



COURT OF APPEAL FOR ONTARIO

CITATION: Scott v. Forjani, 2022 ONCA 30

DATE: 20220119

DOCKET: C69335

Doherty, Tulloch and Thorburn
    JJ.A.

BETWEEN

George Leslie Scott and Harriet
    Brav-Baum

Plaintiffs/Defendants by Counterclaim

(Respondents in Appeal)

and

Shoreh Forjani a.k.a. Shoren
    Konstantin

Defendant/Plaintiff by Counterclaim

(Appellant in Appeal)

Hossein Niroomand, for the appellant

Gregory Weedon, for the respondents

Heard: January 6, 2022 by
    video conference

On appeal from the judgment of Justice James
    F. Diamond of the Superior Court of Justice, dated March 18, 2021 and reported
    at 2021 ONSC 1996.

REASONS FOR DECISION


[1]

The appellant agreed to purchase the respondents
    property for $1,450,000. Under the terms of the Agreement of Purchase and Sale
    (APS), the transaction would close some 13 months later.

[2]

The appellant eventually refused to close. She
    alleged the respondents had failed to disclose certain latent defects and had
    failed to maintain the property.

[3]

The respondents relisted the property and
    eventually sold it for $1,120,000.

[4]

The respondents sued the appellant for failing
    to close the transaction. They sought:

·

forfeiture of the $72,500 deposit;

·

damages reflecting the difference between the
    price the appellant had agreed to pay ($1,450,000) and the price the
    respondents were eventually able to obtain for the property ($1,120,000); and

·

certain legal expenses.

[5]

The respondents first moved for forfeiture of
    the appellants deposit, claiming the appellant had acted in bad faith when she
    did not close the transaction. Leiper J. held the appellant had breached the
    APS and acted in bad faith. She ordered the deposit forfeited. The appellant
    did not appeal from the order of Leiper J., although it appears she has challenged
    that order in a separate motion that is not before this court.

[6]

After Leiper J. determined the appellant had
    breached the APS, the respondents moved for summary judgment on the issue of damages.
    The respondents argued they were entitled to the difference between the price
    at which the appellant had agreed to purchase the property and the market value
    of the property when the respondents actually sold it. The respondents argued
    that the price at which they sold the property was an accurate reflection of
    its market value. The appellant maintained the respondents had failed to
    demonstrate any damages arising out of the appellants failure to close the
    transaction. The appellant also advanced a counterclaim. That counterclaim was
    not part of the summary judgment motion.

[7]

The motion judge had only one issue before him 
    did the respondents establish their damages and, more specifically, had the
    respondents failed to mitigate their damages when they sold the property for
    considerably less than the amount the appellant had agreed to pay for the
    property?

[8]

The motion judges determination of the sole
    issue before him turned on whether the price at which the respondents sold the
    property ($1,120,000) reflected the true value at the time of that sale. The
    appellant tendered affidavits from three experts who provided opinions
    indicating the value of the property was well above the price at which the
    respondents had eventually sold the property. The appellant chose not to lead
    any evidence about the qualifications or experience of those experts.

[9]

The motion judge declined to give the opinions of
    the appellants experts any weight. He held, that without evidence of their experience
    and background, he could not give their opinions any evidentiary value. The
    motion judge went on to consider the rest of the evidence adduced on the
    motion. He concluded, at para. 44:

It is clear from the record that market
    forces, and not anything done or not done by the plaintiffs [respondents],
    dictated the sale price of the property in the fall of 2018. The value of the
    property is typically what a purchaser is willing to pay for it. Poor market
    conditions were responsible for the reduced purchase price in this case. There
    is no evidence to the contrary, and the best and most reliable evidence is what
    actually happened from July to November 2018.

[10]

The motion judge proceeded to grant judgment in
    the amount claimed.

[11]

The appellant submits the motion judge erred in
    law by ruling the affidavits of the experts inadmissible. As I read the
    motion judges reasons, he did not rule the affidavits inadmissible, but rather
    concluded that he could give no weight to those opinions without any evidence setting
    out the experts experience and training.

[12]

Parties are required to put their best
    evidentiary foot forward on summary judgment motions. The appellant failed to
    do so. It was open to the motion judge to conclude the evidence offered by the
    appellant on the issue of the value of the property at the relevant time had no
    probative force. That finding left only the evidence of the respondents, most
    notably the evidence of the actual price at which the property was sold. The
    motion judge made a finding as to the value of the property based primarily on
    that evidence.

[13]

Counsel for the appellant also argued that the
    motion judge erred in drawing an adverse inference from the appellants refusal
    to allow one of her witnesses to answer questions about his expertise and
    qualifications. Counsel submits the appellant was unrepresented when she
    refused to allow the witness to answer the questions and that the trial judge
    should have taken that into account before drawing an adverse inference against
    her.

[14]

The appellant offered the affidavit of the
    expert to support her claim that the respondents sold the property well under
    market value. As a matter of common sense, it is plain and obvious that the
    experts experience and training would be relevant to the weight to be
    assigned to the opinion. The appellant refused to allow the witness to answer
    questions that were obviously relevant to the weight to be attached to the
    opinion offered by that witness. The most obvious explanation for the refusal
    to answer the question is that the answer would not help the appellants claim
    the property was sold under value. The logic of the adverse inference drawn from
    the appellants refusal to allow the witness to answer those questions was not dependent
    on whether the appellant was legally trained.

[15]

The appeal is dismissed. Funds in the amount of
    $308,568.84, presently being held in trust by the Accountant of the Superior
    Court, pursuant to an order of this court, are to be released to counsel for
    the respondents forthwith.

[16]

The respondents are entitled to their costs of
    the appeal in the amount of $15,000, all in. Counsel agree that the $15,000
    attributable to costs is to come from the $308,568.84 held in trust, and is not
    in addition to that amount.

Doherty
    J.A.

M.
    Tulloch J.A.

J.A.
    Thorburn J.A.


