Colley v. Hammoe, 2025 ONSC 2852

COURT FILE NO.: CV-23-93713-000
DATE: May 12, 2025
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Robert Wayne Colley and Mary Jean Colley
AND: Zekiye Yousuf Hammoe
BEFORE: Patrick Hurley
COUNSEL:
C. Moore, for the Plaintiffs
J. F. Lalonde, for the Defendant
HEARD: April 3, 2025

Endorsement

Introduction

[1] This is a simplified procedure action arising out of a failed real estate transaction. The plaintiffs agreed to sell their home at 870 Oceane Street, Limoges (the “Property”) to the defendant pursuant to an agreement of purchase and sale dated April 26, 2022. The purchase price was $760,000 with a closing date of June 28, 2022.

[2] According to the plaintiffs, the defendant requested an extension of the closing date to July 6, 2022, to which they agreed.

[3] The defendant denies that she did. She claims the plaintiffs requested an extension of the closing date and she told her real estate agent Nezar Bekir that she did not agree to the proposed extension.

[4] Following her conversation with Mr. Bekir, she thought the agreement was at an end. She denies that she signed an amendment to the agreement of purchase and sale extending the closing date to July 6.

[5] The plaintiffs were ready, willing and able to close the transaction on July 6. A lawyer, Mobina Khan, contacted the plaintiffs’ lawyer Luigi Savone on that date and informed him that she had been retained by the defendant. She requested an extension of the closing date to July 26. The plaintiffs agreed to the extension on terms which were not fulfilled by the defendant.

[6] The defendant denies retaining Ms. Khan or giving her any such instructions.

[7] As a result of the defendant’s failure to close the transaction, the plaintiffs relisted the Property and sold it in June 2023 for $665,000 with a closing date of July 31, 2023. They claim damages consisting of the difference in the sale price ($84,265) and expenses arising from the defendant’s failure to close the transaction on July 6, 2022 ($30,738.65).

[8] The plaintiffs have brought a summary judgment motion. As this is a simplified procedure action, there have been no cross-examinations on the affidavits. The parties have not exchanged affidavits of documents nor have there been examinations for discovery.

[9] The plaintiffs submit that the case can be decided on the record before me. The defendant contends that it cannot because there is starkly conflicting evidence which requires findings of credibility that I cannot make based on the affidavit evidence alone and the evidentiary record is insufficient for me to properly assess damages.

The Law

[10] There is no dispute over the general legal principles in a summary judgment motion.

[11] Rule 20.04(2) states that the court should grant summary judgment if satisfied that there is no genuine issue requiring a trial.

[12] There will be no genuine issue requiring a trial when a judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result: Hryniak v. Mauldin, 2014 SCC 7, at para. 49.

[13] Summary judgment can be appropriate in a simplified procedure action, but such cases will be exceptional: Manthadi v. ASCO Manufacturing, 2020 ONCA 485, at para. 33. There are two reasons for this: first, it will often be more efficient to conduct a summary trial and, second, the simplified procedure rules limit the ability of the parties to put all the necessary evidence before the court: Manthadi, at paras. 34-37.

[14] I must exercise caution when there is contradictory evidence. As Benotto, J.A. observed in Trotter Estate, 2014 ONCA 841, at para. 55:
“It is not always a simple task to assess credibility on a written record. If it cannot be done, that should be a sign that oral evidence or a trial is required.”

Analysis

[15] Despite the conflicting versions of what happened, there are some findings that I can make on the record before me. The first is that the defendant signed the agreement of purchase and sale and that it was an unconditional agreement with a closing date of June 28, 2022. The second is that the transaction did not close on June 28. The third is that neither party sought to close the transaction on June 28.

[16] I strongly suspect that the defendant, with the assistance of Mr. Bekir, requested an extension of the June 28 closing date because she did not have, and would not have, sufficient funds to pay the purchase price in full by that date.

[17] But the defendant swears that the plaintiffs requested the extension, and she declined their request. If she is telling the truth, she was legally entitled to treat the transaction as over or tender on June 28 and, if the plaintiffs did not convey the property to her, sue for specific performance or damages.

[18] In the affidavits contained in the motion record, Mr. Savone deposes that there was an amendment to the agreement of purchase and sale to change the closing date but does not explain how that came about; the plaintiff Robert Colley states that the closing date was changed to July 6 but also does not say why that happened.

[19] In her responding motion record, the defendant deposes that she wanted to move into the Property before her birthday on July 1. She claims that Mr. Bekir called her at some point between May 31 and June 7 to advise her that the plaintiffs wanted to extend the closing date to July 6, and she told him to reject this proposal: “I remember telling Mr. Bekir that I did not agree to extend the closing date and told him ‘no deal’”. She thought the transaction was at an end because she had declined the requested extension. She denies signing the amendment to the agreement in June 2022 and claims that she agreed to purchase another property in July 2022.

[20] After the defendant delivered her responding record, the plaintiffs delivered a supplementary record. In it, Mr. Savone avers, “there is no doubt in my mind” that the amendment was initiated by the defendant and that he received a copy of it from Mr. Colley. He also received a copy from Mr. Bekir by email dated June 20, 2022.

[21] In his supplementary affidavit, Mr. Colley states, “this request was made specifically by the defendant as buyer and was transmitted to us on or about June 9, 2022 by our real estate agent.” He did not send it to Mr. Savone until June 20 because he assumed that his real estate agent had sent a copy of it to Mr. Savone.

[22] The evidence is irreconcilable on a critical factual issue – who asked for the extension and did both parties sign the amendment in June 2022. Neither side filed affidavits from the real estate agents who are obviously key witnesses. Without their evidence, I cannot decide who, between the plaintiffs and the defendant, is telling the truth. If the credibility of the parties is squarely in issue, a trial is usually required: Demetriou v. AIG Insurance Company of Canada, 2019 ONCA 855, at para. 9.

[23] The plaintiffs submit that the subsequent conduct of the parties, specifically the involvement of Ms. Khan, undermines the defendant’s evidence to such an extent that I can find the defendant’s claim that she did not ask for an extension of the closing date unbelievable.

[24] I have some real concerns about Ms. Khan’s evidence. She asserts that the defendant retained her, but she does not have a file except for a single email dated July 26, 2022 that was sent to Mr. Bekir, a mortgage broker and the defendant’s son. She did not personally meet with the defendant. It is not at all clear from her affidavit if she spoke directly to the defendant. Although she asserts that the defendant retained her, she swore an affidavit in support of the plaintiffs without a waiver of privilege with respect to the solicitor-client communications she purports to disclose in her affidavit.

[25] Even if I were to accept Ms. Khan’s recollection, it does not diminish the defendant’s evidence to the extent that I can reject it.

[26] In summary, it is not possible to determine, based on the untested allegations in the affidavits, where the truth lies in this case.

[27] Turning to damages, the plaintiffs are seeking reimbursement of $10,000 which they allegedly paid to the landlord of property which they leased in the expectation that the transaction would close on July 6, 2022 but did not include any documentary proof of this claim. They are also seeking $20,730.65 for carrying costs (realty taxes, insurance, and mortgage payments) but they did not move out of the Property until they sold it to another purchaser in July 2023. They are not entitled to reimbursement for these expenses if they continued to live at the Property.

[28] This leaves the claim for the difference between the purchase price with the defendant and the reduced price they obtained when the Property was sold in July 2023.

[29] The plaintiffs were obliged to make reasonable efforts to mitigate their damages. They must demonstrate that their efforts to resell the Property were reasonable and timely: Gibson v. Smith, 2023 ONSC 5838, at para. 39.

[30] In his affidavit, Mr. Colley deposes that they did not relist the property for sale because their real estate agent “advised that the market had changed and that it was going to be difficult to sell right away”. Mr. Savone states, “we advised our clients to immediately relist the property.”

[31] The plaintiffs submit that it was reasonable for them to follow the advice of their real estate agent based on the change in market conditions at the time. This is hearsay evidence if it is tendered for the proof of the truth of the contents (i.e. that the market conditions had changed, and it would be difficult to sell the Property). It is not hearsay if it is tendered solely to explain why the plaintiffs acted as they did. I can find that the plaintiffs followed the advice of their real estate agent, but I cannot infer that it was reasonable to do so, especially given their lawyer’s contrary advice.

[32] The defendant cannot probe, through cross-examination, the reasonableness of the plaintiffs’ decision in this regard or their efforts generally to mitigate their damages. This could be a fruitful area of questioning. Or it may not be.

[33] On the record before me, I cannot fairly and justly adjudicate the damages claim.

Conclusion

[34] I find myself in a position similar to that of Tranquilli, J. in Gibson, where she stated at para. 12:

The plaintiffs make a compelling case for summary judgment in their favour. However, for the following reasons, I find I am restricted in the exercise of summary judgment powers on this record. In summary, without cross-examination, which is not permitted under Rule 76, the court is not able to reject the defendant purchasers’ evidence as meritless. Evidence from other parties, such as the realtor(s) and counsel involved in the failed transaction may also be necessary. Moreover, additional information is required to support the plaintiffs’ damages claim.

[35] I conclude that a summary trial is required to achieve a just result. I am willing to conduct a case conference and give directions that would fulfil the goals of a proportionate, more expeditious and less expensive adjudication of this case. Alternatively, the parties can schedule a case conference with another judge in Ottawa for this purpose.

[36] Mr. Lalonde stated that he has instructions to amend the statement of defence and commence a third party claim against Mr. Bekir. If those remain his instructions, he should take these steps immediately.

[37] Mr. Moore asked that, if I am not prepared to grant the motion in its entirety, to order the deposit released to his client. I cannot do so given my reasons for dismissing the motion.

[38] Both sides filed costs outlines. The plaintiffs are seeking partial indemnity costs of $13,172.28. The defendant claims $12,827.40. I find that a fair, reasonable and proportionate amount would be $12,000 all-inclusive but the issue of costs is reserved to the trial judge.

Released: May 12, 2025
Patrick Hurley