Court File and Parties

COURT FILE NO.: CV-20-00652970-0000 DATE: 20210627 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

YANG GAO also known as GAO YANG Applicant

– and –

CHU JA PARK and TRIBUTE (MUTUAL STREET) LIMITED Respondents

COUNSEL: Nick P. Poon, for the Applicant Larry J. Levine, Q.C., for the Respondent Chu Ja Park Michael Scaglione, for the Respondent Tribute (Mutual Street) Limited

HEARD: June 14, 2021

REASONS FOR JUDGMENT

VERMETTE J.

[1] This application concerns an assignment of an agreement of purchase and sale of a pre-construction condominium unit in downtown Toronto. The validity and accuracy of the assignment agreement are in issue, as well as whether specific performance of the agreement should be ordered.

Factual Background

a. The Parties and the Property

[2] On March 23, 2017, the Respondent Chu Ja Park entered into an agreement of purchase and sale with the Respondent Tribute (Mutual Street) Limited (“Tribute”) for a condominium unit and parking spot at 2504 – 77/83 Mutual Street, Toronto, for $725,990.00. The condominium unit was located on the 25^th floor of the building and was southwest facing, with a view of the lake and the CN Tower. It was 855 square feet. The “First Tentative Occupancy Date” was June 8, 2020.

[3] On June 5, 2019, Ms. Park entered into a further agreement of purchase and sale with Tribute for a storage unit in the amount of $5,000.00 (the condominium unit, parking spot and storage unit are referred to as the “Property”).

[4] From March 2017 to November 2018, Ms. Park made a number of deposits totaling $145,197.14 for the condominium, and she paid a further deposit in the amount of $847.50 for the storage unit on June 9, 2019, for a total of $146,044.64. The last deposit for the condominium property before occupancy was in the amount of $36,299.50 and was due on March 16, 2018. However, Ms. Park’s cheque for this amount was NSF and she made alternative arrangements to pay $36,298.64 over the course of four payments, from August 27, 2018 to November 15, 2018.

[5] The agreement of purchase and sale between Ms. Park and Tribute provides that Ms. Park can assign her rights and interests in and to the Property subject to certain terms, including the payment of an assignment fee of $5,000.00 plus HST and the delivery by the assignor and the new purchaser of a signed Vendor’s form of addendum confirming the new purchaser to Tribute at least 60 days before the closing date.

[6] Ms. Park’s mother tongue is Korean. She was born in Korea and came to Canada with her family in 2003 when she was in her early thirties. She describes herself as a housewife. She states in her affidavit that she can neither read, write nor speak English, “except in the most rudimentary manner”. She also states that she has never bought or sold any real estate property on her own, and that her husband decided that title to the Property should be taken in her name in order to protect the Property from potential creditors of her husband, who is in the home renovation business. Her husband, Mr. Yun Hee Lee, swore an affidavit and was cross-examined in this proceeding. According to Mr. Lee, his English is worse than his wife’s. Ms. Park and Mr. Lee have three adult sons.

[7] The Applicant, Yang Gao, is married and has a four-year old daughter. He works in downtown Toronto. In 2019, he was renting a house in Markham and had a daily commute of approximately three hours (1½ hours each way). His lease on the house was ending on June 27, 2020. In the fall of 2019, he started looking for a condominium to purchase in downtown Toronto with an occupancy date in June 2020. He needed to find a place for his family to live after his lease ended and he wanted to avoid the long commute to work. Mr. Gao also wanted to live in downtown Toronto because his wife’s driving license has restrictions and, among other things, she cannot drive alone with their daughter as a passenger.

[8] Mr. Gao’s sister, who also works downtown, agreed to live with Mr. Gao’s family downtown and to split the expenses. They concurred that they would need a three-bedroom condominium with a parking spot, a locker for extra storage and an occupancy date in June 2020.

[9] Mr. Gao’s evidence is that he was not interested in purchasing an existing condo because the closing date would have been in 60 days or less and he did not need to move in so soon. Further, he noted that many existing condos had higher common area maintenance fees which he could not afford and wanted to avoid.

[10] Mr. Gao reported having difficulty finding a three-bedroom condominium in his price range that met his family’s needs and had an occupancy date in June 2020.

b. The Offers and Counteroffers

[11] In early November 2019, Mr. Gao saw an ad for the Property on WeChat posted by Homelife Best Choice Realty Inc. (“Homelife Realty”). The ad posted on November 1, 2019 listed the purchase price at $828,000.00. On November 2, 2019, the purchase price increased to $878,000.00. A prior ad posted in October 2017 listed the purchase price at $800,000.00.

[12] Mr. Gao contacted Homelife Realty and spoke to Rex Cheng about the Property. Mr. Cheng told Mr. Gao that the listing was with one of his colleagues at Homelife Realty, David Kang. On November 4, 2019, Mr. Gao retained Mr. Cheng to make an offer on the Property. On that day, he made an offer to purchase Ms. Park’s interest in the Property for $848,000.00.

[13] The offer was made using Form 150 of the Ontario Real Estate Association and the Toronto Real Estate Board entitled “Assignment of Agreement of Purchase and Sale – Condominium”. This form includes the following provisions, among others:

The Assignee and Assignor acknowledge that the Purchase Price noted above includes both the purchase price the Assignor is paying for the property as indicated in the Agreement of Purchase and Sale between the Assignor and the seller of the property attached hereto as Schedule C, and also includes the amount being paid by the Assignee to the Assignor as payment for this Assignment Agreement. The Assignee and Assignor agree that the funds for this transaction will be calculated and paid as set out in Schedule B attached hereto and forming part of this Agreement. [Emphasis in the original.]

15. APPROVAL OF THE AGREEMENT: In the event that consent to this Assignment is required to be given by the seller in the Agreement of Purchase and Sale attached hereto in Schedule C, the Assignor will apply, at the sole expense of the Assignor, forthwith for the requisite consent, and if such consent is refused, then this agreement shall be null and void and the deposit monies paid hereunder shall be refunded without interest or other penalty to the Assignee.

16. AGREE TO CO-OPERATE: Except as otherwise expressed herein to the contrary, each of the Assignor and Assignee shall, without receiving additional consideration therefor, co-operate with and take such additional actions as may be requested by the other party, acting reasonably, in order to carry out the purpose and intent of this Assignment.

[14] The following terms, among others, were included in Schedule A to the form:

a. The assignor was responsible for all costs incurred for obtaining the written consent to the assignment from the seller.

b. The closing date for the assignment agreement was the date on which the written consent of the seller to the assignment was obtained.

c. The assignee was to reimburse the assignor for the total amount of deposits paid to the seller within five business days after the seller’s written consent to the assignment was obtained by the assignor by making payment to the assignor’s lawyer in trust.

d. The assignee was to pay the balance of the payment under the assignment agreement to the assignor’s lawyer in trust within thirty days after the seller’s written consent to the assignment was obtained by the assignor.

e. The funds were to be held in trust pending completion of the Agreement of Purchase and Sale for the Property.

[15] Ms. Park did not accept Mr. Gao’s offer in the amount of $848.000.00. On November 12, 2019, she signed back a counteroffer for $868,000.00. The counteroffer also contained the following handwritten condition which was added to Schedule A by Mr. Kang, Ms. Park’s agent (“Solicitor’s Approval Condition”):

This Offer is conditional upon the approval of the terms hereof by the Assignor’s lawyer. Unless the Assignor gives notice in writing delivered to the Assignee or to the Assignee’s agent in this Assignment of agreement within 3 banking days after acceptance of this Offer. If no such notice is received within the above time limit, then this term of contract shall be deemed waived by the Assignor and this agreement shall remain valid and binding whether or not such assignment has been arranged.

For this agreement, the term “Banking days” shall be any day other than Saturday, Sunday or statutory holiday in Ontario.

[16] Mr. Gao, in turn, did not accept Ms. Park’s counteroffer of $868,000.00 and, on the same day (November 12), signed back a counteroffer for $860,000.00.

[17] The parties’ evidence diverges at this point. According to Mr. Gao, Ms. Park did not accept his $860,000.00 counteroffer, and she signed back a counteroffer for $867,500.00 which he accepted on November 14, 2019 (“Assignment Agreement”). On November 15, 2019, both parties signed the acknowledgement that they had received a copy of the accepted Assignment Agreement, and that they authorized the brokerage to send a copy to their respective lawyers. On November 18, 2019, Mr. Gao paid to Homelife Realty the $40,000.00 deposit provided for in the Assignment Agreement. Ms. Park did not provide written notice relying upon the Solicitor’s Approval Condition on or before November 19, 2019 (the expiry of the three-banking-day period) and, as a result, that condition was deemed to be waived by Ms. Park and the Assignment Agreement became firm and binding on the parties.

[18] Ms. Park’s evidence is that after making the $868,000.00 counteroffer on November 12, 2019, she did not hear back from her agent, Mr. Kang, until approximately January 20, 2020, and she therefore assumed that no agreement for the assignment of the Property had been reached. She states that she does not know “who or under what circumstances the number of $867,500.00 was written and $868,000.00 crossed out”, and that she never received a copy of the accepted Assignment Agreement. She also states that Mr. Kang did not review with her the documents that she signed on November 12, 2019 (or any other version of the Assignment Agreement) and that he did not draw the Solicitor’s Approval Condition to her attention. She stresses that she was not capable of reading the documents as they were in English and states that Mr. Kang did not translate them for her.

[19] According to Ms. Park, she and her husband did not have the intention to sell the Property, but they advised Mr. Kang in the fall of 2019 that if a sufficient price were attainable, they would consider selling the Property as they had a debt that they wished to discharge. Ms. Park states that she advised Mr. Kang on November 12, 2019 that she would not agree to sell the Property unless she would realize a net profit after all expenses of $120,000.00, with funds received by January 31, 2020. She further states that the $120,000.00 figure was mentioned to Mr. Kang in a prior meeting at which both Ms. Park and her husband were present. Her evidence is that she advised Mr. Kang on November 12, 2019 that she would be prepared to accept $868,00.00 if it met the other criteria.

[20] Mr. Kang was examined by the parties pursuant to Rule 39.03 of the Rules of Civil Procedure. His evidence is that Mr. Lee asked him to sell the Property because he was not able to make the payment under the agreement of purchase and sale with Tribute. With respect to the $867,500.00 counteroffer, Mr. Kang’s evidence is that Mr. Lee came to his office, Mr. Kang gave the documents to Mr. Lee, Mr. Lee took them home to have them signed and initialed by Ms. Park, and Mr. Lee brought back the signed documents to Mr. Kang’s office. Mr. Kang stated during his examination that he gave a copy of the accepted Assignment Agreement to Mr. Lee. He further stated that he never told Ms. Park or Mr. Lee that they would get all the funds for the closing of the Assignment Agreement by the end of January 2020.

c. Subsequent Events

[21] Mr. Kang’s evidence is that he asked Mr. Lee about the lawyer that he and Ms. Park wanted to use for the assignment, and Mr. Lee asked him for recommendations. Mr. Kang then recommended two lawyers to Mr. Lee and Mr. Lee chose a lawyer at the firm Harmony Law Group. Mr. Kang then sent an e-mail to that lawyer.

[22] On January 2, 2020, an assistant at Harmony Law Group sent an e-mail to Mr. Cheng, Mr. Gao’s agent, to advise that they were acting for Ms. Park and to request the contact information of Mr. Cheng’s client.

[23] On January 9, 2020, Mr. Cheng sent to Mr. Gao Tribute’s assignment requirements, including a list of the information and documentation requested by Tribute. On January 16, 2020, Mr. Kang sent to Mr. Gao the same assignment requirements that Mr. Cheng had sent to Mr. Gao on January 9. Mr. Gao sent the requested information to Mr. Cheng on January 15 and to Mr. Kang on January 16, 2020.

[24] On January 23, 2020, Mr. Kang sent to Mr. Cheng a Statement of Adjustments prepared by Ms. Park’s lawyer, Henry Jang. Mr. Jang is not at the firm Harmony Law Group. In his affidavit, he states that he received an e-mail from Mr. Kang on January 22, 2020 indicating that Mr. Jang was acting for the seller and Katherine Lee was acting for the buyer in respect of the Property. According to Mr. Jang, the names of the seller and buyer were not disclosed in Mr. Kang’s e-mail. Mr. Kang dropped off a copy of the Assignment Agreement at Mr. Jang’s office later that day.

[25] On January 24, 2020, Mr. Gao sent his and his lawyer’s contact information to Mr. Jang and advised Mr. Jang that his lawyer, Ms. Lee, would contact him “for closing details”.

[26] Ms. Park states that she never instructed or authorized Mr. Kang to send documents to a lawyer at Harmony Law Group or to seek Tribute’s approval to the assignment. Ms. Park’s evidence as to what happened when she allegedly found out about the Assignment Agreement is as follows:

On a date which I believe was around January 20, 2020, my husband had a telephone discussion with David Kang, in which David Kang advised that the Assignment Agreement was in force and my husband advised that as far as we were aware, there was no agreement to assign the purchase of the Mutual Street condominium to anyone. My husband advises me and I verily believe that Mr. Kang indicated to him that the situation was complicated and that we needed to see a lawyer. We accordingly contacted the office of a lawyer of our acquaintance by the name of Henry Jang and asked that Mr. Kang take the documents to his office. My husband met with Mr. Jang for the first time on or about January 24, 2020. At that meeting, my husband advised him that we did not regard a valid agreement as being in existence.

The debt referred to above was still outstanding. Although we did not believe that there was a binding agreement to sell the condominium unit, my husband advises me that nevertheless he asked Mr. Kang on the telephone if we decided to treat the agreement as valid, whether we could have the money by the end of January, 2020. Mr. Kang responded in the negative, but added that if that was essential, we could cancel the agreement. We thereafter met with Mr. Jang on January 30, 2020 and at the end of the meeting instructed Mr. Jang to take the position, which we believed to be legally correct, that there was no valid agreement in force, compelling us to proceed with the sale to Yang Gao (whom we had neither met nor spoken to at any time). […]

[27] While Ms. Park refers to an outstanding debt in her affidavit, during her cross-examination, she did not know how much the debt was for, the name of the person to whom it was owed, and when it was due. Although Ms. Park suggests that the debt may be due at the time that her house (which was a renovation flip) was sold, this would not support the allegation that Ms. Park and Mr. Lee needed to receive funds by the end of January 2020.

[28] In his affidavit, Mr. Jang confirms that he met with Mr. Lee on January 24, 2020, and with both Mr. Lee and Ms. Park on January 30, 2020. He states the following:

Through the course of these meetings, I became aware that the balance due on closing was not what Assignor wanted as it was significantly short of what had been anticipated by them. Clients wanted return of deposits with the builder ($146,045.52) and $120k profit, but by my calculation they would only receive from me total of $241,905.52 minus commission, instead of a possible $246,708.00 ($145,198 plus $101,010, being items 3 and 6 of Schedule B) minus the commission.

[29] Mr. Jang does not explain in his affidavit how the $4,802.48 difference between the two amounts ($246,708.00 – 241,905.52) is relevant to the issue of the $120,000 profit referred to in this paragraph.

[30] On January 29, 2020, Mr. Gao’s lawyer, Ms. Lee, sent an e-mail to Mr. Jang to let him know that Mr. Gao would get his mortgage pre-approval in a few days and that they could start the assignment process once it was obtained. On January 30, 2020, Mr. Jang sent the following letter to Ms. Lee:

I have reviewed a copy of the Assignment of Agreement of Purchase and Sale dated November 4, 2019.

This Agreement contains fundamental mistakes as to the subject matter, the purchase price, and the deposits such that it is obvious that there was no meeting of the minds as to the essential terms of the contract. Therefore, the agreement is null and void ab initio.

My client is agreeable to execute a Mutual Release to have the deposit paid by your client to the real estate brokerage released to him immediately.

[31] On January 31, 2020, Ms. Lee responded to Mr. Jang as follows:

I do not see any issue with the Assignment Agreement which is legally binding. Your client is represented by a licensed agent and my client has no agent represent him. Therefore, my client is the one in an unfavorable position.

I spoke to my client, he will proceed with the assignment.

[32] Mr. Jang sent the following e-mail to Ms. Lee on the same day:

I am surprised that you think there are no issues with the Assignment Agreement.

It is obvious from your statement that you have failed to review the agreement with any amount of detail.

In any event, my client considers the Assignment Agreement null and void.

[33] Mr. Jang did not elaborate on the alleged “fundamental mistakes” until after this litigation was commenced. In his communications with counsel for Mr. Gao, he did not raise any other reasons for declaring the Assignment Agreement null and void.

[34] Mr. Gao’s evidence is that he was ready, willing and able to close on the Assignment Agreement. There is no evidence to the contrary.

d. Ms. Park’s complaint against Mr. Kang

[35] Ms. Park made a complaint to the Real Estate Council of Ontario against Mr. Kang in January 2021, approximately one year after allegedly finding out about the Assignment Agreement, and only after this Application was commenced. Mr. Kang was a friend of Mr. Lee (Ms. Park’s husband) at the time of the events. Ms. Park’s complaint reads as follows:

Pertaining to my assignment sale transaction, my agent, Mr. David, Kang, misrepresented, omitted and neglected fiduciary duties as my agent for the following reasons:

1. Mr. Kang NEVER explained the contract and yet forced me to initial and sign.

2. Mr. Kang, knowing the fact that I needed the mutually agreed contract so that I can have it reviewed by my lawyer within 3 days as the BUYER stipulated in the contract, he has NOT provided the signed contract to me until March 20, 2020.

3. According to my lawyer, the calculation of monies owed to me in the contract is completely wrong and yet he literally force me to honour the contract (if required, the signed agreement will be provided).

4. The confirmation of Acceptance was NOT signed Nor dated and yet the BUYER, and the Agents who is representing both parties, is forcing me to honour the contract. There are evidence of forging documents and signatures which I can provide.

Now I am being sued by the ASSIGNEE and my agent is smiling and said..\”it is out of my hands…!!!\”

[36] There are a number of factual errors in Ms. Park’s complaint. Among other things, it is clear that she had the signed Assignment Agreement before March 20, 2020 as Mr. Jang, following his clients’ instructions, purported to declare it null and void ab initio at the end of January 2020. Further, the Solicitor’s Approval Condition was included by Ms. Park’s agent, not by Mr. Gao. It is also noteworthy that Ms. Park does not allege in this litigation that Mr. Kang forced her to initial and sign the contract.

[37] Mr. Kang sent two letters (written in Korean) to Ms. Park and Mr. Lee in February 2021 in which he states, among other things, that:

a. he explained the contents of the contract to them, including the Solicitor’s Approval Condition;

b. he provided a copy of the accepted offer to Ms. Park and he showed her the deposit by bank draft;

c. he had many consultations with Mr. Lee during the negotiations, and Mr. Lee’s decision to sell the Property was not pressured and was made based on Mr. Kang’s full explanation; and

d. Mr. Lee called Mr. Kang on January 27, 2020 to cancel the contract.

[38] Ms. Park also alleges that Mr. Kang told both Mr. Jang and Mr. Lee (not at the same time) that Mr. Cheng suggested to Mr. Kang that the latter hold off on providing the Assignment Agreement to Ms. Park. According to Mr. Jang’s affidavit, Mr. Kang went on to say that one possible reason for Mr. Cheng to make this suggestion could be to prevent a review of the Assignment Agreement by Ms. Park with a lawyer. When asked about this issue during his cross-examination, Mr. Kang said that he could not remember being told by Mr. Cheng not to give the Assignment Agreement to Ms. Park. For his part, Mr. Cheng categorically denied having said such a thing. Mr. Kang also testified that he did not remember telling Mr. Jang that Mr. Cheng had told him not to give the Assignment Agreement to Ms. Park.

[39] Ms. Park’s theory is that Mr. Kang and Mr. Cheng conspired together “to find a method that would enable them to enjoy a commission on the purchase and sale of the condominium unit, but knowing that I had never agreed to any sale that did not net me a profit of $120,000.00 and close by the end of January, 2020.”

e. Market value and comparable properties

[40] Mr. Gao filed an affidavit of an appraiser who conducted appraisals to determine the market value of the Property as of November 14, 2019 and as of January 30, 2020. The appraiser’s estimated market value of the Property as of November 14, 2019 is $892,000.00, and her estimated market value as of January 30, 2020 is $911,000.00. The appraiser stated the following in her report:

The Downtown Toronto condominium market was negatively impacted by the COVID-19 pandemic that started in early 2020. The Ontario government initiated the first lockdown in March 2020. Prior to March 2020, the downtown market was strong and demand was high with prices increasing at a rapid pace for the past five years between 2015 to early 2020. Demand in the downtown core weakened due to the pandemic as much of its population seek larger spaces in rural and suburban locations thus resulting in declining prices in much of 2020. With the vaccine roll-out, renewed confidence in the market and historic low interest rates, prices returned to a rising trend in November-December 2020 and a significant increase was noted in Q1 2021 and has since stabilized somewhat.

[41] Mr. Gao has provided additional evidence that: (a) the market value of condominiums in downtown Toronto increased between November 2019 and February 2020; (b) there were no properties comparable to the Property available for sale in February and March 2020 within his price range; and (c) there are no comparable properties, either through a builder or through an assignment, that have occupancy or closing dates in the next six months. Mr. Gao, his wife, daughter and sister are currently living in temporary accommodations.

[42] While not purporting to give independent expert evidence, Terry Min, the real estate agent who introduced Ms. Park and Mr. Lee to the Property, gave evidence regarding three listing agreements for 3-bedroom or 2-bedroom-plus-den condominium properties that were available for sale in February and March 2020 in downtown Toronto. Mr. Min stated during his cross-examination that he did everything that he could to find something very similar to the Property and these three listings were what he was able to find. Mr. Min also indicated that units on higher floors sell faster and that one usually pays a $1,000.00 premium per floor for pre-construction condominiums.

Analysis

[43] Both Mr. Gao and Ms. Park agreed that this matter had to be decided based on the paper record because the agreement of purchase and sale for the Property is scheduled to close on July 14, 2021, leaving no time for the trial of an issue. While counsel for Tribute was present at the hearing of this matter, he did not take any position on the Application.

a. Ms. Park made the $867,500.00 counteroffer and it was accepted by Mr. Gao

[44] Ms. Park argues that there was never “offer and acceptance” of the Assignment Agreement. She states that as she “never received the Applicant’s final offer of $867,500.00, she, accordingly, never accepted it and could not have, (and did not) communicate her acceptance to the Applicant.”

[45] Ms. Park also states that Mr. Gao’s offer was not presented to her as a consequence of a conspiracy between Mr. Cheng and Mr. Kang. Ms. Park alleges that Mr. Kang “accepted the advice of his superior in the firm, Rex Cheng, not to present the offer to Chu Ja Park, in order that she not take the offer to a lawyer for review pursuant to the ‘three day lawyer approval clause’ contained in the offer.”

[46] With respect to the issue of offer and acceptance, Ms. Park has it backwards. The $867,500.00 offer was not Mr. Gao’s, it was hers, and it was Mr. Gao who had to communicate his acceptance of the offer, not Ms. Park.

[47] The $867,500.00 counteroffer on the Assignment Agreement is initialed. Based on a superficial review of the document, the initials appear to be the same as the initials for the $868,000.00 counteroffer, which Ms. Park admits she made. Ms. Park also appears to have signed the acknowledgement section of the document where she acknowledges receipt of the signed copy of the accepted Assignment Agreement – there was no accepted Assignment Agreement until Mr. Gao accepted the $867,500.00 counteroffer on November 14, 2020. Again, based on a superficial review of the document, this signature appears to be the same as another signature of Ms. Park dated November 12, 2019.

[48] Ms. Park’s bald assertion that she did not sign the counteroffer and did not receive a copy of the Assignment Agreement implies that her initials and signature were forged. Aside from Ms. Park’s assertion, I have no evidence before me that would assist in determining whether, in fact, there is a basis for Ms. Park’s implied allegation of forgery. Ms. Park has chosen not to put before me any evidence that her initials or signature have been forged. In the absence of objective evidence that Ms. Park’s initials are a forgery, I reject this allegation: see Byfield v. Toronto-Dominion Bank, 2011 ONSC 4449 at paras. 7, 13; aff’d by 2012 ONCA 49.

[49] Overall, I find that the following allegations of Ms. Park are not credible: (a) that she did not make the $867,500.00 offer; (b) that she did not hear from Mr. Kang between November 12, 2019 and January 20, 2020; and (c) that she did not know that there was a signed Assignment Agreement until January 20, 2020. There are a number of internal inconsistencies within Ms. Park’s evidence, in particular between her cross-examination and her affidavit evidence, but also within the written record, some of which are pointed out above. Further, there are discrepancies between Ms. Park’s evidence and the evidence of some of her witnesses, including Mr. Min and Mr. Jang. While I have considered the possibility that some discrepancies and inconsistencies may arise out of misunderstandings due to the language barrier, I conclude that Ms. Park’s difficulties with the English language cannot provide a reasonable explanation for most of the problems with her evidence.

[50] In addition to the inconsistencies and discrepancies in the evidentiary record, the following factors contribute to my conclusion that Ms. Park’s evidence is not credible (this is not an exhaustive list):

a. The issue of there having been no offer and acceptance was not raised by Mr. Jang when he took the position at the end of January 2020 that the Assignment Agreement was null and void. His position was based on alleged fundamental mistakes in the Assignment Agreement, which position is no longer pursued by Ms. Park.

b. I do not find it credible that Ms. Park and Mr. Lee would not have followed up with Mr. Kang after making the $868,000.00 counteroffer on November 12, 2019. Both Ms. Park and Mr. Lee testified that they needed funds by the end of January 2020 to pay a debt. Someone in their position would have wanted to know whether their offer was accepted so that, if it was not, they could make alternative arrangements to pay the debt. Ms. Park and Mr. Lee did not make such alternative arrangement and the debt was not paid by the end of January.

c. Ms. Park’s and Mr. Lee’s apparent nonchalance about the payment of the debt and the fact that the debt was not paid by the end of January also contradict their allegations that it was essential for them to receive the funds by the end of January in order to pay a debt.

d. The law firm Harmony Law contacted Mr. Cheng on January 2, 2020 to advise that they were acting for Ms. Park and to ask for Mr. Gao’s contact information. Even if one were to accept that Mr. Kang “retained” Harmony Law without instructions, it is unlikely, in my view, that Harmony Law would not have contacted Ms. Park directly between January 2, 2020 (or earlier) and January 20, 2020.

e. Mr. Kang is the person who added the Solicitor’s Approval Condition to the November 12, 2019 counteroffer so as to protect his client, Ms. Park. It would be a strange thing for him to do if his intention was to mislead Ms. Park and embark on a course of improper conduct. If such was his intention, he could have simply accepted Mr. Gao’s counteroffer in the amount of $860,000.00 instead of allegedly forging a new counteroffer in the amount of $867,500.00, which was just $500.00 less than Ms. Park’s prior offer.

[51] Ultimately, I conclude that Mr. Gao’s and Mr. Kang’s versions of events are the ones that are the most credible in light of the documentary evidence and the evidence as a whole.

[52] The evidence adduced on this Application does not establish any conspiracy or fraud on the part of Mr. Cheng and Mr. Kang. Ms. Park’s counsel barely cross-examined Mr. Cheng, who denied having told Mr. Kang not to give a copy of the Assignment Agreement to Ms. Park. Further, Mr. Kang’s alleged statements to Mr. Jang are unclear and, if made, were statements of Mr. Kang speculating about Mr. Cheng’s possible intentions. Ms. Park states in her affidavit that Mr. Kang made similar statements to her husband, but Mr. Lee does not refer to such statements in his affidavit. There is nothing else before me. This is wholly insufficient to make any finding of wrongdoing against Mr. Cheng. This is also insufficient to make any finding of wrongdoing against Mr. Kang. Again, I note that Mr. Kang is the person who added the Solicitor’s Approval Condition to the document so as to protect his client, Ms. Park.

[53] The case law is clear that in the absence of fraud or other improper conduct inducing Ms. Park to enter into the contract, she is bound by an agreement to which she puts her signature whether she has read its contents or has chosen to leave them unread. As stated above, no fraud or improper conduct have been established on this Application. Thus, the onus rests upon Ms. Park to review the document and satisfy herself of its advantages and disadvantages before signing it. There is no justification for shifting Ms. Park’s responsibility to act with elementary prudence onto Mr. Gao: see Fraser Jewellers (1982) Ltd. v. Dominion Electric Protection Co. (1997), 1997 CanLII 4452 (ON CA), 34 O.R. (3d) 1 (C.A.). While Ms. Park may have recourses against her agent, Mr. Kang, this does not affect the validity of the agreement vis-à-vis Mr. Gao.

[54] Ms. Park also raises a few technical arguments. First, she points out that she did not sign the Confirmation of Acceptance, where the following can be seen under the signature line: “Signature of Assignor or Assignee”. I agree with Mr. Gao that, on the last counteroffer for $867.500.00, the signature required on the “Confirmation of Acceptance” was Mr. Gao’s because he was the one accepting the counteroffer. The crossing-out of the word “Assignee” was from the initial offer made by Mr. Gao and the intention was that Ms. Park would sign on this line in the event she accepted Mr. Gao’s offer. While the crossing-out of the party accepting the offer was not corrected in the subsequent counteroffers, this does not have the effect of requiring Ms. Park’s signature on this line. Ms. Park was not the person accepting her own counteroffer.

[55] Second, Ms. Park argues that the Assignment Agreement is invalid because Mr. Gao included his initials instead of his full signature on the Confirmation of Acceptance line, where the party’s signature is required. This argument is not supported by any authorities, and I find that it is without merit. A signature is the name or special mark of a person written with their own hand as an authentication of a document, and it is not essential that the signature be in any particular form: see Hogan v. Metropolitan Toronto Condominium Corporation No. 595, 2014 ONSC 3503 at paras. 22-25, where Justice Daley concluded that printed names could meet a signature requirement. I also conclude that the signature requirement was met in this case and that Mr. Gao’s intention to confirm his acceptance of the counteroffer is clearly and unequivocally conveyed in the Assignment Agreement.

[56] Accordingly, I find that Ms. Park made the $867,500.00 counteroffer and that it was properly accepted by Mr. Gao.

[57] I now turn to the mistakes contained in the Assignment Agreement.

b. Mistakes and Rectification

[58] There are some mistakes in the Assignment Agreement. The main one is that the locker’s purchase price ($5,000.00 + HST) and the deposit for the locker ($847.50) were not included in the calculations in Schedule B to the Assignment Agreement. The same mistakes are reflected in Schedule A, which also contains numbers that were not updated by the real estate agents after each counteroffer was made. All of these mistakes appear to be inadvertent mistakes made by the parties and/or their agents.

[59] These mistakes do not relate to fundamental facts that destroy the consensual basis of the agreement between the parties. They are minor mathematical mistakes that do not change the subject matter of the contract into something essentially different from what the parties believed it to be: see Fram Elgin Mills 90 Inc. v. Romandale Farms Limited, 2021 ONCA 201 at paras. 246-247. It is clear on the first page of the Assignment Agreement that the subject matter of the contract is the assignment of Ms. Park’s interest in one condominium unit, one parking space and one locker and that the total price is $867,500.00. It is also clear from Schedule A and Schedule B that the intent of the parties was that the assignee (Mr. Gao) would reimburse the assignor (Ms. Park) for the total amount of deposits paid by the assignor to the seller (Tribute).

[60] I note that Ms. Park no longer appears to take the position that the mistakes in the Assignment Agreement were fundamental ones. In my view, the position taken by Mr. Jang and his clients to this effect at the end of January 2020 was uninformed and disingenuous.

[61] Given that the mistakes were not fundamental and did not go to an essential term of the contract between the parties, they did not prevent the formation of a contract. From the point of view of an objective reasonable bystander, and in light of all material facts, it is clear that the parties intended to contract and the essential terms of that contract can be determined with a reasonable degree of certainty: see Ron Ghitter Property Consultants Ltd. v. Beaver Lumber Company Limited, 2003 ABCA 221 at paras. 8, 11, and Chambers c.o.b. as Norox Basement Applications v. Prouse, 2017 ONSC 186 at para. 11. In fact, in this case, the essential terms of the contract can be determined from the written contract itself.

[62] Can the mistakes be corrected? In Canada (Attorney General) v. Fairmont Hotels Inc., 2016 SCC 56 at para. 38, the Supreme Court of Canada summarized as follows the principles that apply where rectification is sought:

[R]ectification is an equitable remedy designed to correct errors in the recording of terms in written legal instruments. Where the error is said to result from a mistake common to both or all parties to the agreement, rectification is available upon the court being satisfied that, on a balance of probabilities, there was a prior agreement whose terms are definite and ascertainable; that the agreement was still in effect at the time the instrument was executed; that the instrument fails to accurately record the agreement; and that the instrument, if rectified, would carry out the parties’ prior agreement.

[63] I am satisfied that these conditions are met in this case. The parties made a common mistake by inadvertently failing to include the locker purchase price and the locker deposit in the calculations in Schedule B to the Assignment Agreement, and by inadvertently failing to update the amounts in Schedule A after each counteroffer was made. As stated above, the parties had reached an agreement with definite and ascertainable terms and that agreement was still in effect at the time the instrument was executed. Again, the agreement is reflected in the Assignment Agreement itself: the parties agreed that Ms. Park was to assign her interest in one condominium unit, one parking space and one locker to Mr. Gao for the total price is $867,500.00, and that Mr. Gao would reimburse Ms. Park for the total amount of deposits paid by Ms. Park to Tribute. As a result of the failure to include the locker purchase price and the locker deposit in the calculations in Schedule B to the Assignment Agreement, and the failure to update the amounts in Schedule A after each counteroffer was made, the Assignment Agreement fails to accurately record the parties’ agreement. I find that rectifying the Assignment Agreement in the manner proposed by Mr. Gao in paragraphs 66 and 67 of his Factum would carry out the parties’ prior agreement.

c. Specific performance

[64] Specific performance will only be granted if the plaintiff can demonstrate that the subject property is unique in the sense that a substitute would not be readily available. It is sufficient for the plaintiff to demonstrate that the property cannot be readily duplicated elsewhere. This quality must relate to the proposed use of the property and be a quality that makes it particularly suitable for the purpose for which it was intended. The time when a determination has to be made as to whether a property is unique is the date when an actionable act takes place and the wronged party must decide whether to keep the agreement alive by seeking specific performance or accept the breach and sue for damages: see John E. Dodge Holdings Ltd. v. 805062 Ontario Ltd. (2003), 2003 CanLII 52131 (ON CA), 63 O.R. (3d) 304 at paras. 38-40 (C.A.).

[65] In DeFranco v. Khatri, [2005] O.J. No. 1890 at para. 32 (S.C.J.), Justice Pepall summarized as follows the principles applicable to specific performance that may be extracted from the case law:

1. Specific performance should not be granted absent evidence that the property is unique to the extent that its substitute is not readily available: Semelhago v. Paramadevan, supra.

2. There must be some fair, real and substantial justification for the claim: Asamera Oil Corp. v. Seal Oil and General Corp., supra.

3. The plaintiff must show that an order for the property, rather than its monetary equivalent better serves justice between the parties: John E. Dodge Holdings Ltd., supra.

4. The burden of proof to establish that property is unique and that damages are inadequate to do justice should be on the plaintiff: John E. Dodge Holdings Ltd. and Semelhago v. Paramadevan.

5. There is a subjective and objective aspect to uniqueness: John E. Dodge Ltd. supra. In that case Justice Lax stated at page 356,

"While it is difficult to be precise about this, it strikes me that normally, the subjective aspect will be less significant in commercial transactions and more significant in residential purchases, unless the motivation in the latter case is principally to earn profit. In terms of the subjective aspect, the court should examine this from the point of view of the plaintiff at the time of contracting. In some cases, there may be a single feature of the property that is significant, but where there are a number of factors, the property should be viewed as a whole. The court will determine objectively whether the plaintiff has demonstrated that the property has characteristics that make an award of damages inadequate for that particular plaintiff. Obviously, investment properties are candidates for damages and not specific performance.

It is important to keep in mind that uniqueness does not mean singularity. It means that the property has a quality (or qualities) that makes it especially suitable for the proposed use that cannot be reasonably duplicated elsewhere. To put this another way, the plaintiff must show that the property has distinctive features that make an award of damages inadequate. The plaintiff need not show that the property is incomparable.

[66] In addition, the court should take into account the behaviour of the parties because of the equitable nature of the remedy: Landmark of Thornhill Ltd. v. Jacobson (1995), 1995 CanLII 1004 (ON CA), 25 O.R. (3d) 628, [1995] O.J. No. 2819 at para. 37 (C.A.).

[67] It has been recognized in the case law that the criteria for granting specific performance may be more easily met within the housing market in the Greater Toronto Area given that it is a housing market in which land is in increasingly limited supply and home sales are often characterized by bidding wars among prospective purchasers: see 1954294 Ontario Ltd. v. Gracegreen Real Estate Development Ltd., 2017 ONSC 6369 at para. 151. See also the comments of Justice Strathy (as he then was) in Minto v. Jones, [2008] O.J. No. 3687 at para. 164 (S.C.J.) about a “hot” and rising real estate market.

[68] In my view, it is appropriate to grant specific performance in this case. Based on the evidence adduced by both parties, I am satisfied that a substitute property that was suitable to the needs of Mr. Gao and his family was not readily available in February 2020, i.e. after Mr. Jang advised Mr. Gao and his lawyer on January 30, 2020 that his clients’ position was that the Assignment Agreement was null and void. I accept Mr. Gao’s evidence that before finding the Property, he had difficulty finding a suitable property in downtown Toronto for his family and his sister to live in, with three proper bedrooms and within an affordable price range. Further, I agree with Mr. Gao that the three listings attached to Mr. Min’s affidavit are not reasonably comparable properties. In particular, I agree that a two-bedroom-with-a-den condominium unit is not a comparable property given the needs of Mr. Gao’s family. The only three-bedroom condominium put forward by Mr. Min is smaller than the Property, is on a lower floor, and there is a lack of privacy as office workers in the building next door can see directly into the unit.

[69] I am also satisfied that in January and February 2020 (i.e. before the COVID lockdown), prices for condominium units in downtown Toronto were rising rapidly, and that prices are rising again in 2021. In light of the rising prices, the fact that Mr. Gao has not had access to his $40,000.00 deposit since February 2020 to try to acquire a replacement property to mitigate his damages, the fact that Mr. Gao may not be able to collect damages from Ms. Park in a reasonable time, and the fact that there were no reasonably comparable properties available at the relevant time, I find that damages are inadequate to compensate Mr. Gao: see Lucas v. 1858793 Ontario Inc. (Howard Park), 2021 ONCA 52 at para. 93; Minto v. Jones, [2008] O.J. No. 3687 at para. 168 (S.C.J.); and Sivasubramaniam v. Mohammad, 2018 ONSC 3073 at para. 96. On the issue of the likelihood of collection of an award of damages, I note, among other things, that: (a) the Property was purchased under Ms. Park’s name to protect Mr. Lee from creditors; (b) Ms. Park had problems making the last deposit payment on the Property (NSF cheque); (c) Ms. Park and Mr. Lee alleged that they needed the closing funds to pay a debt; and (d) their house is heavily mortgaged.

[70] In my view, there is a fair, real and substantial justification for Mr. Gao’s claim, and an order for the Property, rather than its monetary equivalent, better serves justice between the parties. While Mr. Gao was seeking to find a suitable place to live with his family and to make a residential purchase, I find that this was not the case for Ms. Park and Mr. Lee and that their principal motivation was to earn profit. I note, in particular, that Mr. Lee’s family purchased two different pre-construction condominium units (including the Property) and a house within the span of a month in early 2017, and that after Mr. Gao approached Mr. Cheng about the Property, Mr. Cheng asked Mr. Gao whether he had an interest in purchasing another condominium unit that Ms. Park was interested in selling.

[71] Finally, I find that Mr. Gao has not done anything that could disentitle him to equitable relief.

[72] Accordingly, I order specific performance of the Assignment Agreement, as rectified.

Conclusion

[73] The Application is granted. I grant the following relief:

a. a declaration that the Assignment Agreement is legally binding on the parties;

b. an order for rectification of the Assignment Agreement to reflect the common intentions of the parties as set out in paragraphs 66 and 67 of the Applicant’s Factum; and

c. an order for specific performance of the Assignment Agreement, as rectified.

[74] If costs cannot be agreed upon, Mr. Gao shall deliver submissions of not more than three pages (double-spaced), excluding the bill of costs, within 10 days of the date of this Judgment. Ms. Park shall deliver her submissions (with the same page limit) within 7 days of her receipt of Mr. Gao’s submissions.

Vermette J.

Released: June 27, 2021