COURT FILE NO.: CV17-00583816-0000

DATE: 20211102

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

FEI CHUN LEI

Plaintiff

• and -

NIMALAN PUNNIYASINGAM

Defendant

Calvin Zhang and Angel Zheng for the Plaintiff

Sayed Mosaad for the Defendant

HEARD: October 29, 2021

PERELL, J.

REASONS FOR DECISION

A. Introduction

[1]

A. Introduction

On April 15, 2017, the Plaintiff, Fei Chun Lei, sold a residential property to the Defendant, Nimalan Punniyasingam. Mr. Punniyasingam failed to close the transaction. He forfeited his $50,000 deposit, and Ms. Lei resold the property. Ms. Lei now brings a motion for a summary judgement, and she claims damages of $234,937.13.

2On October 29, 2021, I heard the summary judgment motion, and I made the following endorsement:

ENDORSEMENT

1On April 15, 2017, the Plaintiff, Fei Chun Lei, sold a residential property to the Defendant, Nimalan Punniyasingam. Mr. Punniyasingam failed to close the transaction. He forfeited his $50,000 deposit, and Ms. Lei resold the property. Ms. Lei now brings a motion for a summary judgment, and she claims damages of $234,937.13.

2Mr. Punniyasingam’s lawyer of record requested an adjournment of the summary judgment motion. The adjournment request was opposed. For written reasons to follow, I declined the request to adjourn the summary judgment motion.

3I proceeded to hear the motion for which the Plaintiff had filed a comprehensive evidentiary record. Mr. Punniyasingam delivered no materials. Since Mr. Punniyasingam and his counsel had severed their lawyer-client relationship, Mr. Punniyasingam’s counsel had no instructions to represent Mr. Punniyasingam on the motion and made no submissions about the merits.

4For written reasons to follow, I am satisfied that Ms. Lei has proven a claim for damages for breach of contract of $234,937.13 plus prejudgment interest calculated from the date of the resale of the subject property of $9,899.68. The plaintiff shall have judgment accordingly along with post judgment interest and costs on a partial indemnity basis of $22,735.96, all inclusive.

5Judgment accordingly.

3These are my written reasons to explain my refusal to adjourn the summary judgment motion and for granting the Plaintiff judgment.

B. Procedural and Evidentiary Background and the Request for an Adjournment

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B. Procedural and Evidentiary Background and the Request for an Adjournment

On October 3, 2017, Ms. Lei issued a Statement of Claim in an action against Mr. Punniyasingam for damages for breach of contract.

5On November 9, 2017, Mr. Punniyasingam delivered his Statement of Defence. His lawyer of record was the Enio Zeppieri or Gregory Gryguc of Zeppieri & Associates.

6On May 18, 2021, Mr. Punniyasingam retained Sayed Mosaad of Maqbool Law to represent him.

7In June 2021, Sayed Mosaad of Maqbool Law became Mr. Punniyasingam’s lawyer of record. The notice of change of lawyer was served on the plaintiff and on Zeppieri & Associates but not filed in the court record.

8On June 30, 2021, counsel for both parties attended in Civil Practice Court to schedule a Summary Judgment Motion, and Justice Diamond scheduled the motion for October 29, 2021. Justice Diamond ordered that the parties to agree to a timetable within one week, failing which they may schedule a case conference.

9On July 7, 2021, due to the breakdown of lawyer-client relationship with Mr. Punniyasingam, Mr. Mosaad advised Mr. Starkman, Ms. Lei’s lawyer, that Maqbool Law was no longer available on October 29, 2021. Mr. Mosaad requested a new date for the summary judgment motion after November 22, 2021 to allow Mr. Punniyasingam time to find another legal representative. Ms. Lei refused to consent to any adjournment.

10On July 20, 2021, Maqbool Law sent Mr. Punniyasingam a disengagement letter. Mr. Mosaad advised Mr. Starkman that the motion materials should be sent to Mr. Punniyasingam directly.

11On August 3, 2021, counsel attended at Civil Practice Court and Mr. Mossad advised the Court that in the circumstances, he was unable to consent to the timetable because his firm was no longer the representative of Mr. Punniyasingam. Mr. Mossad asked that the summary judgment motion be adjourned to another date to retain another lawyer, who could consent to the timetable.

12Justice Chalmers refused the request to reschedule the motion, and he set a timetable for the delivery of materials for the motion. Under the timetable, Mr. Punniyasingam’s responding motion materials were due on September 10, 2021.

13On August 9, 2021, Maqbool Law brought a motion to be removed as lawyer of record. The motion is returnable on November 2, 2021.

14On August 20, 2021, Maqbool Law advised Mr. Punniyasingam that he should retain new counsel for the summary judgment motion.

15Although he was aware of the obligation to do so, Mr. Punniyasingam did not file any responding material by or after September 10, 2021.

16Between August and October correspondence passed between Ms. Lei’s lawyer and Mr. Punniyasingam’s lawyers in which Mr. Mossad stated that he was no longer acting for Mr. Punniyasingam and suggesting that the motion be adjourned to allow Mr. Punniyasingam to retain new counsel. This suggestion was rebuffed, and Ms. Lei refused the request to consent to an adjournment of the motion.

17On the return of the summary judgment motion, Calvin Zhang and Angel Zheng appeared for Ms. Lei and Sayed Mosaad appeared for Mr. Punniyasingam. Mr. Mosaad explained the circumstances described above, and he repeated the request for an adjournment.

18Ms. Lei’s counsel repeated their objection to any adjournment which they submitted was simply a delaying tactic to postpone access to judgment given the backlog and strains on judicial resources caused by the Covid-19 pandemic.

19I agree that Mr. Punniyasingam’s estrangement from his lawyers of record and his failure to obtain counsel for the summary judgment motion appear to be no more than a delaying tactic. It is now the end of October 2021 and Mr. Punniyasingam has known about the prospect of a summary judgment motion since June, and he has known that he has a need to engage new counsel or appear as a self-represented litigant since August. He has known about Justice Chalmers’ ruling and about this hearing for several months and could have attended today and shown that he was actively engaged in finding a new counsel. I, therefore, decline to adjourn the summary judgment motion.

C. Facts

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C. Facts

On April 15, 2017, Ms. Lei, as vendor, entered into an Agreement of Purchase and Sale with Mr. Punniyasingam for the sale of a residential property municipally known as 2729 Kennedy Road in the City of Toronto. The sale price was $998,000. Time was of the essence and the transaction was scheduled to close on July 17, 2017.

21On July 17, 2017, Mr. Punniyasingam failed to close the transaction.

22On August 15, 2017, Ms. Lei and Mr. Punniyasingam signed an Amended Agreement of Purchase and Sale for the Property with a closing date of September 15, 2017. The purchase price was reduced to $953,000.00 with all other terms of the original agreement remaining the same.

23On September 15, 2017, Mr. Punniyasingam once again failed to close the transaction. He admitted liability and released the $50,000 deposit.

24On October 3, 2017, Ms. Lei issued a Statement of Claim in an action against Mr. Punniyasingam for damages for breach of contract.

25On November 6, 2017, Ms. Lei listed the property for sale with a list price of $899,999. The lower price reflected the impact on the real estate market of the introduction of the Non-Resident Speculation Tax in April 21, 2017. The listing price was subsequently further reduced to $799,000.

26On September 3, 2018, the property was sold for $680,000.00, leaving a difference of $273,000.00, plus $11,937.13 in expenses, less the deposit of $50,000.00, leaving a balance of $234,937.13 in damages.

D. Discussion and Analysis

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D. Discussion and Analysis

Given that Mr. Punniyasingam did not file any material to oppose the summary judgment motion, it resembled more a default judgment motion than a summary judgment motion. As a summary judgment motion, there are no genuine issues requiring a trial and there is a more than ample evidentiary record to determine that Mr. Punniyasingam breached the agreement(s) of purchase and sale and that Ms. Lei suffered damages as submitted.

28Ms. Lei has proven the breach of contract and she has proven her claim for damages.

29There was no defence. The onus of proving a failure to mitigate is on the party that breaches the contract, and given that no defence was filed, it has not been proven that there was a failure to mitigate. Moreover, the anticipatory evidence provided by Ms. Lei proves that there was no failure to mitigate.

E. Conclusion

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E. Conclusion

For the above reasons, I conclude that Ms. Lei has proven a claim for damages for breach of contract of $234,937.13 plus prejudgment interest calculated from the date of the resale of the subject property of $9,899.68.

31The plaintiff shall have judgment accordingly along with post judgment interest and costs on a partial indemnity basis of $22,735.96, all inclusive.

Perell, J.