COURT FILE NO.: CV-19-00000081-0000

DATE: 2023Dec18

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

JAMES ELGIN GILL

Plaintiff

– and –

JAMES WALLACE GILL, also known as JIM GILL and XUEHUI GILL

Defendants

Jonathan Collings, for the Plaintiff

Craig O’Brien, Caitlin Cardill and Hamish Mills-McEwan, for the Defendants

HEARD: October 23, 24, 25 and 26, 2023

TRANMER j.

reasons for judgment

Undisputed Background Facts

[1] The plaintiff is the son of the defendant Jim Gill. His birth date is May 20, 1987. The defendant Xuehui Gill is Jim Gill’s wife. Jim Gill’s first wife, the plaintiff’s mother, died 2009.

[2] At issue is the house located at 279 Perth St. Brockville, Ontario. The deed to the property at the time of purchase and to the present time is in the name of the plaintiff. The property was purchased by the plaintiff in December 2011. The purchase price was $218,000. The initial mortgage on the property was in the amount of $174,400. The balance of the purchase price including legal expenses and title insurance fee was provided by the defendant Jim Gill because he was supportive of his son at that time.

[3] The evidence is that the plaintiff had various jobs in the automotive industry ultimately attaining the position of Service Manager at a Brockville car dealership.

[4] The evidence is that in 2015 the money advanced by the father for the benefit of the son in order to purchase the home had been fully repaid. They were “all square” in that regard.

[5] The evidence is that since that time the father has financially supported his son when asked for such help.

[6] The plaintiff and his father shared a joint bank account at the TD bank at least since 2011 and up until the difficulties leading to this litigation began.

[7] Exhibit 4 is a purported agreement dated January 28, 2018, to the effect that the son will transfer to his father and his wife the title in the house, and the father will assume the outstanding mortgage and expenses to operate the house. The plaintiff asserts that he has no recollection of this agreement and no recollection of ever signing it. He testified that the first time that he saw the agreement was at the examination for discovery in the litigation in June 2021. The father asserts that the agreement was the result of discussions that he and his son had during the fall of 2017 concerning the son’s faltering financial situation and rising debt load. He says the agreement was entered into jointly and amicably.

[8] The defendants moved into the house and lived on the main floor commencing March 1, 2018. The son occupied the lower floor until August 2018 when he moved out.

[9] An agreement dated April 15, 2018 was admittedly signed by all three parties in the presence of the witness Betty Macdougall. The plaintiff asserts that he signed this document under duress, pressured and under force exerted by his father upon him. The defendants assert that the agreement was again jointly and amicably entered into having been discussed and negotiated in advance. As I will indicate later, the testimony of Betty Macdougall is completely credible and reliable with respect to the signing of that document.

[10] Up until the fall of 2022, the defendants paid the carrying costs of the house including mortgage, property tax, insurance and utilities. The plaintiff made no payments such as were contemplated in the April 2018 agreement.

[11] In the fall of 2022, the plaintiff applied for and secured a mortgage for the house and he has made the payments under that mortgage which was for a one year term. He also claims to have paid the property insurance since that date. The house is apparently not insured because CAA would not insure the house so long as this litigation was outstanding and there was a business being operated out of the house.

[12] As of the date of the trial, the deed is in the name the plaintiff as is the mortgage. The balance owing on the mortgage as at January 1, 2023 renewal date was $135,777.80.

[13] It is agreed that the defendants did not payout the mortgage as contemplated in the April agreement.

[14] It is agreed that the present fair market value of the house is $387,000.

[15] The defendants continue to live in the house.

[16] The plaintiff has not lived in the house since August 2018.

The Issues

[17] The parties presented the issues to be determined as follows:

The plaintiff submits that because the plaintiff says he does not recall the January agreement and does not recall signing it, it is of no force and effect.
(a) Was the plaintiff under duress when he signed the April agreement so as to render it unenforceable such that it should be set aside?

(b) If the April agreement is set aside, is the plaintiff entitled to damages for trespass and if so, in what quantum?

If the April agreement stands,

(a) are the defendants entitled to specific performance?

(b) if they are not granted specific performance, what, if any, damages are they entitled to.

What, if any, loans or monies advanced to the plaintiff by Jim Gill is the plaintiff indebted to Jim Gill on account of.

[18] Counsel filed case law authorities on these issues, and I have considered all of them carefully.

The January Agreement

[19] I reject the plaintiff’s evidence as to having no knowledge about this agreement until he first saw it at the examination for discovery in these proceedings.

[20] My reasons for finding that he lacks credibility and reliability as a witness are set out below.

[21] In addition, there is no evidence of any effort at all by the plaintiff to block or hamper or dissuade the defendants from moving into the house on March 1, 2018. On this point, he said he was at an auto show in Toronto in February 2018.

[22] His complaints are as to how he was treated thereafter, confined to the basement, “a prisoner in his own home”.

[23] Furthermore, the April agreement which he acknowledges signing makes 2 specific references to the January agreement in 2 locations on the top of the first page, namely above his initials and below his initials.

[24] For the reasons that I set out below, I find the April agreement to be enforceable and binding and that the plaintiff was not under duress when he signed it.

2. (a) Duress

(a) The plaintiff submitted that the sole basis for his position that the April agreement is unenforceable is that he signed it under duress.

[25] The evidence given by the plaintiff on the issue of duress is as follows.

Evidence of Duress

[26] James Gill maintains that he was under duress and forced and pressured to sign the April 15, 2018 agreement. He testified that that was his father’s way and that he felt that he had no alternative but to sign the document when his father told him to do so because it would save his marriage. He asks the court to find that the agreement is null and void abinitio and of no force and effect. He testified that he never had any intention to transfer the property to the defendants.

[27] He testified that because of the treatment by his father, he felt brainwashed and controlled by his father financially.

[28] He testified that when he was let go by Barrhaven Mazda, in 2017, although he secured new employment fairly quickly, he was making less money. He said his father came to him and offered to help him with his expenses. His father proposed that he and his wife move into the upper part of the house, and that he could live in the basement. He testified that he was not happy with that proposal but that he felt like he had no choice about it.

[29] He testified that in the fall of 2017 he was put on anti depressant medication. This made him feel drowsy, not himself, non-confrontational, and made him feel like a robot. He testified that he was under pressure careerwise and from his father. However, he testified that at the same time, he was employed, his job performance was not greatly impacted by his condition, and in fact, he secured a promotion to service manager at a new employer. He repeated that the medication made him tired. He slept a lot. He could not express himself clearly. He felt like a zombie. He said his father knew about the medications because he ridiculed him about them. In cross-examination, he confirmed that he was able to perform his work as service manager maintaining various responsibilities including delegating work, signing work orders and other documents. In contrast to his testimony-in-chief that the medication affected his job performance, at the examination for discovery he testified that the medications did not impact adversely his job performance. There is no other evidence about why the medication was prescribed or what affect it would have on the plaintiff.

[30] With respect to the April agreement, he testified that he felt forced and pressured to sign the document in the presence of the witness, his father and his wife. His father told him to do it to save his father’s marriage. He testified that he stated that he did not want to, that he did not want to sell the home to his father. He testified he felt like he had no choice. He saw the agreement only the one time. He said he was not involved in the drafting of it. Jim had talked about drafting the agreement. He did not see it until he was forced to sign it. He testified that he had no opportunity to review the document with a lawyer or to propose changes. He said that Jim said to him, this is the document, sign here and initial here. He testified that he signed the document to make Xuehui happy, and also to take the pressure being exerted by Xuehui off of Jim.

[31] He testified that after he signed the agreement, he told Jim that he was not going to transfer the property, that he had never planned to sell to Jim. The messaging exchanged between the two found at exhibits 14, 15, 16 and 17 contain minimal reference in this regard during the relevant time frame.

[32] He testified that Ms. Macdougall knew that he was being pressured because of the look on her face after he had signed.

[33] He maintained that he felt forced to sign the document. He felt he had no control. He maintained that he continued to pay all the costs. He clarified this testimony later in his testimony to confirm that his father put the money into the joint account and that all he did was to mechanically cause the payment to be made. This evidence is to the effect that his father paid all the expenses.

[34] There is no evidence that he took any steps to prevent his father and his wife from moving into the house on about March 1, 2018, although he does say he was at an automotive show in Toronto in February.

[35] In cross-examination, he confirmed that he had other options to his father moving into his home namely, sell the property, sell his car, rent elsewhere including moving in with his brother and his father’s friend or take out a loan to cover his expenses and debts. He said he did not do this because his father yelled at him.

[36] He maintained that he was forced to sign the agreement by his father.

[37] He testified that he did not consult with the lawyer about the agreement even though he had consulted with a lawyer twice already in regard to purchasing the home and about a wrongful dismissal claim.

[38] He testified that he skimmed the agreement before he signed it.

[39] Even though the agreement said that he would transfer the home to his father, he knew that this was not going to happen.

[40] He said his father told him to do it for him to save his marriage. He said that the only way was his father’s way and that his father was a “wannabe Donald Trump”.

[41] He agreed that even though the April agreement refers to the January agreement at two locations, he did not ask about the January agreement at the time he signed the April agreement.

[42] He did not ask to review the document in private or to take time to read it carefully and he did not seek to consult a lawyer about it even though no one told him he could not do so.

[43] He testified that even though Xuehui had gone to Texas for four months from May to August 2018, his father continued to belittle him and yell at him. This is why he could not access the upper floor of the home.

[44] On this issue, I have carefully considered the credibility and reliability of the evidence given by the witnesses.

Witness Credibility

James Gill

[45] The testimony of James Gill both in chief and cross-examination has led me to have serious concerns about his credibility. I find that he is a witness who was careless with the truth and whose evidence cannot be taken as reliable.

[46] Examples of his testimony that lead me to this conclusion include the following:

James Gill maintains that since he was a young boy he and his father shared a joint TD bank account. He testified that although he did receive monthly statements from the bank, he did not look at them closely enough to observe that his father exercised free access to the account both depositing money and withdrawing money over the years. He testified that he only learned of this after he had bought the house which is the subject of this litigation. He qualified this testimony to say that he did not know that his father was doing this, “to this extent”:
Ex 1 is a document that the plaintiff testified he created using banking records that he obtained from the TD bank. He said he prepared the document in Excel spreadsheet form. He testified that the exhibit document demonstrates that between January 4, 2011 and October 18, 2018, his father withdrew $222,849.17 from the joint account, and deposited $165 $547.67. He testified that the document demonstrates that his father overdrew from the account therefore in the amount of $57,301.50.

It was subsequently clarified in the course of his testimony, that the document shows monies being withdrawn and deposited by both his father and by him during that period of time. He testified that therefore the overdrawing was contributed to by both of them, not just his father. In cross-examination, and despite his testimony concerning Exhibit 1, James Gill agreed that his father had made credit card deposits into the joint account which were not reflected in his excel spreadsheet document.

He testified that after he purchased the house in December 2011, he did in fact know that his father was taking money out of the account in the amount of $500 plus $132 interest each month. He knew that his father was doing this to repay the money his father had loaned him to purchase the house which he said was in the total sum of less than $51,000. He noted that on January 22, 2015, he wrote a money order to his father in the amount of $51,007.50 to pay the balance of the money that his father had loaned to him. He could not explain why the balance due was not less than the original amount loaned despite the fact of the monthly repayments from the joint bank account.
On a more minor point, James Gill testified that he bought the house for the total sum of approximately $218,000 and that the mortgage initially placed on the house was in the amount of $218,000. In cross-examination when faced with the lawyer’s trust ledger, he agreed that the original mortgage was in the amount of $174,400. In view of the subject matter of this litigation, and the issues, more accuracy in such testimony would have been expected by me.
James Gill testified that the very first time he saw the agreement dated January 28, 2018 was at an examination for discovery, in June 2021, in this action. He testified that he did not remember the document at all and he did not recall signing it. On this point, I have noted that the agreement dated April 15, 2018 makes reference to the two page document dated January 28, 2018 in 2 locations at the top of the first page both above and below the initals of James Gill. He testified that he did not ask his father about the references to the January agreement even when signing the April Agreement. He testified that he did not see those references. He only knew about the April agreement. He said he only had the opportunity to briefly skim the April agreement before he signed it.
James Gill testified that after he moved out of the home in August 2018, Jim and his wife paid the expenses for the house. He subsequently clarified that in the fall of 2022, he transferred the mortgage payment account to his own banking information and he paid the mortgage commencing January 1, 2023 for the one year term negotiated with the mortgagor. There is no evidence that he informed the mortgagor that he was not living in the house or that he had a dispute with his father who was occupying the house.
James Gill testified that he was and has been unable to secure insurance on the property because a business was being run out of the basement. He testified that his father’s wife was running a massage business out of his basement bedroom. His basis for saying this is a website advertisement that he discovered. In fact, the email from the insurer entered into evidence in chief, stated clearly that “we would not be able to insure your home as you have an open lawsuit with someone. Once that is closed and there is no business registered to your address then we can do a property policy…” (Ex. 10). Thus, there were 2 reasons stated by the insurer that he could not secure insurance on the property from CAA.
He testified that the police were wrong when they stated in the occurrence report from October 2023 that he had retrieved the mail that he needed from his home. He maintains that he only got 2 pieces of mail and he firmly believes that there is more mail there being withheld by his father.
Despite his evidence that he was forced and pressured to sign the April agreement and that he had no intention or desire to sell his home to his father, the messages between he and his father found in exhibits 14, 15, 16 and 17 reveal scant written objection.
James Gill testified that the witness to the signing of the April agreement knew that he was being pressured to sign it. He testified that he based this conclusion on the look on her face. For the reasons set out below, I completely accept the evidence of Betty Macdougall which is completely to the contrary and reject this evidence by the Plaintiff.
In chief, James Gill had testified that he had paid the mortgage, gas, hydro expenses from the time his father moved into the house until he moved out in August 2018. In cross-examination, it was clarified by him that it was his father who put the money into the joint account to cover the expenses. What he had done was just to accomplish the payment mechanically.
He was asked whether account number 633-3713 was one of his own TD bank accounts. We took a break in his testimony to permit him to review his records. He testified that it was not his account and that it looked like it was his father’s account. His loan application made by him to the bank subsequently tendered into evidence identifies this account as one of his stated assets. (Ex. 21).
In his testimony in chief, James Gill attributed depressant medications that he was on for not clearly understanding or reviewing the April agreement. In cross-examination, he testified that the medications had a “little hindrance” on his job performance. At examination for discovery, he had testified that the medications had no impact on his job performance. In fact, his testimony confirms that while on the medications he had a good job performance and in fact achieved a promotion to Service Manager.
The testimony by James Gill about his inability to access the balance of the house other than the basement is suspect. He had a key to the front door. Xuehui, who he said was primarily responsible for the unhappy situation, was apparently in Texas for some 4 months of the time referred to, May 2018 to August 2018. This casts some doubt on his assertion that he was a prisoner in his own home, as he characterized it.
When cross-examined about the knife incident involving Xuehui, he testified that he did not know if he was taller than she is. This, despite the fact that he had known her since prior to 2009, some 14 years ago now.
James Gill was evasive and nonresponsive when cross-examined as to why he did not call the police about this.

Jim Gill

[47] There are some aspects of Jim Gill’s testimony that caused me concern as to his credibility and reliability but no one of those or cumulatively cause me to reject his evidence on the key points in issue.

[48] The areas of concern are as follows.

[49] He admitted to deceitfully falsifying his son’s financial situation, in order to secure a more favourable amortization rate for the mortgage on the initial purchase. He testified that he put the $25,000 into the bank account and then took it back out, “in and out”.

[50] He testified that it was “every day” that he was advancing or loaning money to his son. March 1, 2018. This is some 5 ½ years, approximately 2000 days. He agreed that the entries documenting his loans number 105.

[51] I am suspicious about the identical testimony given by Jim Gill and his wife that the plaintiff initially offered to pay rent in the amount of $1000 per month, but that Xuehui said to him that that was too much, pay $700 per month.

[52] He testified that the home needed more work done on it, namely the windows and doors needed to be replaced, the bathroom fixtures needed replacing and the kitchen needed renovation. This was in the context of how poorly he said his son had maintained the house. Jim Gill acknowledged that this extra work that was required was due to the age of the house. That is, not due to the neglect of his son.

[53] I am also suspicious about the testimony of Jim Gill that he and his son met with the lawyer before the first agreement was signed. There was no documentation whatsoever to confirm that meeting or that the first agreement was discussed with that lawyer.

[54] Another aspect of Jim Gill’s testimony that is of concern is his unsolicited comment that the lower level “was not really a basement, it’s a beautiful place”. This comment was surely offered to contradict his son’s testimony about feeling confined and a prisoner in the basement.

Xuehui Gill

[55] She gave very similar evidence to that of her husband, who she had heard testified, concerning the rent to be paid by the plaintiff and also, concerning the alleged knife incident.

[56] I cannot reject her evidence as not credible or reliable on the key points.

Betty Macdougall

[57] I completely accept as entirely credible and reliable the testimony given by Ms. Macdougall. She testified clearly, responsively, without hesitation, articulately and in detail. I am satisfied that she had a clear recollection concerning the signing of the April agreement.

[58] She was a most impressive witness and indeed the only independent witness.

[59] She recognized the April agreement as the one that she witnessed the three parties sign. She testified that she had witnessed many documents throughout her career. She had held many responsible positions including practising as a registered nurse, teaching nursing at Hotel Dieu Hospital and acting as the administrator of a nursing home in Brockville with the many responsibilities that that entailed.

[60] She testified that she asked each of the three parties prior to the signing whether they had all read the document and understood it. All three parties agreed that they had and did.

[61] There was no other discussion either before or after the document was signed by the three parties and witnessed by her.

[62] She testified that during the less than 15 minutes the parties were with her in her home, each of them were acting normally. She had known the parties for a number of years and knew what normal behaviour was for each of them.

[63] She testified that there was no indication whatsoever that anyone had been forced to sign that document. She testified that with her experience, she could tell if that were the case. And if she had any thought or feeling that someone was being forced to sign that agreement, she would have refused to witness the signing. She testified that she has had such an experience on other occasions and has refused to witness for that reason.

[64] She testified that she feels strongly that she would have known if the plaintiff did not know what he was doing. She pointed out that he was in his 30s at the time and she knew he had a responsible job. The plaintiff gave no indication in her presence that he was concerned.

[65] Ms. Macdougall testified that she felt very comfortable witnessing the three parties signing the document.

[66] She strongly disagreed with the plaintiff’s evidence that she had given him a look that indicated she was sympathetic about him signing the document. She testified that she would not have witnessed the document if she had felt that something was out of the normal.

[67] I have no hesitation whatsoever in completely accepting the testimony of Ms. Macdougall.

Conclusion on Duress Issue

[68] I would point out that no party has argued that the April agreement was ambiguous or not clearly worded, or unconscionable in its terms.

[69] On the basis of my finding that the plaintiff is not a credible or reliable witness and accepting completely the evidence of the defendants and Ms. Macdougall as to the circumstances of the signing of the April agreement, I am satisfied that the plaintiff signed that agreement on his own free will and choice and not due to force, pressure or coercion exerted upon him by the defendants.

[70] I am completely satisfied that the plaintiff has not proven on a balance of probabilities that he was under duress when he entered into and signed the April agreement.

[71] I find that the April agreement is enforceable and binding on the parties.

[72] I would add that with respect to the knife incident testified to by the plaintiff, even if it were to have occurred, on his evidence it occurred two months prior to the April agreement. The plaintiff did not attribute the attack as relating in any way to the house or occupancy arrangements but rather that Xuehui had called him a fuck up and he had retaliated in kind with respect to her son. The evidence of Ms. Macdougall is completely contrary to any such lasting impact on the plaintiff. The evidence concerning the incident even if it did occur is not probative of the enforceability of the April agreement.

Alternative

[73] Even if I did completely accept the evidence of the plaintiff with respect to the pressure exerted upon him, I find that the evidence of duress put forth by the plaintiff does not satisfy the test for duress as set out in the authorities cited.

[74] The evidence of the plaintiff concerning duress is set out above.

[75] The evidence identifies a father who was very supportive of his son, providing all of the cash over and above the mortgage to buy the house initially, loaning his son money when requested to do so by his son and supporting him in his career. The evidence also identifies a husband who was being pressured by his wife for overcompensating his son. She pointed out in her testimony that she worked 2 to 3 jobs, including in Ottawa and in Kingston, and felt that her husband was squandering money on the plaintiff, “throwing good money after bad.”

[76] The test for duress sufficient to render a contract unenforceable is set out in the authorities cited by counsel.

SA v. AA, 2017 ONCA 243

Kawartha Capital Corp v 1723766 Ontario Limited, 2020 ONCA 763

Van Kruistum v. Dool et al, 1997 2284 (ONSC)

Re/Max Realty Enterprises Inc et al v John Anderson et al, 2023 62004 (ON SCSM)

DLG & Associates Ltd v. Minto Properties Inc., 2014 ONSC 7287

Computron Systems International Inc v Ladhani et al, 2020 ONSC 3188

Kinsella v Mills, 2020 ONSC 4785

Rawlins v Rawlins, 2014 ONSC 5649

Laderoute v Heffernan, 2020 ONSC 1157

[77] In Kawartha, the Court stated:

11 For a party to establish economic duress, it must show two things: first, that it was subjected to pressure applied to such an extent that there was no choice but to submit, and second, that the pressure applied was illegitimate. On the first prong of the test, the court considers four factors:

(a) Did the party protest at the time the contract was entered into?

(b) Was there an effective alternative course open to the party alleging coercion?

(d) After entering into the contract, did the party take steps to avoid it?

If the party alleging duress satisfies those four factors, it must go on to satisfy the second prong, by showing that the pressure exerted was illegitimate.

[78] Considering each of the four factors in the present case, I find that the plaintiff has failed to satisfy any of these four factors.

[79] Ms. Macdougall’s evidence is clear that there was no protest or hesitation or reticence on the part of the plaintiff. She knew him well, and he acted normally. She was comfortable witnessing the document.

[80] There were other viable alternatives open to the plaintiff to address his financial situation. He could have sold the house on the market. He could have got back to “square” through employment as he had after he had purchased a house in 2011. He managed to do that by some time in 2015. He could have stopped the careless and reckless spending. He did not pursue any of these options or others.

[81] Although the plaintiff did not pursue independent legal advice, I find on the evidence that no one prevented him from doing so, certainly not the defendants. Scott Laushway was a lawyer who the plaintiff had consulted on two occasions, most recently with respect to a wrongful dismissal claim. I find that the plaintiff freely chose not to seek legal advice concerning the April agreement.

[82] On the evidence, the plaintiff took no steps to avoid the agreement, other than to fail to make the rent payment and to transfer title, until the lawsuit was begun 14 months after the agreement was signed and 8 months after he had moved out of the house.

[83] The plaintiff has failed to satisfy any of these four factors.

[84] Even if the plaintiff had met these four factors, on the evidence I find that the alleged force or pressure did not rise to the level of illegitimacy required by the authorities. I do not find the conduct he described to be coercive.

[85] The pressure described by the plaintiff can be fairly summarized as his father saying to him, “do it for me, save my marriage” with the background of belittling and criticizing the plaintiff’s financial conduct.

[86] As I have pointed out, no party has argued that the terms of the April agreement were unconscionable.

[87] The plaintiff’s claim based on duress is dismissed.

[88] The April agreement is enforceable and binding upon the parties.

2. (b) No Damages for Trespass

[89] In view of my finding that the April agreement is binding and enforceable, the plaintiff has not made out a case for damages for trespass.

[90] On all of the evidence, I reject his position that he was confined solely to the basement. His father’s wife, who appears to have been the source of difficulty, was absent from the house from May until August. The plaintiff moved out in August.

[91] In addition, the evidence concerning Jim Gill overdrawing out of the joint account is confusing and misleading and also incomplete so far as his credit card deposits are concerned. No such amount has been proven on a balance of probabilities to have been taken without the plaintiff’s knowledge, and even if so, no quantum has been proven on a balance of probabilities.

3. The April agreement stands as enforceable

(a) Should specific performance be ordered in favour of the defendants?

[92] Specific performance is a discretionary equitable remedy granted where damages cannot afford an adequate and just remedy in the circumstances (Matthew Brady Self Storage Corporation v. InStorage Limited Partnership et al, 2014 ONCA 858, para. 29).

[93] Of particular assistance in this regard is the decision of the Ontario Court of Appeal in Lucus v. 19858793 Ontario Inc. 2021 ONCA 52:

59 As remedies for 185's wrongful termination, in their application the Lucases sought relief from forfeiture of the deposit and specific performance. The Lucases did not seek damages in lieu of specific performance.

61 He then considered whether the Lucases were entitled to specific performance based on three factors: (1) the nature of the property, particularly its "uniqueness" within the meaning of Semelhago v. Paramadevan, 1996 209 (SCC), [1996] 2 S.C.R. 415, at para. 22; (2) the related question of the inadequacy of damages as a remedy; and (3) the behaviour of the parties: Matthew Brady Self Storage Corp. v. InStorage Limited Partnership, 2014 ONCA 858, 125 O.R. (3d) 121, at para. 32, leave to appeal refused, [2015] S.C.C.A. No. 50.

62 With respect to the nature of the property, the application judge held, at paras. 59 and 64, that uniqueness arose not from the Lucases' subjective needs or the Unit's physical characteristics, but because the Agreement contained "advantageous terms" and could not have been readily duplicated in Toronto's competitive, volatile real estate market: 1954294 Ontario Ltd. v. Gracegreen Real Estate Development Ltd., 2017 ONSC 6369, 80 C.L.R. (4th) 297, at para. 151.

63 Relatedly, the application judge concluded that the circumstances surrounding the Agreement rendered damages inadequate. The Lucases paid over $90,000 toward the Unit from January 2015 to February 2019. During this time, as the Unit increased in value "significantly" along with much of Toronto's housing market, this money was not available to the Lucases for acquiring another property. The application judge commented that the litigation would likely "drag for years" if the Lucases were limited to suing for damages, during which time the Lucases would be denied "the advantage of the rise in value of the Unit that exists today" as well as the use of their deposit. In other words, the Lucases' losses were difficult to mitigate, making specific performance a "more complete and just remedy" than damages in the circumstances: at paras. 63-65.

64 Finally, the application judge held that 185's conduct favoured granting specific performance. 185 had continued to accept payments from the Lucases while "improperly" trying to use the allegation of a breach to avoid its responsibility to replace the bathtub. It then terminated the Agreement and took the Lucases' deposit without justification, long after Mr. Duarte had vacated the Unit: at para. 75. Moreover, 185's subsequent sale to Sofia and Andre, which was not at arm's length and did not contain commercially reasonable terms, was a "sham" designed to put the Unit out of the Lucases' reach: at paras. 66 and 77. As he amplified in his cost reasons, the application judge concluded the transaction was a sham in part because it involved a sale below market price, with little by way of an up-front payment: 2020 ONSC 1329, at para. 4.

65 Based on the foregoing, the application judge concluded that specific performance was the best remedy to serve justice between the parties. He ordered 185 to complete the sale of the Unit to the Lucases in accordance with the Agreement no later than February 14, 2020, with all payments to date credited toward the purchase price. In addition, the application judge declared the sale to Sofia and Andre null and void and ordered the lease with their tenants assigned to the Lucases.

68 The most appropriate place to start the analysis is by recalling first principles. In general, contractual remedies are intended to provide the non-breaching party with what the contract was to provide: Angela Swan, Jakub Adamski & Annie Na, Canadian Contract Law, 4th ed. (Toronto: LexisNexis Canada, 2018), at [section]6.14. That usually is done by requiring the party in breach to pay, as damages, an amount of money that will provide the victim of the breach with the financial equivalent of performance: John D. McCamus, The Law of Contracts, 3rd ed. (Toronto: Irwin Law, 2020), at p. 971. However, as observed by The Honourable Robert J. Sharpe in Injunctions and Specific Performance, loose-leaf (2020-Rel. 29), 4th ed. (Toronto: Thomson Reuters, 2012), at [section]7.50:

The existing regime of remedial law strongly favours the first option of damages and awards specific performance only in exceptional cases. Yet in many cases, specific relief may seem to be the only sure way to put the plaintiff in the position he or she would have been in had the contract been performed ...The assessment of damages the innocent party has suffered can be a difficult, expensive and time-consuming task. Specific performance has the advantage of avoiding the problems and costs the parties and the judicial system must incur if damages are to be assessed. Perhaps more significant is the very real element of risk that the translation into money terms of the effect of the breach on the plaintiff may be inaccurate. Some cases will present more risk than others but it cannot be denied that the element of risk of error is virtually swept away if the court is able to make an order of specific performance. The innocent party receives the very thing bargained for rather than a monetary estimate of its worth. [Emphasis added.]

69 The basic rationale for an order of specific performance of contracts is that damages may not, in the particular case, afford a complete remedy. In Semelhago, the Supreme Court noted that at one time the common law regarded every piece of real property as unique. However, in the contemporary real estate market, which is characterized by the mass production of urban residential housing, it cannot be assumed that damages for breach of contract for the purchase and sale of real estate would be an inadequate remedy in all cases: at para. 21. Accordingly, specific performance should not be granted as a matter of course absent evidence that "the property is unique to the extent that its substitute would not be readily available": at para. 22. Therefore, a party seeking specific performance must establish a fair, real, and substantial justification by showing that damages would be inadequate to compensate for its loss of the subject property: Asamera Oil Corp. v. Seal Oil & General Corp., 1978 16 (SCC), [1979] 1 S.C.R. 633, at p. 668.

70 In his article "Death to Semelhago!" (2016) 39:1 Dalhousie L.J. 1, Professor Bruce Ziff commented, at p. 9, that "the change ushered in by Semelhago can be seen as one of degree, not principle." The point was made, in a slightly different way, by Lax J., in John E. Dodge Holdings Ltd. v. 805062 Ontario Ltd. (2001), 2001 28012 (ON SC), 56 O.R. (3d) 341 (S.C.), aff'd (2003) 2003 52131 (ON CA), 63 O.R. (3d) 304 (C.A.), leave to appeal refused, [2003] S.C.C.A. No. 145. She ventured the view, at para. 55, that Semelhago did not replace the presumption of uniqueness with a presumption of replaceability.2 Certainly the plaintiff bears the onus of demonstrating entitlement to the remedy of specific performance. But what does that require the plaintiff to demonstrate? Lax J. stated, at para. 55:

Semelhago asks us to examine in each case, the plaintiff and the property. The danger in framing the issue as one of uniqueness (a term that carries with it a pre-Semelhago antediluvian aroma) is that the real point of Semelhago will be lost. It is obviously important to identify the factors or characteristics that make a particular property unique to a particular plaintiff. The more fundamental question is whether the plaintiff has shown that the land rather than its monetary equivalent better serves justice between the parties. This will depend on whether money is an adequate substitute for the plaintiff's loss and this in turn will depend on whether the subject matter of the contract is generic or unique. [Emphasis added.]

71 Whether specific performance is to be awarded or not is therefore a question that is rooted firmly in the facts of an individual case: Matthew Brady, at para. 32. In determining whether a plaintiff has shown that the land rather than its monetary equivalent better serves justice between the parties, courts typically examine and weigh together three factors: (i) the nature of the property involved; (ii) the related question of the inadequacy of damages as a remedy; and (iii) the behaviour of the parties, having regard to the equitable nature of the remedy

(i)The nature of the property

73 In assessing whether a property is unique, courts may have regard to: (a) a property's physical attributes; (b) the purchaser's subjective interests, or (c) the circumstances of the underlying transaction. While physical and subjective uniqueness of property will usually be significant in cases where a purchaser - as opposed to a vendor - seeks specific performance, the types of uniqueness are not exclusive and no difference in evidential weight should be given to one form over another: Jeffrey Berryman, The Law of Equitable Remedies, 2nd ed. (Toronto: Irwin Law, 2013), at pp. 355-57.

74 Uniqueness does not mean singularity or incomparability. Instead, it means that the property has a quality (or qualities) making it especially suitable for the proposed use that cannot be readily duplicated elsewhere: Dodge (S.C.), at para. 60. For example, a rising real estate market, particularly where the purchaser's deposit remains tied up by the vendor, may indicate that the transaction could not have been readily duplicated or that other properties were not readily available at the time of breach within the plaintiff's price range: Walker v. Jones (2008), 2008 47725 (ON SC), 298 D.L.R. (4th) 344, at para. 165; Sivasubramaniam v. Mohammad, 2018 ONSC 3073, 98 R.P.R. (5th) 130, at paras. 84 and 92, aff'd 2019 ONCA 242, 100 R.P.R. (5th) 1.

75 The court should examine the subjective uniqueness of the property from the point of view of the plaintiff at the time of contracting: Dodge (S.C.), at para. 59. The court must also determine objectively whether the plaintiff has demonstrated that the property or the transaction has characteristics that make an award of damages inadequate for that particular plaintiff: Dodge (S.C.), at para. 59; Di Millo v. 2099232 Ontario Inc., 2018 ONCA 1051, 430 D.L.R. (4th) 296, at paras. 70-73, leave to appeal refused, [2019] S.C.C.A. No. 55.

76 While units in cookie-cutter townhouses or condominium units may be considered less unique than other forms of property, some condominiums are truly unique: Gillespie v. 1766998 Ontario Inc., 2014 ONSC 6952, 49 R.P.R. (5th) 65, at para. 26; Landmark of Thornhill, at p. 636. Even in the case of mass-produced condominiums, the issue remains whether the plaintiff has shown, upon the consideration of all the factors, that the land rather than its monetary equivalent better serves justice between the parties.

(ii)Adequacy of damages

78 As indicated above, one other factor is whether damages would be adequate to remedy the purchaser's loss. For instance, courts should be reluctant to award specific performance of contracts for property purchased solely as an investment, since money damages are well-suited to satisfy purely financial interests: Southcott Estates Inc. v. Toronto Catholic District School Board, 2012 SCC 51, [2012] 2 S.C.R. 675, at paras. 40-41.

79 By contrast, if damages would be particularly time-consuming, difficult, or complex to compute, this may point in favour of specific performance: Sharpe J., Injunctions and Specific Performance, at [section]7.220; Neighbourhoods of Cornell Inc. v. 1440106 Ontario Inc. (2003), 11 R.P.R. (4th) 294, at paras. 112-14, aff'd (2004), 22 R.P.R. (4th) 176 (C.A.), leave to appeal refused, [2004] S.C.C.A. No. 390.

(iii)The behaviour of the parties

80 A final factor involves considering the behaviour of the parties and weighing the equities at play in the transaction: Paterson Veterinary Professional Corporation v. Stilton Corp. Ltd., 2019 ONCA 746, 438 D.L.R. (4th) 374, at para. 31, leave to appeal to S.C.C. refused, 38927 (April 2, 2020), [2019] S.C.C.A. No. 420; Matthew Brady, at para. 32. A vendor's bad faith attempt to terminate a valid agreement of purchase and sale may support an order of specific performance against that party: Gracegreen, at para. 170.

89 … the application judge found damages inadequate because of delay, not quantum. …

93 … damages were inadequate to compensate … that prices in the Toronto real estate market rose significantly over the past several years. The evidence before the application judge was that the Unit had increased in value by about 40% … it was reasonable for the application judge to infer that it would have been difficult for the Lucases to find a property at a comparable price …

[94] Also of assistance are the comments of Justice Sharpe of the Ontario Court of Appeal cited in 101034761 Saskatchewan Ltd v. Bruce Mossing et al, 2022 SKQB 193.

236 Fundamentally, what renders the remedy of specific performance inappropriate in this case is BLS's delay in seeking this equitable remedy, a delay which prejudices the Mossings because it is more likely than not that the property has appreciated over the decade it took for this matter to reach the courtroom.

237 Sharpe at s. 840 notes that although delay alone will not necessarily defeat a claim for specific performance or injunctive relief, the "combination of delay and prejudice to the defendant" could deprive a plaintiff of the remedy of specific performance. Justice Sharpe cited many judicial authorities in support of this proposition including, most importantly, Gutheil v Caledonia (Rural Municipality) No. 99 (1964), 1964 357 (SK QB), 48 DLR (2d) 628 () (Sask QB) at para 24.

238 Jonas Short testified that at the outset of this litigation much of the delay was attributable to his father's death and the difficulties this created for the remaining family members to ensure BLS stayed in business. As well, he stated he was preoccupied by family law litigation precipitated by the dissolution of his marriage, and his quest to gain custody of his child.

239 These are all reasonable explanations; however, it cannot be disputed that the statement of claim was not issued in this matter until November 27, 2012, almost two years after the Mossings had repudiated the contract of purchase and sale. Undeniably, this litigation then proceeded at a languid pace. Jim Short's death meant BLS's principal witness could not be questioned at all, let alone under oath. These delays were further compounded by the global pandemic.

240 In the result, to now order specific performance more than a decade after the Third Offer was repudiated would prejudice the Mossings, even though they caused the breach of contract in the first place. This is not a case of penalizing "the indolent" to paraphrase Berryman, at 332 quoting Lazard Brothers & Co. v Fairfield Properties Co. (Mayfair) (1977), 121 Sol J 793, at 793 (Ch) Rather, in my respectful view, it is a case in which ordering, at this time, the Mossings to deliver the property to BLS in accordance with the terms of the Third Offer would be unfair, and pose an undue hardship, to them.

[95] In Ahmad v. Ashask, 2022 ONSC 1348, lack of delay in pursing the remedy of specific performance of a purchase of a house was also considered as a factor by this Court (para. 180).

180 I am satisfied that the plaintiffs have "clean hands." They entered into an Agreement of Purchase and Sale in good faith. They paid the required deposit, waived conditions as required, and were moving towards closing when the defendants sought to extend the closing date. They accommodated the defendants in this regard and continued to move towards the new closing date. When it became clear that the closing would not occur, they took immediate steps to retain litigation counsel, and in anticipation of the breach, commenced an application before the date of the closing.

Nature of the Property - Uniqueness

[96] There is no evidence that this house is unique within the meaning of the authorities.

[97] The evidence is that it is a good house with good neighbours.

[98] The defendants did not seek it out or buy it because of any unique quality or features. Rather, the defendants entered into the agreement, on their evidence, solely to help the plaintiff financially.

[99] The defendants had no “wish list” of features as was the case in Ahmad, paras. 166-169.

[100] There is no evidence that the house had qualities that made it especially suitable for the defendants and that those qualities are not readily available elsewhere. Ahmad, para. 165.

[101] Upon consideration of all the factors on the face of the evidence before me, I find that defendants have not shown “that the land rather than its monetary equivalent better serves justice between the parties.” Lucas, para. 76.

[102] There is no evidence that the Agreements were made in contemplation of an increase in the value of the house or that that was a quality or feature of the house for which the defendants sought it out in particular.

[103] The present case is distinguishable from the Lucas case because in that case, the parties agreed that prices in the Toronto real estate market rose significantly over the past several years. The Court of Appeal held it was reasonable for the application judge to infer it would have been difficult for the Lucases is to find a property at a comparible price “particularly when 185 had seized their deposit”. Para. 93.

[104] Also, in Ahmad, the increase in the value of the house was considered as a significant factor on the authority of a 2017 case, that held “in a housing market in which land is an increasingly limited supply and home sales are often characterized by bidding wars among prospective buyers.” That case also identified that property as specifically within the GTA housing market.

[105] The only evidence before me is that the Gill house increased in value from $218,000 value to present day $387,000. There is no evidence of limited housing supply, or bidding wars, or of the defendants being blocked from purchasing a comparable house. I cannot take judicial notice of the situation in Brockville.

[106] In any event, in Ahmed, the Court held “nonetheless, specific performance should not be granted in the absence of evidence that the property cannot be readily substituted.” Para. 163. The Court went on to state, “the issue is whether the property has qualities that make it especially suitable for the purchaser and those qualities are not readily duplicated elsewhere.” There is no such evidence in the present case before me. This is not the case where the evidence is that “by the time of the breach of contract, comparable homes were no longer in the price range suitable for the plaintiffs. As well, many of the homes in the comparator samples did not share the same attributes which were of the subjective importance to the plaintiffs.” Ahmad, para. 173. This factor was simply not a consideration to the Gill parties in the circumstances of this agreement.

[107] Finally on this point, no party made submissions with respect to the increase in value of the house as being a head of damages for this court to consider. The defendants did not submit that as result of the breach of this agreement they are blocked from purchasing suitable housing, and there is no such evidence that effect.

[108] The plaintiff submits that he has suffered prejudice from the defendants’ delay in suing for specific performance, because of the increase in the value of the house.

[109] In my opinion, that point cuts both ways. One side or the other is going to benefit from that increase from the decision I have been asked to make.

No Inadequacy of Damages

[110] For the reasons I have set out above, the house itself was not the motivation for the April agreement. The purpose was to assist the son financially. There is no evidence that the house itself and any special attribute or future was being sought out by the defendants.

[111] Indeed, the defendants gave no evidence of any features of the house that they particularly enjoyed.

[112] In the Gill case, the increase in value in the house was not contemplated and it was not a reason for the April agreement.

[113] There is no evidence that the defendants are, as a result of the April agreement, blocked from acquiring suitable housing in Brockville.

[114] In essence, the defendants have maintained the carrying costs of the house that they have occupied since March 1, 2018. They did not pay out the balance of the mortgage.

[115] The determination of damages suffered by the defendants, as admitted by their counsel, is straightforward. It is not “particularly time consuming, difficult or complex to commute.” Lucas, para. 79.

[116] The damages claimed by the defendants are follows. They claim repayment of the sum of $13,017.89 together with interest at 10% per annum in the total amount of $7,204.42 as set out in the agreement, for a total of $20,212.31. They claim the rent contemplated under the agreement for six months at $700 per month, for a total of $4200. They claimed the arrears of tax which they paid in the amount of $6448.66. They also claim the monies that they paid out for “improvements and landscaping”, in the amount of $17,514.41. Jim Gill characterized the monies that defendants put into the house as “gardens, landscaping and small repairs.”

[117] The damages claimed therefore are in the total amount of $48,384.72.

[118] I accept that the house is the only asset available to satisfy a Judgment in favour of defendants in that amount. This was a factor considered in Ahmad, para. 175. It appears on the evidence that the increase in value of the house and the reduced mortgage principle which appears to be in the order of $130,000 as of August 2023 offers a ready source of funds to satisfy any such Judgment. Long lasting litigation to recover is not apparently necessary.\

Behaviour of the Parties

[119] The plaintiff failed to honour the agreement in not paying the rent and in not transferring title. He moved out in August 2018. Clearly, Ms. Gill was upset by the joint occupancy of the house. The plaintiff has refinanced the mortgage.

[120] The defendants have paid the carrying charges of the house they have been living in and there is no evidence that those were excessive or overly onerous, or other than the normal costs to be expected of living in a house in Brockville. The defendants did not pay out the mortgage as called for in the agreement. On October 10, 2018, Jim Gill is looking into refinancing “to prevent it from becoming registered for a tax sale”. There is no mention of payout of the mortgage (Ex. 29). The Defendants did not sue for specific performance, but rather waited until they were sued and then counterclaimed for specific performance.

[121] The increase in the value of the house has not been claimed as a head of damage by either party. It has been stated as a fact, but not advanced as a factor favoring one side or the other. There is no evidence as to the factors resulting in the increase. While Jim Gill observed that the doors and windows need replacing as do the bathroom fixtures and kitchen, he acknowledged that that was due to the age of the building and had nothing to do with any mistreatment of the building by the plaintiff. Jim Gill gave no evidence that maintaining the carrying charges or doing the improvements and landscaping that he paid for led to the increase in value. Repair of wind damage to the roof and water damage to the basement was not advanced as increasing the value, as opposed to preserving value.

Delay

[122] In accordance with the authorities cited above, I have considered as a minor factor that defendants did not seek specific performance until the plaintiff brought his action and they advance specific performance in a counterclaim. This is not a case, as in Ahmed, where “when it became clear that the closing would not occur, they took immediate steps to retain litigation counsel, and in anticipation of the breach commenced an application before the date of closing.” (para. 180).

Conclusion on Specific Performance

[123] Equity does not strongly favour the defendants for an order for specific performance.

Conclusion on the Counterclaim

[124] The defendants’ counterclaim for specific performance is dismissed.

[125] Judgment is granted in favour of the defendants against the plaintiff in the amount of $48,384.72. This includes the sum claimed as repayment of the loan between the parties together with interest.

[126] The defendants are granted six months from the date of these reasons to vacate the premises and deliver up vacant possession to the plaintiff. If a longer time frame is reasonably necessary, the matter may be spoken to before me upon reasonable notice.

Costs

[127] If the parties are unable to agree upon costs, after bona fide efforts to come to agreement with respect to costs, they may make written submissions to me limited to three pages of written submissions plus a cost outline and any necessary case authorities within 15 days of the date of this decision. If no costs submissions are received by the court within that time, there will be no order as to costs.

Tranmer J.

Released: December 18, 2023