Court File and Parties

Court File No.: CV-22-3754 Date: 2025-10-22

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

WILLIAM HUNTER, CATHERINE HUNTER, THE ESTATE OF ESTHER HUNTER Plaintiffs

- and -

HARBRINDER ATWAL Defendant

- and -

HARBRINDER ATWAL Plaintiff by Counterclaim

- and -

WILLIAM HUNTER, CATHERINE HUNTER, THE ESTATE OF ESTHER HUNTER, RE/MAX REALTY SERVICES INC. Defendants to the Counterclaim

Counsel:

• Eric Turkienicz and Dennis Molnar, for the Plaintiffs
• Gurpreet Jassal, for the Defendant
• Not appearing, for RE/MAX REALTY SERVICES INC.

Heard: April 23, 2025, In Person

Before: Wilkinson J.

Reasons for Judgment

[1] Introduction

[1] The Plaintiffs/Defendants to the Counterclaim, William Hunter ("William"), Catherine Hunter ("Catherine") and the Estate of Esther Hunter ("the Estate"), bring a motion for summary judgment against the Defendant/Plaintiff by Counterclaim, Harbrinder Atwal ("Harbrinder"), claiming damages resulting from a failed real estate transaction. They also seek an order permitting them to retain the $40,000 deposit for the purchase currently being held in trust, and to have the Counterclaim dismissed that was brought by Harbrinder against them for the return of his deposit.

[2] The Defendant/Plaintiff by Counterclaim, Harbrinder, takes the position that he was justified in not closing on the real estate deal, and that there are genuine issues requiring a trial with respect to the dispute between the parties. He submits that the summary judgment motion brought by the Plaintiffs'/Defendants to the Counterclaim should be dismissed.

The Issue

[3] The issue in this case turns on whether the purchaser, Harbrinder, was justified in walking away from his obligations under the Agreement of Purchase and Sale ("the APS") because title of the property had transferred from the original seller to her Powers of Attorney after the APS was signed.

[4] For the reasons that follow, I find that the APS signed by the Powers of Attorney for the Estate of Esther Hunter is binding on the purchaser Defendant, Harbrinder Atwal. The APS specified that Powers of Attorney were acting on behalf of the seller, Esther Hunter. Accordingly, I find that the failure of the seller to ensure that an amended APS was executed prior to the closing date does not invalidate the contract, as the Powers of Attorney were able and willing to follow through with the sale, and were legally entitled to pass title to the purchaser.

[5] The Plaintiffs/Defendants to the Counterclaim are therefore granted summary judgment in the amount of $248,318.60 - $40,000 deposit = $208,318.60 as follows:

a) Payment of $244,000 for the difference in value between the original purchase price in the APS, and the price paid by the ultimate purchaser when the deal closed in October 2022;

b) Payment of $1,496.12 for legal fees incurred by the Plaintiffs regarding the failed real estate transaction with Harbrinder;

c) Carrying costs of $2,822.48 for the property between the original closing date of June 30, 2022, and the ultimate closing date of October 24, 2022.

[6] The Counterclaim filed by Harbrinder against the Plaintiffs for return of his $40,000 deposit is dismissed.

Background

[7] Esther Hunter owned a property located at 1 Cunningham Court in Brampton, Ontario. In February of 2022, Esther was admitted to Brampton Civic Hospital, where she was treated for medical, and then palliative care.

[8] As Esther was unable to return to her home, her children, who were also her Powers of Attorney, decided to list the vacant property on the market with her consent. The property was listed on April 6, 2022. The listing agreement identified the property's seller as "Esther Hunter (under Power of Attorney)".

[9] On April 7, 2022, Harbrinder entered into an APS with Esther Hunter through her Powers of Attorney. The agreed upon purchase price was $1,120,000. The closing date was June 30, 2022.

[10] Harbrinder waived all financing and inspection conditions in the purchase offer that was accepted by William and Catherine on behalf of Esther.

[11] The APS contained several provisions, including:

a) Harbrinder was to provide a deposit of $40,000;

b) The transaction was to be completed no later than 6:00 p.m. on June 30, 2022;

c) Harbrinder was to pay the balance of the $1,120,000 on the closing date;

d) Harbrinder had until 6:00 p.m. on June 16, 2022 to examine the title to the property; and

e) Harbrinder had until June 25, 2022 to provide any valid objection to the title of the property in writing.

[12] Para. 10 of the APS governed the conditions under which the agreement would be at an end. It stated:

If within the specified times referred to in paragraph 8 (by June 25, 2022 – additional language mine) any valid objection to title or to any outstanding work order or deficiency notice, or to the fact the said present use may not lawfully be continued, or that the principal building may not be insured against risk of fire is made in writing to Seller and which Seller is unable or unwilling to remove, remedy or satisfy or obtain insurance save and except against risk of fire (Title Insurance) in favour of the Buyer and any mortgagee, (with all related costs at the expense of the Seller), and which Buyer will not waive, this Agreement notwithstanding any intermediate acts or negotiations in respect of such objections, shall be at an end and all monies paid shall be returned without interest or deduction and Seller, Listing Brokerage and Co-operating Brokerage shall not be liable for any costs or damages. Save as to any valid objection so made by such day and except for any objection going to the root of the title, Buyer shall be conclusively deemed to have accepted Seller's title to the property [Emphasis added.]

[13] Para. 29 of the APS specified that the heirs, executors, administrators, successors and assigns of Esther Hunter were bound by the terms of the Agreement.

[14] William provided affidavit evidence that he and his sister, Catherine, were Esther's Powers of Attorney and sole beneficiaries under her Will.

[15] After the property had been sold, the Powers of Attorney arranged for an intermediary transfer of the title of the property from Esther to William and Catherine, to ensure the closing could proceed without complications in the event that Esther, who was 99 years old, died prior to the closing date. This transfer of title took place on April 11, 2022. The Power of Attorney was registered on title at the same time.

[16] The Plaintiffs provided affidavit evidence from their real estate agent, Susan Winter, that she informed Harbrinder's real estate agent, Gary Takhar, of the change in title during a telephone call on April 13, 2022.

[17] The Plaintiffs also submit affidavit evidence from Ms. Winter that during the April 13, 2022 conversation, Mr. Takhar advised her that Harbrinder was seeking to add his wife's name to the APS in order to qualify for a mortgage.

[18] Ms. Winter deposed that she made several attempts prior to the closing date to arrange for an amendment to the APS to reflect the change in title, but the APS was never formally amended to reflect William and Catherine as the owners of the property.

[19] Ms. Winter also deposed that during a telephone call with Mr. Takhar on May 6, 2022, he asked for a one-month extension of the closing date to July 30, 2022, on the basis that Harbrinder had sustained a shoulder injury, and was receiving Worker's Compensation payments, and therefore could no longer qualify for a mortgage in time to close on the scheduled closing date.

[20] The Plaintiffs provided affidavit evidence that Harbrinder refused to provide further information about his ability to qualify for a mortgage. Consequently, they turned down his request for a one-month extension of the closing date.

[21] Ms. Winter was not cross-examined on her affidavit. Harbrinder did not provide an affidavit sworn by Mr. Takhar.

[22] Esther died on May 17, 2022, prior to the closing date.

[23] The Plaintiffs provided a copy of an email dated June 13, 2022, sent from their lawyer, Wesley Jackson, to Harbrinder's lawyer, Kulvir Grewal. The email confirms that Harbrinder had stated his intention not to close the deal on June 30, 2022, as he had raised concerns about the intermediary title transfer. In the email, Mr. Jackson clearly set out the position of the Plaintiffs:

…our position is that an Agreement of Purchase and Sale is fully assignable, subject only to such limitations on assignment as may be incorporated into the Agreement of Purchase and Sale itself. There are no limits in the APS restricting the vendor's right to assign the Agreement of Purchase and Sale. The [H]unters are now simply in the position of Seller. The buyer and both agents were always aware of the name change on title, and the only reason an amendment wasn't written up yet, was because the buyer was intending to add additional buyers in order to obtain financing, as a workplace injury has the buyer on workman's comp.

[24] On June 16, 2022, close to the 6:00 p.m. deadline for the purchaser to examine the title to the property, Mr. Grewal sent 19 requisitions regarding the title to the property. The Plaintiffs submit that some of these requisitions were not appropriate title requisitions, and therefore, the Plaintiffs were not required to respond to all of them. Harbrinder maintains that the Plaintiffs, through their lawyer, Mr. Jackson, refused to provide a satisfactory explanation or sufficient information to satisfy Mr. Grewal that Harbrinder was going to receive good, clear and marketable title to the property.

[25] The Plaintiffs provided affidavit evidence that a copy of Esther's Will was provided to Mr. Grewal on June 24, 2022, which confirmed that William and Catherine were the sole beneficiaries of the Estate. The Plaintiffs take the position that they were not required to share this information with Harbrinder, but did so anyway to satisfy his concerns regarding the title to the property.

[26] Harbrinder did not serve a written objection to title on the Plaintiffs prior to the June 25, 2022 deadline.

[27] After sending a copy of Esther's Will to Harbrinder, they sent him a draft Statement of Adjustments, a tax bill for the property, a vendor's closing certificate, and a draft direction for payment of the closing funds.

[28] Availability of title insurance was not a condition of the APS which was required to be satisfied to close the deal. However, Harbrinder provided copies of emails from Chicago Title that indicated that he was unable to obtain title insurance for the transaction. Harbrinder takes the position that without title insurance, he was unable to be assured that good and clear title would pass to him upon the purchase, and was therefore justified in walking away from the deal.

[29] As a result, on the June 30, 2022 closing date Harbrinder refused to accept the conveyance and transfer of title, and he refused to deliver the balance of the purchase funds owed to the Plaintiffs in accordance with the terms of the APS.

[30] The Plaintiffs offered to extend the closing date in correspondence dated July 6, 2022 and July 11, 2022. Harbrinder did not respond to these communications.

[31] The property was re-listed for sale on July 20, 2022 for $999,000, which was the same price at which it had originally been listed. However, William deposed that in the interim, the Bank of Canada had increased its prime interest rate.

[32] An offer of $800,000 was received on the property on August 9, 2022. Correspondence was sent by the Plaintiffs' current counsel, Mr. Turkienicz, to Mr. Grewal informing him of the offer, to give him an opportunity to revive the APS. Harbrinder did not respond to this correspondence.

[33] The Plaintiffs did not accept the $800,000 offer. A subsequent offer of $875,000 was received on August 27, 2022. A counterproposal was made by the Plaintiffs. The property ultimately sold for $876,000, with title passing to the new purchasers on October 24, 2022. This price was $244,000 less than the amount Harbrinder had agreed to pay to purchase the property.

Position of the Plaintiffs/Defendants to the Counterclaim

[34] The Plaintiffs submit that Harbrinder was not justified in refusing to close on the property on June 30, 2022. They point out that Harbrinder did not provide an objection to the title of the property by June 25, 2022, as he was required to do under para. 8 of the APS.

[35] The Plaintiffs argue that para. 10 of APS states that if a valid objection is made in writing, and the seller is unable to satisfy the objection by way of obtaining title insurance, then the purchaser can walk away from the deal. They submit that a requisition is not the same thing as a written objection to title, and that the requisition letter did not identify issues or concerns going to the root of title. They argue that possible concerns about title do not create a formal objection to title. Accordingly, they submit that Harbrinder cannot rely on para. 10 to walk away from his obligations to purchase under the APS.

[36] The Plaintiffs also argue that the fact that the title of the property transferred to William and Catherine prior to the closing date does not invalidate the APS, as the APS clearly stated that the property was being sold by "Esther Hunter (Under Power of Attorney)". They submit that their obligation under the APS was to transfer good title to Harbrinder on the closing date, and that as long as title was able to be effectively delivered, it did not matter if the name of the seller on the APS was different from the name of the seller on the closing date.

[37] The Plaintiffs further argue that the fact that the APS could have been amended to reflect the names of the new owners of the property, or alternatively, an Estate Trustee with a Will could have been appointed after Esther's death, does not invalidate the APS.

[38] The Plaintiffs also submit that the transfer of title from Esther to her Powers of Attorney did not delay or impede the sale. Rather, due to concerns that Esther may die prior to the closing date, which was in fact what transpired, the transfer of title to the Powers of Attorney ensured that the transfer to Harbrinder could take place on the scheduled closing date.

[39] Had the transfer from Esther to the Powers of Attorney not taken place before her death, the Plaintiffs submit that the application for probate of the Will, and to appoint an Estate Trustee with a Will, could have jeopardized their ability to close the sale on behalf of the Estate by the agreed upon closing date. This circumstance would have resulted in a breach of the APS.

[40] The Plaintiffs rely on Harbrinder's discovery evidence as proof that he did not have true concerns about the legitimacy of the sale at the time that he refused to close the deal. In particular, they note that Harbrinder admitted the following:

a) He was aware that Esther needed a Power of Attorney to make decisions on her behalf, and that the property was being sold under Power of Attorney;

b) He had no concerns about the property being sold under a Power of Attorney;

c) He understood that his offer to purchase was irrevocable with no conditions, and that once it was signed, it was a firm deal; and

d) He still intended on closing the property on June 30, 2022 once he learned that the title had transferred from Esther to her Powers of Attorney.

[41] The Plaintiffs also submit that none of the requisitions sent by Mr. Grewal to Mr. Jackson set out any objection specifically to the title of the property, nor did the issues addressed in the requisition letter identify valid reasons for the sale to not go through. For example, Harbrinder requested information about any estate administration taxes or land transfer taxes owed with respect to the property, but these expenses are ones that must be paid by the seller, not the purchaser. The consequences of non-payment are borne by the seller.

[42] In response to Harbrinder's specific concern about estate administration taxes potentially owed by the Estate, the Plaintiffs argue that because the title to the property transferred to the Powers of Attorney before Esther's death, the property never fell into the Estate. Therefore, there is no possibility that estate administration taxes could be owed with respect to the transfer of title to the property.

[43] In addition, the Plaintiffs argue that even if the requisitions were valid, the fact that some of them were not responded to does not entitle Harbrinder to walk away from his obligations under the APS. They argue that requisitions are not the same legal entity as a written objection to title.

[44] The Plaintiffs also argue that Harbrinder has never challenged the validity of the Power of Attorney agreement. They therefore argue that the demand by Mr. Grewal for confirmation of the validity and legality of the Power of Attorney in the requisition letter was not a condition of the closing, and that their refusal to provide this information to Mr. Grewal was not a proper reason for Harbrinder to fail to comply with the terms of the APS.

[45] The Plaintiffs submit that the title to the property was clear, and was not subject to any encumbrances, liens, or mortgages before, during, or after the transfer to the Powers of Attorney. The Plaintiffs take the position that the purpose of para. 8 of the APS is to satisfy the purchaser that the property can be insured for fire, that there are no outstanding work orders or deficiencies on title, and that there are no concerns regarding these issues that would prevent the closing that was scheduled to take place on June 30, 2022.

[46] The Plaintiffs further argue that even if Harbrinder, as purchaser, did not have a contract with the Powers of Attorney but rather, had a contract with Esther, this circumstance does not remove from him the requirement to comply with the terms of the APS. Esther's Estate is a plaintiff along with the two Powers of Attorney. Therefore, the person whose name is on the APS, Esther, is suing Harbrinder for breaching the contract between them.

[47] The Plaintiffs also argue that if Harbrinder had conflicting evidence to provide from his realtor, Mr. Takhar, to suggest that he was not informed of the title transfer in April 2022, he ought to have provided an affidavit from him at the time that this motion was argued. They submit that it is not sufficient for Harbrinder to rely upon the prospect of anticipated evidence from Mr. Takhar as a reason for the matter to proceed to trial.

[48] The Plaintiffs also submit that the fact that there was no title insurance for the property on the closing date is not a valid reason to set aside the closing date. They argue that Harbrinder did not make title insurance a condition of the APS prior to signing it, and thus, the availability of title insurance was not a requirement to close the deal.

[49] Additionally, the Plaintiffs take the position that because they were able to deliver good and clear title to Harbrinder on the closing date, the lack of title insurance did not permit Harbrinder to rely on para. 10 of the APS walk away from his obligations. Harbrinder's apparent concern that the transfer of title to the Powers of Attorney could lead to the lack of good title does not equate to an actual lack of good and clear title to transfer.

[50] The Plaintiffs take the further position that if title insurance was vital to Harbrinder, he should have made it part of his offer to purchase, but he did not do that.

[51] The Plaintiffs submit that the real reason why the deal did not close on June 30, 2022 was because Harbrinder lacked the funds to close the deal. In making this argument, they rely upon the following evidence from Harbrinder's discovery:

a) He stated that he had not been working since February 4, 2022 with respect to his shoulder injury;

b) He admitted that he was $620,000 short on the funds he required to close the deal on June 30, 2022, unless he was able to sell another of his investment properties by the closing date;

c) The investment property that was required to be sold to close the deal with the Plaintiffs was not even listed for sale until June 2022; and

d) Even if the investment property sold, that sale would yield around $550,000, which would have still been $70,000 short of the $620,000 he required to close the deal with the Plaintiffs.

[52] The Plaintiffs state that there is no genuine issue requiring a trial in the dispute between the parties. They submit that Harbrinder breached the APS, and as a result, they submit that they have suffered damages, which they calculate at varying sums in different areas of their factum, including $248,298.24 and $248,209.24. However, the total of the three separate heads of damages actually totals $248,318.60, which the Plaintiffs state is comprised of the following:

a) $244,000 which is the difference between the purchase price in the Harbrinder APS and the eventual sale price in October 2022;

b) $1,496.12 in real estate transactional legal fees; and

c) Carrying costs of $2,822.48 for property insurance, tax, utilities, and maintenance costs post-breach.

[53] The Plaintiffs also seek an order permitting them to retain the $40,000 deposit for the sale provided by Harbrinder that is currently being held in trust, and to have Harbrinder's Counterclaim against them dismissed.

Position of the Defendant/Plaintiff by Counterclaim

[54] Harbrinder takes the position that the Plaintiffs' failure to provide all the information identified in the June 16, 2022 requisition letter meant that he could not obtain title insurance. As a result, he argues that he could not be assured that good and clear title to the property was going to pass to him, and that he was therefore justified in refusing to follow through with the purchase of the property.

[55] In particular, Harbrinder submits that Mr. Jackson was required to verify the validity of both the Will of Esther (executed on December 2, 1996), and the Power of Attorney (executed on May 11, 1995), prior to the property being transferred on April 11, 2022, but that these steps did not take place.

[56] Harbrinder takes the further position that the Plaintiffs and their lawyer were required to produce the requested information to him because the title insurer required an explanation as to the steps taken by Mr. Jackson to verify if the Power of Attorney was still in effect and not revoked at the time of the April 11, 2022 transfer. Harbrinder submits that this request is standard practice for the underwriting of title insurance policies to protect from fraud and improper transactions.

[57] Harbrinder points to the fact that Chicago Title refused to provide title insurance to him as evidence that there were concerns about the legitimacy of the title passing to him. He therefore argues that para. 10 of the APS permitted him to walk away from the requirement to close the purchase on June 30, 2022.

[58] Harbrinder also submits that he had no knowledge of the property transfer that took place on April 11, 2022, nor did he consent to the transfer taking place. He emphasizes that he only found out about the title change in June 2022 when his lawyer conducted a title search on the property. Harbrinder also stated that neither he nor his lawyer were contacted by the Plaintiffs to discuss amending the APS to list the Powers of Attorney for Esther as the sellers prior to the April 11, 2022 transfer taking place.

[59] Harbrinder also submits that there was no privity of contract between the Powers of Attorney and himself, and therefore, the APS cannot be enforced against him. He argues that the APS was not assignable, as the parties had initially inserted a term into the APS that the Agreement was assignable, and then deleted the term with the consent of both parties. He therefore argues that Esther was estopped from assigning the APS to her Powers of Attorney.

[60] Harbrinder also argues that as the consideration for the transfer from Esther to the Powers of Attorney was "NIL", and because the transfer was recorded as a "gift", he was concerned that no land transfer taxes were paid by at the time of the conveyance.

[61] Harbrinder submits that despite his concerns about the title, his lawyer delivered a direction re: title and undertaking to readjust, and a copy of a certified cheque drawn from Mr. Grewal's firm's trust account containing the amount of the balance due on closing. He therefore denies that he did not have sufficient funds to complete the closing on June 30, 2022, but states that he did not wish to close the transaction without title insurance.

[62] Harbrinder further argues that the Plaintiffs' motion for summary judgment ought to be dismissed, as he submits that there are credibility issues and conflicting evidence in the record before me that requires a trial to make findings on a full record, including the following issues:

a) Whether Harbrinder had requested that his wife's name be added to the APS;

b) Whether Harbrinder had requested a one-month extension of the closing date through his realtor; and

c) Whether Harbrinder knew that the title had transferred from Esther to the Powers of Attorney on April 11, 2022.

The Law

[63] Rule 20.04(2)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, provides that "[t]he court shall grant summary judgment if … the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence".

[64] Rule 20.04(2.1) sets out the powers of the judge hearing the summary judgment motion:

Powers

(2.1) In determining under clause (2)(a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence.

[65] Summary judgment is available to the parties "when the 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, [2014] 1 S.C.R. 87, at para. 49.

[66] The moving party seeking summary judgment has the burden of proof to establish that there is no genuine issue requiring a trial: Botnick et al. v. The Samuel and Bessie Orfus Family Foundation et al., 2011 ONSC 3043, 71 E.T.R. (3d) 210, at para. 10, aff'd 2013 ONCA 225, 86 E.T.R. (3d) 6.

[67] On a motion for summary judgment, "[a] responding party may not rest on mere allegations or denials of the party's pleadings, but must set out, in affidavit material or other evidence, specific facts showing there is a genuine issue requiring a trial": Sweda Farms Ltd. et al. v. L.H. Gray & Son Limited et al., 2013 ONSC 4195, at para. 27.

[68] Each party to a motion for summary judgment has an obligation to "... 'put its best foot forward' with respect to the existence or non-existence of material issues to be tried": Ramdial v. Davis, 2015 ONCA 726, 341 O.A.C. 78, at para. 27, citing Canada (Attorney General) v. Lameman, 2008 SCC 14, [2008] 1 S.C.R. 372, at para. 11.

[69] "[A]n agreement of purchase and sale is breached when a purchaser fails to complete the purchase of a property due to the purchaser's own reasons": McKenzie v. Fabco Holdings Inc., 2024 ONSC 6325, 65 R.P.R. (6th) 91, at para. 17.

[70] To receive payment for the sale of a property, the vendor only need be in a position to ensure that good title is conveyed to the purchaser, even if they do not technically hold the title themselves: 1854329 Ontario Inc. v. Cairo, 2022 ONCA 744, at para. 12. This principal was repeated by the Court of Appeal for Ontario in Nguyen v. Zaza, 2023 ONCA 34, 48 R.P.R. (6th) 28, at para. 10, leave to appeal refused.

[71] Issues going to the root of title of a property amount to a total failure of consideration, such that the purchaser would receive nothing at all: Chan v. Mangal, 2022 ONSC 2068, 43 R.P.R. (6th) 165, at paras. 21, 23.

[72] A purchaser of real property can be absolved from completing the transaction and released from liability if a vendor is unwilling and unable to satisfactorily respond to proper requisitions made in a timely manner: Garfreed Construction Co. Ltd. v. Blue Orchid Holdings Ltd. et al. (1976), 15 O.R. (2d) 22 (S.C.), at pp. 31-32.

[73] There is no requirement for an executor of an estate to account for assets falling outside of the estate that were passed from the deceased to others for tax planning, estate planning, or other purposes, while the deceased was still living. In addition, there is no requirement for an estate to obtain a Certificate of Appointment of Estate Trustee: Munro v. Thomas, 2021 ONSC 3320, at paras. 21, 31.

[74] Estate administration taxes arise upon the issuance of the Certificate of Appointment of Estate Trustee. If such an application is not required for a particular estate, then no estate administration taxes are owed or payable by the estate.

Analysis

Summary Judgment is Appropriate

[75] There is little disagreement between the parties regarding the factual events that took place. The Defendant elected not to cross-examine any of the individuals who provided affidavit evidence relied upon by the Plaintiffs, including the two Powers of Attorney, the Plaintiffs' real estate agent, Ms. Winter, and the Plaintiffs' real estate lawyer, Wesley Jackson. The Defendant did not provide an affidavit from his real estate agent, Mr. Takhar.

[76] It is Harbrinder's obligation to put his best foot forward on this summary judgment motion. He cannot resist the motion by claiming that additional evidence will be available at the trial. It would have been a simple and straight-forward matter for Mr. Takhar to provide affidavit evidence as to the content of his conversation with Ms. Winter on April 13, 2022, and in particular, to confirm if she did, or did not, inform him that the title to the property had been transferred.

[77] I am satisfied that the issues on this motion may be decided in a fair and just manner by way of summary judgment motion, which has been found to be an appropriate method for deciding similar failed real estate transactions: Zhang v. Lin, 2020 ONSC 6559, 27 R.P.R. (6th) 307.

[78] I find that there is sufficient information before me to make findings of fact and apply the law to the facts to reach a fair and just determination on the merits of this motion for summary judgment. This summary process is a proportionate, more expeditious, and less expensive means for the parties to address the issues in dispute, which would otherwise likely be a lengthier trial.

[79] I also note that the quantum in dispute is $248,318.60, which is only slightly above the simplified procedure limits. This is another factor supporting the summary judgment process as a cost-effective, proportionate, and timely way in which to adjudicate this action. Where there are credibility issues, I am able to use my enhanced fact-finding powers under rule 20.04(2.1) of the Rules of Civil Procedure to make the necessary factual findings, if required.

An Amendment of the APS Was Not Required to Reflect the Powers of Attorney as Sellers of the Property

[80] In Nguyen v. Zaza, at para. 10, the Court of Appeal for Ontario confirmed that title for the property did not need to be in the name of the ultimate seller at the time that the APS was signed in order to generate a binding contract. All that is required is that the seller must be in a position to pass good title on to the purchaser. The main difference between the facts in Nguyen and the present case, is that in Nguyen, the APS was amended prior to the closing date to reflect the name of the new seller.

[81] In the present case, the failure of the parties to execute an amended APS prior to the closing date did not invalidate the APS or prevent the sellers from transferring title of the property to the purchasers. I make this finding for the following reasons:

a) The original listing was clear that Esther Hunter was selling the property "Under Power of Attorney";

b) The signed APS stated that Esther Hunter was selling the property "Under Power of Attorney";

c) The Powers of Attorney were also the sole beneficiaries of Esther's estate;

d) The uncontradicted evidence from the Plaintiffs' realtor, Susan Winter, is that the purchaser's real estate agent was advised that the title transfer had happened on April 13, 2022, and no concerns were raised for more than two months; and

e) Harbrinder was provided with a copy of Esther's Will prior to the closing date, which confirmed that the two Powers of Attorney holding title to the property were the sole beneficiaries under Esther's Will.

[82] I therefore reject Harbrinder's argument that the APS is unenforceable due to an alleged lack of privity of contract between William and Catherine, and Harbrinder. While I acknowledge that the "assignment" clause was struck from the APS, this fact does not alter the reality that William and Catherine were ready, willing, and able to deliver title to Harbrinder on June 30, 2022. I also note that Esther's estate is a Plaintiff in this litigation, as are the Powers of Attorney. The parties in this litigation were the key decision-makers and signatories to the APS. Harbrinder cannot rely on the striking of the assignment clause from the APS to justify his failure to close the deal on June 30, 2022.

Were the Requisitions Raised by Harbrinder on June 16, 2022 Reasonable?

[83] I agree with the Plaintiffs that the requisition letter dated June 16, 2022 was not the time for Harbrinder to raise new issues that ought to have been included as terms of the APS if they were critical to him. This includes Harbrinder's request for a final inspection, and also, his demand for co-operation with requests for information made by the title insurance company.

[84] In the requisition letter, Harbrinder asked for proof of validity of the Power of Attorney document, along with the validity of Esther's Will. These issues cannot be said to be proper requests to address concerns with the root of title. Harbrinder has put no evidence before me to suggest that there was any reason to doubt the validity of these legal documents.

[85] Harbrinder's argument seems to be that because the title insurance providers required additional information, it was the seller's obligation to produce the requested information to the title insurance company. I do not agree with this position. Title insurance was not a condition of sale in the APS. If Harbrinder wanted to ensure that he had title insurance for the property, he ought to have included that demand as part of his offer to purchase. The inability of Harbrinder to place title insurance on the property does not invalidate the APS.

[86] In Nguyen at para. 10, the Court of Appeal for Ontario stated: "In order for a seller to be entitled to the sale price of a property at closing, the seller must be in a position to ensure that good title is conveyed to the purchaser". The evidence before me is that the Plaintiffs were prepared and able to pass good and sufficient title of the property to Harbrinder on the date of closing.

[87] I also note that Harbrinder did not produce any evidence to support his claim that there were concerns about the sufficiency of William and Catherine's title to the property on the day of closing.

Are There Credibility Issues Requiring a Trial?

[88] The parties provide conflicting evidence on a few points, including:

a) Whether Harbrinder had requested that his wife's name be added to the APS;

b) Whether Harbrinder had requested a one-month extension of the closing date through his realtor; and

c) Whether Harbrinder was informed by Mr. Takhar that the title had transferred from Esther to the Powers of Attorney on April 13, 2022.

[89] I do not find that these credibility issues have any significant impact on the issue as to whether Harbrinder was justified in not following through with the terms of the APS, save and except for the issue as to when or if Mr. Takhar informed Harbrinder about the transfer of title from Esther to her Powers of Attorney and beneficiaries. However, Harbrinder has produced no evidence from Mr. Takhar addressing when or if Harbrinder was advised as to the change in title to the property.

[90] It is Harbrinder's obligation to put his best foot forward on this summary judgment motion. If Harbrinder wished to rely upon evidence from Mr. Takhar, he ought to have ensured that such evidence was before me. As Harbrinder did not choose to provide an affidavit from Mr. Takhar, nor did he choose to cross-examine Ms. Winter, I accept the evidence from Ms. Winter that she informed Mr. Takhar about the change in title on April 13, 2022. There is no evidence before me that Harbrinder expressed any concern about the change in title for over two months, until the requisition letter was sent on June 16, 2022.

[91] It should also be mentioned that even if Harbrinder had not been informed that the title to the property had been transferred from Esther to her Powers of Attorney after the APS was signed, in my view, that circumstance does not invalidate the APS. I have already found that William and Catherine, as the new owners of the property, were capable of delivering good and clear title of the property to Harbrinder.

Conclusion

[92] There is sufficient information before me to determine the matters in issue in this motion for summary judgment, which is a more expedient and proportionate method to address the issues in dispute between the parties. To the extent that there are credibility issues that may impact on my decision, I have used my enhanced fact-finding powers under rule 20.04(2.1) of the Rules of Civil Procedure to make the necessary determinations.

[93] Although executing an amended APS when the title was transferred would have provided greater clarity to the parties, such action was not necessary given the notice Harbrinder had already received of the involvement of the Powers of Attorney in the sale of the property.

[94] The Plaintiffs have established that on the date of closing on June 30, 2022, they were willing and able to deliver title of the property to Harbrinder. The Plaintiffs have therefore established that the terms of the APS are binding on Harbrinder. The Plaintiffs have also established that the ultimate sale price of the property was $244,000 less than the amount that Harbrinder agreed to pay to purchase the property. The Plaintiffs are accordingly granted judgment against Harbrinder for $244,000.

[95] The Plaintiffs provided documentation of the $1,496.12 in real estate legal fees charged to them related to the failed APS. These are legal costs that are thrown away due to Harbrinder's failure to close on the deal. Accordingly, the Plaintiffs shall have judgment for the real estate fees paid by them totaling $1,496.12.

[96] The Plaintiffs also provided copies of invoices and receipts of payments totaling $2,822.48 related to the carrying costs of the property between the originally closing date of June 30, 2022 and the ultimate closing date of October 24, 2022. Harbrinder is ordered to reimburse the Plaintiffs for these expenses that were incurred as a result of his failure to close the purchase deal with the Plaintiffs.

[97] The Plaintiffs are granted judgment against Harbrinder for $248,318.60 minus the $40,000 deposit previously paid by Harbrinder, for a total amount currently owed by Harbrinder of $208,318.60 plus pre-judgment interest, to be calculated in accordance with the Courts of Justice Act.

[98] The Counterclaim of Harbrinder against the Plaintiffs is dismissed.

Costs

[99] At the conclusion of argument, the parties agreed upon the costs that would be payable depending upon the outcome of the motion. As the Plaintiffs were successful in their summary judgment motion, they are entitled to costs for the motion and the action.

[100] The parties agreed that if the Plaintiffs were successful, they were entitled to a payment of $27,000 on a partial indemnity basis including all legal fees, disbursements, and HST, or $35,000 on a substantial indemnity basis including all legal fees, disbursements, and HST.

[101] The parties may each provide a submission, no longer than two pages double-spaced, as to the appropriate scale of costs that should be paid to the Plaintiffs for this motion and action. Submissions must be served by October 29, 2025, and emailed to my attention at scj.csj.general.brampton@ontario.ca.

Wilkinson J.

Released: October 22, 2025