



COURT OF APPEAL FOR ONTARIO

CITATION: Conlon (Re), 2018 ONCA 934

DATE: 20181120

DOCKET: C65407

Hoy A.C.J.O., Feldman and Huscroft JJ.A.

BETWEEN

Mikmada Development
    Group Inc. in Trust for a Company to be Formed

Applicant (Appellant)

and

Michael Patrick Conlon and Sandra Janet Campbell

Respondents (Respondents)

Barry Eakins, for the appellant

Andrea M. Habas, for the respondents

Heard and released orally: November 15, 2018

On appeal from the
    judgment of Justice Marvin Kurz of the Superior Court of Justice, dated April
    23, 2018, with reasons reported at 2018 ONSC 2598, [2018] O.J. No. 234 (Sup.
    Ct.).

REASONS FOR DECISION

[1]

This appeal arises out of a failed real estate transaction.

[2]

Counsel for the respondent sellers gave written notice to the appellant
    that the respondents were treating the agreement of purchase and sale (the
    Agreement) as void and of no further legal effect because of the
    appellants failure to pay a further deposit due under the Agreement.

[3]

The application judge agreed that the respondents were entitled to treat
    the Agreement as at an end, and that their counsels notice had terminated the Agreement.
    He further found that the respondents did not waive their termination of the Agreement
    by, among other things, negotiating with the appellant following termination.

[4]

The appellant does not challenge the application judges finding that
    the respondents termination of the Agreement was effective. It argues that the
    application judge erred in his understanding and application of the doctrine of
    waiver.

[5]

We disagree.

[6]

At para. 35 of his reasons, the application judge correctly set out the
    law of civil waiver, as summarized by this court in
Technicore Underground
    Inc. v. Toronto (City)
, 2012 ONCA 597, 354 D.L.R. (4th) 516. How the
    application judge applied this law to the facts of this case is a matter which
    attracts deference from this court.

[7]

We reject the appellants argument that the fact that the negotiations
    between the parties took place following the termination of the Agreement was
    not a proper consideration. The application judges conclusion that the
    respondents did not waive their right to insist upon time being of the essence,
    or their termination of the Agreement based on the appellants breach, is amply
    supported by the record. We see no basis to interfere with it. Moreover, we
    agree with the application judge that the continued negotiations following
    termination support the conclusion that the respondents were not prepared to
    close in accordance with the Agreement, but were prepared to complete a
    transaction on different terms.

[8]

Accordingly, the appeal is dismissed. The respondents are entitled to
    the costs of their appeal fixed in the amount of $14,000, inclusive of HST and
    disbursements.

Alexandra
    Hoy A.C.J.O.

K.
    Feldman J.A.

Grant
    Huscroft J.A.


