



COURT OF APPEAL FOR ONTARIO

CITATION: Lamba v. Mitchell , 2022 ONCA 164

DATE: 20220223

DOCKET: M53161

Thorburn J.A. (Motions
    Judge)

BETWEEN

Amarjot Lamba and Chand
    Lamba

Moving Parties

and

Michael Mitchell and
    Richard Bowring

Responding Parties

James R. D. Clark, for the appellants

Monica Unger Peters, for the respondents

Heard: in writing

ENDORSEMENT

Relief Sought

[1]

The moving party, Amarjot Lamba, is a real estate agent; the moving
    party, Chand Lamba, is his spouse. They seek an order to extend the time to
    seek leave to appeal by additional ten days.

The Dispute Between the Parties

[2]

The moving parties put an offer on a house and entered into an agreement
    of purchase and sale but failed to close the transaction. They sought an
    extension of the closing date.

[3]

The responding parties refused to extend the closing and instead,
    delivered their closing documents.

[4]

Following the aborted closing, the moving parties commenced an action
    claiming specific performance with an abatement and moved unsuccessfully for a
    certificate of pending litigation.

[5]

The responding parties counterclaimed for damages and an order that the
    purchasers deposit be forfeited. The responding parties re-sold the home and
    moved for summary judgment, requesting forfeiture of the moving parties
    deposit.

[6]

The moving parties argued that they were entitled to rescission of the
    agreement of purchase and sale and damages, because of the misrepresentation
    with respect to the square footage of the home and because the responding
    parties had not satisfied them that the renovation had been completed in
    accordance with the applicable building permit.

The Decision on the Responding Parties Motion for Summary
    Judgment

[7]

On May 18, 2021, the motion judge granted the responding parties motion
    for summary judgment and declared the moving parties $20,000 deposit forfeited
    to the responding parties.

[8]

The motion judge acknowledged that the Multiple Listing Service (MLS)
    listing for the home misstated the main floor area of the home to be 2,500 
    3,000 sq. ft., when in fact the main floor area was 2,155 sq. ft. However, he
    found that the moving parties had personally attended the property to view the
    house and were well-aware of its actual size and layout before they decided to
    buy what they had seen. Further, he found that Mr. Lamba could access
    materials with the correct area as he had access to a brochure and floor plan
    with the homes correct area which accompanied the MLS listing for the
    property.

[9]

As such, the motion judge concluded that the discrepancy between the
    actual and misstated area in the MLS listing did not constitute a material
    misrepresentation that would have affected the moving parties decision to make
    an offer, and did not entitle the moving parties to rescind the agreement. He
    also held that the moving parties did not requisition a valid objection to
    title in respect of their concern with a building permit, and were not entitled
    to rescind the agreement on that basis. Finally, he held that the $20,000
    deposit was not disproportionate to the purchase price, and it would not be
    unconscionable for the responding parties to keep the deposit given that the
    moving parties breached the agreement.

[10]

The motion judge ordered that the moving parties $20,000 deposit be
    forfeited to the responding parties and he ordered costs against the moving
    parties in the amount of $10,856.48 inclusive of HST and disbursements, bearing
    interest of 2 percent per annum commencing April 1, 2021.

The Decision of the Divisional Court on Appeal

[11]

The moving parties appealed to the Divisional Court on the issue of
    rescission for misrepresentation. On December 7, 2021, the Divisional Court
    dismissed their appeal. The Divisional Court held that,

The purchasers accept that the motion judge correctly set out
    the legal test with respect to rescission for misrepresentation. However, they
    take issue with the findings of fact, and application of the law to the facts,
    on the issue of reliance on the misrepresentation, as an inducement to
    purchase.



[T]he issue on this appeal is whether the purchasers  relied
    upon the square footage set out in the MLS listing, as they argue; or whether,
    as found by the motion judge, they relied upon the area and size of the home
    gleaned from their inspection. The latter was an inference of fact.



[T]he purchasers, through their solicitor, repeatedly affirmed
    their intention to complete the transaction, notwithstanding their discovery of
    the actual square footage of the home. While they evidently felt entitled to
    some compensation for the deficiency, the fact that they were intent on
    completing the purchase suggests that they based their decision to purchase on
    their satisfaction with the area and layout of the home, as observed during their
    inspection, and not on the representation of square footage contained in the
    listing agreement.

[12]

The Divisional Court further held that,

The purchasers were aware of the actual square footage of the
    home at the time the affidavit was sworn. If their satisfaction with the area
    of the home at the time of purchase was based upon the represented square
    footage rather than the area and size of the home gleaned from their
    inspection, it is a reasonable inference that they would not have tried to prevent
    the home from being sold to others, and that Mr. Lamba would not have sworn
    that the property was unique and exactly what we were looking for [in his
    affidavit sworn in support of the motion for a certificate of pending
    litigation]

[13]

The Divisional Court concluded that the findings of the motion judge
    were reasonable and available to him on the evidence.

[14]

The Divisional Court dismissed the appeal and ordered costs against the moving
    parties in the amount of $8,000.

[15]

The Notice of Motion for Leave to Appeal must be filed within 15 days of
    the decision of the Divisional Court on December 7, 2021. In light of the
    holiday period, the deadline for submitting a notice for leave to appeal was
    December 30, 2021. The moving parties failed to meet that deadline despite
    being represented by counsel. The moving parties claim that they intended to
    appeal within the requisite period and thought they had more time than they
    did. They claim they contacted three or four law offices before meeting their
    current counsel via Zoom on January 7, 2022 and signing a retainer agreement on
    January 11, 2022.

[16]

The moving parties seek an order to extend the time to seek leave to
    appeal the Divisional Court decision.

The Test for Leave to Appeal

[17]

An appeal lies to this court, with leave, from an order of the
    Divisional Court:
Courts of Justice Act
, R.S.O., c. C.43, s. 6(1)(a).
    A notice of motion for leave to appeal must be served within 15 days after the
    making of the order from which leave to appeal is sought:
Rules of Civil Procedure
,
R.R.O. 1990, Reg. 194, r. 61.03.1(3).

[18]

Pursuant to r. 3.02(1) of the
Rules of Civil Procedure
,
this
    court may extend the time to seek leave to appeal on such terms as are just. The
    overarching principle is whether the justice of the case requires that an extension
    be given:
Enbridge Gas Distribution Inc. v. Froese
,
2013 ONCA
    131, 114 O.R. (3d) 636, at para. 15. The court must take into account (i)
    whether the moving party formed an intention to appeal within the relevant
    period, (ii) the length of, and explanation for, the delay, (iii) any prejudice
    to the responding party, and (iv) the merits of the proposed appeal:
Enbridge
,
at para. 15
; Reid v. College of Chiropractors of Ontario
,
2016
    ONCA 779, at para. 14; and
Krawczynski v. Ralph Culp and Associates Inc.
,
    2019 ONCA 399, 69 C.B.R. (6th) 163, at para 9.

[19]

The proposed appeal arises out of a decision of the Divisional Court
    exercising its appellate jurisdiction. I am mindful that appellate decisions of
    the Divisional Court are intended to be final:
Sault Dock Co. v. Sault Ste.
Marie (City)

(1973)
,
34 D.L.R. (3d) 327 (Ont. C.A.), at p. 328.
A
    further appeal to this court is exceptional:
Enbridge
,
at para.
    19.

Analysis and Conclusion

[20]

Before granting leave, this court must be satisfied that the proposed
    appeal presents an arguable question of law, or mixed fact and law, requiring
    consideration of matters such as the interpretation of legislation; the
    interpretation, clarification or propounding of some general rule or principle
    of law; or the interpretation of an agreement or by-law where the point in
    issue involves a question of public importance. This court will also grant
    leave when the interests of justice require it, for matters of public
    importance, and to correct clear errors in a judgment below:
Sault Dock Co.
,
at p. 329;
Enbridge
,
at paras. 20-22.

[21]

The only issue on appeal to the Divisional Court was whether the
    purchasers relied on the square footage in the MLS listing or whether, as the
    motion judge found, they relied on the square footage gleaned from their
    inspection. That, as noted by the Divisional Court was an inference of fact. As
    noted by the Divisional Court,

The purchasers accept that the motion judge correctly set out
    the legal test with respect to rescission for misrepresentation. However, they
    take issue with the findings of fact, and application of the law to the facts,
    on the issue of reliance on the misrepresentation, as an inducement to
    purchase.

[22]

Given that the moving parties reaffirmed their intention to complete the
    transaction
after
discovering the actual square footage, the
    Divisional Court found no error in the motion judges finding of fact that this
    was demonstrative of their decision to purchase knowing the actual square
    footage. Instead, the Divisional Court concluded that the findings of the
    motion judge were reasonable and available to him on the evidence.

[23]

Like the motion judge, the Divisional Court concluded that,

The purchasers were aware of the actual square footage of the
    home at the time the affidavit was sworn. If their satisfaction with the area
    of the home at the time of purchase was based upon the represented square
    footage rather than the area and size of the home gleaned from their
    inspection, it is a reasonable inference that they would not have tried to
    prevent the home from being sold to others, and that Mr. Lamba would not have
    sworn that the property was unique and exactly what we were looking for [in
    his affidavit sworn in support of the motion for a certificate of pending
    litigation]

[24]

The moving parties concede that the Divisional Court did not make an
    error of law. There was no apparent palpable and overriding factual error, and
    there was no error of law given the other factual findings. There is no
    reasonable possibility of success on appeal:
Ravelston Corp. (Re)
(2005),
    24 C.B.R. (5th) 256, (Ont. C.A.) at paras. 29-31. Moreover, there is no issue
    of public importance.

[25]

A lack of merit alone is sufficient to dispose of a motion for an
    extension:
Enbridge
, at para. 16. For the above reasons, I conclude
    that the proposed appeal is highly unlikely to be granted if I allow an
    extension of time to file the leave application.

[26]

However, some other relevant considerations outlined in
Enbridge
also militate in favour of dismissing the motion. I find that the moving parties
    did not form an intention to appeal within the relevant period. The moving
    parties were represented by counsel throughout the fifteen day period to seek
    leave to appeal. While the moving parties counsel communicated with the
    responding party during the fifteen-day period, counsel did not communicate any
    intention to seek leave to appeal. The moving parties acknowledge that they did
    not do so but claim they intended to appeal within the requisite period and
    thought they had more time than they did.

[27]

I note that the moving parties have also failed to comply with two cost
    orders, without explanation: the costs ordered by the motion judge in the
    amount of $10,856.48 and the costs ordered by the Divisional Court in the
    amount of $8,000. There is no suggestion they are unable to pay. The responding
    parties note that they extended an offer to the moving parties to enable them
    to extend the time if the cost orders are paid, which offer was rejected by the
    moving parties. The moving parties failure to abide by two court orders
    without explanation is a consideration relevant to the justice of this case.

[28]

For these reasons, the request to extend the time to seek leave
    to appeal is denied.

J.A. Thorburn J.A.


