Court File and Parties

COURT FILE NO.: CV-21-670066

MOTION HEARD: February 28, 2022

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Andrew Omoruyi, Applicant

-AND-

Rocco Tavernese and Girolima Tavernese, Respondents

BEFORE: Associate Justice Abrams

COUNSEL: P. Askew, counsel for the applicants S. Bojeczko and A. Cabral, counsel for the respondents

REASONS FOR DECISION

[1] The applicant seeks leave to register a certificate of pending litigation against the title to 118 Cowan Drive in Vaughan, Ontario.

[2] The property that is at the heart of the applicant’s motion is a two-storey, five-bedroom, six-bathroom residential home with over 5,000 square feet of living space and a three-car garage. It is situated in a park-like setting, directly adjacent to the National Golf Club of Canada and near the Boyd Conservation Area.

[3] The evidence before me is that the applicant sold the home in which he and his family resided, expecting to move into this property. While he has since purchased another home, a more expensive home, so that his family might have somewhere to live pending the hearing of the application, it is his position and the information of his real estate agent that, even as at the time of the hearing of this motion, there were no suitable comparable properties for sale. He posits that the home in which he now resides is not a substitute for the property.

[4] The applicant entered into an agreement of purchase and sale with the respondents in February of 2021. No lawyers were involved in the parties’ dealings. To accommodate the respondents in their need to find a new home pending the completion of the sale (the respondents resided at 118 Cowan Drive), the applicant permitted the respondents a 28-week closing period--to September 2/21. His agreement with the respondents provided that certain chattels were to be included with the sale of the property, including tables, chairs and BBQ grills in the backyard and some fixtures and appliances inside of the home. Access to the property was to be permitted the applicant on three occasions, only, in addition to access for a home inspection and appraisal.

[5] The applicant says that the respondents did not adhere to the strict terms of their agreement in their dealings with him. Inter alia, they permitted him (and his wife) access to the property more than three times and allowed him to relocate four trees to the property—months before the scheduled closing date (which trees, he says, they agreed to water). He describes the respondents’ interactions with him as having been “flexible” and “accommodating”.

[6] In anticipation of closing, the applicant applied for a mortgage (in mid-July/21); sold two homes; committed to paying $57,000.00, plus HST and disbursements, for renovation plans and structural engineering services specific to the property (with recommendations from the respondents, he says, and the respondents deny, as to those whose services he might employ); and enrolled his children in school in the property’s school district. He also paid $200,000.00 in deposits and agreed to, and did, purchase some of the respondents’ furniture by way of two instalment payments (the second payment having been made only one month before the stipulated closing date).

[7] There is no question but that there was a minor delay on the part of the applicant in completing financing (though it is true, as the respondents point out, that he had earlier waived the financing condition in their agreement with him). To facilitate his purchase of the respondents’ home, the applicant sold two properties (with closings scheduled for June 1/21 and September 1/21, respectively). Though the respondent was in funds with respect to the sale of one of the two properties before September 2/21, the proceeds from the sale of the second property were not remitted to him until late in the day on September 2nd—the completion date for the purchase of the respondents’ property.

[8] To the applicant’s knowledge, the respondents had already purchased a new home by the closing date—a smaller bungalow. In the circumstances (including the circumstances of what the applicant characterized as the parties’ cordial and relaxed dealings and given that the applicant understood that the respondents did not need the proceeds of sale to finance their new home purchase), the applicant says that he expected that the respondents would accommodate a very short deferral of the closing—something which the applicant requested on September 1/21. Though the applicant was in funds from the sale of his two properties as of September 2/21 and though he offered the respondents a further $100,000.00 deposit in addition to the $200,000.00 deposit already paid by him, pending the closing, the respondents refused to extend the closing date when asked to do so.

[9] Indeed, the applicant points out, mortgage funds were in his lawyer’s trust account only three business days after the stated completion date; and the finalized mortgage commitment was furnished to the respondents’ lawyer only two business days thereafter. Still the respondents refused and, instead, indicated that they would be retaining the deposits paid by the applicant. The respondents point to a “time is of the essence” clause in their agreement with the applicant and the fact that there was no tender, as reasons for declining to extend the closing or refund the applicant’s deposits.

[10] As at the date of this motion, the respondents say that they had decided to move back into their Cowan Avenue home and “are contemplating” installing an elevator to mitigate some of the (health/mobility) issues that led to their decision to sell.

The Application—The Relief Sought

[11] In his notice of application, the applicant seeks a certificate of pending litigation and an order for specific performance. He claims no damages. Relying on 2071380 Ontario Inc. v. 1650666 Ontario Inc., 2007 CanLII 457 (ON SC), at para. 22, the applicant says that here an interest in land is in question. I agree. He references, further, Perruzza v. Spatone, 2010 ONSC 841, at para. 20(ii), and posits that, on this motion, the issue is not whether he will likely succeed on the hearing of the application but whether his claim to specific performance raises a triable issue as to his having a reasonable claim to an interest in the property. With this too, I agree.

[12] Whether specific performance is to be awarded, or not, is a question that is rooted firmly in the facts of an individual case. In determining whether an applicant (or plaintiff) has shown that an award of land, as opposed to its monetary equivalent, better serves justice among the parties, courts typically examine and weigh together three factors: (i) the nature of the land 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 specific performance. And 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 (Lucas v. 1858793 Ontario Inc. (Howard Park), 2021 ONCA 52, at para. 71).

[13] Uniqueness does not mean singularity or incomparability. It means that the property has qualities that make it especially suitable for its proposed use, properties that cannot be readily duplicated elsewhere (see: Lucas v. 1858793 Ontario Inc. (Howard Park), supra, at para. 74).

[14] The applicant submits that the Cowan Avenue property is both unique and uniquely suited to his needs and the needs of his family for reasons that include the fact that it is in the precise area in which he had been looking for a new home; it is the “right size” and is on a very large plot of land; it is in the York Catholic School District, the school district in which his children are to be educated (with one of his children already having been enrolled in a high school within that school district that is within walking distance from the property); it is directly adjacent to one of Canada’s best private golf courses; it is close to a conservation area, such that his active family could easily partake in outdoor activities and “enjoy nature in the city” near their home; and it is close to the assisted living facility that he operates and where he often must attend on short notice. Further, the applicant has invested time and money in, inter alia, retaining a general contractor and engineering firm to assist with planned renovations to the property.

[15] And while it is true that the applicant has purchased another home, it is “the subjective uniqueness of the property [at issue] from the point of view of the…[applicant] at the time of contracting [emphasis added]” that the court considers (Lucas v. 1858793 Ontario Inc. (Howard Park), supra, at para. 75).

[16] I accept that there is here a triable issue as to the uniqueness of the property. And the evidence adduced by the applicant, and not contradicted by the respondents, is that there are no suitable comparable properties (such that damages would not, even if sought, provide an adequate remedy).

Claim to an Interest in the Property

[17] The respondents say that whether the property is or isn’t unique, there is no triable issue as to the applicant having a “reasonable claim to an interest in the property”, given the “time is of the essence” language in their agreement with the applicant and the fact that there was no tender by the applicant on September 2/22, or at all.

[18] To this the applicant says, persuasively, that the analysis of this issue is not so straightforward as the respondents suggest. He points to shades of grey in circumstances that the respondents say are black and white. The applicant argues that there is a triable issue as to whether the doctrine of estoppel by convention[^1] or that of promissory estoppel here applies, such that the respondents “cannot rely on the completion date as a defence to his specific performance claim”. The applicant submits that he and the respondents had a shared understanding that the parties would each accommodate the other’s reasonable requests and would not require strict adherence to the terms of their contract. In this regard, and as set out above, he points to the 28-week closing (indicating that he wanted a shorter closing); his having visited the property more than the number of times permitted him by contract; his relocation of four trees to the property before the completion date; his purchase of furniture from the respondents; and (what he says was) the respondents’ assistance in his engagement of the services of an engineering firm. Further, the applicant points to the significant effort he undertook and expense he incurred to prepare to close the transaction--in reliance on, what he characterizes as, a common understanding that the parties would be able to vary the terms of their contract (here, he posits, minimally). While I cannot say that the applicant will succeed with these arguments on the hearing of the application, I do agree that he has raised triable issues, even if “the [estoppel] doctrine[s] ha[ve] the potential to undermine the certainty of contract and must be applied with care" (Grasshopper Solar Corporation v. Independent Electricity System Operator, 2020 ONCA 499, at para. 54). Estoppel is a fact-driven doctrine.[^2]

The Equities

[19] That being so, I must now consider all relevant matters as among the parties, including the equities/Dhunna factors (572383 Ontario Inc. v. Dhunna, 1987 CarswellOnt 551 (Ont. Master)), in determining whether it is here fair and just that the applicant’s motion be granted. I have done so. In all, I am of the view that the equities favour the applicant.

[20] Why do I say this?

1. The applicant has advanced good and credible arguments as to why the property could be said to be unique, as addressed in paragraph 14 above.

2. The applicant intended to acquire the property--not as part of a commercial venture--but so that it might house him and his family, with the property being near to his work and in the school district in which his children are enrolled.

3. There is no primary or alternative claim for damages.

4. There is no evidence before me of an intended sale or (other) ready buyer. Indeed, the evidence adduced by the respondents is that they intend to live in the home and “have no plans in the foreseeable future to sell their home”. Without a certificate of pending litigation, the respondents would be free to dispose of the property if, and as, they wish, and the applicant would lose the very right he seeks by way of application.

5. With the respondents having already found a new home by September 2/21[^3], and with there being nothing in the record as to prejudice suffered by them save for a bald statement that the three-business day delay caused them “considerable inconvenience and anguish”, the balance of convenience tips towards the applicant. Indeed, it was he who invested significant time and money towards performing his obligations under the agreement and readying the property for his family. There is no evidence of immediate financial hardship to the respondents.

[21] And while the respondents say that they no longer “trust” the applicant and no longer wish to deal with him, that is not reason enough to deny the applicant the relief that he now seeks, pending the argument of the application on its merits and the court’s determination of his entitlements (if any).

Disposition

[22] For all of these reasons, leave to register a certificate of pending litigation, against title, is granted. Unless the parties advise, by May 31, 2022, that the issue of costs needs to be addressed, I will assume that costs have been settled.

May 19, 2022 “Original Signed by Associate Justice Abrams”

[^1]: “…[E]stoppel can arise out of silence (impliedly)”: Ryan v. Moore, [2005] 2 S.C.R. 38, at para. 59. [^2]: In respect of the authorities on which the respondents rely, the applicant points out that, unlike in Hunter’s Square Developments Inc. v. 351658 Ontario Ltd., 2002 CanLII 49491 (ON SC), there was, here, a written agreement and a triable issue as to the property’s uniqueness; and unlike in London Eco-Roof Manufacturing Inc. v. Syson, 2020 ONSC 1338, here there is an estoppel argument. [^3]: The applicant has deposed that as recently as one week before the September 2/21 completion date, he met with the respondents at the property and they told him that the property was his, as they had already moved into their new home (see: applicant’s affidavit, sworn January 13/22, at para. 8).