



COURT OF APPEAL FOR ONTARIO

CITATION: Zadeh v. Khaibari, 2019 ONCA 253

DATE: 20190329

DOCKET: C65853

van Rensburg, Hourigan and Huscroft JJ.A.

BETWEEN

Shaghayegh Chiti Zadeh

Applicant

(Respondent)

and

Alireza Khaibari, also known as Alireza Khibari

and Homelife Landmark
    Realty Inc., Brokerage

Respondents

(
Appellant
)

Dheeraj Bhatia, for the appellant Alireza Khaibari

John Lo Faso and David Morawetz, for the respondent
    Shaghayegh Chiti Zadeh

Heard: March 27, 2019

On appeal from the
    order of Justice Jocelyn Speyer of the Superior Court of Justice, dated August
    10, 2018, with reasons reported at 2018 ONSC 4667.

REASONS FOR DECISION

[1]

The appellant argues that the application judge erred in virtually all
    of her conclusions concerning the respondents application arising out of a
    failed agreement of purchase and sale (the APS).

[2]

We see no merit in any of the appeal grounds raised.

[3]

First, the application judge did not err in concluding that the
    respondent had standing to sue on the APS. She was the legal owner of the
    property and was party to the APS. As the application judge noted at para. 20
    of her reasons, there was no evidence about the arrangements between the seller
    and her brother. The respondents lack of involvement in and knowledge of the
    sales process (for example, not knowing who hired the realtor in the disputed
    transaction) was simply irrelevant to her standing to bring the application.
    Again, as the application judge noted, the respondents lack of knowledge might
    impact on the evidentiary value of her affidavits, but it does not affect her
    standing. We see no error.

[4]

Second, the appellant repeats the argument advanced before the
    application judge that he was not required to pay the second deposit called for
    in the APS. This argument rests on a reading of the correspondence that it
    cannot bear, and the application judge made no error in rejecting it. Her
    conclusion that there was no oral agreement to delay payment was supported by
    the evidence, as was her conclusion that the respondent did not breach the APS
    by failing to provide the original survey and clear title to the property. The
    application judge found on the available evidence that a copy of the survey was
    provided within the time period provided for in the APS. There is no basis to
    interfere with that finding.

[5]

Third, the application judge properly concluded that the respondents
    failure to discharge an existing private mortgage by July 4, 2017, when the
    appellant sent his letter demanding the return of the first deposit, could not constitute
    a breach because the closing was not scheduled to occur until one week later,
    on July 11, 2017, and title-related breaches are assessed at the closing date.

[6]

Fourth, the application judge made no error in concluding that the
    appellants July 4, 2017 letter constituted anticipatory breach. Counsel for
    the appellant asserted no less than five times that the APS was null and void and
    demanded return of the deposit. Nor is there any merit in the appellants
    contention that the respondent did not terminate the contract as a result of
    the appellants anticipatory breach. He did precisely that in clear terms in
    his letter of July 5, 2017.

[7]

Finally, the appellant raises another issue that is not developed in his
    factum. Counsel submits that he was not provided with sufficient time to make
    his submissions before the application judge, although he provided written
    submissions at the application judges request. We would not give effect to
    this ground of appeal. The appellant did not file a transcript or any other
    evidence to support this ground of appeal.

[8]

The appeal is dismissed.

[9]

The respondent is entitled to costs in the agreed amount of $15,000,
    inclusive of taxes and disbursements.

K. van Rensburg J.A.

C.W. Hourigan J.A.

Grant Huscroft J.A.


