35 Minutes Late: Why “Time Is Of The Essence” Matters

Published on June 4, 2026

Imagine spending years negotiating a real estate deal, putting down a deposit, and showing up ready to close, only to have the entire agreement voided because your funds arrived 35 minutes past the deadline.

That is exactly what happened to the purchaser in a 2024 Ontario Court of Appeal decision, 3 Gill Homes Inc. v. 5009796 Ontario Inc. (Kassar Homes), and it is a cautionary tale every buyer, seller, and real estate investor in Ontario needs to understand.

The Facts

In July 2020, a purchaser called 3 Gill Homes Inc. entered into three separate agreements of purchase and sale with a builder, Kassar Homes, for newly constructed residential properties.

The third agreement was originally set to close on August 31, 2021. Construction delays pushed that date back, and by mutual agreement the parties extended the closing to January 28, 2022 at 3:00 p.m.

Critically, this new amendment included a “time is of the essence” clause: a standard but powerful piece of contract language that, as this case makes clear, courts take very seriously.

In the weeks leading up to the new closing date, Kassar was not subtle about the stakes:

The principal of Kassar personally reminded 3 Gill’s principal that the funds had to arrive by 3:00 p.m. or the deal was done.
On January 25, 2022, Kassar’s lawyer emailed 3 Gill’s lawyer with the same warning.
On January 27, 2022, 3 Gill requested a short extension to January 31. Kassar refused.
Kassar’s principal called again that same evening to reconfirm: 3:00 p.m. tomorrow or the deal is terminated.

On closing day, at 2:47 p.m., 3 Gill’s lawyer emailed to say the funds had been obtained and the bank was “sorting them out.”

At 3:10 p.m., ten minutes after the deadline, Kassar’s lawyer responded: the deadline had passed; they had instructions not to close.

The funds ultimately arrived 35 minutes late. Kassar refused them. The deal was dead.

What The Courts Said

3 Gill brought an application seeking a declaration that Kassar had breached the agreement by refusing the late funds and claimed damages accordingly. Both the Ontario Superior Court and, on appeal, the Ontario Court of Appeal disagreed.

The Court of Appeal upheld the lower court’s ruling that Kassar was entirely within its rights to terminate the agreement.

1. "Time Is of the Essence" Means What It Says

Ontario courts have been clear on this for years. As the Court of Appeal reiterated from its earlier decision in Di Millo v. 2099232 Ontario Inc. (2018 ONCA 1051):

“A ‘time is of the essence’ clause is engaged where a time limit is stipulated in a contract. The phrase ‘time is of the essence’ means that a time limit in an agreement is essential such that breach of the time limit will permit the innocent party to terminate the contract.”

When sophisticated parties in a real estate transaction voluntarily include this clause, they are generally held to it, absent exceptional circumstances.

2. Past Flexibility Does Not Create Future Tolerance

This was the heart of 3 Gill’s argument: yes, there was a “time is of the essence” clause, but look at how both parties had been operating.

Kassar itself had missed construction deadlines throughout the project, and neither side had enforced the clause rigidly before.

Why should this time be any different? The Court of Appeal’s answer was clear: because the parties explicitly renegotiated the deal.

When the amendment was signed on November 15, 2021 setting the new closing deadline, it reset the expectations between the parties.

The Court found it was entirely open to the application judge to treat that amendment as a fresh starting point: one from which the 3:00 p.m. deadline on January 28, 2022 was to be treated as firm.

Kassar’s repeated warnings in the days leading up to closing only reinforced this. Those communications reflected what the Court called a “shared understanding that the closing date and time were to be enforced.”

3. No Unjust Conduct By Kassar

For a court to step in and relieve a party from a “time is of the essence” breach, there typically has to be some unjust or unconscionable conduct by the party seeking to enforce the clause.

Choosing to enforce a clearly written, repeatedly communicated deadline is not unjust. The Court found nothing in Kassar’s conduct that warranted judicial intervention.

Why This Decision Matters

1. Time Is Of The Essence Is Strictly Enforced

One of the most striking aspects of the decision is that 35 minutes made no legal difference. Once a “time is of the essence” clause applies, the question is often binary: did you perform on time or not?

In rare circumstances, a court may grant relief from forfeiture. However, parties should not assume that a minor delay will be treated as trivial.

2. Renegotiation Resets The Clock

When parties amend a contract, even one with a history of lax enforcement, the amendment can create a clean slate. Prior flexibility does not carry forward automatically.

3. Conduct Can Harden Or Soften Contractual Rights

The way you communicate around a deadline matters. Kassar’s repeated written warnings were treated as evidence of a “shared understanding” that the deadline was firm.

4. Sophisticated Parties Are Held To A Higher Standard

The courts were less sympathetic because both sides were experienced business operators. The decision reinforces the general principle that Ontario courts will not often rescue a party from a clearly worded agreement simply because the result is harsh.

5. No Cure = No Relief

The absence of a cure or grace period provision was held against the purchaser. In any contract negotiation, parties should think carefully about whether to include a cure period for time-sensitive obligations.

Have Questions About Contractual Disputes?

At Pinto Shekib LLP, our Toronto real estate litigation team regularly advises buyers, sellers, builders and investors on complex contractual disputes throughout Ontario.