



COURT OF APPEAL FOR ONTARIO

CITATION: Country Wide Homes Upper Thornhill
    Estates Inc. v. Ge, 2020 ONCA 400

DATE: 20200622

DOCKET: C67712

Doherty, Hourigan and Fairburn
    JJ.A.

BETWEEN

Country Wide Homes Upper Thornhill Estates Inc.

Plaintiff

(Respondent)

and

Wei
    Ge

Defendant

(Appellant)

Derrick M. Fulton, for the appellant

Emilio Bisceglia and Sonja Turajlich,
    for the respondent

Heard: In Writing

On
    appeal from the judgment of Justice Janet Leiper of the Superior Court of Justice,
    dated October 24, 2019.

REASONS FOR DECISION

Overview

[1]

On October 4, 2016, the parties signed an
    agreement of purchase and sale (APS) that forms the subject of this appeal.
    The respondent company is the vendor, developing a high-end neighbourhood
    called The Enclave. The appellant agreed to buy Lot 66. In accordance with
    the terms of the APS, the respondent built the appellants home. About a week
    before the date scheduled for closing, just over two years after the APS had
    been signed, the appellant claimed that the agreement was null and void.

[2]

The respondent sued the appellant for specific
    performance and brought a motion for summary judgment for breach of the APS.
    The motion judge granted the motion, concluding that the APS is valid and
    enforceable and that the respondent is entitled to specific performance of that
    contract. She gave the appellant 120 days to complete the transaction in
    accordance with the terms of the APS.

[3]

This is an appeal from that decision.

The Alleged Errors in Granting Summary
    Judgment

[4]

We start with the standard of review. Absent an
    extricable error of law, deference is owed to findings on a summary judgment
    motion. This includes deference to factual determinations. Decisions as to whether
    there are genuine issues for trial are questions of mixed fact and law, and
    require palpable and overriding error before this court will interfere:
Hryniak
    v. Mauldin
, 2014 SCC 7
,
    [2014] 1 S.C.R. 87, at paras. 81-84.

[5]

We see no such errors.

[6]

The appellants primary issue on appeal rests
    with the motion judges conclusion that the materials filed by the appellant
    did not provide any foundation for setting aside the agreement. That
    conclusion is summarized in the following passage from the motion judges
    reasons:

There is no issue with the agreement, its
    contents, or the steps taken after it was signed. The main complaints appear to
    be with the fact that it is a lengthy document, signed by a non-English
    speaker, and without solicitor review. Yet, the [appellant] does not say in his
    affidavit that he did not understand the contents: his words are more in the
    nature of argument than evidence.



I agree with the [respondent]: there is no
    legal foundation for a defence that the agreement is void. The complaints are
    vague. No caselaw has been provided to establish that any of the complaints in
    the affidavit would give rise to a setting aside of the agreement. The
    purchaser has not established any misrepresentation.

[7]

The appellant argues that the motion judge was
    wrong in her conclusion that there was no evidence supporting the suggestion
    that the agreement was void. We disagree.

[8]

The appellant filed three affidavits on the
    motion. Two of them were sworn by counsel, largely focusing on a dispute over
    whether the motion should go ahead or be adjourned to a later date. The final
    affidavit was sworn by the appellant. The motion judge characterized the
    appellants affidavit in the following manner:

[The purchasers] affidavit does not allege
    any details of any misrepresentation. It complains of the fact that there was a
    warning in the agreement concerning water and the vapour barriers. It also
    complains that he did not have an option for solicitor review. His pleadings,
    which were adopted as part of his evidence in the affidavit alleged
    misrepresentation, but again provided no details as to what the
    misrepresentation was.

[9]

A review of the appellants affidavit supports
    the motion judges characterization of its contents.

[10]

The appellant points to the fact that the APS contained
    a clause, required by the Ministry of the Environment, that warned about the
    ground water in the subdivision, and remediation efforts of lands within the
    development. The appellant argues that the import of that clause was not
    explained to him. As a Mandarin speaking purchaser, he says that he did not
    understand the clause. He also argues that he was pressured into the purchase, having
    been told that an offer would only be considered if there were no conditions
    attached. Accordingly, the appellant suggests that he was deprived of the
    ability to have a solicitor review the agreement.

[11]

The motion judge correctly concluded that these
    arguments did not support the suggestion that there had been misrepresentations.

[12]

In any event, the appellant had a Mandarin-English
    speaking real estate agent with whom he was able to fully communicate. He is
    not a novice to the real estate market. He initialed every page of the APS and
    its schedules, including the pages containing the Ministry of Environment warning.
    He also specifically initialled the crossing out of the condition involving
    solicitor review. Finally, each page of the APS contained the following block
    letter phrase: oral representations do not form part nor can they amend this
    agreement. These factors undermine the appellants position that he did not
    know and was misled about the contents of the APS.

[13]

The appellant also argues that the motion judge
    erred by failing to consider the impact that expert evidence may have had on
    calculating the decrease in property value arising from the Ministry of
    Environment warning. Yet, the appellant did not file any expert evidence on the
    motion, as would have been his right. He cannot now complain that the motion
    judge did not take into account something that may or may not materialize in
    the future. He was required to put his best foot forward on the motion.

[14]

The appellant also maintains that the
    respondents affidavit evidence was insufficient because the affiant, the Vice
    President of the respondent company, was not in the room when the APS was
    signed. There is no merit to this suggestion. The respondents affiant
    familiarized himself with all documents and had discussions with the real
    estate agent who was present at the time of signing. The affiant also states
    his source of knowledge wherever it is based upon information from a third
    party.

[15]

The appellant also claims that there was a
    breach of natural justice because he was denied an adjournment. The history of
    that denial is informative as to why this ground of appeal also fails.

[16]

Less than a week before it was scheduled to be
    heard, the appellant asked that the motion date be vacated. That request was
    denied. Then on the eve of the motion, the appellant filed materials in support
    of an application to adjourn. That application was denied.

[17]

The motion went ahead, but was adjourned for
    completion more than two months later. During that time, the appellant
    attempted to have the Divisional Court review the motion judges decision
    denying the adjournment request. The Divisional Court dismissed that
    application. On the return date for the motion, over the objection of the
    respondent, the appellant was permitted to file new affidavit evidence and a
    factum, all of which was taken into account by the motion judge.

[18]

In these circumstances, we are satisfied that
    the appellant was afforded natural justice.

[19]

The appellant also contends that, because there
    are a number of purchasers who refused to close their properties in the same
    subdivision, that the summary judgment in this case will risk inconsistent
    verdicts in the future. We do not agree. The other transactions will turn on
    their own details.

The Alleged Error Relating to Remedy

[20]

Finally, the appellant claims that the motion
    judge erred in ordering specific performance of the APS. He says that: (a)
    there was insufficient evidence justifying specific performance; and (b) the
    motion judge misapprehended the evidence on this point. Again, we see no error
    in the motion judges reasons.

[21]

The motion judge correctly stated the law
    respecting when the court should consider ordering specific performance and the
    fact that this remedy is available to vendors:
Matthew Brady Self Storage Corporation
    v. InStorage Limited Partnership
, 2014 ONCA 858, 125 O.R. (3d) 121, at
    paras. 33-34, leave to appeal refused, [2015] S.C.C.A. No. 50. As set out in
Matthew
    Brady
, at para. 40, looking at the contract broadly, and the transaction
    as a whole, the key factors are:

(i) whether on the facts as a whole, damages
    will afford the vendor an adequate and complete remedy or whether a money award
    will be sufficient to purchase substitute performance; (ii) whether the vendor
    has established some fair, real and substantial justification for the granting
    of specific performance; and, (iii) whether the equities as between the parties
    favour the granting of specific performance.

[22]

The motion judge took into account all of the
    facts, including that there is now a flood of inventory in the housing
    development, making it difficult to mitigate damages or quantify a fair amount
    for the failure to close. Indeed, as of the date of the motion, no houses in
    The Enclave had been sold for about a year.

[23]

Moreover, the motion judge concluded that there
    was no evidence that the property was a carbon copy of other properties without
    any unique characteristics and, in fact, there was evidence of a variety of
    changes and customizations. As noted by the motion judge, in accordance with
    the APS, the respondent customized the home at the appellants request as it
    was being built. While the appellant refers to these as cosmetic changes, the
    motion just judge came to a factual conclusion to the contrary. We defer to
    that finding of fact. As she pointed out, there were no fewer than five
    customizations, including the expansion of a bedroom and use of finishes
    selected by the appellant. As the motion judge said: the bump out of the
    bedroom, and particular finishes on a $3 million property, although not
    necessarily highly unusual, reflected a set of qualities decided upon by the
    purchaser.

[24]

We note that in responding to the alleged error
    in the motion judges reasons for specific performance, the respondent points
    to her having relied upon
Landmark of Thornhill Limited v. Jacobson
,
[1995] 25 O.R. (3d) 628, in support of the proposition that the defaulting
    party bears the onus of showing a lack of uniqueness. The appellant has not
    suggested that the motion judge erred in that statement of law. As the matter
    was not argued before us, we decline to comment, but simply emphasize the
    holding in
Semelhago v. Paramadevan
,
[1996] 2 S.C.R. 415, decided
    a year after
Jacobson,
where the court found that specific performance should
     not be granted as a matter of course
absent evidence that the property is
    unique to the extent that its substitute would not be readily available

    [Emphasis added]. See also:
Matthew Brady
,
at para. 31.

[25]

Regardless,
the
    motion judges reasons do not turn on her view of the onus. Rather, they turn
    on her findings of fact, which include the determination that, at this stage,
    the $3 million home is unique and that damages would not be an adequate or
    complete remedy or substitute for specific performance.

[26]

We see no error in that conclusion.

Application to Admit Fresh Evidence

[27]

On the eve of the appeal, the appellant asked
    for an adjournment because he said that he had critical evidence necessary to
    a just determination of the appeal. The appellant was granted the opportunity
    to file an application to admit fresh evidence. That application has now been
    received and considered.

[28]

The appellant filed an affidavit suggesting that
    Lot 66, along with all of the houses subject to similar litigation, has been
    listed for sale. The appellant argues that the listing of Lot 66 for sale is
    inconsistent with the respondents position on specific performance as it
    demonstrates the respondents belief that damages were capable of being
    assessed.

[29]

The appellant asks that the fresh evidence be
    admitted and the appeal be adjourned so that he can develop that evidence
    through disclosures and examinations, in furtherance of its interest and that
    of the litigation as a whole inclusive of this appeal.  The appellant argues
    that, through the development of the evidence, it will become clear that
    specific performance in not an available remedy and the integrity of the
    respondent will be adversely reflected upon, something that may inform other
    aspects of the litigation.

[30]

There is no need to hear from the respondent on
    this point. There is clear evidence of an email exchange between counsel,
    strongly suggesting that the listing of Lot 66 involved an administrative
    error, one that was immediately remedied once it was brought to the
    respondents attention. In other words, Lot 66 is not longer on the market. In
    any event, even if the listing of Lot 66 was not through administrative error,
    the brief listing of the property does not constitute evidence that is
    sufficiently cogent to have impacted the original decision granting specific
    performance or any other aspect of the decision.

[31]

The fresh evidence application is dismissed.

Conclusion

[32]

The appeal is dismissed.

[33]

The appellant obtained a stay of the specific
    performance order pending appeal. Costs of that motion were reserved to the
    panel hearing the appeal. We would not impose costs on the fresh evidence
    motion as the respondent was not required to respond. Taking the motion to stay
    and the appeal into account, the appellant will pay costs in the amount of $10,000
    to the respondent, inclusive of taxes and disbursements.

Doherty J.A.

C.W. Hourigan J.A.

Fairburn J.A.


