Executive Summary: Key Legal and Evidentiary Issues

• Whether North 45 breached the Agreement by failing to convey title to the specified 10-acre parcel of PID 911 within the contractual 18-month period.
   
• Determining whether the phrase "as designated by the Vendor" gave North 45 discretion to substitute a different property for PID 911.
   
• Assessing whether any genuine issue of material fact precluded partial summary judgment under Civil Procedure Rule 13.04.
   
• Evaluating the admissibility of two late-filed affidavits under Rule 23.12 and their compliance with the Evidence Act.
   
• Considering whether the Plaintiff's multi-year delay in terminating the Agreement amounted to a waiver of his contractual remedies.
   
• Calculating the damages and prejudgment interest owed following termination of the Agreement.
   

Facts of the case

Younis Ashraf Genidi, the Plaintiff, moved for partial summary judgment under Civil Procedure Rule 13.04 against North 45 Orchards Limited ("North 45"), alleging breach of contract for failing to convey land in Colchester County intended for a haskap berry farm. On December 6, 2017, Mr. Younis and North 45 (through Dr. Hossam Elokda, its President) signed a Purchase and Sale Agreement and an accompanying Management Services Agreement for the purchase of 10 acres from a parcel identified as PID 20441911 ("PID 911"). Between January 2018 and June 2019, Mr. Younis paid North 45 a total of $540,000 toward the purchase price, plus a further $30,000 in HST in 2020, for a combined $570,000. North 45 never subdivided PID 911, never issued a notice that subdivision approval had been granted, and never conveyed any portion of PID 911 to Mr. Younis. In February 2022, North 45 offered instead to convey 10 acres from a different property, PID 20480802 ("PID 802"), which Mr. Younis refused to accept. On February 15, 2022, Mr. Younis, through counsel, gave notice terminating the Agreement and demanded repayment of the funds paid. North 45 disputed the claim, arguing that numerous facts remained genuinely in dispute, including the parties' initial motivations, the timing and nature of its offers to substitute property, and the Plaintiff's post-contractual conduct.

Policy and legislative provisions at issue

The motion was brought under Civil Procedure Rule 13.04, which the court applied using the five-question framework from Shannex Inc. v. Dora Construction Ltd., 2016 NSCA 89. The admissibility of two affidavits filed late by North 45 was assessed under Rule 23.12, and one affidavit's compliance with section 67 of the Evidence Act, R.S.N.S. 1989, c. 154, was also at issue, since it was sworn before a notary in Egypt. Central to the dispute was the interpretation of the Purchase and Sale Agreement, particularly the Context clause stating that the Vendor agreed to sell "10 acres of the Property as designated by the Vendor," along with definitions tying "Lands" and "Property" to PID 911. Also relevant were the Events of Default and Remedies clauses (sections 6.1 and 7.1), which entitled the Purchaser to terminate and recover amounts paid, without interest, if closing did not occur within 18 months; section 8.11, which provided that delay in exercising a remedy does not constitute a waiver; and section 8.16, requiring that all communications between the parties be in writing. Prejudgment interest was ultimately assessed under Civil Procedure Rule 70.07.

Reasoning and analysis

Associate Chief Justice Jamieson first addressed the late-filed affidavits, concluding that excluding them would cause significant prejudice to the self-represented North 45, and allowed them subject to striking inadmissible portions, while awarding costs of $500 against North 45 for its late filing. Turning to the Shannex framework, the court found no genuine issue of material fact: it was undisputed that the parties signed a valid Agreement for 10 acres of PID 911, that Mr. Younis paid $570,000 in total, and that North 45 never conveyed any portion of PID 911. The court held that disputed facts raised by North 45 — including the Plaintiff's immigration motives, the parties' post-contractual friendship, and the timing of verbal offers to substitute property — were not material because they would not affect the outcome. Applying principles from Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, the court found the Agreement unambiguous: "Property" and "Lands" were defined by reference to PID 911, and the word "designated" gave North 45 discretion only to select which portion of PID 911 to convey, not to substitute an entirely different parcel. The court noted that even Dr. Elokda's own discovery evidence reflected uncertainty about whether the Agreement permitted substitution. The court further found that any verbal offer to substitute property would not satisfy section 8.16's writing requirement, and that Mr. Younis's delay of over two years in terminating the Agreement was expressly excused by the non-waiver provision in section 8.11 and caused no prejudice to North 45, which retained use of the funds throughout.

Ruling and overall outcome

Justice Jamieson granted Mr. Younis's motion for partial summary judgment, finding that North 45 breached the Agreement by failing to convey any portion of PID 911 within the required 18 months and had no real chance of success on its defence. Damages were awarded equal to the full $570,000 paid by Mr. Younis (comprising the $540,000 purchase price and $30,000 in HST), together with prejudgment interest at 5% per year, calculated simply, running from the February 15, 2022 termination date. Costs relating to the late-filed affidavits, in the amount of $500, were also awarded against North 45. The remaining claims against North 45 and Dr. Elokda, including allegations of fraud and misrepresentation, were left undetermined and severed from the breach of contract claim. If the parties could not agree on further costs, the court invited brief written submissions within 30 days.