By Shaneka Shaw Taylor and Emraan Dharsi

Nothing dampens the excitement of a sale like the sudden realization that you’ve made a mistake. In Vandenberg v. Wilken, the Ontario Court of Appeal provides a strong defence against partial summary judgment motions for the enforcement of Agreements of Purchase and Sale (APS).



The Vandenbergs entered into an APS to sell their commercial farm real estate to the Wilkens. Despite the initial agreement, the Vandenbergs refused to proceed with the sale. The Wilkens responded by bringing an action against the Vandenbergs for specific performance or, alternatively, damages for breach of contract. The Vandenbergs responded with a counterclaim and a third-party claim against the real estate agents, alleging collusion, conspiracy and unconscionability.

As the matter appeared to be straightforward, the Wilkens moved for summary judgment to enforce the APS and gain ownership over the commercial farm. The motion judge granted summary judgment, finding the APS to be valid. Although the motion judge refused to grant specific performance, he did order a trial to determine the damages for failing to complete the sale. He also found that the Vandenbergs lacked credibility in their claims against the real estate agents. And even if they did have credibility, and a court could find that the agents made misrepresentations, the motion judge found that the “remedy lay against the agents, not the innocent” Wilkens.

Not surprisingly, the Vandenbergs’ appealed the decision and they were successful.

In Butera v. Chown, Cairns LLP, the Ontario Court of Appeal placed significant emphasis on the need to ensure consistency and clarity between summary judgment and trial decisions. In this case, the Court of Appeal found that the Vandenbergs’ allegations against the real estate agents were essential in determining the validity of the APS. If the allegations were substantiated at trial, the APS would be invalid despite the summary judgment otherwise. As such, the Court of Appeal held that both the allegations and the validity of the APS, were better suited for trial.

The Vandenbergs’ credibility was also important in substantiating their allegations and determining the validity of the APS. The Court of Appeal held that the motion judge’s finding on credibility limited the trial judge’s ability to decide the case at trial, as he or she would be forced to the rule the same way. As credibility was intimately connected with the allegations, which in turn were intertwined with the validity of the APS, the Court of Appeal dismissed the appeal.

In conclusion, it appears that when the purchaser has a claim against a third party, like their real estate agent, there may be a legitimate reason against a summary judgment motion, pushing the matter to trial.


Emraan Dharsi is a third-year law student at Osgoode Hall Law School. A developing advocate, he hopes to practice commercial litigation upon his call to the bar in 2021.

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12 COMMENTS

  1. I do not believe there has been a single court case in Ontario where an Owner has ever been evicted for the fulfillment of an APS but there are many where damages to a Buyer have been awarded when a Seller backs out of a firm and legally enforceable contract. If I am wrong I would love to see the canli #.

    Building inspection clauses can be crafted and signed with informed consent within a legal framework that allows both parties to a negotiation to be fully protected. Unfortunately those clauses are complicated and have never appeared on webforms because of the lack of professionalism and knowledge 90% of today’s REALTORs possess.

    It violates the Code of Ethics and the REBBA to craft an out in a contract with the intent of being able to use that out unless all parties to the transaction were made aware of your intent.

    I am often amazed at the comments and articles I read here on REM as to the total disregard for consumer rights and the laws of the land.

    • Hi Nelson:

      I’m surprised I didn’t get more blowback against my philosophical approach to representing my clients’ fiduciary interests as of this 5:50 p.m. reply your concern.

      I always looked at my role as being an advocate for my clients, not just most of the time, nor by way of hedging my bets by considering the other side’s interests. No, I represented my clients to the max, ‘all’ of the time, without consideration for the other side’s interests. The other side had their representative advocating only for their interests…unless…they were trying to pull a deal together, thus giving some consideration to the other side’s concerns, in this case, my side’s interests. I would always make sure my side did as well as was possible as the result of my tactics, my negotiating strategies, and my deep down devotion to my side’s fiduciary interests. There was no room for double-speak in my world. I avoided being a heap big Realtor who speaks with forked tongue. When heap big Realtor speaks with forked tongue, fiduciary duty to one’s client, be it a seller or buyer client, has been sacrificed for the deal, read, the commission.

      I always held total regard for a consumer’s rights…’my’ consumer client’s rights. Whether we like to admit it or not, conducting real estate transactions is an adversary process that is too often contrarily practiced as a “Let’s pull this deal together so we both can get paid” dishonest approach to deluding one’s self into believing one is experiencing a sense of pursuing fiduciary duties to ones’ clients.

      Sorry to disagree my friend, but even though we are licensed as sales people, and governed as such, we are actually acting as sole representatives (read advocates) for our clients, and for no one else…not even a little bit.

  2. Elena, great reply to Martin’s comment.
    Martin, to your comment “if there were far fewer unscrupulous Realtors practicing influential learned closing techniques”. How does your tactic make you any better than those you refer too as unscrupulous?

    You are actually interfering with someone doing an inspector providing an honest report and placing them in a position where they may be compromising themselves.
    Should you expect the same for your sellers?!

    If your buyer wants an out, try a more honest approach!

    • FS:

      How am I interfering with an inspector doing his/her job? I am making damn sure the/she provides an honest report by challenging him/her to do just that. I am not telling him/her to make up/invent a defect. I am telling him/her not to miss one. Big difference. I am working for my buyer client, not the seller. The seller has his/her own representative. It’s not my fault if the other representative is a slacker, or a deal-maker in search of a commission right now on this particular APS.

      If my buyer wants out, that is his/her prerogative. It is up to me to do my best to represent that prerogative. It is up to the opposing representative to block my client’s prerogative, and thus my efforts on my client’s behalf. This is the real world we are operating in, not some theoretical fantasy world.

  3. I have some concern with instructing your home inspector to do the “toughest inspection report possible” so that your buyer could void the deal if they had buyer’s remorse. I don’t want my home inspectors to try to get my buyers out of their deals, nor do I want them to “rubber stamp” deals. I think our job is to recommend a professional to do their job — a thorough, objective and fair assessment of the home’s condition and current or potential issues, so that the buyer can make an informed decision about whether or not to move forward. I have two concerns here: 1) If you have to tell your home inspector how to write his/her report (and, frankly, if they actually listen to those instructions), I think it’s time to find a new home inspector, and 2) I don’t think it’s fair to the seller to walk away from a deal on the basis of inspection if the issues are exaggerated, because it could make it harder for them to find another buyer. Walking away on the basis on financing, for example, places the blame on the buyer, who is the one who changed their mind, not on the seller or the seller’s home.

    • ” I have some concern with instructing your home inspector to do the “toughest inspection report possible” so that your buyer could void the deal if they had buyer’s remorse. I don’t want my home inspectors to try to get my buyers out of their deals,” and why tnnot, if it was written by a lawyer for the buyer it would make the standard clauses we use seem entry level.

      It should be so tough that a buyer can be better informed. Brian was protecting his client since that’s the whole point of the condition part of the clause – for the buyer to determine if they are satisfied with what may have been found.

      Brian’s way of doing it provides far more protection to the buyer than the far too many inspection reports paid by and produced for the Realtor – talk about a conflict of interest so as to not “kill the deal” for the buyer’s rep. I’ve read more of those that skirt around the issues than not.

      And he wasn’t suggesting an exaggerated report – that would be purposeful misrepresentation. He was suggesting a properly done one as in not like far too many floating around. One that I’ve seen say – the basement pipes are wrapped in asbestos estimated cost to remove and remediate is $500. :

      I’ve effectively used an inspection clause that ensures the buyer absorbs the costs of certain outcomes but Nelson DeHoey is right – most Realtors see that either as some form of trickery or they can’t understand.

      • Ever had this experience? There was a very popular inspector locally years ago, who took it upon himself to tell the buyer, when reviewing his report with the buyer:: “You got a very good deal here; or, wow! you over paid for this place. You might want to request a price adjustment, based on… whatever.” I made a point of removing him from my “list” of suggested to choose from inspectors, after more than one buyer subsequently let the cat out of the bag so to speak and remarked, asking me if he was he a pricing/evaluation expert… (I think that might be construed as over-stepping expertise boundaries?

        Carolyne L

    • Hi Elana:

      Read my replies to Nelson and FS. There has been too much rubber stamping going on in the home inspection business. Wanna get rid of it? Make the inspectors realize you’re on to them, not them personally, but too many in general.

  4. Brian, it is all good having your inspector do a tough inspection, which should be done in every case anyway. But the best way to protect your buyer is in the inspection clause whereby you include “it can be waived at the sole discretion of the buyer” or words to that affect.

    • Very good advice Richard. I always did that. I should mention I sometimes found defects the inspector had missed, pointed them out, out of earshot of the buyers, and made sure the defects were noted in the reports.

  5. Clarification re my post of 10:37 a.m., Dec. 4, 2019:

    Although the lead story deals only with seller’s remorse, it is most often buyer’s remorse that takes hold post acceptance of an offer to purchase. Thus my reason for commenting thereon.

    I should also note that the one and only buyer’s remorse situation that I dealt with was pre closing, post receipt of an inspection report. Thus, a transaction never occurred. I never had to deal with seller’s remorse, although one seller did regret selling a year after the fact due to her new brand home not living up to her expectations, which I found to be a common phenomenon when working as a conciliator with the Ontario New Home Warranty Program (now TARION).

    The case noted herein also solidifies the notion that one can indeed refuse to close a sale, to not be forced to move out of one’s residence if one simply changes one’s mind and decides not to sell after all, thus not honouring an agreement to do just that. Of course, a court can levy damages claimed, per its discretion, in favour of the injured party. But most buyers decline the litigation route and simply look for and purchase another property.

  6. Methinks there would be far fewer buyer’s remorse situations if there were far fewer unscrupulous Realtors practicing influential learned closing techniques designed to get the subject to “Sign right here, my pretty.” in pursuit of a commission. Real, conscientious pros would never engage in such low-life manipulations.

    I only experienced one situation whereby my client developed buyer’s remorse. I always provided an escape route for my buyers thus: When my buyer’s home inspector had been chosen, I would contact him and tell him to provide the toughest inspection report possible, one that my buyer could use to void the deal. I would tell him that no home is perfect; there is always at least one latent defect somewhere; make sure it shows up in the report, along with the patent defects. This directive served two purposes. First: It ensured a thoroughly vetted report, because I would point out potential defects the inspector might have missed (I was a former tradesman and assistant homebuilder, and I always attended home inspections). Second: It gave my buyer an appropriate out if so desired. My job was to protect my buyer client’s fiduciary interests, including helping him/her to escape a purchase due simply to buyer’s remorse. With the implementation of this practice, buyer’s remorse does not often rear its head. My buyer, mentioned above, successfully aborted his A.P.S., and I was able to transact another purchase on his behalf shortly thereafter.

    My methodology was the only way to get home inspectors to not automatically act as rubber stamp artists in pursuit of closing deals so that they would continue to be recommended by Realtors going forward. No home inspector wants to become widely known as a deal breaker amongst the Realtor population; that wouldn’t be good for business…for the inspector or the Realtors so inclined to recommend them. Fortunately for my clients, I was aware of who the collusion artists were.

    Some who read this might think my attitude, actions and behavior were anathema to good sales practices. My view was always that I was hired by my clients to act in their best interests, both financially ‘and’ psychologically. The timing of commission arrivals was unimportant, because they always arrived, sooner or later.

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