



COURT OF APPEAL FOR ONTARIO

CITATION: Joo v. Tran, 2021 ONCA 107

DATE:  20210218

DOCKET: C68078

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

BETWEEN

Il-Jung
    Joo and Hae-Sun Joo

Plaintiffs (Respondents)

and

Hong Phat Tran and Thu Thuy Thi Dinh

Defendants (Appellants)

AND BETWEEN

Hong
    Phat Tran and Thu Thuy Thi Dinh

Plaintiffs by Counterclaim

and

Il-Jung Joo, Hae-Sun Joo, Rocky Chow, Living Realty Inc., Brokerage,

Bonnie Wan and Daniel Wan

Defendants by Counterclaim

Domenic Saverino, for the appellants

Jonathan M. Friedman, for the
    respondents

Heard: February 11, 2021 by video conference

On appeal from the judgment of Justice Gregory
    M. Mulligan of the Superior Court of Justice, dated January 23, 2020, with
    reasons reported at 2020 ONSC 806.

REASONS FOR DECISION

[1]

The appellant purchasers entered into an
    agreement of purchase and sale (APS) with the respondent vendors to purchase
    the respondents home for $2.1 million. The respondents accepted the offer on
    April 30, 2017.

[2]

Through para. 10 of the standard form agreement,
    the vendors warranted that the property was free from all encumbrances, save
    and except for minor utility easements and other enumerated exceptions. Schedule
    A to the APS added a term stating that the vendors would discharge any encumbrances
    on or before closing, either through sale proceeds or by way of solicitors
    undertaking. Schedule A did not include the express qualification contained in
    para. 10, which excluded minor utility easements.

[3]

On May 4, 2017, the APS was amended by the
    addition of Schedule C, which contained a building survey showing four
    easements registered against the property. Three of these were utility
    easements concerning electricity and telecommunications. A fourth notation was granted
    to a municipality and concerned water mains, sanitary sewers, and stormwater
    drains.

[4]

On August 14, 2017, the appellants took the
    position that the respondents had failed to disclose easements of material
    significance. On August 31, 2017, the appellants requisitioned their removal.
    The respondents refused, on the basis that the easements were expressly
    contemplated by para. 10 of the APS. The appellants refused to close.

[5]

The respondents subsequently resold the property
    at a substantial loss. They brought an action for breach of contract and were
    granted summary judgment in the amount of $430,000.

[6]

On appeal, the appellants argue that the motion
    judge erred by: (1) not finding that Schedule A imposed an unqualified duty on
    the vendor to provide clear title; (2) finding the appellants were not entitled
    to terminate the APS despite the respondents failure to remove the easements;
    (3) finding the easements were minor rather than material; and (4) resolving
    the main dispute on a motion for summary judgment.

[7]

We do not agree that the motion judge erred in
    any respect.

[8]

There was no evidence that the easements would
    actually interfere with the use or enjoyment of the property.

[9]

The appellants argument on appeal is that the respondents
    were obligated to discharge all easements, come what may, regardless of whether
    such an obligation was possible to fulfill or would make any commercial sense
    if it were. The appellants do not explain how the respondents could have
    discharged the easements, what the practical consequences would be for the
    appellants or the residents of any neighbouring properties, or how it would make
    commercial sense for a vendor of a residential property to remove electricity,
    water, and sewer services prior to conveying title. In response to the apparent
    absurdity of this position, the appellants fall back on the argument that, absurd
    or not, this was the agreement that the respondents made.

[10]

The motion judge did not accept the appellants characterization
    of the APS as requiring the vendors to discharge standard easements. Although
    para. 26 of the APS required that in the event of conflict between an added
    provision and a standard provision, the added provision would supersede, the
    motion judge did not read para. 10 and Schedule A as being in conflict. The purpose
    of Schedule A, on the reading of the motion judge, was not to modify the
    obligations contained in para. 10, but to allow the obligations in para. 10 to
    be fulfilled by way of solicitors undertaking. Not only was this
    interpretation available to the motion judge, the alternative reading proposed
    by the appellants would have resulted in absurdity.

[11]

We do not see any reviewable error in the motion
    judges interpretation of the APS.

DISPOSITION

[12]

The appeal is dismissed. Costs are awarded to
    the respondents in the amount of $10,870, inclusive of HST and disbursements.

G.R.
    Strathy C.J.O.

David
    Brown J.A.

B.W.
    Miller J.A.


