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Time is of the Essence

. Ching v. Pier 27 Toronto Inc.

In Ching v. Pier 27 Toronto Inc. (Ont CA, 2021) the Court of Appeal made useful comments of the contract issue of 'time is of the essence', commonly used in real estate agreements of purchase and sale:
[52] I would also add that, though not argued by the parties, even if there was no election to affirm and no election to disaffirm, by default, at law, there would be no election. Accordingly, on the July 30, 2014, closing date, the Agreement continued. Neither party was ready, willing or able to close on that date. As such, the rule in King v. Urban & Country Transport Ltd. (1973), 1973 CanLII 740 (ON CA), 1 O.R. (2d) 449 (C.A.) was applicable. This rule was explained in Domicile Developments Inc. v. MacTavish (1999), 1999 CanLII 3738 (ON CA), 45 O.R. (3d) 302 (C.A.) as follows:
In King v. Urban the purchaser was not in a position to close on the closing date; but the vendor was also in default and not entitled to rely on the time of the essence provision in the contract. Arnup J.A. resolved the stalemate by applying two propositions:

1. When time is of the essence and neither party is ready to close on the agreed date the agreement remains in effect.

2. Either party may reinstate time of the essence by setting a new date for closing and providing reasonable notice to the other party. [Footnote omitted.]
. Jesan Real Estate Ltd. v. Doyle

In Jesan Real Estate Ltd. v. Doyle (Ont CA, 2020) the Court of Appeal noted the effect of a 'time is of the essence' clause:
[38] As noted, the OPA also contains a clause that makes time of the essence. A “time is of the essence” clause is engaged where a time limit is stipulated in a contract. It means that a time limit in an agreement is essential such that breach of the time limit will permit the innocent party to terminate the contract. Di Millo v. 2099232 Ontario Inc., 2018 ONCA 1051, 430 D.L.R. (4th) 296, at paras. 32-33, leave to appeal refused, [2019] S.C.C.A. No. 55.


[48] In any event, even if the timing for the deposit payment is ambiguous, Mr. Doyle was not entitled to pay the deposit anytime, as the application judge’s reasons imply. When an agreement does not expressly reference a time for performance, the law will imply a term that it must be performed within a reasonable time: Ju v. Tahmasebi, 2020 ONCA 383, 447 D.L.R. (4th) 349, at para. 20; Di Millo, at para. 38. ....


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