Thangarasa v. Aziz , 2022 ONSC 6355

Superior Court of Justice – Ontario

NEWMARKET COURT FILE NO.: CV-17-133403-00 DATE: 2022-11-10

BETWEEN:

Parasmeswaran Thangarasa Plaintiff

– and –

Imran Aziz Defendant

Counsel: David J. McGee for the Plaintiff Ayaz Mehdi for the Defendant

Heard: October 19, 2022, virtually

DECISION FROM MOTION FOR SUMMARY JUDGMENT

SUTHERLAND J.:

Overview

1The plaintiff has brought a motion for summary judgment. The plaintiff seeks damages in the sum of $279,392.33, prejudgment and post judgment interest at the rate in accordance with the Courts of Justice Act¹ and a declaration that the defendant has forfeited to the plaintiff the deposit of $50,000 with an accrued interest.

2The defendant opposes the motion.

3The proceeding arises from an aborted real estate transaction by the defendant’s failure to complete the purchase of property from the plaintiff.

4For the reasons to follow, I grant summary judgment in favour of the plaintiff.

Factual Background

5The plaintiff and the defendant entered into an Agreement of Purchase and Sale dated May 3, 2017 (the “APS”) for the defendant to purchase a home municipally located at 1316 Drummond Drive, Vaughan, Ontario (the “Home”). The defendant executed the APS on May 3, 2017 and presented to the plaintiff for acceptance. The plaintiff accepted and signed the APS on May 4, 2017.

6The terms of the APS included:

1. The purchase price was $1,180,000, with a deposit of $50,000.
2. Time was of the essence.
3. Irrevocable date of May 4, 2017, at 1:00 p.m. and requisition date for title search July 14, 2017.
4. Closing date of July 27, 2017.
5. Conditions concerning financing and solicitor review were waived in that the Plaintiff was not willing to accept those conditions.
6. The defendant agreed on closing, to pay the purchase funds, subject to adjustments, by way of a bank draft or certified cheque.

7The APS did not include any condition(s) concerning an inspection or financing or an obligation to produce a survey.

8The Multiple Listing Service (“MLS”) described the Lot as 51 x 105 feet.

9The APS indicated that the frontage of the Home was 51 feet more or less with a depth of 105 feet, more or less.

10The APS included the following terms:

1. The deposit is to be held in trust pending the completion or other termination of the APS and is to be credited toward the purchase price on completion.
2. The seller and purchaser agree and/or acknowledge that all measurements and information provided by Homelife Today Realty Ltd. brokerage on the MLS listing have been provided for information only and as such, the accuracy is not warranted. Schedule “B” included the following terms:

The Seller(s) and the Buyer(s) agree and/or acknowledge that all measurements and information provided by Home Today Realty Ltd., Brokerage on the MLS listing, feature here, and any other marketing materials have been obtained from sources deemed reliable, however, they have been provided for information purposes only and as such, does not warrant their accuracy. The Buyer(s) is advised to verify any measurements or information upon which he or she relying.

11Before executing the APS, the defendant walked the lot of the Home with his spouse and his real estate agent (“agent”). The agent drafted the APS.

12On May 5, 2017, the defendant’s agent informed the plaintiff that she conducted a search of the Home on the Teranet Geo Warehouse online data base. The database showed that the lot frontage was 16.40 feet and not 51 feet. The agent indicated to the plaintiff that she did not believe the information in the database was correct, for such measurement is more typical of a townhouse not a detached home with a two-car garage.

13Neither party provided a survey of the Home’s lot size for this motion.

14The plaintiff emptied the Home of contents on July 27, 2017.

15Prior to listing the Home for sale, the plaintiff purchased another home. The plaintiff intended to use the proceeds of the sale of the Home for that purchase.

16On July 10, 2017, the defendant’s lawyer requested a survey. The plaintiff refused such requisition given that there was no requirement for a survey in the APS.

17The plaintiff indicated that on July 13, 2017, the defendant advised that he was having difficulty obtaining financing.

18By letter dated July 17, 2017, the defendant’s lawyer indicated to the plaintiff that the defendant was having difficulty obtaining financing and would be unable to complete the transaction unless the purchase price was reduced by $100,000.

19By lawyer letter dated July 18, 2017, the plaintiff responded that they would reduce the price by $50,000 or take back a mortgage for $100,000 with the purchase price remaining unchanged.

20The defendant obtained a new lawyer and his new lawyer proposed an even greater reduction in price.

21The plaintiff’s lawyer sent the closing documents on July 19, 2017.

22By letter dated July 21, 2017, the defendant’s lawyer sent a requisition asking that the plaintiff provide proof of compliance with certain bylaws and raising issues related to the basement renovations, building permits, and the frontage of the lot. The defendant requested a reduction of $130,000.

23The plaintiff’s lawyer denied the defendant’s requests but reiterated the plaintiff’s previous offer to reduce the purchase price.

24By letter dated July 24, 2017, the plaintiff’s lawyer forwarded the discharge statement and direction to discharge the mortgage and indicated that the plaintiff was willing to reduce the price to 1.105 million dollars.

25In reply, the defendant’s lawyer indicated that the defendant wanted to terminate the APS “because the plaintiff could convey much less land” than the defendant had agreed to purchase.

26The APS did not close. The plaintiff’s lawyer tendered upon the defendant’s lawyer on July 27, 2017, and the plaintiff was ready, willing, and able to close the transaction.

27On July 8, 2017, the defendant signed an exclusive buyer presentation agreement to locate a home in the Vaughan area for the period of July 8 to August 30, 2017.

28The defendant entered into another Agreement of Purchase and Sale to purchase 39 Rosanna Crescent on August 8, 2017, for the purchase price of $990,000 with a deposit of $50,000. The lot size of this property was 38.37 feet by 114.3 feet. This Agreement of Purchase and Sale closed, and the defendant presently resides in this property with his family.

29The plaintiff re-listed the Home for sale. The Home’s sale and closing took place on September 28, 2017, at a price of $950,000 with a $50,000 deposit.

The Pleadings

30The Statement of Claim was issued on November 9, 2017 (the “Claim”). The Claim seeks damages in the amount of $500,000 plus special damages and a forfeiture of the deposit. The Claim also requests pre and post judgment interest pursuant the Courts of Justice Act.

31The defendant served a Statement of Defence and Counterclaim dated December 11, 2017 (the Defence). The defendant pleads that the plaintiff could not convey the frontage of the Home that was contracted for in the APS, namely 51 feet. The defendant further pleads that the plaintiff breached the APS and that he is not liable for any damages. If he is liable for damages, he pleads that the plaintiff did not suffer any damages and puts the plaintiff to the strict proof thereof. The defendant also claims return of the deposit and legal costs in the amount of $30,000. The defendant claims that he was not aware that the plaintiff required bridge financing or that the plaintiff purchased a property prior to listing the Home. The defendant did not plead mitigation of damages.

Legal Principles of Summary Judgment

32Pursuant to r. 20.01 of the Rules of Civil Procedure² (the “Rules”), after the close of pleadings, the Court must grant summary judgment if it is satisfied there is no genuine issue requiring a trial.

33There will be no genuine issue requiring a trial when a Court is able to reach a fair and just determination on the merits. A fair and just determination on the merits is achieved when:

(a) The process allows the judge to make necessary findings of fact.

(b) The process allows the judge to apply the law to the facts; and,

(c) It is a proportionate and more expeditious and less expensive means to achieve a just result.³

34On a motion for summary judgment, the Court must first determine if there is a genuine issue requiring a trial based on the evidence given on the motion. If there appears to be a genuine issue requiring a trial, the Court will then determine if the need for a trial can be avoided using the powers under r. 20.04(2.1) of the Rules weighing the evidence, evaluating the credibility of the deponents, and drawing any reasonable inference from the evidence, unless it is in the interest of justice for these powers to be exercised only at a trial. These powers are presumptively available to the judge to give effect to the goals of timeliness, affordability, and proportionality in review of the litigation.⁴

35In contrast, the responding party must put their “best foot forward” or risk summary judgment being awarded against them.⁵ The responding party bears the evidentiary burden to present affidavit material or other evidence to support the allegations or denials in their pleading, for the Court can assume that both parties have submitted all of the evidence each intends to rely upon.⁶ Absent this evidence, an adverse inference can be drawn.⁷

Issues

36The issues to be determined are:

a) Is there a genuine issue requiring a trial?

b) Did the plaintiff suffer damages and did the plaintiff fail to mitigate his damages?

c) Did the plaintiff fail to mitigate his damages?

d) Is the deposit forfeited?

A. Is there a genuine issue requiring a trial?

37The defendant argues that there are genuine issues requiring a trial. He contends that these issues include whether the APS was breached by the plaintiff for not providing a lot size with a frontage of 51 feet along with misrepresentation of the frontage by the plaintiff. He also contends that the plaintiff did not incur any damages and failed to mitigate his damages.

38Considering the submission made and the evidence presented on this motion, I am not persuaded that there is a genuine issue requiring a trial on the issues put forth by the defendant. I will deal with each separately.

B. Plaintiff breached the APS and misrepresentation

39It is trite to say the APS defines the terms of the agreement between the plaintiff and the defendant.

40The APS makes it clear that the defendant is not to rely on any measurements and that the defendant is to verify any measurement or information he intends to rely upon. The defendant, his spouse and his agent viewed the lot of the Home before presenting the APS for acceptance.

41There is no reliable evidence provided that indicates that the lot’s frontage is not 51 feet or is some other measurement. The evidence provided is that data obtained from the Teranet Geo Warehouse online database shows that the frontage is 16.40 feet. The evidence indicates that neither the defendant nor his agent relied on this data and that they found the data suspect.

42Accordingly, there is no reliable evidence provided that indicates that the frontage is not 51 feet or is some other measurement.

43Moreover, there is no evidence provided that the frontage of 51 feet is a term that was materially significant to the defendant, such that if the frontage was less than 51 feet he did not want the Home. The defendant, his spouse, and his agent walked the lot. There is no evidence, either in the APS or some other representation, that the frontage was materially significant to the defendant. It appears to me that the frontage was not materially significant to the defendant for he purchased a property at a lower amount with much less frontage.

44I am not convinced on the balance of probabilities that the defendant did not obtain what he bargained for in the APS given the absence of evidence that the frontage of 51 feet was not correct in the APS or that some other measurement for the frontage was materially significant to the defendant’s decision to present the APS to the plaintiff for acceptance.

45It appears to me that the issue was that the defendant could not obtain financing and could not close the transaction outlined in the APS.

46Again, this statement is supported by the fact that the defendant purchased another property in the same area with less frontage for a lower purchase price.

47The evidence presented, which the Court can assume is the full evidence of the parties, fails to verify the Home’s frontage and the significance of this frontage to the defendant and the purchase price. In addition, the APS is clear that any reliance of measurement by the defendant must be verified by the defendant. Hence, I am not persuaded that there is an issue that the frontage of the Home and its reliance on by the defendant for the purchase of the Home is an issue that requires a trial.⁸

Misrepresentation

48The defendant argues that there is an issue of misrepresentation on part of the plaintiff in the frontage of the Home that requires a trial. I do not agree.

49For misrepresentation to be a viable contention, the defendant must prove on the balance of probabilities that the plaintiff made a false statement that was material and induced the defendant to enter the contract. If the defendant can show such a misrepresentation, the contract may be rescinded in favour of the innocent party.⁹

50The defendant argues that the frontage of 51 feet in the APS was a misrepresentation that he relied upon.

51On the evidence, as already stated above, there is no factual basis for this contention. There is no evidence presented that the defendant relied upon the frontage indicated in the APS. On the contrary, the term in Schedule “B” of the APS puts the obligation upon the defendant to verify any measurement or information he or she intends to rely upon. Such a term in the APS, in my view, removes any reliance on the frontage measurement or information in the APS by the defendant. I find the factual situation in this case distinguishable to the factual situation in Hosseinzadeh¹⁰ where there was evidence presented that the purchaser relied upon the measurement of the frontage in the APS and the handwritten term included by the vendor was “To be verified.”

52I am of the view that these significant factual differences between this matter and Hosseinzade, distinguishes the outcome as determined by the Ontario Court of Appeal. In this matter, the term is clear that the obligation is on the defendant to verify if he or she intends to rely on any measurements purchaser which obligation was included in the APS by the defendant.

53In contrast, the handwritten term placed by the vendor that the vendor attempted to rely upon in Hosseinzadeh simply stated “To be Verified.” This term did not clearly state that the obligation is on the purchaser to verify any measurement that the purchaser intends to rely. Notwithstanding that there was no evidence presented that the defendant relied on the frontage measurement in the APS, I am of the view that this term extinguishes any reliance on the measurement of the frontage in the APS.

54Thus, I conclude that there is no issue requiring a trial on the contention of misrepresentation by the plaintiff.

C. Did the plaintiff suffer damages and fail to mitigate damages?

55It is not disputed that on a breach of contract action, the innocent party is entitled to be put in the position they would have been had the contract not been breached and was performed. The assessment of the damages that may be due to the innocent party do not include avoidable losses which would increase the amount of the damages assessed and payable to the innocent party. The innocent party has an obligation to mitigate. The obligation encompasses that the innocent party must take reasonable steps to avoid the accumulation of damages. In effect, the innocent party should not receive more than they would have received if they acted reasonably.¹¹

56The Court is focused on quantifying damages awarded to the innocent party for the wrongs of the breaching party and not for the innocent party’s unreasonable steps or inaction.¹²

57In the case of a failure to close a real estate transaction, the Court reviews the circumstances of the transaction, the failure to close, and the party that breached the contract. The Court also reviews the circumstances and conduct of the innocent and defaulting party after the breach. Courts have considered numerous factors to determine whether the innocent party took reasonable steps to mitigate the losses incurred.¹³ These factors include:

a) What were the circumstances of the real estate market at the time? b) How long did it take for the innocent party to put the property up for sale? c) How long was the property up for sale before it was sold? d) Was the property marketed and how was it marketed? e) What was the sale price that the property was relisted for? f) How was the property exposed for sale? g) Were there any price reductions? If so, how many and what were the price reductions? h) Were there any other offers to purchase the property? i) How many offers were made and what were the particulars of those offers?

58The onus is on the party disputing the damages claimed to provide evidence to prove on the balance of probabilities that the innocent party failed to mitigate their damages and did not act reasonably, in that the damages sought do not reasonably flow from the breach. The onus remains upon the innocent party to provide evidence that proves on the balance of probabilities that the damages sought are reasonable and flow from the breach claimed. In an aborted real estate transaction, this can include the difference between the purchase price by the defaulting party and the final market value of the property when that property is sold by the innocent party to an arms length purchaser at the time the innocent party seeks assessment of damages, along with any reasonable carrying costs.¹⁴

59The innocent party does not have a positive duty to mitigate but failure to do so is to be taken into consideration when the Court determines damages.¹⁵

60The defendant argues that the plaintiff did not act reasonably and did not mitigate his damages. However, the defendant did not provide any evidence to support this contention. The defendant has not provided any evidence that the price the plaintiff eventually sold the Home for was not a reasonable market value. The defendant did not provide any evidence to indicate that the steps taken by the plaintiff on relisting and selling the Home was not reasonable.

61Given the lack of evidence presented by the defendant, the Court is left with relying on the price for which the plaintiff sold the Home. I am reminded of the statements of the Nova Scotia Court of Appeal in Royal Bank v. Marjen Investments Ltd.¹⁶ where the Court was tasked in determining whether the trial judge erred in determining market value in a foreclosure proceeding:

…When the mortgagee has purchased the property at the Sheriff’s sale, and applies for a deficiency judgment, prior to resale, it is reasonable for the Court to look to objective evidence of value [citation omitted]. It may be that the price paid by the mortgagee at the sale is an acceptable amount, in particular where there has been competitive bidding. On the other hand, the purchase price may be nominal, in which case, it is appropriate to assign a more realistic value. This ensures the mortgagee does not, after obtaining a deficiency judgment, resell the property for an amount greater than the price paid at the Sheriff’s sale and thereby effect double recovery. Where the property has not been resold, the best evidence of value is generally established through appraisals. When the property has been sold, however, and particularly, when subjected to vigorous marketing efforts, as in Offman, supra, the Court should generally not depart from the selling price. Appraisal reports are a best guess, albeit by a person experienced in the real estate field. It is the market that actually determines the value of the property. [emphasis in original]

62The lack of an evidentiary record by the defendant leaves the Court with little option but to accept the value that an innocent third party paid for the Home. Accordingly, I do not agree with the defendant’s assertion that the plaintiff failed to mitigate his damages.

Quantum of Damages

63The plaintiff seeks damages as follows:

1. Difference between purchase price in the APS and the price sold: ($1,180,000-$950,00)--$230,000.
2. Loss on income from the sale proceeds based on a 5-year GIC @ 3.25%--$6,619.32.
3. Loss of investment income on reduced proceeds of sale based on a 5-year GIC @ 3%--$34,500.
4. Additional Mortgage expenses on the Home due to not closing--$4,281.48.
5. Additional property taxes due to not closing--$868.77.
6. Home Insurance incurred for not closing--$194.04.
7. Utilities paid for not closing--$227.90
8. Paid Enbridge Gas for not closing--$128.37.
9. Additional home maintenance on Home due to not closing--$200
10. Travel Expenses to travel to the property from July 27, 2017, to September 21, 2017--$200.
11. Legal and Conveyancing costs paid for aborted sale on July 27, 2017-- $2,172.45.

Total of $279,392.33.

64The plaintiff is entitled to damages that would put him in the same place he would have been if the Home closed, and he received the proceeds of sale per the APS.

65In that regard, I am satisfied that the damages claimed in items 1, 4, 5, 6, 7, 8, and 11 are recoverable. However, I am not convinced that the amounts claimed in items 2, 3 9 and 10 are such damages.

66First on the amounts I find recoverable, I determine that these amounts are directly related to the failure of the defendant to close the purchase of the Home and provide the purchase price. For if the defendant did not breach the APS, the plaintiff would not be required to pay any further expenses on the Home, and he would not have suffered a decrease in the sale price. I also found those damages claimed reasonable.

67For items, 2, 3 and 10, I am not so convinced. For items 2 and 3, there is no evidence that the plaintiff would have taken the proceeds and invested them rather than use the funds to purchase their new home. Further the amounts claimed by the interest rate used, there is no evidence to support those rates. No evidence has been provided on what is the going rate and the necessity of a term of five years. Taken all together, I am not persuaded that the damages claimed are related to the defendant’s failure to purchase the Home.

68Concerning the travel expenses and yard keeping, I realize that the amount is not significant but there is no break down on how the amounts were calculated.

69Hence, I do not find the amounts claimed for items 2,3 and 10 attributable to the breach of the APS and do not allow the amounts requested.

70Thus, I find that the amount for damages is $237,923.01.

D. Forfeiture of the Deposit

71The plaintiff contends that the deposit should be forfeited and should not be deducted from the damage amount due to the fact the defendant breached the APS and failed to pay the purchase price.

72The defendant did not provide any submissions on this point; still, it is safe to say that the opposing position would be that the deposit should not be forfeited and should be taken into consideration on any damages assessed by the Court.

73I do not accept the plaintiff’s contention and determine that the Ontario Court of Appeal decisions in Azzarello v. Shawqiv¹⁷ and Bang v. Sebastian¹⁸ are determinative of the issue. As the Court of Appeal stated in reversing the trial judge in Azzarello on the issue of forfeiture of the deposit:

[53] I agree with this analysis. While the agreement only specifically calls for the deposit to be credited to the purchase price on completion of the agreement, the measure of damages is based on the difference between the purchase price and the lesser amount that the property sold for after the purchaser’s default. In other words, it is based on the vendor receiving the purchase price that was bargained for. One can infer that the intent of the parties was that the deposit be applied to the purchase price whether received on completion or as damages.

[54] I also agree that the cases discussed above, including Benedetto, where the deposit is forfeited because it is not just part payment but also a security mechanism to incentivize the purchaser to complete the transaction, explain why the deposit is forfeited when the vendor suffers no loss. The respondents point to 2019 ONCA 820 Page: 20 one sentence in the Benedetto decision where the court states that “a forfeited deposit does not constitute damages for breach of contract but stands as security for the performance of the contract”: at para. 14. That statement is part of the explanation for the forfeiture of the deposit where there is no loss. However, where there is a loss, the deposit is treated as part payment for the damages suffered because of the loss.

74Since Azzarello, there have been numerous decisions that have found that a deposit is not forfeited but credited to the loss, the damages, found.¹⁹

75The APS clearly indicates that the deposit is to be credited to the purchase price. I see no reason that differentiates the case at bar from the statements made by the Court of Appeal in Azzarello and Bang.

76Therefore, I conclude that given the evidentiary record on this motion, the deposit shall not be forfeited and should be credited to the damages assessed.

Conclusion and Disposition

77I find in favour of the plaintiff. I do not accept that there are issues requiring a trial. I am satisfied that I am able to make a just determination on the merits based on the evidence presented.

78I therefore grant the following judgment:

1. The defendant, Imran Aziz shall pay to the plaintiff, Parasmeswaran Thangarasa, the sum of $187,923.01 plus prejudgment interest.
2. Post judgment interest as prescribed in the Courts of Justice Act.

Costs and Prejudgment Interest

76If the parties cannot agree on costs or the calculation of prejudgment interest, the plaintiff is to serve and file its submissions for costs and prejudgment interest within 30 days from the date of this Decision, and the defendant will have 30 days thereafter to serve and file their submissions. The submission is to be no more than five pages, double spaced, exclusive of any cost outline and offers to settle. Any case law is to be hyperlinked in the submissions. There is no right to reply. Submissions are to be filed with the Court. If no submissions are received within the time set out herein, an order will be made that there will be no costs.

Footnotes

1. 1R.S.O. 1990, c. C.43.
2. 2R.R.O. 1990, Reg. 194.
3. 3Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 SCR 87, at para. 49.
4. 4Hryniak at para. 65; Canaccord Genuity Corp. v. Pilot, 2015 ONCA 716, at para. 31.
5. 5Mazza v. Ornge Corporate Services Inc., 2016 ONCA 753, at para. 9; Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, at para. 32, aff’d 2014 ONCA 878, leave to appeal refused, [2015] S.C.C.A. No. 97.
6. 61061590 Ontario Ltd. v. Ontario Jockey Club (1995), 1995 1686 (ON CA), 21 O.R. (3d) 547 (C.A.), at p. 557; 2313103 Ontario Inc. v. JM Food Services Ltd., 2015 ONSC 4029, at para. 40.
7. 7Vincorp Financial Ltd. et al. v. Hope’s Holdings Inc., 2010 ONSC 6819, 104 O.R. (3d) 538, at para 17; Parris v. Laidley, 2012 ONCA 755, at para. 2.
8. 8In Hosseinzadeh v. Pringle, 2018 ONSC 1947, rev’d 2018 ONCA 1020, the Court of Appeal reversed the motion Judges determination on the basis that there was evidence that the purchaser relied on the frontage set out in the APS and that the included term in the APS ”To be verified” did not extinguish that reliance.
9. 9Issa v. Wilson, 2020 ONCA 756, 456 D.L.R. (4th) 531, at para. 12.
10. 10Supra, note 8.
11. 11Michaels v. Red Deer College, 1975 15 (SCC), [1976] 2 S.C.R. 324, at p. 330; Asamera Oil Corporation Ltd. v. Sea Oil & General Corporation, 1978 16 (SCC), [1979] 1 S.C.R. 633, pp. 646-648; Southcott Estates Inc. v. Toronto Catholic District School Board, 2012 SCC 51, [2012] 2 S.C.R. 675, at paras. 23-24.
12. 12British Columbia v. Canadian Forest Products Ltd., 2004 SCC 38, [2004] 2 SCR 74, at para. 176.
13. 13See Cuero Lorens v. Carpenter, 2017 ONCA 109; Hargreaves v. Barr, 2010 BCCA 489; Gamoff v. Hu, 2018 ONSC 2172; Zou v. Sanyal, 2019 ONSC 738.
14. 14McKnight v. Morrison, 2019 ONSC 552, at paras. 46-47. See also Asamera Oil; Gamoff; Deco Homes (Richmond Hill) Inc. v. Serikov, 2021 ONSC 2079; Chang v. Hung, 2021 ONSC 8208.
15. 15McKnight, at paras. 46-47. See also Asamera Oil; Gamoff; Deco Homes; Chang.
16. 161998 NSCA 37, 164 N.S.R. (2d) 293, at para. 31.
17. 172019 ONCA 820, 439 D.L.R. (4th) 127, rev’g in part 2018 ONSC 5414, leave to appeal refused, [2019] S.C.C.A. No.521.
18. 182019 ONCA 501, aff’g 2018 ONSC 6226.
19. 19See Bilotta v. Booth, 2020 ONCA 522, 153 O.R. (3d) 210, at para. 28; Arista Homes (Kleinburg) Inc. v. Griu, 2022 ONSC 1614, at para. 36; 10068071 Canada Limited v. Bordbar, 2021 ONSC 4232, at paras. 38-48; Madison Homes v. Yiman Shi, 2020 ONSC 7810, at para. 37; Telsec Developments Ltd. v. Abstak Holdngs Inc., 2020 ABCA 40, 99 Alta. L.R. (6th) 1, at paras. 92-93, rev’g 2017 ABQB 801, 66 Alta. L.R. (6th) 334, leave to appeal to S.C.C. refused (July 16, 2020).