



COURT OF APPEAL FOR ONTARIO

CITATION: Savo
    v. Moursalien, 2018 ONCA 981

DATE:
    20181204

DOCKET:
    C62236

Feldman,
    van Rensburg and Nordheimer JJ.A.

BETWEEN

Michael
    Savo

Plaintiff (Appellant)

and

Rasheed
    Moursalien

Defendant
    (Respondent)

Doug LaFramboise, for the appellant

Brent Cumming, for the respondent

Heard:  November 29, 2018

On appeal from the
    judgment of Justice Robert Charney of the Superior Court of Justice, dated May
    19, 2016 with reasons reported at 2016 ONSC 3326.

REASONS FOR DECISION

[1]

The plaintiff appeals from the summary judgment awarded by the motion
    judge in favour of the defendant for the return of a deposit of $50,000
    together with interest.  At the conclusion of the hearing, we dismissed the
    appeal with reasons to follow.  We now provide our reasons.

[2]

Michael Savo and Vera Robichaud were the owners of a property located at
    76 Forest Heights Blvd. in Kleinberg, Ontario.  They listed the property for
    sale in June 2014. The respondent agreed to purchase the property for
    $1,685,000 pursuant to an Agreement of Purchase and Sale, dated August 25, 2014
    (the APS).  The property had a pool, a cabana and a patio in the backyard.
    The sale was scheduled to close on November 28, 2014.

[3]

The APS stated that the purchaser was aware that there is existing
    easement of TransCanada Gas Line on the property and stated that he agreed to
    take the TransCanada easements as applicable.

[4]

Before closing the transaction, the respondent discovered that, in
    addition to a known easement in favour of TransCanada Pipeline (TCPL), there
    was a second TCPL easement in the backyard that ran directly under the pool,
    cabana and patio. This easement, along with a letter agreement, were both
    registered on title.  The letter agreement arose from the fact that the pool,
    cabana and patio had been constructed without the consent of TCPL.  The letter
    agreement required the appellant to enter into a formal agreement with TCPL by
    which he and TCPL would share the costs of removing the pool, cabana and patio,
    if that became necessary.  However, the formal agreement by which TCPL had the
    right to remove the pool and cabana, if necessary, was not registered on title
    because the appellant had refused to sign that agreement.  That refusal led to
    a lawsuit between the appellant and TCPL.  There was no reference in the APS to
    either the unsigned agreement or to the litigation arising out of these events.

[5]

All of these matters came to the attention of the respondent when, on
    November 6, 2014, the appellant contacted the respondent to request that he
    sign the formal TCPL agreement.  On November 7, 2014, the respondent advised
    the appellant that he would not close the deal.  He requested the return of the
    $50,000 deposit.

[6]

The appellant refused to return the deposit and brought this action for
    damages resulting from the respondents refusal to close the purchase.  The
    respondent commenced a counterclaim for the return of the $50,000 deposit.  The
    parties agreed to have the claim and counterclaim determined by way of a
    summary judgment motion.

[7]

As noted, there are two TCPL easements relating to the property.  The
    motion judge found, as a fact, that the respondent had only been told of one of
    the two easements before he entered into the APS, and that the appellant was in
    breach of the APS, which required title to the property to be free from all
    restrictions except those specifically provided for in the APS. The motion
    judge also found, as a fact, that the respondent had not been told of the
    outstanding litigation between the appellant and TCPL arising out of the second
    easement.  The motion judge further found that this second easement could have
    a significant effect on the respondents use and enjoyment of the property. The
    motion judge gave detailed reasons for his conclusions.

[8]

In order to succeed on his appeal, the appellant must show that the
    motion judge made palpable and overriding errors in reaching the factual
    conclusions that he did.  The appellant has failed to do so.  The record amply
    supports the factual findings that the motion judge made.

[9]

The appellants failure to disclose the second easement and the
    obligations arising from that easement, given the requirement to convey title
    subject only to restrictions specifically listed in the APS, justified the
    respondents refusal to complete the transaction.  Further, and in any event,
    there was nothing in the APS that required the respondent to sign the agreement
    with TCPL, which the appellant had contracted to do.  This also justified the
    respondents refusal to complete the transaction.  On either basis, the
    respondent was entitled to the return of the deposit and the motion judge was
    correct in granting summary judgment to that effect.

[10]

It
    is for these reasons that the appeal was dismissed.  The appellant will pay to
    the respondent the costs of the appeal fixed in the agreed amount of $6,000
    inclusive of disbursements and HST.

K.
    Feldman J.A.

K.
    van Rensburg J.A.

I.V.B.
    Nordheimer J.A.


