Jun 29, 2020

COURT OF APPEAL SUMMARIES (June 22 – 26, 2020)

Samuels v. Mai, 2020 ONCA 408 (CanLII)

[Strathy C.J.O., Lauwers and van Rensburg JJ.A.]


David Silver, for the appellant

Pulat Yunusov, for the respondents

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Civil Procedure, Dismissal for Delay, Reid v. Dow Corning Corp. (2001), 11 C.P.C. (5th) 80 (Ont. S.C.), rev’d (2002), 48 C.P.C. (5th) 93. (Ont. Div. Ct.), Prescott v. Barbon, 2018 ONCA 504, Jadid v. Toronto Transit Commission, 2016 ONSC 1176, aff’d 2016 ONCA 936, Marché D’Alimentation Denis Thériault Ltée v. Giant Tiger Stores Limited, 2007 ONCA 695, 1196158 Ontario Inc. v. 6274013 Canada Limited, 2012 ONCA 544, Carioca’s Import & Export Inc. v. Canadian Pacific Railway Limited , 2015 ONCA 592, Cardon Developments Ltd. et al. v. Butterfield , 1999 BCCA 642


This was a claim by the appellant for the return of a deposit paid by him to the respondents for the purchase of real property. The agreement was conditional on the appellant obtaining financing, and the transaction was aborted because the appellant claimed he could not obtain financing. The respondents counterclaimed for the appellant backing out of the transaction.

The action was stalled for many years and the appellant’s claim was ultimately dismissed for delay. However, the counterclaim was not dismissed for delay, and the respondents maintained that they intended to proceed with it. The appellant appealed.


Did the motion judge err in dismissing the appellant’s claim but not the counterclaim?


Appeal allowed.


Yes. While the motion judge relied on the correct test and her decision was normally entitled to deference, in this case, she failed to consider a critical contextual factor: the dismissal of the appellant’s claim left the respondents’ counterclaim alive.

The counterclaim was a mirror image of the appellant’s claim. Success on one claim would necessarily mean failure on the other. Since the two claims were inextricably wound up with the other and the respondents planned to proceed with their counterclaim, the interests of justice would not be properly served if the appellant’s claim was not also permitted to proceed.

The Court made two comments in obiter. First, the motion judge should not have indicated that she would have recused herself from deciding the alternative motion for summary judgment that was before her (had she not decided the motion on the basis of dismissal for delay). The parties had put their settlement offers before her and had therefore waived privilege. Neither of them had asked the motion judge to recuse herself. Second, the Court noted that this matter could have been resolved by a one-day trial. Sometimes, a trial is the just, most expeditious, and least expensive determination of a civil proceeding on the merits.