



COURT OF APPEAL FOR ONTARIO

CITATION: Kennelly v. Hashemi, 2018 ONCA 558

DATE: 20180618

DOCKET: C64513

Hoy A.C.J.O., Rouleau and Benotto JJ.A.

BETWEEN

Christopher Kennelly and
    Jupiter Equities, LLC

Respondents

and

Hassan Hashemi

Appellant

Hassan Hashemi, self-represented

Scott W. Beattie, for the respondents

Heard: June 11, 2018

On appeal from the
    judgment of Justice R.A. Lococo of the Superior Court of Justice, dated September
    26, 2017.

REASONS FOR DECISION

[1]

The appellant, Hassan Hashemi, appeals the judgment of the application
    judge declaring that he is in breach of the agreement dated January 26, 2017
    (the Agreement) for the sale to and purchase by the respondents of a property
    in Niagara-on-the-Lake (the Property); and that the respondent, Jupiter
    Equities, is entitled to the return of the deposit paid under the Agreement.

[2]

On the court day before the appeal was heard, the appellant advised that
    he would seek a 60-day adjournment of the appeal to obtain transcripts and hire
    counsel. He renewed this request at the opening of the hearing. The respondents
    opposed his request for an adjournment.

[3]

After hearing submissions from the parties, we declined to grant the
    adjournment sought.

[4]

The appellant was aware since at least March 14, 2018 that his counsel
    would seek to be removed from the record if he were not paid forthwith. The
    appeal was originally scheduled to be heard on April 25, 2018. Before removing
    himself from the record on April 26, 2018, appellants counsel secured an
    adjournment to todays date to provide the appellant with time to retain new
    counsel or to prepare to represent himself. Counsel had filed and served a
    factum on behalf of the appellant before he obtained an order removing him from
    the record.

[5]

After his counsel removed himself from the record, the appellant filed
    notice that he would represent himself. The appellant submitted that he would
    prefer to retain counsel but that prospective counsel required more time to
    prepare and to obtain transcripts. He advised that if the requested adjournment
    were granted, he proposed to retain the counsel who represented him on the
    application below.

[6]

The appellant provided no evidence of any steps taken to retain counsel,
    his ability to retain counsel, or that counsel on the application is prepared
    to act for him. This absence of evidence was significant given the several
    changes of counsel in the period leading up to the scheduled closing date of
    the transaction. Further, given the arguments in his factum and the fact that
    there was no oral evidence on the application, we did not see why transcripts
    of the attendance before the application judge were required for the appeal. In
    these circumstances, we concluded that a further adjournment was not
    appropriate and proceeded to consider the appeal on the merits.

[7]

The appellant was not the original vendor under the Agreement. He was
    the tenant in possession of the Property and the assignee of the third mortgage
    on the Property. The assignor of the third mortgage had served a notice of
    power of sale before the Agreement was concluded. The parties and the
    application judge accepted that the Agreement applied in the circumstances and,
    for the purposes of our analysis, we assume the same.

[8]

The appellant submits that the application judge erred in finding him in
    breach of the Agreement. He argues that he was entitled under the Agreement to
    close the sale of the Property at any time up to February 28, 2017, and,
    contrary to the application judges conclusion, he was therefore entitled to
    extend the closing date after failing to complete the transaction at the
    agreed-upon closing time of 2:30 p.m. on February 24, 2017, and did not breach
    the Agreement by failing to complete the transaction at that time.

[9]

We reject this argument.

[10]

The
    Agreement provided that the closing date was February 14, 2017, but that the
    seller had the option to delay the closing up to two weeks. The seller
    extended the closing date to February 23, 2017 and then the parties agreed that
    the closing time would be 2:30 p.m. on February 24, 2017 (the Closing Time).
    The appellant did not attempt to further extend the closing date before the
    Closing Time. The Agreement provides that time is of the essence and it is clear
    that the appellant was not ready, willing, and able to close at the Closing
    Time.

[11]

We
    agree with the application judge that the respondents ceased to be obligated to
    complete the purchase of the Property and were entitled to the return of their
    deposit when the appellant failed to complete the purchase and sale transaction
    at the Closing Time. The appellant was not entitled to unilaterally extend the
    closing date under the Agreement after he failed to complete the transaction at
    the Closing Time.

[12]

Accordingly,
    the appeal is dismissed. The respondents are entitled to their costs of the
    appeal, fixed in the amount of $10,000, including HST and disbursements.

Alexandra Hoy
    A.C.J.O.

Paul Rouleau J.A.

M.L. Benotto J.A.


