Isabelle Lisa Eckler

This appeal concerned the appropriate measure of damages for a vendor's breach of an agreement of purchase and sale for real property.

The appellant purchaser sought to recover the significant capital appreciation realized by the breaching vendor two and a half years after the breach, when the vendor resold the properties for $56 million more than the original contract price.

The Court of Appeal upheld the motion judge's decision, affirming the general principle that damages for breach of a real estate contract are assessed at the date of breach, unless the innocent party can demonstrate a later date is fair due to an inability to re-enter the market and mitigate.

The court found the appellant, a long-term investor, was not a speculator and failed to prove its loss or justify a departure from the date of breach.

The appeal on damages and costs was dismissed, as was the cross-appeal on costs thrown away.

The plaintiffs brought a motion for a status hearing under Rule 48.14(5) to prevent their action from being dismissed for delay.

The motion was opposed by the Wong Defendants.

The court found an acceptable explanation for the delay concerning claims related to OM Policies, citing the plaintiffs' engagement in preliminary motions and settlement discussions with OM Financial Inc. However, the court found no acceptable explanation for the delay regarding claims related to PPI Policies, where no steps were taken for over 4.5 years and the Wong Defendants were the sole remaining defendants for those claims.

Consequently, the court ordered that the action proceed with respect to the OM Policies but dismissed the claims related to the PPI Policies, establishing a new timetable for the remaining litigation.