Jun 29, 2020

[Doherty, Hourigan and Fairburn JJ.A.]

COUNSEL:

Derrick M. Fulton, for the appellant

Emilio Bisceglia and Sonja Turajlich, for the respondent

Keywords:
Contracts, Breach, Real Property, Agreements of Purchase and Sale of Land, Remedies, Specific Performance, Civil Procedure, Summary Judgment, Standard of Review, Hryniak v. Mauldin, 2014 SCC 7, Matthew Brady Self Storage Corporation v. InStorage Limited Partnership , 2014 ONCA 858, leave to appeal refused, [2015] S.C.C.A. No. 50, Landmark of Thornhill Limited v. Jacobson, [1995] 25 O.R. (3d) 628 (CA), Semelhago v. Paramadevan, [1996] 2 S.C.R. 415

FACTS:

The appellant backed out of an agreement of purchase and sale of land to purchase a new home built by the respondent (APS). The respondent successfully moved for summary judgment awarding specific performance and requiring the appellant to complete the transaction within 120 days. The appellant appealed.

ISSUES:

1. Did the motion judge err in concluding that the appellant did not provide any foundation for setting aside the agreement?

2. Was the appellant denied a fair hearing when his adjournment request was denied?

3. Did the motion judge err in granting specific performance?

4. Should fresh evidence on appeal be admitted?

HOLDING:

Appeal dismissed.

REASONING:

1. No. The Court first reiterated that the question of whether a genuine issue requiring a trial exists on a motion for summary judgment is a question of mixed fact and law, and therefore the standard of review is “palpable and overriding error”.

The Court agreed with the motion judge that the appellant’s affidavits did not disclose any material misrepresentation or other evidence that would support setting aside the APS.

2. No. Even though the adjournment was denied, the hearing was not completed and had to be adjourned for completion anyway. The appellant was then permitted to file fresh evidence. If there were other purchasers who also refused to close their purchases with the same builder, those transactions would turn on their own details and there is therefore no risk of inconsistent findings. There was therefore no denial of natural justice.

3. No. Specific performance is available to vendors, as per the test set out in Matthew Brady Self Storage Corporation v. InStorage Limited Partnership, 2014 ONCA 858, leave to appeal refused, [2015] S.C.C.A. No. 50:

(i) whether on the facts as a whole, damages will afford the vendor an adequate and complete remedy or whether a money award will be sufficient to purchase substitute performance;

(ii) whether the vendor has established some fair, real and substantial justification for the granting of specific performance; and

(iii) whether the equities as between the parties favour the granting of specific performance.

The Court declined to comment on whether the motion judge erred in relying on Landmark of Thornhill Limited v. Jacobson, [1995] 25 O.R. (3d) 628 (CA) for the proposition that the defaulting party bears the onus of showing the property is not unique (and therefore specific performance should not be granted as a remedy). That decision was released a year before Semelhago v. Paramadevan, [1996] 2 S.C.R. 415, which confirmed that specific performance should not be granted as a matter of course absent evidence of uniqueness, and that a substitute is not readily available. The motion judge’s decision in this case did not turn on who bore the onus. In this case, the home at issue was a $3 million home with a variety of changes and customizations unique to the appellant. This was sufficient to support a conclusion that the property was unique and that damages would not be a complete remedy or substitute for specific performance.

4. No. The appellant submitted fresh evidence that the respondent had listed the property in question for sale. He argued that this was inconsistent with the remedy of specific performance. The evidence also established that the listing for sale was an administrative error, and that the property therefore was not actually listed for sale.