



COURT OF APPEAL FOR ONTARIO

CITATION: Bronfman-Thomas v. Carreno, 2013
    ONCA 566

DATE: 20130916

DOCKET: C56948

MacPherson, MacFarland and Rouleau JJ.A.

BETWEEN

Brenda Bronfman-Thomas aka Brenda Thomas

Applicant (Appellant)

and

Sonia Carreno and Simon Davidson Jennings

Respondents (Respondents in Appeal)

Application Pursuant to
    Rules 14.05(3)(d) and (h) of the
Rules of Civil Procedure
, and Section
    97 of the
Courts of Justice Act
, R.S.O. 1990, c. C. 43.

Peter C. Wardle, for the appellant

Heidi Rubin and Adrienne Lei, for the respondents

Heard and released orally:  September 11, 2013

On appeal from the judgment of Justice Sidney N. Lederman
    of the Superior Court of Justice, dated March 27, 2013.

ENDORSEMENT

[1]

The appellant purchaser sought the return of her $100,000 deposit, paid
    by her in relation to a real estate transaction that did not close in July,
    2011. The purchase price was $1,510,000.

[2]

After entering the Agreement of Purchase and Sale, the appellant
    discovered the existence of an open building permit in relation to some
    construction on the subject property in 2007.

[3]

In his reasons for judgment, the application judge carefully reviewed
    the facts including the exchange of letters between the solicitors on the date
    that had been scheduled for the closing.

[4]

He concluded, in our view correctly, that the requisition in relation to
    the open building permit could be "satisfactorily answered by a commitment
    to provide title insurance as contemplated by the Agreement of Purchase and
    Sale".

[5]

The trial judge was faced with the opinions of two real estate experts
    who did not agree on the issue about whose obligation it was to obtain and
    produce the title policy of insurance. The application judge accepted Mr.
    Radomsky's opinion which was supported by Ms. Kee's evidence in relation to the
    related underwriting of such a policy. This clearly was a matter for the
    application judge. We see no error in his acceptance of the Radomsky opinion
    over that of Mr. Troister.

[6]

The appellant's lawyer was alerted to the fact that title insurance was
    available by fax sent at 3:55 p.m. - the fact that she did not monitor her fax
    machine after 4:00 p.m. and did not therefore see Mr. Zarowsky's fax until
    after 6:00 p.m. is not the fault of Mr. Zarowsky.

[7]

As the application judge found, the vendors were ready to close and in a
    position to do so prior to 6:00 p.m. until which time the Agreement of Purchase
    and Sale was still in full force and effect.

[8]

The Agreement could and ought to have closed before the 6:00 p.m.
    deadline. The purchaser's failure to respond to Mr. Zarowsky's proposal caused
    the transaction to fail as the application judge found.

[9]

We see no error. The application judge's conclusion accords with the
    evidence before him which he accepted.

[10]

The
    appeal is dismissed.

[11]

As
    agreed by counsel, the costs of the appeal are to the respondents on a partial
    indemnity scale fixed in the sum of $8,500.00 inclusive of disbursements and
    HST.

J.C.
    MacPherson J.A.

J.
    MacFarland J.A.


Paul
    Rouleau J.A.


