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TERMS - Classification - Conditions - Conditions precedent

Friday, May 25, 2018 @ 8:26 AM  


Appeal by the plaintiff from an order of summary judgment dismissing his claim. The appellant was a real estate agent who wished to refinance two adjoining commercial properties. He contacted a mortgage agent with CIBC Mortgages' predecessor seeking a $600,000 mortgage. The agent recommended Home Trust as the lender. The appellant subsequently informed the agent that the property was owned by and registered under the company name of Network Cash Mart Ltd. (Network). The appellant executed a commitment letter on Home Trust letterhead in Network's name as mortgagor and his name as guarantor. The commitment was subject to a number of conditions including an appraisal of the properties reflecting a minimum value of $1.2 million. Home Trust had the right to terminate the commitment or decline to advance all or any part of the mortgage until all conditions of the commitment were met to Home Trust's satisfaction. The appellant was unable to satisfy the conditions in the commitment letter and the refinancing did not proceed. In particular, the appellant was unable to obtain an appraisal of the property for $1.2 million. Based on an appraisal Home Trust received, which valued the property at $600,000, Home Trust provided a new commitment for $390,000 subject to conditions. The appellant did not accept the new commitment, the first commitment remained unfulfilled, and the financing did not proceed. The appellant commenced an action against CIBC Mortgages' predecessor and Home Trust for damages for breach of contract and various other causes of action. The respondents successfully moved for summary judgment and the appellant's claim was dismissed. The motion judge concluded that the appellant had no cause of action because the property was owned by Network, not the appellant, and no damages were caused by the respondents. The appellant appealed. He argued that as a self-represented litigant, the judge should have assisted him and granted him an adjournment due to his and his mother's health and so he could bring an action in Network's name. He also claimed that the judge made factual errors and erred in her finding regarding the value of the property and the lack of proof of damages.

HELD: Appeal dismissed. An adjournment would not have made any difference to the outcome and, in any event, no adjournment was requested. In addition, the action could not have succeeded regardless of the name in which the action was brought. There was no reliable evidence that the property was valued at $1.2 million or that the appraised value of $600,000 was wrong. There was no obligation on the part of either respondent to secure the amount of the loan sought by the appellant. The evidence did not demonstrate any act or omission by the respondents that caused the appellant any loss.

Auciello v. 3877337 Canada Inc. (c.o.b. HLC Home Loans Canada) (appeal by CIBC Mortgages Inc.), [2018] O.J. No. 2065, Ontario Court of Appeal, S.E. Pepall, L.B. Roberts and B. Miller JJ.A., April 19, 2018. Digest No. TLD-May212018010