



COURT OF APPEAL FOR ONTARIO

CITATION: Danesh v. Vahed, 2021 ONCA 189

DATE: 20210329

DOCKET: C68465

Lauwers, Trotter and Zarnett JJ.A.

BETWEEN

Mohmmad Danesh

Plaintiff
(Respondent)

and

Elahe Vahed and Remax
    Crossroads Realty Inc.

Defendants
(Appellant/Respondent)

and

Elahe Vahed

Plaintiff by Counterclaim
(Appellant)

and

Remax Crossroads Realty
    Inc., Mohmmad Danesh, and Michael Bury

Defendants to the Counterclaim
(Respondents)

Shahzad Siddiqui, for the appellant Elahe Vahed

Esmaeil Mehrabi, for the respondent Mohmmad Danesh

Amanda Gibson, for the respondent Remax Crossroads
    Realty Inc.

Michael Kestenberg, for the respondent Michael Bury

Heard: March 19, 2021 by videoconference

On appeal from the
    order of Justice Mario D. Faieta of the Superior Court of Justice, dated June
    5, 2020 with reasons reported at 2020 ONSC 3525.

REASONS FOR DECISION

I.

Introduction

[1]

The appellant, Elahe Vahed, was found by the motion judge to have breached
    an agreement to sell her condominium unit to the respondent, Mohammad Danesh. The
    motion judge ordered that the deposits Mr. Danesh had paid be returned to him, that
    Ms. Vahed pay damages to Mr. Danesh, and that Ms. Vaheds counterclaim against Mr.
    Danesh and the respondents, Michael Bury and Remax Crossroads Realty Inc. (Re/Max)
    (her lawyer and the realtor, respectively, on the transaction) be dismissed.

[2]

Ms. Vahed appeals each of the dispositions except the dismissal of the
    counterclaim against Re/Max; however, she seeks leave to appeal the costs award
    made against her in favour of Re/Max.

[3]

The dispositions by the motion judge were made on motions for summary
    judgment brought by Mr. Danesh, Mr. Bury, and Re/Max. Ms. Vahed submits that
    the motion judge erred in granting summary judgment because there were genuine
    issues requiring a trial, and that he erred in principle in making a cost award
    against her in favour of Re/Max. She seeks to support her argument, in part, with
    fresh evidence, which she requests that this court consider.

[4]

For the reasons that follow, we dismiss the motion to admit fresh
    evidence, deny leave to appeal costs and dismiss the appeal.


II.

Background

[5]

In May 2018, Ms. Vahed entered into an agreement of purchase and sale
    (the APS) to sell a condominium unit in Markham, Ontario to Mr. Danesh. Mr.
    Danesh paid a $20,000 deposit to be held by Re/Max. Closing was originally
    agreed to occur on July 28, 2018, but was later extended, by a signed agreement
    between the parties, to September 6, 2018 on payment of a further $20,000
    deposit by Mr. Danesh to Ms. Vahed.

[6]

On September 5, 2018, Ms. Vahed retained Mr. Bury to act for her on the
    sale. On that date, Mr. Daneshs lawyer told Mr. Bury that Mr. Danesh would not
    be able to close on September 6 due to a problem in obtaining financing. On
    September 6, Mr. Daneshs lawyer asked Mr. Bury for an extension of the closing
    date to September 25, 2018. Mr. Bury asked Ms. Vahed for instructions.

[7]

On September 6, by two emails, Ms. Vahed instructed Mr. Bury to agree to
    an extension to September 25, 2018, on two conditions. The first was that Mr.
    Danesh pay the carrying costsmortgage payments, maintenance fees and taxeson
    the property until September 25. The second was that if Mr. Danesh wont close
    by 25
th
September I need the undertakings from the lawyers that he
    acknowledge that he is going to [lose] $40,000 deposits to me automatically.

[8]

Mr. Burys evidence was that on September 6, he relayed Ms. Vaheds
    terms to Mr. Daneshs lawyer and obtained his agreement to the terms. Mr. Bury
    then signed and  hand-delivered a letter to Mr. Daneshs lawyer, which stated:

Further to the email exchange with your office today and telephone
    discussions, I am writing to confirm that Ms. Vahed has agreed to an extension
    of the closing in the above matter to September 25
th
, 2018 with
    conditions (i.e. payment by your client of the carrying costs (Mortgage
    $1338.16, Maintenance Fee $347.20, Taxes $173 until closing, forfeiture of
    deposit if the deal does not close) and you have agreed to these terms.

The carrying cost amounts in the letter were those provided
    by Ms. Vahed to Mr. Bury.

[9]

It does not appear that Mr. Bury provided a copy of this letter to Ms.
    Vahed. She emailed him on September 7, pointing out that the closing date had
    passed and she had received no reply. He advised her by email on September 8
    that he had been told by Mr. Daneshs lawyer that Mr. Danesh would be ready to
    close early next week and had agreed to carry any costs as discussed.

[10]

Mr. Bury gave evidence that he spoke to Ms. Vahed on September 11. She
    expressed doubt about whether the deal would go ahead. He told her that the
    purchaser had already agreed to her terms and that the closing had been
    extended to September 25. On the same date, Mr. Bury sent her a copy of an
    email from Mr. Daneshs lawyer confirming that Mr. Danesh was ready to close,
    asking for a statement of adjustments and closing package, and stating, I must
    bring your attention to this fact that [your] client agreed to extend the
    closing date to the 25
th
day of September, 2018.

[11]

Ms. Vahed responded that Mr. Bury had not told her anything about an
    extended closing until two days after the September 6 date, and pointed out
    that his September 8 email did not talk about a September 25 closing or confirm
    that there had been agreement to her condition that there be an undertaking
    that Mr. Danesh would lose the deposit if he did not close on September 25. On the
    same date, Ms. Vaheds listing agent emailed Mr. Bury asserting that the
    purchaser had defaulted in closing on September 6, that there was no agreement
    to extend on that date, and suggesting that Mr. Bury was helping the purchaser
    to bully Ms. Vahed.

[12]

After sending further unanswered emails to Ms. Vahed, Mr. Bury emailed her
    on September 14 stating that, as he was not hearing back from her, he assumed
    that his services were no longer required.

[13]

Ms. Vahed engaged another lawyer, Mr. Vakili, who corresponded with Mr.
    Daneshs lawyer. Ultimately, on September 25, 2018, Mr. Danesh, through his
    lawyer, advised that he was ready, willing, and able to close. On the same
    date, Ms. Vahed, through Mr. Vakili, advised that the APS had expired on
    September 6, and that no valid extension agreement had been made.

[14]

The deal did not close. Re/Max returned the first $20,000 deposit to Mr.
    Danesh. This litigation ensued. Mr. Danesh claimed that Ms. Vahed had breached
    the agreement by not closing on September 25, and that he was entitled to
    return of the deposits and damages. Ms. Vahed claimed that there was no extension
    beyond September 6, and that she was entitled to the deposits and damages. She
    also claimed against Mr. Bury for not following her instructions and against Re/Max
    for releasing the deposit to Mr. Danesh.

III.

The Motion Judges Decision

[15]

The motion judge was satisfied that the case was appropriate for summary
    judgment, as the facts could be efficiently and fairly determined on the basis
    of the affidavits, cross-examinations, and extensive documentary record
    before him.

[16]

The motion judges pivotal finding was that the letter dated September
    6, 2018 from Mr. Bury to Mr. Daneshs lawyer recorded the agreement they made
    and was signed and delivered by Mr. Bury on September 6. He rejected Ms. Vaheds
    argument that there was a genuine issue requiring a trial about whether the
    letter was a fabrication created sometime after September 6.

[17]

The motion judge therefore concluded that the closing date under the APS
    had been extended until September 25, when it was breached by Ms. Vahed refusing
    to close. Accordingly, Mr. Danesh was entitled to the return of the deposits he
    paid and to his out of pocket expenses concerning the aborted transaction. Ms.
    Vaheds counterclaim against Mr. Danesh for breach of the APS failed. Her
    counterclaim against Re/Max concerning its release to Mr. Danesh of the deposit
    it held similarly failed. Finally, her counterclaim against Mr. Bury failed.
    The motion judge was satisfied that Mr. Bury acted in accordance with her
    instructions in extending the closing to September 25, there was no evidence of
    any damage caused by any wrongdoing by Mr. Bury, and although punitive damages
    had been claimed, that was not a stand alone cause of action.

[18]

The motion judge awarded costs to each of Mr. Danesh, Mr. Bury, and Re/Max.

IV.

The Fresh Evidence Motion

[19]

Ms. Vahed seeks to introduce fresh evidence on appeal. She argues that
    it shows that Mr. Bury was provided, by Re/Max, with documents concerning the
    transaction before September 5, 2018 and that this would be relevant to his
    credibility.

[20]

The fresh evidence is not admissible. It could have been discovered with
    reasonable diligence before the hearing below. As well, in our view, it is not
    germane to the central issues and therefore could not have affected the result.


V.

The Appeal

[21]

Ms. Vahed argues that the motion judge erred in deciding the claims
    between her and Mr. Danesh, and between her and Mr. Bury, by summary judgment.
    She argues that there are genuine issues requiring a trial.

[22]

We disagree. As between Ms. Vahed and Mr. Danesh, whether there was any
    genuine issue requiring a trial turned on the September 6 letter confirming an
    agreement to extend the closing from September 6, when Mr. Danesh was not ready
    to close, to September 25, when Mr. Danesh was ready to close and Ms. Vahed was
    not. Ms. Vaheds position was that the September 6 letter was an after the fact
    fabrication, and that therefore there was nothing in writing agreeing to an
    extension of the closing date made on September 6.

[23]

The motion judge was entitled to find that there was no genuine issue requiring
    a trial about whether the letter was a fabrication, rather than a letter
    written and signed as it purported to be that was delivered to Mr. Daneshs
    lawyer on September 6. Although Ms. Vahed says there were red flags
    concerning the letter  primarily the lack of its timely provision to Ms. Vahed
    and the absence of specific reference to it in certain subsequent emails, the
    motion judges reasons show that he was alive to the relevant considerations.
    He gave cogent reasons for the conclusion he reached:

I find that Vaheds allegation that the Extension Letter was
    fabricated does not raise a triable issue. First, it would require this Court
    to find that both Bury and McKee, being officers of the Court, had lied about
    the existence of the Extension Letter and its delivery. Second, it ignores
    Vaheds own evidence that she was told by Bury on September 8, 2018 that Danesh
    had agreed to carry the additional costs of the Condominium. Third, it ignores
    McKees letter to Bury dated September 11, 2018 where he acknowledges that
    Vahed had agreed to extend the closing date. Fourth, it ignores Burys email to
    Vahed on September 11, 2018 where he told her that Danesh had agreed to the
    extension with penalties.

[24]

The decision of a motion judge about whether there is a genuine issue
    for trial is entitled to deference on appeal:
Hryniak v. Mauldin
, 2014
    SCC 7, [2014] 1 S.C.R. 87 at para. 81. We are not persuaded that the motion
    judge committed a palpable and overriding error that would justify appellate
    intervention.

[25]

Ms. Vahed also argues that there is a genuine issue requiring a trial
    about whether Mr. Bury breached his duties by not following Ms. Vaheds
    instructions in recording the terms on which the closing would be extended in
    his September 6 letter. She says there is a difference between a lawyers
    undertaking regarding forfeiture of deposits, which she instructed him to
    obtain, and the language of the September 6 letter. We disagree.

[26]

First, the issue is irrelevant as far as Mr. Danesh is concerned, as
    there is no suggestion that he or his lawyer were aware of any limitation on
    Mr. Burys authority to agree to an extension on the terms set forth in the
    September 6 letter.

[27]

Second, as it pertains to the claim against Mr. Bury, we see no
    material, operative difference between what Mr. Bury was told to obtain  undertakings
    from the lawyers that he acknowledge that he is going to [lose] $40,000
    deposits to me automatically

and the language of
    the September 6 letter forfeiture of deposit if the deal does not close and
    you have agreed to these terms. Accordingly, there is no error in the motion
    judges finding that in obtaining the agreement recorded in the September 6
    letter, Bury acted in accordance with Vaheds instructions.

[28]

However, even if there were a difference, there was no evidence that it
    caused any loss to Ms. Vahed. A difference about who was responsible to ensure Ms.
    Vahed received the deposits would matter only if she became entitled to the them
    because Mr. Danesh breached the APS and failed to close on September 25.
.
However, it was Ms. Vahed who failed to close  thus she never obtained an
    entitlement to the deposits.

[29]

Ms. Vahed does not appeal the dismissal of her claim against Re/Max. But
    she argues that Re/Max should not have been awarded costs against her because
    Re/Max prematurely released the deposit to Mr. Danesh without a court order or
    a mutual release. We see no merit in this argument.

[30]

Ms. Vahed advanced a substantial damages claim against Re/Max for its
    alleged wrongful release of the deposit, which the motion judge dismissed. Ms.
    Vahed was never prejudiced by the premature release of the deposit. The motion
    judge found that Re/Max had replaced the funds it prematurely released to Mr.
    Danesh  if Ms. Vahed had been found to be entitled to the deposit, she would
    have been paid. In any event, since she was not entitled to it, she suffered no
    loss due to Re/Maxs conduct.

[31]

In these circumstances, we see no error in principle in the motion judge
    having made a costs award in favour of Re/Max in light of its successful
    defence of the claim against it.

VI.

Conclusion

[32]

The motion to introduce fresh evidence is dismissed. Leave to appeal the
    costs award in favour of Re/Max is denied. The appeal is dismissed.

[33]

The respondents are entitled to costs payable by Ms. Vahed as follows:
    to Mr. Danesh, $7,500; to Mr. Bury, $7,500; and to Re/Max, $5,000. These
    amounts are inclusive of disbursements and applicable taxes.

P. Lauwers J.A.

Gary Trotter J.A.

B. Zarnett J.A.


