



COURT OF APPEAL FOR ONTARIO

CITATION: Dada v. Brantford Communities Ltd., 2018 ONCA 209

DATE: 20180302

DOCKET: C64186

Feldman, Benotto and Brown JJ.A.

BETWEEN

Olayinka Dada and Oluwatoyin Dada

Applicants

(Appellants)

and

Brantford
    Communities Ltd. and

Empire
    Pleasantview Communities Ltd.

Respondents

(Respondents)

Derek Schmuck, for the appellants

Brendan Clancy, for the respondents

Heard and released orally: February 26, 2018

On appeal from the judgment of Justice Alan Whitten of
    the Superior Court of Justice, dated July 18, 2017.

REASONS FOR DECISION

[1]

The appellants ask this court to find that the application judge
    misapprehended or ignored aspects of the evidence in finding that the
    appellants failure to close the purchase transaction was due to their own
    negligence and that of their lawyers.

[2]

We can see no error in the application judges findings based on the
    record before him, and no basis to interfere with his conclusion.

[3]

In holding that part of the consequences of that negligence was that the
    appellants would forfeit their deposit and upgrade fees paid, the application
    judge did not expressly refer to the concept of unconscionability: see
Redstone
    Enterprises v. Simple Technology Inc.
, 2017 ONCA 282, at para 15.

[4]

However, the application judge was aware from the record that the
    respondents resold the property before the hearing for an increase of $240,000
    over the original purchase price. In our view, given his finding of the
    appellants responsibility for the failure to close, the application judge did
    not consider the forfeiture of the deposit and upgrade fees to be unconscionable,
    in the circumstances, even though the respondent did receive a significant
    benefit.

[5]

The appeal is therefore dismissed, with costs fixed in the amount of
    $8,500, inclusive of disbursements and HST.

K.
    Feldman J.A.

M.L.
    Benotto J.A.

David
    Brown J.A.


