The plaintiffs, purchasers of a property, sued for the return of their $50,000 deposit after the real estate transaction failed to close.
The defendant vendor counterclaimed for damages and forfeiture of the deposit.
The core issues were whether the vendor provided good and marketable title, specifically regarding the discharge of a private mortgage and the vendor's non-resident status under the Income Tax Act.
The court found that the vendor breached the Agreement of Purchase and Sale by failing to provide an executed discharge of the private mortgage on or before closing, as a lawyer's personal undertaking is not acceptable for private mortgages under Law Society of Ontario guidelines.
This breach entitled the purchasers to treat the contract as ended.
The court did not rule on the non-resident declaration issue.
The plaintiffs were awarded the return of their deposit plus pre-judgment interest, and the counterclaim was dismissed.