Court of Appeal for Ontario
Before: Feldman, Simmons and Cronk JJ.A.
Between:
Gina Cambone and David Mannell Plaintiffs (Respondents)
and
Jonathan Chukwudi Okoakih and Royal LePage Real Estate Services Ltd. Defendants (Appellant)
Counsel:
Richard Odeleye, for the appellant Jonathan Chukwudi Okoakih
Glen E. Cohen for the respondents
Heard and released orally: April 12, 2012
On appeal from the order of Justice Douglas K. Gray of the Superior Court of Justice, dated October 17, 2011.
ENDORSEMENT
1The motion judge granted summary judgment to the respondent vendors for damages arising from a failed real estate transaction.
2We see no error in the motion judge’s decision.
3Because of the “time of the essence” provision in the contract, the vendors were under no obligation to extend the closing date.
4Following the closing date, the appellant purchaser failed to tender funds on the respondent vendors. In these circumstances, it is not open to the appellant to claim that the respondent vendors fell short on their obligation to mitigate by failing to complete the transaction with the appellant.
5We see no basis for interfering with the motion judge’s conclusion that the steps taken by the vendors to mitigate were reasonable.
6In all the circumstances, the appeal is dismissed with costs to the respondent vendors, fixed in the amount of $5,000, inclusive of disbursements and all applicable taxes.
Signature: “K. Feldman J.A.”
“Janet Simmons J.A.”
“E. A. Cronk J.A.”
