



COURT OF APPEAL FOR ONTARIO

CITATION:
    Hannivan v. Wasi, 2021 ONCA 187

DATE: 20210325

DOCKET:
    C68206

Feldman,
    Paciocco and Coroza JJ.A.

BETWEEN

Paul
    J. Hannivan and Pamela J. Hannivan

Plaintiffs/Moving
    Parties

(Respondents)

and

Muhammad Wasi
and RE/MAX Aboutowne Realty Corp.

Defendants/Responding
    Parties

(
Appellant
)

AND BETWEEN

Muhammad
    Wasi

Plaintiff
    by Counterclaim/Responding Party

(Appellant)

and

Paul
    J. Hannivan and Pamela J. Hannivan

Defendants
    by Counterclaim/Moving Parties

(Respondents)

Dheeraj Bhatia, for the appellant

Mark A. De Sanctis, for the respondents

Heard: March 8, 2021 by video
    conference

On appeal
    from the judgment of Justice Clayton Conlan of the Superior Court of Justice,
    dated February 20, 2020, with reasons reported at 2020 ONSC 1060.

REASONS FOR DECISION

BACKGROUND

[1]

On March 20, 2017, the appellant
    purchaser and the respondent vendors executed an agreement of purchase and sale
    (APS) for a residential property located in Oakville, Ontario. The purchase
    price was $1,155,000. The purchaser paid a $50,000 deposit. Both parties were
    represented by real estate agents throughout the process.

[2]

The APS had a closing
    date of August 18, 2017. All requisitions affecting title to the property were
    to be submitted by August 1, 2017 at 6:00 p.m. The purchaser did not submit any
    requisitions before the deadline expired.

[3]

After regular business
    hours on August 17, 2017, the day before the closing, counsel for the purchaser
    sent correspondence to the vendors real estate lawyer. The lengthy
    correspondence set out various concerns with the transaction. Of note to this
    appeal is the purchasers allegation that the vendors failed to comply with a
    term of the APS concerning a property survey. That term, found in Schedule A to
    the APS, is as follows:

The Seller agrees to provide, at the Sellers
    own expense, not later than two weeks, an existing survey of said property
    showing the current location of all structures, buildings, fences,
    improvements, easements, rights-of-way, and encroachments affecting said
    property. The Seller will further deliver, on completion, a declaration
    confirming that there have been no additions to the structures, building,
    fences, and improvements on the property since the date of this survey.

[4]

In the correspondence,
    counsel for the purchaser claimed that the APS was null and void due to the vendors
    failure to comply with the survey term. They demanded that the purchasers
    deposit be returned to him in full. On August 18, 2017, the vendors
    solicitor replied, stating that the purchaser had breached the APS and thereby
    forfeited his deposit.

[5]

The transaction never
    closed. The vendors relisted the property for sale, ultimately selling it to
    another buyer for less than the original purchase price in the APS. The vendors
    sued the purchaser for the difference in the purchase price, plus other
    damages. The purchaser counterclaimed for, primarily, the return of his
    deposit.

[6]

The vendors moved for
    summary judgment on their claim and the counterclaim. On February 20, 2020, a
    motion judge granted the motion in favour of the vendors on both the primary
    claim and counterclaim.

[7]

The motion judge held
    that the purchaser repudiated the transaction and was not justified in doing
    so. The motion judge observed that the vendors provided to the purchasers real
    estate agent a document purporting to be a survey, nearly five months before
    the correspondence on behalf of the purchaser was sent declaring the APS null
    and void. He noted that the purported survey was signed by an Ontario land surveyor
    and dated. The motion judge recognized that this survey was bare-bones and
    did not show the current location of the items listed in the survey term of the
    APS. In his view, however, the purchaser was not entitled to repudiate the deal
    on this basis because a more detailed, original survey was in no way essential
    to the transaction.

[8]

The purchaser asks this
    court to set aside the motion judges decision. He raises several grounds of
    appeal.

ANALYSIS

[9]

First, the purchaser
    argues that the motion judge did not consider the vendors failure on the
    motion to plead or argue compliance with the survey term of the APS. We
    disagree. A fair reading of the vendors reply and defence to counterclaim, as
    well as their factum in the court below, does not disclose any deficiency in
    the vendors pleadings.

[10]

Second, the purchaser
    asserts that the motion judge failed to consider the vendors admission, namely
    that they were aware that the purchaser intended to renovate the property, as
    evidence that a survey complying with Schedule A of the APS was essential to
    the transaction.

[11]

We do not accept this
    assertion. In our view, the motion judges failure to mention the admission in
    his reasons does not mean he failed to consider it. The motion judge was
    clearly alive to the purchasers submission that it was his intention to
    renovate the property. Indeed, he noted the purchasers submission that summary
    judgment was not appropriate in this case because he needed an opportunity at
    trial to adduce further evidence on his intention to do major renovations to
    the property. That submission was quite properly rejected by the motion judge.
    Whether the vendors knew that the purchaser was going to renovate the property
    had nothing to do, generally, with the purchasers ability to close the
    transaction or his alleged entitlement to repudiate the APS.

[12]

Third, the purchaser
    submits that the motion judges reasons were inadequate and failed to deal with
    the survey term. This submission has no merit. The motion judge focused on the
    survey term and provided concise reasons as to why the purchaser was not
    entitled to repudiate the APS.

[13]

Fourth, the purchaser
    contends that the motion judge failed to consider various authorities put
    forward by the purchaser, including
Domowicz v. Orsa Investments Ltd.
(1993), 36 R.P.R. (2d) 174 (Ont. Gen. Div.). In
Domowicz
, a vendor was
    late in its delivery of a survey, precluding the purchaser from arranging
    financing for the transaction. The court held that the purchaser should have
    been accommodated by a reasonable extension of the closing date, and resolved
    the issue of liability in the purchasers favour: at pp. 1, 4, 21-22, and 25.

[14]

In this case, the
    motion judge noted that the purchaser was relying heavily on
Domowicz
.
    However, the motion judge concluded that taking the purchasers position as
    high as it could be, even if the vendors did not strictly comply with the
    survey term contained in Schedule A of the APS, this would not have entitled the
    purchaser to refuse to close the transaction. This conclusion flowed from the
    fact that the survey had nothing to do with financing, zoning, or the purchasers
    ability to close the transaction. We see no basis to interfere with these findings.

[15]

Finally, the purchaser
    argues that the motion judge misconstrued evidence, including expert evidence,
    and failed to properly consider submissions by the purchaser.

[16]

We see no merit to this
    argument. The motion judge carefully reviewed the evidence and focused on
    whether the vendors alleged non-compliance with the survey term entitled the
    purchaser to repudiate the APS because it was essential to the bargain. He
    concluded that it was not. In reaching that conclusion, he considered the parties
    submissions and observed how counsel for the purchaser narrowed the analysis
    considerably when he stated that the purchasers entire case rested on the
    survey term.

DISPOSITION

[17]

For these reasons, the
    appeal is dismissed. The vendors are entitled to their costs of the appeal in
    the agreed upon amount of $7,500, inclusive of disbursements and HST
.

K.
    Feldman J.A.

David
    M. Paciocco J.A.

S.
    Coroza J.A.


