Don't be late for a very Important Date

“Time is of the essence” provisions are commonly found in sale agreements for land and are often contained in the “boilerplate”. Where clauses of this nature are present, parties must be careful to ensure their strict compliance with the time limits of a delivery of a deposit or risk losing the transaction. A review of some recent decisions clearly upholds the importance of complying with the deadlines for delivery of deposits where “time is of the essence”.

In the recent decision of the Ontario Superior Court of Justice in 1473587 Ontario Inc. v. Jackson [2005] CarswellOnt 712 (S.C.J.), which was upheld by the Ontario Court of Appeal at [2005] CarswellOnt 3282 (C.A.), the Court considered a situation whereby multiple vendors sold the same property twice. Loblaws, the first purchaser, through inadvertence, overlooked its payment of the deposit under its sale agreement with the vendors (the “Sale Agreement”). The Sale Agreement made time “of the essence” in all respects, as set out in the following clauses:

“21. This Offer, when accepted, shall constitute a binding contract of purchase and sale, and time in all respects shall be of the essence of this Agreement.

22. Time shall be of the essence of this Agreement, but no extension of time for the making of any payment or the doing of any acts hereunder shall be deemed to be a waiver or modifi cation of or affect this provision” [emphasis added].

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Barbara Green is a Partner in the Commercial Litigation Group at Robins Appleby LLP and an Ontario lawyer with over 20 years’ experience in employment law, estates litigation, and commercial litigation. She often represents employers, employees and businesses in complex disputes. Recognized in Best Lawyers Canada, Barbara has been featured on CBC, Global News and Newstalk 1010.

At Robins Appleby, we have been providing legal advice for over 70 years to entrepreneurs, businesses, financial institutions, and foreign companies operating in Canada. Located in Toronto's financial district, our firm is trusted by clients to help solve critical, time-sensitive issues. We offer a wide range of legal services including business and transactions, affordable and social housing, litigation and dispute resolution, commercial real estate development, tax law, employment law, and estate planning.