed Stated Income Declarations to that effect as part of the mortgage approval process. Nothing in this case turns directly on which is the accurate reflection of the Sychevs’ gross annual income in 2012 or preceding years, whether it be the declaration to Home Trust or their Notices of Assessment indicating what they reported to CRA. What is important for purposes of this decision is that the Sychevs’ testimony about their gross annual income in relation to what they reported for income tax purposes and what they declared to Home Trust changed, in Mr. Sychev’s case between discovery and trial and in Mrs. Sycheva’s case during her trial testimony. I find their evidence to be unreliable. This has impacted my overall assessment of their credibility when their testimony on other matters conflicts with the testimony of others (discussed in more detail below).

The Financial Wherewithal of the Sychevs

[151] It was argued on behalf of Sychev that Bekman should have realized from the difficulties that the Sychevs initially had in securing mortgage financing that they could not afford the Saul Court property. Bekman testified that she is not a financial advisor or mortgage specialist and that she referred them to a mortgage specialist. She did not inquire directly of them about their means. She took at face value that they were interested in homes priced in excess of $2 million (up to $2.5 million), that they lived in a nice home that was worth more than $1 million, and that they drove nice cars. Ultimately, a known mortgage company approved them for a mortgage in excess of $1.3 million.

[152] It was also argued that Bekman should have realized that the Sychevs could not afford to buy Saul Court because they would not agree to Kazakevich’s purchase price and Bekman had to reduce her commission to bridge the gap on price, they asked to pay the deposit in two installments and (according to Bekman) were reluctant to pay for a house inspection.

[153] Bekman explained that there are other reasons why a purchaser might not agree to pay the seller’s price that are not necessarily an indication of their financial means. Similarly, buyers often do not want to pay for home inspections. In other words, these were not red flags. No evidence was provided to support an assessment of the Sychevs’ actual financial means or wherewithal at the time.

[154] I accept Bekman’s testimony that she had not been alerted to a concern at the time that the Sychevs could not afford to purchase Saul Court. The identified circumstances would not have necessarily sounded any alarm bells.

The List Price for 191 Patricia Avenue

[155] Mrs. Sycheva testified that it was Bekman who suggested that they try to sell their home on Patricia Avenue in May 2012 because it was a good market to quickly sell smaller homes. Both of the Sychevs say that Bekman set the original list price of $1,460,000.00 for their home on Patricia Avenue. They say that they expressed concern from the outset that the list price was too high, based on the price of a neighbouring home that was larger, newer and nicer and priced at about that same amount. They say that Bekman told them to rely on her as the professional, although she did lower the list price at their encouragement, first to $1,428,000.00 and then to $1,388,000.00.

[156] Bekman says the opposite, that she advised the Sychevs that they needed to price their home lower to sell because they had a short time in which to sell it and close given their closing date for Saul Court. Bekman says that the Sychevs would not accept her advice and that Mrs. Sycheva specified the price at which she would be prepared to list their home on Patricia Avenue. Bekman says that she expressed concern from the outset that the list price was too high based on the comparable homes, but that over the course of the listing the Sychevs only reluctantly agreed to reduce it by small amounts.

[157] Mrs. Sycheva testified that the agent that they had used previously, Lene Preje, was away in May 2012. She acknowledged that they did not consult with her about the list price, even when they say they felt it was too high. After terminating the listing with Bekman in August 2012, on September 4, 2012 they listed the Patricia Avenue home with Preje, initially for $1,250,000.0. Mrs. Sycheva testified that this price was based on other comparable sales that Preje showed her at the time. The list price was later reduced to $1,170,000.00. It is not disputed that 191 Patricia Avenue eventually sold for $1,147,000.00.

[158] There are no documents on the point of who suggested the list price, aside from the listings themselves and the listing agreement. Everyone agrees that the original list price was too high. The Sychevs were the clients and this was not their first real estate transaction. They had to approve the list price. I find it to be more likely that the clients were insisting on the higher list price, as opposed to the agent.

[159] Bekman had agreed to cut her commission on the Saul Court property and later agreed to lower her commission on the Patricia Avenue property. It cannot be suggested that she was proposing an unrealistically high list price for Patricia Avenue because she was greedy and wanted a higher commission. No other reason was postulated as to why Bekman would have insisted on the higher list price.

[160] Conversely, Mrs. Sycheva admitted in cross-examination that their existing mortgage on Patricia Avenue was $400,000.00 and that they would have needed to sell it for around $1.4 million if that was to be the sole source of their funding of the required $1 million under the Home Trust mortgage to complete the purchase of Saul Court. There was no evidence that this was ever discussed between Bekman. However, the Sychevs knowledge of this is consistent with them insisting on the higher list price.

[161] The Sychevs have not established on a balance of probabilities that it was Bekman who advised them to list their home on Patricia Avenue at the higher list price. I find it to be more likely that the original list price was, as Bekman testified, set by Mrs. Sycheva and that the Sychevs did not heed Bekman’s advice that it was too high at the time, and only agreed to lower the price when their home did not sell as quickly as they had expected it would.

The Efforts to Sell 191 Patricia Avenue

[162] Both the Sychevs testified that their previous real estate agent, Preje, had advised them that it was customary to sell an existing home before purchasing a new home. Bekman testified that she gave them the same advice when they initially contacted her in May 2012 to help them find a new home. She testified that she highly recommended to them to sell first so they would know what they could afford to buy. Bekman says that this advice was not heeded by the Sychevs. Instead, they waited until after the APS went firm on June 8, 2020 to list their Patricia Avenue home with her for sale on June 13, 2012.

[163] Mrs. Sycheva testified that Bekman told her that Patricia Avenue would sell quickly. Bekman denies this and says that it was Mrs. Sycheva who repeatedly said that she was not worried about selling Patricia Avenue and she was confident it would sell quickly. Kazakevich testified that Mrs. Sycheva told her she was confident that they could sell the Patricia Avenue home in five days when she questioned during their review of the offer whether they needed to sell their existing home before purchasing Saul Court.

[164] Mrs. Sycheva had her own ideas about the price and time that it would take to sell the Patricia Avenue home. I find that Bekman did not make any representation to the Sychevs that they relied upon about the length of time that it would take to sell their home.

[165] Bekman says that once she had the listing for Patricia Avenue, she listed the home on MLS, advertised it in two Russian newspapers and on social media, and also created two virtual video tours that were accessible on a website that was linked to the listing and advertised on the for sale sign in front of the house. Bekman described in detail in her testimony the video tours, including the professional photographs that Bekman arranged for and used for promotional purposes. Mrs. Sycheva acknowledged the MLS listing and the advertisements in Russian newspapers. She was unaware of the virtual video tours or social media promotions.

[166] Bekman says that she did not do any open houses because the Sychevs did not want them. She explained that this was not a concern since, in her experience, open houses did not typically sell homes. Mrs. Sycheva testified that she wanted open houses but that Bekman refused to do them, saying they were a waste of time. She testified that they did do open houses with Lene Preje.

[167] Bekman testified that she recommended certain small renovations or touch ups to the home to improve its interior appearance to help in the sale process. She says that these recommendations were initially rejected by the Sychevs and only later undertaken by them in mid-July and the first part of August 2012. The Sychevs acknowledge that they changed the wallpaper and painted the inside of the house and some of their furniture over a two-month period after listing their home. They produced some photographs that were sent to Bekman to demonstrate the work that had been done, one of which is dated August 17, 2012. Mrs. Sycheva says it was her idea to do this, not Bekman’s.

[168] Bekman also testified that the Sychevs placed restrictions on the number of hours’ notice and time for showings because Mrs. Sycheva worked from home and had small children. She produced examples of four documented requests for showings in July and August 2012 that the Sychevs declined. Mrs. Sycheva testified that these declined showings were when they were doing the renovations and improvements to the inside of their home. The listings indicate a half hour time restriction on showings and notice requirements up to twenty-four hours at times. Mrs. Sycheva denied that she placed the indicated restrictions on the showings and that she only required one-hour notice for a showing. Mrs. Sycheva testified that they were always willing to leave the house and take their three children and their cats and sit in their car for any prospective purchaser who wanted to come to see their home, which was always clean and in condition to be shown on short notice.

[169] Although not documented, Bekman testified that she expressed concern regularly to Mrs. Sycheva about the fact that the Patricia Avenue home had not sold quickly as had been expected by Mrs. Sycheva and that there was a closing on Saul Court at the end of September. Bekman testified that she eventually recommended that the Sychevs consult with a lawyer she knew and to whom she had introduced Mrs. Sycheva previously, about trying to get an extension of the closing date.

[170] The communications between Bekman and the lawyer Martha Zatov are documented at the end of August 2012, in the context of which it was suggested that the client come to see the lawyer and bring a deposit of $500.00. So too are the communications with Mrs. Sycheva about this on August 30, 2012 which she translated to have said: “I’m not planning to pay anything nothing has been done yet for me to have to pay!!! Better move closing to November or close the deal. What is this [expletive]! Nothing has been done and they want me to give.”

[171] On balance, I prefer Bekman’s testimony over that of Mrs. Sycheva on the various points where they diverge about the efforts to sell the Patricia Avenue house. Bekman was aware that the APS conditions had been waived by Sychev in early June 2012 and that there was a narrow window in which to sell the Patricia Avenue home. No reason has been suggested for why she would set the Sychevs up to fail in the sale of their home, which would then undermine their financing commitment and ability to close on Saul Court. Her financial incentive as their real estate agent would be for them to succeed in closing two transactions. It would make no commercial sense for her to fail to advertise the home or discourage the Sychevs from improving the appearance of the inside of their home or to place restrictions on showings, as Mrs. Sycheva’s testimony suggests.

[172] Sychev has not established on a balance of probabilities that Bekman failed to promote or advertise the Patricia Avenue home for sale or that she advised them against improving its appearance to assist in its sale.

Findings of Credibility

[173] In my findings of fact (above) in almost every instance of conflict, I have favoured the evidence of Kazakevich and Bekman over the evidence of the Sychevs. I have done so having made a credibility assessment about the testimony pertaining to each particular factual point, based on the evidence available, common sense and the plausibility of their competing versions of events. It is not a coincidence that on matters dependent upon the reliability of the Sychevs’ testimony my findings did not go in their favour.

[174] In addition to contrary evidence given by Bekman and/or Kazakevich, and a lack of corroboration of their testimony on many subjects, there were inconsistencies between the Sychevs on some points and at times one or both of them gave two different versions of the same events at trial, or between discovery and trial. Some examples of these inconsistencies (identified earlier in these reasons) include:

a. Whether Sychev understood the APS conditions and understood what it meant to waive them. Sychev testified at trial that he did have a general understanding of this, but that he did not read or have explained to him any of the documents relating to the APS when he signed them. On discovery he admitted to understanding the specific conditions that were contained in the APS. He did not explain why he changed his testimony at trial but just kept repeating that he could not have read any of the APS documents because they were in English and that they were not explained to him by Bekman.

b. The waiver of the Lawyer’s Approval Condition. Sychev’s testimony is particularly problematic on this point. He testified at trial both that he did, and did not, sign this waiver document. He testified on discovery that he did sign it.

c. The information provided to the mortgage broker about the Sychev’s annual gross income and their efforts and ability to qualify for a mortgage.

i. Sychev’s testimony on discovery was that the information in the Stated Income Declarations that the Sychevs provided to the mortgage broker who assisted them in securing the mortgage commitment from Home Trust for the purchase of Saul Court was an accurate representation of each of their gross income. His testimony at trial was that it was not, and that the accurate (much lower) annual gross income information was reported on their tax returns. He did not offer any explanation for the discrepancy in his testimony, except to initially question the veracity of the discovery transcript.

ii. Mrs. Sycheva’s testimony was that their income tax returns were an accurate reflection of their gross income, but she held out that they had unspecified additional income from the corporations through which their businesses were operated. However, she still maintained that the gross income amount indicated on the Stated Income Declaration provided to Home Trust had not been provided by them and was not accurate, despite insisting that she was present during Mr. Sychev’s discovery when he testified that it was accurate. Her explanation for that was that he was nervous.

iii. No explanation was offered by either of the Sychevs about why no correction was made to Sychev’s discovery evidence until trial, shortly after they had been ordered to produce their Notices of Assessment filed with CRA that disclosed their reported (much lower) gross income amounts.

[175] The Sychevs contend that Bekman and Kazakevich are not credible and should not be believed. Many of the matters about which it is alleged that Bekman and Kazakevich are not credible in each of their cases are either corroborated by the testimony of the other and/or by independent documents. These include:

a. Whether the Sychevs were able to speak privately with Bekman when the APS was being negotiated;

b. Who asked for the September closing date;

c. Whether the Sychevs had their own views about how quickly they could sell their home on Patricia Avenue;

d. Whether the APS was based on Bekman’s previously prepared form of offer;

e. Whether the APS and its conditions were reviewed with the Sychevs in Russian before it was signed;

f. Why the septic inspection condition was removed from the APS;

g. Whether there was a meeting on May 31, 2012 at which the signed waiver of the Lawyer’s Approval Condition was provided to, and receipt was acknowledged by, Kazakevich before 6:00 p.m. on that day;

h. Whether the Sychevs were promised that they could do a house inspection after the House Inspection Condition was removed on June 1, 2012.

[176] Having regard to the corroborated testimony of Bekman and Kazakevich, and my assessment of each of their testimony independently, I find them to be generally credible.

[177] In contrast, Sychev was often evasive and contradicted himself during his testimony. Mrs. Sycheva was confident but unrelenting when confronted with documents that contradicted what she was saying. For example: (i) about the price range of the homes that they expressed interest in seeing, and (ii) about having repeatedly asked for and been promised a home inspection right up until September 2012, even though the only record of such a request having been made, and refused, is not until September 10, 2012.

[178] I find that the Sychevs’ testimony was not consistently forthright and credible, and I have not accepted their testimony when it was contradicted by the testimony of others or by contemporaneous records.

Analysis of the Identified Issues

The APS Was Validly Formed

[179] Sychev alleged that Kazakevich owed and breached duties to him as the selling agent and vendor in the negotiation and execution of the APS that rendered it invalid. This was not seriously pursued at trial. Sychev has not established any duties owed or breached by Kazakevich that interfered with the formation of a valid and binding contract on May 25, 2012 when the APS was signed.

The Conditions of the APS Were Duly Waived

[180] Sychev alleges that the signed waiver of the Lawyer’s Approval Condition was not provided to, and received by, Kazakevich by 6:00 p.m. on May 31, 2012 and, as a result, the APS came to an end on that day. Sychev relies upon the case of McKee v. Montermarano, 2008 CanLII 36163 (Ont. S.C.J.), at paras 21, 22 and 24, aff’d 2009 ONCA 359 for the proposition that an agreement should be held to be invalid if a “waiver [of one of its conditions] was not effectively delivered prior to the date and time contracted for by the parties.” In that case, Schedule A to the agreement expressly provided that the deal would be null and void unless the buyer returned the waiver by the specified time and date.

[181] I have found that the waiver of the Lawyer’s Approval Condition was signed by Sychev and received by Kazakevich in accordance with the APS, on the date and within the time specified for fulfillment of this condition. I have rejected the Sychevs’ theory that Kazakevich and Bekman conspired to backdate the waiver of the Lawyer’s Approval Condition, which they failed to establish on a balance of probabilities on the evidence.

[182] Furthermore, even if the APS had lapsed on May 31, 2012 because of a late waiver of the Lawyer’s Approval Condition, Sychev by his conduct thereafter reaffirmed the APS and his intention to proceed with it after May 31, 2012 by signing the Amending Agreement on June 1, 2012, arranging for financing from Home Trust, waiving the Financing Condition on June 8, 2012, listing the Patricia Avenue property for sale on June 13, 2012 and paying the second installment of the APS deposit on July 3, 2012.

[183] Sychev also did not testify that, had he known that the waiver of the Lawyer’s Approval Condition had not been received in accordance with the APS, he would have terminated the APS or been content to allow it to lapse. If Sychev had wanted to put an end to the APS, he had the opportunity to do so on June 1 (rather than sign the Amending Agreement) or on June 8 (rather than sign the waiver of the Financing Condition). Instead, he repeatedly reaffirmed the APS and his intention to proceed with the transaction to purchase the Saul Court property.

[184] This is consistent with the approach taken in Patel v. Harriott, 2017 ONCA 538 at para. 4, in which the Court of Appeal rejected the appellant’s argument that the respondents’ offer to purchase their home was null and void because they had accepted the offer after its stated expiry. The Court of Appeal upheld the application judge’s finding that there was a binding agreement:

As the application judge explained, while there was a dispute about when the appellants accepted the respondents’ offer, that dispute did not affect his ability to determine the application. The application judge found that whether or not the appellants accepted the respondents’ offer after its stated time of expiry, the appellants expressly signified that they were prepared to enter into an agreement to sell their home by signing and returning the respondents’ offer. Further, the parties subsequently proceeded in a manner consistent with a binding agreement having been concluded. For example, the appellants accepted a deposit cheque from the respondents and indicated they would only permit revisits to the home by the respondents that were permitted by the terms of the offer. There is no basis to interfere with the application judge’s legal determination [that there was a binding agreement] on this undisputed evidence.

[185] I have found that Sychev waived the Lawyer’s Approval Condition on May 31, 2012, agreed to the removal of the Home Inspection Condition on June 1, 2012 and waived the Financing Condition on June 8, 2012. After this, the APS became a final, binding and enforceable contract.

The Validity of the APS and Waiver of its Conditions has not been Negated by Non-est Factum or Fraud or Misrepresentations About its Binding Effect

[186] Sychev did not plead non-est factum. He nonetheless testified repeatedly that he did not read or understand the APS transaction documents that he signed. In any event, the law is well settled that: “In the absence of fraud or misrepresentation, a person is bound by an agreement to which he has put his signature whether he has read its contents or chosen to leave them unread.” See Du v. Bank, 2017 ONSC 2422, at para. 58 quoting from Fraser Jewellers (1982) Ltd. v. Dominion Electric Protection Co. (1997), 1997 CanLII 4452 (ON CA), 34 O.R. (3d) 1 (Ont. C.A.).

[187] Even if Sychev’s evidence is accepted, that he chose not to read or understand what he was signing when he signed the APS and the Amending Agreement and waivers of its conditions, that is not a legal excuse for him to be relieved of the binding effect of the APS. In any event, I have not accepted Sychev’s attempt to recant his discovery admissions that he did understand the APS conditions and that their waiver rendered the APS a final and binding agreement. Those admissions were consistent with Bekman’s testimony that she had explained all of the APS conditions and the implications of their waiver to him, and that she believed he understood them and was familiar with these types of APS conditions and the implications of their waiver from prior transactions that he had been involved in.

[188] Furthermore, Sychev has not established that there was any backdating or fraud committed by Bekman and Kazakevich in connection with the waiver of the Lawyer’s Approval Condition. Nor has he established that Bekman misrepresented to him that, notwithstanding his waiver or agreement to the removal of all of the APS conditions, he would still be able to conduct a home inspection of Saul Court and get out of the APS transaction right up until the closing date. The alleged discovery of the back dating of the waiver of the Lawyer’s Approval Condition did not give Sychev a good faith reason or justification for his withdrawal from the APS transaction. This is not a situation analogous to, Kaufmann v. Gibson, 2007 CanLII 26609, at paras. 51 and 129.

Sychev Anticipatorily Breached the APS and It Was Validly Terminated

[189] The Court of Appeal in Spirent Communications of Ottawa Inc. v. Quake Technologies (Canada) Inc., 2008 ONCA 92 explains an anticipatory breach of contract at para. 37:

… An anticipatory breach sufficient to justify the termination of a contract occurs when one party, whether by express language or conduct, repudiates the contract or evinces an intention not to be bound by the contract before performance is due … To assess whether the party in breach has evinced such an intention, the court is to ask whether a reasonable person would conclude that the breaching party no longer intends to be bound by it.

[190] There is no dispute that it was communicated to Kazakevich well before September 28, 2012 that Sychev would not close the APS transaction, thereby evincing a clear intention not to proceed with the APS and not to perform his obligations under it. I have found that the APS conditions had been duly waived or removed, and that the APS was a final, binding and enforceable contract. Sychev had no justification for refusing to complete the APS transaction. Kazakevich was entitled to accept that anticipatory breach and terminate the APS, which she did by her lawyer’s correspondence dated September 26, 2012.

[191] All of the requirements for an anticipatory breach have been satisfied. Kazakevich validly terminated the APS, entitling her to pursue damages against Sychev for breach of contract without the need to tender. See Nicolaou v. Sobhani, 2017 ONSC 7602, at paras. 36-42, and Douse v. Mascioli, 1997 CarswellOnt 2435 (Ont. C.J. Gen. Div.), at para. 14.

Kazakevich’s Damages

[192] Kazakevich mitigated her damages by relisting the Saul Court property for sale, and eventually completing the Third-Party Sale, at a lower price. The uncontested amount of her damages arising from Sychev’s anticipatory breach of the APS is $345,057.12. I have found that she has not proven the additional disputed amount of damages claimed, of $2,749.29.

Alleged Breaches of Duties by Kazakevich as Selling Agent Have not been Established

[193] Sychev alleges that Kazakevich owed duties to him as the selling agent. I was given very little support for this contention.

[194] Further, the alleged breaches have not been established, the primary one being the alleged backdating of the waiver of the Lawyer’s Approval Condition. I have also found that Sychev has not established that Kazakevich was pressuring him to proceed with the transaction by arranging to visit 191 Patricia through another real estate agent or harassing phone calls.

It has not been Established that Bekman was Negligent in the Performance of her Duties and Advice to Sychev in Connection with his Purchase of Saul Court

[195] Various contentions were made on behalf of Sychev about the duty of a real estate agent to “protect” the buyer by explaining the APS and its conditions and their waiver, by including appropriate conditions and allowing sufficient time to close, and by ascertaining the buyer’s financial ability to complete the prospective purchase before the buyer binds himself to a transaction.

[196] No expert evidence was presented about the standard of care of a real estate agent (for a buyer or seller). Further, there was no valuation evidence that the agreed upon purchase price for Saul Court was above market, so the complaints about the circumstances under which the APS was negotiated (with Bekman having allowed the Sychevs to negotiate directly with Kazakevich) do not lead to any claim or recourse.

[197] It is generally “inappropriate for a trial court to determine the standard of care in a professional negligence case in the absence of expert evidence”: See Krawchuk v. Scherbak, 2011 ONCA 352, 106 O.R. (3d) 598, at para. 130, leave to appeal to S.C.C. refused (2011), 297 O.A.C. 395. Two exceptions were recognized, in cases involving:

a. “[N]ontechnical matters of those of which an ordinary person may be expected to have knowledge” (at paras. 133-134); and

b. “[I]mpugned actions of the defendant that are so egregious that it is obvious that his or her conduct has fallen below the standard of care, even without knowing precisely the parameters of that standard” (at para. 135).

[198] Sychev relies on general statements from various cases, such as Blais v. Cook, 2005 CanLII 22210 (Ont. S.C.J.) about the duties of a real estate agent to take “proper care, skill or diligence in the carrying out of his undertaking” (at para. 27) and “to protect their clients against the special risks of a transaction” (at para. 31). It was argued that this case (and others) could be relied upon for the court’s authority to make findings of negligence against a real estate agent without an expert opinion where the alleged negligence is “elementary”, such as by failing to draw the client’s attention to provisions in the agreement that were contrary to the client’s interests or instructions (at paras. 33 and 49).

[199] Bekman argues that the Blais case (and the others relied upon by Sychev as examples where an expert opinion was not found to be necessary) pre-date Krawchuk. It is further argued that the alleged instances of negligence in this case are not “elementary” or “so egregious” that it is obvious that Bekman’s conduct fell below the standard of care, so as to obviate the need for an expert.

[200] I agree that certain duties may be obvious without the necessity of an expert. While it might not be necessary to have expert opinion evidence that the standard of care expected of a real estate agent requires them to review the purchase agreement with the client to ensure a basic understanding of it, and that it effectively addresses the client’s expressed objectives and concerns (See Wemyss v. Moldenhauer, [2003] O.J. No. 38, 7 R.P.R. (4th) 124 (Ont. S.C.J.), cited in Malpass v. Morrison, [2004] O.J. No. 4596, 28 R.P.R. (4th) 310 at para. 21), Bekman did not fall below this standard on the facts of this case.

[201] I have found that Bekman did review the APS with Sychev and explain to Sychev the APS conditions and the implications of their removal (in the case of the septic inspection condition and later the Home Inspection Condition) and of their waiver (in the case of the Lawyer’s Approval Condition and the Financing Condition).

[202] I have also found that Sychev had experience with conditions to be included in purchase agreements and a general understanding of them and the implications of their waiver (that by waiving the APS conditions, the agreement would become binding and he would be obligated to close). He was not a first-time purchaser, like Mr. Ha in Pitter v. Ha, 2005 CarswellOnt 10130, at para. 45. Bekman’s assessment that Sychev did understand the risk of not including, removing or waiving of APS conditions was reasonable in the circumstances.

[203] There are also causation issues with Sychev’s claims regarding the APS conditions. Sychev admitted to understanding that they would have to be waived in order for the transaction to go forward and I have found that his conduct was consistent with an intention and desire to proceed with the transaction in late May and early June 2012 (and therefore, consistent with the APS conditions being waived or removed). Sychev admitted to understanding that once the APS conditions were waived, he would be obligated to close the transaction. From this, I infer that even if Bekman did not go through the waiver of the APS conditions with him, he had a sufficient understanding of them that, if it had been discussed with him at the time, he would have waived them to allow the APS transaction to proceed. However, the outcome of this case does not depend upon this inference.

[204] In terms of the negotiation of the APS itself, I have found that the APS purchase price and deposit amounts were arrived at in the course of a bona fide negotiation during which the Sychevs had access to advice from their agent Bekman. I have also found that there was no evidence that the Sychevs were deprived of any information or advice as a result of the circumstances under which they were negotiating (directly with Kazakevich) that might have led to a different agreement about the purchase price or deposit amounts. There is no evidence that any better price could have been negotiated for the Saul Court purchase or that the APS price was above market value.

[205] I have found that the removal of the septic inspection condition from the APS was discussed with the Sychevs. But even if it had not been, it would not have resulted in any different information being provided; rather, it would have been handled in a manner similar to the Home Inspection Condition which was eventually waived. Even if the septic inspection condition had remained in the APS, it is not probable that Sychev would have availed himself of this condition to bring the APS to an end on June 8, 2012, the very same day that he waived the last remaining condition, the Financing Condition.

[206] I have also found that it was the Sychevs who insisted on the September closing date and who refused to heed Bekman’s advice about a later closing and a lower list price for their home on Patricia Avenue. The allegation seems to be that Bekman had a duty not only to give them advice but to force them to follow it. I do not consider that to be elementary or obvious, in the absence of any expert evidence on the standard of care in this regard.

[207] Further, it is alleged that Bekman had a duty to ascertain the true financial circumstances of the Sychevs and not to accept how they presented themselves (by the houses they were interested in, the cars they drove and the home they lived in) or how they represented their circumstances to others (with information that qualified them for a mortgage commitment from Home Trust). I have found that the alleged signs of financial difficulties (their refusal to agree to Kazakevich’s price resulting in a reduction in Bekman’s commission, their request to pay the deposit in two installments and their initial inability to qualify for a mortgage) were not red flags and could be equally consistent with hard bargaining and cash flow issues. Ultimately, they did qualify for a mortgage and, although they have produced their personal tax returns, their evidence about the gross income was unreliable and they provided no evidence at trial of their actual net worth or financial ability to purchase Saul Court.

[208] In any event, I do not consider it to be elementary or obvious that a real estate agent has a duty to investigate the financial circumstances of her clients and “protect” them from making an offer to purchase a home that is beyond their means, in the absence of any expert evidence on the standard of care in this regard.

[209] Although there were objections to questions put to Bekman in cross-examination about the Real Estate and Business Brokers Act, 2002 Code of Ethics (Ont. Reg. 580/05), as amended (the “Code”), I did permit questioning of Bekman about her familiarity with various sections of the version of the Code that Sychev’s counsel represented to be in effect at the relevant time. The sections reviewed with Bekman (over objection from her counsel) established that she was aware of the provisions dealing with promoting the best interests of her clients, exercising reasonable skill and competency, the general things to inform a buyer about concerning the relationship between the broker and the client, the disclosure of material facts, the avoidance of errors and misrepresentations and fraud and unprofessional conduct.

[210] The sections of the Code identified during Bekman’s testimony did not deal with a specific duty of a real estate agent to ascertain the financial abilities of her client to complete a purchase transaction or to take steps to force a client to heed advice given but not accepted. Further, Bekman’s acknowledgment of familiarity with various requirements of the Code that were put to her does not translate into an admission that those requirements were breached in her dealings with the Sychevs, nor do my findings of fact support the contention of Sychev that those requirements were breached by Bekman.

[211] Thus, while the Code might have provided some evidence of professional standards of conduct to which Bekman ought to adhere, Sychev has not established that she breached any such standards and I have made no findings to that effect. The absence of any factual foundation for finding that Bekman breached the Code is consistent with the Sychevs’ complaint about Bekman to the Real Estate Council of Ontario (a body that I would expect to be familiar with the standards applicable to real estate agents under the Code) having been dismissed.

[212] Much of the weight of the allegations against Bekman for her breaches of duties are tied to the alleged backdating of the waiver of the Lawyer’s Approval Condition. A duty to disclose material facts (such as a backdated document) and not to participate in a fraud may well not require expert evidence on the standard of care (see Malpass v. Morrison, [2004] O.J. No. 4596). However, once again, these alleged breaches of duty depend upon the existence of an alleged undisclosed underlying act of fraud (backdating) that has not been established on the evidence.

[213] While Sychev argues that the June 1, 2012 email from Kazakevich ought to have been disclosed to the Sychevs, it is only Mrs. Sycheva’s interpretation of that email (which I have rejected) that is said to constitute the undisclosed material fact. It is not obvious to me that emails exchanged between real estate agents in the course of a transaction about the exchange of documents are required to be disclosed, and there was no expert testimony establishing such to be the standard.

[214] Sychev also alleges a breach of duty arising from Bekman’s disclosure of her emails with the Sychevs about the termination of the transaction in September 2012. While Sychev argues that there was no reason to do this since it was already known to Kazakevich that they did not intend to close, the fact that it was already known also undermines the contention that this disclosure by Bekman, even if improper, caused any loss to Sychev.

[215] The claim in negligence against Bekman in the performance of her duties as agent for Sychev as the buyer of the Saul Court property has not been established.

It has not been Established that Bekman was Negligent in the Performance of her Duties and Advice Given to the Sychevs as the Selling Agent for Patricia Avenue

[216] Proof of the standard of care would also have been a concern if this aspect of Sychev’s claim had any foundation in fact. However, I have found it does not.

[217] Bekman was not the one who suggested the initial listing price of 191 Patricia Avenue that the Sychevs now say was too high (that was their price, Bekman advised them it was too high, and they did not heed her advice). The Sychevs also could not have relied on anything that Bekman said about 191 Patricia Avenue in any decisions they made about the APS for Saul Court or the waiver of its conditions because there is no evidence of any discussions between the Sychevs and Bekman about listing 191 Patricia Avenue until after the APS conditions had all been waived. Further, no evidence was presented about what a reasonable list price for 191 Patricia Avenue would have been in May 2012.

[218] It has not been established that Bekman failed to advertise or promote the sale of this property as the Sychevs allege (she created an MLS listing, virtual tours with professional photographs and advertised to a targeted community in the Russian newspapers and on her social media accounts). It has not been established that Bekman dissuaded the Sychevs from improving the appearance of their home to enhance the prospects of its sale (it was they who were reluctant at first to make these improvements, but eventually did so after the property had been listed for a month). Bekman could not control the number of requests for showings, but she was not responsible for the time and notice restrictions that were placed on the showings (those would have originated from the Sychevs).

[219] Nothing Bekman did (or failed to do) in connection with the efforts to sell 191 Patricia Avenue obviously fell below what I would expect of a selling agent, and there was no standard of care expert who testified otherwise. The claim in negligence against Bekman in the performance of her duties as agent for Sychev in the sale of 191 Patricia has not been established.

It has not been Established that Bekman Made Misrepresentations to Sychev

[220] Sychev has not established that Bekman represented to the Sychevs that they could do a home inspection of Saul Court and get out of the transaction right up until the closing date. Bekman denies that she told the Sychevs that they could just walk away from the deal at any time after June 8, 2020 when the last of the APS conditions was waived and denies that she told them after June 1, 2012 that they could still do a house inspection of Saul Court. I have rejected as implausible the Sychevs’ testimony that representations to that effect were made.

[221] The recorded instances of Bekman providing assurances to the Sychevs and telling them “don’t worry” appear to have been prior to Sychev’s waiver of the Financing Condition and in relation to them not having secured a mortgage commitment, which they eventually did obtain from Home Trust before they waived the Financing Condition on June 8, 2012.

[222] Bekman did not represent to the Sychevs that their home on Patricia Avenue would sell quickly or at any specific price. I have found, to the contrary, that Bekman expressed concern from the outset about the Saul Court closing date (that the Sychevs’ asked for) and the time that this allowed for them to sell 191 Patricia Avenue. She advised them to consult with a lawyer about seeking an extension of the closing date but the Sychevs refused to do so. They also rejected the terms upon which an extension of the closing date to November 2012 was offered to them (based on the terms that the vendor to Kazakevich had insisted upon for her to extend the closing for her purchase of the New Property).

[223] Bekman argues that a representation must be of an ascertainable fact, not an opinion, forecast or expectation (see Hembruff v. Ontario Municipal Employees Retirement Board (2005), 2005 CanLII 39859 (ON CA), 78 O.R. (3d) 561, at para. 76 (Ont. C.A.), citing Hinchey v. Gonda, [1955] O.WN. 125 (H.C.) at p. 128). Statements about the timing and price at which 191 Patricia Avenue would sell or general assurances “not to worry” are not statements of fact upon which a claim for misrepresentation can be grounded.

[224] The absence of proof of any untrue, inaccurate or misleading statement made by Bekman is fatal to a claim for negligent misrepresentation. In light of such, it is not necessary for me to review the other requirements of such a claim, which are well known dating back to the Supreme Court of Canada’s decision in Queen v. Cognos, 1993 CanLII 146 (SCC), [1993] 1 S.C.R. 87.

Limits on Damages Flowing from Bekman’s Alleged Negligence, Conspiracy or Misrepresentations

[225] Since the alleged wrongdoing of Bekman has not been established, Sychev is not entitled to any damages. However, if he was entitled to damages from Bekman they would be limited because of:

a. Sychev’s failure to prove any losses aside from the loss/forfeiture of his deposit monies and possibly a flow through of amounts he is ordered to pay Kazakevich;

b. Sychev’s contributory negligence (failing to read or to ensure that he understood any of the documents he was signing – this is not a case of him failing to notice a mistake by the realtor or to notice a particular clause in the APS, such as were at issue in Blais at para. 55, citing Wymess; Sychev admits that he did not bother to read or understand anything he was signing); and

c. Sychev’s failure to mitigate by not taking the opportunity to extend the closing date to November 2012 to allow for more time to sell 191 Patricia Avenue or make other bridge financing arrangements.

Final Disposition and Costs

[226] Kazakevich is entitled to judgment as follows:

a. A declaration that Sychev breached the APS;

b. A declaration that the Deposit Monies paid by Sychev for the purchase of Saul Court are forfeited and an order directing the lawyer for Sychev who is holding the Deposit Monies of $50,099.00 plus any accrued interest thereon to pay those monies to Kazakevich;

c. An order directing Sychev to pay to Kazakevich the sum of $345,057.12 less the Deposit Monies of $50,099.00;

d. Pre-judgment interest pursuant to s. 128 of the Courts of Justice Act, R.S.O. 1990 c. C-42, on the sum of $294,958.12, based upon the representation that the Deposit Monies have accrued interest and on the assumption that the accrued interest thereon is equal to or more than the Courts of Justice Act rate for pre-judgment interest or if not, then the pre-judgment interest payable by Sychev on the Deposit Monies should be topped up to the Courts of Justice Act rate;

e. Post-judgment interest pursuant to s. 129 of the Courts of Justice Act on the entire amount ordered to be paid to Kazakevich, of $345,057.12;

f. Sychev’s counterclaim in the Kazakevich Action is dismissed; and

g. the Sychev Action is dismissed as against Kazakevich, Bekman and RE/MAX Vision Realty Inc.

[227] The parties asked to defer their costs submissions until after the outcome of the trial was known. They were directed to exchange their bills of costs with each other by the end of March 2020 and I assume that exchange has taken place. I would encourage the parties to try to reach an agreement on costs. However, if they are unable to do so, I will allow them an opportunity to make written cost submissions. If an agreement on costs is reached, counsel are asked to advise the court of such by June 19, 2020. Failing agreement, each counsel may serve upon the other parties and submit to the court a written cost submission (not to exceed 3 pages double spaced) together with their bill of costs by July 7, 2020 and each may deliver a written responding cost submission to each adverse cost submission received (not to exceed 1.5 pages double spaced) to be submitted to the court by July 21, 2020. These may be submitted to the court by email to my assistant: Linda.Bunoza@ontario.ca.

[228] Notwithstanding Rule 59.05, this judgment is effective from and after the date indicated below and it is enforceable without any need for the entry and filing of a formal judgment. In accordance with Rule 1.04, no formal judgment is required unless an appeal or a motion for leave to appeal is brought to an appellate court. Any party may nonetheless submit a formal judgment for original signing, entry and filing when the Court returns to regular operations.

Kimmel J.

Released: June 4, 2020

COURT FILE NO.: CV-13-472121 CV-12-466872

DATE: 20200604

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

KLARA KAZAKEVICH

Plaintiff

– and –

KONSTANTIN SYCHEV

Defendant

AND BETWEEN:

KONSTANTIN SYCHEV

Plaintiff by Counterclaim

– and –

ANGELIKA BEKMAN

Defendant by Counterclaim

AND BETWEEN

KONSTANTIN SYCHEV

Plaintiff

– and –

KLARA KAZAKEVICH, ANGELIKA BEKMAN, RE/MAX VISION REALTY GROUP INC. and CENTURY 21 HERITAGE GROUP LTD.

Defendants

REASONS FOR JUDGMENT

Kimmel J.

Released: June 4, 2020

[^1] At the outset of trial, on consent of all parties, I signed an order permitting an amendment to Kazakevich’s statement of claim in Action No. CV-13-472121 to increase the damages claimed from $300,000.00 to $350,000.00. The action had previously dismissed as against Century 21 Heritage Group Ltd., Kazakevich’s brokerage firm that had been holding the deposit monies paid by Sychev in respect of the aborted transaction. The deposit monies were paid into and continue to be held in the trust account of Sychev’s lawyer. Kazakevich seeks forfeiture of the deposit monies and will credit the funds received against any damages awarded.

[^2] The spelling of the last name Sychev was indicated to be “Sycheva” for Konstantin’s wife, Zarema Sycheva.

[^3] In his testimony in-chief Sychev initially said that the signature on this document did not appear to be his. There was an objection raised to evidence of forgery being elicited since this had not been pleaded. In his pleadings, Sychev had consistently alleged that the document was backdated (implicit in which was an admission that he had signed it). It had never been previously alleged that Sychev did not sign it. After conferring with his counsel, Sychev instructed her that he did not wish to seek an amendment to his pleadings to allege that he had not signed the document and that it had been forged, or to seek leave to withdraw any prior admission in the pleadings that it had been signed but backdated. He then clarified his testimony and said that what he meant to say was that he was signing the documents he was given but was not reading them and that was the case for all documents he had signed that were being discussed in this proceeding. Sychev’s instructions to his counsel not to seek leave to amend his pleadings or to withdraw any admission that the waiver had been signed but backdated were re-confirmed again after his testimony was completed when he was given a further opportunity to confer with his counsel and instruct her.

[^4] It was confirmed during closing submissions at trial that there was no evidence about when Kazakevich signed this waiver as the “Seller” in the space above the receipt acknowledgment, or who witnessed that signature, aside from Bekman’s testimony that the signature of the witness was not hers. Counsel for Kazakevich submitted that the “Seller” did not need to sign the waiver since it was a condition being waived by the “Buyer” and she only needed to acknowledge its receipt, so the evidence about the extra signature of the “Seller” and who witnessed it and when it was signed would not add any relevant evidence to the record. My decision is based on the evidence that was tendered about the signed acknowledgment of receipt by Kazakevich, in her capacity as the Seller’s agent.

[^5] It is admitted by Sychev that they had already communicated that they did not intend to close the APS transaction by this time. This admission forms part of another complaint that they have made against Bekman. Sychev complains that Bekman breached her duty of confidentiality to the Sychevs by forwarding to Kazakevich the exchange of emails between Mrs. Sychev and Bekman that also included a September 13, 2012 email from Mrs. Sychev indicating that she had filed a complaint with RICO and that Kazakevich would have to answer for her fraud. Bekman says she passed this email exchange along to Kazakevich so that she would know that the Sychevs would not be proceeding with the transaction and had hired a lawyer. Sychev argues that it was forwarded in bad faith because Kazakevich already knew by then that the Sychevs did not intend to close on their purchase of Saul Court based on their request for a mutual release on September 11, 2012. The allegation of bad faith and breach of duty of confidentiality by Bekman has not been established, but the positions taken reinforce that the Sychevs believed that it had been communicated to Kazakevich on or about September 11, 2012 when they asked for a mutual release that they did not intend to close the APS transaction.