Guraya v. Kaila

2019 BCCA 367 Guraya v. Kaila

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Guraya v. Kaila, 2019 BCCA 367 Date: 20191025 Docket: CA45882 Between: Navjot Singh Guraya, Shaminder Kaur Guraya, and Jasbir Singh Guraya Appellants (Plaintiffs) And Ravinder Singh Kaila, Parmjit Kaur Kaila, and Balbir Kaur Kaila Respondents (Defendants) Before: The Honourable Mr. Justice Frankel The Honourable Mr. Justice Fitch The Honourable Mr. Justice Hunter On appeal from: An order of the Supreme Court of British Columbia, dated January 29, 2019 (Guraya v. Kaila, 2019 BCSC 101, New Westminster Docket S191813). Counsel for the Appellants: M.L. Drouillard K. Rogerson Counsel for the Respondents: S. Singh Place and Date of Hearing: Vancouver, British Columbia September 20, 2019 Place and Date of Judgment: Vancouver, British Columbia October 25, 2019 Written Reasons by: The Honourable Mr. Justice Hunter Concurred in by: The Honourable Mr. Justice Frankel The Honourable Mr. Justice Fitch Summary: The appellants appeal a decision of the trial court dismissing their claim for specific performance of a contract to purchase a residential property. The original purchaser had made a partial assignment of his interest in the purchase agreement orally to his wife and his father. The trial judge held that the agreement could not be enforced by reason of s. 59(3) of the Law and Equity Act, the successor to the Statute of Frauds. Held:

appeal allowed and specific performance ordered. The partial assignment was valid as an equitable assignment. The purchase agreement met the requirements of s. 59(3). Specific performance of the agreement was the appropriate remedy. Reasons for Judgment of the Honourable Mr. Justice Hunter: [1] On April 11, 2017, the appellant Navjot Singh Guraya offered to purchase a residential property owned by the respondents for $1,060,000 with a $50,000 deposit and a completion date of June 12, 2017. The offer was accepted that day. The agreement executed by the parties contained a term expressly permitting the buyer to assign the contract in whole or in part to any third party without further notice to the seller. [2] Navjot verbally assigned the purchase agreement in part to his wife and his father, who are also appellants in this proceeding, on June 6, 2017. Navjot's conveyancing lawyer prepared documents to effect the transfer of the property to the three appellants and forwarded them to the respondents' solicitor for signature. On June 12, 2017, the appellants' conveyancing solicitor held in trust sufficient funds to close the transaction. The appellants were ready, willing and able to complete on the agreed closing date, but the respondents refused to execute the transfer documents. [3] The appellants sued for specific performance of the purchase agreement. The principal defence of the respondents, at trial and in this Court, was that they were under no obligation to transfer the property to the three appellants, as the assignment of Navjot's partial interest in the agreement was not in writing and was therefore ineffective in light of the provisions of the Law and Equity Act, R.S.B.C. 1996, c.

253. The trial judge gave effect to this defence and dismissed the action. [4] The issue on this appeal is whether the trial judge erred in concluding that in light of the Law and Equity Act, the purchase agreement could not be enforced against the respondents by the appellants. In my opinion, he did err. The partial assignment of Navjot's right to purchase the Subject Property was an equitable assignment valid as between assignor and assignees despite being oral. In light of the terms of the purchase agreement, the sellers were obligated to transfer title to Navjot and his assignees when the purchase price was tendered. The provisions of the Act did not override the expectations of the parties expressed in their agreement. [5] For the reasons that follow, I would allow the appeal and grant specific performance of the agreement. Background Facts [6] The facts as found by the trial judge are not in issue. The respondents are the owners of a family residence located in Surrey, British Columbia (the "Subject Property"). I will refer to the respondents collectively in this judgment as the Seller. Navjot Singh Guraya was the signatory to the purchase agreement. Shaminder Kaur Guraya is his wife. Jasbir Singh Guraya is his father. The appellants are family members, and for clarity I will refer to them by their first names, as did the trial judge. [7] In April 2017, Navjot viewed the

Subject Property in the company of his father Jasbir and the Seller's real estate agents (the "Seller's Agents") from Century 21 Coast Realty Ltd. After viewing the property, Navjot presented the Seller's Agents with an unconditional all-cash offer in the amount of $1,060,000, with a $50,000 deposit. Later that day, the Seller's Agents advised Navjot that the offer was accepted. A Contract of Purchase and Sale in a Century 21 standard form was prepared by the Seller's Agents and executed with some revisions by Navjot as Buyer and the three respondents as Seller. [8] The standard form Century 21 Contract of Purchase and Sale contains a provision prohibiting assignments of the contract without the written consent of the seller. This provision was crossed out and the deletion initialled by Navjot and the three respondents as Seller. Instead, under Terms and Conditions, the following term was inserted: The Buyer reserves the right to assign this contract in whole or in part to any third party without further notice to the Seller; said assignment not to relieve the Buyer from his or her obligation to complete the terms and conditions of this contract should the assignee default. [the "Assignment Term".] [9] All three appellants contributed funds towards the $50,000 deposit, and on June 6, 2019, the Seller's Agents prepared an addendum to the Contract of Purchase and Sale adding

Jasbir and Shaminder as buyers (the "Draft Addendum"). At trial, Navjot asserted that the basis for the Draft Addendum was an oral, partial assignment of his interest in the purchase agreement to his wife and father. The Draft Addendum did not reference the basis on which Jasbir and Shaminder were being added as buyers, and the trial judge was not prepared to infer that the Seller's Agents knew that the Draft Addendum was being presented as an exercise of Navjot's right of assignment under the Assignment Term. The respondents did not execute the proposed addendum. [10] Notwithstanding the failure of the respondents to execute the proposed addendum, Navjot instructed his conveyancing solicitor Mr. Sandhu to prepare closing documents showing the three appellants as buyers. The trial judge made the following findings as to the events of the closing date: [27] On June 12, the completion date, Mr. Sandhu held in trust sufficient funds to make up the purchase price. The funds were made up of the deposit, net of the Agents' commission, being $24,507.05; mortgage proceeds Mr. Sandhu had received from TD Canada Trust, in the amount of $847,700; and the additional amount of $184,935.92 that Mr. Sandhu had received from the plaintiffs to make up the remaining balance of the purchase price. The plaintiffs provided Mr. Sandhu with a written direction authorizing him to register a first

charge in favour of The Toronto-Dominion Bank, against their interests in the property. The plaintiffs were ready, willing, and able to complete. [28] Mr. Sandhu emailed the defendants' solicitors on the afternoon of June 12, confirming that his clients were able to complete and inquiring after the closing documents. He followed up with several telephone messages, and eventually was informed by the defendants' counsel that the defendants would be executing the closing documents at his offices. The rest of the day passed without the executed closing documents being delivered, and further faxes and emails from Mr. Sandhu to the defendants' solicitors went unanswered. At the end of the day Mr. Sandhu advised the plaintiffs that the transaction had not completed due to the defendants' failure to provide the necessary closing documents. [11] No reason was given by the respondents for their failure to complete. [12] The appellants filed a Notice of Civil Claim claiming specific performance of the Contract of Purchase and Sale or, in the alternative, damages for breach of contract. The action was heard and resolved on affidavits at a summary trial. [13] At trial, the respondents submitted that the Assignment Term was unenforceable by reason of non-compliance with ss. 36 and 59(3) of the Law and Equity Act. The trial judge considered the effect of both statutory provisions, but relied

primarily on s. 59(3) of the Act in concluding that the appellants' action must be dismissed for reasons indexed at 2019 BCSC 101. [14] The issue on this appeal is whether the trial judge erred in his application of s. 59(3) to the uncontested facts of this case. I begin with a consideration of s. 36, which was reviewed by the trial judge to provide context for the s. 59(3) analysis. The Scope of s. 36 [15] The trial judge introduced his discussion of s. 36 in this way: [29] Assignments of choses in action are governed by s. 36(1) of the Law and Equity Act, R.S.B.C. 1996, c. 253: 36(1) An absolute assignment, in writing signed by the assignor, not purporting to be by way of charge only, of a debt or other legal chose in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to receive or claim the debt or chose in action, is and is deemed to have been effectual in law, subject to all equities that would have been entitled to priority over the right of the assignee if this Act had not been enacted, to pass and transfer the legal right to the debt or chose in action from the date of the notice, and all legal and other remedies for the debt or chose in action, and the power to give a good discharge for the debt or chose in action, without the concurrence of the assignor. [16] The right of a

purchaser under an agreement of sale of land is a chose in action and is assignable in equity: DiGuilo v. Boland, [1958] O.R. 384 (C.A.) at 395. I do not agree, however, with the judge's blanket statement that assignments of choses in action are governed by s. 36(1) of the Law and Equity Act. Section 36 is something of an historic relic that derives from the different treatment of assignments by the courts of law and equity prior to the English Judicature Act, 1873, 36 & 37 Vict c 66. It has the effect of authorizing a form of statutory assignment, but does not govern or otherwise affect equitable assignments. To understand the limited scope of s. 36, it is necessary to review the historical context in which it was enacted. Purpose of s. 36(1) [17] Prior to the fusion of the courts of law and equity, the policy of the common law was that choses in action could not be assigned, but courts of equity took a more benign view and generally enforced such assignments: Fredrickson v. I.C.B.C., [1986] 4 W.W.R. 504 at paras. 43-44 (B.C.C.A.), aff'd [1988] 1 SCR 1089. The English Judicature Act of 1873 mitigated the strictness of the common law position by enacting in s. 25(6) a statutory assignment of a legal chose in action that would take effect at law. Section 25(6) was brought into British Columbia through the Judicature Act of 1879, c. 12, s. 3(6) in virtually identical terms, and

is the direct antecedent to s. 36(1) of the current Law and Equity Act. [18] The purpose of the statutory assignment embodied in s. 36 was to "obviate in the case of absolute assignments, the necessity of suing in the name of the assignor": DiGuilo at 397. Enforcement of equitable assignments of legal choses in action required that the assignor be joined as a party, but legal assignments under the statute did not require the participation of the assignor, provided they were absolute assignments in writing and notice was given to the obligor. [19] This statutory assignment, however, had no effect on equitable assignments, or the rules governing them: DiGuilo at 396-397; In re Hart Brothers Construction Limited, (1954), 12 W.W.R. (N.S.) 711 at 713 (B.C.S.C, per Wilson J., as he then was). Equitable assignments were not required to be in writing. The question of validity was simply a question of proof of the intention of the assignor. [20] The principles concerning the creation of equitable assignments were reviewed by Justice Pearlman in University of British Columbia v. Kapelus, 2012 BCSC 486, in these terms: [68] In Bank of NS v. Nfld Rebar Co. (1987), 65 Nfld. & P.E.I.R. 165, (Nfld. T.D.), Steele J. reviewed the law on equitable assignments and at para. 12 cited the following passage from Snell's Principles of Equity, 27th Ed. where the learned author stated at p. 74: An

assignment which does not comply with the statutory requirements is not necessarily ineffectual, for it may operate as an equitable assignment. "The statute does not forbid or destroy equitable assignments or impair their efficacy in the slightest degree." In many cases an assignment which fails to satisfy the statute (e.g., because only part of the chose is assigned) is nevertheless fully effective in equity. As assignment, too, may at first be merely equitable, and then, when, e.g., the necessary notice is given, become statutory. [69] Steele J. then summarized the essential requirements for an equitable assignment at para. 13: Generally speaking, it can be said that an equitable assignment is deemed to exist where a sufficient expression of an intention to assign can be found. An intention to assign must be proved. Equity is more concerned with intent than actual form. The assignment must adequately identify the chose. In certain circumstances consideration may be necessary. Notice to the debtor is not necessary to perfect an equitable assignment but notice is indeed desirable in order to prevent the debtor from paying the assignor and, secondly, it also gives to the assignee priority over other assignees. [70] An equitable assignment will be deemed to exist where there is a sufficient expression of an intention to assign, which must be demonstrated by evidence before the

court: Bramalea Ltd. (Receiver manager of) v. Citibank Canada, [1996] O.J. No. 3895 at para. 14 (Ct. J. Gen. Div.), reversed on other grounds, [1997] O.J. No. 4283 (C.A.). [71] In Chudy v. Merchant Law Group, 2008 BCCA 484 at para. 39, Low J.A. stated that "[e]quity looks to any evidence of an intent to assign, rather than to the form of the assignment". [21] The trial judge appeared to accept that the arrangement described by Navjot met the description of an equitable assignment, although he considered it to be unenforceable against the Seller. I agree that the partial assignment of Navjot's interest in the Contract of Purchase and Sale was an equitable assignment. Notice of the Assignment [22] The trial judge pointed out that "no written communication and no other written document passing between any of the plaintiffs and the defendants made reference to Shaminder and Jasbir as assignees." While correct, no consequence flows from this omission once it is recognized that the assignment of partial interest in this case was equitable in nature. It was not necessary that the equitable assignment be formally identified as such to the defendants to be effective. [23] This issue was addressed directly in the leading judgment of William Brandt's Sons & Co. v. Dunlop Rubber Co., [1905] A.C. 454 at 462 (H.L.). Lord Macnaghten dealt with the argument that "the document does not, on the

face of it, purport to be an assignment nor use the language of an assignment" in this way: An equitable assignment does not always take that form. It may be addressed to the debtor. It may be couched in the language of command. It may be a courteous request. It may assume the form of mere permission. The language is immaterial if the meaning is plain. [24] This Court applied this dictum in Ostrikoff v. Vancouver Finance Company (1955), 1 D.L.R. (2d) 179 at 185-186 (B.C.C.A.): The second ground of appeal that there was no effective notice of assignment is, I think, without merit. As said by Hyndman J.A. in Gen'l Motors Acceptance Corp. & Williamson v. Johnson, [1930] 4 D.L.R. 291 at p. 297, 24 A.L.R. 475: "It seems clear from these authorities that no special form of notice is necessary, it being sufficient if the effect upon the debtor is to convey to him with sufficient certainty the fact that the obligation is transferred to a third person as assignee." As said by Lord Macnaghten in Wm. Brandt's Sons & Co. v. Dunlop Rubber Co., [1905] A.C. 454 at p. 462: "All that is necessary is that the debtor should be given to understand that the debt has been made over by the creditor to some third person. If the debtor ignores such a notice, he does so at his peril." [25] In the case at bar, the assignment was neither absolute nor in writing. Section 36, which authorizes statutory

assignments enforceable at law, has no relevance to the issues at bar, as it has no effect on equitable assignments. The Form of Proceedings [26] The trial judge also expressed a concern about the technical form of these proceedings in the following passage: I note however, as a technical matter, that in equity, the assignees' rights against the defendants would still have had to be pursued only in the name of Navjot, the assignor, as trustee: Brown v. British Columbia Electric Railway Co., [1925] 3 D.L.R. 734 (B.C.C.A.); The United States Fidelity & Guarantee Co. v. Deisler (1917), 59 S.C.R. 676; 49 D.L.R. 688. [27] If the trial judge was suggesting that as a technical matter, the proceedings were defective because the assignees were co-plaintiffs with the assignor, I cannot agree. It is correct that the assignor must normally be a party when equitable assignees seek to enforce their rights under the assignment. As a practical matter, this would be necessary, particularly in the case of oral assignments, in order to show the contracting party that the assignees had the rights from the assignor that they were asserting. But I do not agree that an action commenced by the assignor and the assignees is in any way technically deficient, and I do not think the authorities cited by the trial judge go that far. [28] In Brown, for example, the action had been commenced by the assignees

in the name of the assignor, and the defendants contended that the assignees were necessary parties. The only judge to address the issue was Chief Justice Macdonald. He pointed out that enforcement of an equitable assignment should be done in the name of the assignor, and held that the assignees in that case were not necessary parties. In doing so, he made this comment: No doubt there may be cases in which the presence of the assignee on the record is required to enable the Court to dο justice in the particular case, but this case is not one of them. [29] In my view, the import of his judgment is that the assignor was a necessary party to the enforcement of the equitable assignment, and the assignees were not necessary parties. The Chief Justice left open the possibility of a case where the assignees would be necessary parties. Nothing in his judgment supports the conclusion that joining the assignees is technically deficient. [30] Deisler, a brief judgment of the Supreme Court affirming a judgment of this Court, is to similar effect. I am not aware of any judgments binding on this Court that would prevent us from giving an equitable remedy to both assignor and assignee when the assignment was equitable in nature. If there are statements in the older English cases that could be interpreted in that way, I would not consider them to be part of the law of British Columbia. The

Statute of Frauds Issue [31] The second statutory provision relied on by the respondents is s. 59(3) of the Law and Equity Act. It was this provision that the trial judge considered dispositive of the claim. It is to that issue that I turn. [32] Section 59(3) of the Law and Equity Act reads as follows: (3) A contract respecting land or a disposition of land is not enforceable unless (a) there is, in a writing signed by the party to be charged or by that party's agent, both an indication that it has been made and a reasonable indication of the subject matter, (b) the party to be charged has done an act, or acquiesced in an act of the party alleging the contract or disposition, that indicates that a contract or disposition not inconsistent with that alleged has been made, or (c) the person alleging the contract or disposition has, in reasonable reliance on it, so changed the person's position that an inequitable result, having regard to both parties' interests, can be avoided only by enforcing the contract or disposition. [33] Although this provision appears in the same statute as s. 36, it has a very different provenance. The effect of the repeal of the Statute of Frauds and replacement with s. 59 of the Law and Equity Act was to ameliorate some of the strictness of the old Act. [34] The trial judge considered that the application of s. 59(3) of the Act was dispositive to the

litigation: [40] It is clear, therefore, that these assignments, being in respect of dispositions of land, must comply with s. 59(3) to be enforceable against the defendants. The plaintiffs submit that the defendants were not privy to the assignments, and therefore "cannot claim [their] benefits and cannot be bound by [them]". But Shaminder's and Jasbir's interests in the land are alleged to be contractual, deriving from the partial assignment of Navjot's rights. Those rights are not enforceable - meaning, in this case, not enforceable against the defendants - unless one of the requirements set out in subsections (a)-(c) is met. [Emphasis added.] [35] I have emphasized the judge's reference to enforceability of the assignments against the defendants because in my respectful opinion, this passage reflects what I consider to be the error of the trial judge in conflating the validity and enforceability of the assignments with the validity and enforceability of the Contract of Purchase and Sale. [36] It was the enforceability of the Contract of Purchase and Sale that was at issue in this litigation. The Contract of Purchase and Sale fully complied with s. 59(3) as it was in writing and was signed by the Seller, the party to be charged by the purchase agreement. The agreement contained specific authority for Navjot to assign all or part of his interest in the contract, without

notice to the Seller. The effect of the Assignment Term was that the Seller was contracting to sell to Navjot, or to whomever he assigned his interest, or to Navjot and his assignees if he assigned only a partial interest. The validity of the assignments was a matter between the assignor and the assignees. [37] For this reason, I am unable to agree with the judge's analysis of the significance of s. 59(3)(b) at para. 42 of his reasons: [42] Section 59(3)(b), as noted in the cases summarized in Spring Creek [574409 B.C. Ltd. v. Spring Creek Aggregates Ltd., 2008 BCSC 978] refers to acts done in part performance of a contract. The phrase "the party to be charged" in the subsection refers not to the assignor - as contended by the plaintiffs - but to the vendor: Spring Creek at para.

24. Further, as per McNeil v. Corbett (1907), 39 S.C.R. 608, the act done or acquiesced in by the vendors must be unequivocally referable to the assignment. There was no such act or acquiescence in the present case. The defendants' act of entering into the Sales Contract and accepting Navjot's deposit took place some eight weeks before the plaintiffs contend the assignment was made. The fact that without the defendants' knowledge, a portion of the deposit monies had been sourced from Shaminder's and Jasbir's accounts cannot create rights as between them and the defendants. The only other "act" by the defendants was their rejection of the Draft Addendum - which constituted, implicitly, not an unequivocal acceptance, but rather a rejection of the Shaminder's and Jasbir's purported interests. [Emphasis added.] [38] I do not consider Spring Creek to mandate the conclusion that in interpreting s. 59(3)(b) in the context of an assignment of an interest in a purchase and sale agreement, the party to be charged is always the vendor. [39] For reference, s. 59(3)(b) reads as follows: (3) A contract respecting land or a disposition of land is not enforceable unless (b) the party to be charged has done an act, or acquiesced in an act of the party alleging the contract or disposition, that indicates that a contract or disposition not inconsistent with that alleged has been made. [Emphasis

added.] [40] In Spring Creek, the trial judge interpreted the option agreement at issue in that case as requiring notice to the Vendor of any assignment of the agreement before the assignment could be enforced against the Vendor. The judge concluded that no notice of the assignment had been given, and accordingly the assignment was not effective against the Vendor, as a matter of contract between the parties. It was in this context that the judge in Spring Creek made the following comment in relation to s. 59(3)(b): [24] For the purposes of this case, the party that is sought to be charged is the plaintiff, as vendor of the property: Gyurcsek v. Morrow, [1982] B.C.J. No. 233 at para. 12. [41] Gyurcsek concerned a contest between a buyer and a seller who wanted to avoid a written contract by asserting that she had signed the document on the wrong line. The case did not involve any assignments, and only one legal relationship was at issue. As in the case at bar, what was at issue was the validity and enforceability of a contract of purchase and sale of property in light of s. 59(3), and as in the case at bar, the party to be charged by that contract was the vendor of the property. [42] Unlike Spring Creek, the parties here agreed in the Contract of Purchase and Sale that Navjot could assign his interest in whole or in part without notice to the Seller. Failure to notify the

Seller of the assignment in advance of its enforcement could not affect the validity of the assignment as against the Seller. The assignor Navjot was the "person to be charged" by the assignments; the Seller was the person to be charged by the Contract of Purchase and Sale, which is the instrument sought to be enforced in this litigation. [43] Similarly, I am unable to agree with the trial judge's assessment of the relevance of s. 59(3)(a) to this litigation. The judge viewed s. 59(3)(a) as relating to the assignments, commenting as follows: [41] The exception in s. 59(3)(a) that the assignments be in writing is not met, as the assignments were verbal only. Further, no written communication and no other written document passing between any of the plaintiffs and the defendants made reference to Shaminder and Jasbir as assignees. [Emphasis added.] [44] In my respectful opinion, this passage reveals two errors in the reasoning process of the trial judge. The first is the comment that s. 59(3)(a) requires "that the assignments be in writing." There is no requirement in s. 59(3)(a) that the assignments be in writing. If there were an issue between the assignor and the assignees as to the validity of the oral assignment, the assignment would be valid under s. 59(3)(a) if there was some document in writing signed by the party to be charged by the assignments (the assignor) indicating

that the assignments had been made and a reasonable indication of the subject matter of the assignments. But there was no issue between the assignor and the assignees as to the validity of the oral assignment in the case at bar. The issue was the enforceability of the Contract of Purchase and Sale, and that document complied with s. 59(3). [45] The second error concerns the observation that no document was sent to the Seller indicating that an assignment of Navjot's interest had been made. I have already explained why I consider this to be of no legal consequence. [46] Later in his judgment (at para. 46), the trial judge stated that "the identity of the purchasers was a fundamental term of the contract." I cannot agree. There is nothing in the Contract of Purchase and Sale to that effect. By agreeing to the Assignment Term, the Seller was accepting that the identity of the purchasers was not a fundamental term of the contract. [47] It was not open to the Seller to refuse to close on the basis that they had not bargained with the three appellants or, once they became aware of the circumstances of the assignments, that they were not obligated to recognize an oral assignment. The circumstances presented to the Seller on June 12 were the circumstances bargained for in the Contract of Purchase and Sale. The Sellers' failure to accept the purchase funds and execute the documents

presented to them was a breach of contract, entitling the appellants to a remedy. [48] In Johnson v. Breitkreuz, 2006 BCCA 30 at para. 32, Justice Levine approved a statement that "the courts have recognized for several hundred years that the statute cannot [be] the basis for avoiding an agreement" and went on to comment: see the discussion of the manner in which courts of equity acted to prevent the Statute of Frauds to be used "as an instrument of fraud" in Steadman v. Steadman, [1976] A.C. 536 at 540, 551, 558 (H.L.). The wording of ss. 59(3)(b) and (c) provides relief in broader terms than the courts, indicating the intention of the Legislature to codify the basis on which agreements for the sale of land would be enforced, not to track the common law. [49] In my opinion, there was no basis for the respondents to rely on s. 59(3) of the Act to avoid the agreement that they made to sell the Subject Property to Navjot or to his assignees. I would allow the appeal. The Remedy of Specific Performance [50] The appellants seek an order for specific performance of the Contract of Purchase and Sale, as they have throughout the litigation. Because of his dismissal of the action, the trial judge did not address the availability of this remedy, and before us the respondents have not taken the position that if the appeal is allowed, specific performance should be denied. Nevertheless,

before granting specific performance, I consider it appropriate to review the requirements of this remedy. [51] The first requirement is that the plaintiff must have kept the contract open for performance. If the plaintiff accepted the breach by the defendant as bringing the contract to an end, the plaintiff's remedy would be limited to damages for breach of contract. But in this case, the plaintiffs affirmed the contract by suing for specific performance. [52] The second requirement is that there be some fair, real and substantial justification for the claim for specific performance as opposed to damages: Semelhago v. Paramadevan, [1996] 2 S.C.R. 415 at 430. There is no longer a presumption that real estate is unique; evidence must be led to support the remedy of specific performance. The general principles for consideration of this remedy were reviewed by this Court in Youyi Group Holdings (Canada) Ltd. v. Brentwood Lanes Canada Ltd., 2014 BCCA 388. In that judgment, Justice Newbury emphasized that each case was fact-dependent, requiring a consideration of both the plaintiff and the property to determine whether damages would be an appropriate remedy. [53] In the case at bar, Navjot led evidence as to the attractiveness of this particular property, having in mind its age, price, size and location within his children's school district, in close proximity to a Sikh Temple and

to family members who reside nearby. He testified as to specific features of both the home and the neighbourhood that were important to him. He also stated that of the 15 properties he had viewed over the course of a year and a half, the Subject Property was the first home that he had seen that met all of his requirements. [54] The respondents have not raised an issue before us as to the appropriateness of specific performance as a remedy if the contract is to be enforced. I am satisfied that the appellants have demonstrated a fair, real and substantial justification for the claim for specific performance, and I would make that order. Disposition [55] For these reasons, I would order the following: (a) the appeal is allowed and judgment entered for the appellants; (b) the appellants are entitled to specific performance of the Contract of Purchase and Sale, provided that the appellants will set a completion date within 90 days of the publication of these reasons, and provide the respondents with at least three weeks' notice of the completion date; (c) the appellants are entitled to their costs in this Court and in the Supreme Court. "The Honourable Mr. Justice Hunter" I AGREE: "The Honourable Mr. Justice Frankel" I AGREE: "The Honourable Mr. Justice Fitch"