Court File and Parties
COURT FILE NO.: CV-20-00640314-0000 DATE: 2022-02-16
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
Pomata Investment Corp. c.o.b. Treasure Hill Homes Plaintiff
- and -
Yanhua Shi Defendant
COUNSEL: S. Brunswick and J. Lake, for the Plaintiff L. Wong, for the Defendant
HEARD: January 25, 2022, via video conference at Toronto, Ontario
BEFORE: Mr. Justice F. Bruce Fitzpatrick
Reasons for Decision on Motion for Summary Judgment
[1] The plaintiff Pomata Investment Corp. C.O.B. Treasure Hill Homes (“Pomata”) moves for summary judgment on its claim that the defendant Yanhua Shi (“Shi”) breached an Agreement of Purchase and Sale for a residential property and for damages of $408,098.49 plus interest and costs.
The Facts
[2] Based on my review of the evidence tendered on this motion I find the following facts. In my view none of these facts were disputed by the parties.
[3] In 2016, the real estate market in the Greater Toronto area was “hot”. People were looking to invest in newly constructed homes. People like Shi.
[4] In November 2016 Shi and an adult friend were looking to buy a residential investment property in Vaughn. Pomata was building luxury homes in a new sub-division in Vaughn Ontario.
[5] On Monday November 7, 2016, Shi and her friend attended at the Pomata sales office to view a model home. There, they spoke to a third-party sales agent Henry Chow (Chow). Shi had immigrated to Canada in 2005. She was not fluent in English. Her mother tongue is Mandarin. Chow spoke Mandarin.
[6] Chow gave Shi a sales pitch for the preconstruction residential homes Pomata was offering for sale. Chow advised Shi that the homes Pomata were planning to build were selling fast. There were many interested buyers. If Shi did not act fast the available property would likely be sold to other interested buyers. Shi looked at plans for a single family 2,990 square foot home on a 40’ and 42’ frontage lots in a development called “Victory Heights” in Vaughn. The properties in the development were being listed for seven figures.
[7] Chow said if Shi wanted to buy, she had to put a $30,000.00 deposit down and sign an agreement of purchase and sale (APS). Chow said if Shi purchased that day, she would receive free upgrades on the home as it was being built. Shi and her friend drove 30 minutes to a bank, obtained a certified cheque, and returned to the sales office.
[8] Chow described the details of the property and the lot, the upgrades, the purchase price and the potential closing date. The purchase price was $2,029,900.00. The closing date was proposed to be in early 2018.
[9] Shi deposes that Chow did not review the terms of the APS with her or her friend in Mandarin or in English. Chow did not direct her to get independent legal advice or review the APS with someone else who spoke Mandarin.
[10] Shi and her friend signed the APS. Shi and her friend initialed each and every page. She signed a schedule to the APS entitled “Agency disclosure”. It contained a term indicating the company who employed Mr. Chow, Homelife Metropark Realty Inc., was Pomata’s agent only.
[11] The APS contained the following provisions: a) The Plaintiff agreed to construct and complete upon the Property a new 2-storey detached dwelling unit of the model type Sycamore 2 Elevation B in accordance with the APS; b) All amounts paid for extras shall be non-refundable in the event that this transaction is not completed for any reason whatsoever save for the default of the Vendor as required by the Ontario New Home Warranties Plan Act ("Tarion"); c) The deposit monies and further deposit monies are expressly deemed to be deposit monies only and not partial payments. Default in payment of any amount payable pursuant to the APS on the date or within the time specified, shall constitute substantial default hereunder and the Vendor shall have the right to terminate the APS and forfeit all deposit monies in full. Without prejudice to the Vendor's rights as to forfeiture of deposit monies as aforesaid, and in addition thereto, the Vendor shall have the right to recover from the Purchaser all additional costs, losses and damages arising out of default on the part of the Purchaser pursuant to any provisions contained in the Agreement, including interest thereon from the date of demand for payment at the rate of 1.25% (one and one quarter percent) per annum, or 15% (fifteen percent) per annum, not in advance until paid; d) The Purchaser acknowledges that no representations have been made to the Purchaser, upon which the Purchaser relies, and which were essential to the Purchaser's decision to purchase the Property except as are set forth in writing; e) In the event that more than one party comprises the Purchaser herein, the obligations of such parties under this Agreement shall be joint and several; f) If, prior to the closing date, the Purchaser fails to comply with any of the Purchaser's obligations herein or otherwise breaches any portion hereof, the Purchaser shall be deemed to be in default hereunder and the Vendor may (in addition to any other remedy) terminate this Agreement whereupon the Purchaser's deposits shall be forfeited to the Vendor as liquidated damages and not as a penalty. The Vendor's non-enforcement of any default or remedy shall not be deemed to be a consent to any default or to a waiver of any continuing or subsequent default; and g) The Purchaser acknowledges that the new home industry is multi-faceted and complex and that while sales agents are knowledgeable about most issues regarding the purchase and construction of a new home, they cannot be expected to know all aspects in detail. Accordingly, the Purchaser acknowledges that no representations have been made to the Purchaser, upon which the Purchaser relies, except as are set forth herein in writing. There is no representation, warranty, collateral agreement or condition affecting this Agreement or the Property, or supported hereby, except as set forth herein in writing.
[12] Shi provided Pomata with an email address so they could provide her with notice of the closing date.
[13] On January 1, 2017 Shi put down a further deposit of $60,000.00. On January 19, 2017 Shi chose options and upgrades and signed a further agreement entitled “Options and Upgrades Agreement”. On February 2, 2017 Shi’s friend provided a further deposit of $45,000.00. On February 2, 2017 Shi provided a further deposit of $15,000.00.
[14] On June 20, 2017 Pomata sent a notice of closing date of February 14, 2018 to Shi. On November 2, 2017 a real estate agent acting for Shi requested confirmation of the closing date, lot size and deadline to assign the agreement. Pomata responded.
[15] On November 9, 2017 Pomata sent Shi a notice of a firm closing date of May 18, 2018.
[16] On November 28, 2017 Shi and her friend chose additional options and upgrades and signed another options and upgrades agreement while providing a final deposit of $2,385.00.
[17] On January 31, 2018 Shi’s friend gave Pomata a handwritten note indicating he was unable to close the deal. On February 6, 2018, Pomata received a notice of proposal to creditors from the friend’s trustee in bankruptcy.
[18] On February 13, 2018 counsel acting for Pomata wrote to Shi. The letter confirmed receipt of the friend’s bankruptcy proposal. The letter referenced paragraph 69 of Schedule X to the APS confirming Shi was jointly and severally liable and that Pomata expected Shi to complete the transaction.
[19] On April 30, 2018 counsel acting for both Shi and her friend wrote to counsel for Pomata. The letter states:
“We are writing on behalf of the above noted purchasers.
Please be informed that the purchasers will not be able to complete the closing on the scheduled closing date of May 8, 2018. The purchaser, C.G., is in bankruptcy/receivership proceedings and has no ability to get a mortgage or have any assets to purchase the property. The purchaser, Yanhua Shi, is a single mother, unemployed with two children to feed. She also will not be in any position to close the purchase.
The purchasers are asking for mercy to release them from the purchase agreement.
They are agreeable to forfeiting the $150,000.00 deposit to the vendor. But if the vendor can find some charity in their hearts and maybe refund 10% to 20% of the deposit to the destitute single mother to make ends meet which will be most appreciated.
Should have any questions please contact the undersigned.”
[20] On May 1, 2018 counsel for Pomata responded.
[21] On May 8, 2018 the transaction did not close.
[22] On June 27, 2018 Pomata listed the property on the MLS for sale at $2,070,000.00 It stayed on the market for 71 days. There were no showings, no phone calls and no inquiries about the property.
[23] On October 11, 2018 Pomata relisted the property on MLS for $1,399,000.00. Three offers were received. Pomata accepted the highest one for $1,503,000.00. The sale closed on December 12, 2018.
[24] On April 30, 2020 the statement of claim in this matter was issued. On November 30, 2020 the statement of defence was delivered. On December 9, 2020 Pomata delivered a reply.
The Law
[25] The parties agree on the well-known test on motions for summary judgment. Both parties relied on the leading case of the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 and the jurisprudence that followed. Under Rule 20.04(2)(a), the court “shall” grant summary judgment if there is no genuine issue requiring a trial. Where there might be a genuine issue requiring a trial, the Rules empower a judge to weigh evidence, receive oral evidence, and evaluate credibility. The starting point is the evidence before the court. Each party is assumed to have put its best foot forward. If a summary judgment motion can result in a fair and just process, it is to be preferred. A trial should be ordered only where the reasons for it are compelling.
[26] A fair and just process is achieved when: (a) the court can make the necessary factual findings; (b) the court can apply the law to those facts; and (c) the result is proportionate, more expeditious, and less expensive than a trial.
Issues and Analysis
[27] Shi argues there are several genuine issues requiring a trial. Pomata submits this is an appropriate case for summary judgment as there are no genuine issues requiring a trial. Both parties filed factums. The parties articulated the issues in slightly different ways.
[28] In my view, resolution of this motion requires first that the plaintiff establish there is no genuine issue requiring a trial concerning the liability of the defendant. Second, if that first issue is resolved in the plaintiff’s favour, there is a question as to whether there is a genuine issue for trial relating to the damages claimed by the plaintiff.
Issue No. 1 Liability
[29] I see there being only one overarching issue concerning the issue of liability, which can be resolved by an assessment of two sub issues. This case involves a transaction for a multi-million-dollar residential property. The defendant signed an APS. There is no question she signed the agreement. Shi admits she terminated the contract in writing through her counsel’s letter of April 30, 2018. The issue is whether there is a genuine issue for trial as to the validity and enforceability of this contract for the sale of a house.
Sub Issue A. Misrepresentation
[30] Shi argues there is a genuine issue for trial concerning representations made to her by Chow prior to the signing of the APS. Shi argues Chow made false or negligent misrepresentations to her on which she relied and she was not otherwise careless, and that provides her with a complete defence to enforcement of the APS. Shi submits that Chow represented that Shi and her friend “were both included in the APS as buyers, and therefore each held one-half interest and one-half liabilities under the APS”. Shi claims if she had known the contract provided for joint and several liability, she would not have signed the agreement. Shi argues on the evidence before the Court, or lack thereof, her non est factum defence is a genuine issue that requires a trial.
[31] Pomata argues that Chow made no misrepresentations to Shi. Pomata points to Shi’s own evidence that Chow did not interpret or explain the APS to her. The APS is clear on its face. The terms of the APS provide both persons who signed are jointly and severally liable under the agreement. Chow made no representations to Shi about the APS because he expressly did not interpret it for her. The only representations Chow did make to Shi involved the physical details of the property, the price, that there were other people interested in buying and that the property may no longer be available if the APS was not signed that day in November 2016.
Analysis
[32] In my view, as it is established that Shi signed a contract with respect of land, Shi has a burden to demonstrate on a summary judgment motion that there is a genuine issue for trial concerning any misrepresentation(s) that would permit a defence of non est factum to be argued at trial.
[33] It is clear to me on the evidence that Shi was speculating on the property in November 2016. And not just any property. High end, expensive property. The fact that the property at issue was a multi-million-dollar single family property puts the evidence of the parties in this matter in context. Shi confirmed on cross examination that the relationship with her friend was not romantic. She was married at the time and had twin two-year old girls. The house she bought was not constructed in 2016. There was at least a year until the closing. This was an obvious speculative purchase. A lot can happen in a real estate market in a year. Shi’s submissions about being unsophisticated and an unemployed house-wife who was nevertheless looking to buy a two million dollar investment property with a friend who was working as a cook do not make any sense. The argument in her factum that while she could afford to pay a million dollars for a property but not two million dollars was unpersuasive.
[34] I accept Shi had a limited understanding of English. I find she communicated with Chow in Mandarin. Chow told her things about the property. I find Shi’s affidavit evidence baldly asserts that what Chow said were “false” representations. There are no particulars of any such false representations in Shi’s affidavit or in her evidence given on cross examination that I could find to be false or even misleading. Any comments Chow made about the market being hot and other purchasers wanting to buy the property at issue are consistent with notorious facts about the real estate market in the GTA in late 2016. Again, the fact that the property at issue was a multi-million dollar property puts a context on all of the evidence of the parties in this matter. When asked about the particulars of the alleged misrepresentations on cross examination Shi said:
207 Q. Ms Shi, in paragraph 8 of your affidavit, you swore to certain statements. You said “Relying on Chao’s ( sp Chow ) false representations” Do you see that in paragraph 8? A. Oh, I see
208 Q. Thank you. What – tell me now, what were his false representations? A. Oh. Because he said the market is really hot, and after this purchase, the price is going to climb up again, and there were only very few properties left. If you don’t buy it, and – it will be gone. Somebody else will buy it.
209 Q. And what was false about that? A. Well, I think maybe what was left didn’t get sold
210 Q. You don’t know that, do you? A. Yes, but he only said potential increase, price climb up, but he didn’t—but could have dropped, though, but he didn’t say that I could drop
[35] On her own evidence Shi says Chow did not interpret the APS for her. This is a very significant piece of evidence in this matter. It leads me to accept Pomata’s argument and find as a fact Chow made no representations about the terms of the APS. In my view, this means there is no genuine issue for trial concerning the defence of non est factum. If Chow made no representations about the APS, Shi can only look to herself as to what she understood about the APS. The starting point for a defence of non est factum is that the other side misrepresented something which was relied upon and caused a mistaken belief.
[36] Pomata relies on a recent decision of Akbarali J. in Sharif v. Shaikh, 2021 ONSC 6834 (October 6, 2021) which discussed the defence of non est factum. At paragraph 30, Akbarali J. said:
[30] The defence of non est factum is available to “someone who, as a result of misrepresentation, has signed a document mistaken as to its nature and character and who has not been careless in doing so”: Bulut v. Carter, 2014 ONCA 424, at para. 18, citing Marvco Color Research Ltd. v. Harris, [1982] 2 S.C.R. 774; see also The Guarantee Company of North America v. Ciro Excavating & Grading Ltd., 2016 ONCA 125, at para. 14.
[31] As De Sa J. recently noted, the approach to the defence of non est factum is “based not only upon the principle of placing the loss on the person guilty of carelessness, but also upon a recognition of the need for certainty and security in commerce”: Alphera Financial Services Canada (BMW Canada Inc.) v. Ambihaipalan, 2021 ONSC 3530, at para. 33.
[37] Chow did not misrepresent the nature and character of the contract. It was an agreement to buy a multi-million dollar 2,990 square foot home that was being built. The only possible issue of misrepresentation comes from Shi’s assertion in her factum that she thought Chow told her she was only in for half, and that if her friend did not come up with his half, she would be relieved from performance. Her affidavit in my view contains conflicting evidence on this issue. She states in her affidavit of September 22, 2021 at paragraph 4 “In 2016, I and the co defendant C.G. (“C.G” and jointly referred to with the affiant as “We”) wanted to invest into property with equal interest and liability”. I note C.G. is the friend of Shi I have been referring to. Also C.G. is not a co-defendant in this matter. Later in her affidavit at paragraph 14 Shi states:
14 When we were asked to sign the APS, we advised Chow that we were purchasing the Property on an equal basis and that we were both equal owners with each having one-half interest and one-half responsibilities under the APS. Chow said that we were both included in the APS as buyers and therefore each held one-half interest and one-half liabilities under the APS. It was under this understanding that I and C.G. signed the APS”.
[38] This is not what the APS said. I agree with Pomata’s submission that Shi’s position that she was unsophisticated and yet engaged in a discussion with Chow about concepts of joint and several liability are not at all credible.
[39] In my view, at best Shi’s evidence goes to liability issues between herself and C.G. and not between herself and Pomata. Her assertion as to her liability makes no commercial or practical sense. Why would Pomata allow the deal to be completely contingent on only one of two purchasers being able or wanting to close the deal? In fact, Shi’s evidence at paragraph 4 and the first sentence of paragraph 14 is consistent with what the APS stated about joint and several liability. If she and C.G. had closed the deal, they would have owned the house on an equal basis. This did not mean that they had an option not to close if one of them for whatever reason decided not to. It is completely unreasonable to accept a proposition that Shi thought she was buying only half a house if her friend backed out.
[40] Also, Shi did not raise any of these concerns relating to misrepresentations until she was sued. None. She had more than a year and half to do so. She did not raise concerns during that time. In that 18-month period Shi made further substantial deposits on the property. She picked out more upgrades. She had an agent make inquiries if she could assign the agreement. These are not the actions of a person who seriously thinks they have been fooled into buying something. They are actions of a speculator who intends on maintaining a contractual right to purchase a substantial asset.
[41] Further, when Shi’s lawyer advised Pomata she was not going to close, he gave the reason as Shi being a single mother, unemployed with two children to feed. This is not the assertion of a non est factum defence. It is a superficial dodge relying on a stereotype. If the letter was about buying a car or maybe some other expensive consumer product bought from a retail location it might make sense. Shi deposed she could do a million-dollar deal but said she could not do a two-million dollar deal. Shi anticipatorily breached the contract. She had no basis to do so based on anything Pomata had done or said. I find there were no misrepresentations made to Shi. Pomata built the house and were ready to close when Shi could not tender the funds she had jointly and severally agreed to pay.
[42] This issue does not need a trial to resolve. I agree with Pomata that all of the relevant evidence that would be presented at trial is before the Court on this motion. While counsel for Shi made an issue of the fact that no direct evidence from Chow was produced, in my view, this is a door that swings both ways. Parties have an obligation to put their best foot forward on a motion. Pomata’s best evidence is the signed APS and the repudiation letter from Shi. Shi asserts misrepresentation. Her evidence was unpersuasive. Shi did not call Chow as a witness.
[43] Pomata has no special control over Chow. Shi did not put forward any evidence as to why she was unable to obtain an affidavit from him or move that he be summoned to give viva voce evidence on this motion. In my view, there is nothing more to say on this sub issue regarding liability. Shi has no basis on the evidence for a defence of non est factum in this matter.
Sub Issue B. Duty of Care
[44] Shi argues Chow was acting as a dual agent on the day she signed the APS. Shi argues Chow (and therefore Pomata) in that dual agent capacity owed her a duty to: i. interpret the APS for her because Chow knew Shi’s English skills were poor or give her a chance to have it interpreted by someone else; ii. inform Shi of her right to have the APS reviewed by independent counsel prior to her signing; iii. ask Shi if she needed to add a financing clause to the APS; iv. not to apply high pressure sales tactics to force her to sign that day;
[45] Pomata argues Chow was agent only for Pomata. Shi signed an agreement acknowledging this to Pomata and Chow made no misrepresentations to Shi. Pomata submits it did not owe any duties to Shi that required it to do any of these things.
Analysis
[46] Shi’s own evidence was that Chow did not interpret the APS for her. I have found there is no basis for a non est factum defence. The acknowledgment of agency was contained in the APS. The evidence on this motion establishes the contract was valid and binding and enforceable as to all of its terms. I agree with Pomata’s argument that it owed no duty to advise Shi to get counsel, or deal with financing or to conduct themselves in any way other than how they did. Again, the fact this case deals with a multi-million dollar speculative house deal puts all of these arguments in context. To accept Shi’s assertion about a duty of care in my view completely ignores the context of the deal. Pomata was not going door to door selling spec houses. Shi went to the sales office, left, drove for at least 30 minutes, and then came back with $30,000.00. That is a lot of money. It takes a degree of sophistication to amass that kind of capital and be prepared to put it down on something that is not even built yet. It is consistent with the actions of a speculator not an unsophisticated buyer. Also, it was an occasion that I think should have given a reasonable person cause to be cautious about what they were getting themselves into. It does not create an obligation on the other side to insulate them from their carelessness in failing to consider all aspects of what they, by their own free will, were undertaking. In my view, in that context, it is completely unreasonable and absolutely unpersuasive to argue that when someone puts themselves in a negotiation for a multi-million dollar pre-construction property, it is incumbent on the other side to completely protect them from any and all downsides of their entering in to this kind of agreement.
[47] At best Shi was careless. That is on her, not Pomata.
[48] In my view there is no genuine issue for trial that Pomata owed or breached any duty of care to Shi.
No Genuine Issue for trial as to the liability of Shi
[49] I find Shi breached the APS. Shi had no basis in fact or law to anticipatorily breach the APS. Shi has no defence to the claim for liability asserted by Pomata. There is no genuine issue for trial as to liability of Shi in this matter. I can fairly and justly adjudicate the issue of liability on the material before the court. The summary judgment process is timely, affordable and proportionate for this matter. This matter is appropriate for summary judgment on the issue of liability.
Damages
[50] Pomata submitted a summary of its alleged damages. It is as follows: a) $2,029,900.00 Original purchase price in November 7, 2016 APS; b) $2,039,443.46 Original purchase price inclusive of extras included in the home; c) $1,503,000.00 Resale purchase price in October 17, 2018 APS (closed December 12, 2018); d) $536,443.46 Purchase price differential; e) $24,040.03 Additional Costs to reflect differential between original commission which would have been payable on original sale ($16,239.20 + HST = $18,350.29) and resale commission ($59,320.45 + HST = $67,032.11) in the amount of $48,681.82; f) $560,483.49 Damages ($536,443.46 + $24,040.03); g) $150,000.00 Less deposits paid by C.G. and Shi; h) $2,385.00 Less monies paid by C.G. and Shi for extras/upgrades deposit; i) $408,098,49 Total Damages claimed net of deposits paid; j) *Plus interest at 1.25% per month or 15% per annum.
[51] Pomata mitigated its loss by selling the property for $1,503,000.00 on December 12, 2018. The difference between the original price including extras and the resale price was $536,433. Shi argues there is a genuine issue for trial as to whether this was an improvident sale by Pomata. Shi also argues Pomata failed to mitigate its damages by not pursuing a claim against C.G.
Analysis
[52] In my view, Pomata has led credible and uncontroverted evidence as to its appropriate attempts to mitigate its losses. It listed the property on MLS for sale for $2,070,000.00 on June 27, 2018. The property remained on the market for 71 days. There were no showings, no phone calls and no inquiries. Shi argues that Pomata has failed to prove this fact by producing evidence from an independent realtor. I disagree. Pomata was seeking to mitigate its loss. A sale at that price was obviously preferable to a loss and having to go through this process to recover. Shi has not put forward any evidence that these efforts by Pomata were unreasonable.
[53] Pomata then relisted in October 2018. It obtained an arms-length market sale at about $100,000.00 above the listing price. It took six days to obtain three offers. In my view, this is persuasive evidence of market conditions at that time. It is also persuasive evidence of an appropriate effort at mitigation.
[54] On the motion, Pomata provided a list of seven comparable sales. Shi provided a list of six comparable sales. None of the comparables sold for over two million dollars. The median sale price for Shi’s comparables was $1,594,340.00. The average sale price for Shi’s comparables was $1,629,280. In my view this confirms rather than rebuts an assertion that the sale by Pomata at $1,503,000.00 was a reasonable sale price for the property at issue. It was within 6% of the median of the sales provided by Shi. Shi’s evidence does not lead me to a conclusion that there is a genuine issue for trial about whether the sale price achieved by Pomata was improvident. In fact, it appears the price was reasonable and within a range provided by Shi’s comparables.
[55] I also am of the view there is no genuine issue for trial about Pomata failing to pursue C.G. Pomata had a binding APS with Shi. A plaintiff can pursue who they want.
[56] I find Shi is entitled to be credited for the amount she and C.G. paid for deposits against the damages claim by Pomata. This amount is $150,000.00.
[57] Pomata has put its best foot forward on this motion. As the vendor of real property, upon a finding of liability on the part of a defaulting purchaser it is entitled to be placed in the position it would have been had the contract been performed. In this case it is the difference between the price under the agreement and the price obtained on resale plus any additional carrying costs incurred by the vendor to mitigate its loss. I agree with Pomata’s submissions its damages were reasonably foreseeable. Pomata incurred ancillary costs to market the property and carry it through to a new closing date. I agree Pomata is entitled to additional costs of $24,040.03 for carrying costs between the original closing date and the date of the resale.
[58] I also see no reason that Pomata should not have interest on its damages in the amount contained in the APS. The rate of interest was 1.25% per month or 15% per annum. Pomata is entitled to interest on its damages claim from December 13, 2018 to the date of the release of these reasons.
No Genuine Issue for Trial on the Issue of Damages
[59] A trial is not necessary to determine the issue of damages that Pomata has incurred as the result of Shi’s breach of contract. In my view the there is no genuine issue for trial as to the damages Pomata has incurred in this matter. I can fairly and justly adjudicate the issue of damages on the material before the court. The summary judgment process is timely, affordable and proportionate for this matter. This matter is appropriate for summary judgment on the issue of damages.
[60] I find Pomata has suffered damages of $408,098.49 in respect of this claim.
Conclusion
[61] For all of the reasons above I find Pomata is entitled to summary judgment against Shi for the sum of $408,098.49 plus simple interest at the contract rate of 1.25% per month from December 13, 2018 until February 13, 2022. I decline to award any other amount for prejudgment interest. Post judgment interest is awarded at the Courts of Justice Act rate for the first quarter of 2022.
[62] The parties agreed on costs during the course of arguing the motion. Costs are awarded to Pomata at a partial indemnity rate for this motion and the action in the amount of $15,000.00 inclusive of disbursements and HST.
[63] Order to go accordingly.
“original signed by” The Hon. Mr. Justice F.B. Fitzpatrick Released: February 16, 2022