COURT FILE NO.: 19-139566

DATE: 20210429

Corrected date: May 4, 2021

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

BRIAN GLENN PROWSE and PAMELA ELLEN PROWSE

Plaintiffs

– and –

SAMIR NOROOZI

Defendant

Jamie Sanderson, for the Plaintiffs

Aryan Kamyam, for the Defendant

HEARD via zoom: April 12, 2021

Corrected Decision: The text of the original Endorsement was corrected on May 4, 2021 and the description of the correction is appended.

McCARTHY J.

REASONS FOR JUDGMENT

Overview

[1] The Plaintiffs move for summary judgment against the Defendant.

[2] The action arises out of an aborted real estate transaction in respect of a property located at 158 East Humber Drive, King City, Ontario (“the property”). The Plaintiffs are spouses and former joint owners of the property.

[3] On March 15, 2017 the Plaintiffs listed the property for sale through Trends Reality Inc. (“Trends”). The list price was $2,600,000.00.

The Agreement of Purchase and Sale (“the APS”)

[4] On March 15, 2017, the parties entered into an APS whereby the Defendants agreed to purchase the property for $2,450,000.00 (“the purchase price”).

[5] The APS was not subject to any financing condition. In addition to the standard term that time was of the essence, the APS contained the following material terms:

a) The Defendant agreed to pay the Plaintiffs a deposit in the sum of $20,000.00 (“the Initial Deposit”).

b) The APS was conditional upon the Defendant viewing the interior of the property and satisfying himself that its condition was satisfactory by April 14, 2017 (“the Inspection Condition”).

c) Within 24 hours of the satisfaction or waiver of the Inspection Condition, the Defendant agreed to pay the Plaintiffs a supplementary deposit in the sum of $80,000.00 (“the First Supplementary Deposit “).

d) The Defendant agreed to pay the Plaintiffs:

i. A further supplementary deposit in the sum of $50,000.00 on September 30, 2017 (“the Second Supplementary Deposit”); and

ii. A further supplementary deposit in the sum of $50,000 on November 18, 2017 (“the Third Supplementary Deposit”).

e) The APS was scheduled to close on December 18, 2017 (“the Closing”).

f) The Defendant was to pay the purchase price, subject to adjustments, by way of a bank draft, certified cheque or wire transfer on closing.

[6] In accordance with the APS, the Defendant paid the initial deposit of $20,000.00 into trust with Trends.

Post-Agreement History

[7] The APS was breached in short order. Following the waiver of the inspection condition on April 11, 2017, the Defendant failed to pay the First Supplementary Deposit.

[8] The parties negotiated an amendment to the APS by extending the deadline for payment of the First Supplementary deposit to May 24, 2017. When the Defendant failed to honour that payment, the parties agreed to an extension for payment of the First Supplementary Deposit to May 30, 2017.

[9] Subsequent negotiations on May 30, 2017 resulted in a further amendment of the APS featuring a revised schedule for the payment of the three supplementary deposits but with immediate payment of $30,000.00 as a reduced First Supplementary Deposit.

[10] On August 23, 2017, the Defendant failed to pay the Second Supplementary Deposit as agreed. The parties negotiated an amendment to the APS which called for the Second Supplementary Deposit to be paid in two parts: $15,000.00 by September 30, 2017 and $35,000.00 by October 31, 2017. The Third Supplementary Deposit was deleted. The closing date was extended to January 31, 2018 and a term was inserted allowing the Plaintiffs to continue to use the property, rent free, up to and including April 30, 2018.

[11] On September 30, 2017, the Defendant failed to pay the first tranche of the Second Supplementary Deposit.

[12] On November 3, 2017, the parties amended the APS yet again, this time agreeing upon payment of the Second Supplementary Deposit by way of six separate installments over a period of more than five months, culminating in a final payment of $10,000.00 on April 15, 2018. The closing date was extended to May 31, 2018.

[13] The Defendant made the first five payments of that Second Supplementary Deposit, as agreed, but failed to pay the last of the scheduled instalments by April 15, 2018.

[14] On May 9, 2018, following a request by the Defendant for both an extension of the closing date and a reduction of the purchase price, the parties again agreed to amend the APS. The Defendant paid a further deposit of $10,000.00 and the Plaintiffs agreed to provide the Defendant a vendor take back mortgage (“the VTB”) in the amount of $1,900,000.00, at an interest rate of 4.5% per year, payable monthly, for one year with the balance due on September 30, 2019. The closing date was extended to July 20, 2018 and subsequently to August 15, 2018.

[15] Following an additional request for an extension to the closing date and a reduction of the purchase price, the parties once again agreed to an amendment of the APS on September 10, 2018. Under this amendment, the closing date was extended to November 15, 2018; the purchase price was reduced to $2,350,000.00; and the Defendant paid a further deposit of $30,000.00 to the Plaintiff’s lawyer.

[16] The Defendant was unable to close on November 15, 2018 and requested a further extension. The APS was again amended, with a closing date of December 3, 2018 and an additional term that the Defendant would pay the Plaintiffs a bridge financing per diem charge of $60.10.

[17] It is important to note that all the amended versions of the APS expressly stipulated that “All other terms of the APS shall remain the same”.

[18] The Defendant was again unable to close on December 3, 2018 and requested a further two-week extension. The Plaintiffs would only agree to extend the closing date to December 7, 2018. They specified in writing that this was the final extension. The deal did not close on that date.

[19] Following a further round of unsuccessful discussion, the Plaintiffs issued the present claim, on March 12, 2019, which was duly defended.

[20] The Plaintiffs renewed their retainer with Trends. Relying on their advice, the Plaintiffs rejected the offer of a third party received in April 2019 for $1,600,000.00 and chose to re-list the property for $1,980,000.00 in May 2019. The property was staged over a two-month period. The listing agreement was renewed in July 2019 with a reduced asking price of $1,795,000.00. The Plaintiffs rejected successive offers of $1,250,000.00 and $1,460,000.00 made in August 2019.

[21] With no further offers forthcoming, the listing price of the property was further reduced to $1,724,000.00 on September 27, 2019. Over a month passed with no further offers being received.

[22] Late in 2019, the parties to this litigation were able to arrive at a conditional settlement, a term of which was that the Plaintiffs would cancel the listing agreement. That conditional settlement fell through on December 1, 2019.

[23] The Plaintiffs again re-listed the property with Trends on March 5, 2020. Relying on the agent’s advice, the list price was set at $1,575,000.00. After an exchange of offers that month, the Plaintiffs entered into a new agreement of purchase and sale with a purchase price of $1,600,000.00 (“the second APS”). That second APS closed on April 16, 2020.

Claim for Damages

Breach of Contract

[24] As a result of the alleged breach, the Plaintiff claims the difference ($750,000.00) between the APS purchase price ($2,350,000.00 as reduced by the September 10, 2018 amendment) and the second APS purchase price ($1,600,000.00).

HELOC Bridge Financing Charges

[25] Running parallel to the earlier stage of the bewildering series of events recounted above was the Plaintiffs’ purchase and financing of a second home in Georgina, Ontario. Prior to entering into the APS, the Plaintiffs had advised the Defendant that they were using the funds from the transaction to purchase a new home in Georgina, Ontario. The Plaintiffs moved into their new home on May 15, 2018.

[26] Because the anticipated funds from the sale of the property and later, the VTB, were not available on the dates anticipated, the Plaintiffs were forced to obtain bridge financing through two HELOC mortgages on the property. As a result, the Plaintiffs incurred mortgage interest charges between November 15, 2018 and April 16, 2020 in the amount of $29,667.69.

Other Special Damages Claims

[27] The Plaintiffs also claim the following “out of pocket expenses” in special damages:

a) The loss of anticipated interest on the VTB mortgage from the planned closing date of December 7, 2018 to September 20, 2019 (when the VTB principal was due) in the amount of $69,571.23

b) Staging costs of $8,540.54

c) Property taxes for the property from December 7, 2018 to the closing date of April 16, 2020 in the amount of $11,144.00

d) Gas costs for the property for the same period in the amount of $1,826.77

e) Grass cutting costs for the property for the same period in the amount of $1,560.00

f) Property insurance for the same period in the amount of $1,256.56

g) Hydro charges on the property for the same period in the amount of $819.52

h) Water charges for the property for the same period in the amount of $765.51

i) Snow removal at the property for the same period in the amount of $500.00

j) Gardening costs at the property for the same period in the amount of $300.00

[28] These special damages and out-of-pocket expenses total $125,951.82.

[29] In addition, the Plaintiffs seek an order that the $150,000.00 paid by the Defendant by way of deposits be forfeited along with any accumulated interest. The Plaintiffs concede that any sum of forfeited deposits would serve as a credit towards the payment of the monetary judgment sought.

Expert Evidence

[30] The Plaintiffs rely upon two reports authored by Stefan Epstein. Mr. Epstein holds both a Designated Appraiser Residential (DAR) designation and a Certified Appraisal Reviewer (CAR) designation. His Appraisal Report assigns the property a market value of $1,450,000.00 as of March 16, 2020. His second report is essentially a review and critique of the Defendant’s report authored by alleged expert Sadiq Al-Khalisy. Mr Al-Khalisy is not a certified appraiser but merely a registered salesperson with Re/Max Realtron Realty Inc. in Richmond Hill. His report does not provide a valuation of the subject property; instead, it suggests that the subject property was “sold at a low amount on March 16, 2020.”

The Parties’ Positions

The Plaintiffs

[31] The Plaintiffs argue that judgment should be granted in their favour since there are no genuine issues requiring a trial. The Defendant breached the APS no less than 10 times with the final breach being the failure to close on December 7, 2018. While the negotiations which took place late in 2019 sought to revive the APS, and in fact led to a conditional settlement, the Defendant failed to fulfill the condition of paying the stipulated amounts for deposits. The Defendant’s attempt to raise that conditional settlement as a “new APS” cannot be supported factually or legally. The Plaintiffs took careful and protracted steps to mitigate the losses caused by the Defendant’s breach. The expert evidence of Mr. Epstein must be preferred to that of Mr. Al-Khalisy. Mr. Epstein is highly qualified; his appraisal is based on comparable sales for the relevant time period in the King City market. His opinion on the value of the property as of March 2020 supports two irresistible findings: one, that the purchase price for the second APS was actually above market value; and two, that the Plaintiffs did reasonably mitigate the losses caused by the Defendant’s breach. On the other hand, Mr. Al-Khalisy is not a certified appraiser; he could assign no value to the property.

[32] The measure of general damages for the Defendant’s breach should be the difference between the purchase price agreed to in the APS and the ultimate sale price garnered from the sale of the property in April 2020. The special damages claimed should be allowed: they logically flowed from the breach, are directly related to it, have been properly quantified, and are not seriously challenged by any competing evidence.

The Defendant

[33] The Defendant’s position is set out in his factum. He seeks the following:

a) A declaration that the plaintiffs breached the February 2020 APS;

b) An order for the return of deposits paid by the defendants for the purchase of the property; and

c) The dismissal of the action with costs to the Defendant.

[34] The factum goes on to state that “There are no genuine issues requiring a trial.”

[35] While conceding that he was unable to obtain financing to close the “original” APS, the Defendant argues that the Plaintiffs have failed to mitigate their losses; they failed to obtain the best possible price on the 2020 sale. The evidence of Mr. Al-Khalisy supports the proposition that the sale price was not in line with market trends. The Defendant also asserts that the parties entered another APS on February 7, 2020 (“the February 2020 APS”) for which the Defendants remitted a deposit of $60,000.00. It is the Plaintiffs who stand in breach of that February 2020 APS; on that, there is no genuine issue requiring a trial.

Summary Judgment

[36] The test for summary judgment is found in rule. 20.04(2)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which provides as follows:

20.04(2) The court shall grant summary judgment if,

(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.

[37] The powers of a motions judge are considerably enhanced by what I would term the rule for “modern summary judgment procedure”. Rule 20.04(2.1) mandates the court to consider the evidence and then invites the judge to weigh the evidence, evaluate the credibility of a deponent and draw any reasonable inference from the evidence. The motions judge should not exercise those powers if it is in the interest of justice for such powers to be exercised only at trial.

[38] The leading case governing a motions judge’s approach to summary judgment remains the Supreme Court of Canada’s decision in Hryniak v. Mauldin, 2014 SCC 7. At para. 49 of that seminal case, the court stated as follows:

There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows a judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

Analysis

[39] I am confident that I can find the necessary facts, draw the appropriate inferences and apply the relevant legal principles to resolve the dispute at this stage. The parties were aware of their obligations to put their best foot forward. They have conducted cross-examinations on affidavits and of the other side’s expert. I find that I am as capable now as I would be at trial to make a fair and just determination of this matter.

[40] I have concluded that there are no genuine issues requiring a trial for the following reasons.

[41] First, the Defendant breached the APS on no less than 10 occasions, most often by failing to pay a scheduled deposit but more importantly by failing to close the transaction on December 7, 2018. The Defendant did not seriously contest that he breached the APS; his concession that he could not obtain the necessary financing amounts to nothing more than a reason for the breach. It cannot serve to cure the breach. There is simply no reason why this issue should proceed to trial. There is nothing in the evidentiary record which could lead to a different conclusion.

[42] Second, there is no genuine issue requiring a trial as to whether the Plaintiffs are entitled to general damages of $750,000 for the Defendant’s breach. The goal of damages awards in the law of contract is to put the innocent party back into the monetary position it would have enjoyed had the breach not occurred. The Supreme Court of Canada stated thus in Asamera Oil Corporation Ltd. v. Seal Oil & General Corporation et al., 1978 CanLII 16 (SCC), [1979] 1 S.C.R. 633, at p. 645:

Losses recoverable in an action arising out of the non-performance of a contractual obligation are limited to those which will put the injured party in the same position as he would have been in had the wrongdoer performed what he promised.

[43] In Gamoff v. Hu, 2018 ONSC 2172, a case of an aborted sales transaction, my brother Edwards J based his calculation of damages on the difference between the contracted sale price on the aborted transaction and the purchase price garnered on a subsequent sale.

[44] The axiom that the resale price is an appropriate measure of its market value at the time of resale has found support in other similar cases: see for example Bang v. Sebastian, 2018 ONSC 6226, aff’d 2019 ONCA 501.

[45] I place considerable weight on the expert evidence of Mr. Epstein. As a certified appraiser, I find his opinion to be preferred over that of Mr. Al-Khalisy. Mr. Epstein took a more local approach to the comparable sales used in his appraisal. Far from concluding that the Plaintiffs sold in a declining market, he concluded that the climate in the King City real estate market in March and April 2020 was stable. Indeed, the ultimate sale of the property for a price of $1,600,000.00 after an initial offer of $1,525,000.00 on March 7, 2020 stands as the best proof that Mr. Epstein’s opinion of market value of the property was close to the mark.

[46] In contrast Mr. Al-Khalisy chose to review broader market trends throughout the Greater Toronto Area (“GTA”), which I find is not the preferable approach given that King City is a distinct location from far flung regions of the GTA. Moreover, Mr. Al-Khalisy clearly selected inappropriate comparable homes which were either located on much larger lots (54 Watch Hill Rd, King) or had much more square footage (40 percent more in the case of 78 Britnell Crt). In fact, in cross-examination, he admitted that the Britnell Crt home was not a proper comparable. Mr. Al-Khalisy’s conclusions are of little utility to the court in that he fails to establish a market value for the property in March and April 2020. This is more than a glaring omission; it suggests that he was not confident in doing so or that he was cognizant that any reasonable opinion on market value was inevitably going to be far less than the purchase price, leaving the Defendant responsible for the difference. Here the Defendant has utterly failed to put his best foot forward. I much prefer the evidence of Mr. Epstein whose methodology and analysis led him to arrive at an actual market value. Finally, I find the impartiality of Mr. Al-Khalisy to be highly suspect. It is apparent that he has had an ongoing relationship with the Defendant for several years and has either made or stands to make commissions from sales of the Defendant’s properties. This greatly compromises his credibility in the eyes of the court.

[47] Third, there is also no genuine issue for trial on the issue of mitigation. The Defendant owns the obligation to prove a failure to mitigate. It has done nothing to move that needle. I have already rejected the evidence of Mr. Al-Khalisy. In my view, the evidence that the Plaintiffs acted reasonably in the resale of their home is unassailable. They did not take the first offer which came their way in April 2019. They sought and followed the advice of their agents. I agree with the submission of Plaintiffs’ counsel that it would have been precipitous of them to take such an offer without re-listing the property and testing the market; indeed, one can fairly imagine that there would have been a howl of outrage from the Defendant had they done so. Instead, they re-listed on the market and absorbed the expenses associated with doing so; they shouldered the expenses of carrying the property; they rejected inadequate offers in August 2019 even though the temptation must have been strong to divest themselves of the ongoing expenses associated with maintaining two properties. They even attempted to revive the APS through negotiation. And when they did finally enter into the second APS it was at a price negotiated through their agent, more than a year after the Defendant’s APS breach, several months after the failed conditional settlement and at a purchase price above what has now been established by expert evidence to be fair market value at the time.

[48] The Defendant rather blithely suggested that the Plaintiffs failed to mitigate their loss of interest income from the VTB mortgage by replacing that income with another VTB. This rather ignores the fact that one needs not only a purchaser but also a purchaser willing to enter into such an arrangement. That was a fanciful possibility. The unique circumstances in which the VTB was agreed to during the tortured negotiations of the APS would have made it next to impossible to find a willing purchaser to agree to such an arrangement on similar terms.

[49] Fourth, there is no genuine issue requiring a trial of the special damages/out of pocket expenses claim. These expenses and losses are reasonably foreseeable and proximate to the breach.

[50] The evidence led by the Plaintiffs in support of those claims is particularized, detailed, complete and transparent. Apart from the mitigation argument on the VTB, which I reject, the Defendant did not challenge those claims in any meaningful way. Since I have found that the Plaintiffs acted reasonably and responsibly in re-listing and ultimately selling the property, it follows that the expenses incurred for marketing and then maintaining the property are reasonable and justified. The Plaintiffs left the property when the deal on their new Georgina home closed on May 14, 2018. Not only did the integrity and security of the property justify these expenses (hydro and insurance), but in the case of staging, grass cutting and gardening services, such expenses were necessary in order to maintain and beautify the property while it remained on the market.

[51] I am satisfied that the bridge financing costs were necessary and reasonable. Those costs were a reasonable and necessary expenditure to allow the Plaintiffs to close the purchase of their new home in Georgina.

[52] There is no genuine issue that the Plaintiffs are entitled to claim the foregone interest on the VTB. While not an out of pocket expense per se, it would be a recoverable loss to the Plaintiffs in the form of expectation damages. However, I would infer that the purpose of the negotiated VTB was to offset some of the Plaintiffs’ ongoing expenses with bridge financing and carrying the property during the granted extension for closing. I am not satisfied that it served as a kind of stand-alone gratuitous benefit to the Plaintiffs. Because there is no evidence that the Plaintiffs would have used the interest income for any other purpose other than covering off expenses, I find that it would constitute double recovery for them to receive both the loss of interest income from the VTB on the one hand, and the bridge financing and property maintenance costs on the other hand. This would place them in a better position than had the APS closed as scheduled. This would serve to subvert the purpose of damages for breach of contract.

[53] I find that the Plaintiffs are entitled to recover their claimed special damages/out of pocket expenses net of the interest income they would have received from the VTB. This amount comes to $56,380.59 ($125,951.82 - $69,571.23).

[54] Fifth, there is no genuine issue requiring a trial on the issue of whether the $150,000.00 paid as deposits on the oft amended APS should be forfeited. The Defendants did not seriously contest this. The record of the deposits is, I find, accurately set out at Exhibit “6” to the affidavit of Brian Prowse dated March 8, 2021. The deposits total $150,000. Each of the payments pre-date the final breach (failure to close) of December 8, 2021. The law in respect of deposits for real estate transactions is well settled. The use of the word “deposit” will imply that the payment is intended for forfeiture upon the purchaser’s breach: see Kandasamy v. Merseyside Holdings Ltd., 2016 ONSC 2205 at paras. 24-28; Iyer v. Pleasant Developments Inc., 2006 CanLII 10223 (ON SCDC), 2006 CarswellOnt 2050 (Div. Ct.).

[55] The Plaintiffs concede that the deposits should not serve as a windfall to the Plaintiffs; their forfeiture should not be added on top of a damages award. This is consistent with the goal of putting the aggrieved contracting party back into the position it would have been had the breach not occurred. Accordingly, the forfeiture of the deposits should serve as a credit towards the overall judgment.

[56] There is no requirement for a trial on the issue of the deposits. As a result of the Defendant’s breach, the deposits totaling $150,000.00 are forfeited and shall be paid to the Plaintiff in partial satisfaction of the judgment.

[57] This leaves the issue of whether there was “a new APS” as of February 2020.

[58] There is no genuine issue requiring a trial of this issue.

[59] One, from a procedural standpoint, the existence of the February 2020 APS has never been pleaded. Rule 25.07(3) reads as follows:

25.07(3) Different version of facts – Where a party intends to prove a version of the facts different from that pleaded by the opposite party, a denial of the version so pleaded is not sufficient, but the party shall plead the party’s own version of facts in the defence.

[60] For pleadings to serve any purpose at all, they must be utilized to define the issues which are to be litigated and adjudicated. There was no motion for leave to amend before me and no request for an adjournment to permit the Defendant to seek such relief. It is not enough for the Defendant to submit that he was foreclosed from filing further materials through a procedural order. The court must address both the pleadings and the evidence which are before it on a summary judgment motion.

[61] Two, the Defendant’s assertion that the parties entered into a new APS in February 2020 is simply not supported by the evidence. Aside from the fact that there was no executed APS, the Defendant’s assertion runs contrary to the other uncontradicted evidence. It is true that a conditional settlement between the parties was born of the minutes of settlement executed by the parties on November 4, 2019. Those minutes called for payment by the Defendant to the Plaintiffs’ solicitor of two deposits: the first for $75,000 on the date of execution of the minutes; and the second for $50,000.00 within 30 days after the execution date. Paragraph 4 of the minutes read as follows:

It is acknowledged and agreed that if the Defendant breaches any of the terms of these Minutes of Settlement, the Deposit and the Supplementary Deposit, to the extent that they have been paid, shall automatically and immediately be forfeited and paid to the Plaintiffs.

[62] The evidence clearly establishes that the second payment was not made by that second date. That being a term of the “conditional” settlement which was not fulfilled, the agreement was at an end.

[63] On February 4, 2020 the Plaintiffs’ solicitor did afford the Defendant an opportunity “to revive the Minutes of Settlement” by proposing payment of a non-refundable deposit of $100,000.00 to show the Defendant’s commitment to closing, but warned: “If Samir is in agreement, the lawyers will need to paper and agree on the wording before we could have a deal on the revival of the Minutes”.

[64] This was followed on February 10, 2020 by the Defendant’s agent unilaterally delivering a certified cheque in the amount of $60,000.00 to the Plaintiffs’ real estate solicitor.

[65] There followed a series of correspondence between the lawyers: a February 11, 2020 letter from the Plaintiffs’ lawyer attaching proposed Amended Minutes of Settlement to be executed no later than February 13, 2020; a response from the Defendant’s solicitor dated February 13, 2020 which did not contain an acceptance of the amended minutes, but rather a host of proposals, revisions and new terms; a letter of reply from the Plaintiffs’ solicitor confirming rejection by the Defendant of the minutes proffered on February 11, confirming the breach of the November 4, 2019 minutes by the Defendant, and advising that the Plaintiffs would be proceeding with their summary judgment motion.

[66] The above correspondence serves as overwhelming proof that there was no new APS and no binding agreement as a result of the breach of the November conditional settlement. The unravelling of the conditional settlement was made plain when the proposed closing date of March 6, 2020 came and went without payment of the purchase price.

[67] Finally, I am persuaded that no legal agreement was even possible on the facts of this case. Section 4 of the Statute of Frauds, R.S.O. 1990, c. S.19 requires that an agreement for the purchase and sale of land must be in writing. Here there was nothing in writing that would have served to create any transfer of or interest in land.

[68] There was no legally binding agreement between the parties in February 2020. As stated by the Ontario Court of Appeal in Bawitko Investments Ltd. v. Kernels Popcorn Ltd., 1991 CanLII 2734 at p. 14:

If no agreement in respect to essential terms has been reached or the terms have not been agreed to with reasonable certainty, it can only be concluded that such terms were to be agreed upon at a later date and until that time there would be no completed agreement.

[69] There is no genuine issue for trial on the issue of whether the Plaintiff breached a new APS in February 2020. There was no new APS to breach.

Disposition

[70] For the foregoing reasons, the Plaintiffs are entitled to judgment against the Defendant. There shall be an order to go:

i) for judgment in favour of the Plaintiff in the amount of $806,380.59.

ii) that the amount of $120,000.00 plus any accumulated interest held in trust at Trends Realty Inc. shall be paid to the Plaintiffs to the credit of the judgment; and

iii) that the amount of $30,000.00 plus any accumulated interest held in trust at the office of Michelle Hubert Barrister and Solicitor shall be paid to the Plaintiffs to the credit of the judgment.

[71] The parties alluded to further trust funds which may have been deposited by the Defendant with either the solicitor or the real estate agents. The notice of motion of the Plaintiffs did not request any relief in respect of those funds. The Defendant did not bring a motion for an order in respect of those funds. Either party is at liberty to bring a motion for the determination of entitlement to those funds. I shall remain seized of this matter for the purposes of any such motion.

Costs and Interest

[72] Finally, the issue of pre-judgment interest and costs remain to be determined. Should the parties be unable to come to an agreement on the rate or amount of pre-judgment interest and/or the issue of costs, either may take out an appointment to appear before me to address those and any other remaining issues through the trial coordinator at Newmarket.

McCarthy J.

Released: May 4, 2021

May 4, 2021 – Corrections:

1. HEARD via videoconference: April 15, 2021 now reads: Heard via zoom April 12, 2021

2. Para. 70 (i) now reads: for judgment in favour of the Plaintiff in the amount of $806,380.59.