Know When to Fold ‘em
Mr. Ravichandran Nadaraja and Ms. Kalaiyarasi Nanthakumar (the “appellants”) listed a residential property located at 39 Dairis Cresecent in Markham, Ontario. Following negotiations and the execution of an agreement of purchase and sale, the appellants refused to close the transaction. The respondents sued for specific performance and won on a summary judgment. On appeal, the appellants claimed that the dispute should have proceeded to trial and that the remedy awarded was inappropriate.
On summary judgment, the motion judge found that the appellants were not credible because their testimonies were mutually inconsistent and further contradicted their own affidavits and the affidavit of their real estate agent.
The appellants appealed the summary judgment and the remedy awarded. The appellants argued that the motion judge’s finding on the issue of credibility coloured her decision on the issue of whether or not the matter was appropriate for proceeding by way of summary judgment. The appellants further argued that the respondents violated the rule in Brown v Dunne during cross-examinations by failing to give the appellants an opportunity to explain their contradictory evidence. Further, the appellants appealed the order for specific performance, arguing that the respondents should not be able to profit from the increase in value of the house during the four-year period of litigation and that the house was not unique and therefore inappropriate for a specific performance remedy. The Court of Appeal dismissed every argument.
A summary judgment is appropriate where the court is satisfied that it can: (1) make the necessary findings of fact; (2) apply the law to the facts; and (3) the process is a, proportionate, more expeditious and less expensive means to achieve a just result. In this case, the Court of Appeal found that the issue of credibility was central to the dispute and that the there was “ample evidence” to support the motion judge’s findings.
The rule in Browne v Dunn requires counsel to allow a witness to review contradictory evidence and explain any discrepancies during cross examination. The purpose of the rule is to prevent a situation where counsel can ambush a witness with seemingly contradictory evidence. In such instances, it is necessary for the proper administration of justice to allow the witness to first review the evidence and provide a response. In this instance, however, the contradictory evidence came by way of the appellants’ own testimonies. As such, there was no concern that the appellants were being ambushed and the rule did not apply in this instance. The Court of Appeal found, therefore, that the respondents did not violate the rule in Browne v Dunn.
The Court of Appeal deferred to the motion judge’s finding that specific performance was appropriate in this circumstance because the property was unique and any delays caused by the respondents were insufficient to disentitle them from a remedy for specific performance. The Court of Appeal upheld the motion judge’s award of costs to the plaintiffs of $90,415, and awarded an additional $18,000 for the costs of appeal.
Providing false information in an affidavit is never a good idea in litigation because it exposes litigants to both criminal and civil sanctions. In this case, the appellants would have saved, at the very least, $108,415 if they agreed to settle the case before it went to trial. Likely, they could have saved more.
The above article is for general information purposes only and does not constitute legal advice. If you have concerns with regard to the foregoing issues, please make an appointment with one of our lawyers or a qualified legal practitioner elsewhere.