Court of Appeal for Ontario

Date: 2019-06-14 Docket: C66179

Judges: MacPherson, Tulloch and Harvison Young JJ.A.

Between

Wonkyun Bang and Eunkyung Moon Plaintiffs (Respondents)

and

Julia Bency Sebastian Defendant (Appellant)

and

Signature Realty Inc. carrying on business as Royal LePage Signature Realty Defendant (Noted in Default)

Counsel

Harpreet Singh Makkar, for the appellant

Victor Tchor, for the respondents

Heard

June 13, 2019

On Appeal

On appeal from the judgment of Justice Andrew Sanfilippo of the Superior Court of Justice, dated October 18, 2018, with reasons reported at 2018 ONSC 6226.

Reasons for Decision

[1] The appellant Julia Bency Sebastian appeals from the judgment of Sanfilippo J. of the Superior Court of Justice granting summary judgment to the respondents Wonkyung Bang and Eunkyung Moon for the appellant's failure to close a residential real estate transaction.

[2] The motion judge determined that there was no genuine issue requiring a trial on the respondent/plaintiff's claim for breach of the applicable agreement of purchase and sale. He awarded damages of $122,221.33, representing $75,000 in lost value for the property and $47,221.33 in consequential damages, including financing and carrying costs. The motion judge gave the appellant credit for her $35,000 deposit, resulting in total judgment against the appellant of $87,221.33.

[3] The appellant appeals in respect of only the damages award. She seeks a reduction of almost $50,000.

[4] First, the appellant contends that the trial judge erred by finding that there was no evidence of the appellant making an offer in June 2017 to purchase the subject property at the reduced price of $920,000 (the original purchase price, agreed to by the appellant, was $995,000). This error, says the appellant, goes to the root of the motion judge's finding with respect to mitigation.

[5] We do not accept this submission. The duty to mitigate does not compel the seller of residential property to abandon a perfectly valid agreement and accept a substantially reduced price just because the purchaser decides to abort the valid agreement because of a falling real estate market.

[6] Second, the appellant submits that the motion judge erred in not drawing an adverse inference against the respondents for not producing evidence from their real estate agent and making findings based on hearsay evidence.

[7] We disagree. These points relate to the mitigation issue. As we said above, the respondent did not have to accept a reduced offer (by $75,000) to mitigate potential losses caused by the appellant's breach of the original agreement.

[8] Third, the appellant asserts that the motion judge erred by finding that the appellant knew that the respondents were selling the property to purchase another property and in awarding compensation for financing that property once the appellant abandoned the agreement.

[9] We are not persuaded by this submission. There was evidence that the respondents were buying a new home and, in our view, it was reasonably foreseeable that there would be finance and carrying expenses related to that purchase.

[10] The appeal is dismissed. The respondents are entitled to their costs of the appeal fixed at $10,000 inclusive of disbursements and HST.

J.C. MacPherson J.A.

M. Tulloch J.A.

Harvison Young J.A.