Court File and Parties

Court File No.: CV-23-00004821 Date: 2025-10-15 Ontario Superior Court of Justice

Between:

MOHAMMADALI TAHERIPOURESFAHANI and MAHNAZ DEHGHANI SANIJ, Plaintiffs

– and –

DORMER BOND INC. (c.o.b. as DORMER HOMES), Defendant

Counsel:

• Pooneh Sooresrafil, for the Plaintiffs/Defendants by Counterclaim
• Robert B. Macdonald and Jonathan Gross, for the Defendant/Plaintiff by Counterclaim

Heard: September 26, 2025

Reasons for Decision

CHARNEY J.:

Introduction

[1] The Plaintiffs, Mohammadali Taheripouresfahani and Mahnaz Dehghani Sanij (the "Plaintiffs") bring this summary judgment motion with respect to their claim for the release of their deposits, general damages and punitive damages for the breach and/or improper termination of an Agreement of Purchase and Sale ("APS") by the Defendant, Dormer Bond Inc. (c.o.b.) Dormer Homes ("Dormer Bond" or "the Vendor").

[2] The Defendant, Dormer Bond, has brought a cross-motion for summary judgment for possession of the property that was the subject of the APS and for the release of deposits on the basis that it was the Plaintiffs who breached the APS.

[3] Both parties agree that there is no genuine issue requiring a trial, and that this action is appropriately dealt with by way of a summary judgment motion.

[4] The primary issue in this motion for summary judgment is which of the parties breached the terms of the APS by failing to close. Each party alleges that they were ready, willing and able to close, and that it was the other party who breached the APS.

[5] I agree with the parties that this issue is appropriately dealt with by way of summary judgment motion. The facts relating to this issue are not in dispute; the contractual terms are all in writing, and the communications between the parties' respective lawyers is recorded in the emails exchanged between them.

[6] In considering these motions for summary judgment I am proceeding on the basis that "both parties on a summary judgment motion have an obligation to put their best foot forward": Mazza v. Ornge Corporate Services Inc., 2016 ONCA 753, at para. 9. I am also proceeding on "the principle that the court will assume that the parties have placed before it, in some form, all of the evidence that will be available for trial. The Court is entitled to assume that the parties have advanced their best case and that the record contains all the evidence that the parties will present at trial…": Levac v. James, 2016 ONSC 7727, at para. 132.

Agreement of Purchase and Sale

[7] On March 1, 2020, the Plaintiffs entered into the APS with Dormer Bond for the purchase of the property municipally known as 7 Phelps Lane, Unit 3, Richmond Hill, Ontario (the "Unit").

[8] The relevant terms of the APS were as follows:

• a. The purchase price was $761,490.00;
• b. The Purchasers paid installments totaling $114,224.50 as a deposit ("Deposit");
• c. The Purchasers paid $11,540.69 for the additional upgrades of the Unit;
• d. The closing date was to be designated by the Vendor's solicitor with at least 14 days written notice to the Purchasers' solicitor;
• e. If the Unit was substantially complete and fit for occupancy before closing, the Purchasers would be able to occupy the Unit with monthly occupancy payments to be made to the Vendor.
• f. Time was of the essence in all respects, and no extensions of time for any payment or rectification of any breach would operate as a waiver of that provision.

[9] On April 17, 2023, Dormer Bond provided an Occupancy Notice indicating that the Unit would be fit for occupancy on April 21, 2023. On April 20, 2023, a City of Richmond Hill inspector conducted an inspection of the unit and issued a Residential Occupancy Certificate for the Unit.

[10] The Plaintiffs moved into the Unit at the end of April, 2023 and made monthly occupancy payments of $3,782 beginning May 1, 2023. There are allegations of minor deficiencies (missing exterior lights and laundry duct connection) that had to be completed or repaired, but these are not relevant to the issues to be determined on this motion for summary judgment.

[11] On July 31, 2023, Dormer Bond issued a Closing Notice for a closing date of September 15, 2023.

Statement of Adjustments

[12] On September 7, 2023, Dormer Bond delivered a Statement of Adjustments to the Plaintiffs' lawyer. This Statement of Adjustments and the correspondence that followed is central to the issue to be decided in this case.

[13] The Statement of Adjustments included the following additional charges, totalling almost $60,000:

• a. Development Charges/Increased Levies, Pursuant to subparagraph 14(c) of the Purchase Agreement, Amount: $8,000 HST calculated at 13%: $1,040, Credit Vendor: $9,040
• b. Meters (Hydro/Gas), Pursuant to subparagraph 14(h) of the Purchase Agreement, Amount: $8,163, HST calculated at 13%: $1,061.22, Credit Vendor: $9,224.45.
• c. Vendor's Legal and Administrative Fees, Pursuant to subparagraph 14(j) of the Purchase Agreement, Amount: $8,605, HST calculated at 13%: $1,118.65, Credit Vendor: $9,723.65
• d. Alternative Materials Cost, Pursuant to subparagraph 5(a) of the Purchase Agreement & subparagraph (c) of the Certificate of Occupancy, Amount: $27.021.08, HST calculated at 13%: $3,512.74, Credit Vendor: $30,533.82.

[14] The Plaintiffs allege that these fees were not authorized by the APS. I will return to this allegation below.

[15] The subsequent correspondence between counsel for the parties is significant for the purposes of establishing:

1. Which party breached the APS, and
2. On what date was the APS breached?

[16] Accordingly, I will review this correspondence in some detail.

[17] On September 15, 2023, at 12:45 p.m., counsel for the Plaintiffs emailed the lawyer for Dormer Bond requesting "clarification regarding these fees". At 2:05 p.m., counsel for Dormer Bond advised that "your email has been forwarded to the Vendor for response, we will advise once in receipt of a response".

[18] At 2:08 p.m., the lawyer for the Plaintiffs advised Dormer Bond's lawyer that "We have clear instructions from our clients that they will not proceed until amended SoA is received".

[19] At 4:54 p.m., the lawyer for Dormer Bond responded: "Funds are due as per documents posted".

[20] At 4:58 p.m., the lawyer for the Plaintiffs asked, "Has the SoA been amended?", and the lawyer for Dormer Bond responded at 5:12 p.m. that "The Vendor will allow one day grace extension. Accordingly, closing shall be on Monday September 18, 2023 with adjustments remaining as of September 15, 2023. Also, no changes to the posted documents will be made or accepted by the Vendor."

[21] On September 15, 2023, at 5:18 p.m., counsel for the Plaintiffs emailed Dormer Bond's lawyer, asking: "Are you advising that your client will pursue these additional fees although they are not authorized to do so?"

[22] September 18, 2023 came and went, without any substantive response from Dormer Bond.

[23] On September 19, 2023, at 10:53 a.m., the lawyer for Dormer Bond advised as follows:

The Vendor has instructed us to provide an offer to credit the amount of $10,000 to the Purchaser on closing as a courtesy subject to the execution of a Mutual Release in the form attached hereto on or prior to closing. Please indicate your client's acceptance of the aforesaid offer on or prior to 4:00 p.m. today, September 19, 2023.

[24] Counsel for the Plaintiffs responded the same day, at 5:35 p.m., advising that "Our clients have reached out to us and advised that they will not accept this offer". This email also sets out a list of seven amendments to the Statement of Adjustments demanded by the Plaintiffs.

[25] The next day, September 20, 2023, Dormer Bond's lawyer responded at 5:06 p.m., advising that "the Vendor has instructed us to offer to waive only the alternative materials cost for this unit as a courtesy conditional upon the purchasers' execution of a mutual release in the form attached. Please confirm your acceptance of the foregoing by 12 p.m. tomorrow, September 21, 2023."

[26] The Plaintiffs rejected this offer on September 21, 2023, at 3:53 p.m., when counsel for the Plaintiffs emailed the lawyer for Dormer Bond, stating: "Our client did not accept your offer. They are requesting that all the aforementioned charges be removed".

[27] On September 22, 2023, counsel for Dormer Bond responded at 10:00 a.m., with a counter-offer:

The Vendor has instructed us to offer the following adjustments in the statement of adjustments as a courtesy to the purchasers, conditional upon the execution of the attached mutual release:

• Remove Alternative Materials Cost • Reduce Development Charges from $8,000 to $5,000 • Reduce meter costs by 50% • Remove Legal and Admin Fees

The Vendor's offer is valid until 5pm today, September 22, 2023 only, and no further extensions of closing will be permitted thereafter.

[28] At 12:24 p.m., Dormer Bond's lawyer sent another email containing a "draft revised SOA for the purpose of assisting your review of the mutual release with your client only. The final approved SOA will be posted once we receive the signed mutual release."

[29] Dormer Bond received no reply to these emails.

[30] On September 25, 2023 at 9:31 a.m., counsel for Dormer Bond again emailed the Plaintiffs' lawyer to advise:

The Vendor has instructed us to proceed with the closing notwithstanding the requirement for execution of a mutual release. The revised documents and SOA have been posted.

Please note, the closing was scheduled for September 15, 2023. So far we have received neither the closing documents nor any funds. The Vendor has instructed us to terminate the agreement of purchase and sale for this unit if we do not receive the closing package and funds on or prior to 12:00 PM today please. Please confirm receipt of this e-mail.

[31] Dormer Bond did not receive a reply to this email by the noon deadline, and on September 25, 2023, the lawyer for Dormer Bond faxed a letter to the Plaintiffs' lawyer to advise that the Vendor took the position that "the Purchaser has failed to complete the captioned transaction due to the Purchaser's failure to provide the closing funds and the executed documentation on the schedule closing date". The letter continued:

In accordance with paragraph 19 of the Agreement of Purchase and Sale between our respective clients (the "Agreement"), we confirm that same is hereby terminated effective immediately. As a result, the Vendor will be retaining the deposits previously paid by the Purchaser (together with the interest thereon) as liquidated damages without prejudice to any other rights it may have under the Agreement and at law without further notice to you or your client.

Please advise your client(s) that he/she/they must vacate the unit immediately and leave same in a broom-swept condition. Failure to do so accordingly will result in additional damages and costs payable to the Vendor.

[32] At 6:22 p.m. on September 25, 2023, counsel for the Plaintiffs confirmed receipt of the 9:31 a.m. email and advised that she would seek her client's instructions.

[33] On September 26, 2023 the lawyer for Dormer Bond reiterated that the transaction had been terminated.

Validity of the Additional Charges in the Statement of Adjustments

[34] As indicated, the Plaintiffs objected to the validity of a number of the additional charges set out in Dormer Bond's Statement of Adjustments dated September 7, 2023, and refused to close until those charges were clarified or removed. These charges related to Development Charges, Meters (Hydro and Gas), Vendor's Legal and Administrative Fees, and Alternative Materials Cost.

[35] The purchaser is entitled to proof of the figures contained in the Statement of Adjustment: Bellisario et al v. 2200 Bromsgrove Development Inc., 2025 ONSC 2546, at para. 61.

[36] I will deal with each of these charges in turn. There are two questions for each charge:

• a. Is the category of the charge contemplated by the APS or other contract?
• b. Is the amount claimed by the Vendor consistent with the APS or other contract?

[37] Adjustments on closing are dealt with in Paragraph 14 of the APS and Paragraph 8 of Schedule B of the Tarion Condominium Form, which is an Addendum to the APS and refers back to and incorporates paragraph 14 of the APS.

i) Development Charges: $8,000, plus 13% HST ($1,040) for a total charge of $9,040

[38] The Development Charges are dealt with specifically in subparagraph 14(c) of the APS, which provides:

In addition, the balance due on Closing shall be adjusted as to: any development, education, park or other levies or imposed charges or taxes by Government Authority applicable to the Unit and the amount of any new levies that were subsequently assessed against the property or attributable to the Unit.

[39] Development charges are also dealt with in an amendment to the APS dated February 29, 2020, which provides for a maximum charge of $8,000 plus HST for development charges. The amendment provides:

The Purchaser and the vendor agree that the total amount of the development and education charges payable by the Purchaser under paragraph 14(c) of the above mentioned Agreement of Purchase and Sale will not exceed $8000 plus HST.

[40] It is clear, therefore, that this category of charges is expressly authorized by the APS and the Amendment to the APS. It is also clear that the amount charged in the Statement of Adjustments does not exceed the maximum charge set out in the Amendment.

[41] What is not clear, however, is how the Vendor arrived at the $8,000 charge in this case.

[42] How the $8,000 charge was arrived at is known only by Dormer Bond. It should be a simple matter for Dormer Bond to explain how the charge was calculated and confirm that Dormer Bond is not imposing a mark-up on the charge. Yet Dormer Bond provided no evidence to explain how that charge was calculated, nor is there any explanation in their factum that might shed some light on this issue.

[43] Masoud Dolatabadi, the Director of Dormer Bond, was cross-examined on his affidavit, and he testified that the development charges are based on a "formula" provided by the City. This formula was not included in his affidavit or otherwise disclosed. There is no evidence that the formula results in the $8,000 charge included in the Statement of Adjustments.

ii) Meters (Hydro/Gas): $8,163, plus 13% HST ($1,061.22), for a total charge of $9,224.45.

[44] These charges are dealt with in subparagraph 14(h) of the APS, which provides:

In addition, the balance due on Closing shall be adjusted as to: the cost of water meter installations, water and sewer service connection charges and hydro and gas meter installation and connection or energization charges for the Condominium and/or the Unit, the purchasers portion of such installation and or connection or energization charges and costs to be calculated by dividing the total amount of such charges and costs by the number of residential dwelling units in the Condominium and by charging the purchaser in the statement of adjustments with that portion of the charges and costs.

[45] Again, the APS authorizes charges for meter installations, but no evidence was provided to support the $8,163 charged. On cross-examination, Mr. Dolatabadi testified that the amount is based on what the Vendor is charged by Ontario Hydro and other utilities, and that the amounts are calculated by a consultant, and the document to support the charge is sent to the Purchaser of each Unit. No such document was sent to the Plaintiffs, nor was any such document provided by Dormer Bond in its motion record.

iii) Vendor's Legal and Administrative Fees: $8,605, plus 13% HST ($1,118.65), for a total charge of $9,723.65.

[46] These charges are dealt with in subparagraph 14(j) of the APS, which provides:

A $250 administrative fee for any cheque paid with respect to any deposit payable pursuant to this agreement or any extras or upgrades or the occupancy fee which is returned "NSF" or upon which a "stop-payment" has been ordered, such administrative fee to be paid within five (5) days of written demand therefore. In addition, the Purchaser shall pay any legal fees and disbursements charged by the Vendor's solicitor together with an administrative fee of 15% of the total of such costs and expenses in connection with the Purchasers failure or delay in complying with the terms of this Agreement.

[47] While the APS provides for Vendor's Legal and Administrative Fees to be added to the Statement of Adjustments, such fees are only permitted under specific conditions that did not apply in this case. There were no NSF or "stop-payment" cheques, and, at the time the Statement of Adjustments was delivered, there was no failure or delay of the Purchaser to comply with the terms of the APS.

iv) Alternative Materials Cost: $27.021.08, plus 13% HST ($3,512.74) for a total of $30,533.82.

[48] The Statement of Adjustments states that these charges are authorized by subparagraph 5(a) of the APS and paragraph (c) of the Occupancy Certificate. Although subparagraph 5(a) of the APS permits the Vendor to make certain construction changes, it is silent on adding any additional material costs to the purchase price. Paragraph 14 of the APS, which specifically deals with adjustments on closing, does not refer to alternative materials cost.

[49] There is, however, an Acknowledgment Re Occupancy document dated April 19, 2023, and signed by the Plaintiffs which does state, at para. (c):

Per schedule A-1 clause 5(a) the Vendor may substitute some materials provided that the alternative material is of comparable quality to or better than the materials in the specifications as determined by the vendor in its sole discretion. During construction, some materials had to be substituted due to supply shortages. Differences in cost (as confirmed solely by a certificate provided by the Vendor) due to the use of alternative materials will be included in the statement of adjustments on Closing.

[50] This Acknowledgement Re Occupancy document is the contractual authority for this additional charge, not the "Certificate of Occupancy" incorrectly referenced in the Statement of Adjustments.

[51] Accordingly, this category of charge is authorized by an agreement between the parties.

[52] The agreement, however, provides that the charges will be confirmed "solely by a certificate provided by the Vendor". No such certificate was provided in this case.

[53] Even if a certificate had been provided by the Vendor, the Vendor would still have an obligation to act in good faith in the preparation of the certificate. False or exaggerated invoices cannot hide behind a certificate provided by the Vendor.

[54] In this regard, I adopt the analysis of Papageorgiou J. in Bellisario, at paras. 62 and 65:

Further, the Developer's interpretation is not commercially reasonable, particularly in the context of a consumer transaction where there is a standard form contract. If the Developer is correct that this standard form provision means that any Certificates it issues are the last word and that this cannot be challenged, then all developers could conceivably issue certificates in the millions of dollars, in respect of a purchase of a condominium in the hundreds of thousands of dollars and any purchasers would be obliged to pay them or be in breach. They could do this in situations where they have sold a unit and the market increases so as to get out of agreements and resell for a higher amount.

[B]ecause the Certificate is provided pursuant to the Developer's contract with the Purchasers, there would also be a duty of honest good faith performance that is imported into the preparation of the Certificate. The parties would reasonably expect that the Developer has provided the information in the Certificate, in compliance with the provision: Bhasin v. Hrynew, 2014 SCC 71.

[55] As indicated, no certificate was provided by the Vendor in this case. Nor has Dormer Bond provided any evidence in its motion record to explain how this $30,000 charge was calculated. Thus, although the category of "alternative material costs" is authorized, there is no evidence to support the amount charged by the Vendor.

[56] Significantly, Dormer Bond's Statement of Defence concedes that "an earlier iteration of the statement of adjustments erroneously included adjustments for alternative material costs, this adjustment was removed prior to delivery of the final statement of adjustments." Dormer Bond did not offer to remove the alternative material costs charges until September 20, 2023, 5:06 p.m.

Conclusion – Statement of Adjustments

[57] Based on the foregoing analysis, I find that three of the charges on the Statement of Adjustments - Development Charges, Meters (Hydro and Gas), and Alternative Materials Cost - were authorized by the APS, but Dormer Bond has failed to prove that the charges for each of these items were calculated correctly. Indeed, Dormer Bond has failed to provide any explanation or documentation to support these charges. These charges combined equalled $48,797 (inclusive of HST).

[58] The fourth charge - Vendor's Legal and Administrative Fees – was not authorized by the APS. This charge equalled $9,723 (inclusive of HST).

Which Party Violated the APS and When was the Contract Terminated?

[59] The Court is frequently confronted with aborted real estate deals where the purchaser tries to close for less than the agreed sale price. See for example: Azzarello v. Shawqi, 2019 ONCA 820; Bang v. Sebastian, 2019 ONCA 501. When the purchaser tries to close for less than the price agreed to in the APS, the purchaser is in default, and the vendor is entitled to retain the deposit paid.

[60] In the present case, it was the Vendor that tried to close for more than the price agreed to in the APS by adding approximately $60,000 in closing adjustments that were either unjustified or not authorized. Dormer Bond's attempt to claim any one of these charges was, in my view, a violation of the APS. A vendor's demand for more than the agreed purchase price is just as much a default as a purchaser's demand to pay less.

[61] Dormer Bond's demand for this additional payment as a condition of closing was an anticipatory breach of contract.

[62] The law relating to anticipatory breach of contract was summarized by the Ontario Court of Appeal in Spirent Communications of Ottawa Limited v. Quake Technologies (Canada) Inc., 2008 ONCA 92, at para. 37:

An anticipatory breach sufficient to justify the termination of a contract occurs when one party, whether by express language or conduct, repudiates the contract or evinces an intention not to be bound by the contract before performance is due. See Pompeani v. Bonik Inc., 35 O.R. (3d) 417, [1997] O.J. No. 4174 (C.A.). To assess whether the party in breach has evinced such an intention, the court is to ask whether a reasonable person would conclude that the breaching party no longer intends to be bound by it. See McCallum v. Zivojinovic, 16 O.R. (2d) 721, [1977] O.J. No. 2341 (C.A.). …[I]n determining whether the party in breach had repudiated or shown an intention not to be bound by the contract before performance is due, the court asks whether the breach deprives the innocent party of substantially the whole benefit of the contract.

[63] In addition, the Ontario Court of Appeal held in Remedy Drug Store Co. Inc. v. Farnham, 2015 ONCA 576, at para. 47, that the test for anticipatory breach is an objective one based on a consideration of the surrounding circumstances: "a party can repudiate a contract without subjectively intending to do so." The Court (at para. 48) adopted this summary from Angela Swan, Canadian Contract Law, 3d ed. (Markham: LexisNexis Canada, 2012), at p. 618:

The person (or his or her solicitor) may believe when the statement is made that he or she has an excuse for non-performance and that it is the other party who is in breach of the contract. The characterization of the statement as an "anticipatory breach" [or "repudiation"] will then be made when the dispute goes to trial.

[64] Similarly, the Ontario Court of Appeal in Pompeani adopts the following statement from Waddams, The Law of Contracts, 3rd ed., paras. 613-614:

Repudiation can be by words or conduct evincing an intention not to be bound by the contract. It was held by the Privy Council in Clausen v. Canada Timber & Lands, Ltd. that such an intention may be evinced by a refusal to perform, even though the party refusing mistakenly thinks that he is exercising a contractual right. [Emphasis added.]

[65] When confronted by an anticipatory repudiation or breach, the innocent party has a right to elect to terminate the agreement or accept the repudiation as discharging the agreement. The effect of exercising the right to terminate the agreement relieves the party of any further obligation to perform its obligations under the contract and allows it to pursue damages for the breach of contract without the need to tender: Pompeani; Bethco Ltd. v. Clareco Canada Ltd., 52 O.R. (2d) 609, John D. McCamus, "The Law of Contracts 2nd Ed." Irwin Law, 2012, at 686.

[66] See also: Place Concorde East Limited Partnership v. Shelter Corporation of Canada; 270 DLR (4th) 181 (ON CA), at para. 50:

Thus, a repudiatory breach does not automatically bring an end to a contract. Rather, it confers a right upon the innocent party to elect to treat the contract at an end thereby relieving the parties from further performance. As a general rule, the innocent party must make an election and communicate it to the repudiating party within a reasonable time: see Chapman v. Ginter, [1968] S.C.R. 560 at 568. However, in some cases the election to treat the contract at an end will be found to have been sufficiently communicated by the innocent party's conduct: John D. McCamus, The Law of Contracts, (Toronto: Irwin Law Inc., 2005) at pp. 641-42.

[67] Applying these principles to the case at hand, it is my view that the Plaintiffs were entitled to treat Dormer Bond's Statement of Adjustments, which included unjustified and unauthorized closing charges, as an anticipatory breach of contract. At that point there was no obligation on the Plaintiffs to tender. Dormer Bond had made it clear that it would not close for the agreed purchase price, and there was, therefore, no obligation on the Plaintiffs to present Dormer Bond with a cheque for an amount that Dormer Bond indicated it would not accept.

[68] The Plaintiffs' lawyer did not immediately bring the contract to an end, but sought either some clarification or an amendment to the Statement of Adjustments to bring it into line with the price agreed to in the APS.

[69] Arguably, the APS was terminated on September 15, 2025, when counsel for the Plaintiffs made it clear that her clients were not prepared to accept the price increase proposed by the Vendor. At 2:08 p.m., the lawyer for the Plaintiffs advised Dormer Bond's lawyer that "We have clear instructions from our clients that they will not proceed until amended SoA is received." At 4:54 p.m., the lawyer for Dormer Bond responded, "Funds are due as per documents posted". At 4:58 p.m. counsel for the Plaintiff asked, "Has the SoA been amended?", and the lawyer for Dormer Bond responded at 5:12 p.m. "The Vendor will allow one day grace extension. Accordingly, closing shall be on Monday September 18, 2023 with adjustments remaining as of September 15, 2023. Also, no changes to the posted documents will be made or accepted by the Vendor."

[70] The Plaintiff did not agree to the extension, and had made it clear that they were not accepting the charges set out in the Statement of Adjustments. The contract was at an end on September 15, 2023.

[71] If there was any uncertainty about September 15, 2023, this uncertainty was settled on September 18, 2023, the extended closing date set by Dormer Bond. September 18, 2023 came and went, and the APS did not close. The contract was terminated by the end of that date.

[72] On September 19, 2023 Dormer Bond made a new offer: a credit of $10,000 to the Purchaser on closing subject to the execution of a Mutual Release. That offer was open until to 4:00 p.m., September 19, 2023.

[73] Counsel for the Plaintiff responded the same day, at 5:35 p.m., advising that "Our clients have reached out to us and advised that they will not accept this offer".

[74] Choose any one of these dates - September 15, September 18 or September 19 – the Plaintiffs rejected Dormer Bond's increased price and demand for a mutual release. Time was of the essence, and the contract was terminated by the Plaintiffs' refusal to accept the increased price. The Plaintiffs were entitled to a return of their deposit.

[75] Between September 20 and September 23, 2023, Dormer Bond continued to negotiate with the Plaintiffs, and offered to reduce, but did not offer to remove, the impugned charges. These offers were all rejected by the Plaintiffs. In my view, however, the APS was terminated by September 19, 2023. That Dormer Bond continued to make offers after that date in an effort to revive the contract did not change the fact that the APS had already come to an end.

[76] If I am incorrect, Dormer Bond's final offer of September 22, 2023 – to remove Alternative Materials Cost, reduce Development Charges from $8,000 to $5,000, reduce meter costs by 50%, and remove Legal and Administrative Fees – was still not consistent with the APS. There was no evidence on this summary judgment motion that the remaining charges ($5,000 Development Charges and 50% meter costs) were justified. There was no explanation as to how these figures were calculated.

[77] Further, this final offer still required the Plaintiffs to sign a mutual release. There was nothing in the APS that required the Plaintiffs to sign a mutual release as a condition of closing. Imposing this as a condition of closing was also a violation of the APS: Savo v. Moursalien, 2018 ONCA 981, at para. 9. This also justified the Plaintiffs' refusal to complete the transaction.

[78] When Dormer Bond finally purported to terminate the APS on September 25, 2023, Dormer Bond was still insisting that the Plaintiffs agree to an increased purchase price. Whichever date you choose, it was Dormer Bond that breached the APS.

Conclusion – Breach of the APS – Return of Deposit

[79] Based on the foregoing, the Plaintiffs are entitled to a return of their deposit of $114,224.50 plus $11,540.69 for upgrades, with interest.

Additional Issues

[80] In most cases, that would be the end of the case. Not so in this case. Several issues remain.

Plaintiffs' Claim for General Damages

[81] The Plaintiffs claim damages for "unauthorized entry". As indicated above, the Plaintiffs were permitted to occupy the unit at the end of April 2023, several months before the scheduled closing date. The Plaintiffs allege that on June 16, 2023, at 1:30 p.m., individuals employed or retained by the Defendant "entered the Unit through the balcony of the master bedroom without notice or authorization". The Plaintiffs also allege that they were subject to "frequent trespass on the Unit by the Defendant's agents".

[82] Dormer Bond argues that the Plaintiffs have failed to establish any incidence of nuisance or trespass to the Unit. Moreover, even where Dormer Bond or its agents may have entered the Unit, they were entitled to pursuant to subsection 9(a) of the APS, which provides:

Notwithstanding the transfer of title to the Unit to the Purchaser, or occupancy of the Unit by the Purchaser, the Vendor, its successors and assigns and their employees, contractors and authorized agents shall have free access to the Unit for a period of two (2) years after Closing, and to the common elements for a period of five (5) years after Closing at all reasonable times in order to make inspections or do any work or repairs which may be deemed necessary in connection with the completion of the Unit or of any servicing or installations in connection with the Unit and/or the common elements and this right shall be in addition to any rights and easements in favour of the Vendor under the Condominium Act.

[83] The Plaintiffs rely on the affidavit of Mahnaz Dehghani Sanij to support the allegation that an agent of Dormer Bond "entered the Unit through the balcony of the master bedroom". On cross-examination, Ms. Sanij acknowledged that she was not in the unit when this occurred, but her husband heard a noise in the unit: "my husband saw them, and then he opened the door of the balcony and then they saw each other". She did not know who opened the balcony door.

[84] This was clarified in an answer to undertakings, in which Mohammadali Taheripouresfahani explained that he normally kept the balcony door of the master bedroom open to allow air circulation, and on the day in question he went upstairs and saw two individuals standing on the balcony of the master bedroom.

[85] The two individuals are not identified, and this allegation is expressly denied by Mr. Dolatabadi, who states in his affidavit that no agent of Dormer Bond entered the Unit on June 16, 2023.

[86] In any event, given Subsection 9(a) of the APS, and the little information provided by the Plaintiffs, I find that there is no basis to award damages to the Plaintiffs. If there were any Dormer Bond agents or employees on the balcony of the Unit on June 16, 2023, I conclude that they were most likely on the balcony to "make inspections or do any work or repairs which may be deemed necessary in connection with the completion of the Unit" as contemplated by the APS.

[87] Moreover, the Plaintiffs have not suffered any damages as a result of this alleged trespass.

[88] The Plaintiffs make several other claims for damages, including moving costs, furniture costs, utility bills, home insurance, home internet for security camera, and market appreciation loss. There is no explanation why Dormer Bond should be responsible for these costs. For example, on what basis are the Plaintiffs claiming $8,206 for IKEA furniture? Why are they claiming $18,911 in "occupancy fees" from Dormer Bond, given that the Plaintiffs did indeed occupy the Unit, and, apparently, still do? Why are they claiming utility costs, internet and home insurance for the period in which they occupied the Unit? Section 6 of the Occupancy Agreement (at Schedule C of the APS) requires the purchaser to pay for all "telephone, alarm systems, utility and other charges billed directly to the Unit Owner by the supplier of such service." Why have the Plaintiffs continued to pay home insurance for the property? On what basis are the Plaintiffs claiming "market appreciation loss"?

[89] The Plaintiffs' factum does not provide any explanation or authority for these damages claims, and they are disallowed.

Plaintiffs' Claim for Punitive Damages

[90] The Plaintiffs also claim punitive damages, arguing that Dormer Bond's conduct throughout the course of their dealings with the Plaintiffs "has been egregious, high-handed and reprehensible."

[91] Punitive damages are an extraordinary remedy. The Supreme Court has held that they should receive "the most careful consideration" and their award "should be most cautiously exercised". Further, "conduct meriting punitive damages awards must be 'harsh, vindictive, reprehensible and malicious', as well as 'extreme in its nature and such that by any reasonable standard it is deserving of full condemnation and punishment'": Honda Canada Inc. v. Keays, 2008 SCC 39, at para. 68.

[92] In Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419, the Court of Appeal stated, at para. 59:

Punitive damage awards are not compensatory. They are meant to punish the defendant in exceptional cases where the defendant's conduct has been "malicious, oppressive and high-handed" and "represents a marked departure from the ordinary standards of decent behaviour", see Whiten, at para. 36.

[93] Punitive damages are awarded only where compensatory damages are insufficient to deter the conduct at issue.

[94] The Plaintiffs have not satisfied me that Dormer Bond's conduct in this case was "malicious, oppressive and high-handed" or "represents a marked departure from the ordinary standards of decent behaviour". Most of the charges in the Statement of Adjustments were authorized by the APS, but Dormer Bond failed to prove that the amounts claimed were correctly calculated. The record does not support the contention that Dormer Bond acted maliciously or oppressively. Three is no evidence, for example, that Dormer Bond inflated the sale price on closing so as to get out of the APS and resell for a higher amount. Dormer Bond offered several concessions and extensions during the negotiations in an effort to close the deal. While I have concluded that these concessions were not sufficient, I do not find that Dormer Bond's conduct merits an award of punitive damages.

Dormer Bond's Claim for Possession of the Property and Damages

[95] An unusual aspect of this claim is that the Plaintiffs were permitted to occupy the Unit in April 2023, prior to the September 15, 2023 closing date. Although the APS did not close, the Plaintiffs have not vacated the Unit and have not paid occupancy fees or condominium fees since the last post-dated cheque of April 2024.

[96] Paragraph 4(b) of the APS requires the Purchaser to vacate the Unit within 30 days if the Agreement cannot be completed.

[97] Dormer Bond's Statement of Defence and Counterclaim, served on December 6, 2023, includes a claim for possession of the Unit.

[98] Although the Plaintiffs allege that they stopped residing in the Unit some time around April 2024 (the Plaintiffs could not recall the precise date), Ms. Sanij testified in her cross-examination on July 17, 2025, that the Plaintiffs still had their furniture in the Unit and were still paying for internet and security cameras for the Unit "because we have stuff in it".

[99] Ms. Sanij was asked to give an undertaking for the date that the family stopped residing in the Unit. Her lawyer took the question under advisement, but no answer was ever given.

[100] In their Reply and Defence to the Statement of Defence and Counterclaim, the Plaintiffs took the position that the Defendant was not entitled to any of the relief sought in its Counterclaim, and asked that the Counterclaim be dismissed.

[101] At the conclusion of the hearing before me on September 26, 2025, I asked counsel for the Plaintiffs whether the Plaintiffs were prepared to consent to an Order for Dormer Bond's Possession of the Unit. She indicated that she would have to obtain instructions and would advise counsel for the Defendant if this aspect of the claim could proceed on consent. If it could proceed on consent, the parties were to provide the Court with a consent order. As of the date of this Decision, no consent order for possession has been received by the Court.

[102] To the best of my understanding, the Plaintiffs are opposed to the Order for Possession even though they claim that the APS was terminated in September, 2023, they are not the legal owners of the Unit, and have only used the Unit to store their furniture and "stuff" since around April 2024.

[103] The Plaintiffs' position on this issue is untenable. Dormer Bond is entitled to possession of the Unit and I am satisfied that Dormer Bond meets the criteria for a Writ of Possession under Rule 60.10.

[104] I also find that Dormer Bond is entitled to occupancy payments of $3,782 per month from May 1, 2024 until the date of this Decision (18 months X $3,782 = $68,076).

[105] In addition, Dormer Bond has paid the Condominium Fees for the Unit since the closing date, ($3,882 to July 4, 2025). Since the Plaintiffs have retained occupation of the Unit since the closing date, this amount should also be included in Dormer Bond's damages.

[106] Finally, since the closing date, Dormer Bond has paid the property taxes ($6,586.56 to July 4, 2025) for the Unit. Since the Plaintiffs have retained occupation of the Unit since the closing date, this amount should also be included in Dormer Bond's damages.

[107] The Condominium Fees and Property Taxes are calculated to July 4, 2025, because that is the date of Dormer Bond's affidavit. Counsel for Dormer Bond may provide the Court with these costs to the date of judgment with supporting documents, and the final judgment will reflect the updated amounts.

Summary of Conclusions

[108] Summary Judgment is granted in favour of the Plaintiffs for an Order for the return of their deposit of $114,224.50 plus $11,540.69 for upgrades, with interest.

[109] The balance of the Plaintiffs' motion for summary judgment is dismissed.

[110] Summary Judgment is granted in favour of the Defendant for an Order for possession of the Unit and an Order granting leave to Dormer Bond to issue a Writ of Possession on the Unit.

[111] Summary Judgment is granted in favour of the Defendant for damages for:

• a. Occupancy payments of $3,782 per month from May 1, 2024 until the date of this Decision (18 months X $3,782 = $68,076).
• b. Property taxes from September 20, 2023 to date of judgment (estimate: $6,586.56)
• c. Condominium fees from September 20, 2023 to the date of judgment (estimate: $3,882)

[112] The balance of the Defendant's motion for summary judgment is dismissed.

Costs

[113] Success on this motion for summary judgment was divided.

[114] If the parties are not able to agree on costs, the Plaintiffs may deliver costs submissions of no more than 3 pages plus costs outline and any offers to settle within 20 days of the release of this decision. The Defendant may deliver costs submissions on the same terms within a further 15 days. The Plaintiffs may deliver reply costs submissions (maximum 2 pages) within a further 15 days.

[115] Costs submissions should be uploaded onto Case Center and sent directly to my Judicial Assistant at Robyn.Pope@Ontario.ca.

Justice R.E. Charney

Released: October 15, 2025