Court File and Parties
COURT FILE NO.: CV-21-29881 DATE: 20210604
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Lisa Davis and Colin Johnson Plaintiffs/Moving Parties
– and –
Jehad Khouri and LC Platinum Inc. – 525 Defendants/Responding Parties
COUNSEL: Darwin E. Harasym, for the Plaintiffs/Moving Parties Jeffrey W. Nanson, for the Defendants/Responding Parties
HEARD: Via Zoom on May 31, 2021
Ruling on Summary Judgment Motion
1The plaintiffs/moving parties filed a motion for summary judgment seeking the following relief:
i) A declaration that the defendant, Jehad Khouri, breached an Agreement of Purchase and Sale (APS or Agreement) dated January 6, 2021 to sell the residential property located at 141 Meconi Court, Tecumseh, Ontario, to the plaintiffs;
ii) Summary Judgment in favour of the plaintiffs for an order for specific performance of the APS requiring the defendant to sell the property to the plaintiffs;
iii) If specific performance is granted, an order for equitable damages from the defendant Jehad Khouri, incurred between the initial closing date of April 6, 2021 and the date of specific performance of the APS in an amount to be agreed between the parties, or if no agreement is reached, in an amount to be determined by the court at a later date;
iv) Costs of this motion, the successful motion before Howard J. that resulted in a certificate of pending litigation being issued on April 15, 2021, and costs of the action.
Overview
2The court received evidence by way of affidavits filed by each of the parties and transcripts of their cross-examinations on those affidavits. The affidavits of Rose Laflamme, the real estate agent acting for the plaintiffs and Anthony Mariotti, the lawyer who acted for the plaintiffs on the real estate transaction were filed along with the transcript of the cross-examination of Ms. Laflamme. Also filed was a transcript of the examination and cross-examination of Nancy Vitella, the real estate agent who represented the defendant in this transaction.
3The plaintiffs, Lisa Davis and Colin Johnson intended to get married and were interested in relocating from Toronto, Ontario to Windsor, Ontario to take advantage of the lower cost of living in this region and because they have family and friends who live in this area. Ms. Davis is employed as a daycare worker and Mr. Johnson is an electrician. They each have one child. Ms. Davis, a daughter who attends university and Mr. Johnson, a son who is high school age.
4As a result of their decision, they each sold their homes in the Toronto area and they spent many weekends viewing residential properties to purchase for themselves and their children. They viewed 21 properties in this region between October 2020 and January 6, 2021 with the assistance of their real estate agent, Rose Laflamme, making weekend trips from Toronto to Windsor to do so.
5They put in offers on four of the properties they were interested in purchasing and on each of those occasions were outbid. When they became aware that the property which is the subject matter of this motion was listed for sale, they made an offer to purchase it the same day that they saw it, January 6, 2021. The list price for the property was $589,900. They made an offer above the asking price at $621,000 and the offer was accepted by the defendant, Mr. Khouri.
6The defendant, Mr. Khouri, indicates that he listed the property for sale in December 2020 as a result of health issues that required him to have open heart surgery in London, Ontario. It was his plan at the time to sell the property, move to London, have the surgery and spend his recovery in London.
7The defendant indicates in his affidavit that he received a second opinion in January 2021 that the surgery could be performed in Windsor and, as a result, he had the surgery in Windsor on February 10, 2021.
8According to the defendant, he decided that he no longer wanted to sell his residence. The reason for this change of mind is disputed. The defendant maintains that it was because there was no need for him to travel to London, Ontario for the surgery or to move there.
9His former real estate agent, Ms. Nancy Vitella, indicated during her cross-examination that she was initially unaware that the defendant no longer wanted to sell the home. She said that after the APS was entered into, she showed Mr. Khouri a number of homes for sale and that he had made offers on several homes and was outbid. He also asked her to look for rental properties for him. In March 2021, he expressed that he was angry with her because he thought he should have waited and sold his home for more money. On March 10, 2021, the defendant asked his real estate agent, Ms. Vitella, to forward a “Mutual Release Agreement of Purchase and Sale” to the plaintiffs. The problem was that there was no mutual agreement to release the parties from the APS. It was the defendant who sought to cancel the agreement. The plaintiffs did not sign the form.
10The plaintiffs retained the services of Anthony Mariotti in March 2021 to represent them on this real estate transaction. The APS listed a closing date of April 2, 2021. Mr. Mariotti, realized that the closing date fell on Good Friday and that, as a result, the sale could not close on that date, so he communicated with the lawyer for the vendor, Rashid Farhat, to offer to close the sale the day before, that is Thursday, April 1, 2021, or on the next business day, Tuesday, April 6, 2021. The letter was sent by fax on March 16, 2021 but no reply was received so Mr. Mariotti sent another letter by fax on March 18, 2021 indicating that the closing date ought to be April 6, 2021.
11In his affidavit, Mr. Mariotti indicates that when a closing date in an agreement of purchase and sale falls on a holiday, the “standard practice” is for the transaction to close on the following business day.
12On March 22, 2021, Mr. Mariotti sent an email to Mr. Farhat enclosing a letter, again requesting confirmation that the transaction could close on April 6, 2021. Mr. Farhat replied by email indicating that the defendant, Mr. Khouri, had advised him that the parties, through their realtors, had agreed to amend the closing date to June 4, 2021.
13Mr. Mariotti contacted Ms. Laflamme seeking confirmation of this information and determined that neither she, nor the plaintiffs had agreed to extend the closing date to June 4, 2021. As a result, Mr. Mariotti sent a further email to Mr. Farhat indicating that no such extension was agreed to. The following day, Mr. Farhat emailed Mr. Mariotti indicating that he was awaiting instructions from his client. Mr. Mariotti subsequently confirmed by letter that his clients were not consenting to an extension of the closing date to June 4, 2021.
14On March 24, 2021, Mr. Mariotti sent a letter setting out his requisitions. Mr. Mariotti and Mr. Farhat had a telephone conversation, the contents of which are disputed. However, it seems clear that Mr. Mariotti took the position that the transaction should close on April 6, 2021, and that his clients were “ready willing and able to close” on that date. Mr. Farhat took the position that his client did not want to close then, but wanted a June closing date.
15Mr. Farhat was advised on March 29, 2021 that the plaintiffs had retained “litigation counsel” in the event that the transaction did not close on April 6, 2021. The lawyer for the defendant did not prepare a statement of adjustments, but Mr. Mariotti did. Mr. Mariotti wrote to Mr. Farhat on April 1, 2021 and on April 6, 2021 reiterating that the plaintiffs were ready, willing and able to close the transaction. On April 6, 2021, Mr. Mariotti tendered on Mr. Farhat. The transaction did not close.
16There is no evidence before the court from Mr. Farhat.
17The plaintiffs filed this action and thereafter obtained a certificate of pending litigation against the property on April 15, 2021.
18The defendant, LC Platinum Inc.-525, has been noted in default. The plaintiffs indicate that they were simply added as a party because they are in possession of the $10,000 deposit paid by the plaintiffs. LC Platinum Inc.-525 did not take part in this motion.
Issues
- Should the motion for summary judgment be granted?
The position of the parties
19The plaintiffs take the position that there is no genuine issue requiring a trial. The APS was entered into by the parties, and although the closing date for the transaction fell on a holiday, April 2, 2021, this would have been easily remedied by closing the sale either one day earlier or on the next business day following the holiday, April 6, 2021. The parties were ready and able to close the transaction and, in fact, tendered on April 6, 2021.
20Accordingly, it is their position that the defendant is in breach of the Agreement for failing to close the transaction on April 6, 2021.
21The defendant takes the position that he put the plaintiffs on notice on March 10, 2021, that he would not be selling the property to them by providing a signed Mutual Release. He further takes the position that it was impossible to tender as there was no agreement on the closing date of April 6, 2021, and, accordingly, he was not in breach of the Agreement.
22Furthermore, the defendant suggests that this is not an appropriate case for a summary judgment motion as there is a genuine issue to be determined at trial, namely whether or not there was a valid contract between the parties.
The legal principles
23The plaintiff brought this motion for summary judgment pursuant to r. 20.01(2) of the Rules of Civil Procedure, R.R.O.1990, Reg 194, as an urgent matter.
24Rule 20.04(2) states:
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; or
(b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment.
25In determining under clause (2)(a) whether there is a genuine issue requiring a trial, r. 20.04(2.1) states:
In determining under clause (2)(a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:
Weighing the evidence.
Evaluating the credibility of a deponent.
Drawing any reasonable inference from the evidence.
26In Hryniak v. Mauldin, 2014 SCC 7, Karakatsanis J. says that a “culture shift” is required in order to promote timely and affordable access to the civil justice system. This shift includes the use of summary judgment motions where appropriate, and the Court concludes that “summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims.”1
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 the 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.
28The moving party bears the onus to establish that there is no genuine issue requiring a trial. Once they have done so, the responding party bears an evidentiary burden to establish that its defence has a chance of success.
29The evidence to be used in making a determination on a summary judgment motion is outlined in r. 20.02 which says:
(1) An affidavit for use on a motion for summary judgment may be made on information and belief as provided in subrule 39.01 (4), but, on the hearing of the motion, the court may, if appropriate, draw an adverse inference from the failure of a party to provide the evidence of any person having personal knowledge of contested facts.
(2) In response to affidavit material or other evidence supporting a motion for summary judgment, a responding party may not rest solely on the allegations or denials in the party’s pleadings, but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial.
30To determine whether there is no genuine issue for trial, I must determine whether on the evidence before the court, I can answer the following questions:
a) did the defendant breach the Agreement of Purchase and Sale? and/or
b) did the plaintiffs breach the Agreement of Purchase and Sale?
31If the court is able to make the necessary findings of fact based on the record before the court, apply the law to facts to expeditiously reach a just result, then the matter can be dealt with by summary judgment motion.
Did the defendant and/or the plaintiffs breach the agreement?
32Section 89(2) of the Legislation Act, 2006, SO 2006, c. 21 provides that time limits for registering or filing documents that falls on a day where the place for doing so is not open is extended to include the next regular business day.
33Section 88(2) identifies both Good Friday and Easter Monday as holidays.
34Mr. Mariotti, on behalf of the plaintiffs, made efforts to deal with the issue of the closing date with Mr. Farhat, counsel for the defendant.
35The defendant takes the position that he communicated to the plaintiffs his intention to terminate the APS by signing and forwarding a “mutual release”. This release is only operative if both parties sign the document and agree to terminate the APS.
36While his health challenges were significant, and fortunately successfully resolved, the defendant demonstrated on March 10, 2021 his intention to repudiate the contract without any discussion with the plaintiffs. The issue of the inability to close the transaction on April 2, 2021 was raised by Mr. Mariotti subsequently in an attempt to deal with the closing either in advance of that date or on the next business day. The defendant sought an extension of the closing date to June 4, 2021 and when the plaintiffs did not agree, he failed to prepare a statement of adjustments or move forward with the completion of the transaction.
37In 2628 St-Joseph Boulevard Inc. v. Fondation Olangi-Wosho, 2012 ONSC 541, P.B. Kane J. says at paras. 57 and 66 in circumstances similar to this:
Based on this evidence, I am satisfied that the vendor failed to perform its responsibilities to place itself in a position to be able to close this transaction pursuant to the Contract. The vendor impliedly communicated to this purchaser before December 29 that it was seeking to avoid closing this sale. Refusing to respond to requisitions and requests to extend the closing date communicated an implied renunciation of the Contract, see McCallum et al. v. Zivojinovic, [2007] O.J No. 2341(C.A.), para 9.
Where one party to the transaction has been diligent in its attempt to perform its obligations in the contract, the court will not allow interference of the other party delaying completion of the contract to rely on time of the essence to avoid the contract, see Salama Enterprises (1988) Inc. v. Grewal, 1992 CanLII 4035 (BCCA), [1992] B.CJ. No.703, (B.C.C.A.) p.5.
38In Nutzenberger v. Mert, 2021 ONSC 36, Ricchetti R.S.J describes an anticipatory breach as follows, at paras. 51-52:
An anticipatory breach occurs where one party to a contract repudiates the contract before performance is due. The anticipatory breach or repudiation may be, express or implicit, communicated by words or conduct of the defaulting party, that the defaulting party will not or cannot perform the terms of the contract.
The test is whether a reasonable person is satisfied that the defaulting party has demonstrated the intention not to close the transaction. The Court of Appeal for Ontario in Spirent Communications of Ottawa Limited v. QuakeTechnologies (Canada) Inc. 2008 ONCA 92, at para. 37, described anticipatory breach as follows:
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 envinces an intention not to be bound by the contract before performance is due. See Pompeani v. Bonik Inc. (1997), 1997 CanLII 3653 (ON CA), 35 O.R. (3d) 417, [1997] O.J. No. 4174 (C.A.) 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. ...[I]n determining whether the party in breach had repudiated or shown an intention not to be bound by the contract before performance is due, the court asks whether the breach deprives the innocent party of substantially the whole benefit of the contract. [citations omitted]
39It is clear, in my view, that the defendant communicated on March 10, 2021 his intention to repudiate the contract. Thereafter, the lawyer acting for him on this transaction failed to provide a statement of adjustments or even to respond to inquiries from the lawyer for the plaintiffs which suggests that he had no intention to comply with the APS.
40Ricchetti R.S.J. also says in Nutzenberger, at para. 36:
Where a party advises they cannot close, had advised prior to closing that they cannot close, sought extension which is not granted and then does and says nothing regarding the closing, that party is the defaulting party in the transaction. Where the other party wants to and can close the agreement, they are the innocent party to the transaction.
41And further at para. 95, that the party seeking to enforce the APS need only establish that they were ready, willing and able to close within a reasonable time. In my view, it is clear that the plaintiffs were ready, willing and able to close within a reasonable time.
42In King et al. v. Urban & Country Transport Ltd. et al. (1974), 1973 CanLII 740 (ON CA), 1 O.R. (2d) 449, an Agreement of Purchase and Sale for vacant land had a closing date of June 30, 1968, which was a Sunday, the following day was July 1, a statutory holiday.
43Arnup J.A. speaking for the Ontario Court of Appeal says at p. 4 of the decision:
If I am right in my assessment of the facts, then neither party was ready to close on the contractual date for closing. It has been uniformly held in this Province that that does not put an end to the contract.
44He goes on to say at p. 5 of the decision:
It has been found as a fact that the defendants were neither ready nor willing to close on July 2nd. Therefore, the argument based upon time being of the essence fails. Normally, in this situation, when both parties let the time go by, and one of the parties wishes to reinstate time as of the essence, it is necessary to serve a notice upon the other party, fixing a new date for closing, which must be reasonable, and stating that time is to be of the essence with respect to the new date. Neither side did this in this case. However, the findings of the trial Judge as to the efforts of B to close on July 2nd, July 3rd and July 4th lead inevitably to the conclusion that it was entirely reasonable to insist upon a closing on July 4th and that there was no reason in law for the vendor to refuse to close on the basis of the documents which B then had and which he tendered to D.
I therefore conclude that the vendor in this case cannot take the position that the contract was at an end after July 2, 1968. There is evidence to support the finding of the trial Judge that the purchasers tried to close on July 3rd and July 4th. I agree with him that they were entitled to do so. Mr. Laidlaw did not suggest that he had any defence to the action if the purchasers were entitled to have the transaction closed on July 4th; he was quite right in taking this position.
45In the circumstances of this case, following the reasoning in King , it is clear that the closing date falling on a holiday meant that it was reasonable to conclude this transaction on the next business day, April 6, 2021.
46The decision in King was considered in Domicile Developments Inc. v. MacTavish, 1999 CanLII 3738 (ON CA), [1999] O.J. No. 1998 . In this case, Laskin J.A. considered that neither of the parties were able to close on the agreed upon closing date and says at paras. 11 and 12:
Therefore, on the closing date neither Domicile nor MacTavish was entitled to enforce or end the agreement. A similar situation arose in King v. Urban and Country Transport Ltd. et al., a decision of this court relied on by Binks J. In King v. Urban the purchaser was not in a position to close on the closing date; but the vendor was also in default and not entitled to rely on the time of the essence provision in the contract. Arnup J.A. resolved the stalemate by applying two propositions:
When time is of the essence and neither party is ready to close on the agreed date the agreement remains in effect.
Either party may reinstate time of the essence by setting a new date for closing and providing reasonable notice to the other party.
An important corollary of Arnup J.A.'s second proposition is that a party who is not ready to close on the agreed date and who subsequently terminates the transaction without having set a new closing date and without having reinstated time of the essence will itself breach or repudiate the agreement.
47It is clear that once the plaintiffs refused to accept the defendant’s anticipatory breach of the Agreement (by refusing to sign the mutual release) and in view of the provisions of the Legislation Act, the Agreement was not terminated by the failure of the defendant to participate in the closing on April 6, 2021.
48It does not appear from the evidence that the defendant ever raised the issue of the closing date falling on a holiday. He attempted to unilaterally terminate the Agreement, then he sought an extension of the closing date and ultimately did not apparently complete any of the documents necessary.
49I do not, in any way, intend to be insensitive to the defendant’s health issues when I say this, but the reason for his failure or refusal to complete the sale of the property does not justify his failure to do so.
50The defendant was in breach of the Agreement and the plaintiffs were not. The plaintiffs have demonstrated by their conduct that they were ready, willing and able to close the transaction on the next business day following the holiday in accordance with the provisions of the Legislation Act.
51In my view, this issue can be determined on the basis of the evidentiary record before the court, allowing the court to make the necessary findings of fact and to apply the law in an expeditious way which would achieve a just result.
52No evidence was tendered by the defendant to raise any possible defence. I have not been provided with any authorities that support the defendant’s position that when a closing date in an APS falls on a holiday and the vendor does not agree to close on the next regular business day that the contract is void.
53In Lam v. Chen, 2018 ONSC 2378, at para. 21, DiTomaso J. says the following regarding the obligations on a responding party on a motion for summary judgment:
A responding party to a motion for summary judgment is obliged to put his best foot forward and in that context must do more than simply assert an uncorroborated fact. The respondent to the motion for summary judgment must set out in affidavit material or other evidence, specific facts and coherent evidence showing that there is a genuine issue for trial in default of which the court may simply decide against the responding party on the ground that it failed to file affidavit material or other evidence as required, or in the alternative, may draw adverse inferences from the failure.
54There is no genuine issue for trial. It is therefore an appropriate case for a motion for summary judgment, and, based on my reasons outlined above, the motion for summary judgment is granted and the plaintiffs are entitled to a remedy.
2. Is specific performance an appropriate remedy or should there be a trial on the issue of damages?
The position of the parties
55The plaintiffs take the position that the only appropriate remedy in the circumstances is specific performance. They urge the court to order specific performance and assign a new closing date of June 28, 2021.
56The position of the defendant is that even if the motion for summary judgment is granted, the appropriate remedy is not specific performance but rather, damages which should be determined following a trial.
The legal principles
57The plaintiffs rely on a very recent case from the Ontario Court of Appeal, Lucas v. 1858793 Ontario Inc. (Howard Park), 2021 ONCA 52. In that decision, the Court considered an appeal by a vendor from a decision that the vendor wrongfully terminated an agreement of purchase and sale and an application judge granted a remedy of specific performance on a contract for sale of a residential property.
58At para. 71, the Court says the following:
Whether specific performance is to be awarded or not is therefore a question that is rooted firmly in the facts of an individual case: Matthew Brady, at para. 32. In determining whether a plaintiff has shown that the land rather than its monetary equivalent better serves justice between the parties, courts typically examine and weigh together three factors: (i) the nature of the property involved; (ii) the related question of the inadequacy of damages as a remedy; and (iii) the behaviour of the parties, having regard to the equitable nature of the remedy: Landmark of Thornhill Ltd. v. Jacobson (1995), 1995 CanLII 1004 (ON CA), 25 O.R. (3d) 628 (C.A.), at p. 636. Whether a property is unique, either by virtue of its nature or the features of the contract for its purchase and sale, operates as only one of several factors a court must consider when determining entitlement to specific performance. [Emphasis added.]
59In Dhatt v. Beer, 2021 ONCA 137, the Court of Appeal adopted its reasoning from Lucas and upheld the decision of the trial judge to award a remedy of specific performance. The Court says “[t]o describe the remedy of specific performance as an ‘extraordinary remedy’ is a misdescription”.3
Analysis
60In determining whether to grant the remedy of specific performance in the circumstances of this case, in accordance with the principles in Lucas, I will consider the factors in turn.
a) The nature of the property involved
61In examining the nature of the property involved, the “uniqueness” of the property is assessed as one of the relevant factors for consideration. In Lucas, the Court of Appeal defines uniqueness as follows:4
Uniqueness does not mean singularity or incomparability. Instead, it means that the property has a quality (or qualities) making it especially suitable for the proposed use that cannot be readily duplicated elsewhere: Dodge (S.C.), at para. 60. For example, a rising real estate market, particularly where the purchaser’s deposit remains tied up by the vendor, may indicate that the transaction could not have been readily duplicated or that other properties were not readily available at the time of breach within the plaintiff’s price range: Walker v. Jones (2008), 2008 CanLII 47725 (ON SC), 298 D.L.R. (4th) 344, at para. 165; Sivasubramaniam v. Mohammad, 2018 ONSC 3073, 98 R.P.R. (5th) 130, at paras. 84 and 92, aff’d 2019 ONCA 242, 100 R.P.R. (5th) 1.
62The property in question is a raised ranch with an inground swimming pool and six bedrooms, minimal stairs, in a desirable neighbourhood close to amenities and close to Hwy 401 and the E. C. Row Expressway. It was particularly suited to this family because the finished basement allowed the plaintiffs’ children to have “their own space”, the number of bedrooms allowed for visiting parents to be accommodated, and it is located close to a grocery store where the plaintiff Davis’s daughter would work. Furthermore, the purchase price was attractive because it was within their budget of $650,000.
63It appears that a rising real estate market, where prices have risen by approximately 30 percent in a four-month period, that is, between January 2021 and April 2021, has resulted in a lack of inventory.5 According to the real estate agent acting for the plaintiffs who was cross-examined on her affidavit, at that time (May 12, 2021) there were only two homes with inground pools listed for sale in the neighbourhoods in the vicinity of 141 Meconi St. One was listed for over $1.5 million and the other for $2 million dollars. Both of those listings are well outside the price range for the plaintiffs.
64The defendant takes the position that the property’s physical attributes do not make it sufficiently unique to justify specific performance as an appropriate remedy. In my view, Lucas makes it clear that the concept of “uniqueness” is not limited to the physical attributes of the home itself but takes into account the qualities that make it suitable for this family, which are not easily duplicated.
65In addition to the physical attributes of the property, the court can have regard to the purchaser’s subjective interests as well as the circumstances underlying the transaction.
66This property fulfilled all the requirements of the plaintiffs, including an attractive price; even so they made an offer that well exceeded the list price. There is no evidence before the court that a suitable substitute property would be readily available for purchase within the plaintiffs’ budget, with those qualities, and in the vicinity of the neighbourhood of 141 Meconi Court, Tecumseh, Ontario. The plaintiffs are not required to establish a complete absence of comparable properties.
67In this case, like the situation in Lucas, the “uniqueness” of the property is the function of a number of factors including that the plaintiffs were able to secure a mortgage at a low rate that may no longer be available and that the “advantageous terms” of the sale may not be readily duplicated in this competitive market.
68Furthermore, I am mindful that uniqueness is not the only factor to be assessed:6
Put another way, the specific performance analysis is not merely a search for uniqueness. As the case law discloses, other factors such as the inadequacy of damages as a remedy and the behaviour of the parties also play a role: Landmark of Thornhill, at p. 636; Dodge (S.C.), at para 55; UBS Securities Inc. v. Sands Brothers Canada Ltd., 2009 ONCA 328, 95 O.R. (3d) 93, at para. 100.
69The issue of uniqueness was addressed in Sivasubramaniam v. Mohammad, 2018 ONSC 3073, at para. 84, where the court said that it is not just an issue of whether there were similar homes available in the same neighbourhood or subdivision, but whether any of those homes were readily available for purchase. In a housing market characterized by rapid price increases, the availability of similar homes that are outside of the purchaser’s price range does not qualify as “readily available”.
b) The inadequacy of damages as a remedy
70The property in question in this case is a residential property, not an investment property. Would damages be adequate to remedy the purchasers’ loss? In the circumstances, the plaintiffs have uprooted their family from the Toronto region to move to this area in the hopes of enjoying a better standard of living and being closer to friends and family.
71Since this transaction was not completed, they have been staying with family pending the outcome of this challenge. They have no home so they have been incurring additional costs as a result. A trial on the issue of damages could take a very long time to resolve; in my view damages would not be an adequate remedy.
72Furthermore, on the record before me, and given the failure of the defendant to answer any questions regarding his financial circumstances, I cannot determine whether he has sufficient funds to satisfy an award of damages.
c) The behaviour of the parties
73The plaintiffs in this matter conducted themselves at all times in accordance with their stated intention to honour the Agreement. The same cannot be said for the defendant. He indicated in cross-examination on his affidavit7 that he had decided that he would not be moving on February 11 or 12, 2021. This was a unilateral decision undertaken in the face of a valid APS. This decision was not communicated to the plaintiffs. They first found out that the defendant was seeking to terminate their agreement when they received the Mutual Release document signed by him. He subsequently suggested a closing date of June 4, 2021. The plaintiffs would not agree to this, since they had initially agreed to a lengthier closing date to accommodate the defendant.8
74I note as well that the defendant’s realtor indicated in her evidence that the defendant was actively looking for a residence to purchase in light of the sale of 141 Meconi Court. It was only after he was having difficulty (the same difficulty encountered by the plaintiffs), that is, he was making offers on homes and being outbid by other purchasers that he indicated that he no longer wanted to sell his home. He was upset because he felt that had he waited to sell his residence, he could have made a greater profit.
75It would be inappropriate to reward a party who violates a valid APS because he or she feels they would be in a more advantageous financial position by doing so. The equities favour the plaintiffs.
76Accordingly, after assessing all of the relevant factors, in my view, the plaintiffs have established that specific performance is the appropriate remedy in this matter.
3. If specific performance is granted, should the plaintiffs be awarded equitable damages?
77Counsel for the defendant agreed that if the court found that specific performance was the appropriate remedy in the circumstances, the quantum of any equitable damages from the initial closing date, April 6, 2021, to the date of specific performance of the Agreement could be determined by the parties.
Costs
78The plaintiffs are seeking the costs of this motion, the costs of the successful motion before Howard J. that resulted in a certificate of pending litigation being issued, and the costs of the action.
79The parties agreed that it would be appropriate to make written submissions as to costs once this ruling was released.
Conclusion
80For the reasons outlined above, the motion for summary judgment is granted in favour of the plaintiffs/moving parties.
81There will be an order for specific performance of the Agreement of Purchase and Sale dated January 6, 2021, requiring the defendant to sell the residence located at 141 Meconi Court, Tecumseh, Ontario to the plaintiffs in accordance with that Agreement.
82The new closing date for the completion of the purchase of the property by the plaintiffs will be June 28, 2021, unless the parties agree to extend that date.
83Equitable damages will be payable by the defendant to the plaintiffs for losses incurred between April 6, 2021 and June 28, 2021, or whatever date the parties agree to complete this transaction. The quantum of the damages will be determined by the parties. If they cannot agree on the quantum of the equitable damages, they can bring the matter back before me.
84If the parties cannot agree on costs, submissions on costs will be made in writing consisting of no more than 10 pages exclusive of a bill of costs. Those submissions must be made within 30 days of today’s date.
85Any order as to costs and equitable damages will be paid from the purchase price in the APS upon closing.
Original signed by Justice Maria V. Carroccia
Maria V. Carroccia Justice
Released: June 4, 2021
Footnotes
- Hryniak v. Mauldin, supra, at para. 5.
- Hryniak v. Mauldin, supra, at para. 49.
- Dhatt v. Beer, supra, at para. 42.
- Lucas v. 1858793 Ontario Inc. (Howard Park), supra, at para. 74.
- Affidavit of Rose Laflamme, sworn April 23, 2021, at paras. 19 and 20.
- Lucas, supra, at para. 77.
- Cross-examination of Jehad Khouri on May 12, 2021 at p. 4 question 31.
- Reply affidavit of Lisa Davis sworn April 23, 2021.