1. That the proposed forfeited sum is out of proportion to the damages suffered by the claimant, and
2. That it would be unconscionable for the vendor/ claimant to retain
the deposit paid. See Varajao v. Azish, 2015 ONCA 218, at paragraph 11.
There is no evidence before the court that enables a determination of
whether or not the vendors suffered any damages. It is, therefore, not possible to say that the sum proposed to be forfeited is or is not proportionate to
any damages suffered by the vendor. It is, however, possible to say
$750,000.00 is a very significant deposit even for a transaction of over
$10,000,000.00. The final deposit of $450,000.00 to obtain an extension of
the closing date from 30 June 2015 to 15 December 2015 is disproportionate.
When combined with the first deposit of $100,000.00 and the second deposit
of $200,000.00, the grand total reaches a level where complete forfeiture
becomes unconscionable, in the absence of any evidence concerning damages
suffered by the vendor.
For all of the above reasons, relief against forfeiture should be granted
pursuant to Section 98 of the Courts of Justice Act and the sum to be forfeited should be reduced. A reduction to a total of $350,000.00 is appropriate
in the circumstances to eliminate the level of unconscionability that the
total deposit reached.
C. The Issue
 The issue is whether the application judge erred in granting partial relief from forfeiture of the deposit to the buyer. The
appellant does not challenge the application judge’s finding that
there was no legally acceptable justification for the buyer not to
close the transaction.
D. The Standard of Review
 The parties both cite a decision of this court on the applicable standard of review, but for different positions: Birch v.
Union of Taxation Employees, Local 70030 (2008), 93 O.R (3d) 1,
 O.J. No. 4856, 2008 ONCA 809, leave to appeal to S.C.C.
refused  S.C.C.A. No. 29. The appellant cites para. 47 of
Birch, where the court quoted McLachlin J.A. (as she then was)
in Principal Investments Ltd. v. Thiele Estate,  B.C.J.
No. 586, 37 D.L.R. (4th) 398, 1987 CarswellBC 76 (C.A.), who
said: “determination of whether the established facts support
a conclusion of unconscionability on the applicable legal principles is primarily a question of law, with which this Court can
interfere if it finds the conclusion to be wrong” (at para. 18
 The respondent urges deference, and cites para. 59 of Birch
for the proposition that there could be no basis for this court to
interfere with an application judge’s decision on unconscionability since he “applied the correct test for unconscionability