Whelton Hiutin LLP lawyers Daniel McConville and Roshni Khemraj were recently successful in an appeal granting relief from forfeiture of a deposit in favour of a real estate purchaser. The case is noteworthy because it is exceptionally rare for Ontario courts to order the return of a deposit based on the doctrine of relief from forfeiture.
The case, Naeem v. Bowmanville Lakebreeze West Village Ltd., 2024 ONCA 383, involved a vendor who deliberately misled a purchaser into signing an amendment extending the closing date and amending the critical dates under the agreement’s Tarion Addendum. The vendor did so to fix its mistake of setting a closing date contrary to the critical date schedule under the Tarion addendum. Although the purchaser ultimately breached the agreement by failing to close, the Court of Appeal upheld the motion judge’s finding that, given the vendor’s conduct, it would be unconscionable for the vendor to keep the deposit in the circumstances. A copy of the decision can be found here.