Gil Shcolyar v. Bensher Holdings Limited, 2025 ONSC 2205

ONTARIO

SUPERIOR COURT OF JUSTICE

CITATION: GIL SHCOLYAR v. BENSHER HOLDINGS LIMITED, 2025 ONSC 2205

COURT FILE NO.: CV-20-00641274-0000

DATE: 20250422

BETWEEN:

GIL SHCOLYAR

Plaintiff

– and –

BENSHER HOLDINGS LIMITED

Defendant

A. Paul Gribilas, for the Plaintiff

Daniel F. Chitiz and Michael Crampton, for the Defendant

HEARD: March 18, 19 and 20, 2025

reasons for judgment

Callaghan j.

1In this action the plaintiff seeks an order for specific performance compelling the defendant to complete a real estate transaction that was to be closed on or about April 27, 2020.

2The plaintiff asserts that the failure to close was due to the COVID-19 pandemic. The plaintiff accepts that the financing that he required to close the transaction had yet to be advanced as of the closing date. He asserts this was due to the pandemic. Given the pandemic, the plaintiff asserts that the defendant acted unreasonably in not agreeing to extend the closing date. He further asserts the defendant was not ready, willing, and able to close the transaction. As both parties were unable to close, he asserts that this Court can set a new closing date. In all the circumstances, the plaintiff asks for specific performance giving him the opportunity to close the transaction, some five years later.

3The defendant responds that it tendered as required on the closing date. It was ready, willing, and able to close but the plaintiff was not able to do so. It points to the “time of the essence” clause in the agreement and says it was not required to extend the closing date, regardless of COVID-19. The defendant counterclaims seeking a declaration that the deposits of $200,000 are forfeited. In response, the plaintiff seeks relief from forfeiture in respect of the deposits.

4The case was commenced under the Simplified Rules and proceeded under those rules without objection. The trial was largely a hybrid trial with only one witness for the defendant testifying viva voce in chief. There was an Agreed Statement of Facts filed by the parties. A document book was filed subject to an agreement that the documents, for the most part, may be relied upon as authentic and for the truth of their contents.

5For the reasons that follow, I dismiss the plaintiff’s action and grant the defendant’s request for a declaration that the deposits are forfeited.

Background

6The plaintiff, Mr. Shcolyar, is a real estate developer who, along with his father, owns, operates, and manages commercial properties. They also own several commercial gas stations.

7The defendant is a company that owns and manages real estate. The principal of the defendant was Mr. Matta who has subsequently passed away.

8Both the plaintiff and defendant are sophisticated when it comes to the purchase and sale of real estate.

9The parties entered into an Agreement of Purchase and Sale on December 5, 2019 (the “APS”) with respect to the defendant’s commercial property located at 1601 Eglington Ave. W., Toronto (the “Property”). The Property was tenanted with a Pizza Pizza Limited restaurant.

10The defendant had retained CBRE Limited (“CBRE”) as agent. While the plaintiff testified that he believed CBRE was also his agent, counsel for the plaintiff clarified that CBRE provided only logistical support to the plaintiff and was not his agent. As a sophisticated purchaser of real estate, had the plaintiff required or wanted the assistance of a real estate agent, he could have retained one, which he did not do.

11The plaintiff offered to purchase the Property for $2.65 million. The defendant signed back the offer at $2.95 million, which was accepted. The APS was on the Ontario Real Estate Association (“OREA”) standard form. The APS provided for two deposits totaling $100,000 which were paid in trust to CBRE, the broker. The plaintiff’s initial offer sought a vendor take back mortgage of $1.85 million, which was ultimately rejected by the defendant.

12The APS contained conditions in favour of the plaintiff. The closing was to take place within 45 days of either the completion or the waiver of those conditions.

13There was no force majeure or similar clause which would excuse performance by either side for unforeseen events.

14The APS contained a “time of the essence” clause which reads:

Time shall in all respects be of the of the essence hereof provided that the time for doing or completing of any matter provided for herein may be extended or abridged by an agreement in writing signed by Seller and Buyer or by their respective lawyers who may be specifically authorized in that regard.

15The plaintiff agreed to pay the balance of the purchase price by bank draft or certified cheque on or before the closing.

16Shortly after signing the APS, the plaintiff spoke with DUCA Financial Service Credit Union Ltd. (“DUCA”). The plaintiff had used DUCA for financing numerous other real estate transactions and estimated that DUCA currently finances 20 such transactions for the plaintiff. The plaintiff dealt with Mr. Hoque at DUCA who had indicated that there should be no reason why DUCA could not finance this transaction.

17The conditions were waived by the plaintiff on December 16, 2019 and the original closing date was set for January 29, 2020.

18On December 17, 2019, the parties entered into an Amendment Agreement of Purchase and Sale (the “First Amendment”) which amended the closing date to February 28, 2020.

19DUCA provided the plaintiff with a Letter of Intent in mid-January (“LOI”). DUCA subsequently advised of the closing documents that would be required by the plaintiff. The LOI stipulated a maximum loan amount of $2 million.

20In February, DUCA contacted the plaintiff and advised it was going to be delayed in advancing the mortgage and requested that the closing date be extended. DUCA advised the plaintiff it would need until late March to finalize any loan. The plaintiff requested that the defendant extend the closing to April 27 “to be on the safe side”.

21The defendant agreed to the requested extension, provided that the plaintiff agree to release the deposits currently held by CBRE and that the plaintiff advance another $100,000 as a paid-up deposit. The plaintiff agreed.

22The APS was further amended to reflect the new closing date of April 27, 2020, the $100,000 top-up deposit and that the deposits were to be immediately released to the defendant (the “Second Amendment”). The Second Amendment provided the following in respect of the deposits:

a. The Buyer shall pay an additional non-refundable deposit of $100,000 00 to Bensher Holdings Limited within 48 hours of acceptance of this offer to amend, by Bank Draft or Certified Check, in either case drawn from a Canadian Bank. The total deposits paid will then be $200,000.

b. The current Deposit of $100,000 was paid to CBRE Limited in Trust. Immediately upon execution of this Agreement by the Buyer[s] CBRE Limited is irrevocably directed and authorized by the parties hereto to pay the Deposit of $100,000.00 held by it, to Bensher Holdings Limited. This Deposit, as well as the additional Deposit paid in accordance with this amendment, are non-refundable.

23The plaintiff did some preliminary design work for the anticipated use of the Property as a multi-purpose building, including a restaurant and medical suites.

24In March, the world was gripped by COVID-19. On March 20, 2020, the province declared the COVID-19 pandemic an emergency. Like most businesses, DUCA was adversely affected by the shutdown.

25On April 6, 2020, Mr. Weiss, the defendant’s real estate agent, spoke with Mr. Matta, the principal of the defendant. According to emails between the two, Mr. Matta advised that he had changed his mind, and he did not want to sell the Property. He asked how he might return the $200,000 in deposits and cancel the transaction.

26Neither Mr. Weiss nor Mr. Matta testified at trial. Unfortunately, as noted, Mr Matta is now dead. However, the plaintiff’s lawyer, Mr. Gelfand, did testify. Mr. Gelfand received an email from Mr. Weiss regarding Mr. Matta’s apparent wishes. Mr. Gelfand sought instructions directly from Mr. Matta.

27Mr. Gelfand was constrained in his testimony as to his discussions with Mr. Matta due to solicitor client privilege but confirmed that his instructions were to proceed with the closing as planned. On April 17, 2020, Mr. Gelfand advised Mr. Weiss in writing that Mr. Matta had instructed him to proceed with the sale.

28On April 22, 2024, DUCA emailed the plaintiff requesting extra time to process the loan approval as “management is mostly busy helping existing members”. The letter went on to say the current scheduled closing date “seems extremely difficult to achieve”. DUCA requested another 2 weeks.

29The plaintiff was “shocked, surprised and taken aback by the DUCA email”. He did not expect this kind of delay even with COVID-19. Indeed, from February 16 to April 22, DUCA never indicated that either the funding or the closing date would be a problem.

30Counsel for the plaintiff, Mr. Frymer, wrote Mr. Gelfand the next day requesting a further extension. Mr. Gelfand obtained instructions and advised Mr. Frymer that his client was not agreeable to the extension and that the defendant wished to close as scheduled on April 27.

31There was at least one conversation between counsel for the plaintiff and counsel for the defendant wherein Mr. Frymer requested that the defendant agree to again extend the closing date. There was no movement by the defendant. The defendant wished to close on April 27 as scheduled. Mr. Frymer claims that during the conversation, Mr. Gelfand said that the defendant no longer wished to sell the building. Mr. Gelfand denies that he ever said this. Notwithstanding the import placed on this statement by the plaintiff, Mr. Frymer never confirmed in writing with Mr. Gelfand or otherwise noted this alleged statement.

32On April 27, the defendant tendered the necessary documents to close. The plaintiff did not tender the closing funds or closing documents. Mr. Gelfand testified that had the plaintiff tendered the requisite funds and documents pursuant to the APS, then he was instructed to close the transaction and to transfer title to the Property.

33The plaintiff accepts that he was unable to tender as required by the APS. As he put it, he was “ready and willing but not able” to tender because of DUCA’s inability to advance funds on closing.

34On April 28, the day after the sale was to have closed, DUCA sent its commitment letter to the plaintiff. However, the commitment letter was not unconditional. It contained several conditions. The conditions included an appraisal of the Subject Property of no less than $3,880,000 (the LOI asked for an appraisal of $2,950,000), a Phase 1 environmental assessment, an inspection of the property, a legal opinion by DUCA’s counsel and a host of other conditions, including an omnibus condition being anything else DUCA might request. There was no evidence of how or how long these items would take to address these conditions to the satisfaction of DUCA, although it was said that it ordinarily takes 4-6 weeks after the commitment letter was sent to fulfill similar conditions. There was no evidence of the likelihood of obtaining a valuation at $3,880,000 when the purchase price was $2,950,000. The commitment was good until May 15, 2020.

35A letter forwarding the Commitment Letter from DUCA’s external counsel to Mr. Frymer listed a number of items that DUCA’s counsel required from the plaintiff before DUCA’s counsel would conduct any required searches or prepare documentation, some of the conditions were the same as in the Commitment Letter and some were not. Many of these requests were answered by counsel to the plaintiff by email to DUCA’s counsel on April 28, 2020.

36DUCA’s commitment was for $2,000,000. There had been $200,000 in deposits. Although the plaintiff said he would have had the financing to close but for DUCA’s delay, there was no evidence as to how or from what source the plaintiff would obtain the remaining $750,000.

37Further requests by Mr. Frymer on behalf of the plaintiff to have the defendant reconsider and set a new closing date for May 11 were rejected. On April 30, 2020, after being asked for closing documents by the plaintiff, Mr. Gelfand wrote Mr. Frymer confirming that while the defendant was “ready, willing and able to complete the transaction”, the plaintiff defaulted in his “obligations to complete the transaction”. Mr. Gelfand further advised that the deposits were therefore forfeited, and the defendant would hold the plaintiff responsible for any damages.

38The defendant never sold the Property and owns the Property to this day.

39For this proceeding, the defendant concedes that the Property was unique and that damages would not be an adequate remedy for the plaintiff should it be found that specific performance is otherwise an appropriate remedy.

Issues

40The plaintiff acknowledges that he was unable to close because of DUCA’s inability to process the requested financing. However, he asserts that he nonetheless should be entitled to the benefit of the APS. In doing so, he raises the following issues:

a) Was the defendant ready, willing, and able to close, such that both parties were unable to close, and a new closing date should be set; and

b) In the face of COVID-19, was the defendant unreasonable in not agreeing to extend the closing and, if so, should this Court intervene to excuse the lack of contractual performance by the plaintiff and award specific performance.

41Lastly, the defendant seeks a declaration that it is entitled to retain the deposits. In response, the plaintiff requests relief from forfeiture and asks that the deposits be returned to him.

a) Ready, Willing and Able

42The plaintiff relies on the Court of Appeal’s decision in King et al. v. Urban & Country Transport Ltd., 1973 CanLII 740 (ON CA), [1973] O.J. No. 2181, 1 O.R. (2d) 44 where the court explained that a party cannot rely on a “time of the essence” clause to defeat a transaction when that party was itself not ready, willing, and able to close. Justice Arnup put the proposition as follows at para. 20:

I think it is sufficiently established that a "time of the essence" provision, and non-compliance with it by a plaintiff, can be set up as a defence only by a party who was himself ready, willing able to close on the agreed date.

43In that case, the court found the vendor, for reasons of animus toward the purchaser, was not prepared for any reason to close with the purchaser. The case turned on the specific factual finding that the vendor, being the party relying on the time of the essence clause, was neither ready nor willing to close on the appointed date. Therefore, the argument that the purchaser failed to properly tender based upon time being of the essence failed. The court went on to set a new closing date.

44The plaintiff submits that the defendant in this case was not ready, willing, and able to close. In its submission, the plaintiff acknowledges that the defendant tendered all the necessary documents on the closing. Rather, he states that Mr. Matta’s intention was to retain the building and that the defendant only tendered knowing that the plaintiff could not do so because of DUCA’s inability to fund on the appointed date. The plaintiff infers this because of the subsequently produced emails between Mr. Matta, the agent and counsel wherein Mr. Matta suggested in early April that he would like out of the transaction, the alleged statement between Mr. Frymer and Mr. Gelfand and the fact that the defendant continues to own the building.

45I am unable to accede to the plaintiff’s argument. The discussions between Mr. Matta, his agent and counsel concluded by April 17. At that time, Mr. Gelfand testified he received instructions from Mr. Matta to proceed with the closing. Mr. Gelfand confirmed these instructions in writing. Even counsel for the plaintiff conceded that the defendant risked being sued if Mr. Matta did not tender as required on the closing date.

46The plaintiff only learned of DUCA’s difficulties on April 22. By this time, as mentioned, Mr. Matta had instructed counsel to close. All the necessary paperwork was prepared and tendered. Mr. Gelfand testified that had the plaintiff tendered the funds and the necessary documents, his instructions were to take the necessary steps to transfer title.

47According to the plaintiff, as mentioned, this was a ruse. It is argued that the defendant tendered and did not agree to extend the closing because it knew of the financing delay. I do not accept this theory. I have no reason to doubt that Mr. Gelfand tendered because the plaintiff was ready, willing, and able to transfer title to the Property as required. I accept his testimony in this regard.

48As to the conversation between Mr. Frymer and Mr. Gelfand, I found neither to have a clear recollection of their conversation or, as was suggested, conversations. If the comment by Mr. Gelfand was as recalled by Mr. Frymer, it is surprising that it was not recorded in the letters that followed. Its import would have been apparent to Mr. Frymer who is an experienced real estate lawyer. In the circumstances, I am unable to conclude that Mr. Gelfand made the comment as alleged or any other comment that the defendant would not extend because it wanted to hold on to the Property.

49To be clear, my finding of fact is in complete juxtaposition to the finding in King v. Urban. As stated by the Court of Appeal: “It has been found as a fact that the defendants were neither ready nor willing to close on July 2nd.” That is not this case. In this case, the defendant tendered with the intent of concluding the transaction pursuant to the APS. I find that the defendant was ready, willing and able to close on April 27.

b) COVID-19

50The plaintiff asserts that DUCA was unable to complete the loan because of COVID-19. The plaintiff points to two cases in which he says the courts excused contractual non-performance because of the exigent circumstances arising from COVID-19. The cases relied upon do not create some COVID-19 exception to contractual performance. Rather, they apply conventional legal theory to the factual matrix, which included COVID-19. Neither case assists the plaintiff.

51In Hudson's Bay Co. ULC v. Oxford Properties Retail Holdings II Inc, [2022] O.J. No. 3628, 2022 ONCA 585, Hudson’s Bay was having difficulty paying its rent due to the shutdown of COVID-19. It sought relief from forfeiture, relying on s. 20 of the Commercial Tenancies Act, R.S.O. 1990, c. L.7 ("CTA"). The Court found that “the very broad language of s. 20(1) contemplates a wide range of remedies, including rent reductions, abatements and deferrals.” Section 20 was said to give the court “broad powers to override the terms of a lease, if justice so requires.” The case addressed the extent of the relief, as it was agreed that relief was warranted under s. 20 of the CTA. The Court relied on the exceptional circumstances arising from COVID-19 in considering the extent of the relief warranted. However, it clearly did not create some contractual exception simply due to COVID-19. In fact, Justice Doherty made it clear that the economic impact of COVID-19 cannot be taken “as a basis for fundamentally altering the remedy from one of relief from forfeiture to one imposing new terms in the lease”: at para. 52.

52The CTA does not apply in this case. Relief from forfeiture was not argued by the plaintiff as it related to his failure to close. While the Court of Appeal acknowledged that COVID-19 was an exceptional circumstance, the legal analysis employed by the Court simply does not apply to this case.

53The second case relied upon is More v. 1362279 Ontario Ltd., [2023] O.J. No. 3530, 2023 ONCA 527; affirming More v. 1362279 Ontario Ltd., 2022 ONSC 1363. In that case, three family members sought to buy houses beside each other. The houses were being purchased from the builder. On the day of closing, there was a delay in receiving the bank funding due to COVID-19 related delays. The funds were not received by the purchasers/plaintiffs' lawyer until just prior to 6:00 p.m. by which time the Teraview System’s electronic registry would not accept the registration as it closed at 5 p.m. The seller/defendant wrote the plaintiff at 5:11 p.m. just after the Teraview System closed and declared the agreement at an end. The agreement of purchase and sale stipulated the day of closing but was silent on the exact time of closing. The trial judge accepted that during the pandemic, the common practice was for lawyers to co-operate to complete any steps after the closing of the Teraview System.

54The defendant relied on the “time of the essence” clause and argued that the plaintiff did not tender in accordance with the agreement as the funds were not received within the Teraview System’s window for acceptance. The argument was rejected. The judge found that the plaintiff had not breached the agreement, and in any event, the defendant was not ready, willing,and able to close.

55On the contract issue, the judge found that the plaintiffs were not in breach as there was no specific time for closing set out in the agreement of purchase and sale. Further, the court found that the defendant could not rely on the “time of the essence” as the defendant was not ready, willing, and able to close. The trial judge found at para. 27 that:

The[sellers] were clearly never willing to close the transactions. It matters not their motivation. However, I do accept that if these transactions had been scuttled, that as indicated in the affidavit of Daniel Habib, the defendant would have been able to resell the properties. Given the evidence relating to the rise of property values throughout the province and in the Windsor area, it is likely that would be at a significantly higher price than that in the Agreements of Purchase and Sale.

56The decision of the trial judge was upheld by the Court of Appeal. The Court of Appeal noted at para. 21 that “the mere presence of the ‘time is of the essence’ clause is of limited assistance to courts interpreting a contract where the contract is otherwise silent on the deadline to perform the obligations under the contract”.

57More is distinguishable and does not assist the plaintiff. First, More turned on an issue of contractual interpretation which has no application to this case. Second, in More the court found as a fact that the defendant was not ready, willing or able to close which disentitled it to rely on the “time of the essence” provision. Here, I have found that the defendant was ready, willing and able to close.

58I should add that unlike More, this is not a case of a minor glitch. The plaintiff and DUCA had months before COVID-19 to address financing. The APS was signed in December and the provincial emergency order was not invoked until March 20, 2020. Throughout, nothing happened. DUCA was silent until April 22. In fact, DUCA did not get the Commitment Letter done until after the closing date. The Commitment Letter was conditional. Notwithstanding the representation by Mr. Hoque that DUCA would fund the purchase, there was still due diligence to occur. It is not clear how long or if the conditions would ever be met. Indeed, it is hard to imagine an appraisal of $3,880,000 for the Property would be forthcoming when the purchase price was $2,950,000. In addition, there was no evidence that the plaintiff had the additional $750,000 at hand to close. Unlike More, this is not a case where the funding was in hand on the day of closing or if the conditions for funding would ever be met.

59Contrary to the submissions by the plaintiff, COVID-19 did not create a blanket excuse for non-performance. Both More and Hudson’s Bay applied conventional legal theories in which COVID-19 was part of the factual matrix considered in those cases but COVID-19 alone, while an exceptional circumstance, did not excuse contractual non-performance. In other cases, force majeure clauses were relied upon by parties in an attempt to excuse contractual non-performances during COVID-19: Windsor-Essex Catholic District School Board v. 2313846 Ontario Limited o/a Central Park Athletics, 2022 ONCA 235; Niagara Falls Shopping Centre Inc. v. LAF Canada Company, 2023 ONCA 159; Extreme Toronto Sports Club v. Razor Management Inc., 2025 ONCA 114. In this case, these sophisticated parties did not include such a clause in the APS.

60I reject the plaintiff’s argument that COVID-19 created an independent legal justification to excuse his failure to close on April 27.

Time of the Essence Conclusion

61In conclusion, there is no reason that the defendant cannot rely on the “time of the essence” clause in the APS. In Gill Homes Inc. v. 5009796 Ontario Inc. (c.o.b. Kassar Homes), 2024 ONCA 6, at para. 24, the Court of Appeal for Ontario explained the legal effect of a “time is of the essence” contractual clause as follows

As this court stated in Di Millo v. 2099232 Ontario Inc., 2018 ONCA 1051, 430 D.L.R. (4th) 296, at para. 31: "A 'time is of the essence' clause is engaged where a time limit is stipulated in a contract. The phrase 'time is of the essence' means that a time limit in an agreement is essential such that breach of the time limit will permit the innocent party to terminate the contract.

62In this case, there is no contractual, legal or equitable basis to excuse the non-performance of the plaintiff. The contract terminated when he failed to tender. As such, the claim for specific performance is dismissed.

The Deposits

63On the issue of the deposits, based on the express terms of the amended APS, they are “non-refundable.” The plaintiff asks that this Court provide relief from forfeiture in respect of the deposits. The plaintiff says that relief from forfeiture is appropriate as the conduct of the defendant would make it inequitable for it to retain the deposits.

64The defendant opposes the request for relief from forfeiture as it was not pleaded and, in any event, is not warranted.

65On the issue of the pleading, there is no reference to the deposits in the statement of claim but there is reference to the deposits in the reply and statement of defence to the counterclaim. The latter pleading states that the defendants seized on the failure of the plaintiff to obtain financing and thereby retained the deposits. However, there is no request for the return of the deposits or any reference to the Courts of Justice Act, RSO 1990, c. C. 43, s. 98 which provides this court with the statutory jurisdiction to grant relief from forfeiture.

66The plaintiff claims that while he did not plead relief from forfeiture, he states that it is an included claim within his claim for specific performance and, if specific performance is not granted, he ought to receive the return of the deposits. He cites no authority for this proposition.

67In the instant case, there is nothing in the statement of claim which pleads relief from forfeiture. I agree with the defendant that such a request should be pled in the statement of claim. Even if burying a plea for relief from forfeiture in the reply and statement of defence to counterclaim was appropriate (which I do not believe it to be), that pleading makes no claim for the return of the deposits.

68Nonetheless, the failure to plead relief from forfeiture is not necessarily fatal to the court’s ability to grant such a request. In MacIvor v. Pitney Bowes, 2018 ONCA 381, the Court of Appeal held that on the facts of that case, it had jurisdiction to grant relief from forfeiture even though it was not argued at trial: at para. 29. In that case, the plaintiff was injured while at work. There was a debate as to whether he provided notice to the disability insurer within the applicable 90 days as the commencement date “was anything but clear”. The Court of Appeal held that “it would be most unfair, in my view, to permit the imperfect compliance with the 90-day contractual period to defeat the appellant's claim in the particular circumstances of this case”, at para. 28. On that basis, the Court granted relief from forfeiture for the plaintiff’s failure to provide the contractual notice.

69I do not see any similar grounds to entertain relief from forfeiture in this case. Unlike MacIvor this was a business transaction between sophisticated parties who were aware of their contractual obligations. It is not unfair to insist on contractual compliance. I would dismiss the claim for relief from forfeiture relating to the deposits as it has not been pled: Rodaro v. Royal Bank of Canada (2002), 2002 CanLII 41834 (ON CA), 59 O.R. (3d) 74. Nonetheless, in the event that I am wrong, I will address the request below.

70Relief from forfeiture is an equitable remedy. Relief from forfeiture is purely discretionary, to be used “sparingly” and depends on the facts of each case: Saskatchewan River Bungalows Ltd. v. Maritime Life Assurance Co., 1994 CanLII 100 (SCC), [1994] 2 S.C.R. 490, at para. 32. Doherty J.A. in Ontario (Attorney General) v. 8477 Darlington Crescent, [2011] O.J. No. 2122, 2011 ONCA 363, 333 D.L.R. (4th) 326 described the remedy this way:

87The power to relieve from forfeiture is discretionary and fact-specific: Saskatchewan River Bungalows Ltd. v. Maritime Life Assurance Co., 1994 CanLII 100 (SCC), [1994] 2 S.C.R. 490 at p. 504. The power is predicated on the existence of circumstances in which enforcing a contractual right of forfeiture, although consistent with the terms of the contract, visits an inequitable consequence on the party that breached the contract. Relief from forfeiture is particularly appropriate where the interests of the party seeking enforcement by forfeiture can be fully vindicated without resort to forfeiture. Relief from forfeiture is granted sparingly and the party seeking that relief bears the onus of making the case for it: 1497777 Ontario Inc. v. Leon’s Furniture Ltd. (2003), 2003 CanLII 50106 (ON CA), 67 O.R. (3d) 206 at paras. 67-69, 92 (C.A.).

71The plaintiff submits it would be inequitable for the defendant to retain the deposits as it never intended to close and it simply took advantage of DUCA’s difficulty in finalizing the funding due to COVID-19. As discussed above, I have rejected this argument. Accordingly, the factual foundation for the request for relief from forfeiture fails.

72Accordingly, I dismiss the claim for relief from forfeiture.

Disposition

73The plaintiff’s claim is dismissed.

74The defendant’s counterclaim for a declaration that the deposits have been forfeited is granted.

Costs

75I encourage the parties to agree on costs. If they cannot, I will receive costs submissions as follows:

a. Any party claiming costs shall file written submissions of no more than five pages, plus a bill of costs and any offers to settle, within ten days of the release of these reasons.

b. Any responding submissions shall be limited to five pages, plus a bill of costs and any written offers to settle and shall be delivered within five days of receipt of the other party’s costs submissions.

c. Any reply to submissions shall be delivered within three business days of receipt of responding submissions and shall be no more than three pages in length.

d. All submissions shall be uploaded to Case Center and delivered to me by way of email to my assistant, from whom you received this decision.

Released: April 22, 2025 Callaghan J.

CITATION: GIL SHCOLYAR v. BENSHER HOLDINGS LIMITED, 2025 ONSC 2205