COURT FILE NO.: CV-19-611905
DATE: 20200824
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
FOREST HILL HOMES (CORNELL ROUGE) LIMITED
Plaintiff
– and –
HAI TUN WEI
Defendant
COUNSEL:
Shane Greaves, for the Plaintiff
Shahzad F. Siddiqui, for the Defendant
HEARD: July 8 and August 20, 2020
BEFORE: F.L. Myers J.
Background
[1] The plaintiff owns a residential townhouse development in Markham, Ontario. It moves for summary judgment for damages suffered on the aborted sale of a subdivision home to Ms. Wei. After hearing argument, I had concerns about the applicability of the “irrevocability” clause in the standard form offer to purchase and of the application of the doctrine of unconscionability as recently revised by the Supreme Court of Canada in Uber Technologies Inc. v. Heller, 2020 SCC 16. Therefore, I gave directions for the continuation of the motion as a mini-trial on August 20, 2020. At that time I heard live testimony from the two key witnesses and further legal submissions from counsel.
[2] I find that this is an appropriate case in which to find the facts and apply the applicable law. There is no material evidence left to be heard. The process allows me to fairly resolve the action. Neither party argued that there is a need for a further trial.
[3] For the reasons that follow, the defendant is adjudged liable to pay to the plaintiff the sum of $179,599.94 plus prejudgment interest under s. 128 of the Courts of Justice Act, RSO 1990, c C.43, from January 31, 2018 to today.[^1] Postjudgment interest will also be calculated under s. 129 of the statute.
Facts
[4] On February 19, 2017, Ms. Wei, her husband, and their two children attended the plaintiff’s showroom for its Cornell Rouge development. Ryan Latchman was the salesperson on duty in the showroom for the plaintiff at the time. Mr. Latchman showed Ms. Wei and her husband photos and models of different houses that were available. They left.
[5] Ms. Wei and her family went back to the showroom that afternoon. In the interim, Ms. Wei had called a real estate agent to obtain some information about the project. The agent was apparently unable to help Ms. Wei. When they attended the showroom in the afternoon, Ms. Wei saw an agent in the showroom helping others. She initially thought the agent was connected to the plaintiff. The agent, named Grace, was happy to help Ms. Wei.
[6] Mr. Latchman objected to Grace acting for Ms. Wei as he felt she was just fortuitously present and trying to pick up an easy commission at the parties’ expense. Ms. Wei testified that Mr. Latchman and Grace had an argument in front of her. They eventually retreated into the office. When they emerged, Grace was able to and did assist Ms. Wei.
[7] As Ms. Wei neared a decision, she, Mr. Latchman, and Grace, went into a separate room leaving her husband to attend to the children in the showroom. She says that Mr. Latchman and Grace pressured her to buy. Mr. Latchman told her that the house that Ms. Wei wanted was one of the last ones of that type available. Its price would go up if it was not bought soon. Grace advised that she had invested in the community and had profited by doing so. She had several clients who had bought there too who are happy with their homes.
[8] Ms. Wei stresses that she is a “housewife” who does not read English well. She signed the agreement of purchase and sale provided by Mr. Latchman without reading it and without any discussion with her husband who was in the next room with the children.
[9] The agreement of purchase and sale is a standard form prepared by the developer. It is one page long and incorporates a number of separate schedules. The single page agreement has a number of blank lines for insertion of the name of the purchaser, the lot number, the model of the house, the name of the sales representative, the price, and the amounts and dates of deposit instalments. There are then three paragraphs of fine print identifying the schedules incorporated into the agreement.
[10] The final paragraph of the agreement is immediately above the lines for the purchaser to write the date and her signature. It is a single sentence that says:
For consideration received the Purchaser agrees that this offer cannot be revoked by it for ten days after the date next set forth, after which date, if not accepted, this offer shall be deemed null and void and the deposit returned to the purchaser.
[11] Mr. Latchman and Ms. Wei agree that the only terms that Mr. Latchman brought specifically to Ms. Wei’s attention were: the description of the house (the lot and model), the price, the required instalments of the deposit, and where to date and sign the document. They did not discuss the irrevocability of the offer.
[12] After Ms. Wei signed the agreement form to make her offer to purchase, Mr. Latchman put a red sticker on the model of the development in the showroom to show that the home that Ms. Wei offered to purchase was no longer available to buyers. The plaintiff does not accept competing offers to create an auction to bid up the price of its lots.
[13] Ms. Wei paid a $20,000 deposit that day.
The Disputed Misrepresentation
[14] Mr. Latchman says that the next time he saw Ms. Wei was when she attended at the showroom to pick up the accepted agreement of purchase and sale on February 22, 2017.
[15] The developer signed and accepted Ms. Wei’s offer on February 21, 2017. Mr. Latchman put into evidence text messages with Grace that are still in his cell phone that show that he discussed with her the timing of the pick-up of the signed agreement on the 22nd.
[16] Ms. Wei testifies that on February 20, 2017, she attended the showroom without Grace. She says that Mr. Lachman called her to come in because he needed her Social Insurance Number on the agreement. Ms. Wei testifies that when she attended the showroom, she asked Mr. Latchman whether there was a “cooling off period” available. She says that he told her that the agreement had already been confirmed by the builder when, in fact, the plaintiff only signed the agreement the next day.
[17] Ms. Wei testified that she did not want to lose her deposit of $20,000 so she decided to continue with the purchase. In March, April, May, and June, she paid $20,000, $20,000, $30,000, and $35,000 respectively to provide a total deposit of $125,000 on a purchase price of $1,369,990.
[18] In March, 2017, Ms. Wei attended the showroom to pick her colours and options for the house. She also agreed to upgrade her bathroom door selection for an additional price of $1,300.
[19] The plaintiff scheduled the closing date for January 31, 2018. By that time, the appraised value of the house had declined and Ms. Wei was not able to obtain sufficient financing to close the sale. Ms. Wei went to a lawyer and had the lawyer ask the plaintiff to decrease the purchase price. It declined.
[20] Having never read the agreement of purchase and sale, it was only upon consulting litigation counsel sometime later that Ms. Wei learned that the plaintiff signed the agreement on February 21, 2017. She never mentioned before then her alleged request about a “cooling off period” on February 20, 2017.
[21] Mr. Latchman points out that February 20, 2017 was Family Day in Ontario. The showroom was closed on that statutory holiday. While Mr. Latchman agreed that he sometimes works, by appointment only, on days that the showroom is closed, he was adamant that he did not meet Ms. Wei that day.
[22] Ms. Wei and Mr. Latchman agree that Ms. Wei did not have her Social Insurance Number with her when she signed the offer on the 19th. Ms. Wei says that the appearance of her Social Insurance Number on the signed agreement of purchase and sale is evidence that she attended on the 20th and that she was misled by Mr. Latchman as to her entitlement to revoke her offer. The builder had not yet signed despite Mr. Latchman telling her that the agreement had been confirmed.
[23] On the view that I take of the case, I do not need to make a credibility finding. In my view, as discussed below, the irrevocability clause in the offer was binding on Ms. Wei. She was not entitled to revoke her offer on February 20, 2017 even if she had wished to do so. In the event that others disagree with my view of the law, however, I find it necessary to make findings of fact.
[24] I am loathe to find that a witness made up a story. It would be easier to find that Mr. Latchman just forgot about a meeting. He has met hundreds of customers, if not thousands, over the years. His lack of an explanation for the appearance of the Social Insurance Number is consistent with a lack of a perfect memory of every encounter he had with Ms. Wei. But I have read his affidavits and heard him testify. His testimony was fair, consistent, and consistent with a commonsense view of how people interact.
[25] Ms. Wei’s testimony had important inconsistencies. In her affidavit, there is only one trip to the sales office in which she is met by Grace and Mr. Latchman, both of whom worked for the plaintiff. She said they pressured her into buying. The fact that the family went back in the afternoon shows a more deliberate determination to purchase. The children’s presence was deliberate and not a happenstance.
[26] In addition, after she heard Mr. Latchman testify that Grace was an independent agent and that he objected to Grace using Ms. Wei for a quick commission, Ms. Wei disclosed the testimony about hearing Grace and Mr. Latchman argue. That is, while she might have thought that Grace was a representative of the plaintiff on arriving that afternoon, she knew that Grace was an independent real estate agent before she took Grace into the office to negotiate the deal.
[27] Moreover, if Ms. Wei thought Grace was with the plaintiff, it does not make sense that she would be asking Grace to help her deal with Mr. Latchman.
[28] I find that Ms. Wei presented her evidence to create the impression that she happened into the showroom with her family and found herself pressured by the plaintiff’s aggressive staff. In fact, Ms. Wei and her husband made a deliberate decision to go back to the showroom in the afternoon to consider buying a house. She also knew she could be assisted by a real estate professional and that Grace was independent of the plaintiff. She took Grace into the office to help her make a deal with Mr. Latchman.
[29] Ms. Wei blames the plaintiff for not telling her that she needed a lawyer before signing the agreement. However, she also testified that rather than just going to the bank for a mortgage, she retained a financial agent to find financing for her. When the financial agent told her she could not get financing at the agreed price, the agent recommended a lawyer who sought a price decrease from the plaintiff. Ms. Wei knew to use a professional realtor to negotiate the purchase and a professional financial agent to find a loan. She knows how to retain professionals when she wants to do so.
[30] During her testimony, Ms. Wei kept repeating that she was a “housewife” to invite me to adopt a stereotypical view of her abilities and her vulnerability. She and her husband had gone home and decided to come back that day to make a deal. They decided that she would go into the office to negotiate the transaction while he looked after the children. She did not call a lawyer. She did not call her husband into the room or go out to the showroom to say she needed his help understanding the draft agreement. I readily accept that as a retail consumer Ms. Wei was vulnerable to the economic power and knowledge disparity compared to the developer. However, I do not accept that she was compromised in her intellect or her ability to make adult choices with free will despite describing herself as a “housewife”. She swears in her affidavit that her husband’s presence and input “is very important to me when making major decisions like purchasing a home.” That was patently not the case on February 19, 2017.
[31] When asked why she did not read the agreement before she signed it or at least after she picked up the final version, Ms. Wei replied that she did not need to read the agreement because she did not know that she could not get funds from a bank at the price she had agreed to pay. And that is what is really driving her defence. She was perfectly content with the purchase until the market dropped and she could not get financing.
[32] I think it is significant that Ms. Wei never said in either her affidavit or orally that she actually intended to revoke the offer on February 19th had she been entitled to do so. She says she asked about a cooling off period and when Mr. Latchman said that the agreement had been confirmed, she decided that she did not want to lose her $20,000 deposit. If Ms. Wei wanted to get out of the deal at that time, it does not make sense to me that instead of trying to stop her cheque, or negotiate a return of $20,000 or a piece of it, she would then pick colours, agree to pay a further $1,300 for a door, and pay a further $105,000 in instalments toward the deposit.
[33] Overall, Ms. Wei’s evidence in this proceeding was deliberately slanted toward her arguments. She left out important facts from her affidavit to create a misleading impression. She adopted a stereotypical persona of a weak “housewife” when I find that she was anything but that.
[34] I find that Ms. Wei intended to buy the house until she found that she could not finance her purchase. She did not want to or try to revoke her offer. I prefer the evidence of Mr. Latchman and find that Ms. Wei did not attend the showroom when it was closed on Family Day. I do not accept her evidence that Mr. Latchman made a misstatement to her about the builder’s confirmation of the agreement.
The Law
The Irrevocability Clause is Binding in this Case
[35] As noted above, I find that the irrevocability clause in the agreement of purchase and sale bound Ms. Wei. She was not entitled to revoke the offer even if I had found that she wished to do so.
[36] Irrevocability clauses are an anomaly in contract law. A contract is formed when one person makes an offer, the other party accepts, and there is some value or “consideration” exchanged between them. When Ms. Wei submitted her offer that said that she could not revoke it for ten days, it was just an offer. It had not yet been accepted. An irrevocability clause in an offer is not a binding contract. In general, therefore, despite the meaning of the words used, irrevocability clauses in unaccepted offers are actually revocable.
[37] In Fraser and Fraser v. Morrison, 1958 MBCA 292, 12 DLR (2d) 612, Schultz JA explained at p. 615 (DLR),
…The 10-day clause did not make the offer to purchase binding on the plaintiffs for that period because the offer in terms did not so provide and in any case there was no consideration given on which such a contract could be founded. The plaintiffs, therefore, had the right to cancel their offer to purchase any time before acceptance by the defendants had been communicated to them. Their right to cancel under such circumstances is thus stated by Pollock in his work on Contract, 13th ed., p. 20:
"An offer may be revoked at any time before acceptance, but not afterwards.
"For before acceptance there is no agreement, and therefore the proposer cannot be bound to anything. So that even if he purports to give a definite time for acceptance, he is free to withdraw his proposal before that time has elapsed. He is not bound to keep it open unless there is a distinct contract to that effect, founded on a distinct consideration."
[38] Unlike the Fraser case, in this case, the offer does say that it is irrevocable. But was there distinct consideration so as to make the irrevocability clause a separate binding contract? The irrevocability clause recites that it is made for consideration. Moreover, as soon as Ms. Wei made her offer, the plaintiff took the property off the market. It declined to seek competing offers or to try to create an auction. It took a step to its own detriment to Ms. Wei’s knowledge upon her making the irrevocable offer.
[39] Consideration for a contract can be exchanged either by granting the other party something of value (like a peppercorn or the $10 recited at the beginning of most formal written contracts) or by undertaking a detriment. See: J.D.F. Builders Ltd. v. Albert Pearl (Management) Ltd., 1974 SCC 25. A party’s undertaking to deal with another exclusively has been recognized as a valid form of consideration. See: Winsco Manufacturing Ltd. v. Raymond Distributing Co. Ltd., 1957 ONSC 112.
[40] Mr. Siddiqui argues that the irrevocability clause cannot be seen to be consideration for the plaintiff’s decision to take the property off the market. Rather, he submits that in Benedetto v. 2453912 Ontario Inc., 2019 ONCA 149, the Court of Appeal held that it is the deposit that is the consideration for removing a property from the market. In his submission, that means that there was nothing left to be consideration for the irrevocability clause.
[41] I do not read the Benedetto case that way. The issue in Benedetto was whether a purchaser for a corporation to be incorporated and without personal liability was entitled to the return of his deposit when the deal did not close. Deposits are similar to irrevocability clauses in that both are contained in an offer and neither has contractual force before the counterparty accepts the offer. But that is where the similarity ends. The reason deposits are enforceable is not because they are supported by distinct consideration like irrevocability clauses. In Beneddetto, Miller JA explained the law’s approach to deposits by quoting Fry L.J. in Howe v. Smith, (1884), 27 Ch. D. 89 (C.A.), at p. 101:
Money paid as a deposit must, I conceive, be paid on some terms implied or expressed. In this case no terms are expressed and we must therefore inquire what terms are to be implied. The terms most naturally to be implied appear to me in the case of money paid on the signing of a contract to be that in the event of the contract being performed it shall be brought into account, but if the contract is not performed by the payer it shall remain the property of the payee. It is not merely a part payment, but is then also an earnest to bind the bargain so entered into, and creates by the fear of its forfeiture a motive in the payer to perform the rest of the contract.
[42] Miller JA went on to explain,
The deposit stands as security for the purchaser’s performance of the contract. The prospect of its forfeiture provides an incentive for the purchaser to complete the purchase. Should the purchaser not complete, the forfeiture of the deposit compensates the vendor for lost opportunity in having taken the property off the market in the interim, as well as the loss in bargaining power resulting from the vendor having revealed to the market the price at which the vendor had been willing to sell: H.W. Liebig Co. v. Leading Investments Ltd., 1986 SCC 45, [1986] 1 S.C.R. 70, at pp. 86-87. [Emphasis added.]
[43] Miller JA did not find that a deposit is consideration for a pre-contractual undertaking to remove a property from the market. He was not analyzing the role of deposits as consideration. Rather, he was noting that after a contract is accepted, a deposit can be seen as compensation for the vendor’s loss of marketing in the ensuing time until an aborted closing. In this case, I am dealing with the legal analysis of the positions of the parties in a pre-contractual negotiation. Moreover, the contract in this case provides expressly that if the plaintiff does not accept Ms. Wei’s offer, the deposit is to be returned to her. Unlike Benedetto, in this case the deposit is not necessarily even available to be compensation for the vendor’s undertaking to refrain from marketing the property.
[44] Miller JA was not setting a rule of law or a legal test for consideration. I do not view Benedetto as impacting at all the issue before me. In my view, the irrevocability clause was granted for distinct consideration and therefore was binding on Ms. Wei. Had Mr. Latchman told her the next day that she could not revoke her offer, he would have been correct.
Enforcement of the Irrevocability Clause is not Unconscionable
[45] In Uber, the Supreme Court of Canada has brought the doctrine of unconscionability from the backburners to the forefront of contract law. Before Uber, unconscionability was a possible defence to contract enforcement that was rarely found applicable. It was the defence of last resort for debtors who could not afford to repay their debts and would argue that enforcing the debt was unfair. Unconscionability was reserved for the rarest of defendant who suffered horrendous misfortunes. The archetypical victims were famously and eloquently described by Lord Denning. Every Commonwealth lawyer schooled in British contract law knows of poor Herbert Bundy and “Old Peter Beswick” the infirm septuagenarian whose business consisted of only a lorry, scales, and weights.[^2]
[46] In Uber, the Supreme Court of Canada addressed the doctrine of unconscionability in the modern context in which standard form consumer contracts, like internet clickwraps or developers’ subdivision agreement forms predominate. People click on internet forms and sign massive consumer, standard form contracts without anyone actually expecting them to be read let alone understood.
[47] At para. 91 of Uber, the Court stated a policy position that,
Applying the unconscionability doctrine to standard form contracts also encourages those drafting such contracts to make them more accessible to the other party or to ensure that they are not so lop-sided as to be improvident, or both.
[48] To encourage fair drafting of contracts, and standard form contracts in particular, the Court provided for more robust application of the tests to determine if the enforcement of a term of a contract would be unconscionable. The Court adopted a two-step approach to guide future cases. First, the judge should consider whether there was an inequality of bargaining power between the parties. If so, the judge will then consider whether that inequality resulted in an improvident bargain. An improvident contract entered into between parties of unequal bargaining power will be found to be unconscionable and will not be enforced.
[49] The law traditionally enforced contracts freely entered into by competent adults. The law assumed that adults were capable of bargaining to protect their own rights and interests. Uber reflects a recognition that in this day and age, in many cases the freedom of parties to negotiate their own terms is impaired because one party simply has the market power to demand whatever terms it wants. That does not mean that people cannot buy products from mass retailers or internet providers who can set their own terms of sale. But the Supreme Court has determined that where a party has such power, the law ought to ensure that it has not been used unfairly to force an improvident bargain on a weaker party.
[50] Historically, inequality of bargaining power was limited to cases at the extremes. For example, the Supreme Court of Canada mentions cases involving a rescue at sea where the victim is completely at the mercy of the rescuer and must accede to whatever he or she demands in return for saving the victim’s life. Another example is a person with specific vulnerabilities or disadvantages that impair his or her ability to appreciate the full import of the contractual terms. In such circumstances “the law’s assumption about self-interested bargaining loses much of its force.” See: Uber, at para. 71.
[51] In Uber, the Court defined the concept of inequality of bargaining power as more broadly encompassing any circumstance where one party “cannot adequately protect their interest in the contracting process” See: Uber, at para. 66.
[52] On the second part of the test, the court described an improvident bargain as one that “unduly advantages the stronger party or unduly disadvantages the more vulnerable.”: See: Uber, at para. 74. The Court specifically rejected the notion that the bargain must be “grossly unfair” or wrought of “overwhelming power”.
[53] The Court turned to the modern growth of standard form contracts (also referred to as “contracts of adhesion”). In assessing the interplay between standard form contracts and the doctrine of unconscionability, the Supreme Court of Canada ruled:
[89] Our point is simply that unconscionability has a meaningful role to play in examining the conditions behind consent to contracts of adhesion, as it does with any contract. The many ways in which standard form contracts can impair a party’s ability to protect their interests in the contracting process and make them more vulnerable, are well-documented. For example, they are drafted by one party without input from the other and they may contain provisions that are difficult to read or understand (see Margaret Jane Radin, “Access to Justice and Abuses of Contract” (2016), 33 Windsor Y.B. Access Just. 177, at p. 179; Stephen Waddams, “Review Essay: The Problem of Standard Form Contracts: A Retreat to Formalism” (2013), 53 Can. Bus. L.J. 475, at pp. 475-476; Thal, at pp. 27-28; William J. Woodward, Jr., “Finding the Contract in Contracts for Law, Forum and Arbitration” (2006), 2 Hastings Bus. L.J. 1, at p. 46). The potential for such contracts to create an inequality of bargaining power is clear. So too is their potential to enhance the advantage of the stronger party at the expense of the more vulnerable one, particularly through choice of law, forum selection, and arbitration clauses that violate the adhering party’s reasonable expectations by depriving them of remedies. This is precisely the kind of situation in which the unconscionability doctrine is meant to apply.
[90] This development of the law of unconscionability in connection with standard form contracts is not radical. On the contrary, it is a modern application of the doctrine to situations where “the normative rationale for contract enforcement . . . [is] stretched beyond the breaking point” (Radin, at p. 179). The link between standard form contracts and unconscionability has been suggested in judicial decisions, textbooks, and academic articles for years (see, e.g., Douez, at para. 114; Davidson v. Three Spruces Realty Ltd. (1977), 1977 BCSC 1630, 79 D.L.R. (3d) 481 (B.C.S.C.); Hunter, at p. 513; Swan, Adamski and Na, at pp. 992-93; McCamus, at p. 444; Jean Braucher, “Unconscionability in the Age of Sophisticated Mass-Market Framing Strategies and the Modern Administrative State” (2007), 45 Can. Bus. L.J. 382, at p. 396). It has also been present in the American jurisprudence for more than half a century (see Williams v. Walker-Thomas Furniture Company, 350 F.2d 445 (1965), at pp. 449-50).
The Plaintiff Enjoyed Superior Bargaining Power
[54] I have no doubt that the plaintiff enjoyed a position of unequal bargaining power over the defendant. While she did not have to buy the house and there are plenty of other houses on the market, the builder has the ability to dictate its terms. Its use of a standard form contract with schedule upon schedule of fine print is just one manifestation. I see no relevant difference between the positions of a person who would like to drive for Uber and someone who wants to buy a house in a subdivision from a developer. Neither has any right to the thing that they want. Both can freely decline. But having decided to go ahead, both are subject to the counterparty’s ability to dictate terms of the deal and potentially extract undue advantages.
An Irrevocable Offer is not Improvident
[55] The plaintiff concedes that the 20% interest rate buried in one of the standard form schedules to the agreement of purchase and sale is unenforceable. In Ou, mentioned above, the plaintiff’s interest clause was found to be unenforceable because it was an unusually onerous clause that the plaintiff did not bring specifically to the purchaser’s attention. I leave to another day the interplay between Uber and Tilden Rent-A-Car Co. v. Clendenning, 1978 ONCA 1446, the seminal decision of the Court of Appeal that was relied upon by Morgan J. to render the interest clause unenforceable in Ou.
[56] As to the irrevocability clause, for comparison purposes, the plaintiff put into evidence the current standard form agreement of purchase and sale published by the Ontario Real Estate Association and the Toronto Real Estate Board. The comparable clause in that form of agreement provides:
IRREVOCABILITY: This Offer shall be irrevocable by__[seller/buyer]____ until____a.m./p.m. on the __ day of ______ 20__, after which time, if not accepted, this Offer shall be null and void and the deposit shall be returned to the Buyer in full without interest.
[57] Apart from the bolded and capitalized word “irrevocability”, the clauses are very nearly the same. In other words, the irrevocability clause in issue in this case is for all intents and purposes the same as the one proffered as the standard form by registered real estate sales professionals throughout the province every day.[^3]
[58] In my view, there is nothing improvident (Uber) or unusually onerous (Tilden) about agreeing to a period of irrevocability in a residential real estate transaction. A ten-day period strikes me as a long time especially if the vendor is going to “shop” the offer. But it agreed to the opposite in this case. I do not see how a period of irrevocability can be said to have unduly advantaged the plaintiff or unduly disadvantaged Ms. Wei. Moreover, it was relevant to the Supreme Court of Canada in Uber that the clause in issue in that case undermined the plaintiff’s “reasonable expectations” as to his remedies to enforce the contract. In this case, Ms. Wei gave no evidence that when she signed the offer, she thought she had a “cooling off period”. There is nothing in evidence to suggest why such an expectation, if held, would be a reasonable one viewed objectively. It is the opposite of the irrevocability term not only in Ms. Wei’s agreement, but in nearly all residential real estate agreements of purchase and sale.
[59] Considering the surrounding circumstances at the time, the price, and the commercial setting, there is nothing improvident in the bargain. It was a standard purchase of the type that happens every day all over the province.
[60] What raised the issue of improvidence in my mind was the evidence in Ms. Wei’s affidavit that she was misled as to her ability to revoke the agreement. Had Ms. Wei intended to revoke the agreement and had she been entitled to do so but then been persuaded by Mr. Latchman, wrongly, that she was not entitled to revoke, other considerations might apply. Might enforcement in that case trigger concerns about truthfulness in contractual performance as in Bhasin v. Hrynew, 2014 SCC 71? Might the agreement have become voidable if Ms. Wei was induced not to revoke it by innocent or negligent misrepresentation? In that case, what of Ms. Wei’s repeated affirmation of the agreement by acting under it and paying the rest of the deposit? Can Ms. Wei be heard to say that she only learned much later that the plaintiff signed the agreement on February 21 in face of her admission that she never read the agreement to see the date plainly set out? In light of my findings that Mr. Latchman did not make the statement alleged as a matter of fact and that, as a matter of law, the irrevocability clause was binding in any event, these issues are not before me and I leave them for another day.
Outcome
[61] I grant judgment in favour of the plaintiff as set out in para. 3 above.
[62] Mr. Greaves may submit costs submissions by August 31, 2020. Mr. Siddiqui may deliver his client’s costs submissions by September 8, 2020. Each party’s submissions shall be no longer than three pages. Costs Outlines shall be submitted by both parties if they deliver submissions. All documents shall be filed as searchable PDF attachments to an email to my Judicial Assistant. No case law or statutory material is to be provided. All references to case law and statutory material (if any) shall be embedded as hyperlinks in the parties’ submissions.
A Note about using Zoom™ Videoconferencing Software for Live Witness Testimony
[63] Both hearings were held by videoconference. I am grateful to both counsel for making the process straightforward. Through document sharing on the video platform and organized electronic folders provided by counsel on Sync.com, the mini-trial proceeded without a hiccup. Interestingly, I was able to view the witnesses’ faces and body language head-on and close-up in a way that is not available in a courtroom. (I also avoided the kink in the neck that can come from watching witnesses beside you for several hours.) While there is some concern in the literature about whether the video process captures the emotions of face-to-face human interaction, witnesses’ emotions were very visible. The process was real enough to cause a witness to need a short break to regain composure. I was pleasantly surprised at how well the electronic, remote medium captured the true human story at play.
F.L. Myers J.
Released: August 24, 2020
COURT FILE NO.: CV-19-611905
DATE: 20200824
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
FOREST HILL HOMES (CORNELL ROUGE) LIMITED
Plaintiff
– and –
HAI TUN WEI
Defendant
REASONS FOR JUDGMENT
F.L. Myers J.
Released: August 24, 2020
[^1]: The plaintiff concedes that it cannot rely upon the 20% interest charge buried in its standard form agreement of purchase and sale. See: Forest Hill Homes v Ou, 2019 ONSC 4332 In addition, it has not provided any evidence to support the $12,000 claimed as maintenance charges. Finally, the plaintiff made an error in its calculations by claiming that it incurred agent’s fees on the re-sale that it would not have had to pay on the sale to Ms. Wei. The plaintiff concedes that it was required to pay commission to Ms. Wei’s agent. All the other amounts claimed by the plaintiff are proven on the balance of probabilities and are not contested by Ms. Wei.
[^2]: Lloyd’s Bank v Bundy, [1975] QB 326; Beswick v Beswick, [1966] Ch 538, [1966] 3 WLR 396, [1966] 3 All ER 1, appeal dismissed [1968] AC 58 (HL).
[^3]: I put no stock in the bolded word absent evidence of the clause actually being brought to the attention of a purchaser by the vendor. While the word may be bolded to bring it to peoples’ attention, the inference is equally strong that it is bolded to try to convince a court under Tilden, that although the clause was not brought to a purchaser’s attention specifically, it ought to have been seen or understood by her.