



COURT OF APPEAL FOR ONTARIO

CITATION: Lin v. Brookfield Homes (Ontario) Limited, 2019
    ONCA 706

DATE: 20190909

DOCKET: C66433 & C66434

Strathy C.J.O., MacPherson and Tulloch JJ.A.

C66433

BETWEEN

Xiao Qing Lin

Applicant (Appellant)

and

Brookfield Homes (Ontario) Limited

Respondent (Respondent)

C66434

AND BETWEEN

Brookfield Residential
    (Ontario) Limited

Applicant (Respondent)

and

Xiao Qing Lin

Respondent (Appellant)

Rebecca Huang and Zina Rita, for the appellant

Neil G. Wilson and Yolanda Song, for the respondents

Heard: September 6, 2019

On appeal from the
    judgment of Justice Harriet Sachs of the Superior Court of Justice, dated December
    21, 2018, with reasons reported at
2018 ONSC 7682
.

REASONS FOR DECISION

[1]

On November 2, 2016, the appellant Xiao Qing Lin signed an Agreement of
    Purchase and Sale (APS) to buy a pre-construction condominium detached house
    unit from the respondent Brookfield Homes (Ontario) Limited. The purchase price
    was $1,657,107.86 and Ms. Lin made a deposit of $133,031.09. The closing date
    was December 13, 2017, later amended on consent to December 20, 2017 and then,
    again on consent, to December 21, 2017.

[2]

On December 21, 2017, Ms. Lins real estate solicitor wrote to Brookfields
    solicitor:

My client has advised that construction of a number of common
    elements has not begun , including the parkette and the entrance/exit gates,
    contrary to the Disclosure Statement provided to my client, which explicitly
    states that a parkette is to be constructed, and that the project is to be a
    gated community.



In the event that the Vendor no longer intends to construct the
    parkette or entrance/exit gates, my client reserves the right  to rescind the
    agreement as a result of the
material change
to
    the disclosure documentation, of which the Vendor has failed to give my client
    notice. [Emphasis in original.]

[3]

On December 22, 2017, Brookfields solicitor advised that there was no
    material change in the disclosure statement and that, as a result of Ms. Lins
    failure to complete the transaction on the closing date, Brookfield was terminating
    the APS, forfeiting Ms. Lins deposit, and reserving its right to exercise
    other remedies.

[4]

On January 2, 2018, Ms. Lins solicitor again reserved her clients
    right to rescind the agreement. On January 3, 2018, Ms. Lin herself explicitly
    rescinded the agreement and demanded the return of her deposit.

[5]

On January 18, 2018, Ms. Lin commenced an application, seeking return of
    her deposit. On January 30, 2018, Brookfield commenced an application, seeking,
inter alia
,

a declaration that Ms. Lin breached the APS by
    failing to close, that Ms. Lin is not entitled to a return of her deposit, and
    that Brookfield is entitled to claim additional damages for that breach
    (Brookfield sold the property on June 22, 2018 for $1,300,000, a loss of
    $357,107.86).

[6]

The two applications were heard by Sachs J. who decided in favour of Brookfield.
    The application judge concluded:

[32] For these reasons, I am dismissing the Purchasers
    application for a return of her deposit. I am allowing the Vendors application
    to the extent that based on an interpretation of the Agreement of Purchase and
    Sale between the parties, the Purchaser breached that Agreement, entitling the
    Vendor to terminate the Agreement, keep the Purchasers deposit and sue for
    damages. I am ordering a trial of an issue with respect to the issue of the
    quantum of damages over and above the forfeited deposit suffered by the Vendor
    as a result of the Purchasers breach.

[7]

Ms. Lin appeals on four grounds.

[8]

First, Ms. Lin contends that the application judge erred in her
    interpretation of the purchasers right of rescission under the
Condominium
    Act
, S.O. 1998, c.19.

[9]

We do not accept this submission. We agree with the application judge
    that the issue raised by Ms. Lin to justify her refusal to complete the
    purchase on the contractual closing date  the non-construction, at that point,
    of the parkette and entry and exit gates  was not a material change in
    circumstances within the meaning of s. 74 of the
Condominium Act
.

[10]

Second,
    Ms. Lin asserts that the application judge erred by finding that the entry and
    exit gates were amenities, rather than essential features of the community.

[11]

We
    are not persuaded by this submission. Again, Ms. Lin raises this issue in an
    attempt to bring herself within the material change language of the
Condominium
    Act
. The timing of the construction of the gates was not a material
    change, as reflected by s. 2 of Schedule G of the APS:

In any event, the Purchaser acknowledges that failure to
    complete other units within the Condominium in which the Unit is located,
or the common elements
on or before the Occupancy Date
    shall not be deemed to be a failure to complete the unit. [Emphasis added.]

[12]

The
    gates were common elements. In addition, we note that the gates, and the
    parkette, were constructed and are part of the development.

[13]

Third,
    Ms. Lin asserts that the application judge committed a palpable and overriding
    error in finding that Brookfield intended to build a gated community as of the
    closing date  i.e. December 20, and then December 21, 2017.

[14]

We
    disagree. In response to a comment by Ms. Lins solicitor in her letter to Brookfields
    solicitor on December 21, 2017  In the event that the Vendor no longer
    intends to construct the parkette or entrance/exit gates   Brookfields  solicitor
    replied: The parkette and entrance/exit gates do not need to be installed in
    order to complete this transaction. Given the relevant language of the APS,
    this was a correct response: time was not of the essence with respect to their
    construction.

[15]

Fourth,
    Ms. Lin contends that the application judge erred by relying on section 21
    (Default) of the APS to allow Brookfield to retain Ms. Lins deposit after Ms. Lin
    refused to close the transaction. Ms. Lin says that Brookfield did not plead section
    21 of the APS.

[16]

We
    do not accept this submission. Brookfield pleaded the APS, of which section 21
    is an obvious provision in a residential property case.

[17]

The
    appeal is dismissed. Brookfield is entitled to its costs of the appeal fixed at
    $15,000, inclusive of HST and disbursements.

G.R. Strathy C.J.O.

J.C. MacPherson J.A.

M. Tulloch J.A.


