Amount forfeited by purchaser under agreement was not out of proportion to damages suffered

Plaintiff purchaser D agreed to purchase property from defendant vendor Y Corp. and provided deposits of $134,960 but failed to make last five deposits. Vendor gave several extensions of time to pay deposits before terminating agreement of purchase and sale. Purchaser brought action against vendor and real estate agent. Motion judge dismissed purchaser's motion for summary judgment, seeking relief from forfeiture of deposit and granted vendor's cross-motion for summary judgment on action, seeking forfeiture of deposit. Judge held that amount of deposit agreed to by purchaser, as foreign buyer, was not unconscionable. Judge found nothing in conduct between parties that was shocking, oppressive or offended notion of what caring society would expect in such relationship. Judge found that vendor acted diligently, fairly and to some extent to its disadvantage in not terminating agreement earlier. Purchaser appealed. Appeal dismissed. Judge's finding that there was nothing to justify finding of unconscionability was deferred to. Damages were significant and beyond mere difference in purchase price. It could not be said that amount forfeited by purchaser under agreement was out of proportion to damages suffered. Vendor's cross-motion for summary judgment was properly granted.

Dar v. The Yards Corporation (2019), 2019 CarswellOnt 6610, 2019 ONCA 362, Doherty J.A., Rouleau J.A., and Brown J.A. (Ont. C.A.); affirmed (2018), 2018 CarswellOnt 18975, 2018 ONSC 5043, H.K. O'Connell J. (Ont. S.C.J.).

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