PERFORMANCE AND DISCHARGE - Substantial performance

Law360 Canada (July 9, 2022, 6:18 AM EDT) -- Appeal by the appellants from the trial judge’s conclusion that the appellants wrongfully terminated the Agreement as the respondent waived the conditions of purchase by email in accordance with the Agreement, on the grounds that the intention to waive had to be hand-delivered. The parties entered into a standard-form Ontario Real Estate Agreement of Purchase and Sale (APS). The Agreement contained a development condition which permitted the respondent, WED Investments Limited, time to conduct due diligence. After extensions, the diligence period was set to end. On that end date, the respondent gave written notice of its waiver of the development condition and decision to proceed with the Agreement by email only. The appellant Showcase Woodycrest Inc. (Showcase), admitted that its owner saw the waiver but did not tell the respondent the waiver was of no force and effect on the grounds that it was sent by email. The respondent sent an email containing the two amending agreements executed by the respondent, as attachments. The appellant failed to sign either amendment. The appellant informed the respondent that it was terminating the Agreement. The respondent commenced an action against Showcase arising from the failure to close on the Agreement. The trial judge found the delivery of the written notice to waive and proceed by email satisfied the notice requirement in the Agreement....
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