CITATION: Audisho et al. v. Primont (SXSW 1) Inc., 2026 ONSC 2149

COURT FILE NO.: CV-23-00697051-0000

DATE: 20260410

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

YOULE AUDISHO and ODISHO ESHO Applicants

– and –

PRIMONT (SXSW 1) INC. Respondent

Odisho Esho, Self-represented

Daniel Guerrisi, Mona Soliman (student-at-law), Counsel for the Respondent

HEARD: March 9 & 10, 2026

E. iacobucci, j.

REASONS FOR DECISION

OVERVIEW

1In 2019, the plaintiff Odisho Esho entered into an agreement of purchase and sale (“APS”) in respect of a condominium unit in a building in Vaughan. The building was to be constructed by the defendant, Primont (SXSW 1) Inc. (“Primont”). In purported satisfaction of the requirements of the APS, Esho submitted to Primont a document that appeared to be a mortgage pre-approval from the National Bank of Canada (“NBC”). In 2022, NBC advised Primont that the document was inauthentic; Esho had not applied for nor obtained a mortgage preapproval from NBC in 2019. Primont terminated the APS and retained the deposit monies that Esho had paid to it, claiming the right to do so pursuant to the APS.

2With the assistance of counsel, Esho initiated an Application against Primont in March 2023 seeking a variety of remedies, including specific performance, damages, and/or return of his deposits. At trial, Esho was self-represented. He focused on a request for the return of his deposits. I find that Esho is not entitled to a remedy of any sort.

3Another party, Youle Audisho, also brought an Application in similar circumstances, but settled his claims before the hearing.

4By order of Justice Leiper, the matter was converted from an Application to a summary trial.

5Esho in a 2025 affidavit and in viva voce testimony did not dispute the inauthenticity of the NBC mortgage preapproval letter. He instead submitted that he knew nothing about it.

6It is not necessary to determine in this matter who was specifically responsible for creating the fake document. The APS required Esho to provide Primont with a valid mortgage preapproval. The preapproval that was provided was inauthentic. Esho thus breached the APS. As a consequence, Esho is not entitled to a remedy, and Primont is entitled to retain the deposit monies. I dismiss the Application.

FACTS

7Esho has some but imperfect facility with English and required the assistance of an interpreter at the trial. Justice Callaghan in an Endorsement dated August 27, 2025 advised Esho to consider retaining counsel in this matter, and also advised him to give advance warning if he required interpretation at the hearing. Esho did neither. On the first morning of the trial, the court was able to arrange interpretation services for the two-day hearing.

8Esho had representation when initiating the Application, but he submitted at trial that he lost trust in counsel. He filed a Notice of Intention to Act in Person on February 10, 2025. Esho submitted three different affidavits in this case, the first dated May 23, 2023, the second Reply affidavit dated November 29, 2023, and the third dated September 21, 2025. The first two were evidently prepared with the assistance of counsel, while the third was not.

9The evidentiary record necessary to decide this case is provided by the affidavits and testimony of Esho, Jeremy Dason, a representative of Primont who swore affidavits on September 29, 2023 and January 30, 2025, and Christine Carbone, a representative of NBC who swore an affidavit on January 30, 2025. In the end, there is little or no disagreement on the important facts.

The APS

10Esho and Primont entered into an Agreement of Purchase and Sale for the condominium unit on October 27, 2019. Esho was represented by a real estate agent, Parm Sharda, in his dealings with Primont. Esho testified that Sharda explained the terms of the APS to him.

11Schedule C of the APS sets out an obligation on the purchaser to provide Primont with financial information, including “a firm mortgage commitment issued by a Schedule A Bank or other lending institution acceptable to the Vendor, in its sole discretion.” Schedule C also includes an acknowledgment by the purchaser that the, “Vendor and/or the financial institution(s) providing funding to the Vendor for the installation of services/construction of the Unit requires certain information with respect to the Purchaser in order to approve this transaction.”

12The APS, Schedule X sets out requirements for the buyer to deliver financial information, provides that failing to do so is an event of default, and provides that delivering false information is an event of default. Section 13(k) of this schedule reads in part:

In the event that the Purchaser fails to submit the Financial Information, evidence and/or documents for approval within the time periods as hereinbefore set forth, or if the Financial Information, evidence and/or documentation submitted pursuant to the provisions of this Agreement or any amendment thereto is, in whole or in part, false or misleading, or if the Purchaser fails or refuses to disclose any relevant facts pertaining to his financial circumstances or abilities, then the Purchaser shall be deemed to be in default under this Agreement, and the default provisions of this Agreement shall apply.

13Section 13(k) outlines the reason for these requirements, and their significance to the builder:

The Purchaser acknowledges and agrees that he/she is aware that financial institutions providing development and construction financing to the Vendor may require updating of the Financial Information from time to time as a condition of such financing and therefore agrees that the failure to provide the Financial Information as and when required by the Vendor shall be considered a fundamental breach of the Purchaser’s obligations pursuant to this agreement.

14Section 21 of the same schedule sets out various events of default, including the following:

(a) The Purchaser shall be deemed to be in default of this Agreement in each and every of the following events, namely…:

(ii) upon the breach of, or failure in the performance or observance of any covenant, term, agreement, restriction, stipulation or provision of this Agreement to be performed and/or observed by the Purchaser…

15Section 21(b) sets out the consequences for default:

(b) If any default by the Purchaser occurs under this Agreement, the Vendor shall have the right, in addition to any other rights or remedies which the Vendor may have, to terminate this Agreement and forfeit all monies paid (including all deposits paid) together with any interest earned thereon and monies paid or payable for extras or upgrades ordered by the Purchaser, whether or not installed in the dwelling. The deposit and further deposit(s) are expressly deemed to be deposit monies only, and not partial payments…

16Pursuant to ss. 13(k) and 21(a)(ii), Primont submits that Esho was in default by submitting a fake document, and that as a consequence, s. 21(b) establishes that the deposits are forfeited.

Events following the execution of the APS

17It was a requirement of the APS that the purchaser would deliver to Primont a mortgage preapproval from a Schedule A bank (unless Primont accepted one from a different lending institution, which it did not do). A preapproval for Esho was provided to Primont on NBC letterhead. The letter was ostensibly signed by an NBC mortgage development manager, Ravneet Singh. The letter was dated November 5, 2019. The letter purported to confirm NBC’s preapproval of a mortgage to Esho in connection with the purchase of the condominium unit from Primont.

18Upon questioning by Esho at the trial, Dason on behalf of Primont stated that he was uncertain of how precisely the November 5 preapproval letter was delivered to Primont. Esho asked the question, I take it from his evidence, because he states that he is uncertain of the origins of the NBC letter. Nothing in this case, however, turns on how the letter was delivered to Primont. It is clear that it was delivered to Primont on behalf of Esho, and that no other preapproval of a mortgage for Esho was submitted to Primont.

19Following the submission of the purported NBC preapproval letter and other documents, Esho began performing his obligations to pay deposits to Primont. Over the next several months and years, Esho paid deposits that totaled $117,183. The last of these deposit cheques was accepted on January 26, 2022.

20In mid-2022, two matters prompted Dason on behalf of Primont to scrutinize carefully the submitted preapprovals from its buyers in the 547-unit condominium project.

21First, Dason states that Primont became aware of news articles citing a growing number of cases involving purchasers forging mortgage preapprovals on pre-construction homes in Ontario.

22Second, in the summer of 2022, Dason testified that Primont began the process of obtaining construction financing. Primont began reviewing mortgage preapprovals prior to submitting them to the cost consultant on the project. To obtain construction financing, Primont required a threshold of qualified purchasers.

23Dason submitted a batch of mortgage preapprovals on the SXSW project, including Esho’s, to Christine Carbone, who was a Residential Financing Manager at NBC in 2022. Part of Carbone’s responsibilities was to work with developers to validate mortgage preapprovals issued by NBC.

24Carbone examined the purported mortgage preapproval from Esho. Upon her initial review she became sceptical of its authenticity. It was printed on a form that NBC no longer used. It failed to include the information necessary to locate the preapproval in NBC’s internal database. It also, unusually, did not contain conditions for financing.

25Given her suspicions, Carbone followed up with Singh, whose signature was apparently on the letter. Carbone reports that Singh replied that he did not issue or sign the preapproval in question, and that Esho was not his client. I return to the evidentiary significance of Singh’s reply below.

26On September 9, 2022, on the basis of her initial observations and Singh’s response, Carbone advised Dason that the Esho preapproval was not authentic. In addition, on September 14, 2022, Carbone informed Dason that there were no underlying applications for a mortgage preapproval in NBC’s systems from Esho, which further confirmed the inauthenticity of the November 5 letter.

27Given that he was not called as a witness, Singh’s statement to Carbone appears to be hearsay in this trial. Primont submits that Singh’s statement to Carbone is reliable and should be admitted under an exception to the hearsay rule.

28Whether or not Singh’s report is hearsay, however, is ultimately unimportant. Carbone satisfied herself that the preapproval was not genuine and reported her conclusions on behalf of NBC to Primont. Her reasons for doing so depended in part on reports from a colleague, which is clearly a reasonable practice, but also from her inspection of the preapproval letter and from her checking of the database. NBC concluded that the document was inauthentic and reported that to Dason.

29Primont was relying on NBC to validate the letter, and had no reason to doubt NBC’s conclusion that it was not authentic. Whether Singh’s evidence is hearsay is not important.

30Moreover, there is no reason to doubt NBC’s conclusion. Esho’s evidence was that the first time that he obtained a mortgage preapproval on the unit was in 2025. His evidence was that he was never a customer of NBC, but rather dealt with a different bank, CIBC. He testified, as did Carbone on behalf of NBC, that the process of obtaining a mortgage preapproval requires meetings and extensive documentation. He never had such interactions with NBC.

31The evidence from Carbone on behalf of NBC is consistent with Esho’s evidence: Esho did not obtain a valid mortgage preapproval from NBC in 2019.

32Following confirmation from NBC that the preapproval was inauthentic, Primont terminated the APS with Esho on September 30, 2022. It was an explicit term of default that a misrepresentation would fundamentally breach the contract: APS, Schedule X, s. 13(k). Section 13(k) informed the purchaser that valid financial information was important to the vendor’s conditions of financing, and that providing false financial information would constitute a fundamental breach. It was also a term of the contract that Primont could treat the deposit as forfeit in the event of default: APS, Schedule X, s. 21(b). Esho testified that his realtor reviewed the terms of the APS with him.

33Before turning to the legal submissions in this matter, there is one more factual matter to review. Upon hearing of the inquiry into the authenticity of the November 5, 2019 preapproval, it appears that Singh initiated a process at NBC to consider a mortgage preapproval for Esho in 2022 that apparently was approved by NBC’s credit department in 2022. Carbone’s evidence is that the application was incapable of valid approval in the fall of 2022. Her evidence moreover was that the application was only open for a few days in NBC’s system.

34Esho’s 2023 affidavit evidence, sworn when he was represented, was that the 2019 preapproval was “refreshed” in 2022. Esho’s 2025 affidavit does not make such a claim, and instead states that he relied on his real estate agent entirely and had nothing to do with NBC personally. He expresses shock in discovering that the initial document was invalid, and that his real estate agent appeared to work with NBC in 2022 to try to obtain a valid preapproval without Esho’s knowledge. He speculates in his 2025 affidavit that perhaps his agent and the NBC employee were the ones who initially produced the “incorrect” preapproval and were trying in 2022 to “cover up” their 2019 actions.

35While Esho does not in his 2025 affidavit rely in any way on the possible 2022 preapproval given that he claims to have had no knowledge of it, the 2022 preapproval in any event arose after the APS had been terminated. The 2022 preapproval has no effect on the outcome in this case.

36I find that Esho did not obtain a valid mortgage preapproval from NBC. The November 5, 2019 preapproval letter submitted in connection with his purchase was inauthentic.

THE TERMINATION WAS JUSTIFIED

37Primont’s legal position is straightforward. It was a requirement of the APS that Esho would provide a valid mortgage preapproval from a schedule A bank: APS, Schedule C. Esho did not do so, but rather submitted a fake preapproval letter from NBC. Esho therefore fundamentally breached the APS: APS, Schedule X, s.13(k). Primont was entitled to keep his deposit monies following such a breach: APS, Schedule X, s. 21(b).

38It is well-established in the case law that deposits provide incentives for the depositor to perform its contractual obligations. The Court of Appeal for Ontario in Benedetto v. 2453912 Ontario Inc., 2019 ONCA 149, 86 B.L.R. (5th) 1, at para. 6 observed that, “[t]he deposit stands as security for the purchaser’s performance of the contract. The prospect of its forfeiture provides an incentive for the purchaser to complete the purchase.”

39In the absence of a successful defence, Primont is entitled to retain the deposits. I find that there is no such defence, and that Primont is entitled to retain the deposits.

POSSIBLE DEFENCES

40By the time this matter was heard, Esho was self-represented. His submissions at trial and in his written closing argument were not always tightly focused on the legal implications of the facts, but rather tended to focus on the facts themselves. He put significant emphasis on his submission that he had nothing to do with the inauthentic 2019 mortgage preapproval.

41In what follows, I consider the legal implications of the facts and conclude that Primont is entitled to retain the deposits.

42Primont’s counsel also made submissions on the legal implications of certain facts and aspects of Esho’s pleadings. Primont in addition made submissions that some possible defences such as relief from forfeiture were not properly pled, and thus ought not to be considered. Given that I find on the merits that Primont is entitled to retain the deposits, there is no need to make a ruling on possible procedural objections to the arguments.

The Legal Implications of Esho’s Disavowal of the Mortgage Preapproval

43Esho does not maintain that the 2019 mortgage preapproval was valid, but rather gave evidence that he had nothing to do with it. As noted above, the validity of the 2022 preapproval is not a legally significant fact in this case given that Primont had terminated the contract prior to its issuance.

44The 2019 preapproval was not authentic. There are different possibilities as to how the inauthentic mortgage preapproval came into being. Esho testified that he relied on his real estate agent, and it is possible that the realtor was responsible for the inauthentic preapproval letter. It is unnecessary to make a finding on the question. The essential fact in this case is that Primont was not responsible for the creation of the fake preapproval. Esho’s Application is not against NBC, Esho’s realtor, nor any other party; it is against Primont. And Primont was not responsible for the submission of the falsified mortgage preapproval.

45Primont discovered that Esho submitted an inauthentic financing document in 2022. It was not incumbent on Primont to determine the origins of that document prior to concluding that Esho breached the APS. Once it discovered the inauthenticity of the document in 2022, it was entitled to terminate the APS and retain the deposits.

46Indeed, under the terms of its anticipated financing arrangements, Primont may have had an obligation to its lenders to terminate the APS upon the discovery of the falsified preapproval: its construction financing was anticipated to have, and did end up having, a threshold of qualified buyers as a condition. The APS in both Schedule C and Schedule X stressed the significance of the financial information of the purchaser to Primont because of Primont’s anticipated financing conditions.

47Assuming it was not him, Esho may have a complaint against the person that was responsible for the production of the fraudulent preapproval letter. He submitted to the court that he had made a complaint about his realtor to the Real Estate Council of Ontario. Be that as it may, the key point for present purposes is that Primont was not the wrongdoer. Any claim or complaint by Esho about the real estate agent (or any other person) does not affect Primont’s contractual right to terminate the APS upon discovering that the 2019 preapproval letter was inauthentic.

The Timing of the Termination

48The argument that Esho pressed most vigorously was that there was something problematic in the timing of Primont’s termination. Esho made different submissions along these lines. He submitted that Primont’s motivation in terminating was to realize a higher price for the property, given his submission that the unit had appreciated in value from the time of the signing of the APS in 2019 to the time of termination in 2022. He submitted that the termination was in bad faith.

49He also submitted that Primont had represented to Esho that it would review the paperwork within two months of the execution of the APS. Instead, Primont waited for years to do so, and only after the deposits were fully paid did it terminate the APS.

50Finally, he submitted that Primont waived any right to complain about the inauthentic mortgage preapproval by accepting his deposits.

51These submissions do not provide Esho with a valid defence to his breach of the APS.

Bad Faith

52The mortgage preapproval document was inauthentic. Following Primont’s inquiry, NBC informed Primont of this fact in September 2022. Upon discovery of the inauthenticity of the mortgage preapproval, Primont had the discretion to terminate and retain the deposits according to the terms of the APS.

53Bhasin v. Hrynew, 2014 SCC 71, [2014] 3 S.C.R. 494 held that parties must exercise contractual discretion in good faith. Wastech Services Ltd. v. Greater Vancouver Sewerage and Drainage District, 2021 SCC 7, [2021] 1 S.C.R. 32 held that the duty of good faith requires discretion under a contract to be exercised in a manner consistent with the purpose for that discretion.

54Esho submits that Primont acted in bad faith by terminating to realize gains in the value of the unit. I do not find that Primont’s decision to terminate was in bad faith.

55The submission of a falsified financial document to a contracting counterparty is a serious matter. Not only is that observation self-evident, but also the APS in this case explicitly stated that accurate financial documentation was important to Primont’s anticipated financing. Primont was allocated the contractual right to terminate the APS upon receipt of false information because of that seriousness. Primont’s decision to terminate was consistent with the reason why it was allocated the contractual right to terminate, and was not made in bad faith: Wastech. This is true whether or not the property had appreciated in value since the execution of the APS.

The 2022 Termination of the 2019 APS

56A related argument against Primont that Esho appeared to advance, though not in these precise terms, is that Primont strategically waited until 2022, and until after all deposits had been paid, to investigate the validity of the mortgage preapproval. I do not accept this argument.

57The APS made clear in Schedule C and Schedule X that valid financial information from purchasers was likely to be necessary for Primont to obtain financing for the project. Dason’s uncontradicted testimony was that Primont began the process of obtaining construction financing in 2022. At that point, it initiated a review of the mortgage preapprovals. There is a clear logic to that timing, even without Primont’s additional submission that it became aware then of news reports about proliferating fraud in mortgage preapprovals submitted in pre-construction projects.

58Moreover, it is not clear to me that it ought ever to be a valid defence to providing a contractual counterparty with a fake document to say that the counterparty should have discovered it and terminated sooner. Whether or not Esho was personally responsible for its creation, the fact is that Esho or someone on his behalf delivered an inauthentic mortgage preapproval. This was in breach of the APS. Esho consequently confronted the risk that the inauthenticity of the preapproval would be discovered at some point, and that the deposits paid to that point would be forfeited. That risk materialized.

59Esho makes a related submission, stating in his closing argument that builders typically review documents within 60-90 days of the execution of the APS. Esho’s Application referred to an early termination provision in the APS, which stated that if not satisfied with the financial documents submitted by the purchaser, Primont could terminate the APS within 60 days. Esho made an offhand remark in the hearing when examining Primont that Primont represented that it would review his documents within 60 days.

60I do not find that there was an obligation on Primont to ferret out fraud in the documents that were submitted in connection with Esho’s APS obligations.

61Primont makes no commitment in the APS that Primont will assess the authenticity of the documents submitted by the purchaser within a certain period of time. Nor does Primont commit not to terminate if phony documents are discovered at a later date. Rather, the APS requires the submission of valid financial documentation, including a valid mortgage preapproval.

62Moreover, it does not comport with common sense to conclude that Primont promised Esho verbally that it was Primont’s responsibility to discover fraudulent documentation submitted by Esho. Nor is it plausible that Primont would commit not to terminate the APS or otherwise disadvantage Esho if it discovered at a later date that some of the documents were fake.

63Primont does not seek to rely on the early termination provision that Esho raises in his initial Application, but rather on s. 13(k) outlined above, which understandably deems the submission of false financial information to be a fundamental breach of the contract. The early termination provision does not modify or otherwise weaken Primont’s right to terminate in response to false financial information.

64Esho breached the contract by submitting an inauthentic mortgage preapproval and cannot complain that termination occurred later than he would have preferred.

65I observe again that the origin of the falsified document is not relevant to Esho’s Application against Primont. If Esho has a complaint against his realtor or any other person for fabricating the preapproval document and causing him to lose his deposits, he has the option to pursue that person in court. Primont is the wrong defendant - it was not complicit in the misconduct, and had a right to terminate and retain the deposit monies.

Waiver

66Esho submits that by accepting his deposits, Primont waived its right to terminate the APS even if the financial information were false. This submission fails.

67Primont accepted Esho’s deposits when it was unaware of the inauthenticity of the NBC mortgage preapproval. It investigated the authenticity of Esho’s and other purchasers’ mortgage preapprovals in 2022 as part of its preparation to obtain construction financing, and in light of media reports of burgeoning fraud. Upon learning of the inauthenticity of Esho’s submitted preapproval, Primont promptly terminated. Primont did not waive Esho’s breach.

Relief from Forfeiture

68At trial, Esho requested the return of his deposits essentially because he submits that he personally did nothing wrong. This potentially raises the equitable claim of relief from forfeiture. Primont submitted that this was not pled. Primont also submitted that, as a party who submitted a fake document, Esho does not come to court with the clean hands that an equitable doctrine requires.

69There is no need to make a finding on either procedural submission. I accept Primont’s submission that, on the merits, there is no valid basis for relief from forfeiture in this case.

70Guidance on relief from forfeiture is found in Rahbar v. Parvizi, 2023 ONCA 522, 485 D.L.R. (4th) 239:

[49] Section 98 of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides that “[a] court may grant relief against penalties and forfeitures, on such terms as to compensation or otherwise as are considered just.”

[50] A rationale for forfeiture of a deposit is the need to provide an incentive for the purchaser to complete the purchase: Benedetto v. 2453912 Ontario Inc., 2019 ONCA 149, 86 B.L.R. (5th) 1, at para. 6. “It is [also] recompense to [the vendor] for the fact that his property was taken off the market for a time as well as for his loss of bargaining power resulting from the revelation of an amount that he would be prepared to accept”: HW Liebig Co. v. Leading Investments Ltd., 1986 CanLII 45 (SCC), [1986] 1 S.C.R. 70, at para. 33; see also Benedetto, at paras. 5-7.

[51] Mindful of the purposive underpinnings of forfeiture of deposits, this court has considered two factors in assessing whether relief from forfeiture pursuant to s. 98 of the Courts of Justice Act is appropriate, namely whether (i) the deposit is “out of all proportion” to the damages suffered by the vendor, and (ii) it would be unconscionable for the vendor to retain the deposit: Redstone Enterprises, at paras. 15ff; Jesan Real Estate Ltd. v. Doyle, 2020 ONCA 714, at paras. 54ff; and Azzarello v. Shawqi, 2019 ONCA 820, 439 D.L.R. (4th) 127, at para. 47, leave to appeal refused, [2019] S.C.C.A. No. 521. As noted in Redstone, “the finding of unconscionability must be an exceptional one, strongly compelled on the facts of the case”: at para. 25.

71Relief from forfeiture fails in this case whether or not the forfeited deposits are out of proportion to damages. This is because it would not be unconscionable for Primont to retain the deposit monies. This is not an “exceptional” case where a finding of unconscionability is “strongly compelled on the facts.”

72The court elaborated on unconscionability in Rahbar:

[55] In assessing unconscionability, the application judge considered the proportionality of the deposit to the overall purchase price, noting that the deposit amount was only 5% of the purchase price, which was a standard sum for residential real estate purchases.

[56] The application judge recognized that other relevant factors for assessing unconscionability include inequality of bargaining power, a substantially unfair bargain, the relative sophistication of the parties, the existence of bona fide negotiations, the nature of the relationship between the parties, the gravity of the breach, and the conduct of the parties: Redstone, at para. 30.

73The Supreme Court of Canada case of Uber Technologies Inc. v. Heller, 2020 SCC 16, [2020] 2 S.C.R. 118 is also relevant. Uber requires both inequality of bargaining power and a substantially unfair bargain to ground a finding of unconscionability. Neither is present in this case.

74With respect to inequality of bargaining power, Esho is not a neophyte in real estate matters. Other than the transaction at issue in this case, Esho testified that he purchased his personal residence, a house, directly from a builder in 2014 without the assistance of an agent. He also co-signed a mortgage with his sister in 2019. He notes that he does not have an equity interest in his sister’s property, but merely co-signed to help her get a mortgage. That may be so, but the evidence demonstrates that Esho was not entirely naïve about mortgages and real estate transactions.

75In addition, Esho had the assistance of a realtor in the execution of the APS with Primont. Esho testified that the realtor reviewed the terms of the APS with him. Moreover, Esho obtained amendments to the APS.

76Finally, the contractual term at issue in this case, which provides that the submission of false financial information is a fundamental breach, is not a surprising, esoteric or difficult-to-understand term. Indeed, the APS itself provides an explanation for its presence in the APS. It is not an obscure provision that might raise questions about the purchaser’s comprehension and thus bargaining power.

77The circumstances do not establish the kind of inequality of bargaining power that is necessary to find unconscionability.

78In any event, the bargain was not substantially unfair.

79In the present case, Primont submits that a 20% deposit is standard in new construction and Esho did not submit otherwise.

80Moreover, deposits provide incentives for contractual performance: Benedetto. In this case, the failure to perform arose from the submission of a falsified document. It is not an unfair term of a contract to rely on the risk of forfeiture of deposits to discourage the submission of fake financial documents.

81Finally, not only would Primont have lost trust in Esho upon discovery of the falsified document, but Primont’s own financing conditions were anticipated to be dependent on valid financial information from its purchasers. This concern was explicitly stated in the APS.

82It was not unfair for the APS to allow Primont to terminate upon discovery of a falsified financial document submitted by or on behalf of Esho.

SETTLEMENT OFFER

83Esho, in his written closing argument, submits that Primont made an offer to settle that Esho rejected because of his belief in his entitlement to acquire the unit. I do not know how this alleged offer was presented to Esho. I do not know whether Esho’s disclosure of this alleged offer to the court was improper and violated settlement privilege. I place no weight on the alleged offer in reaching my decision. Esho is not entitled to acquire the unit or to any other remedy.

CONCLUSION

84The Application is dismissed. Primont was entitled to terminate the APS on September 30, 2022 and to retain deposits paid to that point.

85In the event that the parties cannot agree on costs, I invite them to make submissions to my judicial assistant at annamaria.tiberio@ontario.ca of no more than three double-spaced pages no later than thirty days from today.

E. Iacobucci, J

Released: April 10, 2026

CITATION: Audisho et al. v. Primont (SXSW 1) Inc., 2026 ONSC 2149