



COURT OF APPEAL FOR ONTARIO

CITATION: Datta v. Eze, 2021 ONCA 340

DATE: 20210520

DOCKET: C68638

Juriansz, van Rensburg and
    Sossin JJ.A.

BETWEEN

Parag Datta and Tandra Acharjee

Plaintiffs (Respondents)

and

Okey Fabian Eze and Zachary Eze as Litigation

Administrator for the Estate of Okey Eze

Defendants (Appellants)

Sam Presvelos and Evan Presvelos, for
    the appellants

Sukh Jagpal, for the respondents

Heard: May 3, 2021 by video
    conference

On appeal from the judgment of Regional
    Senior Justice Leonard Ricchetti of the Superior Court of Justice dated August
    13, 2020, with reasons reported at 2020 ONSC 4796.

REASONS FOR DECISION

[1]

The appellants, as vendors, failed to close a
    transaction for the sale of residential real estate at 6 Lonetree Court in
    Brampton for $940,000. The transaction was scheduled to close on September 28,
    2016. On September 7, the appellants solicitor wrote to the respondents
    solicitor, purporting to rescind the transaction. The respondents commenced an
    action on September 27, 2016, suing for breach of the agreement of purchase and
    sale, and, taking the position the property was unique, claimed specific performance.

[2]

The respondents accepted the return of their
    $45,000 deposit and, because of their fear of being priced out of the rising
    market, purchased another smaller property at 10 Solstice Street in December
    2016 for the price of $945,000.

[3]

The respondents brought a motion for summary
    judgment returnable on May 1, 2019. In the affidavit supporting the motion,
    they advised they were no longer seeking specific performance, but rather
    damages in lieu of specific performance as the subject property has increased
    significantly in value. In February 2020 the motion judge granted the
    respondents partial summary judgment, finding that the appellants had breached
    the agreement and that the respondents were entitled to certain expenses
    resulting from the failed transaction (which are not an issue on appeal), and
    ordered a reference as to the respondents claim for additional damages, based
    on the increased value of 6 Lonetree less the increased value of 10 Solstice.

[4]

The reference was heard on July 16, 2020. The
    motion judge granted the respondents their claim for the increased value of 6
    Lonetree less the increased value of 10 Solstice calculated on the basis of
    appraisals conducted in March 2020. This amounted to $150,000.

[5]

On appeal, the appellants advance two arguments:

1.

The respondents had no entitlement to claim specific performance or
    damages in lieu of specific performance as they had accepted the return of
    their deposit on the 6 Lonetree property; and

2.

The motion judge should not have used the March 2020 appraisals.
    Rather, he should have used later appraisals from July 2020 or the actual sale
    price of the 10 Solstice property, which the respondent sold in July 2020.

[6]

The respondents submit that the effect of the
    return of the deposit was not raised in the proceedings below and is a new
    issue that should not be entertained on appeal. They submit the motion judge
    had discretion to choose the appraisals on which he would rely. The respondents
    contend that using the later appraisals would reward the appellants for their
    shocking and outrageous delay in the proceedings.

The Effect of the Return of Deposit

[7]

Before the motion judge, the appellants never
    raised that the respondents were not entitled to specific performance on the
    basis that the deposit had been returned. In his reasons, the motion judge observed
    only in passing that the deposit had been returned.

[8]

The appellants urge the court to exercise its discretion
    to entertain the new argument, submitting that by refusing to do so the court
    would accept an error of law. We do not accept that is the case. In
Semelhago
    v. Paramadevan
, [1996] 2 S.C.R. 415, the Supreme Court doubted that
    specific performance was available as a matter of law, but dealt with the
    appeal on the basis it was available as that was how the parties had proceeded
    in the courts below.

[9]

As this court observed recently in
7550111
    Canada Inc. v. Charles
, 2020 ONCA 386, at para. 14, the introduction of a
    new issue on appeal is usually prejudicial to the respondent and runs counter
    to the societal interest in finality and the expectation that cases will be
    disposed of fairly, fully and expediently at first instance.

[10]

We decline to entertain argument about the
    effect of the return of the deposit. Rather, we consider it fair and
    appropriate to deal with the calculation of damages upon the basis the parties
    proceeded before the motion judge.

Calculation of Damages

[11]

The next question is to what damages are the
    respondents entitled. The parties disagree about which appraisals the motion
    judge should have relied upon in calculating damages based on the difference in
    the increased values of the two properties.

[12]

An appraiser jointly retained by the parties
    provided appraisals of the two properties as of July 2019. The respondents filed
    updated appraisals prepared by the same appraiser estimating the value of the
    two properties as of March 2020 and as of July 2020. The appellants filed
    additional appraisal reports in advance of the reference, but the motion judge
    identified concerns about the appraisals and gave them no weight, as the
    appraiser was not made available for cross-examination. The motion judge used the
    March 2020 appraisals to calculate the damages.

[13]

The appellants submit the motion judge should
    have used the July 2020 appraisals as these are the closest to the date of
    judgment. In
Semelhago,
Sopinka J. said, in speaking of damages in lieu
    of specific performance, that [t]
echnically speaking, the date of
    assessment should be the date of judgment: at para. 18. However, he went on to
    explain that it is not usually possible to predict the date of judgment when
    the evidence is given, and so for practical purposes damages will usually be
    assessed as of the date of trial.

[14]

The appellants put forward a more telling reason why the motion
    judge should have used the July 2020 appraisals  10 Solstice was sold in July
    and the appraised value corresponded with the sale price.

[15]

We agree with the respondents that as a general proposition a
    trial judge has discretion
to choose which appraisals are to
    be used in the calculation of damages
. However, the appraisals of 10
    Solstice were estimates of the propertys value. The sale price of the property
    was the best indication of its value. For that reason, we are of the view the
    motion judge should have provided an explanation for why the sale price was not
    used to calculate damages. As he gave no explanation, we would recalculate
    damages using the July 2020 figures.

[16]

The parties are agreed that the difference in the increased
    values of the two properties using the July 2020 figures reduces this head of
    damages to $56,000.

[17]

In oral submissions the appellants did not address the argument
    in their factum that the amount of the damages should be reduced by the amount
    of the deposit returned to the respondents. If not abandoned, we regard the
    argument to lack merit. Since there was no finding in the court below on this
    issue, which was apparently not raised before the motion judge, it is
    inappropriate to determine this issue on appeal.

Conclusion

[18]

We allow the appeal and order that the
    respondents shall have judgment for this head of damages in the amount of
    $56,000.

[19]

Counsel have agreed on costs.

R.G. Juriansz J.A.

K. van Rensburg J.A.

L. Sossin J.A.


