Court of Appeal for Ontario

Date: 2025-09-24 Docket: COA-24-CV-1287

Judges: Gillese, Favreau and Rahman JJ.A.

Between

Gursharan Singh and Kulwinder Kaur Plaintiffs (Respondents)

and

Zeinab Feneich Defendant (Appellant)

Counsel

For the Appellant: Abdihamid Mao

For the Respondents: Gregory Weedon and Monica Bui

Heard: September 23, 2025

On Appeal

On appeal from the judgment of Justice Sylvia Corthorn of the Superior Court of Justice, dated October 18, 2024, with reasons reported at 2024 ONSC 5776.

Reasons for Decision

[1] This appeal arises from a failed real estate transaction.

[2] In the spring of 2022, the appellant and the respondents entered into an agreement of purchase and sale for a residential property. The sale price was to be $1,252,500. The appellant waived the financing condition but was ultimately unable to close due to lack of financing.

[3] Several months after the failed closing, the respondents sold the property to another purchaser for $965,000. The respondents commenced an action against the appellant, and then brought a motion for summary judgment. The appellant conceded that she breached the terms of the agreement of purchase and sale by not closing. The only issue between the parties was whether the respondents took reasonable steps to mitigate their damages. All parties agreed that summary judgment was appropriate for resolving this issue. The motion judge granted summary judgment and awarded $366,513 in damages to the respondents.

[4] The appellant claims that the motion judge made several errors, including in declining to find that the respondents acted unreasonably when they refused to accept her offer to purchase the property at a lower price a few months after the breach. The appellant also submits that the motion judge unfairly denied her request to adjourn the summary judgment motion until after the determination of her proposed motion for production.

[5] After hearing oral submissions from the appellant, the panel did not call on the respondents.

[6] The appellant essentially makes the same arguments before this court as were made before the motion judge. We are satisfied that the motion judge did not make any errors in her legal analysis or in her assessment of the evidence. The issue of whether the respondents took reasonable steps to mitigate their damages is a question of mixed fact and law. The appellant has not identified any errors warranting appellate intervention. In particular, we see no error in the motion judge's conclusion that the respondents acted reasonably in not accepting the appellant's second offer, especially given that the appellant made it with no proof of financing despite having defaulted on their prior agreement. Notably, even in response to the motion for summary judgment, the appellant did not put any evidence forward to show that she had the necessary financing to close on the second offer.

[7] We also see no basis for interfering with the motion judge's denial of the appellant's request for an adjournment of the summary judgment motion so that her proposed motion for production could first be decided. This was an exercise of discretion to which we owe deference. As the motion judge noted, the request was made eight days before the scheduled date for the motion for summary judgment and no reasonable explanation was provided for the delay in bringing the motion.

[8] Accordingly, the appeal is dismissed. The respondents are entitled to costs in the amount of $12,000 all inclusive.

"E.E. Gillese J.A."

"L. Favreau J.A."

"M. Rahman J.A."