COURT FILE NO.: CV-18-595961

DATE: 20220714

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Filomena Oleiro-Goncalves Plaintiff

– and –

Gulamgaus Bandali and Jahangir Piroozzadeh and Right at Home Realty Inc. Brokerage Defendants

Kim, M., for the Plaintiff

Goldblatt, J., for Piroozzadeh Peters, M. U., for Bandali

HEARD: December 13, 15, 2021

REASONS FOR JUDGMENT

P.T. Sugunasiri, J.:

[1] This case turns on the question of whether second and third hand information from real estate agents about a buyer’s lack of funds, and the buyer’s request for a closing extension amounts to an anticipatory breach allowing a vendor to repudiate the contract without tendering. In my view, no. To allow third party information about a vendor’s financial status to govern the rights and obligations between a vendor and purchaser would bring chaos to real estate transactions.

Overview:

[2] The Plaintiff and the Defendant Jahangir Piroozzadeh cross-move for summary judgment with respect to a failed 2017 real estate transaction. The Plaintiff and the Defendant Gulamgaus Bandali entered into an Agreement of Purchase and Sale which Bandali then assigned to Piroozzadeh. After extending the closing date twice, the transaction did not close. On closing day, the Plaintiff believed that Piroozzadeh was unable to close. As such, she did not tender and instead declared an anticipatory breach and repudiated the Agreement of Purchase and Sale. Ultimately the Plaintiff re-listed the property and sold at a loss. She seeks the resulting damages from both the Bandali as the original purchaser and Piroozadeh as assignee. Piroozzadeh agrees that if the Plaintiff can make out her claim for anticipatory breach, she did not have to tender on closing and is entitled to damages. Piroozzadeh disputes that there was any such breach because anticipatory breach cannot be based on third party information nor a request to extend the closing. I agree. There is no basis in law for this proposition. For the reasons that follow, I dismiss the Plaintiff’s motion and allow Piroozzadeh’s cross motion and dismiss the action. As the parties suggest, there is no genuine issue requiring trial.

The Undisputed Facts:

[3] On February 26, 2017, Ms. Oleiro-Goncalves (“Vendor”) entered into an agreement to sell 211 Poyntz Avenue to Bandali for $2,065,000 with a $100,000 deposit (“APS”). The transaction was scheduled to close on Monday, July 17, 2017. On April 12, 2017 Bandali assigned the APS to Piroozzadeh for $2,200,000 and a $100,000 deposit with a balance of $155,000 due on closing.

[4] The APS contained an assignment clause:

The seller agrees that the Buyer shall have the right at any time prior to closing, to assign the within Offer to any person, persons or corporation, either existing or to be incorporated, the Buyer hereinbefore shall not stand released from further liability thereunder.

[5] On April 12, 2017, Bandali assigned the APS to Piroozzadeh. The Vendor was unaware of the assignment until July 14, 2017 when Bandali’s counsel requested an extension to the closing date.

[6] On July 17, 2017, closing day, the Plaintiff tendered by sending closing documents and keys. Piroozzadeh did not close the transaction. At that point the vendor had a right to re-list, which she did.

[7] On July 20, 2017 Plaintiff’s counsel proposed to amend the APS to extend the closing date to August 31, 2017 with a further deposit of $50,000 and payment of the Plaintiff’s added costs arising from having to retain the property. Piroozzadeh agreed, paid the $50,000 deposit and the parties extended the closing to August 31, 2017.

[8] On August 9, 2017 Piroozzadeh’s counsel sent a requisition letter setting out the documents required to close.

[9] On August 17, 2017 Piroozzadeh raised the possibility of extending the closing to October 31, 2017.

[10] On August 30, 217, Piroozzadeh formally sought and extension. In so doing he proposed a further deposit of $20,000 and payment of carrying costs. In offering the $20,000, Piroozzadeh’s counsel noted in the email