From the "I can't believe they argued that" file

 

Drag v. Mehta, 2024 ONCA 334

D entered into a contract to sell a home to M that included a condition, which if not waived by a specific time, would render the agreement null and void. The day of the waiver deadline, the parties had negotiated an amending agreement (which deleted the waiver).M had signed the amending contract, and D's realtor had indicated that the amendment had been accepted by D, and the agreement was now "firm". Despite this acceptance, shortly before the waiver deadline, M was advised to serve the waiver as a precaution, which he tried to do (unsuccessfully). D never signed the amending agreement, took the position that the condition had not been waived (and so the agreement voided), and failed to close. M sued.

Drag does not challenge the trial judge’s finding that [his agent's] statements (on behalf of Drag) constituted a breach of Drag’s duty of honest performance – that parties “must not lie or otherwise knowingly mislead each other about matters directly linked to the performance of the contract”: Bhasin v. Hrynew, 2014 SCC 71, [2014] 3 S.C.R. 494, at para. 73. But he says that what [his agent] said on December 9 had no consequence, because Mehta was aware of the need to waive the condition by 11:59 p.m [as evidenced by M's subsequent efforts].

In other words, D's argument was: "we lied, but they knew the truth, so it didn't matter." Unsurprisingly, neither court agreed.

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