



COURT OF APPEAL FOR ONTARIO

CITATION: Amatuzio v. 650 Atwater Avenue
    Ltd., 2022 ONCA 9

DATE: 20220112

DOCKET: C68798

Rouleau, van Rensburg and
    Roberts JJ.A.

BETWEEN

Michele Amatuzio and Magdalena
    Amatuzio

Applicants (Appellants)

and

650 Atwater Avenue Ltd.

Respondent (Respondent)

Obaidul Hoque, Zaheed Moral and Taheratul
    Haque, for the appellants

Micheal Simaan, for the respondent

Heard: January 4, 2022 by
    video conference

On appeal from the order of Justice Heather
    A. McGee of the Superior Court of Justice, dated October 13, 2020.

REASONS FOR DECISION

[1]

The appellants contracted with the respondent to purchase a new
    condominium unit in a residential development that the respondent was building
    in Mississauga. After the respondent required a number of extensions, the
    interim occupancy date was set for June 27, 2019. The appellants were concerned
    that the unit was not in fact ready for occupancy, and there were
    communications between legal counsel for the parties. Ultimately, the
    appellants purchase was not completed and eventually the unit was sold to another
    purchaser.

[2]

The appellants brought an application seeking a declaration that the
    respondent had breached the agreement of purchase and sale (the APS) and for
    a reference to determine damages.

[3]

The central issue in the application was whether the respondent complied
    with its obligations under a Tarion Warranty Corporation Addendum that formed
    part of the APS. Section 9(a) of the Tarion Addendum provides as follows:

9.  Ontario Building Code  Conditions of Occupancy

(a) On or before the Occupancy Date, the Vendor shall deliver
    to the Purchaser:

(i) an Occupancy Permit (as defined in paragraph (d)) for the
    home; or

(ii) if an Occupancy Permit is not required under the Building
    Code, a signed written confirmation by the Vendor that all conditions of
    occupancy under the Building Code have been fulfilled and Occupancy is
    permitted under the Building Code.

Occupancy Permit is defined as any written or
    electronic document, however styled, whether final, provisional or temporary,
    provided by the chief building official (as defined in the
Building Code Act
) or a person designated by the chief
    building official, that evidences that permission to occupy the home under the
Building Code

has been granted.

[4]

The application judge concluded that, notwithstanding that an Occupancy
    Permit dated June 27, 2019 was in fact provided for the unit by the
    respondents lawyer to the appellants lawyer on July 9, 2019, on a plain
    reading of the
Building Code
,
an occupancy permit was not
    required for the purchasers unit because a condominium development with
    multiple floors does not fall within the definition of a residential building
    that requires an occupancy permit. She concluded that the June 27, 2019 letter
    from the builders representative was sufficient: at para. 28.

[5]

The appellants assert that there was no evidence to support the
    application judges conclusion that no occupancy permit was required under s.
    1.3.3.4 of Part C of the
Building Code
[1]
, which was based on
    statements of the respondents counsel during oral argument, and that the
    application judge erred in failing to consider s. 1.3.3.4 in the context of the
    other provisions of s. 1.3.3. During oral argument on the appeal we asked the
    respondents counsel to take us to the evidence that supported this conclusion.
    He referred to photos of the buildings under construction and drawings in the
    record to assert that no occupancy permit was required, but suggested at the
    same time that the evidence was not as clear as the application judge
    suggested.

[6]

It is unnecessary for the disposition of this appeal to determine
    whether an occupancy permit was required. Even if the application judge was
    correct in concluding that no occupancy permit was required, we agree with the
    appellants that she made a palpable and overriding error in her conclusion that
    the June 27 letter was delivered before closing, on June 26, along with the
    pre-delivery inspection form, and that this satisfied the requirement under s.
    9(a) of the Tarion Addendum.

[7]

There is no evidence that the letter was delivered to the purchasers
    as required by the terms of the Tarion Addendum on June 26, or at any time
    until the responding materials were delivered in these proceedings. Rather, the
    evidence of the builders representative was that the letter, together with the
    key to the appellants unit, was placed in an envelope that was available for
    pick up on closing. The respondents counsel refers to an answer to an
    undertaking with respect to evidence that the letter had been delivered, which simply
    states that, according to the respondents real estate solicitor, all
    purchasers solicitors were informed that the key and any final instructions
    would be available upon receipt of all closing documents and funds. At no
    time during the exchange between the parties counsel with respect to whether
    an occupancy permit was required did the respondents counsel indicate that
    such a letter existed or ensure that it was delivered. To the contrary, he took
    the position that the unit was cleared for occupancy by the City and that the
    appellants lawyer should satisfy himself that occupancy was permitted.

[8]

Accordingly, we allow the appeal. The respondent failed to comply with
    s. 9(a) of the Tarion Addendum until July 9, 2019, and the appellants were
    entitled to set a new date for the interim closing. The evidence is that they
    attempted to do so, and had provided evidence that they were in funds and ready
    to close once the occupancy permit was provided.

[9]

The order below and the order for costs against the appellants are set
    aside. The appellants are entitled to an order declaring that the respondent
    breached the APS by failing to close the interim purchase and sale of their
    unit, with a reference to determine damages.

[10]

The
    appellants are entitled to their costs of the appeal, which we fix at $7,500,
    inclusive of HST and disbursements, and costs of the proceedings in the court
    below fixed at $15,000 plus HST.

Paul Rouleau J.A.

K.
    van Rensburg J.A.

L.B.
    Roberts J.A.





[1]

The
    application judge referred to s. 1.3.3.3, which the parties agree was in fact a
    reference to s. 1.3.3.4, which was relied on by the respondent at the hearing
    of the application.


