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Contracts - Evidence. VanderMolen Homes Inc. v. Mani
In VanderMolen Homes Inc. v. Mani (Ont CA, 2025) the Ontario Court of Appeal dismissed an appeal, here from a successful summary judgment by the plaintiff developer under a new home APS.
Here the court considers post-conduct evidence, here in a contractual context:The trial judge did not err in finding the evidence of subsequent conduct should be admitted
[27] Regarding the third issue on appeal, the appellants argue that the trial judge erred in admitting evidence of subsequent conduct in order to conclude that the parties treated the contractual obligations as ongoing and binding. Among such pieces of evidence, the request by the appellants’ counsel to list the house for sale in August 2022 in order to lessen damages is particularly compelling.
[28] Evidence of subsequent conduct should only be admitted if the contract remains ambiguous after considering its text and factual matrix: Shewchuk v. Blackmont Capital Inc., 2016 ONCA 912, 404 D.L.R. (4th) 512, at para. 46. In our view, the subsequent conduct was relevant here since the parties contested whether the missed deadline to accept the extension was fatal.
[29] We see no error in the motion judge considering this conduct since the conduct appeared consistent, mutual, close to the time of contracting, and not self-serving: see SS&C Technologies Canada Corp. v. The Bank of New York Mellon Corporation, 2024 ONCA 675, at para. 50. When these characteristics are present, subsequent conduct is, as here, “sometimes the best evidence of whether [the parties] objectively intended to form a contract.”
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