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Non Est Factum

Spiridakis v. Li 2021 Ont CA

Vendor terminated agreement before closing when purchasers admitted that they did not have funds to close the purchase. Time of the essence clause meant that the parties agreed that the time limit manifested by the fixed closing date was an essential term, such that breach of it would permit the innocent party to terminate the agreement. The notification of purchasers’ inability to close was an anticipatory breach and had been accepted. The motion judge properly granted summary judgment for its damages. Purchasers were not mistaken, as a result of a misrepresentation or otherwise, as to the nature or character of the transaction. The only assertion of a mistake related to the consequences of the breach. It was not a partial summary judgment; it was a complete summary judgment. The judge did consider whether the issues in the main action and the third party action against purchasers’ lawyer and real estate agent were so intertwined that there was potential for inconsistent findings and concluded there were not. The Court of Appeal agreed.

Written by Jonathan Speigel, the founding partner of Speigel Nichols Fox LLP, leads the litigation and construction practices.