



COURT OF APPEAL FOR ONTARIO

CITATION: Ram v. Talon International Inc., 2016 ONCA 807

DATE: 20161031

DOCKET: C61158

Laskin, Sharpe and Huscroft JJ.A.

BETWEEN

Dr. Ganesh Ram and GFunk Inc.

Plaintiffs (Respondents)

and

Talon International Inc.

Defendant (Appellant)

Symon Zucker and Nancy Tourgis, for the appellant

Mavis J. Butkus, for the respondents

Heard and released orally: October 27, 2016

On appeal from the judgment of Justice Heeney of the Superior
    Court of Justice, dated September 18, 2015.

ENDORSEMENT

[1]

The trial judge found that the Agreement of Purchase and Sale terminated
    on its own terms and thus the respondent purchasers were entitled to a return
    of their deposit.

[2]

On appeal the vendor submits that the trial judge made one factual error
    and two errors of law. The factual error the vendor alleges is that by virtue
    of the amending agreements time became of the essence. The two legal errors the
    vendor alleges are first, the purchasers could not terminate the agreement
    without setting a new closing date; and second, the trial judge erred by
    putting the onus for setting a new closing date on the vendor. In making these submissions
    the vendor relies on the decision of this court in
Domicile Developments
    Inc. v. MacTavish
, 45 O.R. (3d) 302 (C.A.).

[3]

We do not accept the vendors submissions. As Ms. Tourgis fairly
    acknowledged,
Domicile
and any implications it may have had for this
    case were not argued before Justice Heeney. Moreover, this case turned not on
    the ability of the parties to close, which was the case in
Domicile
,
    but on the terms on which they were to close.

[4]

We now turn to the errors the vendor alleges. First, the trial judge
    found correctly that the Agreement of Purchase and Sale did not contain a time
    of the essence clause. Also the Agreed Statement of Facts did not provide that
    the parties agreed time was of the essence.

[5]

The amending agreements do contain a provision that time shall continue
    to be of the essence, but these provisions contradict the original agreement
    of purchase and sale. In view of the absence of a time of the essence provision
    in the original agreement, or any reference to such a clause in the agreed
    statement of facts, we decline to give effect to this term in the amending
    agreements. We add that the alleged factual error the vendor now relies on was
    not argued before the trial judge.

[6]

Second, we agree with the trial judge that the Agreement ended in
    accordance with para. 19 of the Agreement of Purchase and Sale because despite
    the vendors assurances it never provided the purchasers with a revised occupancy
    statement. The purchasers could hardly be obliged to set a new closing date
    without this revised statement.

[7]

Third, the trial judge was correct to lay the blame for the failure to
    close on the vendor. The vendor through its lawyer (not counsel on this appeal)
    represented to the purchasers he would sort out their concerns. But then he
    failed to do so. The trial judges finding at para. 31 of his reasons is fatal
    to the vendors appeal. At para. 31 the trial judge found:

Mr. Silvers message indicated that the closing of the
    transaction would go over for a few days until the plaintiffs concerns were
    sorted out, he failed thereafter to either address the plaintiffs concerns or
    establish a new closing date. Two emails from Mr. Lake were sent and were not
    responded to.

[8]

In substance, the trial judge found that having assured the purchasers
    he would address their concerns and having not done so, the vendor is now
    estopped from claiming the agreement was not at an end and that the purchasers
    were not entitled to return of their deposit.

[9]

The appeal is therefore dismissed. The respondents are entitled to their
    costs of the appeal in the agreed amount of $9400 inclusive of disbursements
    and applicable taxes.

John
    Laskin J.A.

Robert
    J. Sharpe J.A.

Grant
    Huscroft J.A.


