



COURT OF APPEAL FOR ONTARIO

CITATION: Vatcher v. Quazi, 2019 ONCA 18

DATE: 20190114

DOCKET: C65012

Rouleau, van Rensburg and Zarnett JJ.A.

BETWEEN

Matthew
    Vatcher, Samantha Janetos Vatcher

and Mary Janetos

Plaintiffs (Respondents)

and

Dilruba Raihan Quazi, MD Khalequzzaman

and Forest Hill Real
    Estate Inc.

Defendants (
Appellants
)

David Marcovitch, for the appellants

Terry Corsianos, for the respondents

Heard and released orally: January 7, 2019

On appeal from the judgment of Justice Peter J. Cavanagh of
    the Superior Court of Justice, dated January 26, 2018.

REASONS FOR DECISION

[1]

This appeal concerns a house purchase.  The appellants agreed to
    purchase the respondents property.  After the market declined and they were
    unable to sell their own home, they failed to complete the purchase.  The
    respondents sued for damages, ultimately selling the house at a lower price. 
    They were awarded summary judgment for $135,841.24 and $8,000 in costs.

[2]

Three arguments are raised on appeal.

[3]

First, the appellants, who were self-represented throughout the
    proceedings in the Superior Court, argue that they were denied procedural
    fairness.  In particular, they say that the motion judge ought to have adjourned
    the motion so that they could obtain the evidence of their broker in response
    to motion, as well as legal counsel.  They also assert that the scheduling of
    the motion did not take into consideration their personal circumstances and
    that they ought to have been given time to provide responding materials.

[4]

We do not give effect to this ground of appeal.  Although the appellants
    did not attend court on the date that the motion was scheduled, the scheduling
    judge made it clear in his endorsement that they could move for an
    adjournment.  The appellants were aware of the requirements and deadlines for
    submission of responding materials.  They did not respond to a letter from
    opposing counsel setting out a proposed schedule.  On the day of the hearing of
    the motion, the motion judge made every effort to assist the appellants who had
    not filed any materials in response to the motion.  Although they did not
    request an adjournment, the motion judge explored with them the option of
    retaining counsel and whether they had a defence to the respondents claim. 
    Although the appellants referred to the broker having given certain assurances,
    there was no indication, even after probing by the motion judge, that the
    broker could offer evidence to assist in the defence of the motion or that the
    appellants were seeking an adjournment to put forward evidence.  Indeed, it was
    only after the motion judge read out his reasons granting the motion that the
    appellants requested an adjournment and suggested that they wanted the opportunity
    to bring the broker to court.  The refusal at that stage to grant an
    adjournment was a proper exercise of the motion judges discretion and there
    was no unfairness in how the motion proceeded.

[5]

The appellants second argument is that the motion judge erred in
    rejecting their interpretation of the agreement.  According to the respondents
    affidavit, the appellants offer to purchase contained conditions that they did
    not accept and struck out.  Instead, their agent inserted a handwritten notation
    buyer to provide additional deposit of $10,000 as soon as buyer sells property
    located at Kennedy/Eglinton  131 Treverton and after deal is closed we will
    provide the money.  The respondents evidence was that this term was inserted
    for their benefit as they were dissatisfied with the amount of the deposit.

[6]

The motion judge concluded that the inserted words did not make the
    agreement conditional.  The words only addressed the deposit.  There is no
    reason to interfere with the motion judges interpretation of the agreement
    which was reasonable and entirely consistent with the evidence.  Again, the
    explanation for the failure to close the transaction at the time was that the
    market had declined and the appellants were unable to get a mortgage.  The
    appellants offered to negotiate a lower purchase price, but did not take the
    position that the agreement was conditional.

[7]

Finally, the appellants assert that the motion judge erred in his
    conclusion that the respondents had mitigated their damages when they sold the
    property for $610,000 in October 2017, three months after the scheduled closing
    with the appellants and for $120,000 less than the amount the appellants had
    agreed to pay.  We disagree.  The respondents delivered a supplementary
    affidavit that referred to the downturn in the market and the sale they were
    able to conclude.  This evidence, which was unchallenged at the motion, was
    sufficient to support their claim for damages and adequately demonstrated their
    efforts to mitigate.

[8]

For these reasons, the appeal is dismissed.  Costs to the respondents
    fixed at $7,500 inclusive of HST and disbursements.

Paul Rouleau J.A.

K. van Rensburg J.A.

B. Zarnett J.A.


