



COURT OF APPEAL FOR ONTARIO

CITATION: Forest Meadows Developments Inc.
    v. Shahrasebi, 2021 ONCA 620

DATE: 20210914

DOCKET: C68789

Benotto, Brown and Harvison
    Young JJ.A.

BETWEEN

Forest
    Meadows Developments Inc.

Applicant (Appellant)

and

Narges Shahrasebi

Respondent (Respondent)

Mark A. Ross and Vladimira M. Ivanov,
    for the appellant

Eddy Battiston and Harold Rosenberg,
    for the respondent

Heard: September 9, 2021 by video conference

On
    appeal from the judgment of Justice Jana Steele of the Superior Court of
    Justice, dated September 3, 2020.

REASONS FOR DECISION

[1]

The appellant Forest Meadows Developments Inc. appeals the order by the
    application judge dismissing its application for a declaration that the
    respondent was in breach of an Agreement for Purchase and Sale (APS), which
    was an agreement for the purchase and sale of land and a custom pre-built
    dwelling on the land.

[2]

Briefly, the dispute arises out of the following circumstances.
    The APS was signed in March 2017. It provided that the closing would take place
    on March 25, 2018. Construction began in the fall of 2018. In 2019, there were
    a number of extensions of the closing date occasioned by the appellant which
    were contemplated by the APS. There was another extension to August 29, 2019,
    which the application judge found to have been requested by the appellant in
    return for a discount on certain upgrades. In May 2019, the parties executed an
    amendment to the APS which extended the closing date to October 29, 2019. That
    closing did not take place. The respondent argues that she was ready to close
    on that date despite the fact that her house had not yet sold and that the
    failure of the appellant to close on that date was a breach of the APS
    entitling her to terminate the contract and receive back her deposit and all
    monies paid. The discussions in the months leading up to October 29, 2019, were
    attempts to negotiate a better price for the upgrades and possibly a price reduction.

[3]

The appellant argues that it had relied on the respondents
    representations that she would not be able to close, slowing down construction
    and preparation for the final appraisal, which would be necessary to close and
    a prerequisite for the respondent to obtain the financing that had been
    preapproved.

[4]

The appellant commenced this application arguing that the
    respondent had made representations that she would not close on October 29
    because her house was not selling at the price necessary to finance the
    purchase of the new property, that she was in anticipatory breach, and that the
    appellant was entitled to terminate the contract.

[5]

In dismissing the application, the application judge found that there
    had been no anticipatory breach or representations that could have given rise
    to reasonable reliance by the appellant.

[6]

All the issues raised by the appellant turn on one central
    question of fact: did the respondent say or represent that she would not be
    able to close on October 29, 2019? The application judge expressly found that
    she did not. This finding of fact attracts a high level of deference and we see
    no palpable or overriding error to justify the intervention of this court.

[7]

While the appellant also raises certain extricable issues of law,
    such as whether the APS could be amended by subsequent representations or
    conduct on the part of the respondent, these also depend on finding that the
    representation that the respondent could not close on October 29 was actually
    made.

[8]

The application judges findings were well grounded in the record before
    her. She found that while the respondent had certainly communicated the
    difficulty she was having selling her house for the price necessary, she had
    never said that she would not be able to close on that date.

[9]

There is no basis to interfere with this key finding on the part
    of the application judge. Without it, there was no representation that the
    respondent would not be able to close, and the question of whether the
    appellant reasonably relied does not arise. Nor can the question of whether an
    oral contract or representations could amend the APS in light of the entire
    agreement clause arise as the application judges finding was that there was no
    agreement to extend the October 29 closing date, oral or otherwise.

[10]

We also find that there is no merit to the
    argument that the application judge erred in failing to give weight to the
    September 12 meeting between the respondent, her husband, and Mr. Tiz, a
    representative of the appellant, which was surreptitiously recorded by the
    appellant. She gave good reasons for so declining, namely, that there was ample
    written correspondence between the parties and their counsel and that there was
    clearly unfairness where the appellant knew they were taping the recording
    while the respondent and her husband did not.

[11]

Lastly, the application judge gave clear reasons
    for the findings of fact made.

[12]

The appeal is dismissed.

[13]

The appellant shall pay the respondent her partial indemnity
    costs of the appeal fixed in the amount of $27,926, inclusive of disbursements
    and applicable taxes.

M.L.
    Benotto J.A.

David
    Brown J.A.

A.
    Harvison Young J.A.


