



COURT OF APPEAL FOR ONTARIO

CITATION: 1303943 Ontario Inc. v. Dajlan Troka (In Trust),
    2019 ONCA 280

DATE: 20190408

DOCKET: C65945

Simmons, Juriansz and Miller JJ.A.

BETWEEN

1303943 Ontario Inc. and Erin Patricia Dowse

Applicants (Respondents)

and

Dajlan Troka In Trust
,
Isabella
    Troka Enterprises Inc.

and
    RE/MAX West Realty Inc.

Respondents (
Appellants
)

Marek Z. Tufman and G.A.P. Tufman, for the appellants

M. Gosia Bawolska and Kara L. Denny, for the respondents

Heard: April 5, 2019

On appeal from the judgment of Justice Sandra Nishikawa
    of the Superior Court of Justice, dated September 4, 2018.

APPEAL BOOK ENDORSEMENT

[1]

We reject the appellants argument that the application
    judge erred in failing to convert the application and counter-application to an
    action. In our view, although the application judges reliance on s. 3 of the
Vendors
    and Purchasers Act
was misplaced, the
    application was authorized under rr.14.05 (3) (d) and (h).

[2]

The appellants
    allegations and continued negotiations were irrelevant to whether the
    respondents were
prima facie
entitled to the deposits. That question was squarely within r. 14.05
    (3) (d) as it involved interpretation of the written contracts.

[3]

There were no material
    facts in dispute concerning the appellants claim for relief from forfeiture.
    The application judge found the issues of fact raised by the appellants more
    apparent than real and inconsistent with the written record. We agree with that
    conclusion and with her conclusion that the experts report was not submitted
    in the form of admissible evidence.

[4]

Finally, the deposits were true
    deposits and there was no evidence to support a finding that retaining them was
    disproportionate or unconscionable on the facts of this case. Appeal dismissed.

[5]

Costs of the appeal are to the respondents on a partial indemnity scale
    fixed in the amount of $7,000, inclusive of disbursements and HST.


