Good afternoon.

Following are this week’s summaries of the Court of Appeal for Ontario for the week of September 12, 2022.

In Optiva Inc. v. Tbaytel, the Court dismissed the appeal from an arbitrator’s decision granting summary judgment. The arbitrator had the authority to proceed by summary judgment motion, as the arbitration agreement gave the arbitrator broad powers to determine the procedure to be employed.

In 2174372 Ontario Ltd. v. Dharamshi, a builder refused to release purchasers from their obligation to purchase after they were having difficulty obtaining purchase financing. However, by the time the closing date had come around, the builder had not completed construction, while the purchasers had come up with financing. The builder asked for an extension and was refused, and was unable to close. The purchasers were successful in obtaining a return of their deposit in the court below, and the builder’s appeal was dismissed by the Court.

Other topics this week included the interpretation of a Will, a property dispute involving ouster and occupation rent and leave to appeal under s.193(e) of the Bankruptcy and Insolvency Act.

Table of Contents

Civil Decisions

Tsitsos v. Poka, 2022 ONCA 647

Keywords: Real Property, Joint Tenancies, Ouster, Occupation Rent, Civil Procedure, Affidavit Evidence, Translations, Fresh Evidence, Kerr v. Baranow framework: 2011 SCC 10, Palmer v. The Queen, [1980] 1 SCR 759, R. v. Araya, 2015 SCC 11, Griffiths v. Zambosco (2001), 54 O.R. (3d) 397 (C.A.)

Optiva Inc. v. Tbaytel, 2022 ONCA 646

Keywords: Contracts, Arbitration, Motion for Summary Judgment, Arbitration Act, 1991, S.O. 1991, c. 17, ss. 2, ss. 3, ss. 17, ss. 26, ss. 45 and ss. 46, Rules of Civil Procedure, R.R.O. 1990, s. 1.03, Reg. 194., Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, ss. 1(1) and ss. 15(1), Optiva Inc. v. Tbaytel, 2021 ONSC 2929, Inforica Inc. v. CGI Information Systems and Management Consultants Inc., 2009 ONCA 642, 97 O.R. (3d) 161, Popack v. Lipszyc, 2016 ONCA 135, 129 O.R. (3d) 321, Desputeaux v. Éditions Chouette (1987) Inc., 2003 SCC 17, Travis Coal Restructured Holdings LLC v. Essar Global Fund Ltd., [2014] EWHC 2510 (Comm), Hryniak v. Mauldin, 2014 SCC 7, Alectra Utilities Corp. v. Solar Power Network Inc., 2019 ONCA 254, Ticketnet Corp. v. Air Canada, [1993] O.J. No. 289 (Gen. Div.), Mines Ltd. v. Ontario Hydro (2001), 56 O.R. (3d) 181, Ottawa (City) v. Coliseum Inc., 2016 ONCA 363.

VanSickle Estate v. VanSickle, 2022 ONCA 643

Keywords: Wills and Estates, Wills, Interpretation, Succession Law Reform Act, R.S.O. 1990, c. S.26, Trezzi v. Trezzi, 2019 ONCA 978

Conforti Holdings Limited (Re), 2022 ONCA 651

Keywords: Bankruptcy and Insolvency, Claims Provable in Bankruptcy, Valuation of Claims, Proposal Trustees, Civil Procedure, Jurisdiction, Multiplicity of Proceedings, Leave to Appeal, Bankruptcy and Insolvency Act, R.S.C., 1985, c. B-3, s.135, s.193(e), Ontario Business Corporations Act, R.S.O. 1990, C. B.16, Business Development Bank of Canada v. Pine Tree Resorts Inc. et al, 2013 ONCA 282, Re Nortel Networks Corporation et al, 2015 ONSC 1354, Kitchener Frame Limited (Re), 2012 ONSC 234

2174372 Ontario Ltd. v. Dharamshi, 2022 ONCA 648

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Repudiation

Short Civil Decisions

Barker v. Barker, 2022 ONCA 652

Keywords: Appeal, Damages, Quantum of Costs, Reasonableness, Wesbell Networks Inc. v. Bell Canada, 2015 ONCA 33, Waxman v. Leibow, 2004 CanLII 31901 (Ont. C.A.)


CIVIL DECISIONS

Tsitsos v Poka, 2022 ONCA 647

[Tulloch, Nordheimer and Harvison Young JJ.A.]

COUNSEL:

E.D. Fredman, for the appellant A.V. Kralingen and K. Chau, for the respondents

Keywords: Real Property, Joint Tenancies, Ouster, Occupation Rent, Civil Procedure, Affidavit Evidence, Translations, Fresh Evidence, Kerr v. Baranow framework: 2011 SCC 10, Palmer v. The Queen, [1980] 1 SCR 759, R. v. Araya, 2015 SCC 11, Griffiths v. Zambosco (2001), 54 O.R. (3d) 397 (C.A.)

FACTS:

The appellant, K. P., is the sister of the respondent G. T. and sister-in-law to G.T.’s husband, B.T. In 1991, B.T. and his business partner purchased a pizzeria in Manitoba for $425,000. The appellant argued unsuccessfully at trial that she was a partner in this joint family venture and claimed to have contributed 24 million Greek drachmas (approx. C$150,000) to the respondents to buy their share of the pizzeria.

The appellant and respondents purchased a property in Toronto and both the appellant and the respondents were all on title as joint tenants. From 2005 onwards, the appellant and the respondents’ son were based full-time in Toronto. The appellant cared for the respondents’ son, who was musically talented and pursued his studies in Toronto. In 2013, shortly after the appellant’s son was charged with a serious criminal offence, G.T. returned to Toronto to act as a surety for the respondent’s son. She returned on the condition that the appellant vacate the home so that she could live there. The appellant’s son was denied bail, so the respondent, G.T. returned to Manitoba and the appellant moved back into the property. When the appellant returned to the property, she changed the locks and alarm code and refused to give the respondents a new set of keys or the alarm code, thereby preventing them, or their son, from having access to the home. During this period, the respondents paid the property’s carrying costs and also had to pay rent for their son’s alternative accommodations in Toronto.

ISSUES:

(1) Is there merit to allow the appellant to admit fresh evidence?

(2) Did the trial judge err in dismissing all of the evidence provided by one of the appellant’s witnesses and in dismissing the witness after striking their affidavit for lack of translation?

(3) Did the trial judge err in her application of the law of ouster and occupation rent to the facts in this case?

HOLDING:

Appeal dismissed.

REASONING:

(1) No.

The Court held that there was no merit in the application to admit fresh evidence as it failed to satisfy the criteria for admission as established in Palmer v. The Queen. When the fresh evidence is taken with the other evidence adduced at trial, even if believed, it could not have reasonably affected the result. The Court further stated that the proposed fresh evidence could have been produced at trial with due diligence and it was neither credible nor reliable.

(2) No.

The Court held that the trial judge committed no error in striking both the affidavit and dismissing the witness in this case. The Court found that it was clear that the trial judge’s reasons demonstrated that she considered the evidence as a whole and determined that the probative value of the respondents’ reply evidence outweighed the potential prejudice caused by the limited time that the appellant had to obtain responding documents. The Court concluded that the appellant had not identified any palpable and overriding error that could justify interfering with the trial judge’s decision on this issue.

(3) No.

The appellant submitted that the trial judge failed to consider that the appellant had first been ousted by the respondents before subsequently changing the locks and that she failed to properly appreciate the impact of the appellant’s allegations that she was allegedly assaulted by the respondents’ son in her ouster findings. The appellant also submitted that the trial judge erred in granting the respondents occupation rent for their son because he had no right to live in the house even if the respondents had not been ousted. The Court disagreed, stating that the trial judge had acknowledged that the ouster occurred after the appellant signed an agreement requiring her to vacate the property and after returning and discovering that the locks had been changed on all but one door.

The Court noted that a trial judge’s exercise of discretion in ordering occupation rent should not be interfered with unless the finding is unreasonable, or the trial judge has erred in principle: Griffiths v. Zambosco.


Optiva Inc. v. Tbaytel, 2022 ONCA 646

[Doherty, Huscroft and Harvison Young JJ.A.]

COUNSEL:

E. van Eyken and A. Coates, for the appellant Optiva Inc. A.D. Rose and A. Urbanski, for the respondent Tbaytel

Keywords: Contracts, Arbitration, Motion for Summary Judgment, Arbitration Act, 1991, S.O. 1991, c. 17, ss. 2, ss. 3, ss. 17, ss. 26, ss. 45 and ss. 46, Rules of Civil Procedure, R.R.O. 1990, s. 1.03, Reg. 194., Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, ss. 1(1) and ss. 15(1), Optiva Inc. v. Tbaytel, 2021 ONSC 2929, Inforica Inc. v. CGI Information Systems and Management Consultants Inc., 2009 ONCA 642, 97 O.R. (3d) 161, Popack v. Lipszyc, 2016 ONCA 135, 129 O.R. (3d) 321, Desputeaux v. Éditions Chouette (1987) Inc., 2003 SCC 17, Travis Coal Restructured Holdings LLC v. Essar Global Fund Ltd., [2014] EWHC 2510 (Comm), Hryniak v. Mauldin, 2014 SCC 7, Alectra Utilities Corp. v. Solar Power Network Inc., 2019 ONCA 254, Ticketnet Corp. v. Air Canada, [1993] O.J. No. 289 (Gen. Div.), Mines Ltd. v. Ontario Hydro (2001), 56 O.R. (3d) 181, Ottawa (City) v. Coliseum Inc., 2016 ONCA 363.

FACTS:

The respondent, Tbaytel, is an independent provider of telecommunication services that agreed to purchase a new software package from the appellant, Optiva Inc., for about $8.5 million in 2016. The parties expected the project to be completed by July 2018. However, problems developed resulting in the respondent terminating the contract in March 2018.

The contract provided for disputes to be determined by arbitration. In November 2018, the parties entered into an arbitration agreement naming the arbitrator and describing their powers. The arbitrator ruled that the respondent could bring a summary judgment motion in the arbitration. The arbitrator concluded that the appellant had breached the contract, and that the respondent was entitled to terminate the agreement and recover monies paid. The arbitrator gave lengthy reasons in support of their decision and issued a partial award in February 2020 requiring the appellant to pay the respondent $4.39 million.

Optiva moved in Superior Court for an order setting aside the arbitrator’s award pursuant to ss. 17 and 46 of the Arbitration Act, 1991, S.O. 1991, c. 17 (the “Act”). Optiva also sought leave to appeal on questions of law pursuant to s. 45 of the Act. In reasons released on April 20, 2021, the application judge refused to set aside the arbitrator’s order and dismissed Optiva’s application for leave to appeal.

In October 2021, the Court granted leave to appeal from the application judge’s order.

ISSUES:

1. Did the application judge err in holding that Optiva’s application was governed by s. 17 of the Arbitration Act (the “Act”), and that Optiva had failed to challenge the ruling that Tbaytel could proceed by summary judgment within 30 days of receiving notice of the ruling, as required by s. 17(8) of the Act?

2. Did the application judge err in holding that the arbitrator could proceed by way of summary judgment motion?

3. Did the application judge err in holding that the arbitrator did not base his interpretation of the limitation of liability clause on a legal theory not advanced by either party?

4. Did the application judge err in refusing to grant leave to appeal from the arbitrator’s interpretation of the limitation of liability clause in the contract, and/or the arbitrator’s interpretation of the arbitration agreement?

HOLDING:

Appeal dismissed.

REASONING:

1. Yes.

Section 17(1) of the Act provides in part that an arbitral tribunal may rule on its own jurisdiction to conduct the arbitration […]. Section 17(8) requires that [I]f the arbitral tribunal rules on an objection as a preliminary question, a party may, within thirty days after receiving notice of the ruling, make an application to the court to decide the matter.

On the application before the Superior Court, the respondent submitted that the appellant was required to bring an application in the Superior Court challenging the arbitrator’s preliminary ruling within 30 days of the arbitrator giving notice. The appellant did not do so, but instead proceeded with the arbitration and challenged the ruling only afterwards.

The appellant submitted that s. 17 of the Act had no application to procedural orders like the order made by the arbitrator, and argued that the arbitrator had no authority to conduct a proceeding by way of summary judgment motion. The appellant relied on Inforica Inc. v. CGI Information Systems and Management Consultants Inc., 2009 ONCA 642, the controlling authority addressing s. 17 of the Act. In light of Inforica Inc., the Court concluded that the arbitrator’s decision to proceed by summary judgment was not a decision under s. 17(1) of the Act. Section 17(8) did not apply to the challenge, and, therefore, the appellant’s application to set aside the arbitrator’s award was properly brought under s. 46 of the Act.

2. No.

To support the appellant’s position that the arbitrator could not proceed by way of summary judgment motion, the appellant submitted that: (1) the arbitration agreement was silent on the availability of a summary judgment procedure; (2) regardless of the terms of the arbitration agreement, s. 26 of the Act gave the appellant the right to an oral hearing; and (3) the summary judgment procedure followed by the arbitrator resulted in unfairness to the appellant.

The Court did not accept these submissions because: (1) the agreement was not silent on the arbitrator’s authority to decide on the procedures, as it provided numerous examples of the kinds of motions the arbitrator could hear and gave the arbitrator interpretive powers under para. 8; (2) the phrase “presentation of evidence” under s. 26 of the Act did not connote viva voce evidence only and, as it was ultimately a procedural question, it was to the arbitrator’s discretion to decide how evidence was heard; and (3) the appellant had agreed that the arbitrator could determine the procedures governing the arbitration, and there was no evidence that the appellant did not have a full and fair opportunity to challenge the case put forward by the respondent.

3. No.

The appellant relied on a limitation of liability provision in the agreement to limit any damages owing to the respondent. The respondent took the position that the limitation of liability provision applied only to contractual breaches arising out of the “performance of services” under the agreement. The respondent maintained that the appellant’s breaches arose out of the “non-performance” of the agreement. The respondent relied on the limitation of liability issue included in the decision of Ticketnet Corp. v. Air Canada, [1993] O.J. No. 289 (Gen. Div.), although its counsel did not refer to the decision in oral argument. The arbitrator referred to Ticketnet in their reasons. As a result, the appellant described the arbitrator’s reference to Ticketnet as introducing a “new theory of liability” which the appellant did not have the opportunity to address.

The Court rejected the appellant’s submissions. The Court found that the arbitrator considered the limitation liability clause at length and conducted the kind of analysis customarily employed in contractual interpretation. Further, the Court determined that the arbitrator’s conclusion flowed, not on a reliance of Ticketnet, but rather from the common-sense observation that conscious, wilful conduct which violated the terms of the contract, could not be characterized as conduct performed “in the rendering of services” under the contract.

4. No.

The Court clarified that refusal to grant leave under s. 45 of the Act is, as a general rule, not appealable to the Court. A refusal to grant leave can only be appealed if it reflects an erroneous decline of the jurisdiction given to the Superior Court judge. The application judge did not decline to exercise his jurisdiction to determine whether leave to appeal should have been granted under s. 45. Rather, he refused leave on the merits. The application judge referred to the limitation of liability provisions as raising a question of mixed fact and law. The appellant submitted that the application judge was wrong in characterizing the contractual issue as mixed fact and law.

The rationale underlying restrictions on appeals to the Court from the refusal to grant leave to appeal in the Superior Court would be defeated if the Court were to engage in an assessment of the merits of the decision refusing leave under the guise of considering whether the court below declined to exercise its jurisdiction. The application judge’s conclusion that the question raised by the appellant involved a question of mixed fact and law, whether right or wrong, was determined on the merits of the appellant’s application for leave to appeal—a decision that was not appealable to the Court.

The Court agreed with the application judge’s analysis of the arbitration agreement and the conclusion that the arbitrator had the authority to proceed by summary judgment motion.


VanSickle Estate v. VanSickle, 2022 ONCA 643

[Miller, Nordheimer and Sossin JJ.A]

COUNSEL:

D. Sinko, for the appellants E. G. Upenieks and J. M.E. Chumak, for the respondents Joan Pizzey, Allen VanSickle and Mary Ann Fletcher J. Figliomeni, for the respondents Danny Fletcher and Marvn VanSickle, in their capacity as Estate Trutees for the Estate of Dorothy Ethel VanSickle

Keywords: Wills and Estates, Wills, Interpretation, Succession Law Reform Act, R.S.O. 1990, c. S.26, Trezzi v. Trezzi, 2019 ONCA 978

FACTS:

The appeal concerned the interpretation of a will. The testator died, leaving 6 surviving children. The testator provided one of her children with an option to purchase “the farming business carried on by me” in Brantford for $85,300. Four of the other children argued the testator had ceased carrying on the farming business many years earlier, the option to purchase had therefore lapsed, and the farm should fall into the residue of the estate. H.V., the beneficiary of the option, disagreed. When the testator’s husband died in 1995, the testator began to rent out the farmland to their eldest son, H.V. H.V. continued working on the farm and subsequently began subleasing the fields to others and at times shared the extra profit with the testator.

The application judge concluded that the farming business carried on by the testator referred to the active farming business involving cultivation of crops and/or raising of livestock for commercial sale and profit that she and her husband had carried on for many years prior to the making of their wills. The application judge found the Testator did not intend the simple rental of land to come within the ambit of the phrase ‘farming business carried on by me.’ Accordingly, the trial judge found that the option to purchase the farm in favour of H.V. had lapsed.

ISSUES:

Did the application judge err in their interpretation of the phrase “farming business carried on by me”?

HOLDING:

Appeal allowed.

REASONING:

Yes. The standard of review of an application judge’s interpretation of a will is the same as of a contract: Trezzi v. Trezzi, 2019 ONCA 978 at para 15. The findings of an application judge in interpreting the will in light of all the surrounding circumstances to determine the subjective intentions of the testator that it conveys, are findings of mixed fact and law entitled to appellate deference, absent an extricable error of law or palpable and overriding error. The Court found the application judge made an extricable error of law in failing to apply the presumption set out in s. 22 of the Succession Law Reform Act, R.S.O. 1990, c. S.26, that “[e]xcept when a contrary intention appears by the will, a will speaks and takes effect as if it had been made immediately before the death of the testator with respect to … the property of the testator”. The Court found the testator was carrying on a farm business at the time of her death. There was nothing in the phrase “the farming business carried on by me” that pointed unambiguously to the business carried on in 1985 over the business carried on in 2019. There was no evidence about the surrounding circumstances that would suggest that the testator’s intention was to provide H.V. with an option to purchase the family farm so that he could continue farming it, but only if she was still involved in the day-to-day operations. The will contained a further clause that defined the term “farming business” as including “all assets, stock, plant, liabilities, in connection there with on the other (sic) and it shall include the estate in fee simple of the farm.” The Court found the testator intended to benefit H.V. differently from her other children because of his lifelong commitment to the operation of the farm. Despite the passage of 34 years, the testator never chose to amend her will. The Court found the option to purchase the farm was valid and validly exercised.


Conforti Holdings Limited (Re), 2022 ONCA 651

[Pardu J.A. (Motion Judge)]

COUNSEL:

R. B. Bissell and J. Turgeon, for the moving party, Crowe Soberman Inc., in its capacity as trustee to the proposal to creditors of Conforti Holdings Ltd. B. Sachdeva, for the moving party, Conforti Holdings Ltd. C.P. Prophet, for the respondent, Moroccanoil Inc.

Keywords: Bankruptcy and Insolvency, Claims Provable in Bankruptcy, Valuation of Claims, Proposal Trustees, Civil Procedure, Jurisdiction, Multiplicity of Proceedings, Leave to Appeal, Bankruptcy and Insolvency Act, R.S.C., 1985, c. B-3, s.135, s.193(e), Ontario Business Corporations Act, R.S.O. 1990, C. B.16, Business Development Bank of Canada v. Pine Tree Resorts Inc. et al, 2013 ONCA 282, Re Nortel Networks Corporation et al, 2015 ONSC 1354, Kitchener Frame Limited (Re), 2012 ONSC 234

FACTS:

Conforti Holdings Limited (“CHL”) operated a chain of 52 hair salons. It had been litigating in New Jersey for more than seven years with Moroccanoil over differences related to the supply of hair products. When advised that CHL had filed a notice of intention to make a proposal pursuant to the Bankruptcy and Insolvency Act (“BIA”) on September 28, 2020, the New Jersey court stayed proceedings there, upon Moroccanoil’s request, and over the objections of CHL. Moroccanoil filed a proof of claim for $2,807,478.12 in the proceedings under the BIA. The Proposal Trustee declined to determine whether this was a provable claim or to value, it but brought a motion asking to be relieved of its obligations to do so. The motion judge refused the motion. Firstly, he held that s. 135(1.1) of the BIA required the trustee to determine the claim, and that there was no jurisdiction to exempt the trustee from carrying out this function. Secondly, he held that even if there was jurisdiction to make the order requested, the order sought was not appropriate, as it was not one of the clear cases that justified the exercise of discretion to depart from the usual process for valuation of claims under the BIA. CHL and the Proposal Trustee sought leave to appeal from the dismissal of the Proposal Trustee’s motion for an order advising and directing the Proposal Trustee to not undertake the adjudication of the Moroccanoil proof of claim and the crossclaim by CHL against Moroccanoil, which would otherwise be required by s. 135 of the BIA, and lifting the stay of proceedings to allow the parties to continue litigating in New Jersey.

ISSUES:

Does the moving party meet the test for leave to appeal under s.193(e) of the BIA?

HOLDING:

Motion dismissed.

REASONING:

No. Pursuant to s. 193(e) of the BIA, the court will look to whether the proposed appeal: a) raises issues of general importance to the practice in bankruptcy/insolvency matters or to the administration of justice as a whole; b) is prima facie meritorious; and c) would unduly hinder the progress of the bankruptcy/insolvency proceedings. The Court noted that decisions by judges in insolvency proceedings are entitled to considerable deference. The Court refused to conclude that there was a prima facie merit to the appeal, as the alternate discretionary conclusion by the motion judge that it was not appropriate to have proceedings involving the parties proceed in two different fora was unassailable. There was no demonstrable error that would justify the Court granting leave to appeal from the motion judge’s assessment of the advantages and disadvantages of dealing with the claims within the proceedings under the BIA. The general rule is that all claims should be adjudicated in the bankruptcy proceedings. Finally, the conclusion that there was no material advantage to allowing the litigation to continue in New Jersey was entitled to deference. An appeal from the order refusing to excuse the trustee from his obligations under s. 135(1.1) of the BIA would likely be dismissed because of the deference owed to the motion judge’s factual determinations. Thus, leave to appeal was refused.


2174372 Ontario Ltd. v. Dharamshi, 2022 ONCA 648

[Lauwers, Roberts and Zarnett JJ.A.]

COUNSEL:

R. Macklin and W. Jiang, for the appellant A. Jiwa, for the respondents

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Repudiation

FACTS:

This appeal arose out of a failed real estate transaction between the appellant vendor and the respondent purchasers for the sale of a house to be built by the vendor. The appellant builder sold to the respondents a residential house to be constructed for the purchase price of $869,445.641. The agreement of purchase and sale (“APS”) specified that the closing date was November 8, 2018. Through telephone communications and written notices, the respondents advised the appellant that they might not be able to close due to difficulty obtaining financing. The appellant refused to grant a price reduction with an extended closing period. The respondents visited the premises on November 5 and 7, 2018, and discovered that the building was not ready for occupancy, and not substantially completed. On November 9, 2018, the appellant set a new closing date for December 10, 2018, but the respondents’ maintained that the agreement was at an end and required the return of their deposits. The motion judge allowed the respondents’ motion for summary judgment and dismissed the appellant’s action. The motion judge determined that although the respondents had earlier repudiated the APS by their assertions that they were unable to close the transaction, the APS did not come to an end at that point because the appellant did not accept the respondents’ repudiation and instead insisted on closing the transaction. He found that the respondents were ready to fulfill their contractual obligations to close on the closing date because they had certified closing funds, but that the appellant was not, because the house was not substantially complete. The agreement therefore came to an end on November 8, 2018, and could not subsequently be resurrected by the appellant’s insistence on an extended closing. The appellant appealed the dismissal of its action.

ISSUES:

Did the motion judge err in his findings of fact?

HOLDING:

Appeal dismissed.

REASONING:

No.

The appellant argued that the motion judge erred in finding that the respondents did not act in bad faith by entering into a mortgage to obtain closing funds without advising the appellant that they were in a position to close, notwithstanding their previous assertions to the contrary. The appellant argued they should have been able to exercise the right to extend the closing. The Court disagreed and found the appellant’s argument took issue with the motion judge’s careful assessment of the evidence and his detailed findings that were open to him on the record and free from any reversible error.

The appellant maintained that neither party was ready, willing and able to close the transaction on November 8, 2018, because the respondents had entered into a sham mortgage. The motion judge found otherwise, as the respondents’ uncontested evidence was that in the late afternoon of November 7, 2018, they finally managed to obtain financing from a family friend that enabled them to close the transaction. The mortgage was not a sham.

The Court found no error in the motion judge’s findings. There was no obligation on the respondents in this case to advise the appellant that they had succeeded in obtaining mortgage funds. The appellant proceeded as if it could close on the scheduled closing date even though the house was not substantially completed. The Court found the appellant could have exercised its right to extend the closing date prior to November 8, 2018, and failed to do so. The Court noted that the appellant took a calculated risk and could complain afterwards that it had miscalculated the situation.


SHORT CIVIL DECISIONS

Barker v. Barker, 2022 ONCA 652

[Hourigan, Trotter and Zarnett JJ.A.]

COUNSEL:

A. Christian-Brown and S. Hsu, for the appellant his Majesty the King in Right of Ontario F. McLaughlin, S. Rogers, and B. Greenaway, for the appellants E.T.B. and G.J.M. J. P. Rochon, P. R. Jervis, G. Nayerahmadi, M. W. Taylor and K. Bédard, for the respondents

Keywords: Appeal, Damages, Quantum of Costs, Reasonableness, Wesbell Networks Inc. v. Bell Canada, 2015 ONCA 33, Waxman v. Leibow, 2004 CanLII 31901 (Ont. C.A.)