



COURT OF APPEAL FOR ONTARIO

CITATION: Sivasubramaniam v. Mohammad, 2019
    ONCA 242

DATE: 20190327

DOCKET: C65501

Lauwers, Benotto and Brown JJ.A.

BETWEEN

Shripragas Sivasubramaniam

Applicant (Respondent)

and

Yar Mohammad and Jamila
    Khudabakhsh

Respondents (Appellants)

Eric Sherkin, for the appellants

Garth B. Dingwall, for the respondent

Heard and released orally:
    March 25, 2019

On appeal from the judgment of Justice Robert
    Charney of the Superior Court of Justice, dated May 16, 2018, with reasons
    reported at 2018 ONSC 3073, 98 R.P.R. (5th) 130.

REASONS FOR DECISION

[1]

The appellants, Yar Mohammad and Jamila
    Khudabakhsh (the Vendors), appeal from the judgment of the application judge
    granting the respondent, Shripragas Sivasubramaniam (the Purchaser), specific
    performance of the Agreement of Purchase and Sale dated March 8, 2015 (the
    Agreement) of residential property located in Ajax, Ontario.

[2]

The Vendors do not take issue with the findings
    of the application judge that they breached the Agreement by failing to provide
    vacant possession of the property on the closing date and that the Purchaser
    did not terminate the Agreement but called for continued performance.

[3]

The Vendors advance a single ground of appeal
    regarding the remedy of specific performance. They submit that the application
    judge erred in granting specific performance of the Agreement when the
    Purchaser waited 17 months after the date of breach before commencing his application.

[4]

We see no error. The application judge correctly
    identified the applicable legal principles. The Vendors have not persuaded us
    that the application judge made any palpable and overriding errors in his
    factual findings that: the property was unique; an award of damages would not
    meaningfully do justice between the parties; the Purchasers delay was not
    sufficient in the circumstances to disentitle him from obtaining an order for
    specific performance; and no hardship to the Vendors existed at the time the
    Agreement was made.

[5]

In sum, we see no error in principle in the
    application judges exercise of his discretion to grant specific performance.

[6]

The appeal is dismissed.

[7]

The respondent is entitled to his costs of the
    appeal fixed on a partial indemnity basis in the amount of $10,000, inclusive
    of disbursements and applicable taxes.

P.
    Lauwers J.A.

M.L.
    Benotto J.A.

David
    Brown J.A.


