COURT FILE NO.: CV-21-1280

DATE: 2022 12 30

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: SHABANA SHIWPRASHAD v. AMANDA DHANRAJ

BEFORE: McSWEENEY J.

COUNSEL: M. Alter, for the Plaintiff, Shabana Shiwprashad

M. Peters, for the Defendant, Amanda Dhanraj

HEARD: March 23, 2022

REASONS FOR JUDGMENT

Overview and Positions

[1] These reciprocal summary judgment motions arise from the same Agreement of Purchase and Sale (“APS”) for a property at 1227 Sully Court, Mississauga, Ontario (“the Property”).

[2] The transaction did not close. The Plaintiff has registered a Certificate of Pending Litigation (“CPL”) on title to the property.

[3] The Plaintiff seeks judgment granting specific performance on the APS; the Defendant seeks judgment dismissing the action and an order lifting the CPL.

[4] There are three people in this narrative:

i Shabana Shiwprashad, the Plaintiff / Purchaser (“Shabana”);

ii Shabana’s older brother, realtor Anthony Shiwprashad, who represented his sister on the purchase; Anthony is the ex-partner of the Defendant;

iii Amanda Dhanraj (“Amanda”), the Defendant / Vendor and ex-partner of Anthony.

[5] Shabana admits she did not tender on closing, but argues that Amanda committed an “anticipatory breach” that entitles her to specific performance without the requirement to tender.

[6] For her part, Amanda seeks dismissal of Shabana’s claim on the basis that the APS is unenforcable due to Anthony’s coercive harassment and intimate partner violence toward her. Alternatively, Amanda argues that the APS ended when she returned Shabana’s deposit.

[7] For the reasons that follow, I find that the APS had come to an end by February 18, 2021. I grant summary judgment in favour of the Defendant Amanda. Shabana’s motion, and her claim, are dismissed with costs.

Availability of Summary Judgment

[8] Both parties submit that the record suffices for me to find in their respective favour. Should I not grant summary judgment in Plaintiff Shabana’s favour, however, she asks, in the alternative, that the Court find the record insufficient for final determination at this stage, and that the claim proceed to a hearing.

[9] The statutory framework is well-settled law. Rule 20.04(2)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 under Courts of Justice Act, R.S.O. 1990, c. C.43 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." The Supreme Court of Canada, in Hryniak v. Mauldin, 2014 SCC 7, described the summary judgment test as follows at para. 49:

There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

[10] A responding party may not rest solely on the allegations or denials in the party’s pleadings, but “must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial”: Rule 20.02(2). Each side must “put its best foot forward” with respect to the existence or non-existence of material issues to be tried: Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200 at para. 26.

[11] A court is entitled to assume that the record contains all the evidence that the parties would present if the matter proceeded to trial: Sweda Farms Ltd. at paras. 26-27, affirmed in 2014 ONCA 878.

[12] The analysis of whether there is a genuine issue requiring a trial should be done by reviewing the factual record and granting summary judgment if there is sufficient evidence to fairly and justly adjudicate the dispute, and if summary judgment would be a timely, affordable and proportionate procedure.

[13] In this case, the total combined record was well over a thousand pages. Each party filed affidavits, transcripts of cross-examination, factums, and authorities.

[14] I reminded the parties at the motion’s outset that it is counsel’s responsibility to highlight, during argument, the specific portions of the record which support their position, and to do so within the time allotted for this motion. Counsel were asked whether they would be able to do so, or would prefer to adjourn their motions to a date on which more time for argument would be available. Both counsel asked to proceed and committed to argue the motion in the alloted time.

[15] Having heard the parties’ submissions and reviewed the record, I agree that that the record suffices for me to find the facts and apply the law to reach a fair and just determination of the issues. I am also satisfied that doing so is the most proportionate and expeditious manner of resolving this dispute.

Issues to be determined:

[16] The issues for determination are:

Issue 1: Did the parties reach agreement?

Issue 2: Did the agreement come to an end at the time of return of Shabana’s deposit?

Issue 3: Is Shabana entitled to specific performance without tender?

Issue 4: Was the APS unenforceable by reason of Anthony’s abuse of Amanda?

Relevant chronology and evidentiary findings:

[17] The following background facts are not significantly in dispute.

[18] Amanda and Anthony had dated for several years. During their relationship, they came to know each other’s families.

[19] At the relevant time, they both worked for same real estate brokerage, but in different office locations. Anthony was a licensed realtor. Amanda was a realtor on a part-time basis, and also worked elsewhere as an administrative assistant.

[20] During her relationshp with Anthony, Amanda bought 1227 Sully Court, Mississauga, as an investment property (“the Property”). Anthony acted as her realtor on the purchase and waived his commission. Amanda took sole title to the Property and rented it out. During their relationshp, Anthony did some work on the house which increased its value.

[21] Amanda and Anthony broke up and reconciled at different times. By late October 2020, Amanda viewed the relationship as over; Anthony still hoped for reconciliation. The record confirms that during this time, they communicated about the possibility of Amanda selling her Property to Anthony.

[22] I accept that Amanda’s interest in selling the Property was informed in part by future plans to put her money elsewhere as she moved on from her relationship with Anthony. Another reason she considered selling, and Anthony was interested in buying, was that the Property was located close to other property which Anthony and his family owned.

[23] In Anthony’s and Amanda’s back-and-forth communications, mostly by email, Amanda was consistently open to sharing some amount of the value of the Property with Anthony to recognize his contributions to its value, potentially in the form of selling the Property to him at a below-market purchase price.

[24] Amanda and Anthony disagree about whether they reconciled briefly in November 2020. It is not disputed, however, that by December 5, 2020, the relationship had ended. That is the date Anthony went to Amanda’s home and forced his way in. Amanda called the police. Anthony was arrested by the police and charged. Importantly, his bail conditions required him to stay away from Amanda and not to contact her.

[25] Amanda’s evidence confirms that after Anthony was charged, she was still willing to continue discussions about the Property with a view to selling it to him.

[26] Between the end of December 2020 and February 16, 2021, Amanda both initiated and responded to emails from Anthony regarding potential terms of the sale of her Property to him. As referenced, Anthony was subject to release conditions not to contact Amanda at all. Amanda was clear to Anthony in her emails that she was permitting him to communicate with her only by email, and only about the sale of her Property.

[27] Despite Amanda’s clear boundary about the purpose and content of communication while Anthony was prohibited from contacting her, Anthony frequently blended his emails about the sale of the Property with references to their former relationship, to his personal feelings, and to his ongoing interest in Amanda. Amanda responded only about matters relating to her Property.

[28] Plaintiff’s counsel did not dispute that Anthony also made multiple phone calls to Amanda during this period. It is agreed that these calls were unwelcome to Amanda, that she did not answer them, and that email and phone communication were expressly prohibited by his interim release.

[29] It is significant for evidentiary purposes that the parties negotiated the terms of their APS exclusively by email. As a result, the Court has an unusually complete written record of their negotiations and discussion. Neither party directed the Court to other relevant communications between Amanda and Anthony during the period leading up to the signing of the APS or the days following when the deposit was returned.

[30] During their emails about terms of sale, Anthony took the position that he wanted to negotiate the purchase of the Property, but wanted to take title in the name of a family member. On January 5, 2022 he proposed that his sister Shabana would be the named purchaser. He indicated to Amanda that although Shabana herself was not interestsed in buying the Property, she would act as purchaser for him.

[31] The emails between Amanda and Anthony comprise a significant amount of the record. They went back and forth about what purchase price reduction would fairly reflect Anthony’s contributions to the Property; at one point in Janaury 2021, Amanda was agreeable to selling to Anthony for $650,000. During argument on the summary judgment, Plaintiff counsel acknowledged that it was to Anthony’s ultimate detriment that he continued to “quibble” about the price when Amanda was prepared to sell for that amount; instead of getting a deal at that point, he continued to seek further reductions, and ultimately the purchase price increased.

[32] A further two months later, after receiving and reviewing proposed draft offer language from Anthony, Amanda prepared a formal offer to sell the Property to Anthony, at a discounted purchase price of $727,000. Amanda sent the offer to Anthony, and as he requested she listed Shabana as the Purchaser.

[33] On February 16, 2021, Shabana signed the offer. Although Anthony tried to get Amanda to meet him in person, offering to give cash or a cheque instead of the etransfer deposit, specifically required by the APS, Amanda insisted on etransfer of the deposit to the seller as stipulated in the APS.

Terms of APS:

[34] Upon receipt of the deposit, the signed APS was an enforcable agreement of purchase and sale.

[35] The APS between the parties for the purchase of 1227 Sully Court, Mississauga contained the following key terms:

a. Buyer/Purchaser: Shabana Shiwprashad

b. Seller/Vendor: Amanda Dhanraj

c. Purchase price: $727,000

d. Deposit: $1000, to be made by Buyer to Seller by email money transfer to dhanraj.amanda@gmail.com

e. Irrevocability date: offer shall be irrevocable by the Seller until 11:59 p.m. on February 17, 2021.

f. Closing date: March 17, 2021 at 6:00 p.m.

g. Conditions:

i. The Buyer is to arrange a new Mortgage. The Buyer must give notice to the Seller no later than 10 p.m. on the 10th business day after the accepted offer that this condition is fulfilled. The Buyer can waive this condition.

ii. The Offer is conditional upon an inspection at the Buyer’s expense. The Seller will provide access for the sake of the inspection. The Buyer can waive this condition.

iii. The Buyer has until 6:00 p.m. on the 10th day of March, 2021 (Requisition Date) to examine title.

iv. The Buyer can postpone the transaction’s completion date by not more than 10 days by giving written notice at least 3 days in advance of the earlier completion date.

ISSUE 1: VALIDITY OF APS

[36] I have found that Shabana signed back the APS on February 16, 2021 and paid the required $1,000.00 deposit to Amanda. At that time, the parties had an enforceable agremeent of purchase and sale.

[37] Amanda’s counsel argued on the motion that the APS was not enforcable for several reasons, including that the purchase price was unconscionably low; that the parties did not “meet minds”, and that Anthony, not Shabana was the true purchaser.

[38] With respect to the Defendant’s arguments I find as follows:

Purchase price not unconscionable:

[39] I now turn to the value of the Property at the time of the APS. The evidence indicates that Anthony and Amanda, both real estate professionals, thought the Property was worth somewhere around $1,000,000 if sold on the open market. Anthony and Amanda agreed that any sale would be free of real estate commissions, as they had done when Anthony helped Amanda buy the Propery initially.

[40] Amanda wished to sell her home and move on with her life following her breakup with Anthony. There are several references in her communications with Anthony in December, January, and February to that effect. The evidence also supports a finding that she was willing to acknowledge Anthony's contribution to the property’s improved value by selling it to him at a reduced price. That is, Amanda was prepared throughout the negotiations to sell it at a reduced purchase price.

[41] I find that the value of the property with Amanda's proposed purchase price of $727,000 in the APS reflected a discounting of approximately $265,000, which she considered to be a fair reduction to Anthony to account for his contributions to the property.

[42] As referenced earlier, the evidence confirms that Amanda drafted the offer which became the APS. Anthony had provided some draft language for Amanda to consider including in the offer. Amanda included terms he proposed relating to conditions waivable by the purchaser regarding financing and other related conditions for the benefit of the purchaser.

[43] The purchase price of $727,000, however, was chosen by Amanda. The offer sent to Anthony for Shabana listed a purchase price of $727,000. This is the purchase price in the offer Anthony directed Shabana to accept and sign. The evidence supports a finding that on February 16, 2021, $727,000 was a purchase price at which Amanda was willing to sell her Property to Anthony, discounted below market in order to get the sale over with quickly, without payment of realtor commission, and to recognize Anthony’s contributions to the value of the Property during their relationship.

[44] For the above reasons I reject the Defendant’s argument that the purchase price was unconscionable.

Shabana’s role as nominal purchaser:

[45] During their email negotiations, Anthony made clear to Amanda that he would negotiate the purchase of the Property with her, and that although she would sell it to him as the nominal purchaser on the transaction, it would be in the name of a Shiwprashad family member.

[46] In at least one of her emails, Amanda references a preference to sell her Property directly to Anthony, however she was prepared to sell to Anthony with another family member named as purchaser.

[47] As referenced earlier, on January 5, 2021, Anthony proposed that his younger sister, Shabana, would be the named purchaser.

[48] Anthony at all times negotiated terms and conditions of the purchase with Amanda. The true purchaser in the transaction was Anthony, not Shabana. In reaching this conclusion, I rely on the statements made by Anthony and Amanda in their email exchanges contemporaneous with, before, and immediately after the signing of the APS. Those exchanges establish that Anthony was the one negotiating with Amanda for the sale of her property, and that the discounted purchase price offered by Amanda was discounted to reflect Anthony’s, not Shabana’s contributions to its value.

[49] I reject Shabana’s evidence that she was the true purchaser and that she entered into the APS because she was independently interested in buying the Property.

[50] There is no other evidence prior to the signing of the APS of any connection between Shabana and the Property. To the contrary, Shabana admitted on cross-examination that she had not been inside the Property before she signed the Agreement of Purchase and Sale. This is consistent with Anthony’s email to Amanda indicating Shabana herself had no interest in purchasing the Property.

[51] Shabana’s evidence is also inconsistent with respect to her alleged reason for wanting to buy the Property. She stated variously that she wanted to buy the Property: to live in it herself; to live in it together with her parents; and not to live in it at all, but to rent it out.

[52] In conclusion on this point, Shabana’s evidence, given after the fact as part of litigation, is self-serving and inconsistent with the record as a whole. Where the Plaintiff’s evidence is internally inconsistent, I prefer Anthony’s emails contemporaneous with events described.

[53] Shabana’s involvement was restricted to signing the agreement when directed by Anthony, and paying the $1,000 deposit upon signing the agreement.

[54] I conclude on this issue that Shabana was the nominal purchaser, and that she agreed to act in this capacity to assist Anthony. This conclusion is consistent with the reduced purchase price offered by Amanda: there is no suggestion in the evidence that Shabana had contributed to the value of the Property and was herself entitled to any below-market reduction in purchase price.

Issue 2: Amanda’s Return of Deposit – Agreement at an end:

[55] The terms of the APS were irrevocable by Amanda as Seller until midnight on February 17, 2021.

[56] On February 18, 2021, the second day after reaching terms of sale in the APS, several emails went back and forth between Anthony and Amanda. Each expressed equivocation as to whether they wanted to go through with the purchase/sale:

a. At 10:53 a.m. Anthony emails Amanda [whom he calls “Dev” or “Devs”]: “Devs I hope I am not bothering you at work. This sale thing is really getting to my head. I really don’t want the house if it means I have to lose you…”

b. At 11:30 a.m. Amanda replies: “… Listen, I thought about it and I don’t need to sell my place this year, I would prefer if, when the time comes you are able to buy it from me in your own name. If this doesn’t go through then I will fix the toilet in the big room and rent that one out…”

c. At 1:12 p.m. Anthony states options including: “you don’t have to sell, you can keep it … you can sell it to whoever you want … or you can sell it to Shabana, I don't care to have it in my name only because I really really don't care about properties”

The 1:12 p.m. email ends with the statement “Devs I just saw your e-mail, its OK I gave Shabana back her money. You can keep it devs I know it means a lot to you. I will move my stuff out in April. I only wanted the house for you devs.“

d. At 1:29 p.m. Anthony sends another email which states: “Devs I care about that house … can we please just get the sale done”

e. At 2:14 p.m. a $1,000 email transfer from Amanda to Anthony is successfully deposited.

f. At 2:34 p.m. Anthony emails “Devs did you only stay with me because of the house bc you wanted to keep it as a rental. Can we please just get this done. Please let me know I don't [sic] shabana's credit to get hit for no reason. Devs shes a nice girl please can I do this. Devs its my sister, please. [sic]”

g. At 3:11 p.m. a $1,000 email transfer from Anthony to Amanda is successfully deposited with a message “Devs can we please just get this out of the way”

h. At 3:21 p.m. Amanda emails “Fine I’m good with the current APS, no amendments.

I'm not giving up my place for next to nothing for some people that have so much and want to take away the one thing that I have.

If you can't afford it at that price then don't buy it or sell your damn condo to buy it. I think I've been too nice to you with all your shit and this police stuff.”

i. At 4:02 p.m. Anthony emails Amanda: “Devs you said the 650k was ok. I don’t know why your [sic] being like this I was just doing th [sic] 727k to make things a little easier for me ... I don’t know why you want me to suffer so much. You didn’t have to call the police I just wanted to talk to you. I had to go to jail because I said it was ok that you cheated on me and I wanted to be with you. I don’t know why you hate me so much. I don’t know why this house and money stuff matters to you so much. I really think you would rather see me dead because you think I want to take away something form you.… I’m going to send the amendment next week because you said you were ok with the 650k if you want to sign it or not is up to you…. I got a call from doctors last thurday, I went a week before to see if I could have kids I had to give sample. I was scared bc I thought I let you down that we couldn’t have kids and wanted to know. I decided before that if the test came back ok I would still try to be with you bc I love you and want to have a family with you. If the test came back bad then I would just leave you alone… I couldn’t even enjoy my birthday bc you didn’t want to take 2 minutes to talk to me or even see me. I didn’t even want to live the morning of and the only reason I pushed was to think of a way to see you. I would come home from work and just want to sit beside you and you wouldn’t even let me do that. And all I wanted from all of this was just a hug when I got home and a kiss. I don’t think this is the right kind of life for someone to live.”

[57] It is also undisputed that Anthony transferred back to Amanda the same amount within hours thereafter. In his factum, Plaintiff’s counsel argued that this meant Amanda retained the deposit, having not returned it, and was therefore bound to complete the agreement. This argument was not pursued on the motion, and is, in any event, contradicted by the evidence.

[58] I find that in the above exchanges of emails on February 18, 2021, Amanda was prepared to walk away from the agreement and in fact returned the $1,000 deposit which confirmed her position. Anthony, a licensed realtor, had indicated that “its ok I gave Shabana back her money”, meaning that he had returned her deposit money back to her.

[59] At that point, Amanda could reasonably conclude that the deal was at an end. Anthony then pushed her to confirm she would go through with it thereafter, and responded “fine I’m good with the current APS”, but went on to emphasize that the purchase price was non-negotiable. (“Fine I’m good with the current APS, no amendments. I'm not giving up my place for next to nothing … If you can't afford it at that price then don't buy it or sell your damn condo to buy it…”)

[60] Anthony’s email reply of 4:02 p.m. does not affirm his intention to go through with the “current APS” whch had been agreed. He immediately responds “Devs you said the 650k was OK”, a reference to a purchase price discussed some months earlier. His email goes on to reference personal issues of his mental health, fertility testing he recently underwent regarding his desire to have a family with Amanda, and other matters irrelevant to the APS.

[61] On the basis of the exchange on February 18, 2021, I find that Amanda repudiated the agreement with the return of the deposit. Anthony’s email assuring Amanda that Shabana had her money back, and that “its OK” in this context gives me the basis to find that he accepted that she no longer wanted to sell the Property. In communicating in this manner, I find he accepted Amanda’s repudiation of the contract, and the agreement came to an end. I find that Anthony’s assurance that he gave Shabana her money back was reasonably understood to confirm that the deal – his agreement, through Shabana, to purchase the Property for $727,000, was at an end.

[62] Thereafter, Amanda's actions were also consistent. Amanda's return of the deposit was followed by her actions of non-engagement with Anthony's attempts to re-negotiate. Having learned that even with a non-arm’s-length purchase price in the APS, Anthony wanted a further price reduction, Amanda stopped engaging with him regarding sale of her Property.

[63] To the extent that Amanda’s subsequent emails of the same afternoon assert a willingness to honour the $727,000 purchase price and still sell to Anthony via Shabana, it is Anthony who then repudiates the price as fundamental term of the contract. By reverting to reliance on “650k” statements of potential value from earlier negotiations, and proposing to amend the purchase price, Anthony has confirmed that for his own reasons, the agreement is indeed at an end for him too.

[64] Certainly the February 18, 2021 emails between Anthony and Amanda can be read with different emphases. At the end of the exchanges excerpted above, however, I find that neither party was prepared to pursue completion of the APS, albeit for different reasons.

[65] For the foregoing reasons, I find on the evidence that both parties had communicated to the other that the APS as drafted was not acceptable to them, and they were not prepared to conclude it. The APS came to an end on February 18, 2021.

Issue 3 – Is Shabana entitled to specific performance without tender?

[66] I have found that as a result of the communications and actions betweeen Anthony and Amanda on February 18, 2021, the APS executed on February 16, 2021 by Shabana and Amanda came to an end.

[67] On this motion Shabana argues that that the agreement was still alive after February 18, 2022. I have found for the reasons above that the agreement had come to an end by that point. Whether the details and significance of the communications and return of deposit were communicated to Shabana, or to Mr. Alter, who appeared on her behalf on the motion, and whose letters were entered into evidence regarding alleged willingness of Shabana to close the transaction as purchaser, I cannot determine on the record filed.

[68] In any event of my conclusion on Issue 2, however, I note that the evidence establishes that Shabana did not in fact take the steps required under the APS to waive the Buyer’s conditions as required.

[69] It is admitted that although Shabana argues that she was prepared to close, she did not tender.

[70] Shabana’s counsel agreed at the hearing that Shabana did not, in fact, tender on closing, and sought instead to rely on Amanda’s repudiation of the agreement as the basis on which to close without tendering.

[71] I reject this argument for the following reasons:

a. Anthony was the realtor representing Shabana, and at no time did he take the position that Shabana wanted to close;

b. To the contrary, he was trying to negotiate for a lower price, had treated the contract as though it had ended, and did not signal a belief in anything otherwise;

c. It is reasonable for Amanda to continue to rely on the acceptance of the deposit’s return.

[72] None of the authorities filed on the Plaintiff’s motion support the availability of specific performance of an agreement of purchase and sale without tender where a seller returns a deposit and buyer fails to waive conditions or tender.

[73] For the foregoing reasons, I find that the Plaintiff is not entitled to specific performance of the APS.

Issue 4: Is the APS unenforceable by reason of Anthony’s abuse of Amanda?

[74] It is unnecessary for me to decide this issue, having found that the APS came to an end of February 18, 2021.

[75] It is, nonetheless, appropriate to comment on the evidence and argument relating to Anthony’s harassment of Amanda, and his repeated breaches of his terms of release, over the months in which they negotiated the sale of her Property.

[76] I reviewed the record and find Anthony's behavior toward Amanda persistently disrespectful and intimidating. His complete refusal to accept the reality of her having moved on with her life was evidenced repeatedly in his emails.

[77] His emails ran to dozens of lines of “stream of consciousness” thinking. His emails asserting his love and devotion alternated with vague and sometimes direct threats of legal consequences if she did not reconcile with him. He also denigrated her with respect to her relationship choices following their breakup.

[78] Despite this toxic context of unwanted communications from Anthony, Amanda maintained a professional focus on the terms of sale. I have found on the evidence that when she drafted and sent the final offer to Anthony, Amanda had made her own decision as to the terms she could accept for the sale of the Property, and she was prepared to honour those terms once she signed the APS.

[79] Amanda’s counsel urged the Court to find that, at the time she sent the APS to Anthony and Shabana, Amanda had lost her capacity to make an independent decision in her own economic interests. I decline to make that finding in the circumstances of this case.

[80] Whether Amanda’s strength came from her professional experience with stressful real estate negotiation or some other source is not clear on the record. Despite the context of Anthony’s near-constant pressure on her, however, Amanda was able to negotiate in her own interests to conclude a deal she could live with.

[81] Consistent with that same strength, Amanda was able to recognize, after the APS was signed, that Anthony was not willing to “lose” her, and would keep engaging with her regardless of her trying to move on with her life.

[82] At that point, Amanda returned the deposit. As one real estate professional dealing with another, Amanda was aware of the significance of the return of a deposit as a signal of contract repudiation in the real estate context. After returning the deposit, Amanda walked away. These actions were strong, consistent, and demonstrably within Amanda’s capacity.

[83] For the reasons given, I have found that a valid APS was created. However, had Amanda not taken the clear step of returning the deposit, and had that deposit not been accepted, the evidence would also have supported a finding that Anthony’s conduct within two days of the execution of the APS amounted to the Plaintiff’s repudiation of the agreement by refusal to accept the purchase price of $727,000.

Conclusion:

[84] The issues for determination are:

Issue 1: Did the parties in fact make an agreement? Answer, yes.

Issue 2: Did the agreement come to an end at the time of return of Shabana’s deposit? Answer, following from the above conclusion, is no.

Issue 3: Is Shabana entitled to specific performance without tender? Answer, no.

Issue 4: is the APS unenforceable by reason of Anthony’s abuse of Amanda? Answer, no.

[85] For the reasons above, judgment is granted in favour of the Defendant Amanda Dhanraj. The Plaintiff Shabana Shiwprashad’s claim, and her motion for summary judgment, are dismissed.

[86] The agreement of purchase and sale having come to an end, there remains no triable issue as to whether Shabana has an interest in land. The CPL shall be discharged.

Costs:

[87] Both parties sought their costs if successful. Each tendered a cost outline at the conclusion of argument.

[88] The Defendant was fully successful in dismissing the action. She argues that in the circumstances of this case, a substantial indemnity scale of costs is appropriate.

[89] Modern costs rules are designed to foster three fundamental purposes: (1) to partially indemnify successful litigants for the cost of litigation; (2) to encourage settlement; and (3) to discourage and sanction inappropriate behaviour by litigants: Fong v. Chan, 1999 CanLII 2052 (ON CA) at para. 22.

[90] With respect to the third factor,costs on an elevated scale are warranted only in exceptional cases, including where it is necessary to indicate the court’s disapproval of a party’s “reprehensible conduct, either in the circumstances giving rise to the cause of action, or in the proceedings, which makes such costs desirable as a form of chastisement.”: Mortimer v. Cameron (1994), 1994 CanLII 10998 (ON CA) at p. 23.

[91] In Davies v. Clarington (Municipality) et al., 2009 ONCA 722 the Court of Appeal emphasized, with reference to the Supreme Court of Canada’s decision in Young v. Young, 1993 CanLII 34 (SCC), which Davies quotes at para. 29: elevated costs are warranted “only where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties.” [at para. 29].

[92] I have no difficulty in finding that Anthony’s conduct, referenced above in these reasons, is reprehensible such that it should attract a substantial indemnity scale of costs.

[93] Specifically, the tenor and frequency of Anthony’s unwanted personal and disrespectful communications to his ex-girlfriend during the process of negotiation of the APS, which were additionally illegal as breaches of his terms of interim release, are properly characterized as outrageous. His continuation of an action against Amanda, concealing himself behind his sister as nominal purchaser, is amounted to a thinly veiled continuing effort to harass Amanda after she refused to reconcile with him.

[94] Having found substantial indemnity costs are warranted for the reasons given, I turn now to the quantum of costs sought.

[95] The Defendant’s substantial indemnity costs total $39,871. I reviewed her costs outline and found it reasonable as to hourly rates claimed, steps taken, and hours spent.

[96] I have some reduction, however, for the fact that all work was performed by counsel and charged at counsel rates, including steps which would routinely be performed and charged at lower law clerk or support staff rates.

[97] Costs awards, at the end of the day, should reflect “what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties”: see Boucher v. Public Accountants Council for the Province of Ontario, 2004 CanLII 14579 (ON CA) at para. 24.

[98] In this case I note that the Plaintiff’s partial indemity costs were only $5,000 lower than the Defendant’s substantial indemnity costs of $34,816. It is therefore reasonable to conclude that the costs sought were in the range of what the Plaintiff would have expected to pay if unsuccessful.

[99] Considering the purpose of cost awards in civil matters and the legal framework described above, an appropriate award of costs in this case is $37,500.

[100] Costs are therefore fixed and payable by Shabana Shiwprashad to Amanda Dhanraj in the amount of $35,700, inclusive of fees, disbursements and all taxes.

Order:

[101] The Defendant’s motion for summary judgment is hereby granted. The Plaintiff’s claim is dismissed.

[102] The Plaintiff’s motion for summary judgment is dismissed.

[103] An order shall go discharging the Certificate of Pending litigation registered against 7557 Lully Court, Mississauga as Instrument #PR3852994;

[104] Costs of $37,500 payable by the Plaintiff to the Defendant within 30 days.

McSWEENEY J.

RELEASED: December 30, 2022

COURT FILE NO.: CV-21-1280

DATE: 2022 12 30

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: SHABANA SHIWPRASHAD v. AMANDA DHANRAJ

BEFORE: McSWEENEY J.

COUNSEL: M. Alter, for the Plaintiff

M. Peters, for the Defendant

HEARD: March 23, 2022

REASONS FOR DECISION

McSWEENEY J

Released: December 30, 2022