COURT FILE NO.: CV-17-580143 DATE: 20210301 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
Ruoqi Wang Plaintiff
- and - Ahmad Rezapoor Defendant
Counsel: Andrew Ostrom, for the Plaintiff Stefan Juzkiw, for the Defendant
Heard at Toronto: December 11, 2020
Reasons for Judgment
DAVIES J.
[1] Ruoqi Wang claims that Ahmad Rezapoor agreed to buy her house in Stouffville, Ontario for $738,000 in February 2017. The transaction was to close on June 28, 2017. Mr. Rezapoor asked to delay the closing date, but no agreement was reached on an extension. Mr. Rezapoor failed to close in accordance with the signed agreement of purchase and sale (“APS”). Ms. Wang issued a statement of claim on August 2, 2017 claiming damages for breach of contract.
[2] Mr. Rezapoor delivered a statement of defence in which he pleaded that the APS was not enforceable because of fraud or misrepresentation. He claims that he was induced into signing the APS by Ms. Wang’s misrepresentation that the property could be subdivided into two lots. Mr. Rezapoor admits that he paid a deposit of $18,000 to purchase the property but claims that he cancelled the contract when he learned from a municipal planning official that the lot could not be subdivided. He also claims that he requested an extension for the closing date to give him more time to “find ways for the property to be divided.”
[3] Ms. Wang has brought a motion for summary judgment.
[4] Mr. Rezapoor argues that this is not an appropriate case for summary judgment. He argues that the motion is premature because there are discoveries pending and unanswered undertakings. Mr. Rezapoor also argues that the affidavit he swore in response to the summary judgment motion demonstrates that there are serious issues about the validity of the APS, which require a trial to resolve.
[5] The difficulty is that Mr. Rezapoor’s affidavit is completely inconsistent with his statement of defence. He now says that he did not sign the APS and the signatures on the APS are forged. Mr. Rezapoor has not brought a motion to amend his statement of defence under rule 26.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, or sought leave to withdraw the admissions contained therein under rule 51.05. Mr. Rezapoor is, therefore, bound by the admissions in his statement of defence for the purpose of this summary judgment motion.
[6] I can only grant summary judgment if there is no genuine issue requiring a trial: rule 20.04(2) of the Rules of Civil Procedure. There will be no genuine issue requiring a trial if I am able to reach a fair and just determination of the matter on the record before me: Hryniak v. Mauldin, 2014 SCC 7 at para. 49. For the reasons that follow, I am satisfied that this is an appropriate case to grant summary judgment. The motion is not premature and there is no genuine issue requiring a trial, notwithstanding the new defence raised in Mr. Rezapoor’s affidavit.
A. Is the summary judgment motion premature?
[7] Mr. Rezapoor argues the summary judgment motion is premature because some discoveries are still pending, and undertakings given during Ms. Wang’s cross-examination have not been answered.
[8] Mr. Rezapoor argues that he need an opportunity to examine Ms. Wang’s real estate agent, Shuo Zhang, before trial about her dealings with Mr. Rezapoor’s father and her communications with Ms. Wang. Ms. Wang filed an affidavit from Ms. Zhang in support of the summary judgment motion. Mr. Rezapoor did not to cross-examine Ms. Zhang. The concerns Mr. Rezapoor now raises about Ms. Zhang’s evidence could have been canvassed in cross-examination. Having chosen not to cross-examined Ms. Zhang, Mr. Rezapoor cannot now complain that her evidence is unclear or that she has other relevant evidence to give.
[9] Mr. Rezapoor also complains that Ms. Wang’s counsel failed to answer undertakings given during her cross-examination to produce Ms. Zhang’s file and communications between Ms. Wang and Ms. Zhang. Ms. Wang’s counsel provided a partial answer to these undertakings several days before the summary judgment motion but did not produce Ms. Zhang’s file. There is no question that Ms. Wang’s counsel had an obligation to answer the undertakings and I do not in any way condone his failure to do so in a timely fashion. However, Mr. Rezapoor’s counsel chose not to pursue the means available to him to obtain the records. For example, counsel for Mr. Rezapoor could have brought a motion to enforce the undertakings. Alternatively, he could have cross-examined Ms. Zhang and asked Ms. Zhang to produce her file and correspondence with Ms. Wang.
[10] Mr. Rezapoor also complains that Ms. Wang did not add his father as a party to the litigation or compel him to attend for an examination. Mr. Rezapoor’s father is a real estate agent and he negotiated the APS with Ms. Wang’s agent on Mr. Rezapoor’s behalf. There was no obligation on Ms. Wang to name Mr. Rezapoor’s father as a party. Her position is that she had a contract with Mr. Rezapoor. She was not required to name the real estate agent involved in the transaction. If Mr. Rezapoor’s position is that his father forged his signature on the APS or knows who forged his signature, he could have amended his statement of defence and commenced a third-party claim against his father: rule 29.01 of the Rules of Civil Procedure.
[11] Counsel for Ms. Wang did try to compel Mr. Rezapoor’s father to give evidence. He served Mr. Rezapoor’s father with a summons under rule 39.03(5). This summary judgment motion was originally scheduled for December 2019 but was adjourned because Ms. Wang’s counsel was still trying to secure Mr. Rezapoor’s father attendance for examination. Eventually, a certificate of non-attendance was issued when he failed to attend for the examination on January 20, 2020.
[12] During his cross-examination, Mr. Rezapoor confirmed that he still lived with his father, though they no longer have a close relationship. Mr. Rezapoor was also working at the same real estate firm as his father. If Mr. Rezapoor’s defence depends on evidence from his father, he should have obtained an affidavit from his father or issued a summons for his father to attend for an examination.
[13] Each party is required to put its best foot forward on a summary judgment motion. I am entitled to conclude that the evidence presented by each party on the summary judgment motion is the evidence they would adduce at trial. Ms. Wang has no obligation to adduce evidence on the summary judgment motion to support Mr. Rezapoor’s defence. If Mr. Rezapoor intended to rely on other evidence at trial, he was required to and had every opportunity to adduce additional evidence on this motion. In my view, the summary judgment motion is not premature.
B. Significance of Mr. Rezapoor’s affidavit evidence
[14] Before deciding whether this is an appropriate case for summary judgment, there are several evidentiary issues to address in relation to Mr. Rezapoor’s affidavit. In his affidavit, Mr. Rezapoor purports to change his defence without seeking leave to amend his pleadings or withdraw the admissions he made in his statement of defence.
[15] Mr. Rezapoor’s statement of defence claims that he was induced into signing the APS by Ms. Wang’s misrepresentation that her property could be subdivided. He claims he asked to extend the closing to give him more time to find a way to subdivide the property. He also claims that the $18,000 deposit he paid to purchase Ms. Wang’s property should be returned to him because the APS is void. Finally, he claims that Ms. Wang knew he was under a disability when the APS was signed.
[16] In his affidavit on the summary judgment motion, Mr. Rezapoor says he never signed the APS, never had contact with Ms. Wang in February 2017, and was not even aware of an agreement to buy Ms. Wang’s property until he received the statement of claim in August 2017. Mr. Rezapoor now says that the signature and initials on the APS, which purport to be his, were forged.
[17] In his affidavit, Mr. Rezapoor states that he has been suffering from chronic pain since 2016 and was taking narcotic pain medication at the time the APS was allegedly signed. He said that this medication interfered with his ability to function and his capacity to enter into an APS. Finally, Mr. Rezapoor states that he was out of the country receiving medical treatment at various times in January and February 2017, although he was in Canada when the APS was alleged signed by him on February 11, 2017.
[18] There are several problems with Mr. Rezapoor’s affidavit. First, the affidavit contains inadmissible hearsay from several proposed experts.
[19] In support of his position that his signature and initials were forged on the APS, Mr. Rezapoor attached to his affidavit a report from a forensic handwriting analyst. The proposed expert signed a Form 53 Acknowledgment of Expert’s Duty, which was also attached to Mr. Rezapoor’s affidavit. The analyst concluded that it was highly improbable that Mr. Rezapoor signed the APS.
[20] The report from the forensic handwriting analyst is not admissible on the summary judgment as an exhibit to Mr. Rezapoor’s affidavit. When a party wants to adduce expert evidence on a summary judgment motion, the expert must comply with rule 53.03: Sanzone v. Schechter, 2016 ONCA 566 at para. 16. Mr. Rezapoor was required to file an affidavit from the expert containing her opinion, or an affidavit from the expert with her report attached: Danos v. BMW Group Financial Services Canada, 2014 ONSC 2060, at para. 29, aff’d 2014 ONCA 887. Ms. Wang would then have an opportunity to cross-examine the expert on the content of her report. An expert report cannot be attached to the affidavit of a party, even if an executed Form 53 is provided. The report is hearsay as an exhibit to someone else’s affidavit. The report from the forensic handwriting analyst is, therefore, inadmissible on the summary judgment motion.
[21] In support of his position that he was incapable of forming a contract because of the effects of his pain medication, Mr. Rezapoor attached to his affidavit several letters and reports written by his treating physicians. Opinion evidence can be adduced on a summary judgment motion from a “participant expert”. A participant expert is someone who uses their knowledge, training and experience to form an opinion while observing or participating in events relevant to the proceedings. A treating physician can be a participant expert. While participant experts are not required to comply strictly with rule 53.03, their evidence must still be adduced in an admissible form: Westerhof v. Gee Estate, 2015 ONCA 206, at paras. 59-64. If Mr. Rezapoor wanted to rely on evidence from his doctors, he was required to provide affidavits from each of them setting out their opinion or attaching their letters and reports. Mr. Rezapoor cannot shield his physicians, or any proposed expert, from cross-examination by attaching their reports to his affidavit. The reports and letters from his treating physicians are inadmissible on the summary judgment motion.
[22] Second, Mr. Rezapoor’s affidavit is internally inconsistent and was substantially contradicted by his cross-examination. For example, Mr. Rezapoor says in his affidavit that he did not sign the APS and was not even aware of Ms. Wang’s property before receiving the statement of claim. However, Mr. Rezapoor’s affidavit also states, “There was one instance where my father and I had inquired about the prospect of sub-dividing this property, but as far as I am concerned these were mere discussions.” Mr. Rezapoor could not explain this inconsistency and when asked in cross-examination when those inquiries were made and by whom, Mr. Rezapoor said he did not remember.
[23] Mr. Rezapoor also said during cross-examination he was not present when the inquiries were made about subdividing the property. When it was pointed out to him that his affidavit said he was involved in the inquiries, Mr. Rezapoor gave the following answer:
Yeah, maybe we – we probably maybe because then I used to drive around with him and he would tell me about properties and try to teach me – give me some knowledge, you know. But other than that, they were mere discussion as it was stated there. And I was under a lot of drugs and stuff.
Mr. Rezapoor later testified that his father never talked to him about Ms. Wang’s property specifically but also said his father probably did talk to him about the prospect of severing the property.
[24] Mr. Rezapoor states in his affidavit that his father also inquired about the “practicality and prospect of severing” the property. Again, this is inconsistent with his statement that he was not aware of the property before receiving the statement of claim. When asked how he knew about his father’s inquiries, Mr. Rezapoor responded, “Again, at that time I was under a lot of narcotic and like painkillers so I might have had these conversations with him but I’m not too sure.” He later testified that his father had a conversation with Ms. Wang about subdividing the property. When pushed on how he knows about this conversation, Mr. Rezapoor said, “I guess he told me that. I don’t know.” Mr. Rezapoor repeatedly said that he did not remember events in 2017 because he was taking narcotics and painkillers at the time.
[25] During cross-examination, Mr. Rezapoor also testified, contrary to the new defence raised in his affidavit that he did not sign the APS and his signature was forged, that he might have signed the APS but he does not now remember:
Q. And did you suspect that your father might have forged your signature on the agreement of purchase and sale?
A. I’m not too sure because at that time I could have signed it, but I was under a lot of painkillers against as I said. Those things really got to me especially during that time…. So some days I wouldn’t have a recollection of the past days or anything.
When asked about this contradiction during argument on the summary judgment motion, Mr. Rezapoor’s counsel said that his position is that he does not remember if he signed the APS but if he did sign it he was incapable of doing so because of the effect of the pain medication he was taking.
[26] Mr. Rezapoor explains in his affidavit that his statement of defence is incorrect because his lawyers misunderstood the facts. Mr. Rezapoor admitted he read the statement of defence before it was delivered but claimed he was “not in the right state of mind” when he reviewed it.
[27] The inconsistencies in Mr. Rezapoor’s evidence will become relevant when I consider whether there is a genuine issue that requires a trial in this case.
[28] The final issue with Mr. Rezapoor’s affidavit is that it does not provide any evidence in support of his original claim that he was induced into signing the APS by fraud or misrepresentation. He does not provide any details of how or when Ms. Wang (or anyone else) told him the property could be subdivided. He does not attest to the conversation with the municipal planning officer who, according to the statement of defence, told Mr. Rezapoor that the property could not be subdivided. In fact, in cross-examination, Mr. Rezapoor agreed that Ms. Wang never made any representations to him about subdividing the property and nobody acting on Ms. Wang’s behalf made any representations to him about the property either.
C. Is there a genuine issue that requires a trial?
[29] In deciding whether there is a genuine issue requiring a trial, I have the discretion to weigh the evidence, evaluate the credibility of a witness and draw reasonable inferences from the evidence: rule 20.04(2.1). However, before resorting to the fact-finding powers in rule 20.04(2.1), I must first decide if there is a genuine issue requiring trial based solely on the evidence before me. If a review of the evidence suggests there is a genuine issue requiring a trial, I should then decide if the need for a trial can be avoided by using the fact-finding powers in rule 20.04(2.1) and if it is in the interests of justice to exercise those powers: Hryniak, at para. 66.
[30] The onus is on Ms. Wang to satisfy the court that there is no genuine issue requiring a trial. If Ms. Wang can satisfy me that there is no genuine issue requiring a trial, the burden shifts to Mr. Rezapoor to adduce evidence showing there is a genuine issue requiring a trial: Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, at para. 26.
[31] Having excluded the opinion evidence from the handwriting analyst and Mr. Rezapoor’s physicians and disregarding the evidence from Mr. Rezapoor that contradicts his statement of defence, I am left with Ms. Wang’s evidence, Ms. Zhang’s unchallenged affidavit, Mr. Rezapoor’s admissions in the statement of defence and no evidence to support the defence pleaded.
[32] Ms. Wang states that she received an offer to purchase her property in Mr. Rezapoor’s name on February 9, 2017. The offer price was $648,000. Ms. Wang says she made several amendments to the offer, including increasing the purchase price to $738,000. Ms. Wang states in her affidavit that her counteroffer was accepted on February 11, 2017. A copy of the executed APS is attached to Ms. Wang’s affidavit. The closing date specified in the APS was June 28, 2017. Mr. Rezapoor did not close on June 28, 2017 in accordance with the agreement. The APS contained a condition that the buyer could start an application to sever the property once the agreement was signed. Ms. Wang states in her affidavit that this condition was included to facilitate an application by Mr. Rezapoor to subdivide the property if he wanted to pursue that issue; it was not a representation by her that severance would be approved. Ms. Wang’s evidence was not undermined in cross-examination. She acknowledged that she did not see Mr. Rezapoor sign the APS. She testified that her agent dealt with the exchange of the offer and counteroffer on her behalf. This is not unusual and does not undermine the content of her affidavit.
[33] Ms. Zhang’s affidavit details how the APS was negotiated and the discussions she had with Mr. Rezapoor’s father. Ms. Zhang states that she did not make any representations to Mr. Rezapoor’s father that the property could be subdivided. She states that she received the offer from Mr. Rezapoor’s father. She conveyed the offer to Ms. Wang. She states that Ms. Wang made revisions to the offer and the counteroffer was accepted.
[34] Mr. Rezapoor has not brought a motion to amend his statement of defence or withdraw any admissions in his statement of defence. Although Mr. Rezapoor originally claimed he was induced into the agreement by misrepresentation or fraud, Mr. Rezapoor nonetheless admits in his statement of defence that he entered into the APS to purchase her property, paid the $18,000 deposit to her real estate agent and tried to extend the closing date. Pursuant to rule 51.05, he is bound by those admissions for the purpose of the summary judgment motion notwithstanding the content of his affidavit.
[35] Finally, I have no evidence to support the original defence advanced by Mr. Rezapoor in his statement of defence that he was induced into signing the APS by misrepresentation or fraud. Mr. Rezapoor cannot rely solely on the allegations or denials in his statement of defence. He is required to adduce admissible evidence to show that there is a genuine issue requiring a trial: Zuckerman-Honickman Inc. v. Caribbean Ice Cream Co., 2010 ONSC 4090, at para. 15. Mr. Rezapoor’s affidavit does not support the defence raised in his statement of defence. Rather, his affidavit advances an entirely new defence that was not originally pleaded and has not been added by way of an amendment to the statement of defence.
[36] In these circumstances, I am satisfied, without resorting to the fact-finding powers in rule 20.04(2.1), that there is no genuine issue that requires a trial in this case. The facts and admissions establish that Mr. Rezapoor entered into an APS to purchase Ms. Wang’s property. He paid the deposit in accordance with the APS and then failed to close after unsuccessfully requesting an extension of the closing date. There is no evidence to support the pleaded defence of fraud or misrepresentation.
[37] If I am wrong that there is no genuine issue that requires a trial based solely on the admissible evidence on the summary judgment motion, my assessment of the evidence would only support my conclusion to grant summary judgment. Mr. Rezapoor was not a credible or reliable witness. His affidavit was internally inconsistent and the testimony he gave in cross-examination significantly contradicted his affidavit. He was unable to recall significant events and unable to explain the internal inconsistencies in his affidavit.
[38] I, therefore, grant summary judgment. I find that Mr. Rezapoor breached the APS he signed on February 11, 2017 to purchase Ms. Wang’s property.
[39] Ms. Wang seeks $161,951.40 in damages. The deal with Mr. Rezapoor was to close on June 28, 2017. The purchase price Mr. Rezapoor agreed to was $738,000. Ms. Wang ultimately sold her property to another buyer on November 15, 2017 for $605,000. The damages claimed represents the difference between the price Mr. Rezapoor agreed to pay and the eventually sale price minus the $18,000 deposit Ms. Wang received from Mr. Rezapoor (which comes to $115,000) plus the legal fees, mortgage fees, interest and insurance costs incurred by Ms. Wang to carry the property between June 28, 2017 and November 15, 2017. I am satisfied that the losses claimed by Ms. Wang were reasonably foreseeable and were caused by Mr. Rezapoor’s breach of the contract. I am also satisfied that Ms. Wang took reasonable steps to mitigate her losses.
[40] I grant summary judgment to Ms. Wang in the amount of $161,951.40 plus prejudgment interest at a rate of 0.8%: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 128(1).
[41] I urge the parties to agree on costs. If an agreement cannot be reached, Ms. Wang can submit costs submissions of no more than 5 double-spaced pages plus a costs outline and supporting materials no later than March 12, 2021. Mr. Rezapoor can submit responding submissions of no more than 5 double-spaced pages plus supporting materials no later than March 26, 2021. If I do not receive submissions on costs by March 30, 2021, I shall deem the issue of costs settled.
Davies J. Released: March 1, 2021