Hunter v. Atwal Superior Court of Justice, 2025
Background
This case involved a failed residential sale where the purchaser refused to close after the property’s title was transferred by the Seller’s Attorneys pursuant to a Power of Attorney. The Court confirmed that the sale remained binding and that the purchaser had no justification for refusing to complete the transaction.
Esther Hunter, age 99, owned a home in Brampton, Ontario. Because of her declining health, her children, William and Catherine Hunter, were acting under a valid Power of Attorney (POA).
In April 2022, they listed the property and entered into an Agreement of Purchase and Sale (APS) with Harbrinder Atwal to sell the home for $1,120,000, with a $40,000 deposit and a June 30, 2022 closing date.
Shortly after signing, the title was transferred from Esther to her two children (the POAs) for estate planning purposes. This was done to avoid complications if Esther passed away before closing, which she did on May 17, 2022.
The buyer’s agent was notified of the title change almost immediately, but no formal amendment was signed.
The Buyer Refuses to Close
When Mr. Atwal discovered the title transfer, he claimed the deal was invalid. He argued that:
- The property was no longer in Esther’s name;
- His title insurer, Chicago Title, refused coverage; and
- He could not be assured of receiving “good title.”
The Sellers’ lawyer offered to extend closing and provided all necessary documentation, including the Will and POA, confirming that good title could be conveyed.
Nevertheless, Mr. Atwal refused to close.
The Hunters resold the property several months later for $876,000, a loss of $244,000.
The Sellers’ Claim
The Hunters sued for damages representing the difference between the two sale prices, plus legal fees and carrying costs. They brought a summary judgment motion for their loss and sought to dismiss the buyer’s counterclaim for the return of his $40,000 deposit.
They argued that:
- The title transfer was authorized under the POA;
- The APS remained valid and binding;
- The buyer failed to object to title by the contractual deadline; and
- His refusal to close was unrelated to title, it was due to financing issues.
The Buyer’s Defence
Mr. Atwal argued that:
- He never agreed to deal with the Attorneys pursuant to POAs as Sellers;
- The APS was not assignable;
- The transfer to the POAs broke privity of contract; and
- He was justified in not closing because title insurance could not be obtained.
The Court’s Findings
Justice Wilkinson rejected the buyer’s arguments and granted summary judgment to the Hunters.
Findings:
- The APS itself showed that Esther Hunter was acting “by her Attorneys under Power of Attorney.”
- The title transfer to the Attorneys did not invalidate the APS.
- The Sellers were always able and willing to deliver good title.
- The purchaser did not submit a written objection to title by the contractual deadline.
- The absence of title insurance was irrelevant; the APS did not make insurance a condition of closing.
- The Court inferred that the buyer’s true reason for non-completion was inability to finance, not any legitimate title issue.
Justice Wilkinson relied on Nguyen v. Zaza (2023 ONCA 34), confirming that a vendor need not hold legal title at all times, only the ability to convey good title on the closing date.
Damages and Result
The Court awarded:
- $244,000 – loss on resale
- $1,496.12 – legal fees
- $2,822.48 – carrying costs
Total: $248,318.60
After crediting the $40,000 deposit, judgment was granted for $208,318.60 in favour of the Hunters.
The purchaser’s counterclaim was dismissed.
Important Considerations
- A valid APS signed under Power of Attorney remains binding even if title later transfers to the attorneys.
- A buyer cannot refuse to close simply because title insurance is unavailable.
- If a buyer has concerns about title, they must object in writing before the contractual deadline.
- The vendor need not hold title at the time of the APS, only be able to convey good title on closing.
- The courts will not permit buyers to rely on technicalities to escape a deal for financial reasons.
Brian Madigan LL.B., Broker
www.OntarioRealEstateSource.com