Court File and Parties

Court File No.: CV-22-00686432-0000 Court File No.: CV-22-00687332-0000 Date: 2024-01-19 Ontario Superior Court of Justice

Between: EVA GLADYS ADUSEI and MARK ANTHONY GRUENBERG, Applicants And: ANTHONY RAVINDRA and ANOSHINI MANOGARAN, Respondents

Counsel: Romesh Hettiarachchi, for the Applicants Eva Gladys Adusei and Mark Anthony Gruenberg Paul Dollak, for the Respondents Anthony Ravindra and Anoshini Manogaran

Between: ANTONY RABEE ANTON RAVINDRA and ANOSHINI MANOGARAN, Applicants And: EVA GLADYS ADUSEI, MARK ANTHONY GRUENBERG and RE/MAX COMMUNITY REALTY INC., Respondents

Counsel: Paul Dollak, for the Applicants Antony Rabee Anton Ravindra and Anoshini Manogaran Romesh Hettiarachchi, for the Respondents Eva Gladys Adusei and Mark Anthony Gruenberg

Heard: July 25, 2023

Reasons for Judgment

VERMETTE J.

[1] These two Applications arise out of a residential real estate transaction that failed to close.

[2] Eva Gladys Adusei and Mark Anthony Gruenberg apply for relief from forfeiture of a deposit in the amount of $90,000.00 paid pursuant to an agreement of purchase and sale that they entered into with Antony Rabee Anton Ravindra and Anoshini Manogaran for the purchase of a house in Whitby, Ontario.

[3] In turn, Mr. Anton Ravindra and Ms. Manogaran apply for: (a) a declaration that Ms. Adusei and Mr. Gruenberg breached the agreement of purchase and sale; (b) a mandatory order that RE/MAX Community Realty Inc. (“RE/MAX”) release the $90,000.00 deposit to Mr. Anton Ravindra and Ms. Manogaran; and (c) damages as against Ms. Adusei and Mr. Gruenberg in the amount of $110,000.00.

[4] I conclude that Ms. Adusei and Mr. Gruenberg breached the agreement of purchase and sale, and that Mr. Anton Ravindra and Ms. Manogaran are entitled to the release of the $90,000.00 deposit and damages in the amount of $110,000.00 given that the market value of the property on the date of closing was $200,000.00 less than the purchase price under the agreement of purchase and sale.

A. Factual Background

1. The parties and the agreement of purchase and sale

[5] Ms. Adusei and Mr. Gruenberg are married. Mr. Anton Ravindra and Ms. Manogaran are also married.

[6] In March 2022, Ms. Adusei and Mr. Gruenberg (together, the “Buyers”) agreed to purchase a residential home in Whitby, Ontario (“Property”) from Mr. Anton Ravindra and Ms. Manogaran (together, the “Sellers”). The parties signed an agreement of purchase and sale on March 10, 2022 (“APS”). The agreed-upon purchase price was $1,515,000.00 and the closing deadline for the transaction was 6 p.m. on June 30, 2022. The APS contained the standard clause that time was of the essence. A deposit in the amount of $90,000.00 (“Deposit”) was to be paid to RE/MAX by the Buyers within 24 hours of the execution of the APS. The Deposit was paid.

[7] In addition to being a purchaser, Ms. Adusei was also the real estate agent of record for the Buyers. The Sellers’ real estate agent was Sangiv Emiliyanus. At the relevant time, Mr. Emiliyanus was a sales representative at the Respondent RE/MAX. RE.MAX does not take a position in this proceeding.

[8] In addition to receiving two offers from the Buyers (including the one that was accepted), the Sellers received four offers from other potential buyers for the Property in March 2022:

a. Offer dated March 8, 2022 in the amount of $1,300,000.00. b. Offer dated March 10, 2022 in the amount of $1,100,000.00. c. Offer dated March 10, 2022 in the amount of $1,285,000.00. d. Offer dated March 10, 2022 in the amount of $1,365,000.00.

[9] All excerpts from text messages, e-mails and other documents reproduced in these Reasons are quoted verbatim. For reasons of readability, I have not inserted “[sic]” when there were spelling or grammatical errors in the quoted text.

2. Communications in March and early April 2022 regarding the Buyers’ ability to close the transaction

[10] Ms. Adusei’s evidence is that soon after signing the APS, the Buyers learnt some information about their respective employment situations that led them to believe that they may not be able to obtain the financing that they needed to satisfy their obligations under the APS. Ms. Adusei states the following in her affidavit:

As a result of these events, it became clear to Mark and I that we may not be able to obtain the financing we needed to satisfy our obligations under the APS.

As a sign of good faith, we promptly notified the Sellers realtor, Sanjiv Emiliyanus (“Sanjiv”), on March 12, 2022 that we would not be able to close on the Property due to circumstances not of our own making. During these same conversations, we indicated to the Sellers that they ought to relist the Property as soon as possible so that they can get a more favorable listing price. We even offered to pay for any staging costs of the property to get it relisted in the market for any future clients. Attached is Exhibit "B" is a screenshot of this text message to Sanjiv.

[11] The text messages attached to Ms. Adusei’s affidavit are not completely consistent with this paragraph. The screenshot shows that on a date prior to March 18, 2022 (the exact date does not appear on the screenshot), Ms. Adusei sent the following text message to Mr. Emiliyanus:

Thanks for calling back! My hubby will have to stay back here for some months and rent… we will make it work :)

[12] Mr. Emiliyanus responded: “Ok thanks Eva all the best for you guys thanks, have a great night.”

[13] Thus, I do not have a communication in writing before me showing that Ms. Adusei advised Mr. Emiliyanus on March 12, 2022 that the Buyers were not going to be able to close. If Ms. Adusei did so advise Mr. Emiliyanus on March 12, 2022, either orally or in writing, it appears that she subsequently changed her position as she stated in the text message reproduced above that the Buyers would “make it work”.

[14] However, Ms. Adusei did send a text message to Mr. Emiliyanus on March 18, 2022 stating that the Buyers were not going to be able to close. She wrote:

Hi Sangiv, unfortunately so much has transpired and we are not able to close on this property. My deepest apologies to you and your client [emoji] we are in love with the house and we were in the middle of plans to move in… the circumstances we are in ate beyond our control

I will pay for staging, anything to recover your costs and time with selling this property… have you reached out to the previous offers? Or even with 48 Lockyer? I’m sure there are still interested buyers

Please call me at your earliest convenience.

[15] Having not heard back from Mr. Emiliyanus, Ms. Adusei sent him a follow-up text message on March 19, 2022. On March 20, 2022, Mr. Emiliyanus informed Ms. Adusei that he had spoken with Mr. Anton Ravindra and that Mr. Anton Ravindra had said that he would call him back on that day. Mr. Emiliyanus wrote that he would update Ms. Adusei shortly.

[16] On March 22, 2022, Mr. Emiliyanus provided Mr. Anton Ravindra’s phone number to Ms. Adusei. Mr. Adusei’s evidence is that she spoke with Mr. Anton Ravindra on or about the same day. She states that she conveyed to Mr. Anton Ravindra the Buyers’ difficulties to get financing to complete the purchase of the Property, and she told him that she had her own clients who would be willing to purchase the Property at the same price. According to Ms. Adusei, Mr. Anton Ravindra responded that he was not willing to consider any other offer to complete the transaction and that he would continue to expect the transaction to be completed as previously agreed.

[17] At some point before March 27, 2022 (date unknown), Ms. Adusei sent the following text message to Mr. Emiliyanus:

Good morning Sangiv, My situation has honestly taken a turn for the worst, I am now unable to return to work as I chose not to receive the vaccine, I am a registered nurse by background and just recently got into real estate.

Due to my work situation ... we no longer have a preapproval as there is “no guaranteed income” I am really hoping your client will find it in his heart release me. I have tried everything ... have you reached out to the other agents? I will pay for staging with “a lady’s touch” they are amazing. This is affecting me and my entire family ... I have little ones who need all of me in a good mindset. I know this is stressful for you and your client too but I pray we can come to common grounds ... I hope he will find it in him to understand. Either way we won’t be able to get a mortgage for the house and I am willing to put my all in to get him another buyer

I am so sorry

Please call me

When you can

[18] Ms. Adusei sent follow-up messages on March 27 and 29, 2022. Mr. Emiliyanus responded on March 29, 2022 and said that he would call her.

[19] On March 31, 2022, Ms. Adusai sent the following text message to Mr. Emiliyanus:

Good morning Sangiv [emoji] my heart is weighing heavy everyday.. We just did not expect this situation in our life and just hope and pray that Anthony would find it in his heart to understand us. We have little kids that this would affect them greatly! I would agree on compensating him… anything… That is how desperate we are. Again, I am so sorry that you are in the middle of this. Very sorry to Anthony as I know he is juggling a lot too after my discussion with him. I am hoping we can come to an agreement [emoji]

[20] Mr. Emiliyanus responded that he understood Ms. Adusei’s situation, and that he would talk to Mr. Anton Ravindra again and let her know.

[21] Ms. Adusei sent a number of text messages to Mr. Emiliyanus in early April 2022. In some of her messages, she suggested that the Buyers would be able to close if the purchase price was reduced. She sent the following text messages, among others:

a. April 2, 2022: “I have been trying to see if we can make this work… its been tough… I Spoke to a few Mobile mortgage Agents and they both require appraisals with lender that are willing in my situation and by the info I have shared… they are coming in much lower but they would need to see the home.

Please let me know if they are okay with that and we can schedule a date and time!

Thanks Sangiv”

I note that, based on separate text messages between Mr. Anton Ravindra and Mr. Emiliyanus, the Sellers appeared to be willing to have an appraiser or a person from the bank come inside the Property.

b. April 3, 2022: “My max I can pull from my home is 460. They have approved for 1M short term Mortgage.. if he is not okay with it, we can move on and let the lawyers handle it. I’ve tried all I can and have been transparent about our personal situation in hopes That Anthony would understand.

I will wait for your response and proceed as such!

Thank you Sangiv again and I am truly sorry to both of you.”

c. April 6, 2022: “Hi Sangiv, a very interested agent would like to see [the Property], is seller open to it?”

I note that there is no written response from Mr. Emiliyanus to this message in the record before me.

d. April 7, 2022: “Good morning Sangiv, one more attempt. Trying to pull some strings together, would your seller kindly agree to commission? I’m pulling all the strings I can but if he can agree to commission 2.5% or at least deduct on price (which would be best for both in terms of taxes) I could make this work. I know his decisions are beyond you but I can make it work if he can find it in his heart to agree.

Thanks again Sangiv, I won’t message you regarding this situation after this. Will leave it to the lawyers.

I will wait to hear from you.

Thank you.”

[22] Mr. Emiliyanus either did not respond to the messages above or told Ms. Adusei that he would speak with Mr. Anton Ravindra and get back to her. On April 12, 2022, Mr. Emiliyanus sent the following message:

Good morning Eva I spoke to him and he is standing firm in his decision, so ask him his lawyer information so he will send me soon and will send you soon as I get it from him. Thanks.

[23] Also on April 12, 2022, Ms. Adusei sent an e-mail to Mr. Emiliyanus that read as follows:

Hello Sangiv,

I hope this email find your and yours well!

Thank you again for your attempts in trying to mediate this situation between your seller, me self and my husband.

I understand from communication with you that it does not seem like the seller Anthony and his wife are not willing to release myself and my husband from the binding contract.

We have attempted to negotiate terms with the seller including informing him of interested buyers to take over the APS, my willingness to pay for Damages and even pay to staging for you Sangiv to relist the home, we have been opened to any suggests for your sellers end and there has been little communication.

It has been approx a month of attempting to negotiate with the seller. I have informed my lawyer who will now mediate this situation.

Thank you again for your efforts, time and understanding. I truly apologize for any inconvenience this has cause you as well.

3. Evidence regarding other potential buyers after the APS was entered into

[24] Ms. Adusei gives the following evidence in her affidavit:

As an alternative, I also offered to introduce to Sanjiv a number of other potential purchasers who were interested in buying the Property for the same price. Sanjiv’s response to me was that the Sellers was not open to anyone else agreeing to purchase the house. Based on the information from Sanjiv, I understand the Sellers were aware of these offers but refused to accept these alternatives. Screenshots of my text communications with Sanjiv are attached as Exhibit E .

[25] Ms. Adusei also states as follows:

It is accurate to say that we had multiple interested parties – including other agents and their clients – wishing to view the property. However, the Sellers were not interested in these opportunities. They refused to let any potential buyers in to visit the Property. By their own admission, they insisted they close the transaction with me and my husband.

[26] Mr. Anton Ravindra’s evidence is that it is not true that the Sellers refused to allow any potential purchasers to look at the Property. He states the following in his affidavit:

Adusei’s assertion that my wife and I “refused” to allow any other potential purchasers to look at the Property is categorically untrue. We did, yes, take the position, as she asserts, that the Agreement of Purchase and Sale should close in accordance with its terms, as we were entitled to do. But as for refusing to allow anyone to see the Property, we were never asked so, first, it is untrue that we refused and, second, what we might have said or done had we been asked is a matter of speculation.

As set out in my previous affidavit, the only potential “buyer” that Adusei ever brought to our attention was an individual who I was told was not interested in seeing the Property in person. (I put “buyer” in quotes because I am not sure whether this person even exists, Adusei never having disclosed the person’s identity.)

[27] Ms. Adusei denies saying that she knew of a potential buyer who could purchase the Property without looking at it.

[28] In support of her position that there were a number of interested purchasers, Ms. Adusei relies on the text messages that she exchanged with Mr. Emiliyanus, most of which are set out above. However, these text messages do not support Ms. Adusei’s evidence that: (a) there were a number of potential purchasers interested in buying the Property for the same price; and (b) there were multiple interested parties – including other agents and their clients – wishing to view the property. Among other things, there is only one text message where Ms. Adusei refers to an interested agent who would like to see the Property (on April 6, 2022). If there were multiple interested purchasers or agents, as Ms. Adusei asserts, one would have expected to see supporting communications attached to Ms. Adusei’s affidavit, including communications from agents.

[29] The record was slightly supplemented following Ms. Adusei’s cross-examination. During her cross-examination, Ms. Adusei gave the following evidence on the issue of the other potential buyers:

Q. Did any of the agents that you say had three or four purchasers who were interested in purchasing this home indicate to you in writing that they wanted to take a look at the home?

A. Absolutely.

Q. Where are those writings?

A. So I'd have to -- I can provide that.

[30] Ms. Adusei gave an undertaking to provide copies of such communications and of any evidence in writing that anybody was interested in purchasing the Property after she had entered into the APS. She was also asked for the names of the other agents who had potential purchasers. This question was taken under advisement. Ms. Adusei confirmed that she had had no direct contact with the potential buyers.

[31] In her answers to undertakings, Ms. Adusei provided the name of only one agent, Kate Hachaj, and the following explanation:

I had conversations with agents in a community facebook connect group as I had posted the property. Because I was not given they okay to have agents show the property I ended up deleting the post as I kept receiving calls from interested agents and their clients wanted to see the home but couldn’t as the seller would allow. So far, I can only find one agent that I had a messenger conversation with. Other conversations were agents who called me and were interested in viewing the property. I do not no recall these agents nor do I have their contact details. Again I did however have a conversation with an agent via phone and via facebook messenger who had an interested client who scoped the property, however they of course were not able to view the property as the seller would not allow for anyone to enter the home to view it. The agent had called me to let me know that they drove by and wanted to see the property.. I had a phone conversation with the sellers agent and he reported the sellers would let anyone into the property. So nothing of course came out if that. (see Facebook messenger messages below).

[32] The Facebook Messenger messages attached to Ms. Adusei’s answers to undertakings show that Ms. Hachaj sent a message to Ms. Adusei on March 22, 2022 asking Ms. Adusei to send the details for the Property as one of her buyers was “quite interested”. Later on that day, Ms. Adusei sent the floor plan of the Property and some pictures. It does not appear that Ms. Hachaj sent any response. However, two weeks later, on April 6, 2022 at 10:55 a.m., Ms. Hachaj sent another message to Ms. Adusei asking her if she had found a buyer yet. Ms. Hachaj stated that another agent had a buyer who was potentially interested and she asked if she could “pass the info”. She also asked Ms. Adusei to “clarify the price, deposit structure and co op.” After exchanging a few messages with Ms. Adusei, Ms. Hachaj noted that the other agent and his client were going to be in Whitby at 12:30 p.m. and she stated: “Any chance for a showing?” The following exchange followed:

Ms. Adusei: “Hmm… are they extremely interested?”

Ms. Hachaj: “Let me find out first. Can they pass by the address?”

Ms. Adusei: “Yes of course”

Ms. Hachaj: “Ok great thank you”

Ms. Adusei: “But don’t go knock Or anything”

Ms. Hachaj: “Of course!”

Ms. Adusei: “Okay, thank you Let me know okay”

[33] No further messages from Ms. Hachaj were produced.

[34] I note that, as set out above, Ms. Adusei sent a text message to Mr. Emiliyanus on the same day – April 6, 2022 – at 12:51 p.m. stating that “a very interested agent would like to see” the Property and asking if the Sellers were “open to it”. As also stated above, there was no written response from Mr. Emiliyanus. However, the request was made at the last minute since, according to Ms. Hachaj’s message, the agent was going to be in Whitby at 12:30 p.m. that day.

[35] There is no documentary evidence demonstrating that other requests were made to show the Property to potential buyers. There is also no documentary evidence showing that the Sellers categorically refused to have potential buyers come visit the Property. The fact that Ms. Adusei made a request on April 6, 2022 suggests that there was no categorical refusal at that time.

[36] Thus, while there is some evidence that there may have been some interest in the Property on the part of a small number of buyers, I find that Ms. Adusei’s evidence on this point in her affidavits and cross-examination was greatly overstated, and that there is no evidence that there were “a number of other potential purchasers who were interested in buying the Property for the same price.” [Emphasis added.]

[37] However, given my conclusions below on the applicable legal principles and how they apply to this case, the issue of whether there were potential buyers interested in purchasing the Property after the APS was entered into at a similar price is not material.

4. Subsequent communications prior to the closing date

[38] In mid-April 2022, Mr. Anton Ravindra sent text messages to Mr. Emiliyanus inquiring as to whether the Buyers had sent their lawyer’s information. Mr. Emiliyanus responded that they had not and that he would follow up with Ms. Adusei.

[39] On May 4, 2022, Mr. Anton Ravindra sent another text message to Mr. Emiliyanus inquiring as to whether the Buyers had sent their lawyer’s information. Mr. Emiliyanus responded as follows: “She put her house for sale yesterday Looks like she going to close”.

[40] On May 14, 2022, Ms. Adusei asked Mr. Emiliyamus whether his clients were still open to a delay in closing. Mr. Emiliyanus indicated that Mr. Anton Ravindra was out of the country but that he could ask him. He asked Ms. Adusei how many days she was requesting for the extension. Mr. Adusei did not specify how long an extension she was seeking. Instead, her answer was that if she could find a buyer for her house, then she would not need an extension.

[41] On May 18, 2022, the Buyers entered into an agreement of purchase and sale to sell their own house for $1,350,000.00. The closing date was July 8, 2022.

[42] On June 9, 2022, Ms. Adusei contacted Mr. Emiliyanus and stated that she wanted to “book a showing for tomorrow” at the Property at 11 a.m. Mr. Emiliyanus sent this information to Mr. Anton Ravindra with the following comment: “She is asking a first visit for the house”. Mr. Anton Ravindra responded that she had already had a few visits. It appears from the text messages that there were availability issues and, ultimately, Ms. Adusei did a “walkthrough” of the Property on June 18, 2022. Mr. Anton Ravindra met with Ms. Adusei at the Property on that day. Later that day, Mr. Anton Ravindra sent the following text message to Mr. Emiliyanus: “She came and left, looks like they closing”. Mr. Anton Ravindra’s evidence is that Ms. Adusei told him on that day that she had sold her own house and was arranging a bridge mortgage, and that the Buyers were excited to move into the Property.

[43] On June 20, 2022, Mr. Anton Ravindra, Ms. Manogaran and their infant son moved out of the Property in preparation for the closing and pursuant to their obligation to give up vacant possession on June 30, 2022.

[44] One June 28, 2022, the lawyer retained by the Sellers sent the following e-mail to the Buyers’ lawyer:

Good evening,

We have been retained by the sellers on the subject transaction today.

Since the closing is on the 30th June 2022, please urgently provide the requisitions along with the parcel register and copy of the charge.

Kindly confirm the receipt of this transaction.

Thank you.

[45] The Buyers’ lawyer responded the following day. He stated that “we are doing our best”, and he asked the Sellers’ lawyer whether they could have a conversation regarding this file.

5. Events on June 29 and 30, 2022

[46] On June 29, 2023, the Buyers’ lawyer sought an extension of the closing date. It does not appear that the specific length of the extension sought was communicated. The Sellers’ lawyer sent proposed extension terms to the Buyers’ lawyer shortly after 5 p.m.

[47] A number of e-mails were exchanged on June 30, 2022 between the parties’ lawyers. In the morning, the terms of a possible extension were discussed. However, no agreement to extend the time for closing was reached.

[48] At 11:32 a.m., the office of the Sellers’ lawyer sent the following e-mail:

Please see attached our closing documents.

We agree to adopt Law Society approved DRA.

Thank you.

[49] Based on answers to undertakings that were provided by Mr. Anton Ravindra, the following documents were delivered to the Buyers’ lawyer in connection with the closing:

a. Amended Statement of Adjustments. b. Direction to the Buyers’ lawyer to make the balance due on closing payable to the Sellers’ lawyer. c. Undertaking of the Sellers’ lawyer regarding the payment and discharge of a mortgage. d. Undertaking, Warranty, Direction and Declaration of the Sellers. e. Mortgage Payout Statement of Royal Bank of Canada dated June 29, 2022.

[50] The answers to undertakings also show that a Transfer was sent to the Buyers’ lawyer via Teraview for his review on June 30, 2022 at 6:38 a.m. [1]

[51] The documents that required the signature of the Sellers or their lawyer were all signed before 11 a.m. on June 30, 2022.

[52] At 2:16 p.m., the office of the Sellers’ lawyer sent another e-mail stating the following:

Our Clients are ready to close this transaction today.

Please let us know the status of funding.

Thank you.

[53] At 2:42 p.m., the Buyers’ lawyer sent the following e-mail to the Sellers’ lawyer:

We are not in a position to close today.

This in part is a result of the change in market conditions which have made it more difficult to get financing but is also attributed to your client not being reasonable in refusing my client initial efforts to assign the agreement at the same price to another party and our more recent efforts to extend the transaction.

I will also note that on closer review of the Purchase Agreement it seems only one party signed the APS. The failure for both sellers to sign the APS is arguably fatal to the Agreement. [2]

I am out of the office for the rest of the day today but will speak to [the Sellers’ lawyer] next week.

Have a good weekend.

[54] At 3:03 p.m., the Sellers’ lawyer wrote as follows:

Is your client requesting for an extension at this point? The closing is scheduled for today and our client is ready and willing to close today. Your client did not formally request an extension until now and simply stating that they cannot close today at around 3pm without being available for further discussions today. I will convey your message to my client.

[55] At 5:07 p.m., the law clerk in the office of the Sellers’ lawyer sent an e-mail to the Buyers’ lawyer stating: “You have not closed this transaction today and therefore we are noting you in default.”

[56] During his cross-examination, Mr. Anton Ravindra stated that he went to the Property on the closing date with the keys. Mr. Emiliyanus was supposed to meet him there and put the keys in a lockbox. It does not appear that the keys were ever put in a lockbox.

6. Subsequent events

[57] On July 5, 2022, the Sellers’ lawyer sent an e-mail to the Buyers’ lawyer requesting that the Deposit be released without conditions since the transaction did not close as scheduled. He stated that the Sellers intended to relist the Property for sale. There was no consent to release the Deposit.

[58] On July 8, 2022, the sale of the Buyers’ house closed.

[59] On July 11, 2022, the Sellers relisted the Property.

[60] On July 18, 2022, the Sellers received two offers, one in the amount of $1,100,000.00, and one in the amount of $1,110,000.00. Both offers were more than $400,000.00 lower than what the Buyers had agreed to pay for the Property.

[61] The Sellers subsequently decided to raise the listing price in the hope that that might result in higher offers. However, no more offers were received. The Sellers then “decided that the best thing to do was to keep the Property until market conditions improved, renting it out in the meantime and continuing to rent a space to live for ourselves pending completion of the new home that we had agreed to purchase the previous year.”

[62] The Buyers commenced their Application on August 12, 2022. The Sellers commenced their Application on September 13, 2022.

7. Expert evidence

[63] The Sellers retained Elizabeth Marshall, a member of the Appraisal Institute of Canada, to provide an expert opinion regarding the value of the Property as of June 30, 2022, i.e., the closing date. Ms. Marshall has been appraising properties for more than 35 years. Ms. Marshall’s opinion is that the value of the Property as at June 30, 2022 was $1,315,000.00.

[64] In her responding affidavit, Ms. Adusei criticized aspects of Ms. Marshall’s appraisal report. I do not accept this evidence. Ms. Adusei is not an appraiser and, as a party and a non-expert, her opinion evidence is not admissible. In any event, I note that Ms. Marshall provided explanations for the points raised by Ms. Adusei in a supplementary affidavit. During her cross-examination, Ms. Marshall acknowledged that, prior to June 2022, properties similar to the Property would have sold for a higher price than her estimated value as at June 30, 2022, and maybe as high as over $1.4 million.

[65] The record does not contain any expert/appraisal evidence regarding the market value of the Property at any time prior to June 30, 2022.

B. Submissions of the parties

1. Submissions of the Sellers

[66] The Sellers state that damages for breach of contract where the purchasers have not closed are calculated on the basis of what would place the vendors in the monetary position that they would have been in had the purchasers not breached the agreement of purchase and sale. They submit that the loss of the bargain, or loss of the value of the sale (contract price minus market value of the land) is the measure of those damages. Their position is that damages have to be assessed at the date the contract was to be performed, i.e., the date of closing.

[67] The Sellers argue that their damages should be calculated as follows: $1,515.000.00 (the total purchase price under the APS) minus $1,315,000.00 (Ms. Marshall’s appraised market value as at June 30, 2022) = $200,000.00. Given that the Sellers are seeking an order that the Deposit be released to them, they ask the Court to award damages in the amount of $110,000.00 ($200,000.00 - $90,000.00). The Sellers submit that Ms. Marshall’s appraised value is conservative given that the Sellers could not obtain offers higher than $1,110,000.00 in July 2022.

[68] According to the Sellers, there is no evidence whatsoever in respect of any disproportionality between the value of the Deposit and the quantum of damages. Their position is that there cannot be any disproportionality given that the decline in the Property’s value exceeded the Deposit, which is why they seek not only the release of the Deposit, but damages as well. They state that there is no question of unconscionability and, therefore, the Buyers’ application for relief from forfeiture must fail. They submit that the same conclusion would be reached on the Buyers’ theory that the Sellers ought to have mitigated their damages by accepting an early repudiation of the APS because there is no evidence of any lack of proportionality that would make the return of the Deposit unconscionable. The Sellers rely on the evidence that there was a general decline in values taking place during the material time prior to the closing date.

[69] The Sellers argue that they took reasonable steps to mitigate their damages by seeking to sell the Property immediately after closing and then, seeing that they might lose as much as $400,000.00, deciding to hold on to the Property even though this caused them considerable hardship.

[70] The Sellers state that the proposition made by the Buyers that the Sellers ought to have accepted their alleged repudiation and then relisted the Property and/or sued them for damages is without precedent and contrary to well-established and binding caselaw. The Sellers submit that they had every right to reject the Buyers’ proposed early repudiation of the APS. They also point out that there never was any unequivocal repudiation before 2:42 p.m. on the day of closing.

[71] According to the Sellers, tender is not required from an innocent party when the other party has clearly repudiated the agreement. They submit that while the evidence shows that tender was made, tender was no longer required after the Buyers’ lawyer advised at 2:42 p.m. on the day of closing that the Buyers would not close. In any event, they state that the evidence is crystal clear that the Sellers were ready, willing and able to close on June 30, 2022. Their position is that the law did not require them to do anything more.

[72] The Sellers submit that it is irrelevant that the keys were not placed in the lockbox on the date of closing. They state that Mr. Anton Ravindra’s intention, ability, readiness, and willingness to close are clear from his being at the Property on the closing date, keys in hand, waiting to make arrangements for the closing. The Sellers argue that, in any event, if there was an issue with the provision of the keys, there would have been more than three hours left in the day for the Buyers’ lawyer to identify any concern and for the Sellers’ lawyer to remedy it.

2. Submissions of the Buyers

[73] The Buyers state that the Sellers did not elect to accept their repudiation of the APS prior to the closing deadline. They submit that in the absence of an election, the APS continued and, accordingly, the Sellers’ tender must be scrutinized to determine whether the Sellers demonstrated their readiness, willingness and ability to close by completing tender.

[74] The Buyers argue that the Sellers failed to comply with their duty to deliver keys to the Buyers, either directly or through the provision of an access code, which was a precondition to the Buyers being obliged to pay the purchase price and which is indicative of the Sellers not being ready, willing and able to carry out their contractual obligations. The Buyers point out that Mr. Anton Ravindra acknowledged that the keys to the Property remained in his possession on the closing date and were in fact not deposited into a lockbox. They rely on paragraphs 1 and 12 of the Law Society of Ontario’s Document Registration Agreement which refer to the exchange of keys and the use of a lockbox.

[75] The Buyers submit that with neither the Buyers nor the Sellers ready to close the transaction on the closing date, the APS remained in effect and the Sellers breached or repudiated the APS when they terminated the transaction without having set a new closing date and without reinstating time of the essence. According to the Buyers, courts have repeatedly awarded the return of the deposit to the purchasers when the sellers were not ready, willing and able to close, even if the purchasers did not have sufficient monies to pay the purchase price on the closing date.

[76] The Buyers argue that should this Court find that the Sellers are entitled to an award of damages, the damages should be assessed as of March 18, 2022, i.e., the date on which Ms. Adusei first advised the Sellers that the Buyers would have difficulty closing. The Buyers state that this is the earliest date on which the Sellers could reasonably have been expected to re-enter the market and mitigate their damages.

[77] The Buyers submit that while the closing date is generally the first date when the innocent party could reasonably be expected to re-enter the market, this proposition does not apply in this case. They point out that the Sellers elected not to mitigate their damages in a declining market by relisting the Property in March 2022, despite having the opportunity to do so, and they continued to retain the Property after the closing date. According to the Buyers, while the Sellers were entitled to make this decision, it would not be fair for damages to be then assessed as of the closing date.

[78] The Buyers state that there is no dispute that had the Property been listed and sold in March, April or May 2022, the Sellers would have obtained a higher purchase price for the Property than the appraised market value as at the closing date. They submit that had the Sellers agreed to list the Property for sale in March, April or May 2022, the Property could have been sold for the same price as the purchase price in the APS. Therefore, the Buyers argue, the Sellers are not entitled to any additional damages. They further argue that there would be no additional damages even if this Court finds that the appraised value of the Property as of the assessment date was as low as $1.425 million, as in this event the Deposit of $90,000 would be credited towards the discrepancy.

[79] The Buyers raise a number of criticisms regarding Ms. Marshall’s evidence. I find it unnecessary to address them in any detail as they are without merit. The Buyers chose not to retain an appraiser to provide evidence regarding the market value of the Property. Their various criticisms are not based on any expert opinion and are inconsequential, beside the point and/or ignore valid explanations and evidence provided by Ms. Marshall in her expert report, her affidavits and/or her cross-examination.

C. Discussion

[80] I will first deal with the Buyers’ argument that the Sellers were not ready, willing and able to close the transaction on June 30, 2022 and that, as a result, the Sellers breached and repudiated the APS when they terminated the transaction without having set a new closing date and without reinstating time of the essence. Given that I reject this argument, I will next deal with the Buyers’ alternative argument, i.e., that if the Sellers are entitled to an award of damages, the damages should be assessed as of March 18, 2022.

1. Whether the Sellers were ready, willing and able to close on June 30, 2022

a. Applicable legal principles with respect to anticipatory repudiation

[81] Anticipatory repudiation occurs when one party indicates its intention not to fulfill any future obligations under the contract: see Guarantee Co. of North America v. Gordon Capital Corp., [1999] 3 S.C.R. 423 at para. 47. It is an anticipatory breach of contract, i.e., one party to a contract, by express language or conduct, or as a matter of implication from what they have said or done, repudiates their contractual obligations before they fall due: see Fram Elgin Mills 90 Inc. v. Romandale Farms Limited, 2021 ONCA 201 at para. 258.

[82] A repudiatory breach does not, in itself, terminate the contract. If the non-repudiating or innocent party does not accept the repudiation, then the repudiation has no legal effect. There is no such thing as unilateral repudiation. Accordingly, the consequences of a repudiation depend on the election made by the innocent party. If the innocent party accepts the repudiation, the contract is terminated. Alternatively, the innocent party may treat the contract as subsisting, continue to press for performance and bring an action only when the promised performance fails to materialize. By choosing this latter option, however, the innocent party is bound to accept performance if the repudiating party decides to carry out its obligations. See Ching v. Pier 27 Toronto Inc., 2021 ONCA 551 at paras. 32-33 (“Ching”) and Ali v. O-Two Medical Technologies Inc., 2013 ONCA 733 at para. 24 (“Ali”).

[83] The acceptance of the repudiation must be clearly and unequivocally communicated, and that communication must be within a reasonable time. The communication may be express or inferred from conduct. See Ching at para. 35. An innocent party need not make its election immediately and may be given a reasonable period of time to decide whether to affirm the contract or accept the repudiation. See Ching at para. 39.

[84] Affirmation of the contract may also be express or inferred from conduct. A party who presses for performance will be found to have affirmed the contract. Similarly, stating that one is ready, willing and able to complete the transaction on the scheduled date demonstrates an intention to affirm the contract. To determine whether the contract has been affirmed, the court is to ask whether, in the circumstances of the case, a person in the shoes of the repudiating party reasonably would have understood that the innocent party was electing to keep the contract alive until the date of performance. See Ching at paras. 36-37.

[85] If the anticipatory repudiation is not accepted by the innocent party, the agreement is kept alive, time remains of the essence and both parties remain bound to perform their obligations on the closing date. In order to take advantage of a time of the essence provision on the closing date and rely on the other party’s failure to close on the closing date, the innocent party must be itself ready, willing and able to close on that date. See Domicile Developments Inc. v. MacTavish.

[86] Although tendering is one way of showing that a party is ready, willing and able to close, it is not the only way. The law does not require tendering when it would be “a meaningless or futile gesture”: see Time Development Group Inc. (In trust) v. Bitton, 2018 ONSC 4384 at para. 57. As the Court of Appeal stated in Di Millo v. 2099232 Ontario Inc., 2018 ONCA 1051 at paras. 45, 49 (Ont. C.A.), leave to appeal refused: [2019] S.C.C.A. No. 55:

[45] […] While tender is the best evidence that a party is ready, willing and able to close, tender is not required from an innocent party enforcing his or her contractual rights when the other party has clearly repudiated the agreement or has made it clear that they have no intention of closing the deal […].

[49] Thus, when a party by words or conduct communicates a decision not to proceed to closing, the other party is released from any obligation to tender in order to prove he was ready, willing and able to close […].

See also Azzarello v. Shawqi, 2019 ONCA 820 at paras. 30-31 (“Azzarello”).

[87] If the anticipatory repudiation was not accepted and neither party was ready, willing or able to close on the closing date, then the following rule applies (see Ching at para. 52):

a. when time is of the essence and neither party is ready to close on the agreed date, the agreement remains in effect; and

b. either party may reinstate time of the essence by setting a new date for closing and providing reasonable notice to the other party.

b. Application to this case

[88] I do not need to decide whether the statements made by Ms. Adusei in March 2022 to the effect that the Buyers were not able to close on the Property constitute anticipatory repudiation on the part of the Buyers because the parties agree that, in the event there was anticipatory repudiation of the APS, the Sellers did not accept it. For the purpose of my analysis below, I will assume that there was anticipatory repudiation on the part of the Buyers. I agree with counsel that it is clear from the communications between the parties that the Sellers affirmed the APS and continued to press for performance.

[89] Given that the Sellers did not accept the Buyers’ anticipatory repudiation of the APS, this kept the APS alive and both the Sellers and the Buyers remained bound to perform their obligations on the closing date.

[90] In order to rely on the Buyers’ failure to close on June 30, 2022, the Sellers had to be ready, willing, and able to close on that date.

[91] Based on the evidence before me, I find that the Sellers were ready, willing and able to close on June 30, 2022. The Sellers had moved out of the Property. On the day of closing, the Sellers’ lawyer and his law clerk advised the Buyers’ lawyer at both at 2:16 p.m. and 3:03 p.m. that the Sellers were ready, willing and able to close. Mr. Anton Ravindra attended at the Property to arrange for the exchange of keys. Earlier that day, closing documents were sent to the Buyers’ lawyer.

[92] As stated above, tendering is not the only way of showing that a party is ready, willing and able to close. In any event, as was the situation in Azzarello, the reason the transaction did not close in this case is not because of any issues with documents from the Sellers, but because the Buyers did not have the funds to complete the purchase: see Azzarello at para. 29. Given that the Buyers’ lawyer took no steps to close the transaction and made it clear in his e-mail sent at 2:42 p.m. on the day of closing that the Buyers were not in a position to close on that day, the Sellers were relieved of their obligation to tender: see Azzarello at para. 31.

[93] The Buyers’ reliance on 1179 Hunt Club Inc. v. Ottawa Medical Square Inc., 2019 ONCA 700 is misplaced. In that case, the vendor was not ready to close on the closing date because it was incapable of transferring title on that day. As pointed out by the Court of Appeal at para. 27, this was not a case of an imperfect tender where the vendor remained capable of closing on the scheduled date. See also Azzarello at para. 33. In the present case, the Sellers were able to close and there was no issue of title or any other issue that would have prevented them from closing on June 30, 2022. Had any issues been raised with respect to closing documents or the keys, they could have been rectified or dealt with at the time of the transaction. The possibility that such issues could have arisen is insufficient to establish that the Sellers were not ready, willing and able to close on the closing date: see Rahbar v. Parvizi, 2023 ONCA 522 at para. 40 (“Rahbar”).

[94] I agree with the following comments of Richetti R.S.J. in Nutzenberger v. Mert, 2021 ONSC 36 at para. 37:

It is inequitable and the law does not permit a defaulting party to object to the lack or form of documents that would have been available on the Closing Date, despite not having requisitioned any closing documents, not prepared or cooperated in finalizing closing documents, not having a solicitor for the closing [this factor does not apply in this case] and later assert the agreement is at an end due to some technical, minor, temporary and curable breach in the documents required for closing.

[95] I agree with the Sellers that the issue of the keys is a non-issue. In section 11 of the APS, the parties agreed “to be bound by the document registration agreement which is recommended from time by the Law Society of Ontario.” Sections 1 and 12 of the relevant document registration agreement provide as follows:

1. The Vendor’s Solicitor and the Purchaser’s Solicitor shall hold all funds, keys and closing documentation exchanged between them (the “Requisite Deliveries”) in escrow, and shall not release or otherwise deal with same except in accordance with the terms of this Agreement. Both the Vendor’s Solicitor and the Purchaser’s Solicitor have been authorized by their respective clients to enter into this Agreement. Once the Requisite Deliveries can be released in accordance with the terms of this Agreement, any monies representing payout funds for mortgages to be discharged shall be forwarded promptly to the appropriate mortgage lender.

2. Access to the property may be made available by providing codes to door locks or exchanging keys by using a lockbox secured against the Property or other location as mutually agreed between the parties. If a code is provided for a door locking mechanism or to a lockbox, the code shall be provided by the Vendor’s solicitor to the Purchaser’s solicitor as part of the Requisite Deliveries to be held in escrow. The code can be released to the Purchaser in accordance with paragraph 6. [Italics in the original.]

[96] I note that the language in section 12 is not mandatory (“may”) and that access to the property could have been made available without the use of a lockbox. Ultimately, no specific agreement was reached on this issue because it was not discussed. The Buyers’ lawyer did not take any step to close the transaction on the closing date, did not engage on any closing-related issue or document, and ultimately advised at 2:42 p.m. that the Buyers would not close on that day and that he was going to be out of the office for the rest of the day. The Buyers cannot raise after the fact a minor, curable issue to avoid the consequences of their failure to close the transaction.

[97] The Sellers were ready, willing and able to provide access to the Property and the keys to the Buyers on June 30, 2022. This is demonstrated by Mr. Anton Ravindra’s attendance at the Property with the keys on the closing date. Clearly, the reason the transaction did not close on June 30, 2022 had nothing to do with the keys. Any issues with respect to exchanging keys could have been resolved by the closing deadline had the Buyers been ready, willing and able to close on the closing date.

[98] While the Sellers were ready, willing and able to close on June 30, 2022, the Buyers failed to perform their contractual obligations by the closing deadline. No extension was granted. The Sellers were entitled to terminate the transaction and sue for damages.

[99] I now turn to the Buyers’ alternative argument based on the appropriate date for the assessment of the Sellers’ damages.

2. Appropriate date for the assessment of damages

a. Applicable legal principles

[100] In the real estate context, the starting point for the assessment of damages for breach of contract is the date of breach. See Akelius Canada Ltd. v. 2436196 Ontario Inc., 2022 ONCA 259 at para. 22 (“Akelius”). The Court of Appeal has stated in a number of cases that the following six propositions are relevant to the choice of the date for assessing damages for breach of an agreement to buy land:

a. The basic principle for assessing damages for breach of contract applies: the award of damages should put the injured party as nearly as possible in the position it would have been in had the contract been performed.

b. Ordinarily courts give effect to this principle by assessing damages at the date the contract was to be performed, the date of closing.

c. The court, however, may choose a date different from the date of closing depending on the context. Three important contextual considerations are the plaintiff’s duty to take reasonable steps to avoid its loss, the nature of the property and the nature of the market.

d. Assessing damages at the date of closing may not fairly compensate an innocent vendor who makes reasonable efforts to resell in a falling market. In some cases, the nature of the property – for example an apartment building – hampers the vendor’s ability to resell quickly. Thus, if the vendor takes reasonable steps to sell from the date of breach and resells the property in some reasonable time after the breach, the court may award the vendor damages equal to the difference between the contract price and the resale price, instead of the difference between the contract price and the fair market value on the date of closing.

e. Therefore, as a general rule, in a falling market the court should award the vendor damages equal to the difference between the contract price and the highest price obtainable within a reasonable time after the contractual date for completion following the making of reasonable efforts to sell the property commencing on that date.

f. Where, however, the vendor retains the property in order to speculate on the market, damages will be assessed at the date of closing.

See 642947 Ontario Ltd. v. Fleischer at para. 41 and Akelius at para. 22.

[101] The case law shows that the date of breach remains a starting point for the assessment of loss, modified only to the extent that the innocent party satisfies the court that a later date is appropriate on the ground that it is the first date upon which the party could reasonably have been expected to re-enter the market and mitigate its damages. See Akelius at para. 27.

b. Application to this case

[102] I do not accept the Buyers’ argument that damages should be assessed as of March 18, 2022, for a number of reasons.

[103] First, there is no support in the case law for selecting a date for the assessment of damages that is before the closing date as opposed to a later date.

[104] Second, selecting a date for the assessment of damages that is before the closing date would be inconsistent with the law on anticipatory repudiation. Given that the Sellers did not accept the Buyers’ anticipatory repudiation, there was no breach of contract until performance was due, i.e., on June 30, 2022. Since there was no breach of contract until June 30, 2022, there were no damages to assess prior to that date and there was nothing to mitigate. The Sellers did not know that they would suffer damages until June 30, 2022, when the Buyers did not close. See Ali at para. 26. Until then, it was possible that the Buyers would perform their obligations under the APS. The Buyers are, in effect, arguing that the Sellers were required to accept the Buyers’ anticipatory repudiation at the earliest opportunity and then mitigate their damages. However, this is inconsistent with the law that provides that an innocent party, when confronted with anticipatory repudiation, can elect to treat the contract as subsisting and continue to press for performance.

[105] Third, the Buyers’ arguments about the fairness of choosing a particular date are made with the benefit of hindsight. While the market may have been declining in March 2022, there is no evidence before me that a reasonable property owner would or should have known in March 2022 that the market would continue to decline until at least June 30, 2022 and that a higher sale price would be obtained in March 2022 than in June 2022. The Sellers did not have a crystal ball and could not be expected to predict what the market would be like three and a half months later. See Marshall v. Meirik, 2021 ONSC 1687 at para. 58.

[106] I also note the following:

a. As set out above, there are credibility and reliability issues with respect to Ms. Adusei’s evidence that there were numerous other buyers out there interested in purchasing the Property. In particular, there is no credible evidence that there were potential purchasers interested in buying the Property for the same price. It is noteworthy that the other offers received by the Sellers in March 2022 were significantly lower than the price in the APS (the highest offer was $150,000.00 lower than the price in the APS).

b. Assuming that it could be appropriate to select a date prior to the closing date, it is my view that March 18, 2022 would not be an appropriate date. The Buyers informed Mr. Emiliyanus on March 18, 2022 that they were not going to be able to close. That being the case, the Property could not have been resold on that date. The Sellers would have needed time to consider their position, relist the Property, receive offers, etc.

[107] In light of the foregoing, I conclude that the ordinary rule that damages should be assessed at the date of closing applies in this case. As set out by the Court of Appeal, damages should also be assessed at the date of closing where “the vendor retains the property in order to speculate on the market”, which is the case here.

[108] I accept Ms. Marshall’s evidence regarding the market value of the Property as at the closing date. No expert evidence was filed to contradict her opinion, and her opinion is clearly conservative in light of the significantly lower offers received by the Sellers when they relisted the Property in July 2022. As a result, I find that the Sellers’ damages are in the amount of $200,000.00, that is, the price set out in the APS minus the market value of the Property on the date of closing ($1,515,000.00 - $1,315,000.00). See Forest Hill Homes (Cornell Rouge) Limited v. Ou, 2019 ONSC 4332 at para. 15 and Akelius at para. 22 (4).

[109] I also find that, as a result of the Buyers’ failure to close the transaction, the Deposit is forfeited and credited to the Sellers’ damages, which means that the amount of damages is reduced to $110,000.00 ($200,000.00 - $90,000.00). See Azzarello at paras. 45, 53-54. Aside from the arguments addressed and rejected above, the Buyers did not raise additional arguments in support of their application for relief from forfeiture of the Deposit. In my view, there are no grounds supporting relief from forfeiture given that the Deposit is not “out of all proportion” to the damages suffered by the Sellers, and it would not be unconscionable for the Sellers to retain the Deposit. See Rahbar at para. 51 and Redstone Enterprises Ltd. v. Simple Technology Inc., 2017 ONCA 282 at para. 15.

D. Conclusion

[110] The Buyers’ Application is dismissed.

[111] The Sellers’ Application is granted. RE/MAX is ordered to release the Deposit to the Sellers, and the Buyers are ordered to pay damages to the Sellers in the amount of $110,000.00.

[112] If costs cannot be agreed upon, the Sellers shall deliver submissions of not more than three pages (double-spaced), excluding the bill of costs, by February 2, 2024. The Buyers shall deliver their responding submissions (with the same page limit) by February 16, 2024. The submissions of all parties shall also be sent to my assistant by e-mail and uploaded onto CaseLines.

Vermette J. Released: January 19, 2024

Notes

[1] This information and the supporting documentation were provided as part of an answer to undertaking, but they were only provided at the same time as the Sellers’ Reply Factum, after the service of the Sellers’ answers to undertakings. The Buyers’ lawyer objected to the use of this information on fairness grounds given that it was served after the Buyers’ Factum was served. In my view, the use of this information is not unfair because the Buyers’ lawyer on these Applications was also the Buyers’ lawyer for the closing of the transaction. Thus, the Buyers’ lawyer on these Applications was the recipient of the Transfer and the other closing documents. Therefore, this information was within his knowledge before it was provided and it could not in any way have caused any surprise. In any event, given the discussion below on the issue of whether the Sellers were ready, willing and able to close on June 30, 2022, my conclusion on this point would have been the same with or without this information.

[2] This argument was not pursued in the litigation.