





CITATION:
Schneeberg v. Talon International Development
          Inc., 2011 ONCA 687



DATE: 20111108



DOCKET: C52928



COURT OF
APPEAL
FOR ONTARIO



Blair, Watt
          and Epstein JJ.A.



BETWEEN



Richard E.
          Schneeberg



Applicant
          (Respondent)



and



Talon
          International Development Inc.



Respondent
          (Appellant)



David M. Goodman, for the respondent



Mark A. Klaiman, for the appellant



Heard: June 1, 2011



On appeal from the order of
          Justice Sandra Chapnik of the Superior Court of Justice dated October 12, 2010,
          with reasons reported at 2010 ONSC 5559
.



Epstein J.A.:

I.

OVERVIEW

[1]

This appeal concerns the interpretation of an agreement of purchase
    and sale whereby the respondent agreed to purchase a condominium unit from the appellant.
     The dispute involves whether the respondent is entitled to terminate the
    contract on the basis that the appellant failed to provide occupancy and close
    the transaction on the specific closing date set out in the agreement.

[2]

On August 27, 2004, the appellant, Talon International
    Development Inc. (the Vendor), and the respondent, Richard E. Schneeberg (the
    Purchaser), entered into an agreement for the purchase of a condominium unit (the
    Agreement).  The condominium  then yet to be constructed  is located in the
    Trump International Towers.

[3]

Pursuant to the terms of the Agreement, the Purchaser paid
    deposits totalling $212,700 to the Vendors solicitors, in trust, to the credit
    of the purchase price of $709,000.

[4]

The Agreement specified that the Purchaser would assume occupancy
    and the sale would close on the closing date of March 20, 2009, or such
    extended or accelerated date pursuant to the terms of the Agreement. The transaction
    did not close on March 20, 2009, as the unit was not ready for occupancy.

[5]

On November 20, 2009, the Purchaser commenced an application for (1)
    a declaration that the Vendor had breached the Agreement by its failure to
    provide occupancy by the specified date, and (2) the return of all paid deposits,
    together with accrued statutory interest pursuant to the
Condominium Act,
    1998
,

S.O. 1998, c. 19.

[6]

The application judge granted the relief requested.

[7]

The Vendor appeals on the grounds that the application judge
    erred in holding that the Agreement, construed as a whole and in its commercial
    context, did not provide the Vendor with the right to extend the March 20, 2009
    occupancy and closing date.  The Vendors primary submission on this appeal is that
    the Agreement, properly interpreted, provides that closing shall take place
    March 20, 2009, subject to extensions necessary to bring the unit to the point
    where it is substantially completed and ready for occupancy.

[8]

The Vendor also argues that the application judge erred by treating
    the closing date as a fundamental term of the Agreement, the breach of which
    allowed the Purchaser to terminate the transaction, and by failing to consider whether
    conduct on the Purchasers part constituted waiver in respect of the March 20,
    2009 closing date.

[9]

I would dismiss the appeal. I agree with the application judge
    that the Agreement does not provide the Vendor with what would amount to an
    unlimited unilateral right to delay closing. I further agree with the
    application judges conclusions that the Vendors failure to meet the closing
    date entitled the Purchaser to the relief sought, and that the facts do not
    substantiate a finding that the Purchaser had waived his right to terminate the
    Agreement.

II.

THE AGREEMENT

[10]

The Agreement contains several terms relevant to the closing date
    and any changes that may be made to it.

[11]

Paragraph 2 of the Agreement defines the closing date:

2.  (a)       The
    Purchaser shall assume occupancy of the Unit, subject to the terms of the Hotel
    Use Maintenance Agreement described in sub-paragraph 4(b) herein on March 20,
    2009, or such extended or accelerated date pursuant to the terms hereof that
    the Unit is substantially completed by the Vendor for occupancy by the
    Purchaser in accordance with Paragraph 13 hereof (the Closing Date);

(b)            The transfer of
    title to the Unit shall be completed on the later of the Closing Date or a date
    established by the Vendor in accordance with Paragraph 13 hereof (the Unit
    Transfer Date);

[12]

Paragraph 13 also contemplates extension or acceleration of the
    closing date:

13. (a)      The
    transaction of purchase and sale shall be completed on the Closing Date or any
    extension thereof as may be permitted under this Agreement, at which time
    vacant possession of the unit will be given to the Purchaser. The Vendor shall
    be entitled upon giving at least sixty (60) days written notice to the
    Purchaser or his solicitor, to accelerate the Closing Date provided the Unit is
    substantially complete and fit for occupancy on such earlier date.

Upon registration
    of the Condominium, the Vendors solicitor shall not less than ten (10) days
    after registration of the Creating Documents
[1]
designate a date as the Unit Transfer Date by delivery of written notice of
    such date to the Purchaser or his/her solicitor.

[13]

Paragraph 20 outlines a right to terminate the Agreement:

20.            If the Vendor
    shall be unable to complete the Unit for occupancy by the Closing Date, as may
    be extended from time to time pursuant to this Agreement, then, unless the
    parties hereto otherwise agree in writing, the Purchaser shall have the right
    to terminate this Agreement by notice in writing to the Vendor or the Vendors
    Solicitor and all monies to the extent provided for in Paragraph 19 hereof,
    shall be returned to the Purchaser and this Agreement shall be terminated and
    the Vendor shall not be liable to the Purchaser for any damages arising as a
    result thereof and shall have no further obligation hereunder. If the Unit is
    substantially completed for occupancy by the Closing Date, or any
    acceleration/extension thereof in accordance with this Agreement, this
    transaction shall be completed on such date notwithstanding that the Vendor has
    not fully completed the Unit or the common elements and the Vendor shall
    complete such outstanding work required by this Agreement within a reasonable
    time after the Closing Date, having regard to weather conditions and the availability
    of labour and materials. The Unit shall be deemed to be substantially completed
    when the interior work has been finished to permit occupancy. The Purchaser
    acknowledges that failure to complete the common elements on or before the
    Closing Date shall not be deemed to be a failure to complete the Unit.

[14]

Paragraph 23 defines what is meant by substantial completion for
    the purposes of the Purchaser assuming occupancy:

23. (a)      The
    Unit shall be deemed to be substantially completed when the interior work has
    been finished to the minimum standards allowed by the Municipality so that the
    Unit may be lawfully occupied notwithstanding that there remains other work
    within the Unit and/or the common elements to be completed.  The Purchaser
    shall not occupy the Unit until the Municipality has permitted same or
    consented thereto, if such consent is required and the Closing Date shall be
    postponed until such required consent is given.  The Purchaser shall not
    require the Vendor to provide or produce an occupancy permit, certificate or
    authorization from the Municipality, and the Purchaser shall satisfy
    himself/herself in this regard.  The Purchaser acknowledges that the failure to
    complete the common elements before the Closing Date shall not be deemed to be
    failure to complete the Unit, and the Purchaser agrees to complete this
    transaction notwithstanding any claim submitted to the Vendor and/or to the
    Warranty Program in respect of apparent deficiencies or incomplete work
    provided, always, that such incomplete work does not prevent occupancy of the
    Unit as, otherwise, permitted by the Municipality.

(b)                        If
    the Unit is substantially complete and fit for occupancy on the Closing Date,
    as provided for in subparagraph (a) above, but the Creating Documents have not
    been registered, (or in the event the Condominium is registered prior to the
    Closing Date and sale documentation has yet to be prepared, the Purchaser shall
    pay to the Vendor a further amount on account of the Purchase Price specified
    in paragraph 1(b) hereof without adjustment save for any pro-rated portion of
    the Occupancy Fee described and calculated in Schedule C and the Purchaser
    shall occupy the Unit on the Closing Date pursuant to the Occupancy Licence
    attached hereto as Schedule C.

[15]

The Agreement contains no other provision that relates to any
    extension to the closing date or the terms that govern the right of one party
    to impose any extension on the other.

[16]

The Agreement also does not contain a

time
    of the essence clause.

III.

FACTUAL BACKGROUND

[17]

The Vendor wrote to the Purchaser on November 15, 2006, some 26 months
    after the Agreement was entered into, advising that the unit would be available
    for occupancy no later than December 31, 2010 and, in any event, no later than
    24 months from the closing date of March 20, 2009.

[18]

The letter included a proposed amendment to the Agreement  the
    Vendor asked the Purchaser to agree to the insertion of the following provision,
    after the first sentence of para. 13(a):

If the Vendor shall be unable to provide occupancy
    on the Closing Date for any reason whatsoever, the Vendor may extend the
    Closing Date one or more times as may be required by the Vendor, all extensions
    in the aggregate not to exceed twenty-four (24) months.

[19]

On April 24, 2008, the Purchaser wrote to the Vendor seeking to terminate
    the Agreement due to financial difficulties.

[20]

Several months later, in November 2008, the Vendor sent the
    Purchaser notification of an extension of the tentative closing date of March
    20, 2009 to November 1, 2010.

[21]

On August 14, 2009, the Purchaser wrote to the Vendor, questioned
    the Vendors right to extend the closing date, unilaterally, and advised the
    Vendor that he was rejecting the proposed extension.

[22]

The Purchaser then commenced this application.

IV.

THE DECISION OF THE APPLICATION JUDGE

[23]

The application judges analysis of the key issue  whether the
    Vendor has a right to extend closing in these circumstances  begins with the
    observation that the Agreement, in a number of places, contemplates extensions
    to the closing date, as may be permitted by the Agreement.  But the Agreement
    contains no terms pertaining to the granting of or process involved in
    extending the closing date.   The application judge describes this as common
    ground.

[24]

After noting that the Agreement must be construed according to
    its terms, the application judge, in keeping with the shared position of
    counsel, herself observes that the Agreement contains no term that specifically
    permits the occupancy closing date to be extended in the event of construction
    delays: [t]he Agreement simply allows extensions pursuant to these terms and
    there are none.

[25]

In paras. 22 and 23, the application judge makes further
    observations about the terms of the parties agreement:

Not only does the Agreement in the within case not
    give the [Vendor] a unilateral right to extend the occupancy date, but
    paragraph 20 gives the [P]urchaser a right to terminate the Agreement if the [V]endor
    is unable to complete the unit for occupancy by the original closing date of
    March 20, 2009. The right is not absolute since the provision also contains the
    words as may be extended from time to time pursuant to the Agreement. As
    above noted, however, these words are somewhat inane as nothing in the
    Agreement permits or describes an extension procedure. There are no means of
    extending the closing date in the event of unforeseeable delay.

Upon reviewing the provisions of the particular
    contract before me in their entirety, I find that while the parties
    contemplated some extensions, they also specifically gave the [P]urchaser a
    right to terminate the Agreement, absent written consent of the parties to
    extend the closing. The [Vendor] could not unilaterally extend after March 20,
    2009. This conclusion gains some support from the fact that the [Vendor] attempted
    to have the [Purchaser] agree to amend the Agreement to make time of the
    essence and to permit it to extend the closing date.

[26]

After explaining her clear path to the conclusion that, according
    to the Agreement, the Vendor was not permitted to extend the closing date
    unilaterally, the application judge goes on to hold that even if it were
    determined that the Agreement was ambiguous in this respect, the Agreement must
    be construed against the interests of the Vendor on the basis of the
contra proferentem
rule.

[27]

In the light of these conclusions and her rejection of the Vendors
    arguments relating to the nature of the breach and to waiver, the application
    judge granted the relief sought by the Purchaser.

V.

THE ISSUES

[28]

The issues raised on this appeal are:

i)

whether the application judge erred in finding that the Agreement allowed
    the Purchaser to terminate the transaction based on the Vendors failure to
    close on March 20, 2009; and

ii)

whether the application judge erred by failing to consider the issue of
    waiver.

VI.

ANALYSIS

i)

Interpretation of the Agreement

[29]

The first issue  whether the Purchaser is entitled to terminate
    the Agreement and claim relief under s. 20  turns on whether the Agreement permitted
    the Vendor to unilaterally extend the closing date.

[30]

As the application judge noted, the parties contemplated extensions
    to the closing of the transaction. It is clear they therefore intended that the
    Agreement would provide the Vendor with the right to extend the closing date. 
    However, there were to be terms governing the exercise of that right.

[31]

These observations bring into focus the divide between the
    parties: whether the Agreement, in fact, contains a provision setting out the
    circumstances under which the Vendor was entitled to extend closing.

[32]

The Purchaser submits that the application judge correctly
    proceeded on the basis that the Agreement contained no conditions governing the
    Vendors right to extend closing.  This deficiency, says the Purchaser, means
    that the Vendors failure to close the transaction by March 20, 2009 triggered
    his right under para. 20 to terminate the Agreement and have his deposits
    returned.

[33]

Before this court, counsel for the Vendor takes a different tack
    than that taken before the application judge.  Now, rather than concede that
    the Agreement contains no terms governing the circumstances under which the
    Vendor can delay closing, the Vendors argument is that the application judge
    erred in not appreciating that the terms governing its right to extend the
    closing date are found in para. 2(a); the wording of which specifically links
    the Vendors right to delay closing to the readiness of the unit for occupancy.

[34]

In support of its position the Vendor now takes before this
    court, it makes two main arguments.

[35]

First, the Vendor submits that on a plain reading of para. 2(a),
    the parties agreed that closing would take place on March 20, 2009, or on
    another date, conditional on the units being substantially completed for
    occupancy as defined in para. 23.  Put more simply, the submission is that the
    parties agreed to set March 20, 2009 as the target date for closing.  However,
    if the transaction could not close on that date (because it was not fit for
    occupancy), the Vendor would have an ongoing right to extend the closing date
    pending the units being suitable for the Purchaser to occupy.

[36]

Second, the Vendor asserts that by interpreting the Agreement in
    a way that did not allow for closing date extensions, the application judge
    failed to take into account the delays inherent in the business of buying and
    selling newly-built condominium units.  She thereby erred in failing to apply
    one of the basic principles of contractual interpretation: that when parties
    have reduced their accord to writing, in order to understand their intent, the document
    must be construed in a manner that takes into account its commercial context.

[37]

I cannot accept the interpretation that the Vendor now seeks to
    advance. I come to this conclusion based on the following analysis.

[38]

This court has set about explaining the approach to interpreting
    contracts in a number of recent decisions.  In
Dumbrell v. Regional Group of
    Companies Inc
., 2007 ONCA 59, 85 O.R. (3d) 616, a case involving the
    interpretation of an employment agreement, Doherty J.A. offered the following
    approach, at para. 53:

The text of the written agreement must be read as a
    whole and in the context of the circumstances as they existed when the
    agreement was created. The circumstances include facts that were known or
    reasonably capable of being known by the parties when they entered into the
    written agreement: see
BG Checo International Ltd. v. British Columbia Hydro
    and Power Authority
, [1993] 1 S.C.R. 12 at 23-24,
H.W. Liebig & Co.
    v. Leading Investments Ltd
., [1986] 1 S.C.R. 70 at 80-81, La Forest J.;
Prenn
    v. Simmonds
, [1971] 1 W.L.R. 1381 at 1383-84 (H.L.); Staughton, How Do the
    Courts Interpret Commercial Contracts?, [(1998) 58
Cambridge L.J
. 303],
    at 307-308.

[39]

In his discussion of the applicable legal principles, at para.
    54, Doherty J.A. highlights his view that this contextual consideration is not
    dependent on a finding that the words themselves suggest some ambiguity, but is
    an integral part of the interpretive process:

A consideration of the context in which the written
    agreement was made is an integral part of the interpretative process and is not
    something that is resorted to only where the words viewed in isolation suggest
    some ambiguity. To find ambiguity, one must come to certain conclusions as to
    the meaning of the words used. A conclusion as to the meaning of words used in
    a written contract can only be properly reached if the contract is considered
    in the context in which it was made: see McCamus,
The Law of Contracts
(Toronto: Irwin Law, 2005) at 710-11.

[40]

Doherty J.A. acknowledged, at para. 55, that [t]here is some
    controversy as to how expansively context should be examined for the purposes
    of contractual interpretation, but clarified that [i]nsofar as written
    agreements are concerned, the context, or as it is sometimes called the factual
    matrix, clearly extends to the genesis of the agreement, its purpose, and the
    commercial context in which the agreement was made.

[41]

In
Commercial Alcohols Inc. v.
    Suncor Energy Products Inc.
, 2008 ONCA 261, 165 A.C.W.S. (3d) 448, at para.
    33, Laskin J.A. specifically endorsed the
Dumbrell
approach to
    contractual interpretation in describing the process as follows:

The goal of contractual interpretation is to
    determine the intent of the parties when the contract was made. To do so, the
    court looks at the words the parties used and the context in which the contract
    was signed. Goudge J.A. concisely summarized the proper approach to contractual
    interpretation in his reasons in
Kentucky Fried Chicken
    Canada v. Scott's Food Services Inc.
, [1998] O.J. No. 4368 at para. 25
    (C.A.):

While the task of interpretation must begin with
    the words of the document and their ordinary meaning, the general context that
    gave birth to the document or its "factual matrix" will also provide
    the court with useful assistance.

See also a more extensive discussion of this
    approach by Doherty J.A. in
Dumbrell v. Regional Group of
    Companies

(2007), 85 O.R. (3d) 616
at paras. 47-56 (C.A.).

This approach has been relied on in many other post-
Dumbrell
decisions of this court: see
Ventas, Inc. v. Sunrise Senior Living Real
    Estate Investment Trust
, 2007 ONCA 205, 85 O.R. (3d) 254;
3869130 Canada Inc. v. I.C.B. Distribution Inc.
, 2008 ONCA 396, 167 A.C.W.S. (3d) 82;
RF Real Estate
    Inc. v. Rogers Telecom Holdings Inc.
, 2009 ONCA 899, 265 O.A.C. 329;
Hawley
    v. North Shore Mercantile Group
, 2009 ONCA 679, 255 O.A.C. 143;
Zeubear
    Investments Ltd. v. Magi Seal Corp.
, 2010 ONCA 825, 103 O.R. (3d) 578; and
SeaWorld Parks and Entertainment LLC v. Marineland of
    Canada Inc.
, 2011 ONCA 616.

[42]

I find further support for this approach in the comment of
    Cromwell J. in
Tercon Contractors Ltd. v. British Columbia (Transportation
    and Highways)
, 2010 SCC 4, [2010] 1 S.C.R. 69, at para. 64, where he stated
    that a key principle of contractual interpretation is that the words of one
    provision must not be read in isolation but should be considered in harmony
    with the rest of the contract and in light of its purpose and commercial
    context.

[43]

I therefore begin with the words the parties used to record their
    agreement.

[44]

It is clear from the language used in paras. 2(a), 13, and 20 of
    the Agreement that the parties intended that there would be terms governing the
    Vendors right to extend the date for closing.  It is equally clear that there
    is a gap in the Agreement; no such terms can be found in the document.

[45]

The wording contained in paras. 13 and 20, that contains general
    references to the Vendors entitlement to extend the closing date as
    ...permitted under this Agreement... or ...pursuant to this Agreement... neither
    creates a right to extend the closing date nor grants a
unilateral
right
    to the Vendor to extend the closing date. All it does is reinforce the
    conclusion that there is a deficiency in the wording of the Agreement.

[46]

However, I agree with counsel for the Vendor that para. 2(a) is
    distinguishable from paras. 13 and 20 in that its language identifies the
    Purchasers right to occupancy with the units readiness.  As I have said, it
    is this connection that the Vendor relies on in its submission that the need
    for the unit to be ready for occupancy is, in fact, the condition that governs
    the Vendors right to extend the closing date.

[47]

In my view, there are several reasons why this interpretation cannot
    stand.

[48]

First, a reading of the contract as a whole leads to the
    conclusion that the wording of para. 2(a) cannot be interpreted so as to
    provide the Vendor with the right to extend closing until the unit is
    substantially fit for the Purchasers occupancy.  If that were the intention,
    the words and the structure of the paragraph would be much different.  The
    paragraph would clearly set out that the Vendors right to extend closing was
    limited to the existence of an incomplete unit.  And it does not. To suggest it
    does, is, with respect, a stretch.

[49]

Furthermore, the Vendors position runs afoul of the basic legal
    principle that, where possible, all words in an agreement must be given meaning:
    see
Ventas
, at para. 24.

[50]

Here lies the Vendors chief problem: to interpret the Agreement
    as providing it with what would amount to a unilateral right to delay the
    closing would render meaningless the term contained in para. 20 of the
    Agreement. As previously indicated, this paragraph gives the  Purchaser the
    right to terminate the Agreement  unless the parties agree otherwise in
    writing  [i]f the Vendor shall be unable to complete the Unit for occupancy
    by the Closing Date, as extended from time to time, pursuant to this
    agreement. Under the interpretation the Vendor advances, if on March 20, 2009
    the unit was not substantially completed for occupancy, then the closing date would
become
the date the unit is substantially completed for occupancy. Were
    this the case, it would be impossible for the closing date to precede the date
    of units substantial completion, and the Purchasers right of termination in
    para. 20 could never be triggered.

[51]

Second, when the proposed transaction is considered in its
    commercial context, the Vendors suggested interpretation cannot, as I see it,
    be what the parties intended.

[52]

There is no dispute over the fact that purchases and sales of
    condominiums are commercial transactions within an industry uniquely plagued by
    delays.  These delays are caused by the market, as the sale of units in a new
    development dictates the availability of financing, by the vagaries in the
    construction process, and by the complexities associated with the registration
    process required by the
Condominium Act.
Delays in the closing of
    condominium units are expected.  They are part of the business of developing
    condominium projects and, it follows, part of purchasing a newly-constructed
    unit.

[53]

Against this background, it is quite understandable that the
    parties expressed their accord in such a way as to contemplate extensions to
    the closing date.  However, it would be absurd to interpret the Agreement as
    giving the Vendor the right to extend closing on a basis that is not only unilateral,
    but also unlimited.  Among other problems, such a right would be open to
    manipulation and abuse.

[54]

Since the Agreement, read as a whole and in its commercial context,
    cannot bear the interpretation suggested by the Vendor, this ground of appeal
    must fail.

[55]

Finally, I would add that, like the application judge, I do not
    see this as a case involving an ambiguous contract.  I see an unambiguous
    contract that contains a gap  an obvious lack of a term to provide guidance to
    the parties in the event that an extension to the closing date is sought.  However,
    if this gap could be said to create an ambiguity, then the principle of
contra
    proferentem
would resolve that ambiguity in favour of the Purchaser: see
Hillis
    Oil and Sales Ltd. v. Wynns Canada, Ltd.
, [1986] 1 S.C.R. 57, at pp.
    68-69.

Time of the Essence Clause

[56]

The Vendor submits that the absence of a time of the essence clause
    is relevant to the issue of the nature of the breach, if any, and therefore, to
    the remedy available to the Purchaser. The contention is that, since the
    Agreement contains no such clause, a time stipulation operates as a warranty
    rather than a condition. Therefore, while the Vendors failure to perform in a
    timely manner may entitle the Purchaser to damages, it does not release him from
    his obligations under the contract. It follows that the failure to close on
    March 20, 2009 constitutes the breach of a warranty only; the Agreement still
    exists and is subject to completion within a reasonable time.

[57]

I reject this argument. While the Agreement contains no time of
    the essence clause, para. 20 specifically provides the Purchaser with a right
    to terminate the transaction should there be a delay in the units completion
    for occupancy beyond March 20, 2009.  In my view, the absence of a time of the
    essence clause is irrelevant as the Purchaser is invoking an enumerated contractual
    right.

ii)

Waiver

[58]

The Vendor also submits that the application judge did not
    consider the issue of waiver.

[59]

In my opinion, this argument too has no merit.

[60]

At para. 25 of her reasons, the application judge addresses the
    issue of waiver, saying that [t]he factual circumstances do not substantiate a
    finding of anticipatory breach of contract or waiver by the [Purchaser] of his
    right to terminate the Agreement.

[61]

In my view, this finding accords with the application of the
    legal principles to the facts.  In
Saskatchewan River Bungalows Ltd. v.
    Maritime Life Assurance Co.
, [1994] 2 S.C.R. 490,
at
    p. 500, it was held that

[w]aiver will be found only where the evidence demonstrates
    that the party waiving had (1) a full knowledge of rights; and (2) an
    unequivocal and conscious intention to abandon them. Here, the Purchasers
    refusal to agree with the Vendors proposed amendment to the Agreement supports
    a finding quite opposite to the notion that the Purchaser consciously abandoned
    his entitlement to rely on his rights under the Agreement.  Any delay in the
    Purchasers communicating his decision to exercise his right to terminate the
    Agreement does not change the clear position he took and does not afford the
    Vendor an opportunity to rely on waiver.

[62]

I see no reason to disturb the
    application judges conclusion on the issue of waiver.

VII.

CONCLUSION

[63]

The proper functioning of the complex and rapidly growing
    condominium industry depends on agreements that set out all rights and
    obligations of the parties in a clear fashion.  Unfortunately, the wording of
    the Agreement failed to do this.  And in these circumstances I see no basis for
    imposing on the Purchaser a term that was not in the Agreement.

[64]

The consequences of the Vendors failure to provide occupancy and
    close the transaction in accordance with the provisions of the Agreement are
    set out in para. 20 of the Agreement.  Since, in my view, the Purchaser did
    nothing to disentitle him to the remedies provided in the Agreement, he is
    entitled to the relief sought.

VIII.

DISPOSITION

[65]

I would therefore dismiss the appeal.

[66]

I would award the Purchaser his costs of this appeal in the
    amount of $7,500.00 inclusive of disbursements and applicable taxes.

RELEASED:

NOV -8 2011                                 G.J.
    Epstein J.A.

RAB                                              I
    agree R.A. Blair J.A.


I agree David Watt J.A.





[1]
The application judge misquoted the Agreement in her reasons, referring to
    Condominium Documents. The actual wording of the Agreement references
    Creating Documents. This misstatement has no bearing on the merits of the
    appeal.


