Purchaser could not take position that her unit was not complete for purposes of closing because of failure to complete common elements

Parties entered into agreement of purchase and sale of condominium unit including disclosure statement regarding parkette and gates. Vendor granted purchaser's request for extension of closing date. On closing date purchaser sought further extension until completion of parkette and gates and advised should vendor not intend to construct same, purchaser reserved right to rescind agreement due to material change to disclosure documentation of which vendor failed to give notice. On day following closing, vendor advised there was no material change to disclosure statement, dwelling was complete, purchaser failed to complete closing, and due to default, vendor was terminating agreement, taking forfeiture of deposits, and reserving right to other remedies for losses incurred. Purchaser brought application for refund of her deposit. Vendor brought application for determination of its rights under agreement. Purchaser's application dismissed. Vendor's application granted to extent that based on interpretation of agreement, purchaser breached agreement, entitling vendor to terminate, keep deposit, and sue for damages. Trial ordered regarding quantum of damages over and above forfeited deposit suffered by vendor due to purchaser's breach. Pursuant to agreement, purchaser could not take position that her unit was not complete for purposes of closing because of failure to complete common elements (parkette and gates). Legislature did not consider change in construction schedule for amenities to be material change. Since purchaser failed to close, which she had no right to do, vendor was entitled to terminate agreement and retain deposit, as provided in agreement. Purchaser could not rescind agreement where there was no longer any agreement to rescind.

Brookfield Residential (Ontario) Limited v. Lin (2018), 2018 CarswellOnt 21684, 2018 ONSC 7683, H. Sachs J. (Ont. S.C.J.).

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