Court File and Parties

COURT FILE NO.: CV-21-658357-0000 DATE: 20231124 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

QI SEN LI and LI JIN Plaintiffs – and – SYED WAJID HAMID Defendant

Counsel: Paul Mand and Amandip Sahi, for the Plaintiffs Syed Wajid Hamid, In Person

HEARD: November 9, 2023

A.P. Ramsay J.

Overview

At the conclusion of the motion for summary judgment, I dismissed the motion with reasons to follow.

Nature of the Motion

1The plaintiffs move for summary judgment for specific performance of the Agreement of Purchase and Sale dated November 20th, 2020 (“APS”) or, in the alternative, an order granting damages in the amount of $250,000.00 for breach of contract, and return of a deposit, in the amount of $15,000.00, plus interest.

2I was satisfied that the plaintiffs had not discharged their initial onus, on the evidence before the court, that there is no genuine issue requiring a trial with respect to the statement of claim.

Facts

3The APS before the court is between the plaintiff Qi Sen Li, as buyer, and the defendant, Syed Wajid Hamid, as seller, of a property municipally located at 1703 McCowan Road for a purchase price of $387,000.00. The Agreement calls for a $15,000.00 deposit, upon acceptance.

4The plaintiffs Qi Sen Li and Li Jin are husband and wife. On March 8, 2021, both commenced an action against the defendant Syed Wajid Hamid seeking, among other things, a declaration that the APS was a firm and binding agreement between the plaintiff, Qi Sen Li and the defendant, Syed Wajid Hamid. The remedy sought in the claim is an order directing specific performance of the APS or, in the alternative, damages for breach of the APS in an amount to be specified, leave to issue a certificate of pending litigation against the property, and punitive damages, plus interest.

5Paragraph two of the pleads that the plaintiff, Qi Sen Li, was the purchaser of the property. The plaintiff Li Jin, is alleged to have an interest in the action as the property was to be their matrimonial/family home. The plaintiffs allege that there are characteristics of the property which made it unique.

6The plaintiffs allege that the property was tenanted, and the defendant subsequently requested a mutual release claiming the property was a matrimonial home. The plaintiffs took the position that this was anticipatory breach of the APS. At paragraph 37 of the statement of claim, the plaintiffs plead that:

Irrespective of the foregoing, Mr. Berljawsky informed Mr. Ogunniyi that despite his client’s anticipatory breach, the Plaintiffs remained ready, willing, and able to close the purchase of the Property.

7No statement of defence was filed before the court.

Disposition

8For the reasons below, the plaintiffs’ motion for summary judgment is dismissed.

Analysis

The Law on Summary Judgment

9Rule 20.04(2)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, provides that the court shall grant summary judgment if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 34.

10The 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.

11If 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.

12In exercising his or her power under subrule 20.04(2.1), the judge may weigh the evidence, evaluate credibility of any deponent, and draw any reasonable inference from the evidence.

13However, 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. 44.

14There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits using the summary judgment process. This is the case when the process:

i. allows the judge to make the necessary findings of fact; ii. allows the judge to apply the law to the facts; and, iii. is a proportionate, more expeditious and less expensive means to achieve a just result: Hryniak, at para. 49.

15The jurisprudence has long established that although summary judgment is an important tool for enhancing access to justice and achieving proportionate, timely, and cost-effective adjudication, there is no imperative on the court to use it in every case: Trotter v. Trotter, 2014 ONCA 841, 122 O.R. (3d) 625, at para. 49; Lesenko v. Guerette, 2017 ONCA 522, 416 D.L.R. (4th) 349, at para. 30.

16In Hryniak, at para. 28, the Supreme Court indicated that the overarching goal is to have "a fair process that results in a just adjudication of disputes".

17I am satisfied that on the evidence before the court, there is a genuine issue requiring a trial with respect to the plaintiffs’ claim, and I need not resort to the enhanced fact-finding powers under rule 20.04(2.1). The evidentiary record cannot support a motion for summary judgment. While the unrepresented defendant’s responding materials, which I did not consider, consisted of unsworn evidence and were filed on the morning of the motion, in my view, the moving party nonetheless failed to meet the evidentiary burden for summary judgment. Mr. Hamid did make oral submissions at the motion. Mr. Hamid’s first language is Urdu. Mr. Hamid made submissions to the court, but based on his submissions, it appears he is suggesting that before the contract was formed, he asked his lawyer to get a mutual release when he understood his wife did not want to sell. None of Mr. Hamid’s evidence was under oath.

Evidence on Motion for Summary Judgment

18The motion is supported by the affidavit evidence of the plaintiff Li Jin, who is married to the co-plaintiff Qi Sen Li. Ms. Jin was not a party to the APS. The underlying claim is based on a contract. The plaintiffs have provided no authority to indicate that Ms. Jin is able to maintain an action, but her affidavit forms the basis of the material evidence relied upon by the plaintiffs in support of their motion for summary judgment.

19An affidavit is also provided by Jaspreet Dhaliwal, a licensed real estate agent, who was retained by the plaintiffs to search for “properties comparable” to the subject property.

20On a motion for summary judgment the court can only consider admissible evidence: see White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at para. 55; Moffitt v. TD Canada Trust, 2023 ONCA 349, 483 D.L.R. (4th) 432, at para. 68.

21In Moffitt, Brown J.A. stated, at para. 37:

The critical examination of the evidentiary record conducted by a court on a r. 20 motion offers the prospect, but not the certainty, of a final adjudication of a claim or defence on the merits without going to trial. Where a genuine issue requiring a trial exists, the motion will be dismissed and a trial will ensue. Conversely, however, r. 20.04(2)(a) requires that a 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.”

22The evidence need not be equivalent to that to be advanced at trial but must be such that the judge is confident that he or she can fairly resolve the dispute: Hryniak, at para. 57.

23The bar on a motion for summary judgment is high. It is essential to justice that claims disclosing real issues that may be successful proceed to trial: Canada (Attorney General) v. Lameman, 2008 SCC 14, [2008] 1 S.C.R. 372, at paras. 10 and 11.

24A 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] 3 S.C.R. 423, at para. 27; Lameman, at para. 11. The moving party must prove this and cannot rely on mere allegations or the pleadings: Lameman, at para. 11; 1061590 Ontario Ltd. v. Ontario Jockey Club (1995), 21 O.R. (3d) 547 (C.A.). If the moving party does prove this, the respondent must either refute or counter the defendant’s evidence, or risk summary dismissal: Lameman. Although it is well establish that each side must “put its best foot forward”, the jurisprudence establishes that 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, 402 D.L.R. (4th) 135, at para. 30; Connerty v. Coles, 2012 ONSC 5218, at para. 9. In my view the plaintiffs have not discharged their evidentiary burden.

25The plaintiffs allege in the statement of claim that on November 20th, 2020, the defendant accepted the plaintiffs’ offer to purchase the property for $387,000.00 with a completion date of January 18th, 2021. At paragraphs 20 to 22 of the statement of claim, the plaintiffs plead that:

20. The APS also provided for a deposit of $15,000.00 which was provided by the Plaintiffs to the Defendant’s realtor’s brokerage, Century 21 Innovative Realty Inc. (“Century 21”) on November 23rd, 2020 (the “Deposit”).
21. The Deposit is currently being held by Century 21.

26The APS is a contract. In this case, the contract is allegedly between the plaintiff Qi Sen Li and Syed Wajid Hamid. The only evidence before the court is from Li Jin, a stranger to the contract. There is no agreement between Ms. Jin and the defendant, Mr. Hamid.

27The plaintiffs are seeking a return of a deposit. The only evidence before the court that a deposit was paid is that of Ms. Jin. There is no evidence before me from Mr. Li that he provided the deposit.

28From the materials before me, there were conditions in the APS. The statement of claim alleges that the APS contained two conditions. At paragraph 22 of the statement of claim, the plaintiffs plead that:

The APS contained two conditions, namely a financing condition and status certificate review condition. These conditions were fulfilled/waived such that the APS became a firm and binding agreement for the parties on or by November 27ᵗʰ, 2020.

29Ms. Jin deposes that: “On or by November 27th, 2020, the APS became a firm and binding agreement when all conditions were waived thereunder by my Husband.” Ms. Jin does not indicate how she is aware of the waiver of conditions. There is no evidence from Mr. Li that all conditions were waived. In fact, there is no evidence from Mr. Li in the record indicating that the two conditions were fulfilled or that they were waived. Presumably the condition on financing was for the benefit of the defendant. Mr. Li has not put forward any evidence to indicate that he had obtained financing. On the evidence before me, Ms. Jin could not qualify for the mortgage. At paragraph eleven of her affidavit, Ms. Jin deposes: “We had pre-qualified to purchase a property in the range of $400,000.” Elsewhere in her affidavit Ms. Jin deposes: “I did not execute the APS because I was not going to qualify for the mortgage required to purchase the Property and therefore was not going to hold title to the Property.” There is no evidence as to when Mr. Li and Ms. Jin (“we”) pre-qualified, nor any evidence from Mr. Li that the financing conditions were fulfilled and/or waived.

30The statement of claim does not claim relief on the basis of anticipatory breach. The statement of claim does plead facts which the plaintiffs appear to be relying on in support of their position that there was anticipatory breach by the defendant of the APS. The defendant had apparently requested a mutual release and the defendant’s real estate lawyer had indicated the subject property was a matrimonial home. The evidence of anticipatory breach is entirely based on hearsay evidence. It is not clear, on the record, whether the purported anticipatory breach related to the property being tenanted or an alleged matrimonial property.

31On a review of the record before me, it appears that Mr. Li did not tender at the appointed time. The motions judge may make inferences of fact based on the undisputed facts before the court, as long as the inferences are strongly supported by the facts: Guarantee Co. of North America, at para. 30. At paragraph 23 of her affidavit, Ms. Jin deposes as follows:

23. On or about January 19th, 2021, the Defendant’s Anticipatory Breach of December 29th, 2020, crystallized, as such, me and my Husband were not required to tender despite remaining willing, able, and ready to close. Mr. Berljawsky wrote to Mr. Ogunniyi to advise he had formally noted the Defendant’s breach of the APS.

32The plaintiffs do not plead that they tendered on the closing date. In fact, a review of the record before the court suggests that Mr. Li took the position that he was not required to tender because of Mr. Hamid’s alleged anticipatory breach. An anticipatory breach sufficient to justify the termination of a contract occurs when one party, whether by express language or conduct, repudiates the contract or evinces an intention not to be bound by the contract before performance is due: Spirent Communications of Ottawa Limited v. Quake Technologies (Canada) Inc., 2008 ONCA 92, 88 O.R. (3d) 721, at para. 37, application for leave dismissed, [2008] S.C.C.A. No. 151; Pompeani v. Bonik Inc. (1997), 35 O.R. (3d) 417 (C.A.). Whether one party intended to breach the agreement is an objective determination. The court must determine whether a reasonable person would conclude that the breaching party no longer intends to be bound by the contract: see McCallum v. Zivojinovic (1977), 16 O.R. (2d) 721 (C.A.). Not all breaches amount to a repudiation of the contract. The innocent party must be deprived of substantially the whole benefit of the contract: Spirent, at para. 37. The plaintiffs did not advance the argument of anticipatory breach on the motion. Even if they had, they also appear to maintain that the contract was still in force and effect by insisting on specific performance. An innocent party may elect to treat a repudiated contract as still being in force and effect, thereby affirming it and keeping alive the obligations of both parties, or may accept the repudiation, discharging the parties from future obligations under the agreement, and sue for damages.

33This brings the court to the question of whether Mr. Li was required to tender. The jurisprudence establishes that “[t]he law does not require a nugatory and meaningless ritual to be performed": Stewart v. Ambrosino (1977), 16 O.R. (2d) 221 (C.A.) at p. 222; Botos v. Collier. 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), 5 O.R. (2d) 747 (High Ct.); 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, at para. 9.

34The plaintiffs seek specific performance in this action, which is an equitable remedy. A party seeking specific performance cannot be in default and must be ready, willing, and able to complete the transaction. In Remedies and the Sale of Land, 2nd ed. (Toronto: Butterworths, 1998), at p. 170, authors Paul M. Perell and Bruce H. Engell state:

An agreement for the sale of land will in one way or another specify a time for the closing of the transaction. Whether or not a party is ready to proceed on the closing date is a factor in determining the availability of specific performance. A party and must be ready, willing and able to perform and desirous, prompt and eager to complete the contract at the appointed time.

35In this case there is no evidence before the court that tender was waived. There is no evidence from Mr. Li, the party to the contract, to indicate that he was ready willing and able to complete the transaction. Mr. Li has not met the evidentiary onus of showing that he was ready, willing, and able to tender. Ms. Jin deposes that the defendant did not complete the sale of the property on the closing date. However, there is no evidence before the court that Mr. Li tendered, and the court is left to speculate as to whether Mr. Li was also in default of the financing condition. I will revisit this issue below.

36As for the uniqueness of the particular property, the only evidence on the “uniqueness” of the property comes from Ms. Jin’s affidavit, and her evidence is merely a reliance on the allegations in the statement of claim.

Deficiency in the Evidence on this Motion

37As stated by a unanimous Supreme Court in Lameman, at para. 19: “A motion for summary judgment must be judged on the basis of the pleadings and materials actually before the judge, not on suppositions about what might be pleaded or proved in the future.”

38The principles governing the admissibility of evidence are the same on a summary judgment motion as at trial, with the limited exception of affidavit made on information and belief: Sanzone, at para. 15. Ms. Jin’s affidavit, for the most part, does not comply with rule 39.01(4) of the Rules of Civil Procedure, as she repeatedly fails to specify the source of her information and the fact of her belief. Documents are attached as “Exhibits” which contain hearsay would otherwise be inadmissible at trial, if attempted to be proved through her evidence.

39Evidence on a motion should be admissible. While the Rules have carved out a process for receiving hearsay evidence, the Rules also specifically exempt facts that are contentious from this process, and the jurisprudence is well established on the issue.

40On a motion for summary judgment, the court is entitled to assume that the record contains all the evidence which the parties will present if there is a trial: Dawson v. Rexcraft Storage and Warehouse Inc. (1998), 164 D.L.R. (4th) 257 (Ont. C.A.), at para. 17, Rogers Cable T.V. Ltd. v. 373041 Ontario Ltd. (1994), 22 O.R. (3d) 25 (Gen. Div.).

41Pursuant to subrule 39.01(4) of the Rules, an affidavit on a motion based on information and belief must set out the source of the information and the fact of the belief. Subrule 39.01(4) provides that:

An affidavit for use on a motion may contain statements of the deponent’s information and belief, if the source of the information and the fact of the belief are specified in the affidavit.

42Pursuant to subrules 4.06(1)(d) and (2) of the Rules, an “affidavit shall be confined to a statement of facts within the personal knowledge of the deponent or to other evidence that the deponent could give if testifying as a witness in court, except that an affidavit may contain statements of the deponent’s information and belief with respect to facts that are not contentious, provided that the source(s) of the information and the fact of belief are specified in the affidavit, or except where these rules provide otherwise” [emphasis added].

43Subrule 4.06(2) of the Rules provide that:

(2) An affidavit shall be confined to the statement of facts within the personal knowledge of the deponent or to other evidence that the deponent could give if testifying as a witness in court, except where these rules provide otherwise. [Emphasis added.]

44Rule 20.02(1) provides as follows:

An affidavit for use on a motion for summary judgment may be made on information and belief as provided in subrule 39.01(4), but, on the hearing of the motion, the court may, if appropriate, draw an adverse inference from the failure of a party to provide the evidence of any person having personal knowledge of contested facts.

45The case law in Ontario establishes that statements in an affidavit based on information and belief ought to be restricted to matters which are not contentious: R. v. Chan, [2007] O.J. No. 4734 (S.C.); CPC International Inc. v. Seaforth Creamery Inc., [1996] O.J. No. 1353 (S.C.), 49 C.P.C. (3d) 363, at para. 28.

46The best evidence rule may be appropriate if facts are contentious. As stated by Cumming J. in CPC International, at para. 28:

Motions generally require an underlying evidentiary basis. That is, there needs to be a source of information. It is normal practice for motions to be heard on the basis of affidavits and the cross-examinations of parties on such affidavit evidence. Under rule 39.01, evidence on a motion may be given by affidavit (and may be given on "information and belief") or by examination for discovery or orally. If there is contentious evidence the court may invoke the best evidence rule to require more evidence.

47In R. v. Church of Scientology, [1984] O.J. No. 465 (Ont. H.C.), at para. 6, Osler J. stated:

…it is proper that the affiant disclose on the face of the document what is personal knowledge and what is information and belief, and the grounds for such belief should be stated….because it is in accordance with the whole purpose of the law of evidence, namely, to furnish some assurance that the evidence is worthy of belief, and to indicate the circumstances that make it possible to determine the degree of credibility that attaches to it.

48On the hearing of the motion, the court may, if appropriate, draw an adverse inference from the failure of a party to provide the evidence of any person having personal knowledge of contested facts. In making the determination required by Rule 20.04(2)(a), the court is to consider the evidence submitted by the parties, and pursuant to Rule 20.04(2.1), may weigh the evidence, evaluate the credibility of a deponent, and draw any reasonable inference from the evidence, unless it is in the interest of justice for such powers to be exercise only at trial: Kode Contracting Ltd. v. B.K. Industrial Power Inc., 2020 ONSC 7354, at para 9.

49I therefore draw an adverse inference on the failure of Mr. Li, the actual party to the contract, to provide evidence on the agreement, the deposit, tender, and his expectations, as the purchaser of the property, with respect to the property.

Conclusion

50In my view, the moving party has not discharged its evidentiary onus. The onus has not shifted to the responding defendant in this case. There is no admissible evidence upon which court could fairly conclude that there is no genuine issue requiring a trial with respect to the plaintiffs’ claims. Given the state of the record, a trial could not be avoided by using the enhanced powers under rule 20.04(2.1) of the Rules, which allows the court to weigh evidence, evaluate the credibility of a deponent, and draw any reasonable inference from the evidence.

51On a final note, after hearing Mr. Hamid’s submissions, I explored whether he required an interpreter. Mr. Hamid indicates that he speaks and understand English. Mr. Hamid has also been encouraged to access Pro Bono Legal and to seek legal assistance.

Costs

52At the conclusion of the hearing, I indicated that I was not inclined to award costs but did hear submissions with respect to costs. The plaintiffs submit that cost should be reserved to the trial judge. The defendant did not articulate his position with respect to costs. In accordance with rule 57.03, I am not inclined to reserve costs and would fix them, were I to award any. The plaintiffs were not successful on this motion but given the number of adjournment requests sought and granted to the defendant, and the late filing of materials by the defendant, I am not inclined to award any costs to the defendant.

A.P. Ramsay J.