Stephen Richard Morrison

The applicant developer brought a motion for summary judgment seeking forfeiture of condominium purchase deposits after the respondent purchaser failed to pay a required third deposit and did not complete the transaction.

The respondent argued that forfeiture would be unconscionable and that the applicant suffered no damages.

The court held that the agreement of purchase and sale clearly provided for forfeiture upon default and that proof of damages is not required to enforce a forfeited deposit.

Finding the case document-driven with no genuine issue requiring trial and insufficient evidentiary response from the respondent, the court granted summary judgment and dismissed the counterclaim seeking return of the deposits.

The respondent brought a motion to quash the appellant's appeal on the basis that leave to appeal was required under s. 49 of the Arbitration Act.

The appellant brought a cross-motion to extend the time to seek leave to appeal.

The Court of Appeal found that the underlying application was a claim for an order staying arbitration under s. 48 of the Act, which requires leave to appeal.

The appeal was quashed.

However, the court granted the extension of time to seek leave, noting the initial failure was due to solicitor error and there was no meaningful prejudice to the respondent.