



COURT OF APPEAL FOR ONTARIO

CITATION: 2329131 Ontario Inc. v. Carlyle
    Development Corp., 2014 ONCA 132

DATE: 20140219

DOCKET: C57641

Gillese, Epstein and Benotto JJ.A.

BETWEEN

2329131 Ontario Inc. and
    2327451 Ontario Inc.

Plaintiffs (Respondents)

and

Carlyle Development Corp. and Carlyle
    Consolidated Holdings Inc.

Defendants (Appellants)

Alvin Meisels, for the appellants

Jonathan Kulathungam, for the respondents

Heard: February 6, 2014

On appeal from the judgment of Justice Katherine E.
    Swinton of the Superior Court of Justice, dated August 21, 2013, with reasons
    reported at 2013 ONSC 4876, 34 R.P.R. (5th) 161.

ENDORSEMENT

[1]

The appellants were the vendors of a property and entered into an
    agreement to sell it to the respondents.  The closing date was extended several
    times.  The parties tried to close on August 3, 2012, but the appellants had
    not provided certain documents that the respondents bank required before it
    would release the funds.

[2]

The appellants took the position that they were not obliged to deliver
    the documents because certain requisition were made past the deadline, time was
    of the essence, and the respondents had failed to deliver the funds required
    for closing on the closing date.

[3]

The respondents successfully moved for partial summary judgment and
    specific performance.

[4]

The appellants say the motion judge erred by:

1.

drawing
    inferences of fact that were inconsistent with the evidence or  palpably wrong;
    and

2.

finding that
    this was an appropriate case for summary judgment.

[5]

We accept neither submission and would dismiss the appeal.

THE FIRST ISSUE

[6]

The first issue is squarely disposed of by a single fact: the motion
    judge made her findings on the explicit basis that she assumed the appellants
    version of events was the correct one.

[7]

Further, the facts were largely undisputed and most of the numerous
    criticisms made about the motion judges factual findings are immaterial to the
    outcome of the case.

[8]

The motion judge concluded that the time is of the essence clause had
    been waived, but she added that even if she were wrong in reaching this
    conclusion, the appellants could not rely on the clause.  This was because, on
    any version of events, the appellants were not ready to close on August 3.  They
    had failed to tender several documents that were required as conditions of
    closing.

[9]

While the appellants argue that the respondents waived all conditions
    when they offered to close in escrow, we reject this submission.  Even on the
    appellants submission, waiver could only have taken place if the appellants
    had accepted the respondents offer to close in escrow.  The appellants refused
    to even contemplate this offer.

[10]

The
    motion judge correctly held that, as the parties were not ready to close on
    August 3, the appellants could only reinstate the time is of the essence
    clause in these circumstances by giving the respondents reasonable notice of
    the new closing date and stating that time was of the essence for this new date:
    see
Domicile Developments Inc. v. MacTavish

(1999), 45 O.R.
    (3d) 302 (C.A.), at pp. 307-308.  There is no dispute that the appellants did
    not do those things.

THE SECOND ISSUE

[11]

We
    see nothing in the second issue.

[12]

In
    our view, the motion judges conclusion that none of the issues before her
    required a trial is unassailable.  She had a full appreciation of the evidence
    and was satisfied that there were no genuine issues requiring a trial.

[13]

A
    consideration of
Hryniak v. Mauldin
, 2014 SCC 7, which was decided
    after the motion below, reinforces the motion judges conclusion.
Hryniak

encourages the use of a summary judgment motion to resolve cases in an
    expeditious manner, provided that the motion can achieve a fair and just adjudication
    (para. 4).  We are satisfied that the decision below is a fair and just
    adjudication.

DISPOSITION

[14]

Accordingly,
    the appeal is dismissed, with costs to the respondents fixed at $18,000, all
    inclusive.

E.E. Gillese
    J.A.

Gloria Epstein J.A.

M.L. Benotto J.A.


