COURT FILE NO.: CV-21-663590

DATE: 20230824

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

VECTOR FINANCIAL SERVICES LIMITED

Plaintiff/Moving Party

– and –

CAN-CHINA REAL CAPITAL INC. and WEN XIANG (VICTOR) HUO

Defendants/Responding Parties

Nathaniel Read-Ellis, for the Plaintiff/Moving Party

Yonatan Lipetz, for the Defendants/Responding Parties

HEARD: February 22, 2023

a.p. ramsay j.

I. Introduction

[1] The underlying claim is for breach of a Commitment Letter evidencing a loan to be secured against the defendants’ real properties. The parties executed a commitment letter in January 2021. The plaintiff is seeking to recover fees and expenses under that agreement. The plaintiff was to provide the defendants with financing for the acquisition of property for the development of a multiunit residential property and to refinance another property already owned by the defendants. The plaintiff intended to syndicate the loan. Prior to and after the scheduled closing date, at the defendants’ initiative, the parties discussed extending the closing date, but no agreement was reached. The plaintiff subsequently terminated the commitment on the basis that the defendants were unable to close on the property to be acquired and to stand as security for the loan. No funds were advanced to the defendants. The plaintiff commenced this action for damages.

II. Nature of the Motion

[2] The plaintiff, Vector Financial Services Limited (“Vector”), brings this motion for summary judgment to recover amounts allegedly owing by the defendants Can-China Real Capital Inc. (“Can-China”) and Wen Xiang Huo (Mr. Huo) pursuant to a Commitment Letter to finance a commercial mortgage. Vector seeks judgment against the defendants, jointly and severally, for damages in the sum of $1,308,352.14, plus pre- and post-judgment interest in accordance with the Commitment Letter.

III. The Parties

[3] Vector is a private (non-bank) mortgage brokerage, lender, and administrator in the business of originating and administering mortgage loans in Ontario. Vector has been in business since 1969.

[4] The defendant Can-China is a “Borrower” under the Commitment Letter. The defendant, Mr. Huo, is the Director, President and Chairman of Can-China, and a Guarantor under the Commitment Letter. Both Can-China and Mr. Huo, individually and collectively, are referred to as “Borrower Entities” under the Commitment Letter.

IV. Background Facts

[5] In late 2020, the defendants wanted to undertake a real estate development on adjacent properties on Cross Avenue in Oakville, Ontario. In September 2020, Can-China entered into an agreement of purchase and sale to acquire 165 Cross Avenue. The defendants planned to build 786 residential units with a gross floor area of 744,000 square feet at 157 Cross Avenue and 165 Cross Avenue.

[6] The defendants were represented by a lawyer in connection with the purchase of 165 Cross Avenue by September 2020.

[7] Can-China, through its broker, Adit Kumar of Anbros Financial Corporation, approached Vector in or about January 2021 seeking a loan to finance the acquisition of the 165 Cross Avenue property and to partially refinance the property at 157 Cross Avenue. At the time, Can-China owned 157 Cross Avenue. The parties negotiated a loan in the amount of $22 million dollars, at rate of interest of the greater of the Prime Rate plus 6.50%, or 8.95%. Vector was to have priority to any other encumbrances. On January 15, 2021, the parties agreed to the terms of the Commitment Letter (it was later executed by the defendants on February 3, 2021) whereby Vector agreed to provide mortgage financing for the loan subject to the terms and conditions in the Commitment Letter. The loan was to be syndicated. The Commitment Letter sets out the obligations of both parties.

[8] The parties are defined in the Commitment Letter as follows:

• The “Lender” is defined in the Commitment Letter as “Vector Financial Services Limited its successors and assigns in its capacity as Lender and not as Administrator.”

• The “Borrower(s)’ is defined as “Can-China real capital Inc.”

• The “Beneficial Owner(s)” is defined as: “The Borrower is the nominee and bare trustee of the Property for and on behalf of the beneficial owner(s) listed below, and the Property is not recorded as an asset of the Borrower on its financial statements.

Beneficial Owner(s): TBD”

• The “Guarantor(s)” is defined as:

Mr. Wen Xiang (Victor) Huo

Each of the Borrower, Beneficial Owner, and Guarantor(s), individually and collectively, shall be known as the "Borrower Entity"

[9] The loan was to be secured against 157 Cross Avenue and 165 Cross Avenue.

[10] The defendants were to, and did provide, the plaintiff with a $40,000 deposit.

[11] There were two closing dates in the Commitment Letter: March 5, 2021, and an outside closing date of March 19, 2021.

[12] On March 2, 2021, Mr. Huo, the principal of Can-China, requested an extension of the closing date as he was having problems closing the property to be acquired.

[13] On March 3, 2021, Vector delivered a Waiver of Conditions.

[14] Both the March 5 and March 19, 2021 closing dates passed without the loan closing. The plaintiff, Vector, did not tender at any time.

[15] The loan did not close. The parties engaged in discussions in March 2021 and April 2021 regarding extending the closing date(s), but no agreement was reached.

[16] On May 3, 2021, counsel for Vector sent a demand letter to the defendants.

[17] No funds were ever advanced to the defendants.

V. Position of the Parties

i. The Plaintiff

[18] Vector argues that it is merely seeking to recover fees and interest payments stipulated in the Commitment Agreement and agreed to by the parties, as the defendants were unable to close the loan. Vector submits that Mr. Huo made numerous proposed changes to the Commitment Letter which were incorporated in the agreement. Vector submits that the defendants breached the agreement as they failed to close on the 165 Cross Avenue property, which was ultimately sold to a third party and could not stand as security for the loan.

[19] Vector argues that the terms of the agreement were negotiated by sophisticated, commercial parties with the benefit of independent legal advice, and must be enforced. Vector submits that the defendant Can-China failed to close on the mortgage through no fault of Vector, and as a result, the defendants are jointly and severally liable for the amounts set out below.

[20] Vector argues that having waived conditions, and the closing date of March 5, 2021 and the outside closing date of March 19, 2021 having passed without the defendants closing, the defendants are in breach of the agreement and, in the result, Vector submits that it is entitled to the following amounts, as liquidated damages, set out in the Commitment Letter:

a) A commitment fee in the amount of $300,000.

b) Six months interest in the amount of $985,000.

c) Reimbursement for certain third-party fees incurred by Vector in the amount of $10,926.66.

d) Reimbursement of legal fees for transactional counsel on the loan in the amount of $7,425.48.

ii. The Defendants

[21] The defendants oppose the motion on the basis that this matter is not appropriate for summary judgment, and the action has been brought in the wrong jurisdiction. The defendants argue that there are issues of credibility requiring a trial. The defendants submit that the plaintiff failed to act in good faith in refusing to extend the closing. The defendants also argue that Vector was not ready, willing and able to close Further, the defendants submit that the fees are an unenforceable penalty a common law, as they are not supported by any evidence of damages, nor are they a genuine pre-estimate of costs actually incurred. The defendants further submit that the excessive fee runs afoul of s. 8(1) of Interest Act, R.S.C. 1985, c. I-15.

[22] The defendants plead that: i) Vector was not ready willing and able to close the mortgage transaction on March 5, 2021; ii) it was understood that the deal would be closed on a date to be determined; iii) Vector acknowledged and accepted that the mortgage would only be able to close once the deal for 165 Cross was finalized; iv) Vector failed to act in good faith; v) Vector failed to mitigate its damages by waiting for the property to close.

VI. Issues to be determined

[23] The issues to be determined on this motion are as follows:

i. Has the motion been brought in the proper venue?

ii. Is this an appropriate case for summary judgment?

iii. Has the plaintiff failed to act in good faith?

iv. Was Vector ready, willing, and able to close on March 5, 2021?

v. Are the fees an unenforceable penalty?

VII. Disposition

[24] The motion for summary judgment is dismissed, for the reasons below.

VIII. Analysis

i. Has the motion been brought in the proper venue?

[25] The defendants argue that pursuant to Rule 13.1.01(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, any originating process that contains a claim relating to a mortgage must be brought in the jurisdiction in which the property is located. The contract which Vector seeks to enforce is the Commitment Letter which is a precursor to the mortgage loan agreement. No mortgage loan agreement was ever executed as Vector terminated the Commitment Letter. There is no action or claim relating to a mortgage, or payment of a mortgage debt or for possession of a mortgaged property.

[26] If I am wrong, I note that the statement of claim was issued on June 7, 2021. The statement of defence was delivered on July 28, 2021, and a Reply on September 20, 2021. The defendants did not bring a motion to change venue, despite alleging that the property which was to secure the mortgage is located in the Central West Judicial Region of Ontario, and further alleging that “this action should have been brought in the courts of Brampton, Milton, Orangeville or Owen Sound.”

ii. Is this an appropriate case for summary judgment?

Test for Summary Judgement

[27] Pursuant to r. 20.04(2)(a) of the Rules of Civil Procedure, 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.

[28] 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: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 34.

[29] The Supreme Court of Canada has stated that the motion judge, on a motion for summary judgment, should first determine if there is a genuine issue requiring trial based only on the evidence before the court, without using the new fact-finding powers: Hryniak, at para. 66.

[30] Rules 20.04(2.1) and (2.2) provide the motions judge with additional powers that may be used to determine whether there is a genuine issue that requires a trial. Rule 20.04(2.1) provides as follows:

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.

[31] If there appears to be a genuine issue requiring a trial, the court should determine if the need for a trial may be avoided by using the new powers under Rules 20.04(2.1) and (2.2): Hryniak, at para. 66.

[32] In exercising his or her power under subrule 20.04(2.1), the judge may weigh the evidence, evaluate the credibility of any deponent, and draw any reasonable inference from the evidence.

[33] However, the court’s fact-finding powers are discretionary under rules 20.04(2.1) and (2.2) and should not be exercised where it would be against the interest of justice to do so: Hryniak, at para. 45.

[34] There is no genuine issue requiring a trial under r. 20 when the judge can reach a fair and just determination on the merits. To do so, the process must: “(1) allow the judge to make the necessary findings of fact; (2) allow the judge to apply the law to the facts, and (3) be a proportionate, more expeditious and less expensive means to achieve a just result”: Hryniak, at para. 49.

[35] The defendant submits that summary judgement is not appropriate for this case. The defendant submits that there are serious issues of credibility that cannot be determined on the paper record alone. The plaintiff argues that there are no factual issues or issues of credibility nor, for that matter, any genuine issue of credibility requiring a trial. On the evidence before me, I do not find that there is a genuine issue requiring a trial regarding what the parties agreed was the closing date. There is no genuine issue for trial regarding the fact that the closing was not extended in writing, as stipulated by the Commitment Letter. However, I am not satisfied on the evidence, that there is no genuine issue requiring a trial with respect to the defence that Vector was not ready, willing, and able to close. Further, there may be a genuine issue requiring a trial with respect to whether the fees are a genuine pre-estimate of damages to be incurred by Vector. And while the defendants have not pled the affirmative defence of the fees and interest payments being an unenforceable penalty under the Interest Act, the defendants have raised it on this motion and given the decisions of the Court of Appeal in P.A.R.C.E.L. Inc. v. Acquaviva, 2015 ONCA 331, 385 D.L.R. (4^th) 742, also relied upon by the defendants, I am satisfied that, were the defendants to be granted an amendment to the statement of defence, there would a genuine issue for trial as to whether or not the fees and interest payment would be tantamount to a penalty. I will explain below.

[36] In support of the motion, Vector has filed an affidavit of Noah Mintz, the Managing Director of Vector Financial Services Limited. In response, the defendants filed an affidavit of Mr. Huo, the principal of Can-China, and guarantor on the Commitment Letter.

[37] Mr. Huo indicates that as the defendants were uncertain as to when the official closing would be, he was advised by Vector that there would be flexibility with the March 5, 2021 closing date, and it is on that basis that he signed the Commitment Letter. He claimed that Vector acknowledged the March 5, 2021, closing date was simply a placeholder date. Mr. Mintz denies that this is the case. Aside from Mr. Huo’s statement, there is no evidence before me in writing from the plaintiff acknowledging that March 5 was a placeholder date. In any event, Mr. Mintz denies that the date was a placeholder date.

[38] The Commitment Letter indicated that the closing date was March 5, 2021, with an outside expiry date of March 19, 2021. The Commitment Letter also indicated that the closing dates could be extended by the parties in writing. There is no evidence before me of any extension of the closing date in writing. There were discussions and communications between the parties in March and April 2021 regarding extending the closing date and proposals put forward by Vector, but no evidence from the defendants that the closing date was extended in writing. In fact, there is no evidence that the defendants accepted any of the proposed amendments to the Commitment Letter offered by Vector as a result of their discussions in April 2021.

[39] Mr. Huo signed the Commitment Letter on February 3, 2021. Mr. Huo negotiated the terms of the Commitment Letter. Mr. Huo acknowledges that he is an accomplished award-winning businessperson. He has an executive MBA and has won several awards for outstanding entrepreneurship and mortgages. He has experience with capital management, financial lending, and property development.

[40] Before signing the commitment letter, Mr. Huo had the benefit of legal advice. Mr. Huo reviewed the Commitment Letter, made sure he understood it, and that the terms were acceptable to Can-China before he signed it on behalf of Can-China and on his own behalf.

[41] The defendants admit in their statement of defence that they signed the Commitment Letter. Mr. Huo acknowledged signing the Commitment Letter as well but seeks to rely on oral communications to suggest certain terms, specifically the closing date of March 5, 2021, was flexible. Mr. Huo contends that there were numerous phone calls that took place in the lead up to the mortgage and in the months of March and April 2021 after the Commitment Letter had been signed. The defendants however have not pointed me to any authority which would permit the court to look outside of the contract agreed to by the parties. It was not amended at any time. The plaintiff, Vector, proposed amendments on three different occasions that were not accepted by the defendants. The defendants have not provided any evidence to show that Vector, despite engaging in discussions and March and April 2021 with respect to possible extension of the closing date, did not intend for the defendants to be bound by the original agreement date if the parties could not agree on a new closing date. The evidence of Mr. Mintz supports this conclusion.

[42] The court will not construct agreements for parties: John D. McCamus, The Law of Contracts (Toronto: Irwin Law, 2020), at pp. 729-730. In ter Neuzen v. Korn, 1995 CanLII 72 (SCC), [1995] 3 S.C.R. 674, at para. 94, the Supreme Court of Canada cited G. Ford Homes Ltd. V. Draft Masonry (York) Co., 1983 CanLII 1719 (ON CA), 43 O.R. (2d) 401 (C.A.), at para. 9 with approval, to state that it is a “time-honoured [caution]” that “…the courts will be cautious in their approach to implying terms to contracts. Certainly a court will not rewrite a contract for the parties. As well, no term will be implied that is inconsistent with the contract.”

[43] The following are the key terms of the Commitment Letter, and terms agreed to by the parties:

10. CLOSING:

The actual date upon which the full advance or Initial Advance (as herein defined) of the Loan occurs is called the “Initial Advance Date”, the “Closing Date”, “Closing” or other similar reference. As required by the context, “Closing” also means the successful completion of the Loan and the full or Initial Advance thereunder as the case may be.

The Closing shall occur on March 5, 2021 unless, prior thereto, the Borrower and the Lender agree in writing, (which may be evidenced by one or more emails from or between the Borrower and/or their respective solicitors) that the Closing shall occur on some other date. The date set out in this paragraph or such other date, is called the “Scheduled Closing Date”.

Each Borrower Entity acknowledges that the Loan may be syndicated by the Lender to one or more co-lenders, who will provide the Lender, prior to the Scheduled Closing Date, their respective shares of advances to be made under the Loan with the expectation that the Closing shall occur and that interest shall accrue from and after the scheduled Closing Date.

The Closing shall take place no later than March 19, 2021 or such other date as agreed in writing by the Borrower and the lender (the “Expiry Date”), and the Lender shall have no obligation to make the full or Initial Advance of the Loan after such time.

11. TERM & MATURITY:

All Loan indebtedness shall become due and repayable in full on the I 0^th day of the month which is 19 calendar months after the Interest Adjustment Date (the “Maturity Date”).

12. INTEREST ADJUSTMENT DATE (the “Interest Adjustment Date” or “IAD”)

The 10^th day of the month next following the Closing Date.

13. STEP-UP DATE (the “Step-Up Date”):

The 10^th day of the first calendar month immediately prior to the Maturity Date, or such earlier date as may be established pursuant to the Borrower’s election for prepayment pursuant to Section 17 hereof.

14. INTEREST RATE (the “Interest Rate’):

For the period from and including the scheduled closing Date to and including the day immediately preceding the Step-up Date, the greater of: (i) 8.95% per annum, and (ii) the Prime Rate plus 6.50%; and

From and after the Step-up Date and until the Loan indebtedness is repaid in full, the Interest Rate shall be the greater of: (i) 13.00%, and 9ii) the Prime Rate plus 10.55% (the “Step Up Rate”).

“Prime Rate” means the Prime Rate of interest announced from time to time by Canadian Imperial Bank of Commerce at its head office in Toronto, Ontario as a reference rate for determining interest rates on Canadian dollar commercial loans in Canada.

Each Borrower Entity acknowledges and agrees that the Step-Up Rate occurs solely by passage of time, and not as the result of the occurrence of any default or event of default.

The Interest Rate shall be adjusted with fluctuations in the Prime Rate on the next Payment Date (defined below) following a change in the Prime Rate.

[44] I agree with Vector that the terms of the Commitment Letter were negotiated by sophisticated commercial parties with the benefit of independent legal advice. Accordingly, based on the agreements of the parties, there were two possible closing dates, March 5 or March 19, 2021, which could only be extended by agreement, in writing, as between the parties. The court cannot rewrite the contract between the parties.

[45] However, I am not persuaded that the court is able to determine the claim for damages on the evidence. There is no genuine issue requiring a trial under r. 20 when the judge can reach a fair and just determination on the merits.

Has the plaintiff failed to act in good faith?

[46] The allegation that Vector failed to act in good faith is not supported by the defendants’ own evidence. The defendants do not dispute that Can-China was having difficulty acquiring one of the properties that was required to stand as security for the loan. The property was ultimately sold to a third party and accordingly, the defendants would not have been able to fulfil this requirement set out in the Commitment Letter.

[47] Moreover, on a review of the evidence before me, there were numerous e-mail exchanges between Mr. Huo and Mr. Mintz, attempting to accommodate the defendants’ difficulty closing the 165 Cross Avenue property and offering extensions to the closing date in the Commitment Letter, well after the outside closing date of March 19, 2021 had expired. There is no evidence before me that the defendants, or any one of them, accepted any of the proposals advance by Vector to extend the closing date.

[48] It is noteworthy that the statement of defence does not plead that the March 5, 2021 closing date was extended. Mr. Huo includes three emails exchanged between Vector and himself between March and April 2021, but none of the emails indicates that he had accepted any of the proposed amendments to the Commitment Letter, which he apparently requested. Most strikingly, his affidavit is completely silent on this score.

[49] Although the test for granting summary judgment has changed since the Ontario Court of Appeal handed down its now seminal decision of Irving Ungerman Ltd. Et al. v. Galanis (1991), 1991 CanLII 7275 (ON CA), 4 O.R. (3d) 545 (C.A.), the court’s comments about what constitutes “genuine ” in discussing what is a genuine issue, at that time “for trial,” is still applicable to the current test, “genuine issue requiring a trial.” The Court of Appeal stated in Ungerman, at para. 22:

It is safe to say that "genuine" means “not spurious” and, more specifically, that the words “for trial” assist in showing [the] meaning of the term. If the evidence on a motion for summary judgment satisfies the court that there is no issue of fact which requires a trial for its resolution, the requirements of the rule have been met. It must be clear that a trial is unnecessary. [...] Further, it is important to keep in mind that the court’s function is not to resolve an issue of fact but to determine whether a genuine issue of fact exists.

[50] A plaintiff who seeks summary dismissal bears the evidentiary burden of showing that there is “no genuine issue of material fact requiring trial”: Guarantee Co. of North America v. Gordon Capital Corp., 1999 CanLII 664 (SCC), [1999] 3 S.C.R. 423, at para. 27.

[51] On a motion for summary judgment, each party must “...‘put its best foot forward’ with respect to the existence or non-existence of material facts that have to be tried”: Canada (Attorney General) v. Lameman, 2008 SCC 14, [2008] 1 S.C.R. 372, at para. 11; see also Goudie v. Ottawa (City), 2003 SCC 14, [2003] 1 S.C.R. 141, at para. 32.

[52] The defendants argue that by refusing to extend the closing date to allow for the purchase of 165 Cross, contrary to earlier representations made by the plaintiff, the plaintiff failed to act in good faith. This position is in stark contrast to the evidence before me. There is no evidence before the court that Vector lied, subverted, or took actions that would cause the defendants to be misled about their contractual performance. On the evidence before me, Vector attempted to accommodate the defendants as they encountered problems closing the property to be acquired.

[53] The defendants are obliged to put their best foot forward as well. I can infer from the lack of any evidence before me evidencing an extension of time, or any response by the defendants to three proposals set out in their emails in April 2021, that the defendants did not accept any of the proposed extensions. In his affidavit, Mr. Huo seems to suggest that there should have been an indefinite period to close. The defendants argue that the duty of good faith obligated the plaintiff to continue working with the defendants on closing the deal unless it was clear that the deal could not close. No authority is cited for this proposition and the position is contrary to the letter of the contract to which the parties agreed. It is not clear how the parties could have closed given the intervening circumstance, based on the evidence before me, with the property being sold to a third party. On the evidence before me, the defendants would not have been able to close at all considering the requirements under the Commitment Letter.

[54] On the evidence before me, Vector made three proposals regarding a new Closing Date and Expiry Date on April 15, April 23, and April 28, 2021, none of which were accepted by the defendants.

iii. Was Vector ready, willing, and able to close on March 5, 2021?

[55] The defendants argue that the plaintiff has repeatedly represented, both in its statement of claim and in the motion materials before the court, that Vector was ready, willing, and able to close the deal on March 5, 2021. The defendants submit that Mr. Huo sought evidence that Vector did in fact have the $22 million in its account and available for disbursement to the borrower, and no such evidence was provided. The defendants point out that Vector has confirmed on cross examination that they did not in fact have funds in their account, and as there is no evidence that Vector tendered, the defendants submit that they were not in fact ready, willing, and able to fund this mortgage. The Waiver of Conditions delivered to the defendants on March 3 was not valid.

[56] In its Reply Factum, Vector indicates that it had the funds necessary to close on the loan transaction, and it was ready, willing, and able to close. Vector further indicates that it was not necessary for Vector to tender. Vector also argues that it is an innocent party enforcing its contractual rights where the other party has clearly repudiated the agreement or made it clear that they have no intention of closing the deal. Vector has not pled, in the statement of claim, that the defendants repudiated the agreement. There is no evidence before the court that defendants indicated that they did not intend to close the deal, quite the opposite. The defendants have however raised an issue which goes to whether both parties were potentially or actually in breach of the agreement. Let me explain.

[57] The defendants argue that the Waiver of Conditions delivered March 3, 2021 was not valid. There may be some merit to that argument, and this is tied to the fact that the Commitment Letter precludes any part of the loan from being syndicated after the Waiver of Conditions is delivered. Clause 24 of the Commitment Letter under the heading “Syndication and Commitment Confirmation” states that:

The Lender shall be allowed until its issuance of a Waiver of Conditions, upon terms and conditions which are not materially different from those set out in this Commitment, or until such later time as may be provided by a Waiver of Conditions upon terms and conditions which are materially different from those set out in this Commitment and which each Borrower Entity has accepted, to syndicate a portion or portions of the Loan, in an amount or amounts and upon terms to be determined by and satisfactory to the Lender in its sole discretion, failing which and upon written notice thereof given by the Lender to the Borrower, this Commitment will be terminated and at an end, the balance of the Commitment Fee will not be payable and the Earnest Fee shall be returned to the Borrower net of any and all disbursements incurred by or on behalf of the Lender for legal fees, third-party peer review, and any other reasonable disbursements incurred by the Lender in reviewing the Loan. [Emphasis added.]

[58] In my view, both sides have failed to put their best foot forward with respect to this issue. Given the amounts involved for damages, the court is not able to make any determination of whether the Waiver of Conditions was valid, that is to say, that Vector was ready, willing, and able to close on March 5, 2021.

[59] It has been said that “[t]he law does not require a nugatory and meaningless ritual to be performed": Stewart v. Ambrosino (1977), 1977 CanLII 1046 (ON CA), 16 O.R. (2d) 221 (C.A.) at p. 222; Botos v. Collier, 1984 CarswellOnt 1241 (C.A.). Tender can be dispensed with when it is waived or made obviously futile by the conduct of the other party, provided that the party claiming to have been able to tender can show that they, in fact, were ready, willing, and able to make a valid tender: Zender et al. v. Ball et al. (1974), 1974 CanLII 730 (ON SC), 5 O.R. (2d) 747 (Ont. S.C.); Dmytryszn v. The King, [1935] O.W.N. 355 (C.A.). Tender can otherwise clearly show that a party was ready, willing, and able to close: Zender.

[60] In the circumstances of this case, given the language of clause 24 of the Commitment Letter, the defendants’ position is valid, and I am satisfied, on the evidentiary record, that the defendants have raised a genuine issue for trial with respect to whether the Waiver of Conditions was valid or, put another way, whether the loan was sufficiently syndicated so that Vector would not have been in a position to terminate the commitment as contemplated by the clause. The court makes no such determination given the evidentiary record, but Botos is instructive. Although the court ultimately found that a party is not required to tender where the other side has indicated it is unable complete the transaction, MacKinnon A.C.J.O. noted in that case: “The respondents are not entitled to rely on their own breach of contract and their misrepresentation to assert that the appellant was unwilling to complete the original contract”: at para. 6.

[61] Only after the moving party discharges its evidentiary burden of proving that there is no genuine issue requiring a trial for resolution does the burden then shift to the responding party to prove that its claim or defence has a real chance of success: Sanzone v. Schechter 2016 ONCA 566, at para. 30; Connerty v. Coles, 2012 ONSC 5218, [2012] O.J. No. 4313, at para. 9.

[62] On the evidence before me, the timing of the delivery of the Waiver of Conditions, the lack of any evidence before the court to support Vector’s contention that the syndicated loans were in place, the defendants’ argument that the Waiver was not valid, and its defence that Vector was not ready, willing and able to close, all bear consideration on a full record. The evidentiary record supports the suggestion that both parties would have been in breach of their obligations under the Commitment Letter. I am not able to make the necessary finding of fact in order to apply the law to the facts.

[63] Only after the moving party discharges its evidentiary burden of proving that there is no genuine issue requiring a trial for resolution does the burden then shift to the responding party to prove that its claim or defence has a real chance of success: Sanzone v. Schechter 2016 ONCA 566, at para. 30; Connerty v. Coles, 2012 ONSC 5218, [2012] O.J. No. 4313, at para. 9.

[64] In Cooper v. Mysak (1986), 1986 CanLII 2700 (ON SC), 54 O.R. (2d) 346 (Div. Ct.), the Divisional Court explained the significance of tendering as the innocent party demonstrating that they were ready and willing to carry out the contract. The Court stated at para. 15:

I think it is well to remember the essential purpose of tender. In the Lamont text Real Estate Conveyancing, published by the Law Society of Upper Canada in 1976, at p. 252 the author says: "The significance of tender is to establish proof that the party tendering is ready, willing and able to complete his part of the contract."

[65] Mr. Mintz confirmed that the funds were never in Vector’s account. Vector indicates that the funds were liquid and available to Vector on two days’ notice. The jurisprudence establishes that being "ready, willing and able" does not mean “willing, and able to become ready": Zender at para. 21.

[66] The defendants argue that Vector failed to mitigate its damages by failing to wait for the 165 Cross purchase to close. The defendants do not provide any authority to support this argument. The jurisprudence does establish that the plaintiff must show that they are ready, willing, and able to close on the date fixed for closing, that the default was in no way attributable to any fault of the plaintiff, and that the plaintiff continues to be ready, willing, and able to close at the date of trial: O’Neil v. Arnew (1976), 1976 CanLII 758 (ON SC), 16 O.R. (2d) 549 (H.C.).

[67] In the case of the defendants, aside from Mr. Huo’s statement in his affidavit, there is no other evidence before me that any request was made prior to March 5, 2021, a fact which is disputed by Vector. While my comments are not intended to determine the issue, it would appear that if Vector did not have sufficient funds to syndicate the loan on March 3, 2021, when it delivered the Waiver of Conditions, and it was precluded from syndicating any portion of the loan thereafter, in my view, the defendants argument that the waiver was not valid may be a genuine issue requiring a trial as a result of the evidentiary record. I note that on March 2, 2021, Mr. Huo wrote an email to Mr. Mintz in which he stated: “I would like to ask you to postpone syndicating the $22 million funds for me.” The following day, March 3, 2021, the waiver was delivered, which Vector argues triggered the defendants’ obligation to pay the second tranche of the fees.

[68] Vector is relying on the March 5, 2021 closing date. Mr. Mintz deposed that: “On March 3, 2021, Vector waived all conditions in the Commitment Letter and confirmed that it was ready, willing and able to close on that date.” Mr. Mintz appends an email of the same date which read: “Further to section 6 of the Commitment Letter, please find attached our Waiver of Conditions FOR the subject loan.” There is an accompanying document entitled “Notice Waiving Lender’s Condition.” Neither the email nor the document indicates that Vector was ready, willing, and able to close. In a Reply Affidavit, Mr. Mintz stated: “Vector secures funding from its investors. At all times, Vector had $22 million in committed capital available to fund the loan.” This assertion was made without any supporting evidence on this summary judgment motion. On cross examination, Mr. Mintz indicated that Vector syndicated the loan to the defendants by getting signed commitments from its investors that obligated them to fund the loan. Again, there is no evidence before the court on this motion for summary judgment, and these bald statements are challenged by the defendants who argue that Vector did not have the funds, was not ready, willing, and able to close, and did not tender.

[69] In addition, despite the claim for $985,000, which the Commitment Letter indicates was for an "Interest Reserve" to be used to fund the last six months of interest coming due under the Loan, Vector has not adequately explained why this amount would be paid as part of fees. The funds were never advanced. There is no evidence in the materials before me that the syndicated lender, if any, had started to advance funds, which presumably would attract interest. And, on my reading of the clause, though I make no finding, it appears that this amount is deducted on the closing date when the full amount is advanced.

[70] There is no indication that the requisite documents were sent over to the defendants or that confirmation of funds were available by virtue of any trust statement or other documents. There is no evidence before me that the parties agreed to some other arrangement. While the defendants did not specifically plead that the Waiver of Conditions was not valid and raised the argument in their factum and on the motion, the defendants, in addition to pleading that Vector was not ready, willing and able to tender, also pleaded that: “Furthermore, Vector did not send any further documents to be executed in order for the mortgage.”

[71] Vector maintains that the Waiver of Conditions triggered Vector’s obligation to loan the funds to Can-China if the defendants met conditions in the Commitment Letter. It is not open to the court to speculate, in the absence of any supporting evidence, whether Vector was in a position to close on March 5, 2021, especially in light of clause 24 of the Commitment Letter. There is no evidence before me upon which I could make such a finding.

iv. Are the fees enforceable?

[72] The Commitment Letter states that Vector is to be paid $350,000 as a commitment fee as “consideration for the time, effort, and expense incurred by the Lender, its officers and employees in reviewing the financial and other information, plans, development proposals, materials and other documents, and undertaking the investigations, inspections and other due diligence necessary to prepare and approve this Commitment.” Vector is seeking the Commitment Fee and six months’ interest as liquidated damages. The defendants do not dispute that the parties intended to create legal relations or that the Commitment Letter was a binding agreement.

[73] The defendants argue that the commitment fees were equivalent to a penalty under the Interest Act. A fee equal to six months’ interest should be deemed analogous to interest payments on the mortgage.

[74] The defendants contend that the fees are unenforceable.

[75] Vector argues that the amounts were negotiated by sophisticated commercial parties with the benefit of legal advice, and there is nothing unconscionable about them. Vector submits that s. 8 of the Interest Act (i) is inapplicable on the facts of the case, (ii) it is not offended in any event, and (iii) the defendants failed to plead it as a defence.

[76] Dealing with the failure to plead the Interest Act, I agree that s. 8 of the Interest Act has not been pleaded. The law assumes that the parties’ pleadings properly delineate all relevant claims in dispute and define the issues: Holmes v. Hatch Ltd., 2017 ONCA 880. Lawsuits must be decided within the boundaries of the pleadings: Holmes, at para. 7; Rodaro v. Royal Bank (2002), 2002 CanLII 41834 (ON CA), 59 O.R. (3d) 74 (C.A.), at para. 60; 460635 Ontario Ltd. v. 1002953 Ontario Inc., 1999 CanLII 789 (ON CA), 1999 O.J. No. 4071 (Ont. C.A.), at para. 9; A-C-H International Inc. v. Royal Bank (2005), 2005 CanLII 17769 (ON CA), 254 D.L.R. (4th) 327 (Ont. C.A.); Labatt Brewing Co. v. NHL Enterprises Canada L.P., 2011 ONCA 511, 106 O.R. (3d) 677. However, I am not prepared to dismiss this argument given the consumer protection nature of the provision and given that the issue was raised by the defendants as a defence to the summary judgment motion and Vector had an opportunity to respond fully. As the defendants have not pleaded that the fees are unenforceable, and no request was made by the defendants to amend the statement of defence, the court recognizes that a motion may be brought to amend the statement of defence, and I make no determination as to whether such a motion would be successful.

[77] Turning to the potential merits of the argument (and potential defence), since s. 8 of the Interest Act is an exception to the right of parties to contract, the fact that the parties were sophisticated commercial parties who had the benefit of legal advice is not relevant as these factors would clearly defeat the consumer protection purpose of the provision. The Ontario Court of Appeal thus indicated that section 8 created an exception to the general rule that lenders and borrowers are free to negotiate and agree on any rate of interest on the loan: see Acquaviva. Vector has also not explained why s. 8 would be inapplicable to this case. Vector’s action is based on breach of the Commitment Letter for a commercial mortgage. Author John D. McCamus, in The Law of Contracts, 3rd ed. (Toronto: Irwin Law, 2020), at pp. 135-136, explains the nature of the commitment letter as follows:

Commitment letters are another type of preliminary agreement in common use. Commitment letters are issued by lenders in circumstances where a potential borrower wishes to know that it will be able to make certain future borrowings of a particular size and on particular terms in order to ensure that the project to be undertaken by the borrower is financially viable.

In such circumstances, a lender may issue a commitment letter indicating a commitment to enter into a loan with the borrower on certain terms and conditions, it being understood that a formal lending agreement will be entered into at a later stage. In the typical case, it will be apparent from the terms of the commitment letter that a binding “commitment” is intended. Thus, it is a common feature of such arrangements that the borrower will be required to accept the commitment letter formally and to pay an initial commission or fee in return for the commitment. Provided that the parties have agreed to sufficient terms of the projected loan as to avoid the problem of lack of certainty of terms, commitment letters of this kind are held to be binding agreements. [Emphasis added.]

[78] Clause 19 of the Commitment Letter addresses the consideration which Vector now seeks to recover. The section appears under a heading entitled “Loan Fees, Brokerage Fees and Disbursements” and reads as follows:

As consideration for the time, effort, and expense incurred by the Lender, its officers and employees in reviewing the financial and other information, plans, development proposals, materials and other documents, and undertaking the investigations, inspections and other due diligence necessary to prepare and approve this Commitment, each Borrower Entity jointly and severally agrees to pay to the Lender the amount of 350,000 (the “Commitment Fee”) as follows:

(a) $40,000 (the “Earnest Fee”) payable upon acceptance of this Commitment (and in respect of which the Lender acknowledges receipt of $5000 as non-refundable deposit towards the Earnest Fee), subject to the following:

(i) if the documents and information submitted by the Borrower are determined by the Lender to be materially different than as originally represented, or if the Borrower fails to provide all documents and information as reasonably requested by the Lender to substantiate the Borrower’s original representations to the Lender, the Earnest Fee shall be retained by the Lender even if it declines to issue the Waiver of Conditions;

(ii) if the Lender issues the Waiver of Conditions upon terms and conditions which are not materially different from those set out in this Commitment (and it is agreed that a change of the Scheduled Closing Date and/or the Expiry Date shall not be material), or upon terms and conditions which are materially different from those set out in this Commitment and which each Borrower Entity has accepted, the Earnest Fee shall be retained by the Lender; and

(b) the balance of the Commitment Fee in the amount of $300,00 shall be deemed earned after issuance by the Lender of the Waiver of Conditions upon terms and conditions which are not materially different from those set out in this Commitment (and it is agreed that a change of the Scheduled Closing Date and/or the Expiry Date shall not be material) or upon terms and conditions which are materially different from those set out in this Commitment and which each Borrower Entity has accepted. This amount shall be deducted from the Initial Advance or payable at the time of and on the Expiry Date, whichever shall first occur.

For greater clarity, if the Lender issues the Waiver of Conditions upon substantially the same terms and conditions as this Commitment, or upon terms and conditions which are materially different from those set out in this Commitment and which each Borrower Entity has accepted, and any Borrower Entity defaults under this Commitment prior to the full or Initial Advance and elects not to draw down on the Loan or any part thereof, or if the full or Initial Advance does not occur for any other reason through no fault of the Lender, the Earnest Fee shall be retained by the Lender and the balance of the Commitment Fee in clause (b) above as well as an amount equal to 6-months of Interest on the Loan, shall be deemed earned, due and payable forthwith to the Lender by each Borrower Entity, who shall each be jointly and severally liable for the same.

The Borrower acknowledges and agrees to pay, in addition to all other fees and costs described in Section 19, the disbursements and fees, listed on “Schedule A” attached hereto.

Whether or not the transaction contemplated herein is successfully completed, the Borrower agrees to pay, the reasonable legal fees and disbursements of the Lender’s legal counsel, Jonathan Freeman of Cassels Brock & Blackwell LLP, or such other legal counsel appointed by the Lender at any time (the “Lender’s Solicitors”), for all customary or extraordinary legal services required by the Lender in connection with the Loan. The Borrower acknowledges that the Lender may engage its legal counsel upon signing of this Commitment Letter and they shall be responsible for same.

[79] The defendants have paid the $40,000 Earnest Fee. Vector is seeking to recover the remaining $300,000 of the Commitment Fee which it argues is “deemed earned after the issuance by the Lender of the Waiver of Conditions.”

[80] Aside from sending a due diligence checklist to be completed by the defendants, there is no evidence before me as to what work, investigations, among other things, were undertaken by Vector. Vector argues that the defendants are required to pay the fees even though they choose not to take up the loan. There is no evidence before the court to determine whether the amounts being sought as fees and the accelerated interest of six months’ interest would amount to a penalty. The only evidence to support the fees and interest are set out at paragraphs 25 and 26 of Mr. Mintz’s affidavit. He deposes that:

25. There is always a possibility that a borrower will not take up a loan from Vector after the signing of a Commitment Letter. In those circumstances, Vector will in most cases have done a significant amount of work to fund the loan, including making a call on Vector’s investors to fund the loan.

26. Vector therefore requires that borrowers pay the fees and minimum interest called for in the Commitment Letter even if they choose not to take up the loan. This obligation is written directly into the Commitment Letter, and is enforceable against not only the borrowers but also any guarantors.

[81] In addition, the Commitment Letter contemplates that the commission, brokerage fees and the interest reserve are to be taken from the full loan amount on closing. Paragraph 21 of the Commitment Letter provides as follows:

ADVANCES:

21. On the Closing Date, the full Loan Amount of $22,000,000 (the "Initial Advance") will be advanced to or for the benefit of the Borrower as follows [Emphasis added]:

(a) the amount of $300,000 will be deducted and paid to the Lender on account of the outstanding balance of the Commitment Fee;

(b) the amount of $160,000 will be deducted and paid to the Mortgage Broker on account of the outstanding balance of the Brokerage Fees;

(c) the amount of $985,000 will be deducted and retained by the Lender or the Lender's Solicitors on account of the following loan reserve(s) (individually and collectively called the “Loan Reserve”.

i) The amount of $985,000 as and on account of an interest reserve (the “Interest Reserve”) to be used to fund the last six (6) months of interest coming due under the Loan; and

ii) N/A

[82] Clause 8 of the Commitment Letter sets out the purpose of the $22 million loan and the uses for the loan, and contains the following breakdown:

[83] In their factum though, the defendants raised the issue of the plaintiff failing to provide evidence that the amount was a “genuine pre-estimate of damages to be incurred by the lender on the occurrence of the specified event,” relying on the decision of Myers J. in BMMB Investments Limited v. Naimian, 2020 ONSC 7999, and Acquaviva. The defendants submit that the fee is an unenforceable penalty at common law and is not supported by any evidence of damages, nor is it a “genuine pre-estimate of costs actually incurred.”

[84] As indicated above, the defendants submit that the penalty equal to six months’ interest should be deemed analogous to interest payments on the mortgage. The defendants argue the penalty was determined by reference to interest payments, none of which are in fact owed at this time.

[85] Section 8(1) of the Interest Act reads:

8 (1) No fine, penalty or rate of interest shall be stipulated for, taken, reserved or exacted on any arrears of principal or interest secured by mortgage on real property or hypothec on immovables that has the effect of increasing the charge on the arrears beyond the rate of interest payable on principal money not in arrears.

[86] The history of the provision is exhaustively reviewed in Reliant Capital Ltd. v. Silverdale Development Corp., 2006 BCCA 226, 270 D.L.R. (4th) 717, and in the Supreme Court of Canada decision of Krayzel Corp. v. Equitable Trust Co., 2016 SCC 18, [2016] 1 S.C.R. 273. Reliant has been followed by the Ontario Court of Appeal in Acquaviva, at paras. 50-51, 58-60. Chief Justice Finch, speaking on behalf of the court in Reliant, referred to the classic definition of a penalty in Dunlop Pneumatic Tyre Co. Ltd. v. New Garage and Motor Co. Ltd. (1914), 1915 A.C. 79 (U.K. H.L.), a decision in which the House of Lords set out guiding principles to distinguish penalties from liquidated damages. The essence of a penalty is a payment of money stipulated in terrorem of the party in default rather than a genuine pre-estimate of the damage suffered.

[87] In Mastercraft Properties Ltd. v. EL EF Investments Inc. (1993), 1993 CanLII 8545 (ON CA), 103 D.L.R. (4th) 759 (Ont. C.A.), McKinlay J.A. speaking for the Court of Appeal noted at para. 3: “A clear reading of the section requires that unless one first finds a ‘fine,’ ‘penalty,’ or ‘rate of interest’ charged on ‘arrears of principal or interest,’ it is unnecessary to consider whether the charge involved has the prohibited effect. In other words, the covenant must both stipulate for a ‘fine,’ ‘penalty’ or ‘rate of interest,’ and have the prohibited effect.”

[88] The defendants rely on Acquaviva. In that case, the Ontario Court of Appeal found that section 8 of the Interest Act applied to a promissory note. The Court rejected the argument that the prohibited charges had to be set out in a mortgage document. The court found that s. 8 can apply where the prohibited charges are provided in a debt instrument that evidences and secures a loan and that is secured by mortgage on real property.

[89] Acquaviva involved a summary judgment motion based on a promissory note and a mortgage. The plaintiffs had executed a promissory note and mortgage, all in connection with the mortgage loan. The issue before the court was whether amounts included in the promissory note violated s. 8 of the Interest Act. The terms of the note provided for escalated interest on default of the mortgage, but the mortgage did not contain a similar provision. The Court found that s. 8 did apply to both debt instruments entered into by the parties. The Court indicated that the prohibitions in the provision acted as a restraint on the freedom to contract. Referring to the British Columbia Court of Appeal decision in Reliant, the Court explained that s. 8 is intended to "protect property owners against abusive lending practises, while recognizing that generally speaking parties are entitled to freedom of contract": at para. 50. The Ontario Court of Appeal agreed with the purpose and scope of s. 8 of the Interest Act. The court noted that “Section 8 prohibits lenders from levying ‘fine[s], penalt[ies] or rate[s] of interest’ on ‘any arrears of principal or interest’ that are ‘secured by mortgage on real property’”: at para. 51. The Court concluded that the two instruments both secured repayment of the original or principal liability, a single loan, and section 8 applied to both.

[90] In this case, the Commitment Letter cannot be divorced from the loan documents. The Commitment Letter confirmed the terms of the projected mortgage loan to be secured on the two properties. The preamble of the Commitment Letter expressly states that it is to be read in conjunction with the Loan Document. The preamble reads:

This Commitment shall be read in conjunction with the Loan Document (as defined in section 22). In the event of any inconsistency between the terms of this Commitment and the terms of any of the Loan Documents, the Lender shall decide, in its sole discretion and its option, which shall prevail.

[91] The onus of establishing that the clause is a penalty is on the respondent as the person seeking to set it aside: Canadian General Electric Co. v. Canadian Rubber Co. (1915), 1915 CanLII 45 (SCC), 52 S.C.R. 349. However, I am satisfied, on the material before me, that the question cannot be decided on the evidence. Vector is seeking $1,312,215.20 as liquidated damages, and given the Court of Appeal decision in Acquaviva there is a genuine issue requiring trial with respect to whether fees and escalated interest payments would impose an additional penalty or fine, apart from the interest otherwise payable under the mortgage, in contravention of s. 8 of the Interest Act. As stated by Lord Justice Dunedin in Dunlop Pneumatic Tyre, a liquidated damage clause will be held to be a penalty if the sum stipulated for it is extravagant and unconscionable in amount in comparison with the greatest loss that could conceivably be proved to have followed from the breach.

[92] In Acquaviva, the Court of Appeal noted at para. 96:

In the absence of evidence that the charges in question reflect real costs legitimately incurred by the respondents for the recovery of the debt, in the form of actual administrative costs or otherwise, the only reason for the charges was to impose an additional penalty or fine, apart from the interest otherwise payable under the Mortgage, thereby increasing the burden on the appellants beyond the rate of interest agreed upon in the Mortgage. The courts have not hesitated to disallow similar charges on the basis that they offend s. 8 of the Interest Act.

[93] Finally, for the sake of completeness, the court notes that neither side dealt with the Ontario Court of Appeal decision of Marshallzehr Group Inc. v. Ideal (BC) Developments Inc., 2021 ONCA 229, 155 O.R. (3d) 200, which appears to have facts similar to this case. In that case, the Court of Appeal addressed the consequences of a lender terminating the commitment letter, without any advances being made, and the consequences for recovery of certain fees and interest. There was evidence before the motion judge that syndicated funds had been in place pending closing of the loan. As for the lender’s fee, in that case, the question turned on whether the fee was payable in the absence of an advance of the loan. The language of the commitment letter in that case indicated that the lender’s fee “shall be deducted from the initial advance,” at para. 55, which is language similar to the language before this court in the Commitment Letter executed by the parties. As the parties have not made submissions on the case, the applicability of the case and its impact on Vector’s claim for damages remains an open question.

[94] The plaintiff seeks recovery of $7,425.48 to reimburse transactional counsel, Cassels Brock LLP, and $10,926.66 for certain fees set out in Schedule “A”. The plaintiff submits that these fees were incurred before the action started. Based on the agreement, these fees were contemplated under the agreement to be paid by the defendants regardless of whether the transaction was completed. However, while I find that liability for expenses paid to a third party may be recoverable under Schedule “A” of the Commitment Letter, Vector only retained Cassels Brock & Blackwell LLP on May 3, 2021, after the March 5 and March 21 dates for closing, on which Vector relies, had passed. Cassels Brock sent a demand letter. It is not clear to me how the Cassels Brock fees fall within section 19 of the Commitment Letter, which reads as follows:

Whether or not the transaction contemplated herein is successfully completed, the Borrower agrees to pay, the reasonable legal fees and disbursements of the Lender's legal counsel, Jonathan Freeman of Cassels Brock & Blackwell LLP, or such other legal counsel appointed by the Lender at any time (the "Lender's Solicitors"), for all customary or extraordinary legal services required by the Lender in connection with the Loan. [Emphasis added.]

[95] The issue, of course, could have been cleared up with admissible evidence before the court. Copies of the invoices for Cassels Brock LLP, said to be Schedule “A” expenses, are merely affixed to Mr. Mintz’s affidavit. A party cannot prove the truth of the contents of an exhibit by merely referring to the document in the affidavit and affixing the document as an exhibit: Katz v. Katz, 2014 ONCA 606, 377 D.L.R. (4th) 264. I make the same comments with respect to the exhibit related to the third-party consultant fees. The plaintiff, Vector, has the onus of proving its damages with admissible evidence on a summary judgement motion.

IX. Costs

[96] The parties are encouraged to resolve the issue of costs, and only if unable to do so, the plaintiff may submit its costs submissions within fifteen days of the date of this decision. The defendants may submit their responding costs submissions within fifteen days thereafter.

A.P. Ramsay J.

Released: August 24, 2023

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

VECTOR FINANCIAL SERVICES LIMITED

Plaintiff/Moving Party

– and –

CAN-CHINA REAL CAPITAL INC. and WEN XIANG (VICTOR) HUO

Defendants/Responding Parties

REASONS FOR JUDGMENT

A.P. Ramsay J.

Released: August 24, 2023