



COURT OF APPEAL FOR ONTARIO

CITATION: Hatami v. 1237144 Ontario Inc., 2018 ONCA 1061

DATE: 20181219

DOCKET: C65058

Rouleau, van Rensburg and Roberts JJ.A.

BETWEEN

Shahnaz Hatami

Applicant (Appellant)

and

1237144 Ontario Inc.

Respondent (Respondent)

Elena E. Mazinani, for the appellant

J. Anthony Caldwell, for the respondent

Heard and released orally: December 12, 2018

On appeal from the judgment of Justice P.J. Monahan of
    the Superior Court of Justice dated January 26, 2018, with reasons reported at
    2018 ONSC 668.

REASONS FOR DECISION

[1]

The appellant appeals a summary judgment dismissing her claim for
    recovery of a $200,000 deposit she paid for the purchase of a property at 291 Eglinton
    Avenue East in Toronto. The property was zoned R4 Az4, a residential zoning in
    which office space is permitted, and had been used by the respondent as
    commercial office space.

[2]

These proceedings were commenced as an application. Pursuant to interlocutory
    orders, the matter proceeded to a hearing by way of summary judgment with the
    motion judge hearing oral evidence from three witnesses. The motion judge
    dismissed the appellants claim that the respondent had misrepresented the
    zoning of the property. He further concluded that there was no breach of
    agreement by the respondent and he also found that there had been anticipatory
    breach by the appellant that entitled the respondent to retain the deposit.
    Finally, he rejected the appellants argument that it was unconscionable for
    the respondent to retain the deposit.

[3]

On appeal, the appellant does not take issue with the motion judges
    conclusion on unconscionability. The appellant argues first that the motion
    judge erred in failing to find that the respondents agent negligently
    represented that the property was zoned commercial when in fact it was zoned
    residential. In her submission, the negligent misrepresentation was such that
    the respondent could not rely on the agreement of purchase and sale and could
    not therefore retain the deposit. We disagree.

[4]

The motion judge found as a fact that the agent never represented the
    property as being zoned commercial. This finding was available on the record
    before the motion judge. We do not accept that the motion judge committed a palpable
    and overriding error in so finding. In making his finding, he considered all of
    the relevant evidence, including the text message that the appellant seeks to
    rely on in her argument before this court.

[5]

The appellant further argues that the motion judge erred in failing to
    find that the respondent was not ready, willing and able to close the
    transaction, which is a requirement in order for the respondent to retain the
    deposit. We disagree.

[6]

At the motion for summary judgment, the appellant argued that the respondent
    was in breach of the agreement of purchase and sale by failing to respond to
    its requisitions to certify on or before closing that the transaction was not
    subject to HST and to provide a survey. The motion judge rejected this argument.
    He concluded that the agreement of purchase and sale did not impose such
    obligations and that the failure to respond to the requisitions in respect of
    these matters would not have relieved the appellant of its obligation to close
    the transaction.

[7]

In any event, the motion judge was satisfied on the evidence that the
    respondent had provided a survey and that it had properly refused to sign a
    certificate that HST was not applicable. He found that due to the use of the
    property, the respondent believed that HST was payable on the sale. These
    findings and conclusions are fully supported by the evidence. The motion
    judges analysis at paragraphs 43-50 of his reasons explain his findings and
    conclusions. These are unassailable.

[8]

Finally, the appellant argues that the motion judge erred in finding
    that the appellants anticipatory breach entitled the respondent to retain the
    deposit. She maintains that the respondent chose to keep the agreement alive
    and, thereafter, breached the agreement by failing to set a new closing date
    and by making a defective tender. We disagree.

[9]

Contrary to the appellants submissions, the motion judge found that in
    response to the appellants repudiation, the respondent clearly elected to
    terminate the agreement for breach of contract, retain the deposit and preserve
    its right to sue for damages. This was clear from the email sent late on the
    day of closing by the respondents counsel. The respondents tender the next
    day was, as found by the motion judge, simply done out of an abundance of
    caution and was not necessary.

[10]

For
    these reasons, the appeal is dismissed. Costs to the respondent fixed in the
    amount of $9,000 inclusive of disbursements and HST.

Paul Rouleau J.A.

K. van Rensburg J.A.

L.B. Roberts J.A.


