COURT FILE NO.: CV-20-00642376-0000

DATE: 20220527

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

TAK MING KWAN and WINNIE WING YUE KWAN Plaintiffs

• and –

LSN INVESTMENTS INC. and KWOK KEUNG NGAN Defendants

-and-

STEPHEN CHI-KEUNG TAM, DAVID LIU, CULTURELINK REALTY INC. and HOMELIFE CULTURELINK REALTY INC. Third Parties

AND BETWEEN:

LSN INVESTMENTS INC. Plaintiff by Counterclaim

-and-

TAK MING KWAN (also known as KWAN TAK MING) and WINNIE WING YUE KWAN (also known as KWAN W. Y. WINNIE) Defendants to the Counterclaim

AND BETWEEN:

LSN INVESTMENTS INC. Plaintiff by Crossclaim

-and-

KWOK KEUNG NGAN Defendant to the Crossclaim

Ryan M. Kerr for the Plaintiff

Gerald Matlofsky for the Defendant LSN Investments Inc.

Ian Sinke for the Defendant Kwok Keung Ngan

Maria Bursey for the Third Party Culturelink Realty Inc.

HEARD: May 11, 2022

PERELL, J.

REASONS FOR DECISION

A. Introduction

[1] In this abortive real estate transaction claim, counterclaim, crossclaim, and third party claim, this is a motion for a summary judgment by the Plaintiffs, the purchasers, for the return of their $60,000 deposit and for dismissal of the Defendant vendor’s approximately $260,000 counterclaim for damages for breach of contract.

[2] The Plaintiffs (the purchasers) Tak Ming Kwan (“Mr. Kwan”) and Winnie Wing Yue Kwan (“Mrs. Kwan”) (together “the Kwans”) signed an agreement to purchase a condominium unit, which was municipally known as 88 Harbour St. Suite 5010 (“Suite 5010”), from the Defendant LSN Investments Inc., whose principals are the married couple Shu Hang (Richard) Lee (“Mr. Lee”) and Tanja Chi Dan Lo (“Ms. Lo”).

[3] David Liu (“Mr. Liu”) was the Kwans’ gratuitous real estate agent for the Suite 5010 transaction, and Stephen Chi-Keung Tam (“Mr. Tam”) was the gratuitous real estate agent for LSN Investments.

[4] Mr. Liu and Mr. Tam are both real estate agents employed by HomeLife Culturelink Realty Inc. (“Homelife Realty”). As I shall explain further below, there is no mutual agency in the immediate case. Insofar as the Kwans are concerned, Homelife Realty was not retained, and Mr. Liu was acting as a private gratuitous real estate agent for them. Mr. Tam was not the agent for the Kwans. As I shall explain further below, Mr. Tam was the real estate agent only for LSN Investments. I need not and do not decide whether Homelife Realty was also the real estate agent for LSN Investments.

[5] During the relevant time, LSN Investments also had listed Suite 5010 with Lola Cheng (“Ms. Cheng”) of Culturelink Realty Inc., (“Culturelink Realty”), a different real estate agency that shared office space with Homelife Realty. Culturelink Realty was not the agent for the Kwans.

[6] Marc Chan (“Mr. Chan”) was the Kwans’ conveyancing lawyer, and Kwok Keung Ngan (“Mr. Ngan”) was LSN Investments’ conveyancing lawyer. Mr. Ngan held the Kwans’ $60,000 deposit for the purchase of Suite 5010 in trust pending the closing of the transaction.

[7] The sale of Suite 5010 did not close, and the Kwans sued LSN Investments and Mr. Ngan for return of the deposit. LSN Investments counterclaimed against the Kwans for damages for breach of contract. LSN Investments crossclaimed against Mr. Ngan for solicitor’s negligence. LSN Investments also brought third party claims against Mr. Liu, Mr. Tam, Homelife Realty, and Culturelink Realty.

[8] In their lawsuit, the Kwans rely on the non-satisfaction of a condition precedent about the availability of financing as the reason for the Suite 5010 transaction not closing. LSN Investments submits, however, that - by their conduct - the Kwans waived the condition precedent and breached the agreement of purchase and sale by purporting to rely on the condition.

[9] For the reasons that follow, I conclude that the case is appropriate for a summary judgment in the main action. I grant the Kwans a summary judgment for the return of the deposit. I dismiss the Counterclaim. I find as a fact that the Kwans were entitled to rely on the non-satisfaction of the condition precedent in the agreement of purchase and sale for Suite 5010. There is no merit to the Counterclaim against the Kwans. The existence of LSN Investments’ unresolved crossclaim against Mr. Ngan and its unresolved third party claims do not make the adjudication of the main action and Counterclaim inappropriate for a summary judgment.

B. Procedural Background

[10] On June 20, 2020, the Kwans commence this action against LSN Investments and Mr. Ngan. The Kwans’ action is for a return of their $60,000 deposit.

[11] On August 14, 2020, LSN Investments delivers its Statement of Defence and Counterclaim and its Crossclaim against Mr. Ngan. The crossclaim advances a claim of solicitor’s negligence against Mr. Ngan.

[12] On August 21, 2020, LSN Investments issues a Third Party Claim against Mr. Liu, Mr. Tam, and Culturelink Realty.

[13] On August 28, 2020, the Kwans deliver their Reply and Defence to Counterclaim.

[14] On December 16, 2020, Culturelink Realty delivers its Statement of Defence to the Third Party Claim.

[15] On July 14, 2021, Mr. Ngan delivers his Statement of Defence to the Crossclaim of LSN Investments.

[16] On August 24, 2021, LSN Investments delivers an Amended Statement of Defence and Counterclaim and its Crossclaim against Mr. Ngan.

[17] On August 31, 2021, LSN delivers an Amended Third Party Claim. It joins Homelife Realty as a third party.

[18] On October 12, 2021, Mr. Liu, Mr. Tam, and Homelife Realty deliver their Statement of Defence to the Amended Third Party Claim.

[19] On November 26, 2021, the Kwans bring a summary judgment motion against LSN Investments. The motion is supported by Mr. Kwan’s affidavit dated November 26, 2021 and Mrs. Kwan’s affidavit dated November 26, 2021.

[20] On January 17, 2022, LSN Investments delivers its responding motion record including the affidavit dated January 14, 2022 of Mr. Lee and the affidavit dated January 14, 2022 of Ms. Lo.

[21] On February 8, 2022, Mr. Ngan is cross-examined.

[22] On February 9, 2022, Ms. Cheng is cross-examined.

[23] On February 15, 2022, Mr. Tam is cross-examined.

[24] On February 18, 2022, Mr. Liu is cross-examined.

[25] On March 4, 2022, Mr. Kwan is cross-examined.

[26] On March 11, 2022, Mr. Lee and Mrs. Kwan are cross-examined.

[27] On April 22, 2022, the Kwans deliver their factum for the summary judgment motion.

[28] Prior to the hearing of the summary judgment motion, the Kwans’ action against Mr. Ngan is settled. Mr. Ngan, who was holding the $60,000 deposit has or will pay the deposit into court or abide by the court’s direction with respect to the deposit.

[29] On May 11, 2022, the summary judgment motion between the Kwans and LSN Investments was argued. I reserved judgment.

C. Facts

[30] Mr. Lee and Ms. Lo are married. They are the principals of LSN Investments. Mr. Lee and Ms. Lo had a long-standing business relationship with Mr. Tam, who is a real estate agent with Homelife Realty, which shared office space with Culturelink Realty, where Ms. Cheng is a real estate agent. (Although nothing substantive turns on it, after the relevant events, Mr. Tam and Ms. Cheng became common law spouses.)

[31] In addition to a business relationship, Mr. Lee and Ms. Lo are friends with Mr. Tam. Mr. Lee and Ms. Lo are experienced traders in real estate. With the assistance of Mr. Tam, LSN Investments, Mr. Lee, and Ms. Lo have been involved in the purchase and sale of approximately 30 properties.

[32] In September 2019, Mr. Lee, Ms. Lo, Mr. Tam, and Ms. Cheng discuss LSN Investments selling Suite 5010. Mr. Tam and Ms. Cheng provide advice about pricing and a marketing strategy for the property.

[33] On September 18, 2019, LSN Investments signs a listing agreement with Culturelink Realty, with whom Ms. Cheng is a sales agent, for the sale of Suite 5010. The listing agreement has an expiry date of March 14, 2020. The Suite 5010 property is listed on the multiple listing service.

[34] On November 17, 2019, the listing agreement between LSN Investments and Culturelink Realty is cancelled and it is delisted on the multiple listing service. LSN Investments denies that the listing was cancelled. Ms. Lo says that her signature is forged on the cancellation.

[35] Pausing here in the narrative, it shall not be necessary to make any finding as to whether there is a listing agreement between LSN Investments and Culturelink Realty. For present purposes, it is sufficient to find as a fact that Mr. Tam was acting as the gratuitous real estate agent for LSN Investments.

[36] Throughout the fall of 2019 and into 2020, Mr. Tam attempts to find a purchaser for Suite 5010.

[37] At some time in 2019 into 2020, Mr. Tam tells Mr. Liu about Suite 5010 being in the market. Mr. Liu is another real estate agent at Homelife Realty.

[38] Mr. Liu tells the Kwans about the availability of Suite 5010 for purchase. The Kwans are a married couple living in Toronto. They are experienced traders and landlords in real estate. They have a long-standing friendship and business relationship with Mr. Liu, who tells them that he will act as a gratuitous agent – without consideration – to help them make an offer to purchase Suite 5010. The understanding is that it will be what the parties described as a “private sale”; no real estate commissions will be paid on the sale.

[39] The Kwans will need financing to make a purchase, and before making any offer, on February 28, 2020, the Kwans meet with Jay Wu of the Bank of Montreal (“BMO”) to discuss financing. The Kwans do not make an application for financing at that time, but they go ahead and make an offer for Suite 5010.

[40] Mr. Liu drafts an offer for the Kwans, and on March 6, 2020, the Kwans sign a standard form agreement of purchase and sale offering to purchase condominium Suite 5010 for a purchase price of $1,310,000. There is a $60,000 deposit. The scheduled closing date is May 29, 2020. The agreement of purchase and sale contains the following pertinent provisions:

DEPOSIT: Buyer submits upon acceptance Sixty Thousand Dollars (CDN$) $60,000 by negotiable cheque payable to Metz L. Ngan in Trust “Deposit Holder” to be held in trust pending completion or other termination of this Agreement and to be credited toward the Purchase Price on Completion. For the purposes of this Agreement, "Upon Acceptance" shall mean that the Buyer is required to deliver the deposit to the Deposit Holder within 24 hours of the acceptance of this Agreement. The parties to this Agreement hereby acknowledge that, unless otherwise provided for in this Agreement, the Deposit Holder shall place the deposit in trust in the Deposit Holder's non-interest bearing Real Estate Trust Account and no interest shall be earned, received or paid on the deposit.

NOTICES: The Seller hereby appoints the Listing Brokerage as agent for the Seller for the purpose of giving and receiving notices pursuant to this Agreement. Where a Brokerage (Buyer's Brokerage) has entered into a representation agreement with the Buyer, the Buyer hereby appoints the Buyer's Brokerage as agent for the purpose of giving and receiving notices pursuant to this Agreement. Where a Brokerage represents both the Seller and the Buyer (multiple representation), the Brokerage shall not be appointed or authorized to be agent for either the Buyer or the Seller for the purpose of giving and receiving notices. Any notice relating hereto or provided for herein shall be in writing. ln addition to any provision contained herein and in any Schedule hereto, this offer, any counteroffer, notice of acceptance thereof or any notice to be given or received pursuant to this Agreement or any Schedule hereto (any of them, "Document") shall be deemed given and received when delivered personally or hand delivered to the Address for Service provided in the Acknowledgement below, or where a facsimile number or email address is provided herein, when transmitted electronically to that facsimile number or email address, respectively, in which case, the signature(s) of the party (parties) shall be deemed to be original.

FAX No. [blank]

Fax No. [blank]

(For delivery of Documents to Seller)

(For delivery of Documents to Buyer)

Email Address [blank]

Email Address [blank]

(For delivery of Documents to Seller)

(For delivery of Documents to Buyer)

This Offer is conditional upon the Buyer arranging financing suitable to the Buyer for the balance of the purchase price within fifteen [15] banking days (excluding Saturday and Sunday) from the acceptance of this offer by the Seller, failing which, this Offer shall become null and void and the Buyer's deposit shall be returned in full without interest or deduction. This condition is included for the sole benefit of the Buyer and may be waived at his option by notice in writing to the Seller within the time period stated herein.

This offer is conditional upon the Buyer and the Buyer's lawyer reviewing the Status Certificate and Attachments and finding the Status Certificate and Attachments satisfactory in the Buyer's and the Buyer's lawyer's sole and absolute discretion. The (seller) agrees to request at the (Seller's) expense, the Status Certificate and Attachments within fifteen [15] banking days after acceptance of this Offer. Unless the buyer gives notice in writing to the Seller personally or in accordance with any other provisions for the delivery of notice in this Agreement of Purchase and Sale or any Schedule thereto not later than 5p.m. on the fifth day (excluding Saturdays, Sundays and Statutory Holidays) following receipt by the buyer of the Status Certificate and Attachments, that this condition is fulfilled, this Offer shall be null and void and the deposit shall be returned to the Buyer in full without deduction. This condition is included for the benefit of the buyer and may be waived at the Buyer's sole option by notice in writing to the Seller as aforesaid within the time period stated herein.

[41] With respect to the conditions contained in the agreement of purchase and sale, it should be noted that the date for the satisfaction of the conditions is March 27, 2020.

[42] Mr. Liu takes the Kwans’ offer to Mr. Tam. Mr. Tam takes the Kwans’ offer to the principals of LSN Investments. LSN Investments signs the offer to establish an agreement of purchase and sale.

[43] In their pleadings, the principals of LSN Investments allege that they were told that Mr. Tam was presenting an offer for whom the actual purchaser was “David” i.e., Mr. David Liu and that none of the real estate agents were taking a real estate commission. LSN Investments pleads that it was deceived by the representations of Mr. Tam and because of the representations of Mr. Tam, it was prepared to reduce the selling price for Suite 5010 and to include a second parking space. For present purposes, I need not make a finding about what LSN Investments believed and whether it was induced by misrepresentations to enter into the agreement. If LSN Investments was misled – and I make no finding in this regard – it was misled by its own gratuitous agent, not by the Kwans. There was no dual agency, and, whatever Mr. Tam may have said, he did not do so as agent solely for LSN Investments.

[44] LSN Investments was presented with an offer in which it is patent on the face of the document that the Kwans were the purchasers. There were no real estate commissions payable to Mr. Tam or to Mr. Liu. LSN Investments did not meet with the Kwans or with the Kwans’ gratuitous agent, Mr. Liu. LSN Investments understood this was a private sale where no commissions would be earned. No misrepresentations were made by the Kwans or by Mr. Liu to the principals of LSN Investments.

[45] On March 9, 2020, Mr. Liu delivers the $60,000 deposit to Mr. Ngan, solicitor for LSN Investments. Mr. Liu may have lent the $60,000 to the Kwans to pay the deposit. That Mr. Ngan was to be the deposit holder is not surprising given that none of the real estate agents and neither real estate brokerage was to receive a commission on the transaction.

[46] Also on March 9, 2020, Ms. Cheng on LSN Investments’ behalf requisitions a condominium status certificate. This requisition is made with respect to one of the two conditions in the agreement of purchase and sale. As noted above, the agreement is conditional upon the Kwans’ and their lawyer’s review and finding the status certificate and its attachments satisfactory. The agreement provides that unless the Kwans give notice in writing to LSN Investments “on the fifth day (excluding Saturdays, Sundays and Statutory Holidays) following receipt” by the Kwans of the status certificate and its attachments, that the condition is fulfilled, this agreement “shall be null and void and the deposit shall be returned to [the Kwans] in full without deduction.”

[47] On March 10, 2020, the Kwans submit a mortgage application to BMO and on March 13, 2020, subject to conditions, BMO agrees to provide financing for the purchase of Suite 5010. One condition imposed by BMO is that the Kwans unconditionally sell 1802-101 Peter Street, a rental property that they own.

[48] The Kwans set about to sell the Peter Street property. Once again, they have Mr. Liu’s assistance. On March 17, 2020, the Kwans sign a conditional agreement to sell the Peter Street property to Wong Wing-Yi and Kwok Chi Kwong with a scheduled closing on April 30, 2020. Once again, no real estate brokerages are involved, and no real estate commissions are payable. The purchasers’ $25,000 deposit is to be held by Mr. Chan, the Kwans’ real estate lawyer.

[49] On March 21, 2020, a copy of the status certificate for Suite 5010 is sent to Mr. Liu and Mr. Chan, the conveyancing lawyer for the Kwans. The status certificate is not reviewed by Mr. Chan. No written notice that the condition with respect to the status certificate is being waived is given “on the fifth day (excluding Saturdays, Sundays and Statutory Holidays) following receipt” of the status certificate.

[50] March 27, 2020, arrives. The situation on that day is that in accordance with the language of the agreement of purchase and sale, the conditions with respect to the status certificate and the conditions with respect to financing have not been waived by notice in writing and the agreement “shall become null and void and the [Kwans’] deposit shall be returned in full without interest or deduction.” On the 27^th of March, 2020, the Kwans do not have unconditional financing for the Suite 5010 transaction. On the 27^th of March, 2020, the agreement between the Kwans and LSN Investments is null and void.

[51] The Kwans’ testimony is that they intentionally decide not to waive the financing condition in the Suite 5010 agreement. They appreciate that unless they waive in writing, the transaction will be at an end. They testify that they hope that if the Peter St. transaction does go firm, then the Suite 5010 agreement might be reinstated with the agreement of LSN Investments. I believe the Kwans’ testimony, and as the discussion below will indicate, the Kwans’ belief is in accord with the legal reality that the agreement of purchase and sale was null and void as of March 27, 2020.

[52] On April 1, 2020, the Kwans’ conditional sale of the Peter Street property is cancelled for non-satisfaction of the conditions and on April 4, 2020, Mr. Liu arranges for an exchange of the releases between the Kwans and the intended purchasers of the Peter Street property.

[53] It is Mr. Kwan’s evidence that with the cancellation of the Peter Street property, he asked Mr. Liu to arrange also for releases for the Suite 5010 transaction. Mr. Kwan said, however, that Mr. Liu was overwhelmed by personal matters, and everyone was struggling with the Covid-19 disruptions, and these circumstances may explain why Mr. Liu did not immediately deal with the matter of releases for the Suite 5010 transaction.

[54] Pausing here in the narrative, LSN Investments argues that the Kwans’ failure to ask for a release after March 27, 2020 for the Suite 5010 transaction and the contrasting Kwans’ request for a release for the Peter Street property establishes that the Kwans by their conduct had waived the two conditions in the agreement of purchase and sale and were treating the agreement as alive and not null and void. To foreshadow the discussion below, I disagree with this argument. As already noted above, the situation was after March 27, 2020, and while the contracting parties could reinstate the agreement, it was null and void.

[55] Mr. Ngan testified that it was Mr. Lee’s, Ms. Lo’s, and LSN Investments’ habitual practice to extend the time for the satisfaction of conditions or to ignore a late waiver of conditions in order to keep a transaction alive, and on April 8, 2020, Mr. Ngan by email asks Mr. Liu and Mr. Tam if there has been a waiver of the financing condition and if the Kwans have a conveyancing lawyer. There is no response from Mr. Liu or Mr. Tam.

[56] On April 27, 2020, Mr. Ngan by email again asks Mr. Liu and Mr. Tam if there has been a waiver of the financing condition and if the Kwans have a conveyancing lawyer. Once again, there is no response from Mr. Liu or Mr. Tam.

[57] Pausing here in the narrative, Mr. Ngan’s evidence confirms that LSN Investments apparently had the same understanding as the Kwans, which was that if a condition to an agreement of sale is not satisfied or if a notice of waiver is late arriving, the parties are at liberty to reinstate or revive the null and void agreement.

[58] Finally, on May 8, 2020, Mr. Liu tells Mr. Tam that the Kwans cannot get the financing and the deal is gone and on May 10, 2020, Ms. Cheng informs Ms. Lo that the Kwans are not closing the transaction. Subsequently, Mr. Kwan informs BMO that the Kwans no longer require financing.

[59] On May 11, 2020, Mr. Liu prepares a mutual release regarding the sale of Suite 5010, and he sends it to Mr. Tam who sends the draft to Mr. Ngan.

[60] On May 14, 2020, Mr. Chan demands the return of the deposit by letter to Mr. Ngan.

[61] On May 20, 2020, Mr. Ngan writes Mr. Chan and advises that LSN Investments will not be refunding the deposit. LSN Investments’ position is that the conditions were waived, and that the agreement was unconditional due to the Kwans' failure to communicate that they had not waived the conditions for the 44 days after March 27, 2020, when there was “radio silence” about the status of the agreement. LSN Investments argues that there has been a waiver by conduct.

[62] On May 25, 2020, Mr. Ngan tendered a package of closing documents on behalf of LSN Investments, but the Suite 5010 transaction did not close on May 29, 2020.

[63] The collapse of the Suite 5010 transaction presents a problem for LSN Investments or more precisely it presented a problem for Ms. Lo. She was relying on the proceeds from this transaction to complete the purchase for her daughter of a condominium unit municipally known as 302-19 Western Battery Road, Toronto, Ontario, which was closing in July 2020.

[64] Apparently in financial distress about the imminent 302-19 Western Battery Road closing, on June 20, 2020, Ms. Lo sells by assignment two agreements of purchase and sale in which she is the purchaser. The properties sold by assignment by Ms. Lo are: (a) 502-19 Western Battery Road, Toronto, Ontario; and (b) 1803-898 Portage Parkway, Vaughan, Ontario. LSN Investments’ position and evidence is that Ms. Lo improvidently sold the two properties under urgency, emergency, and distress because Ms. Lo needed the proceeds for the purchase of 302-19 Western Battery Road.

[65] The 302-19 Western Battery Road transaction does close and on August 21, 2020, LSN Investments resells the Suite 5010 property.

[66] For its Counterclaim, in a provisional quantification of its damages from the abortive sale of Suite 5010, LSN Investments claims: (a) a $65,210 loss on the alleged distress sale of 502-19 Western Battery Road; (b) a $113,334 loss on the alleged distress sale of 1803-898 Portage Parkway; and (c) a $84,427.60 loss on the resale of Suite 5010. LSN Investments’ total provisional claim is $262,971.60.

D. Is the Case Appropriate for a Summary Judgment?

[67] The first issue to be decided is whether notwithstanding LSN Investments’ arguments to the contrary, the main action and the counterclaim are appropriate for a summary judgment.

[68] Rule 20.04(2)(a) of the Rules of Civil Procedure[^1] provides that the court shall grant summary judgment if: “the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.” With amendments to Rule 20 introduced in 2010, the powers of the court to grant summary judgment have been enhanced. Rule 20.04 (2.1) states:

20.04 (2.1) In determining under clause (2)(a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence.

[69] Hryniak v. Mauldin does not alter the principle that the court will assume that the parties have placed before it, in some form, all of the evidence that will be available for trial. The court is entitled to assume that the parties have advanced their best case and that the record contains all the evidence that the parties will present at trial.[^2] Thus, if the moving party meets the evidentiary burden of producing evidence on which the court could conclude that there is no genuine issue of material fact requiring a trial, the responding party must either refute or counter the moving party’s evidence or risk a summary judgment.[^3]

[70] In Hryniak v. Mauldin[^4] and Bruno Appliance and Furniture, Inc. v. Hryniak,[^5] the Supreme Court of Canada held that on a motion for summary judgment under Rule 20, the court should first determine if there is a genuine issue requiring trial based only on the evidence in the motion record, without using the fact-finding powers introduced when Rule 20 was amended in 2010. The analysis of whether there is a genuine issue requiring a trial should be done by reviewing the factual record and granting a summary judgment if there is sufficient evidence to fairly and justly adjudicate the dispute and a summary judgment would be a timely, affordable, and proportionate procedure.

[71] If, however, there appears to be a genuine issue requiring a trial, then the court should determine if the need for a trial can be avoided by using the powers under rules 20.04 (2.1) and (2.2). As a matter of discretion, the motions judge may use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if their use will lead to a fair and just result and will serve the goals of timeliness, affordability, and proportionality in light of the litigation as a whole. To grant summary judgment, on a review of the record, the motions judge must be of the view that sufficient evidence has been presented on all relevant points to allow him or her to draw the inferences necessary to make dispositive findings and to fairly and justly adjudicate the issues in the case.[^6]

[72] If a judge is going to decide a matter summarily, then he or she must have confidence that he or she can reach a fair and just determination without a trial; this will be the case when the summary judgment process: (a) allows the judge to make the necessary findings of fact; (b) allows the judge to apply the law to the facts; and (c) is a proportionate, more expeditious and less expensive means to achieve a just result.[^7] The motion judge is required to assess whether the attributes of the trial process are necessary to enable him or her to make a fair and just determination.[^8]

[73] The analytic framework from Hryniak v. Mauldin requires the motions judge, after determining whether the case is appropriate for a summary judgment, to first determine if there is a genuine issue requiring a trial based only on the evidence without using the enhanced fact-finding powers under rule 20.04 (2.1). Second, if there appears to be a genuine issue requiring a trial, the motion judge should determine whether a trial could be avoided: (a) by using the enhanced powers under rule 20.04 (2.1), which permits weighing the evidence, evaluating the credibility of deponents, and drawing any reasonable inference from the evidence; or (b) by using the power under rule 20.04 (2.2) to order that oral evidence be presented by one or more parties.[^9]

[74] Putting aside for the moment LSN Investments’ primary argument that the case at bar is inappropriate for a summary judgment because it would constitute a partial summary judgment and that there is a risk of inconsistent outcomes in the Crossclaim and Third Party Claims, in my opinion, the case is appropriate for a summary judgment.

[75] In so far as the claim and the counterclaim are concerned, there was evidence from all of the principal actors in the events and there was an ample documentary record, and I am confident that I can reach a fair and just determination without a trial. In so far as the main action is concerned, I am well positioned to make the necessary findings of fact. Indeed, as I will explain below, I am satisfied that there are no genuine issues requiring a trial. The attributes of the trial process are not necessary to enable me to make a fair and just determination of the main action and the Counterclaim.

[76] Turning to LSN Investments’ primary argument against a summary judgment, it rests on the circumstance that the summary judgment motion will not resolve the crossclaim against Mr. Ngan nor the third party claims against Mr. Liu, Mr. Tam, Homelife Realty, and Culturelink Realty. Thus, LSN Investments submits that the court should not proceed to give a partial summary judgment.

[77] In rejecting this argument, I begin by noting that, strictly speaking, the summary judgment that I shall be granting is not a partial summary judgment. The judgment will bring to an end the main action and the Counterclaim, both of which, strictly speaking, are discrete actions. In so far as the main action and the Counterclaim are concerned, there is no risk of an inconsistency with the trial judgment because there will be no trial judgment. In the immediate case, the only risk of an inconsistency is between my judgment dismissing the counterclaim and the third party proceedings, but that does not make my judgment a partial summary judgment.

[78] However, for the sake of LSN Investments’ argument, I will treat the summary judgment motion in the immediate case as being for a partial summary judgment. In Hryniak v. Mauldin, the Supreme Court prescribed caution but did not preclude partial summary judgments in appropriate cases. In considering whether to entertain a motion for partial summary judgment, a motion judge should consider: (a) what is the risk of inconsistent findings of fact by the motions judge and the trial judge; (b) whether the bifurcation of the issues will reduce the costs of the litigation for the parties; and (c) whether the bifurcation of the issues will fairly expedite access to justice.[^10]

[79] In the immediate case, I am satisfied that if my judgment is treated as a partial summary judgment, then it is an appropriate one for a summary disposition. In any event, my judgment is not binding on the crossclaim and the third party proceedings. Moreover, my judgment in the main action and Counterclaim does not address the outcome of the crossclaim against Mr. Ngan or the outcome of the third party claims against Mr. Liu, Mr. Tam, Homelife Realty or Culturelink. There is a theoretical possibility that my judgment about Mr. Liu not being a mutual agent might be different from a trial judge’s determination, but I regard that risk of different outcomes or of different determinations on various issues as remote but, in any event, those differences are not a reason to put the Kwans through the expense of a trial when there are no genuine issues requiring a trial in the main action and the Counterclaim.

E. Discussion and Analysis

[80] Having decided that the claim and the counterclaim in the immediate case are appropriate for a summary judgment, the next feature of the immediate case to note is that there are only two potential issues that might require a trial. For the Kwans’ action and for the Counterclaim, there is the issue of whether the Kwans can rely on the conditions precedent in the agreement of purchase and sale. For the Counterclaim the second issue is whether the Kwans are liable for the alleged misrepresentations made by Mr. Tam.

[81] Both of these largely factual issues do not require a trial. Both issues are not genuine issues requiring a trial. How the two conditions in the agreement of purchase and sale operate is not controversial. If the two conditions are not waived in writing by March 27, 2020, the agreement is null and void.

[82] There is no merit to LSN Investments’ argument that the Kwans’ conduct waived the conditions in the agreement. This argument is incorrect both as an issue of fact and as an issue of mixed fact and law.

[83] When Mr. Ngan wrote his several inquiry letters, he knew that the manner of waiver had been prescribed by the agreement between the parties and it was a right reserved to the Kwans and it required them to give notice in writing. The evidence establishes that both parties understood how the conditions operated, and the evidence is that there never was a notice in writing waiving the conditions, much less a timely notice. Both parties understood that the agreement might be consensually revived - after it became null and void - but that never occurred, because the Kwans were unable to revive the agreement without having financing, but that was no longer possible with the termination of the Peter Street agreement.

[84] LSN Investments argues that the conduct of the Kwans established waiver because the Kwans were unfairly tying up the Suite 5010 property beyond March 27, 2020 when they did not promptly proffer a release as they did with respect to the Peter Street agreement. The falsity of this argument is threefold.

[85] First, there was nothing unfair about what occurred. What occurred was in accordance with the parties’ bargain as set out in the agreement of purchase and sale.

[86] Second, the two conditions in the agreement of purchase and sale were for the exclusive benefit of the Kwans. They had contracted for the right to waive or not. For waiver to occur, the Kwans must be shown to have intentionally forgone their rights to have the agreement treated as null and void and they must have clearly communicated their intention to forgo their contract rights. In Technicore Underground Inc. v. Toronto (City),[^11] Justice Gillese described the essentials of waiver; she stated:

Waiver occurs when one party to a contract (or proceeding) takes steps that amount to foregoing reliance on some known right or defect in the performance of the other party. It will be found only where the evidence demonstrates that the party waiving had (1) a full knowledge of the deficiency that might be relied on and (2) an unequivocal and conscious intention to abandon the right to rely on it. The intention to relinquish the right must be communicated. Communication can be formal or informal and it may be inferred from conduct. The overriding consideration in each case is whether one party communicated a clear intention to waive a right to the other party.

[87] In the immediate case, the evidence is that the Kwans did not intend to forgo their rights to terminate the agreement of purchase and sale. The Kwans’ delay in communicating their waiver was not a clear communication of an intention to waive their rights. Since the communication was prescribed in time and as to the manner of requiring a notice in writing, the delay, if it communicated anything, was that the Kwans were out of time to waive the two conditions in the agreement.

[88] Third, the property was not tied up. The Kwans did not waive the conditions in writing, and thus LSN Investments was at liberty to put the property back on the market. Instead of giving Mr. Ngan instructions to inquire about the status of the transaction, which were his standard instructions, Mr. Ngan could have been instructed to advise the Kwans that the property was being put back for sale.

[89] Thus, there is no genuine issue requiring a trial about the Kwans’ claim for a return of the deposit. It follows that save possibly for the misrepresentation claim in the Counterclaim, there is no merit to LSN Investments’ Counterclaim.

[90] Turning then to the balance of the Counterclaim that is based on alleged misrepresentations. Once again, there are no genuine issues requiring a trial.

[91] I have some doubts about what precisely Mr. Lee and Ms. Lo were told by Mr. Tam and Ms. Cheng, but that can be resolved by the judge trying the third party proceedings. More to the point, I have no doubt that no representations, true or false, were made by the Kwans or by Mr. Liu to LSN Investments. Since I find as a fact that no misrepresentations were made by the Kwans or their gratuitous agent, there can be no liability for misrepresentations. Thus, there is no merit to the Counterclaim.

F. Conclusion

[92] For the above reasons, the Kwans’ summary judgment motion is granted.

[93] If the parties cannot agree about the matter of costs, they may make submissions in writing, beginning with the Kwans’ submissions within twenty days from the release of these Reasons for Decision, followed by LSN Investments’ submissions within a further twenty days.

Perell, J.

Released: May 27, 2022

[^1]: Rules of Civil Procedure, R.R.O. 1990, Reg. 194. [^2]: Canada (Attorney General) v. Lameman, 2008 SCC 14, [2008] 1 S.C.R. 372 at para. 11; Dawson v. Rexcraft Storage & Warehouse Inc., [1998] O.J. No. 3240 (C.A.); Bluestone v. Enroute Restaurants Inc. (1994), 18 O.R. (3d) 481 (C.A.). [^3]: Toronto-Dominion Bank v. 466888 Ontario Ltd., 2010 ONSC 3798. [^4]: 2014 SCC 7. [^5]: 2014 SCC 8. [^6]: Campana v. The City of Mississauga, 2016 ONSC 3421; Ghaeinizadeh (Litigation guardian of) v. Garfinkle Biderman LLP, 2014 ONSC 4994, leave to appeal to Div. Ct. refused, 2015 ONSC 1953 (Div. Ct.); Lavergne v. Dominion Citrus Ltd., 2014 ONSC 1836 at para. 38; George Weston Ltd. v. Domtar Inc., 2012 ONSC 5001. [^7]: Hryniak v. Mauldin, 2014 SCC 7 at paras. 49 and 50. [^8]: Hryniak v. Mauldin, 2014 SCC 7 at paras. 51-55; Wise v. Abbott Laboratories, Ltd., 2016 ONSC 7275 at paras. 320-336; Drywall Acoustic Lathing and Insulation Local 675 Pension Fund (Trustees of) v. SNC-Lavalin Group Inc., 2016 ONSC 5784 at paras. 122-131. [^9]: Royal Bank of Canada v. 1643937 Ontario Inc., 2021 ONCA 98; Hryniak v. Mauldin, 2014 SCC 7 at para. 66 [^10]: Malik v. Attia 2020 ONCA 787 at paras. 59-68. [^11]: 2012 ONCA 597 at para. 63. See Saskatchewan River Bungalows Ltd. v. Maritime Life Assurance Co., [1994] 2 S.C.R. 490; High Tower Homes Corp. v. Stevens, 2014 ONCA 911.