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Contracts - Tendering (Peformance). The Rosseau Group Inc. v. 2528061 Ontario Inc.
In The Rosseau Group Inc. v. 2528061 Ontario Inc. (Ont CA, 2023) the Court of Appeal considers an issue of tendering performance in a breached APS breach case:(ii) No Requirement to Tender
[37] 252 argues that although it indicated on June 13, 2017 that it was taking the position the APS was at an end, Rosseau Group did not accept the repudiation, and demanded a closing date of September 19, 2017. It submits that Rosseau Group was therefore required not only to be ready, willing, and able to close on that date, but to demonstrate that by tendering the closing funds and other required documents. 252 argues that the trial judge should have treated the failure to tender as fatal to Rosseau Group’s claim.
[38] I disagree.
[39] Because Rosseau Group did not accept 252’s anticipatory repudiation of the APS, but instead rejected it, it kept the APS alive, and both parties remained bound to perform their obligations on the closing date. In order to rely on 252’s failure to close on September 19, 2017, Rosseau Group had to be ready, willing, and able to close on that date: Domicile Developments Inc. v. MacTavish (1999), 1999 CanLII 3738 (ON CA), 45 O.R. (3d) 302, 175 D.L.R. (4th) 334 (C.A.), at paras. 14-15. But that obligation was satisfied if Rosseau Group was (as the trial judge found) actually ready, willing, and able to close. For 252’s argument to be correct, Rosseau Group’s obligation had to extend to include a requirement to tender on a party who had unequivocally indicated that the tender would be useless because it would not close.
[40] I see no error in the trial judge’s conclusion that a tender was not required. Although tendering is one way of showing that a party is ready, willing, and able to close, it is not the only way. “While tender is the best evidence that a party is ready, willing and able to close, tender is not required from an innocent party enforcing his or her contractual rights when the other party has clearly repudiated the agreement or has made it clear that they have no intention of closing the deal” (emphasis added): Di Millo v. 2099232 Ontario Inc., 2018 ONCA 1051, 430 D.L.R. (4th) 296, at para. 45, leave to appeal refused, [2019] S.C.C.A. No. 55 The rationale for this is clear: “the law does not require what would be a meaningless or futile gesture”: Time Development Group Inc. (In trust) v. Bitton, 2018 ONSC 4384, at paras. 56-7.
[41] 252’s reliance on the decision of this court in 1179 Hunt Club Inc. v. Ottawa Medical Square Inc., 2019 ONCA 700, 438 D.L.R. (4th) 566 for the proposition that tender was required is misplaced. 1179 Hunt Club was not a case of a party who was in fact ready, willing, and able to close being denied a contractual remedy because it failed to tender on a party who had indicated that such a tender would be useless.
[42] In 1179 Hunt Club, the vendor rejected the purchaser’s anticipatory repudiation of the agreement, insisted that the transaction close on a specific date, and indicated that there would be immediate pursuit of legal remedies if the purchaser did not perform. The application judge found, and this court agreed, that the vendor was not in fact ready, willing, and able to close on the date it insisted upon, because it was unable to transfer title to the purchaser: at paras. 2, 17, 20, 21, 22 and 27. It was in that context − a party who was in fact not ready to perform insisting on strict performance from the other party − that Lauwers J.A. referred to the failure to tender as being “fatal” to the vendor’s position that it could “render perfection in its own performance”: at para. 23. Later in his reasons, Lauwers J.A. brought those two key aspects together when he explained: “[h]aving set the date, here the vendor did not trouble itself to tender, and in fact could not have tendered because on that day it was incapable of transferring title” (emphasis added): at para. 27.
[43] Accordingly, 1179 Hunt Club does not assist 252, because it does not stand for the proposition that a failure to tender by a party who is ready, willing and able to close precludes their claim.
(iii) The Trial Judge Did Not Err in Finding Rosseau Group Was Ready, Willing, and Able to Close
[44] 252 goes on to argue that the trial judge erred in finding that Rosseau Group was in fact ready, willing, and able to close. It argues that although the trial judge found that Rosseau Group had sufficient funds available from related entities to close the transaction, this was insufficient as it had not taken possession of those funds itself. It also argues that although the trial judge found Rosseau Group could assume the BMO Mortgage, this too was insufficient because it took no steps to do so. And it argues that the trial judge should have considered herself bound by the findings about readiness to close made on the CPL motion.
[45] I disagree.
[46] On the question of funds for closing, the trial judge’s finding that the funds required to close were available to Rosseau Group was sufficient. With that availability, it was ready, willing, and able to close. The added step of symbolically depositing the funds in its own account for a transaction that 252 would not complete would have been “a meaningless or futile gesture” of the type the law does not insist upon. . 6844987 Canada Inc. v. The United People of Canada/Les Peuple Unis du Canada
In 6844987 Canada Inc. v. The United People of Canada/Les Peuple Unis du Canada (Sup Ct, 2022) the court holds that 'tendering' requires actual making of a payment, not only a promise to do so:[74] Tendering money requires a party to do more than announce that they are prepared to pay: Archdekin v. McDonald, 1912 CanLII 651, at p. 666. Based on the record before me, I find that TUPOC has never tendered the money payable under the Agreement and the lease.
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