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SALE OF LAND - Agreement of purchase and sale - Breach of - Specific performance

Friday, July 24, 2020 @ 6:55 AM  

Lexis Advance® Quicklaw®
Appeal by the defendant purchaser from the respondent’s successful summary judgment motion for specific performance of their agreement of purchase and sale. Pursuant to the agreement, the respondent agreed to build a customized home for the appellant. A week before the date scheduled for closing, two years after the agreement was signed, the appellant claimed the agreement was null and void. The appellant asserted that as a Mandarin-speaking purchaser, he did not understand an environmental remediation clause in the agreement. He deposed he was pressured into the purchase and was not given the opportunity to have a solicitor review the agreement. The appellant had a Mandarin-English speaking real estate agent throughout the purchase. He specifically initialed the crossing out of the condition involving solicitor review. The motion judge refused the appellant’s application for an adjournment made on the eve of the motion. She found there was no foundation for setting aside the agreement. The appellant sought to adduce fresh evidence suggesting the home was listed for sale.

HELD: Appeal dismissed. The motion judge correctly concluded the appellant’s evidence did not support the suggestion that there were misrepresentations. The appellant was afforded natural justice. There was no error in the motion judge’s conclusion that the home was unique and that damages would not be an adequate or complete remedy or substitute for specific performance. There was clear evidence of an e-mail exchange between counsel that strongly suggested the listing of the home involved an administrative error that was immediately remedied. The application to adduce fresh evidence was dismissed.

Country Wide Homes Upper Thornhill Estates Inc. v. Ge, [2020] O.J. No. 2770, Ontario Court of Appeal, D.H. Doherty, C.W. Hourigan and J.M. Fairburn JJ.A., June 22, 2020. Digest No. TLD-July202020010