Preiano v. Cirillo is useful in understanding the measure of damages on a claim by purchasers against vendors in a failed real estate transaction. The trial judge found that the purchasers were not entitled to specific performance and awarded damages instead. However, the Court found that the measure of damages awarded was wrong. The purchasers were not entitled  to the difference between the purchase price under the APS and the value of the property at the date of trial. That would have been the measure of damages in lieu of specific performance, had the purchasers been entitled to specific performance. However, since they were not entitled to specific performance (lack of uniqueness), the purchasers were only entitled to the difference between the value of the property at the date of breach and the purchase priced under the APS. While the trial judge also erred in finding that that the purchasers did not have a duty to mitigate their damages (which was inconsistent with the finding that they were not entitled to specific performance), that did not affect the result, as the vendors had failed to put meet their onus of putting forward any evidence that the purchasers failed to take reasonable steps to find a substitute property or that there were substitute properties available.

In Jarvis v Oliveira, J.J, a minor, sued S.O for negligence after suffering severe injuries after being struck by S.O’s car. The jury absolved S.O of liability, but the trial judge refused to award S.O their costs. The appellants contested the verdict, arguing the trial by jury was tainted by unfairly admitted evidence that maligned J.J’s character. The Court agreed and ordered a new trial, criticizing the trial judge’s handling of the character evidence. The decision to award no costs was also contested, but the Court did not need to address this issue in light of the order for a new trial.

In De Cerigo Properties Inc. v. Raffan, a claim for negligence and fraud against an accountant, the Court allowed the appeal and ordered a new trial. The trial judge incorrectly refused to admit the evidence of the appellant’s expert on the standard of care of professional accountants.

Other topics included the failure to exercise an option to purchase a residential property contained in a residential lease, and the interpretation of an employment termination clause.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

De Cerigo Properties Inc. v. Raffan, 2024 ONCA 215

Keywords: Torts, Professional Negligence, Accountants, Standard of Care, Fraud, Fraudulent Misrepresentation, Intentional Interference with Economic Relations, Evidence, Admissibility, Expert Evidence

Gatoto v. 5GC Inc., 2024 ONCA 210

Keywords: Contracts, Real Property, Residential Leases, Options to Purchase, Civil Procedure, Applications, Actions, Residential Tenancies Act, 2006, S.O. 2006, c. 17, Rules of Civil Procedure, r. 38.10(1),  Jesan Real Estate Ltd. v. Doyle, 2020 ONCA 714, Sail Labrador Ltd. v. Challenge One (The), [1999] 1 S.C.R. 265

Jarvis v. Oliveira, 2024 ONCA 200

Keywords: Torts, Negligence, MVA, Civil Procedure, Trials, Juries, Evidence, Admissibility, Character Evidence, Probative Value vs Prejudicial Effect, Costs, Highway Traffic Act, R.S.O. 1990, c. H.8, s. 193(1), Courts of Justice Act, R.S.O. 1990, c. C.43, s.134(1), Jarvis v Oliveira, 2023 ONSC 101, Jarvis v Oliveira, 2022 ONSC 1982, Jarvis v Oliveira, 2022 ONSC 1972, Landolfi v Fargione (2006), 79 O.R. (3d) 767 (C.A.), Fiddler v Chiavetti, 2010 ONCA 210, Willick v Willick, 2023 ONCA 792, Bruno v Dacosta, 2020 ONCA 602, Nemchin v Green, 2019 ONCA 634, Stilwell v World Kitchen Inc, 2014 ONCA 770, Deep v Wood et al (1983), 143 D.L.R. (3d) 246 (Ont. C.A.), Mood Music Publishing Co Ltd v De Wolfe Ltd, [1976] 1 All E.R. 763 (C.A.), Penate v Martoglio, 2024 ONCA 166, Bruff-Murphy v Gunawardena, 2017 ONCA 502, R v Giesecke (1993), 13 O.R. (3d) 553 (C.A.), Brochu v Pond (2002), 62 O.R. (3d) 722 (C.A.), Gilbert v South, 2015 ONCA 712, Marshall v Watson Wyatt & Co (2002), 57 O.R. (3d) 813 (C.A.), Hoang v Vincentini, 2016 ONCA 723, Iannarella v Corbett, 2015 ONCA 110

Kopyl v. Losani Homes (1998) Ltd., 2024 ONCA 199

Keywords: Contracts, Employment, Fixed Term Employment, Termination, Damages, Mitigation, , Employment Standards Act, 2000, SO 2000, c 41, Waksdale v Swegon North America Inc., 2020 ONCA 391, Howard v Benson Group Inc., 2016 ONCA 256

McFadden v. Psutka, 2024 ONCA 203

Keywords: Civil Procedure, Amending Pleadings, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, Rules of Civil Procedure, rr. 26.01, Polla v. Croatian (Toronto) Credit Union Limited, 2020 ONCA 818, leave to appeal refused, [2021] S.C.C.A. No. 64, Marks v. Ottawa (City), 2011 ONCA 248, Avedian v. Enbridge Gas Distribution Inc., 2023 ONCA 289

Preiano v. Cirillo, 2024 ONCA 206

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Damages, Mitigation, Civil Procedure, Striking Pleadings, Rules of Civil Procedure, rr. 2.03, 15.01(1), Tribute (Springwater) Limited v. Atif, 2021 ONCA 463, Akelius Canada Ltd. v. 2436196 Ontario Inc., 2022 ONCA 259, leave to appeal refused, [2022] S.C.C.A. No. 183, The Rosseau Group Inc. v. 2528061 Ontario Inc., 2023 ONCA 814, Semelhago v. Paramadevan, [1996] 2 S.C.R. 415, Sivasubramaniam v. Mohammad, 2018 ONSC 3073 aff’d, 2019 ONCA 242, Wood v. Grand Valley Rway. Co., (1915) 51 S.C.R. 283, Southcott Estates Inc. v. Toronto Catholic District School Board, 2012 SCC 51

Short Civil Decisions

M. Singh Law Professional Corporation v. River Green (Thunder Bay) Inc., 2024 ONCA 201

Keywords: Contracts, Solicitor and Client, Solicitors’ Liens, Charging Orders, Solicitors Act, R.S.O. 1990, c. S.15., s.34(1), Weenen v. Biadi, 2018 ONCA 288

Los v. Ross, 2024 ONCA 208

Keywords: Costs

1261271 B.C. Ltd. v. Hanover PV Limited Partnership, 2024 ONCA 207

Keywords: Corporations, Remedies, Oppression, FNF Enterprises Inc. v. Wag and Train Inc., 2023 ONCA 92

Teljeur v. Aurora Hotel Group, 2024 ONCA 213

Keywords: Contracts, Employment, Damages, FNF Enterprises Inc. v. Wag and Train Inc., 2023 ONCA 92

CIVIL DECISIONS

De Cerigo Properties Inc. v. Raffan, 2024 ONCA 215

[Lauwers, Roberts and Monahan JJ.A.]

Counsel:

Mazzuca and B. Masters, for the appellants

Berlach and N. Eklove, for the respondent

L. Melconian, for KC

Keywords: Torts, Professional Negligence, Accountants, Standard of Care, Fraud, Fraudulent Misrepresentation, Intentional Interference with Economic Relations, Evidence, Admissibility, Expert Evidence

facts:

The appellants, De Cerigo Properties Inc., Studio Pyramid Inc. and MP, appealed the dismissal of their action. In their statement of claim, they sought, among other things, damages for $2 million against the respondent, CR, for negligence, fraud, fraudulent misrepresentation, and intentional interference with economic relations. The trial judge dismissed the action after deciding that the appellants’ accounting expert, Dr. LR, would not be permitted to testify because he had not set out the expected standard of care of a certified general accountant in his reports.

issues:

Did the trial judge err in dismissing the action and rejecting the appellant’s expert?

holding:

Appeal allowed.

reasoning:

Yes

The trial judge erred. The opinions expressed in Dr. R’s reports clearly addressed all the appellants’ claims. While Dr. R might not have expressly used the specific words, “standard of care”, it was not necessary for him to do so given the nature of the allegations and the contents of his reports, including the unambiguous opinions he expressed about the negligence and impropriety of the respondent’s actions. It was not a case involving a debate over the exercise of professional judgment concerning the implementation of a legitimate accounting approach where expert evidence is required to explain why that approach falls below the requisite standard. The alleged failings could not be more fundamental to the duties and obligations of a professional accountant. A professional accountant who is found to be in a conflict of interest and to have engaged in accounting negligence and actions that might amount to fraud, as Dr. R opined in his reports, has fallen below the relevant professional standard of care. On their own, Dr. R’s reports plainly and amply provided evidentiary support for the appellants’ claims. However, the trial judge clearly erred in refusing to permit Dr. R to testify because his evidence, on its face, was relevant and necessary. The trial judge’s premature and erroneous dismissal of the action in the circumstances amounted to a miscarriage of justice and could not be permitted to stand.

Gatoto v. 5GC Inc., 2024 ONCA 210

[Pepall, George and Dawe JJ.A.]

Counsel:

Rouben, for the appellant

Argiropoulos, for the respondent

Keywords: Contracts, Real Property, Residential Leases, Options to Purchase, Civil Procedure, Applications, Actions, Residential Tenancies Act, 2006, S.O. 2006, c. 17, Rules of Civil Procedure, r. 38.10(1),  Jesan Real Estate Ltd. v. Doyle, 2020 ONCA 714, Sail Labrador Ltd. v. Challenge One (The), [1999] 1 S.C.R. 265

facts:

The appellant and the respondent entered into a Lease and an Option Agreement relating to property in which the appellant resided. The Lease had a 36-month term, and thereafter it was a month-to-month tenancy. Under the Option Agreement, the appellant could exercise an option to purchase the property for a fixed amount, provided she complied with the Lease. The closing of an agreement of purchase and sale arising from the exercise of the Option was to occur within 30 days of the expiration of the Lease.

In 2016, the appellant advised the respondent that her income tax filings were not completed due to missing rent receipts that the respondent had not provided to her. She maintained that she needed the income tax information to apply for mortgage financing. The respondent offered to extend the Option Agreement at a higher price based on the current value of the property. The respondent advised the appellant that if she did not agree to the extension, the Option would expire and her ability to purchase the property would disappear. The appellant refused the offer.

The appellant sought an order permitting her to purchase a residential property pursuant to the Option Agreement or, in the alternative, an order that a $25,000 downpayment be returned to her together with interest. She appealed from the dismissal of her application.

issues:

1. Did the application judge err in her interpretation and approach to determining that the Option had expired?

2. Did the application judge err in her causation analysis?

3. Did the application judge err in failing to convert the application into an action?

holding:

Appeal dismissed.

reasoning:

1. No.

The appellant argued that the Option Agreement was a bilateral contract and, therefore, the appellant could only be deprived of its benefit if she substantially breached its terms. The appellant said that as no such breach occurred, the Option was available to her at a date later than the expiry date of October 31, 2016.

The Court disagreed. The Option Agreement clearly spelled out the terms that governed the parties. The month-to-month tenancy that ensued after the fixed term ended did not operate to extend the Option Agreement expiry or the availability of the fixed Option purchase price. Nor did the Option continue until 30 days from the expiration of the Lease. The 30 days was the time within which the agreement of purchase and sale was to close once the Option had been exercised. The Option Agreement set out a deadline by which the Option and accompanying purchase price had to be exercised.

The Court noted that the Option Agreement did not contain a mechanism to calculate the purchase price after the expiry of the stipulated time period. The parties could not have intended that they be required to attend at the Superior Court to ask a judge to fix the purchase price, as the appellant suggested. Rather, the Option Agreement relied on clear time limits that had to be respected. The appellant was not in a financial position to exercise the Option and failed to do so. There was no error in the application judge’s interpretation or her finding that the Option had expired.

2. No.

The application judge held that the appellant had failed to establish a causal relationship between the respondent’s failure to provide rent receipts and the appellant’s failure to file income tax returns for 2014 and 2015 or to obtain mortgage financing. There was no evidence that the Canada Revenue Agency had refused to accept the rent amounts submitted nor any evidence that the appellant ever submitted a mortgage application for consideration. The Court held that it was open to the application judge to conclude that causation had no been proven due to the failure of the appellant to adduce any evidence that established causation. The appellant simply was never in a position to exercise the Option and purchase the property on the terms stipulated in the Option Agreement.

3. No.

The Court noted that it did not appear that the appellant asked for the application judge to convert her application to an action. As a result, the application judge could hardly be faulted for failing to do so. In any event, rule 38.10(1) is discretionary in nature.

Jarvis v. Oliveira, 2024 ONCA 200

[Gillese, Trotter and Coroza JJ.A.]

Counsel:

Todorovic and R. Trenker, for the appellants/respondents by way of cross-appeal

Rollo and R. Bowman, for the respondents/appellants by way of cross-appeal

Keywords: Torts, Negligence, MVA, Civil Procedure, Trials, Juries, Evidence, Admissibility, Character Evidence, Probative Value vs Prejudicial Effect, Costs, Highway Traffic Act, R.S.O. 1990, c. H.8, s. 193(1), Courts of Justice Act, R.S.O. 1990, c. C.43, s.134(1), Jarvis v Oliveira, 2023 ONSC 101, Jarvis v Oliveira, 2022 ONSC 1982, Jarvis v Oliveira, 2022 ONSC 1972, Landolfi v Fargione (2006), 79 O.R. (3d) 767 (C.A.), Fiddler v Chiavetti, 2010 ONCA 210, Willick v Willick, 2023 ONCA 792, Bruno v Dacosta, 2020 ONCA 602, Nemchin v Green, 2019 ONCA 634, Stilwell v World Kitchen Inc, 2014 ONCA 770, Deep v Wood et al (1983), 143 D.L.R. (3d) 246 (Ont. C.A.), Mood Music Publishing Co Ltd v De Wolfe Ltd, [1976] 1 All E.R. 763 (C.A.), Penate v Martoglio, 2024 ONCA 166, Bruff-Murphy v Gunawardena, 2017 ONCA 502, R v Giesecke (1993), 13 O.R. (3d) 553 (C.A.), Brochu v Pond (2002), 62 O.R. (3d) 722 (C.A.), Gilbert v South, 2015 ONCA 712, Marshall v Watson Wyatt & Co (2002), 57 O.R. (3d) 813 (C.A.), Hoang v Vincentini, 2016 ONCA 723, Iannarella v Corbett, 2015 ONCA 110

facts:

J.J was 16 years old when she ran intoxicated across the street from a taxi without paying and collided with a vehicle driven by S.O, suffering severe brain injuries, skull fractures, and other injuries. Due to her injuries, J.J had no memory of the collision. J.J sued S.O in negligence, but the jury found S.O not liable, resulting in no award of damages.

Both sides appealed, with the appellants challenging the jury’s verdict, contending that the trial was unfair due to the admission of prejudicial evidence about J.J. The trial judge had admitted this evidence for narrative purposes only, but it was used to smear J.J’s character, and the appellants argued that the jury instructions failed to address this issue adequately. The respondents cross-appealed the trial judge’s decision to award no costs, arguing that the judge erred in considering the tragic circumstances and the claimed unfair handling of evidence by the respondent’s counsel.

issues:

1) Should the jury’s verdict be set aside because the manner in which the taxi fare evidence against J.J was handled resulted in an unfair trial?

2) Did the trial judge err in awarding no costs based on the tragic circumstances of the case and based on the unfair conduct of the respondent’s counsel in handling the taxi fare evidence?

holding:

Appeal allowed. Cross-appeal dismissed.

reasoning:

1) Yes.

The appellants submitted that the jury’s verdict be set aside due to an unfair trial, primarily because of how the taxi fare evidence was handled. They cited the Court’s authority to order a new trial if a substantial wrong or miscarriage of justice occurred, as per section 134 of the Courts of Justice Act.

The Court deemed the trial unfair as the respondent’s counsel impugned the character of J.J, a minor at the time, with evidence of marginal probative value. The evidence was about why J.J was running and was used to suggest she was careless, impacting her credibility and the jury’s assessment despite her inability to remember the incident. The Court determined that the probative value of such evidence was overshadowed by its prejudicial impact, thereby contravening the general exclusion of character evidence in civil litigation and failing to meet any established exceptions for its admissibility.

In addressing the fairness of the trial, the Court focused on the delayed judicial ruling regarding the contested taxi fare evidence. The delay left the legal representatives, especially those for the appellants, in a precarious position regarding the strategic presentation of their case. The Court pointed out that this delay effectively allowed the respondent’s counsel to introduce the taxi fare issue pre-emptively, potentially biasing the jury’s perception even before the judge had formally ruled on its admissibility. The Court expressed concern over the trial judge’s failure to provide a clear, decisive ruling on the evidence, which could have prevented its prejudicial use. Furthermore, the Court criticized the trial judge’s lack of a corrective jury instruction regarding the misuse of such character-impugning evidence. The Court concluded that the interests of justice justified allowing the appeal and thus ordered a new trial.

2) The Court did not address the cross-appeal

The Court found that, given the conclusion on the main appeal, addressing the trial judge’s decision to award no costs was deemed unnecessary. However, the costs decision highlighted issues from the trial, particularly criticizing the respondent’s counsel for prematurely introducing taxi fare evidence, which the trial judge later inconsistently deemed entirely admissible, revealing the trial’s pervasive lack of clarity and fairness. The Court found that the inconsistency in the trial judge’s ruling emphasized the trial’s overall unfairness.

Kopyl v. Losani Homes (1998) Ltd., 2024 ONCA 199

[Lauwers, Roberts and Monahan, JJ.A.]

Counsel:

L. Dye, for the appellant

Van Kralingen and V. Gairola, for the respondent

Keywords: Contracts, Employment, Fixed Term Employment, Termination, Damages, Mitigation, , Employment Standards Act, 2000, SO 2000, c 41, Waksdale v Swegon North America Inc., 2020 ONCA 391, Howard v Benson Group Inc., 2016 ONCA 256

facts:

The appellant hired the respondent on a one-year fixed term contract from July 6, 2022, to July 6, 2023, (the “Term”) at an annual salary of $150,000. The employment agreement included both for-cause and without-cause termination clauses (collectively, the “Termination Clauses”).

On January 9, 2023, the appellant purported to terminate the respondent’s employment on a without-cause basis and paid her four weeks salary, equal to $11,538.46. The respondent argued that the Termination Clauses in the contract were void on the basis that they contravened requirements set out in the Employment Standards Act. Therefore, the respondent claimed that the appellant did not have the right to terminate her employment prior to the expiry of the Term and that she was entitled to be paid her salary for the Term’s unexpired portion, without a duty to mitigate her damages.

The appellant did not dispute the fact that the Termination Clauses contravened the ESA and were therefore void. However, relying upon Waksdale v. Swegon North America Inc., the appellant argued that, where one termination clause in an employment contract contravenes the ESA, all the termination clauses in the contract are automatically voided. The appellant further argued that the clause establishing a one-year limit to the respondent’s employment (the “Fixed Term Clause”) was in effect a termination clause. Thus, because the Termination Clauses in the contract were void, so too was the Fixed Term Clause. The legal consequence was that the respondent’s employment was not subject to a fixed term but, rather, was terminable upon the provision of “reasonable notice” at common law, subject to a duty on the respondent to mitigate her damages.

The application judge rejected the appellant’s position and found that the invalidity of the Termination Clauses did not affect the validity of the Fixed Term Clause. Relying on Howard v. Benson Group Inc, the application judge found that a contractual provision providing for a fixed term of employment was not a termination clause since, upon the expiry of said fixed term, the employment relationship automatically terminates without any obligation on the employer to provide notice or payment in lieu of notice. Therefore, despite the invalidity of the Termination Clauses, the Fixed Term Clause remained in effect. The legal consequence was that the respondent’s employment had been wrongfully terminated and she was entitled to receive payment equal to her salary and benefits for the unexpired portion of the Term, less any amounts paid by the appellant, without any duty to mitigate.

issues:

1. Did the application judge fail to properly apply Waksdale?

a. Should the invalidity of the Termination Clause have voided the Fixed Term Clause and was the respondent was entitled only to the provision of reasonable notice, rather than compensation for the unexpired portion of the Term?

holding:

Appeal dismissed.

reasoning:

1. No.

a. No.

The application judge made no error in finding the Court’s decision in Benson Group Inc. to be dispositive of the application. In Benson Group Inc., the invalidity of a clause providing for early termination of the employment agreement on a without cause basis did not alter the legal effect of the provision fixing the term of the contract. Because there was no enforceable provision providing for early termination without cause, the employee was entitled to receive the compensation they would have earned to the end of the term, without any duty to mitigate.

Waksdale, which did not involve a fixed-term employment agreement, involved entirely different circumstances and had no application to this case. Waksdale merely held that the invalidity of a particular termination clause in an employment contract voided other termination provisions in the agreement, with the result that the employee was entitled to reasonable notice upon termination of their employment. Waksdale made no reference to Benson Group Inc., nor did it suggest that the invalidity of the termination clause in an employment contract had the effect of converting a fixed term contract into one terminable on reasonable notice.

McFadden v. Psutka, 2024 ONCA 203

[Pepall, Sossin and Dawe JJ.A.]

Counsel:

Legge, for the appellants

Lundy and E. Eski, for the respondent

Keywords: Civil Procedure, Amending Pleadings, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, Rules of Civil Procedure, rr. 26.01, Polla v. Croatian (Toronto) Credit Union Limited, 2020 ONCA 818, leave to appeal refused, [2021] S.C.C.A. No. 64, Marks v. Ottawa (City), 2011 ONCA 248, Avedian v. Enbridge Gas Distribution Inc., 2023 ONCA 289

facts:

The underlying action was a dental malpractice action in which SM sued the respondent oral surgeon, Dr. DP, alleging negligence in the treatment provided and surgery performed. The motion judge dismissed the appellants’ motion to amend their claim after finding that the purported amendments constituted new claims, that these claims were statute barred by the Limitations Act, 2002, and that this resulted in prejudice that could not be compensated for by costs or an adjournment. The appellants appealed the dismissal.

issues:

Did the motion judge err in dismissing the appellants’ motion to amend their claim?

holding:

Appeal dismissed.

reasoning:

No.

Rule 26 of the Rules of Civil Procedure states that courts shall grant leave to amend a pleading on such terms as are just, unless prejudice would result which could not be compensated for by costs or an adjournment. However, “although the general rule is that amendments are presumptively approved[…], [t]he court has a residual right to deny amendments where appropriate.”

There was no error in the motion judge’s conclusion that the amendments sought created a new claim. Furthermore, the motion judge’s finding of actual prejudice was tied to her conclusion that the amendments raised a new negligence claim that would otherwise be statute barred. This finding was entitled to deference. Moreover, the limitation period for the respondent to claim contribution and indemnity had passed.

Preiano v. Cirillo, 2024 ONCA 206

[Roberts, Sossin and Dawe JJ.A.]

Counsel:

G.C., acting in person as Estate Trustee for the appellant, The Estate of G.C., and as Litigation Guardian for the appellant, A.C.

T.H. McLean, for the respondents

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Damages, Mitigation, Civil Procedure, Striking Pleadings, Rules of Civil Procedure, rr. 2.03, 15.01(1), Tribute (Springwater) Limited v. Atif, 2021 ONCA 463, Akelius Canada Ltd. v. 2436196 Ontario Inc., 2022 ONCA 259, leave to appeal refused, [2022] S.C.C.A. No. 183, The Rosseau Group Inc. v. 2528061 Ontario Inc., 2023 ONCA 814, Semelhago v. Paramadevan, [1996] 2 S.C.R. 415, Sivasubramaniam v. Mohammad, 2018 ONSC 3073 aff’d, 2019 ONCA 242, Wood v. Grand Valley Rway. Co., (1915) 51 S.C.R. 283, Southcott Estates Inc. v. Toronto Catholic District School Board, 2012 SCC 51

facts:

The proceedings arose out of a failed real estate transaction in which the late GC and his wife, AC, agreed to sell their home to the respondents, S and GP, for $480,000. The sale was not completed on the scheduled closing date of November 20, 2013, because the appellants refused to close the transaction. The respondents brought an action for specific performance, or in the alternative, damages.

issues:

1. Did the trial judge err in determining after trial that Ms. C had no standing to represent the appellants and in striking the appellants’ statement of defence?

2. Did the trial judge err in his assessment of damages, including his determination that the respondents were not required to mitigate?

holding:

Appeal allowed in part.

reasoning:

1. No

The trial judge erred in concluding, on an alternative basis, that he could strike the appellants’ statement of defence and grant summary judgment on the basis that Ms. C, the appellants’ daughter, had “no status to act in this litigation for either of the elder [C]” because she was not a lawyer. However, the trial judge primarily based his judgment on his determination of the merits of the action after thoroughly reviewing the evidence and the submissions of the parties. His judgment on the merits was not tainted by his error regarding Ms. C’s standing. As a result, no trial unfairness, prejudice, or miscarriage of justice resulted from the trial judge’s error. His error did not affect the outcome of his decision on the issue of the appellants’ breach of the agreement of purchase and sale. The appellants did not point to any reversible error in the trial judge’s factual and credibility findings, which were anchored firmly in the evidence and fully grounded his conclusion that the appellants breached the agreement. There was no basis to order a new trial.

2. Yes

The trial judge erred in awarding the respondents the difference between the contract price and the market value of the property at the time of trial. It is well-established that absent special circumstances, which were not present in this case, the ordinary measure of damages arising from a breach of an agreement of purchase and sale is the difference between the contract price of the property and the value of the property as at the date of the breach of the agreement of purchase and sale. The trial judge’s application of the law was based on an erroneous interpretation of Semelhago and Sivasubramaniam. In both those cases, the damages awarded were in lieu of the remedy of specific performance that the court was prepared to grant. The trial judge expressly determined that the respondents were not entitled to specific performance but that they were entitled to damages. However, the damages were not awarded in lieu of specific performance as he determined that they were not entitled to that remedy. The Court assessed the respondents’ damages as the difference between the contract price and the value of the property at the date of breach to be in the amount of $70,000, with a further $25,000 reduction for the return of deposit.

While the trial judge’s conclusion that the respondents did not need to mitigate appeared inconsistent with his finding that specific performance was not available to the respondents as a remedy, the apparent inconsistency in his reasoning did not affect the result. To meet their onus on a balance of probabilities that the respondents failed to mitigate their damages, the appellants had to establish not only that the respondents failed to take reasonable efforts to find a substitute, but also that a reasonable substitute could be found. The appellants did not put forward any evidence that the respondents could have purchased or rented a comparable property. As a result, the appellants did not meet their onus to demonstrate that the respondents failed to mitigate their damages.

SHORT CIVIL DECISIONS

M. Singh Law Professional Corporation v. River Green (Thunder Bay) Inc., 2024 ONCA 201

[Pepall, Sossin and Dawe JJ.A.]

Counsel:

M. Singh, for the appellant

No one appearing for the respondent

Keywords: Contracts, Solicitor and Client, Solicitors’ Liens, Charging Orders, Solicitors Act, R.S.O. 1990, c. S.15., s.34(1), Weenen v. Biadi, 2018 ONCA 288

Los v. Ross, 2024 ONCA 208

[van Rensburg, Roberts and Favreau JJ.A.]

Counsel:

Galarneau and B. Sharpe, for the appellant

Marcovitch, for the respondent

Keywords: Costs

1261271 B.C. Ltd. v. Hanover PV Limited Partnership, 2024 ONCA 207

[Miller, Copeland and Gomery JJ.A.]

Counsel:

Levine, for the appellant

C. Burr and J. Harris, for the respondents

Keywords: Corporations, Remedies, Oppression, FNF Enterprises Inc. v. Wag and Train Inc., 2023 ONCA 92

Teljeur v. Aurora Hotel Group, 2024 ONCA 213

[Miller, Copeland and Gomery JJ.A.]

Counsel:

Gayed, for the appellants

Nolan, for the respondent

Keywords: Contracts, Employment, Damages, FNF Enterprises Inc. v. Wag and Train Inc., 2023 ONCA 92

The information contained in our summaries of the decisions is not intended to provide legal advice and does not necessarily cover every matter raised in a decision. For complete information or for specific advice, please read the decision or contact us.