Weilers LLP

When Time Is Of The Essence

When Time Is Of The Essence

March 28, 2024

By Mark Mikulasik

In our modern casual world, we seldom need to be precise about being on time. Thus, we develop bad habits.


But what about when “time is of the essence” under the terms of a contract?


In 3 Gill Homes Inc. v. 5009796 Ontario Inc. (Kassar Homes), the Ontario  Court of Appeal reminds us that sometimes, time limits are strictly enforced by courts.

This case involved an agreement of purchase and sale of land between two sophisticated and experienced parties. The terms included a clause that the purchase price had to be paid by 3:00 on the date of closing. The buyer was 35 minutes late. Since it was a “sellers market”, the seller repudiated (walked away from) the contract and sold for a higher price.

The agreement contained a time of the essence clause:

Time shall be of the essence of this Agreement in all respects, and any waiver, extension, abridgement or other modification of any time provisions shall not be effective unless made in writing and signed by the parties hereto or by their respective solicitors who are hereby expressly authorized in that regard.

The apparent reason for the 3:00 deadline was to facilitate the completion of registration of title documents the same day. The buyer argued “no harm no foul”- that is that being 35 minutes late made no difference.

The Court of Appeal agreed with the Superior Court judge who heard the original application that excusing the delay would essentially rewrite the contract, something courts do not do.

There are situations where courts will not enforce a time is of the essence clause- but that requires some unfair or unjust conduct by the party seeking to rely on the clause. The court found no such conduct in this case.

The buyer pointed to prior dealings where the seller had not enforced “time is of the essence” clauses. The application judge however found that the time deadline was firm, and the appeal court agreed, mainly because the seller had reminded the buyer of the deadline repeatedly, but also because the buyer was a sophisticated party which should have known better.

That sophistication was a factor in finding that the clause was not unconscionable. Unconscionability is usually only found where one more powerful or sophisticated  party imposes an unusually onerous provision on a more vulnerable or innocent party.


  • Some deadlines are serious.
  • Care should be taken to read, understand, and follow the terms of an agreement.
  • Courts will enforce “time of the essence” clauses where there is no unfairness.
  • The enforcement is more likely where the parties are “sophisticated”.
  • This means that inexperienced parties may be given more leeway.



Our team of experienced commercial and real estate lawyers take the time to understand your deal and watch for hidden pitfalls. We take the time to make sure that you review the agreement and discuss it with you to spot any additional concerns.

If you are unlucky enough to have a lawsuit over your agreement, our litigation team is skilled at locating, assembling, and presenting the evidence in the best possible way to attempt to assist you to claim the moral high ground favoured by the courts.

Whether you are entering into a new commercial or residential real estate deal, or in a dispute at the end of the deal, please call us and see if Weilers LLP are the right lawyers for you.