Owner of Toronto property with 250-year-old oak must sell to city at agreed price, judge rules

Dispute began after city agreed to buy property so tree could be preserved, displayed

Cbc.ca
Oct. 15, 2021

An Ontario court has ruled in favour of the City of Toronto in its bid to preserve a 250-year-old oak tree -- ordering the owner of the North York property the tree sits on to sell the home to the city at the agreed price, despite the current market value soaring during the pandemic.

At a virtual court hearing on Thursday, Ontario Superior Court Justice Susan Vella noted the owner, Ali Simaga, wanted to end the purchase agreement with the city so that he could relist the house at a higher price. The market value of the house has increased substantially from the time of the initial agreement with the city.

"This is not a valid reason for terminating a real estate deal," Vella said at the hearing.

The dispute started soon after the city entered into an agreement with the homeowners nearly two years ago to buy the home, so the house could be demolished and the historic tree could be preserved and displayed.

As per the court hearing, the Simagas took the position that the city did not pay a required deposit of $2 toward the purchase price of $780,000 by the time noted in the purchase agreement. The Simagas felt because of this, they were entitled to cancel the agreement.

"They say without the $2 payment there was no valid consideration for the agreement of purchase of sale and therefore was not enforceable," Vella said.

But the judge said she did not believe based on the evidence provided by the city that the delayed payment amounted to a breach of the contract.

Deposit accepted 'without objection or reservation'
She also noted that when the $2 deposit payment was finally made, the owners accepted it "without objection or reservation," and said the objection was raised for the first time after the city began its application.

"When the aggrieved party fails to raise a violation by the other contractual party as a fundamental breach in a timely way, the court will not consider that factor in determining whether the breach was fundamental," Vella said.

As such, the Simagas "lost the right to terminate the contract" on that basis, the judge said.

The city entered an agreement with Simaga in December 2019 to purchase the North York house for $780,000 with certain conditions, including that the community raise $400,000 within a year to go toward the purchase and maintenance of the tree, according to a city court application filed in May.

The plan was to demolish the house and transform the property into a parkette to showcase the gigantic tree, the last remnant of the ancient oak forest that once spanned the area.

Parkette would give community access to tree
"When you get in the backyard and see the stem, the trunk of this tree, you realize you're looking at a miracle," said neighbour Edith George, who has campaigned to preserve the tree.

"By opening it up [with the creation of the parkette] it's giving all of us a chance to understand about our natural heritage," she added.

The tree, about 24 metres tall, five metres around and just a few metres from the house at 76 Coral Gable Dr., predates Confederation. Its branches stretch a dozen metres in each direction, and its thick roots dive deep underground.

On Feb. 23, 2021, Simaga emailed the city to say he expected the sale price to reflect "the market price" of the property, which by his estimate had increased by $120,000 to $900,000.

He originally purchased the property for $520,000 in 2015, according to court documents.

Thursday's verdict was a result of the city requesting the Ontario Superior Court of Justice to order the purchase complete and place the property title in its name.

Vella ordered that the deal be closed by Dec. 1, 2021, but said the parties are free to close the deal before that date.

Simaga was unable to talk to CBC News, but a friend of the family, Sabi Ahsan, spoke on his behalf,  saying "Mr. Simaga is obviously very disappointed by the decision."

Ahsan added that Simaga "did not understand it would take [the city] many years, and what would happen to prices," saying there was "no protection for him."

Simaga intends to pursue further legal action, Ahsan said.