



COURT OF APPEAL FOR ONTARIO

CITATION: Forest Hill Homes (Cornell Rouge) Limited v. Hon,
    2021 ONCA 774

DATE: 20211102

DOCKET: C68861

Doherty, Miller and Sossin JJ.A.

BETWEEN

Forest Hill Homes (Cornell Rouge) Limited

Plaintiff (Respondent)

and

Kay Hon

Defendant (Appellant)

Peter Doyun Kim and Richard An, for the appellant

Shane Greaves, for the respondent

Heard: October 25, 2021 by video conference

On appeal from the judgment of Justice Audrey P. Ramsay of
    the Superior Court of Justice on October 19, 2020; reported at 2020 ONSC 6321.

REASONS FOR DECISION

[1]

The respondent developer sold a yet-to-be-built home to the appellant. The
    transaction was not scheduled to close until many months later. Prior to the
    closing, the value of the property had dropped significantly. The appellant
    advised the respondent she was out of the country and could not close the
    transaction for personal reasons. The respondent offered to extend the closing
    date. The appellant did not respond to that offer. The appellant did not close.
    The respondent sued the appellant and moved for summary judgment.

[2]

By the time of the summary judgment motion, the appellant had added a
    counterclaim and issued a third party claim. Among the defences advanced on the
    summary judgment motion, was a claim that an agent, Romi Lau, who was in fact the
    respondents agent on the transaction, had falsely told the appellant she was
    the appellants agent.

[3]

The motion judge granted summary judgment in favour of the respondent on
    the claim and the counterclaim. There was no motion for summary judgment on the
    third party claim, although the pleadings in that claim were part of the record
    filed on the summary judgment motion.

[4]

The appellant first argues the motion judge made a clear and palpable
    error in finding that Ms. Lau did not represent to the appellant that she was
    the appellants agent on the transaction. The trial judge concluded the
    appellant knew Ms. Lau acted for the respondent.

[5]

There is no error in the trial judges factual finding. On the
    appellants own evidence, Ms. Lau represented to the appellant that she acted
    for the respondent. In addition, the acknowledgment provision in the agreement
    selling the property to the appellant identified the sales agents as agents for
    the vendor (respondent). Finally, again on the appellants own evidence, she
    met Ms. Lau in the respondents sales office.

[6]

This evidence provided ample grounds for the trial judges factual
    finding that there was no misrepresentation as to Ms. Laus status.

[7]

The appellant next submits the motion judge should not have granted summary
    judgment on the claim and counterclaim as long as the third party proceedings
    remained outstanding. The appellant argues this action and the third party
    proceedings were so intertwined as to make it contrary to the public interest
    to grant summary judgment on only one part of the whole.

[8]

We reject this argument. While the factual narrative is common to the
    main action, the counterclaim and the third party claim, the claims advanced by
    the appellant against the agents in the third party claim are entirely
    different than the claims advanced by the appellant and the respondent in the
    main action and counterclaim. The issues raised on the summary judgment motion
    could be expeditiously and justly determined while leaving the third party
    claim to adjudication at a later point.

[9]

The appellant further submits the motion judge wrongly made findings of
    fact and law applicable to issues relevant to the third party proceedings. The
    appellant contends that the third party proceedings were not before the motion
    judge for adjudication and that the findings made by the motion judge may
    unfairly subject the appellant to
res judicata
claims in the third
    party proceedings.

[10]

We do not agree that the trial judges observations at paras. 51-53
    amounted to findings of fact or law in respect of issues relevant to the third
    party claim. However, to avoid the possibility of any prejudice to the
    appellant, it should be clear that nothing said by the motion judge should be
    taken as a finding of fact or law, binding on the court that ultimately hears
    the third party claims.

[11]

The appeal is dismissed.

[12]

Costs to the
    respondent on a partial indemnity basis, fixed at $15,000, inclusive of
    disbursements and relevant taxes.

Doherty J.A.

B.W. Miller J.A.

L. Sossin J.A.


