Coco Developments Ltd. v. Sukhwant Singh Bal, 2025 ONSC 725

Date: 2025-02-05
Superior Court of Justice – Ontario

Re: Coco Developments Ltd., Plaintiff
And: Sukhwant Singh Bal, Defendant

Before: Rohit Parghi
Counsel:
Samantha M. Green, for the Plaintiff
Ramesh Sangha, for the Defendant

Heard: January 29, 2025

Endorsement

[1] The Plaintiff’s motion for summary judgment is granted. There is no genuine issue requiring trial in respect of the Defendant’s breach of the agreement of purchase and sale.

The Law on Summary Judgment

[2] The Supreme Court of Canada confirmed in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 that the ultimate question in a summary judgment motion is whether there is a genuine issue requiring a trial. The Court held in Hryniak that there will not be a genuine issue requiring a trial if the motion process allows a 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 than going to trial.

[3] On a motion for summary judgment, I must first determine, based only on the record before me, whether there is a genuine issue requiring a trial. If there appears to be a genuine issue requiring a trial, I am to determine if the need for a trial could be avoided by using my enhanced powers under either rule 20.04(2.1) or 20.04(2.2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”). Rule 20.04(2.1) empowers me to weigh evidence, evaluate a deponent’s credibility, and draw reasonable inferences from the evidence. The power set out in rule 20.04(2.2) allows me to order that oral evidence be presented by one or more parties. I may use these powers at my discretion, as long as their use is not contrary to the interests of justice – that is, as long as 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 (Hryniak, at para. 66).

[4] The responding party must set out, by affidavit or other evidence, specific facts that show there is a genuine issue requiring a trial (r. 20.02(2)). I am entitled to presume that the parties have put forth their best evidence on the motion and that if the case were to proceed to trial, no additional evidence would be presented (TD Waterhouse Canada Inc. (TD Waterhouse Private Investment Advice) v. Little, para 15, citing Rogers Cable TV Ltd. v. 373041 Ontario Ltd.).

Analysis

[5] Applying this test, I conclude that it is appropriate to grant summary judgment. I find that there is no genuine issue requiring trial. My finding is based only on the record before me, and without resort to any of the enhanced fact-finding powers set forth in rules 20.04(2.1) and (2.2).

[6] The evidence summarized in paragraphs 7-12 below is found in the record and uncontested before me.

[7] On September 13, 2021, Mr. Bal entered into an agreement for purchase and sale to buy a property in Belle River, Ontario from the Plaintiff for $851,130.50 (I will refer to this agreement for purchase and sale as the “Agreement”).

[8] The closing date under the Agreement was November 9, 2022; this closing date was extended by the Plaintiff due to COVID, in accordance with the Agreement provisions on “unavoidable delay events”.

[9] The Plaintiff subsequently notified Mr. Bal that the “unavoidable delay event” was ending and the closing date would be April 6, 2023.

[10] On March 27, 2023, Mr. Bal’s real estate agent, his daughter-in-law, advised that Mr. Bal would be unable to close the transaction because he had not been able to obtain financing.

[11] The Plaintiff was ready, willing, and able to close on the April 6, 2023 closing date, but Mr. Bal failed to close the transaction on that date.

[12] The Plaintiff then re-listed the property and sold it on May 31, 2023, incurring damages of $82,901.89. These damages reflect the difference between the original and resale purchase prices, plus the carrying costs between Mr. Bal’s default and the resale date. These amounts break down as follows:

• $781,376.77 (original net purchase price) less $664,551.86 (resale net price): $116,824.91
• Municipality of Lakeshore water taxes: $734.86
• Realty taxes: $1,133.71
• Hydro One charges: $898.22
• Enbridge charges: $934.50
• Security costs for development incurred after default and prorated across the 29 unsold lots in the development: $2,375.69
• Total deficiency: $122,901.89
• Less deposit paid by Mr. Bal: -$40,000.00
• Total Damages: $82,901.89

[13] I am satisfied that Mr. Bal breached the Agreement. There were no financing conditions or other conditions precedent that had to be satisfied before Mr. Bal was obligated to complete the purchase. The Plaintiff provided reasonable notice of the April 6, 2023 closing date via letter to Mr. Bal dated December 15, 2022, and thereby reinstated that time was of the essence (Ching v. Pier 27 Toronto Inc., 2021 ONCA 551, para 52, citing King v. Urban & Country Transport Ltd.). Mr. Bal was obligated to complete the purchase, and he did not. He does not contest this conclusion.

[14] Mr. Bal suggests that the Plaintiff should have accommodated him by offering an extension to close the purchase. The Plaintiff was under no obligation to do so. Nothing in the Agreement provides for such an obligation. The case law makes clear that there is no such obligation (see e.g., 2100 Bridletowne Inc. v. Ding, 2021 ONSC 2119, para 66). The cases are also clear that a vendor may, in the absence of bad faith, insist on compliance with the agreed-to terms of an agreement (Zoleta v. Singh and RE/MAX Twin City Realty, 2023 ONSC 5989, para 69, citing Deangelis v. Weldan Properties Inc., 2017 ONSC 4155).

[15] Mr. Bal further suggests that he did not understand the terms of the Agreement and was not given an opportunity to obtain independent legal advice. He mentions having difficulty understanding English.

[16] Mr. Bal expressly agreed to waive the conditions for legal review of the Agreement. He confirmed doing so on cross-examination.

[17] He had a real estate agent during the transaction – his daughter-in-law – who spoke his native language, who submitted the offer to purchase on his behalf, and with whom he discussed submission of the offer. His evidence is that he did not ask her to explain the Agreement to him. The courts have held that a party cannot claim that they did not understand an agreement where they failed to request an explanation of its meaning (1468025 Ontario Ltd. v. 998614 Ontario Inc., 2015 ONSC 7216, paras 172-173; see also Tribute (Grandview) Inc. v. Zhou, 2021 ONSC 2994, para 37, where the court dealt with a buyer’s failure to request such an explanation from their real estate broker).

[18] I further note that Mr. Bal initialed each page of the Agreement, including its schedules, and including the schedule on which the condition for legal review was crossed out. These factors undermine his claim that he did not understand the Agreement (Country Wide Homes Upper Thornhill Estates Inc. v. Ge, 2020 ONCA 400, para 12).

[19] Mr. Bal appears to suggest that the Plaintiff should have let him assign the Agreement to another buyer before closing. The record is unclear as to whether he made such a request. Even if he did, however, the Plaintiff was contractually entitled to refuse any such assignment. The Agreement provides, “The Buyer shall not be entitled to assign this Agreement without the written authorization and consent of the Seller, which may be withheld at the Seller’s sole and absolute discretion”.

[20] Finally, Mr. Bal questions the propriety of the Plaintiff’s COVID-related extension of the closing date. I see no basis for this claim. The Agreement expressly allows for extensions of the closing date at the behest of the seller in the event of an “unavoidable delay event,” a term defined in the Agreement to include a pandemic, as long as the seller notifies the buyer of the “unavoidable delay event” and provides notice when the “unavoidable delay event” is concluding. The record indicates that those conditions were satisfied. No argument to the contrary was made before me.

[21] I am therefore satisfied, based on the record before me, that there is no genuine issue requiring trial with respect to liability. It is clear that Mr. Bal breached the Agreement.

[22] Having regard to damages, it is clear at law that the Plaintiff is entitled to the difference between the price Mr. Bal agreed to pay for the property in the Agreement and the price at which the property was resold after his breach. The Plaintiff is also entitled to recoup costs incurred due to the breach, such as the carrying costs for the property during the time between the closing date of Mr. Bal’s transaction and the closing date for the resale. Such damages must have been reasonably foreseeable to be recoverable. The Plaintiff must also have taken reasonable steps to mitigate its damages (Paradise Homes North West Inc. v. Sidhu, 2019 ONSC 1600, para 26, citing Victor DiCastri, The Law of Vendor and Purchaser, 3rd ed. (Carswell, 1989), at para. 889).

[23] Applying these principles here, the record supports the Plaintiff’s claim. Mr. Bal offers no evidence to contest the quantum of damages claimed. The damages the Plaintiff seeks, set out in the chart above, reflect the difference in the two sale prices and the carrying costs, such as taxes and utilities, incurred as a consequence of Mr. Bal’s breach of the Agreement. These damages are reasonably foreseeable and flow directly from the breach. I am also satisfied, based on the evidence before me, that the Plaintiff appropriately mitigated its damages. It relisted the property in a timely way, negotiated with the first interested buyer to come its way, and tried to persuade the prospective buyer to increase its initial offer during the negotiations. I therefore conclude that the damages the Plaintiff seeks are properly payable. There is no genuine issue requiring trial in respect of the damages claim.

[24] Accordingly, on the issues of liability and damages, I am able to make the required factual findings and apply the law to the facts on this motion. I am also satisfied that the motion is a proportionate, more expeditious and less expensive means to achieve a just result, rather than going to trial. There is therefore no genuine issue requiring trial in respect of either liability or damages, and summary judgment is appropriate.

Costs

[25] In exercising my discretion to fix costs under section 131 of the Courts of Justice Act, R.S.O. 1990, c C.43, I may consider the factors enumerated in rule 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Those factors include the result achieved, the amounts claimed and recovered, the complexity and importance of the issues in the proceeding, the principle of indemnity, the reasonable expectations of the unsuccessful party, and any other matter relevant to costs.

[26] In Apotex Inc. v. Eli Lilly Canada Inc., 2022 ONCA 587, the Court of Appeal for Ontario restated the general principles to be applied when courts exercise their discretion to award costs. The Court held that, when assessing costs, a court is to undertake a critical examination of the relevant factors, as applied to the costs claimed, and then “step back and consider the result produced and question whether, in all the circumstances, the result is fair and reasonable”. The overarching objective is to fix an amount for costs that is objectively reasonable, fair, and proportionate for the unsuccessful party to pay in the circumstances of the case, rather than to fix an amount based on the actual costs incurred by the successful litigant.

[27] In this case, an important “other matter relevant to costs” for the purposes of rule 57.01 is the Agreement itself, which expressly provides that in the event Mr. Bal defaults, the Plaintiff has the “right to recover” from him “all additional costs, losses and damages arising out of” the default, “including … legal costs on a full indemnity basis.” Based on this provision, the Plaintiff accordingly seeks costs on a full indemnity scale for the motion and action. When combined with disbursements and HST, the costs total $19,876.32.

[28] Having regard to the other factors in rule 57.01, I note that the hourly rates, work done, and allocation of work among the Plaintiff’s counsel team are reasonable. The materials they prepared on this motion were very helpful to the court. They included affidavit materials and a factum succinctly addressing the legal issues involved. While the hearing was likely shorter than was contemplated in the Plaintiff’s Bill of Costs, the work done and fees incurred otherwise strike me as reasonable and appropriate.

[29] I award the Plaintiff $19,000.00 in costs for the action and motion. I base this award upon the factors enumerated in rule 57.01, including the fact that the Agreement entitles the Plaintiff to full indemnity legal fees in the event of Mr. Bal’s default.

Order Granted

[30] The Plaintiff’s motion for summary judgment is granted. The Defendant shall also pay the Plaintiff’s costs in the amount of $19,000.00, within 30 days.

Rohit Parghi
Date: February 5, 2025