



COURT OF APPEAL FOR ONTARIO

CITATION: Malik v. Attia, 2020 ONCA 787

DATE:  20201210

DOCKET: C67353

Strathy C.J.O., Brown and
    Huscroft JJ.A.

BETWEEN

Tashfeen Malik

Plaintiff/Defendant
    by Counterclaim

(Respondent)

and

Amal
    Attia, Mohamed Amr Abdelraouf
, RE/MAX
    Performance Realty Inc., and John Doe Corporation

Defendants/Plaintiffs
    by Counterclaim

(
Appellants
)

Scott A. Rosen, for the appellants

Harinder Dhaliwal, for the respondent

Heard: October 9, 2020 by video conference

On appeal from the order of Justice
    Irving André of the Superior Court of Justice, dated July 22, 2019, with
    reasons reported at 2019 ONSC 4395, [2019] O.J. No. 6790.

BROWN J.A.:

I.        OVERVIEW

[1]

The parties entered into separate agreements for
    the purchase and sale of two abutting residential properties in Mississauga
    (the Agreements). The Agreements did not close because the appellant
    purchasers,
Amal Attia and Mohamed Amr Abdelraouf (the
    Buyers), did not have the
funds to pay the purchase
    prices.

[2]

The respondent vendor,
Tashfeen
    Malik (the Seller)
, sued the Buyers seeking
    forfeiture of their $100,000 deposit and damages of $500,000 for breach of
    contract.

[3]

The Seller sought and obtained partial summary
    judgment declaring that the Buyers had breached the Agreements. The motion
    judge ordered the issues of damages and the forfeiture of the deposits to
    proceed to trial.

[4]

The Buyers appeal. At the hearing, the appeal
    was dismissed for reasons to follow. These are those reasons.

II.       FACTS

A.

The history of the Properties

[5]

The Seller was, and remains, the owner of two
    abutting properties in the City of Mississauga, municipally known as 4240 and 4246
    Cawthra Road (the "Properties").

[6]

In 1983, the then owner of 4246 Cawthra became
    the owner of the adjacent 4240 Cawthra. After 1983, the Properties were always
    conveyed together to the same new owners. In 2013, the Seller acquired the
    Properties by entering into two separate agreements of purchase and sale and
    the Properties were conveyed to the Seller by a single transfer instrument.

B.

The Agreements

[7]

On August 19, 2016, the Seller listed the Properties
    for sale through her real estate agent. The MLS listings for the Properties
    stated:

Brkage Remks: 4240 and 4246 Cawthra Rd Merged
    Together, Vendor Wants Both Lots to Be Sold Together. The City Has Consent For
    Subdivision. *** Call Listing Agent If Any Question.

[8]

In September 2016, the appellant Buyer, Ms. Attia,
    contacted the Seller and her husband through Ms. Attias real estate agent. The
    real estate agent told Ms. Attia that the two Properties had to be sold
    together.

[9]

On October 7, 2016, Ms. Attia, acting in trust
    for a company to be incorporated, entered into the two Agreements. The Agreements
    provided that the purchase price for each Property was $725,000 and the deposit
    $50,000, and that closing would take place no later than December 8, 2016. The
    Agreements were later amended to add the appellant Mr. Abdelraouf as a Buyer.

[10]

Ms. Attia, on behalf of the Buyers, made the
    deposits totaling $100,000, which the defendant brokerage continues to hold in
    trust.

[11]

Neither Agreement contained a mortgage financing
    condition. On October 14, 2016 the Buyers waived or deleted the provisions stipulating
    that their offers were conditional upon the approval of the terms by their
    solicitor.

[12]

The Ontario Real Estate Association standard
    form was used for the Agreements, which contained the following clause
    regarding the
Planning Act
, R.S.O. 1990, c. P.13:

15. PLANNING ACT
: This Agreement shall be effective to create an interest in the
    property only if Seller complies with the subdivision control provisions of the
    Planning Act by completion and Seller covenants to proceed diligently at
    Sellers expense to obtain any necessary consent by completion.

[13]

The Agreement for 4240 Cawthra described the
    property as Plan A24 PT LT 1143R12743 PT 6; the Agreement for 4246 Cawthra
    described the property as PT LT 11, PL A24, PART 5, 11, 43R12743. Schedule A
    to the 4246 Cawthra Agreement stated that: The Seller Agrees to provide the
    consent letter received from committee of adjustment regarding severance.
    Schedule C to both Agreements contained a sketch of the Properties for use on
    an Application for Consent. The sketch showed that Part 6 would be severed from
    Part 5.

[14]

A Mississauga Committee of Adjustment letter
    dated July 28, 2016 recorded the Committees approval of the Sellers
    application to sever the Properties, subject to the condition that the
    Committees provisional approval be fulfilled by July 29, 2017. The letter was
    either attached to the 4246 Cawthra Agreement or separately provided to the
    Buyers.

C.

The requisitions and responses

[15]

Under the Agreements, the deadline for the
    Buyers to make requisitions was November 24, 2016. On November 23, 2016,
    Buyers counsel emailed Sellers counsel requisitions for each Property that
    required, on or before closing, satisfactory evidence of compliance with The
    Planning Act, Ontario, including completion of the Planning Act statements in
    the Deed/Transfer of Land.

[16]

The requisitions also required the Seller to
    execute and return a statutory declaration to Buyers counsel before closing,
    paragraph 5 of which was to state:

I do not retain the fee or the equity of
    redemption in, or a power or right to grant, assign or exercise a power of
    appointment with respect to any land abutting the lands being conveyed in the
    subject transaction.

[17]

On December 7, 2016, Sellers counsel sent Buyers
    counsel a letter enclosing the keys and closing documents to be held in escrow
    until the transfers had been registered. In the enclosed statutory declarations
    signed by the Seller (the Statutory Declarations), paragraph 5 had been amended
    by blacking out the word not, so that it read:

I do [blacked out] retain the fee or the
    equity of redemption in, or a power or right to grant, assign or exercise a
    power of appointment with respect to any land abutting the lands being conveyed
    in the subject transaction.

D.

Extensions of the closing date

[18]

The transactions did not close on December 8,
    2016. Ms. Attia admitted that the Buyers did not have firm mortgage financing
    in place. The Seller agreed to a one-day extension of the closing date to
    December 9, 2016.

[19]

On December 9, Buyers counsel advised that they
    had no mortgage instructions and therefore no money to close. Sellers
    counsel stated that his client was ready, willing and able to close the
    transactions on these firm deals but was prepared to extend closing until
    December 19, 2016, provided certain conditions were met.

[20]

Although the Buyers did not agree to the
    conditions, the parties continued to deal with each other.
On December 12, Sellers counsel advised that his client
    had learned the Buyers had a mortgage in place and could close either that day
    or the next.
That did not turn out to be the case.

[21]

Over the course of the ensuing week, the
    parties, through their counsel, negotiated the terms of an extension of the
    closing date, ultimately agreeing to extend the closing until January 10, 2017,
    on terms. Amending agreements executed by the parties on December 20, 2016
    memorialized the extension agreement.

[22]

On January 3, 2017, Sellers counsel inquired of
    Buyers counsel if everythings on track for the closings. On January 6, the
    Buyers sought a further extension of the closing date until January 26, 2017 to
    have more time to secure mortgage financing. They also inquired whether the
    Seller would enter into a vendor take-back mortgage.

[23]

The Seller was not prepared to grant any further
    extension or enter into a vendor take-back mortgage.

[24]

Inquiries by Sellers counsel on January 10,
    2017, the scheduled closing date, as to whether Buyers counsel was in funds
    went unanswered. The transactions did not close. The Buyers admit that they did
    not have the funds or mortgages in place to close the transactions.

[25]

On January 11, 2017 Sellers counsel informed
    Buyers counsel that the Buyers were in breach of the Agreements. On January
    12, 2017, Sellers counsel advised that the Buyers were in fundamental breach
    and their deposits would be forfeited.

[26]

Between January 12, 2017 and January 25, 2017,
    the Buyers counsel and real estate agent made various proposals to the Seller
    to revive and restructure the transactions, including entering into a new
    agreement of purchase and sale that would cover both Properties. At no time did
    the Buyers suggest that the Seller had failed to tender proper closing
    documents.

[27]

On January 30, 2017, the Seller filed her claim
    for forfeiture and breach of contract against the Buyers. On April 8, 2019, the
    Seller moved for summary judgment in respect of that claim. As of the date of
    the summary judgment motion, the Seller had not re-sold the Properties.

III.      THE MOTION JUDGES REASONS

[28]

In his reasons, the motion judge addressed two
    issues. First, the Buyers had argued that para. 5 of the Statutory Declarations
    stated, in respect of each of the two Properties, that the Seller was retaining
    the fee or equity of redemption in the abutting parcel, thereby contravening the
    subdivision control provisions of the
Planning Act
. According to the
    Buyers, those statements indicated that: (a) the Sellers tender was defective,
    (b) she had repudiated the Agreements, and (c) the Agreements were invalid: at
    para. 17.

[29]

The motion judge rejected this submission. He held
    that the Buyers offers indicated their intention to purchase the Properties
    together and that the parties intended to treat the two Properties as merged
    and capable of being sold simultaneously in a single transaction: at para. 24.
    Relying on the decision in
Baker v. Nero
(1979), 23 O.R. (2d) 646 (H.C.),
    the motion judge viewed the Agreements as constituting in substance a single
    transaction that did not sever the lands: at para. 25. He also observed that
    the subdivision control provisions of the
Planning Act
did not apply
    to a mistake made between the executing parties: at para. 27. All of which led
    him to conclude that the Seller did not breach the Agreements on December 8,
    2016 when she presented the amended Statutory Declarations to the Buyers. He
    found that the Buyers breached the Agreements on January 10, 2017 when they
    failed to pay the amounts due on closing: at para. 29. The motion judge
    concluded that there was no genuine issue requiring a trial regarding the
    breach of the Agreements: at para. 30.

[30]

The second issue concerned the Buyers
    contention that granting partial summary judgment would offend the principle
    that such relief should only be granted rarely:
Baywood Homes Partnership
    v. Haditaghi
, 2014 ONCA 450, 120 O.R. (3d) 438;
Healthy Lifestyle
    Medical Group Inc. v. Chand Morningside Plaza Inc.
, 2019 ONCA 6, 46 C.P.C.
    (8th) 25, at para. 9. Instead, the Buyers argued the motion judge should set
    the action down for trial.

[31]

The motion judge disagreed, holding that the
    facts regarding the breach of contract issue were not in dispute, making this
    one of the rare cases in which partial summary judgment was appropriate: at
    paras. 33-34. He directed a trial on the issues of damages and forfeiture of the
    deposit. He did not award costs.

IV.     ISSUES ON APPEAL

[32]

The Buyers submit that the motion judge made two
    errors warranting the intervention of this court. Specifically, they contend
    the motion judged erred by:

(1)

concluding there was no genuine issue requiring a trial with respect
    to whether the Buyers had breached the Agreements; and

(2)

granting partial summary judgment where it was inappropriate to bifurcate
    the claim, given the nature of the issues and the risk of inconsistent findings
    of fact.

V.      FIRST ISSUE: DID THE BUYERS BREACH
    THE AGREEMENTS?

A.      The issue stated

[33]

On this appeal, the Buyers advance two related
    arguments.

[34]

First, they contend the motion judge erred in
    holding that they breached the Agreements. Although acknowledging that they
    lacked the funds to complete the transactions on the scheduled closing dates, the
    Buyers argue that the Agreements did not comply with the subdivision control provisions
    of the
Planning Act
and therefore were void. The Buyers submit the
    evidence did not permit the motion judge to conclude, as he did at para. 24 of
    his reasons, that the Buyers intended to purchase both parcels together as part
    of a single transaction.

[35]

Second, the Buyers submit that the Seller
    tendered defective closing documents  the amended Statutory Declarations  thereby
    signalling that she was not ready, willing, and able to provide marketable
    title on closing.

B.      Analysis

[36]

The Buyers make their submissions against the
    undisputed factual backdrop that they lacked the funds to close the purchase of
    the Properties on any of the scheduled closing dates: December 8 and 9, 2016,
    and January 10, 2017. In other words, in respect of the mutually dependent
    promises to pay and to convey, the Buyers were not ready, willing, and able to
    perform their promise to pay: Victor Di Castri,
The Law of Vendor and
    Purchaser
, 3rd ed. (Toronto: Thomson Reuters, 2020), at
§615
. However, the Buyers argue that the
    Seller also was not ready, willing and able to perform her promise to convey
    marketable title. That was because the Agreements were either void for
    contravening the
Planning Act
, or the Sellers tender of documents was
    defective.

[37]

Buyers counsel acknowledges that the arguments advanced
    by his clients are very technical and were not raised by Buyers transaction
    counsel at the time of the scheduled closings. Nevertheless, the Buyers contend
    that they are entitled to point to defective performance by the Seller to
    justify their own non-performance even if they were ignorant of the deficiency
    at the time of termination:
Komorowski v. Van Weel
(1993), 12 O.R.
    (3d) 444 (Gen. Div.), at paras. 42-43.

[38]

On the facts of this case, it is difficult to
    see how the Buyers can assert that they were not aware, at the time of the
    scheduled closings, of the alleged defects in title and tender on which they
    now rest their appeal  they had entered into two separate Agreements for the
    conveyance of abutting lands and the Seller had delivered the allegedly
    defective Statutory Declarations prior to the first scheduled closing. However,
    this appeal does not turn on that point. In the reasons that follow, I explain
    why I do not accept their submissions that the Agreements were void as contrary
    to the
Planning Act
or that the Sellers tender of closing documents was
    defective.

The validity of the Agreements

[39]

Part VI of the
Planning Act
regulates
    the subdivision of land. Section 50(3) is the main subdivision control
    provision, which states, in part:

(3) No person shall convey land by way of a
    deed or transfer  or enter into an agreement of sale and purchase of land 
    unless,

(b) the grantor by deed or transfer  [or]
    the vendor under an agreement of purchase and sale  does not retain the fee or
    the equity of redemption in  any land abutting the land that is being conveyed
    or otherwise dealt with other than land that is the whole of one or more lots
    or blocks within one or more registered plans of subdivision [.]

[40]

Section 50(15) deals with the situation where
    abutting lands are conveyed simultaneously. It provides, in part, that:

Where a person conveys land  or enters into
    an agreement of sale and purchase of land  by way of simultaneous conveyances
    of abutting lands  the person so conveying or otherwise dealing with the lands
    shall be deemed for the purposes of subsections (3) and (5) to retain, as the
    case may be, the fee or the equity of redemption in  land abutting the land
    that is being conveyed or otherwise dealt with
but this
    subsection does not apply to
simultaneous conveyances or
    other simultaneous dealings involving the same parties acting in their same
    respective capacities
. [Emphasis added.]

[41]

Simultaneous conveyances of abutting properties
    involving the same parties merge the properties for
Planning Act
purposes: Donald H.L. Lamont,
Lamont on Real Estate Conveyancing,
2nd
    ed. (Toronto: Thomson Reuters, 2020), at
§
9.3(b). The parties agree that the Properties so merged in 1983, when
    the then owner of 4246 Cawthra acquired the adjacent property at 4240 Cawthra.

[42]

The motion judges finding, at paras. 23 and 24,
    that the parties regarded the sale and purchase of the Properties as a single
    transaction was amply supported by the evidence:

·

the listings for the Properties stated that
    4240 and 4246 Cawthra merged together. Vendor wants both lots to be sold
    together. The City has consent for subdivision;

·

the Agreements were entered into on the same
    date, between the same parties, with the Seller accepting both offers at the
    same time, and with the same closing date;

·

the December 7, 2016 letter from Sellers
    counsel responding to the Buyers requisitions advised that we will not be
    completing the Planning Act statements as the Vendor owns [the other Property]
    (also being purchased by your client); and

·

Buyers counsel voiced no objection to the
    structure of the transactions.

[43]

Although at the hearing Buyers counsel was not
    in a position to admit the correctness of the motion judges finding, he did
    concede (as was also conceded in the Buyers factum
[1]
), that closing both Agreements
    simultaneously was permissible under the
Planning Act
and, if the
    deals had closed at the scheduled times, they would have complied with the
Planning
    Act
.
[2]


[44]

The jurisprudence and practice literature
    support the view that conveyances meet
Planning Act
s. 50(15)s
    requirements for 
simultaneous
    conveyances  involving the same parties acting in their same respective
    capacities when a vendor
who has entered into two agreements
    to sell abutting lands to the same purchaser simultaneously tenders two deeds
    to the purchaser and the deeds are registered simultaneously, with allowance
    for any inevitable systemic temporal delays or differences
: see the cases
    referred to in
Lapolla v. The Estate of John Bostock
, 2017 ONSC 7448, 92 R.P.R. (5th) 273, at
    paras. 80-81; Weirfoulds LLP,
Ontario Planning
    Practice: Annotated Statutes and Regulations
(Toronto: Thomson Reuters, 2019), at PA 1, s. 50(15);
    Practical Law Canada, Simultaneous Conveyancing When Land in Both Registry and
    Land Titles (Thomson Reuters, October 2020); and Ian Rogers & Alison
    Butler,
Canadian Law of Planning and Zoning
, 2nd ed. (Toronto: Thomson Reuters, 2019),
    at
§5.2.6.


[45]

By entering
into the two Agreements to sell the abutting Properties
    to the same purchaser with the same closing date, the parties clearly treated
    the purchase and sale of the Properties as a single transaction. The Agreements
    contemplated that on closing there would be simultaneous conveyances that
    conformed to s. 50(15) of the
Planning Act
. Accordingly, I do not accept the Buyers
    submission that the Agreements were void.

The adequacy of the tender and the Statutory Declarations

[46]

The Buyers second, but related, submission is based
    on the amendments the Seller made to para. 5 of the Statutory Declaration for
    each Property. Specifically, the Seller blacked out the word not, so that it
    read:

I do [blacked out] retain the fee or the
    equity of redemption in, or a power or right to grant, assign or exercise a
    power of appointment with respect to any land abutting the lands being conveyed
    in the subject transaction.

[47]

The Buyers submit that the Sellers tender of
    documents was invalid because she deliberately amended the standard statutory
    declarations requisitioned by [Buyers] counsel to confirm under oath that the
    [Seller] would retain the fee (title/ownership) in abutting property after
    closing of each of the two transactions. The [Seller] must have been of the
    view that she was attempting to close the transactions in violation of the
    Planning Act.

[48]

I do not accept that submission; it runs counter
    to the weight of the evidence.

[49]

The parties did not exchange draft deeds or
    transfers prior to closing,
[3]
so the motion judge was not able to assess the significance of the amendments
    to the Statutory Declarations in light of the language of the transfer
    documents
[4]

or determine whether the Properties were to be conveyed by a
    single deed or separate transfers.

[50]

If separate deeds were to be used, the amendments to the
    Statutory Declarations could be regarded as the product
of the
    Sellers punctiliousness. Even under a system of sequential electronic
    registration, things do not occur instantaneously. There would be a moment in
    time when the Seller retained the fee in the yet-unregistered deed for the
    abutting Property, but the retained fee would disappear upon the registration
    of the second deed. As such, the Statutory Declarations could be interpreted as
    a technically correct description of the chain of events that would have
    occurred on sequential registration.

[51]

However, the motion judge, at para. 27, seemed
    to suggest that the amendments were errors or mistakes, although his reasons
    are far from clear on the point. The Seller did not adduce any evidence explaining
    the amendments, but in her factum she takes the position that the amendments
    were a curable defect.

[52]

In my view, at the end of the day it matters not
    whether the amendments resulted from an error or from punctiliousness. Three pieces
    of evidence regarding the Sellers conduct demonstrate that the amendments to
    the Statutory Declarations were made in the context of the Sellers communicated
    intention that the Agreements would culminate in the simultaneous conveyance of
    the Properties.

[53]

First, in a letter dated December 7, 2016
    responding to requisitions concerning 4240 Cawthra, Sellers counsel advised
    that [w]e will not be completing the Planning Act statements as the Vendor
    owns 4246 Cawthra (also being purchased by your client). A similar letter was
    sent regarding 4246 Cawthra, indicating that the Seller owned 4240 Cawthra,
    which the Buyers were purchasing.

[54]

Second, on December 12, 2016, Sellers counsel,
    responding to advice from Buyers counsel that his clients were assigning one Property,
    wrote: My client is the owner of both properties and
they
    are part lots
. I just want to mention it in case you missed it.

[55]

Finally, in his email of January 6, 2017 to
    Buyers counsel, Sellers counsel stated, in part:

You told me during our telephonic conversation
    that your client can assign the properties to 2 different parties and then
    raise the planning act compliance issue and that could impair my client's right
    to forfeiture of the deposit.

Please be advised that your client made the
    offer to purchase with full knowledge that properties have merged being
    abutting lands. The amendment to agreement for both properties dated Dec 20th
    2016 also reflects that as the names of the new buyers mirror on both the
    amendments.

If these agreements are to be potentially
    further assigned as suggested, they can be assigned to same assignee and not to
    2 separate assignee's and We expect your client to disclose this letter and the
    fact that the properties are merged to the potential assignee's and if 2
    separate assignee's decide to buy the properties, they will do so at their own
    peril and your client will be responsible for the same.

[56]

These three communications clearly indicate that
    the Seller sought to close the transactions in compliance with the
Planning
    Act
.

[57]

When read in the context of the Sellers communications
    showing that the Agreements, in substance, called for simultaneous conveyances,
    the amendments to para. 5 of the Statutory Declarations cannot be characterized
    as a defect in the tendered documents or a failure to effectively answer the
    Buyers requisition:
Smith v. Tellier
(1974), 47 D.L.R. (3d) 342 (Ont.
    C.A.), at p. 344, revd on other grounds [1976] 2 S.C.R. 255. On the contrary,
    the Seller at all times made it clear that she was ready, willing, and able to
    convey marketable title to the Properties in compliance with the
Planning
    Act
, thereby fulfilling her obligation under s. 15 of the Agreements:
Zender
    v. Ball
(1975), 51 D.L.R. (3d) 499 (Ont. H.C.), at pp. 505-6. Accordingly,
    I see no error in the motion judges conclusion, at para. 29, that the Seller
    did not breach the Agreements on December 8, 2016 when she presented the amended
    Statutory Declarations to the Buyers.

Conclusion on Issue 1

[58]

For these reasons, I see no error in the motion
    judges conclusion that the breach of the Agreements occurred on January 10,
    2017, when the Buyers failed to pay the full amounts owing under the
    Agreements.

VI.     SECOND ISSUE: DID THE MOTION JUDGE ERR BY
    GRANTING PARTIAL SUMMARY JUDGMENT?

[59]

The Buyers submit that the motion judge erred in
    granting partial summary judgment because this is a complex, multi-issue case
    with facts and credibility issues in dispute and which lacks a gating issue that
    might save the parties from needing a trial:
2287913 Ontario Inc. v. Blue
    Falls Manufacturing Ltd.
, 2015 ONSC 7982, [2015] O.J. No. 6760, at paras. 10-11.
    They contend that the motion judges findings will unfairly bind the trial judge
    who considers the issues of relief from forfeiture and the claim for damages.

[60]

I am not persuaded by this submission. On the
    issues as framed by the pleadings and the affidavit evidence, the risk of
    inconsistent findings of fact on the issues of liability, on the one hand, and
    the issues of forfeiture and damages, on the other, is minimal.

[61]

Yet, the risk of inconsistent findings is only
    one of several matters that a motion judge must consider when asked to
    entertain a motion for partial summary judgment. Reduced to its essence, the
    decision in
Hryniak v. Mauldin
, 2014 SCC 7, [2014] 1 S.C.R. 87 promoted
    summary judgment as a procedural tool that offers the prospect, when used in
    the right circumstances, to provide litigants with timely and affordable access
    to the civil court system: at paras. 2-5. Given that simple objective, before
    embarking on hearing a motion for partial summary judgment a motion judge must
    determine whether, in the circumstances, partial summary judgment will achieve
    the objectives of proportionate, timely, and affordable justice or, instead, cause
    delay and increase expense:
Butera v. Chown
,
Cairns LLP
, 2017
    ONCA 783, 137 O.R. (3d) 561, at paras. 29-34;
Service Mold + Aerospace Inc.
    v. Khalaf
, 2019 ONCA 369, 146 O.R. (3d) 135, at para. 14.

[62]

When faced with a request to hear a motion for
    partial summary judgment, a motion judge should make three simple requests of counsel
    or the parties:

(i)    Demonstrate that dividing the determination of this case into
    several parts will prove cheaper for the parties;

(ii)    Show how partial summary judgment will get the parties case
    in and out of the court system more quickly;

(iii)   Establish how partial summary judgment will not result in
    inconsistent findings by the multiple judges who will touch the divided case.

[63]

I do not know what, if any, motion case
    management or triage system was in place in the Central West Region at the time
    this motion for partial summary judgment appeared on the motion judges docket.
    But, had those three requests been made before embarking on the hearing, I
    strongly suspect the answer would be along the following lines: while
    proceeding with a motion for partial summary judgment was not likely to risk
    inconsistent verdicts or findings, it would certainly increase the overall
    costs of litigating this case and delay its end-point even further.

[64]

This case involves a modest amount of money,
    when assessed in proportion to the high costs of litigating civil cases in
    Ontario courts. There is a dispute over who gets to keep the $100,000 in
    deposits. The amount of damages truly at stake is quite uncertain, as the
    Seller filed no evidence on that issue. Absent such evidence, this case has all
    the hallmarks of falling within the monetary limits of a simplified procedure
    action. Bifurcating a simplified procedure action invariably will push legal
    costs into the realm of the disproportionate.

[65]

The issue of delay must be looked at from two
    perspectives. First, the action was commenced on January 30, 2017 and set down
    for trial by the Buyers about 1.5 years later, on September 5, 2018. According
    to the Buyers motion confirmation form, a pre-trial conference was scheduled
    for March 2020. If that pre-trial conference date was the first available date
    (which is unclear from the record), one can certainly understand the temptation
    for a party to prod the action along by bringing a motion for partial summary
    judgment.

[66]

But, when looked at from another perspective, here
    the action sits, two years after being set down for trial. It still has not
    reached a final adjudication on the merits. The main money issues  who gets to
    keep the deposits and whether the Buyers must pay damages  still have not been
    adjudicated. There is every prospect that by the time those issues are
    adjudicated, this action will have languished in the Ontario civil court system
    for four to five years, an unconscionable amount of time for an action involving
    a modest amount of money.

[67]

As a matter of process, I strongly disagree with
    the Sellers decision to move for partial summary judgment and refrain from
    filing any evidence of damages and with the motion judges acquiescence in
    hearing the motion so framed. That said, it is not a ground for appellate
    intervention. To set aside the judgment solely on the basis that the process
    added cost and delay would, in its own turn, only add more cost and delay.

[68]

I appreciate that judicial time for civil
    matters is stretched thin in most regions of this province. But for summary
    judgment to achieve its stated objective  faster and cheaper access to a final
    adjudication on the merits  triage processes must be put in place so that
    judges end up determining a case once and for all on the merits, instead of
    slicing determinations into a series of partial summary judgments.

VII.    DISPOSITION

[69]

For the reasons set out above, I would dismiss
    the appeal.

[70]

The Seller seeks partial indemnity costs of $5,640.10,
    inclusive of disbursements and applicable taxes. That is a fair and reasonable
    amount of costs for the appeal. I would order the Buyers to pay the Seller that
    amount within 30 days of the release of these reasons.

Released: GRS DEC 10 2020

David
    Brown J.A.

I
    agree. G.R. Strathy C.J.O.

I
    agree. Grant Huscroft J.A.





[1]

Buyers factum, para. 52.



[2]

There was no evidence that the Seller owned a third property
    that abutted 4240 or 4246 Cawthra Road.



[3]
Under
    the electronic registration system, the purchasers solicitor generally bears
    the responsibility to prepare and register the electronic documents, including
    the deed/transfer:

Lamont on Real Estate
    Conveyancing,
§1A.1; Law Society of Ontario,
Practice Guidelines for
    Electronic Registration of Title Documents
, Document Registration
    Agreement, section 3. The Buyers solicitor did not provide a draft
    deed/transfer for the Sellers consideration.



[4]

Section
    16 of the Agreements provided that: If requested by Buyer, Seller covenants
    that the Transfer/Deed to be delivered on completion shall contain the
    statements contemplated by Section 50(22) of the
Planning Act
. In
    general terms, s. 50(22) states that where a deed or transfer contains
    prescribed statements by the grantor, grantors solicitor, and grantees
    solicitor to the effect that the deed does not contravene s. 50 of the
Planning
    Act
, any contravention of s. 50 does not have the effect of preventing the
    conveyance of any interest in the land. If the Buyers solicitor had produced
    deeds containing such language, the amendments made by the Seller to the
    Statutory Declarations would be immaterial.


