Court File and Parties
Court File No.: CV-22-1127 Date: 2025-11-05 Ontario Superior Court of Justice
Between: Andrea Anne Deakin, Plaintiff/Defendant by Counterclaim – and – Albert Chu and Ava Chu, Defendants/Plaintiffs by Counterclaim
Counsel: Randolph Mills, for the Plaintiff/Defendant by Counterclaim Will Chapman and Rod Refcio, for the Defendants/Plaintiffs by Counterclaim
Heard: September 17, 2025
Justice: E. ten Cate
Endorsement
[1] Introduction
[1] This is a summary judgment motion arising from the failed purchase of a home near London, Ontario.
Background
[2] The Plaintiff seeks damages from the Defendants for breach of an agreement of purchase and sale regarding her former home in Ilderton.
[3] In early 2022, the Plaintiff listed the home through Anna Gladysz of Century 21 First Canadian Corp., a real estate brokerage.
[4] The Defendants lived in Ottawa. To move closer to family, they retained a realtor, Quintin Fentie, to assist. Because the drive from Ottawa was long, their son, John Chu, viewed the home on their behalf.
[5] Everyone agrees that on March 2, 2022, the parties signed the Agreement of Purchase and Sale ("APS") which contained the following terms:
- a. Purchase price of $993,000;
- b. Deposit of $100,000 to be paid to the listing broker;
- c. Closing date of June 2, 2022;
- d. Two further opportunities for the Defendants to view the property;
- e. A waiver of any building inspection; and
- f. An "entire agreement" clause stipulating that no representations, warranties, collateral agreements or conditions affect the written agreement.
[6] Upon signing, the Defendants paid the deposit to the listing broker.
[7] There is no dispute that Defendants themselves never physically viewed the home and that no formal building inspection was ever performed. Likewise, there is no dispute that no warranties were included regarding the condition of the home, nor any financing terms. In other words, the deal was unconditional.
[8] No amendments were made to the APS, other than the closing date was moved from June 2, 2022, to June 30, 2022.
[9] Months went by. Based upon the signed APS, the Plaintiff purchased a home in London with a closing date of June 30, 2022, intending to use the proceeds of the home in Ilderton to fund the purchase.
[10] On June 13, 2022, counsel for the Defendants wrote to the Plaintiff's real estate lawyer:
Our client has instructed us to advise you that due to the fact that the property has been heavily saturated with cigarette smoke, and that the aforesaid fact was not disclosed at any time to our clients, our client is not in a position to close on the aforesaid Closing Date or at any time thereafter.
[11] In response, counsel for the Plaintiff replied:
With regard to your email and telephone call to our offices of same date, be advised that we count this as an anticipatory breach of the Agreement of Purchase and Sale. Your clients did not have an inspection condition, nor did they make use of the opportunity provided to them to inspect prior to closing. Therefore, there is no valid reason for your client's failure to close. Our client reserves the right to be provided the deposit funds in full, without deduction, and shall avail themselves of any and all other remedies in law.
[12] On July 22, 2022, faced with a falling real estate market, and on the advice of her real estate agent, the Plaintiff re-listed the home for $799,000. Despite several open houses, there were no offers for six or seven weeks. On September 2, 2022, after negotiations, the home sold for $740,000 and closed on November 2, 2022.
[13] To fulfill her obligation to close on the London home, the Plaintiff borrowed funds from a friend and carried the costs of the Ilderton home. Her total claim for damages, exclusive of interest and costs, is $280,612.08.
Analysis
[14] The Defendants argue that the issue before the court is whether home sellers in Ontario have a positive obligation to inform potential purchasers of the presence of smoke. They liken their circumstance to cases involving latent defects that pose a health risk such as radioactive waste, a known convicted child pornographer across the street, or a former garbage dump in the vicinity.
[15] The Plaintiff argues that there is no evidence of any smoke in the home, nor of any representations made by the Plaintiff related to smoking. They contend the case law relied upon by the Defendants involving latent health hazards does not apply.
[16] The Plaintiff and her realtor testified on cross-examination that the Defendants never raised the issue of smoking and that no such representations were made.
[17] Significantly, neither the Defendants' son nor their realtor filed affidavits.
[18] The Defendants submit they had significant health concerns which prevented them from moving into the home. Despite these concerns, they provided no explanation regarding why they never visited the home, why they waived a formal building inspection, or why they did not insist on the inclusion of a condition in the APS regarding smoking.
[19] The Defendants also argue the value of the home "may have" diminished because of the presence of smoke. They rely on the testimony of the Plaintiff's realtor who acknowledged that a house with smoke may not appeal to some buyers, but no evidence of any such diminution was provided to the court in form of expert reports or appraisals.
[20] There is conflicting evidence whether and where smoking took place in the home. The Plaintiff testified that she never smoked there, although she permitted her brother to smoke in the backyard or in the garage with the door open when he visited. Specifically, no evidence was presented by the Defendants, in the form of photographs or independent expert reports, to substantiate their allegations that the home was "heavily saturated with smoke".
[21] In my view, even if I accepted that smoke was present, I do not accept that there was a positive obligation on the Plaintiff to disclose it in the absence of any representations made by the Plaintiff herself or through her realtor. Additionally, I am unpersuaded that all sellers of homes in Ontario must advise potential purchasers of the presence of smoke.
[22] The Defendants primarily rely upon 1000425140 Ontario Inc. v. 1000176653 Ontario Inc. In that case, the purchaser alleged that the seller failed to disclose a latent defect, because the previous occupant was a "crypto king" sued for defrauding people. Four days after the closing, the purchaser received a knock at the door from an aggrieved party. The police advised there had been previous complaints of intruders trying to break into the home, and on one occasion, someone threatened to burn it down. The purchaser sought a declaration that the seller fraudulently misrepresented that the home was "private and secure" to induce him to sign the contract.
[23] Centa J. granted the purchaser's motion for summary judgment, finding that the seller knew there was a significant safety risk and ordered rescission of the contract, stating:
Silence amounts to a fraudulent misrepresentation where, as here, the circumstances establish that the dishonest conduct of [the seller] intended to deceive the plaintiff by its failure to disclose the relevant information and intended to commit this fraudulent act through non-disclosure of the relevant information. [The seller] suppressed the truth about the Burlington property, which in this case amounted to a fraudulent misrepresentation. However, it also went further and made positive representations that the property was private and secure. Those representations were knowingly false.
[24] In my view, 1000425140 Ontario Inc. is distinguishable for three main reasons. The first is that in that case there was reliable evidence of a latent defect because the police confirmed that there was a history of threats against the property. The second is that there was an "objectively reasonable danger" because an intruder attended while the purchaser was present. The third is the seller represented that the property was "safe and secure" which it was clearly not.
[25] Here, there is no reliable evidence of the presence of smoke. The affidavit of Ms. Chu is self-serving and based on hearsay because she never entered the home herself. Neither her son or her realtor, who had first-hand knowledge of the condition of the home, provided evidence, and no independent evidence such as photographs or expert reports was provided to the court. Second, I was asked to take judicial notice of the fact that smoking is a health hazard, but there is no evidence that the presence of smoke in this particular home posed an objectively reasonable danger to these Defendants. Third, there is no evidence of any representations made by the Plaintiff whatsoever.
[26] Counsel for the Defendants candidly admitted there is no case law to support his clients' position that silence regarding the presence of smoke amounts to material misrepresentation. He asks me, instead, to make new law. I decline to do so, primarily because the consequences of such a decision would be impractical, far-reaching, and would cause confusion in the sale of resale homes. How, for instance, would a homeowner know if a family member or guest had smoked surreptitiously? How would they know whether a previous homeowner had allowed smoking in the home in the past? How much smoke, if any, is acceptable?
[27] In my view, any such regulation is best left to legislation.
Summary Judgment Framework
[28] I now turn to the law of summary judgment.
[29] Rule 20.01(1) of the Rules of Civil Procedure permits a plaintiff to move for summary judgment on all or part of their claim. The law is clear that a court shall grant summary judgment if it is satisfied that there is no genuine issue requiring a trial.
[30] This rule makes it clear that not all cases are worthy of a trial, with the associated delay and expense faced by the parties and the resources dedicated by the administration of justice. Rule 20 allows the court to weed out inadequate claims, even though in a motion for summary judgment the normal and ordinary expectation is that issues of disputed fact or law will proceed to trial.
[31] There will be no genuine issue requiring a trial where the process allows the judge to make the necessary findings of fact, allows the judge to apply the law to the facts, and is a proportionate, more expeditious and less expensive means to achieve a just result.
[32] Rule 20.02(2) requires that the respondent not rest on the mere allegations in its pleading, but rather set out, in affidavit or other evidence, "specific facts showing there is a genuine issue for trial". The responding party must "lead trump or risk losing and must show evidence there is a genuine issue for trial".
[33] Rule 20.04(2.1) expanded the powers of the court; it mandates that the court shall consider the evidence of the parties, weigh the evidence, evaluate the credibility of a deponent, and draw any reasonable inference from the evidence unless it is in the interest of justice for such powers to be exercised only at a trial.
[34] The procedure consists of two steps. The judge should first determine if there is a genuine issue requiring trial based only on the evidence before him or her, without using the new fact-finding powers. If there appears to be a genuine issue requiring a trial, the judge should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2).
[35] The motion judge may, at his or her discretion, use those powers, provided that their use is not against the interests of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability, and proportionality in light of the litigation as a whole. These powers are presumptively available, rather than exceptional, in line with the goal of proportionate, cost-effective and timely dispute resolution.
[36] Moreover, the party opposing summary judgment must show a "real chance of success". Self-serving affidavits are not sufficient to create a triable issue in the absence of detailed facts and supporting evidence.
[37] Here, I determine the Defendants have shown no real chance of success because: (1) there is no reliable evidence of the presence of smoke; (2) there is no evidence any representations were made by the Plaintiff to the Defendants regarding the presence of smoke; and (3) there is no evidence that if there was smoke in this particular home it presented a health hazard to these Defendants.
[38] As a result, I conclude there is no genuine issue requiring a trial and therefore no need to use the enhanced discretionary fact-finding powers.
Damages
[39] I now turn to the quantum of damages.
[40] The Plaintiff seeks damages for the difference between the price agreed to by the Defendants and the amount she received ($253,000); damages for the additional interest, utilities, insurance, taxes, lawncare and miscellaneous expenses from the date of the original closing until the final closing date ($10,218.60); and interest paid to bridge finance the purchase of her new home ($17,393.48).
[41] The Defendants took no issue with these amounts.
Order
[42] Based on the above, I grant summary judgment to the Plaintiff and award damages in the amount of $280,612.08 plus prejudgment interest in accordance with the Courts of Justice Act from the failed closing date to the date of this judgment.
[43] For clarity, the deposit of $100,000 currently held by the listing broker shall be paid directly to the Plaintiff, and the remainder paid by the Defendants to the Plaintiff.
Costs
[44] If the parties are unable to agree on costs, the Plaintiff may make submissions limited to four pages in length, exclusive of their bill of costs, within 15 days. The Defendants may then make submissions, also limited to four pages exclusive of their bill of costs, within 15 days of service of the Plaintiff's. There shall be no right of reply without leave of the court.
[45] If I do not receive submissions within this time, I will assume the issue of costs is resolved.
Justice E. ten Cate
Released: November 5, 2025