



COURT OF APPEAL FOR ONTARIO

CITATION: Giancola v. Dobrydnev, 2021 ONCA 793

DATE: 20211108

DOCKET: C68792

MacPherson, Simmons and Nordheimer JJ.A.

BETWEEN

Antonio Giancola and
    Angelina Giancola

Plaintiffs (Respondents)

and

A
lexandre Dobrydnev

Defendant (Appellant)

Arkadi Bouchelev, for the appellant

Christopher Belsito, for the respondents

Heard: November 3, 2021 by video conference

On appeal from the judgment of Justice
    Mark L. Edwards of the Superior Court of Justice dated October 5, 2020, with
    reasons reported at 2020 ONSC 6007.

REASONS FOR DECISION

[1]

Mr. Dobrydnev appeals from the summary judgment granted by the motion
    judge in which he ordered the appellant to pay to the respondents the sum of
    $306,130.54. He subsequently ordered that the appellant pay costs in the amount
    of $40,000. At the conclusion of the hearing, we dismissed the appeal with
    reasons to follow. We now provide our reasons.

[2]

The issues between the parties arose out of a failed residential real estate
    transaction. The appellant had agreed to purchase a house from the respondents.
    The day before the closing, the appellant raised an issue about a possible
    problem in the basement of the home. He asked for a reduction in the purchase
    price and a postponement of the closing date.

[3]

While the respondents were open to a postponement of the closing date,
    they were not prepared to reduce the purchase price. The appellant then advised
    that he would not close the transaction.

[4]

The appellant says that a few days before the closing date, he visited
    the property and noticed a problem in the basement. He says that he had not
    noticed the problem earlier because the area had been covered with a carpet.
    The appellant was very concerned about what he saw because it suggested that
    there had been a problem with the foundation of the home. He says that in
    response to questions he asked, the respondents told him that there had been a
    major flood some years earlier, that the foundation walls had cracked, and that
    repairs had been made. The appellant says that the respondents refused to
    provide any documentation regarding the repairs or tell him who had done the
    work. He does say, however, that the respondents admitted that the work had
    been done without getting a building permit.

[5]

The appellant filed two expert reports on the motion. The thrust of the
    expert reports was that the repairs were significant and ought to have been
    disclosed.

[6]

The respondents deny the appellants allegations. They say that the
    problem in the basement was obvious to anyone who viewed the property. They say
    that the appellant did not raise any issue with them when he visited the
    property. The respondents produced photographs taken by their real estate agent
    that showed the problem area in the basement.

[7]

The motion judge reviewed the evidence. He was satisfied that,
    notwithstanding the conflict in the evidence, he was in a position to resolve
    the issue without the need for further evidence or for the matter to go to
    trial. He noted the corroboration for the respondents position provided by the
    photographs from their real estate agent. He also noted that the respondents
    real estate agent had confirmed that the subject area in the basement was not
    hidden from any potential purchaser.

[8]

The motion judge rejected the appellants evidence in part because the
    appellant waited until the day before the closing to raise this issue. The
    motion judge observed that the appellant, on his own evidence, had learned
    about the problem six days earlier. The motion judge also found that between
    those two dates, the appellant had received a mortgage commitment that left him
    over $200,000 short of the amount he needed to complete the purchase.

[9]

The motion judge also rejected the appellants expert evidence. He
    pointed out that neither expert had actually seen the property but rather had
    relied almost exclusively on what the appellant had told them in forming their
    opinions.

[10]

The appellant raises a number of errors said to have been made by the
    motion judge. We agree with only one. The motion judge erred in relying on the
    hearsay evidence of a home inspection that was undertaken by the subsequent
    purchaser of the home. However, this error was not material to the motion
    judges conclusion and does not detract from the other aspects of his analysis,
    including his point that the appellant could have made his offer to purchase
    conditional on a home inspection but chose not to do so.

[11]

Finally, the motion judge concluded that any issue with respect to the
    basement of the property was readily apparent to any potential purchaser.
    Therefore, the principle of
caveat emptor
applied.

[12]

The appellant has failed to demonstrate any error that goes to the core
    of the analysis undertaken, and conclusion reached, by the motion judge. The
    motion judge provided detailed reasons in which he reviewed the evidence and
    explained his approach to it. The findings that the motion judge made were
    available to him on the evidence. There is no basis for us to interfere with
    his decision.

[13]

It is for these reasons that the appeal was dismissed. The respondents
    are entitled to their costs of the appeal which are fixed in the agreed amount
    of $8,380, inclusive of disbursements and HST.

J.C. MacPherson J.A.

Janet Simmons J.A.

I.V.B. Nordheimer J.A.


