This article was originally published on Law360TM Canada (www.law360.ca), part of LexisNexis Canada Inc.
This case is a clear example of a failed commercial real estate transaction affirming that “time is the essence” clause must be complied with even if it is amidst pandemic challenges and that COVID-19 does not constitute an excuse for non-performance of contractual obligations. It is a reminder that strict compliance of the terms of the Agreement of Purchase and Sale is necessary and failure to do so would lead to significant legal and financial repercussions. The case, Gil Shcolyar v. Bensher Holdings Limited, 2025 ONSC 2205, was heard before the Ontario Superior Court of Justice, where the plaintiff, Gil Shcolyar, action against the defendant, Bensher Holdings Limited for specific performance compelling the defendant to complete the real estate transaction.
According to the facts of this case, the parties entered into an Agreement of Purchase and Sale on December 5, 2019, for commercial property with a purchase price of $2.95 million. All conditions were waived by the plaintiff. The closing date was set for January 29, 2020. The closing date was amended to February 28, 2020. Mid-January, the plaintiff’s lender, DUCA provided a letter of intent to the plaintiff. In February, DUCA advised the plaintiff that there will be a delay in advancing the mortgage, requesting that the closing date be extended until late March to finalize the loan. To be on the safer side the plaintiff requested the defendant to extend the closing to April 27. The defendant agreed to extend the closing provided that the plaintiff releases the given deposit of $100,000.00 and to give an additional non-refundable deposit of $100,000.00. The total deposit being paid by the plaintiff is $200,000.00.