COURT OF APPEAL FOR ONTARIO DATE: 20210128 DOCKET: C67896 & C67904

Hoy, Brown and Thorburn JJ.A.

BETWEEN

Alexandre Alberto Da Silva Lucas and Kelly Ramos Avelar Lucas Applicants (Respondents)

and

1858793 Ontario Inc. o/a Howard Park, Sofia Ribeiro and Andre Ribeiro Respondents (Appellants)

Counsel: William Ribeiro, for the appellant, 1858793 Ontario Inc. o/a Howard Park Andreas G. Seibert, for the appellants, Sofia Ribeiro and Andre Ribeiro Leon J. Melconian, for the respondents, Alexandre Lucas and Kelly Lucas

Heard: November 12, 2020 by video conference

On appeal from the order of Justice Paul Schabas of the Superior Court of Justice, dated January 2, 2020 with reasons reported at 2020 ONSC 964, 17 R.P.R. (6th) 138.

BROWN J.A.:

I. Overview

[1] This appeal concerns an agreement of purchase and sale for a small, one-bedroom residential condominium unit in the west end of Toronto. The two main issues are: (1) whether the application judge erred in concluding that the vendor wrongfully terminated the agreement; and (2) whether the application judge erred in granting the purchasers the remedy of specific performance.

[2] By way of overview, in January 2015, the appellant vendor, 1858793 Ontario Inc. o/a Howard Park (“185”), and the respondent buyers, Alexandre and Kelly Lucas (“Alex” and “Kelly” or, together, the “Lucases”), entered into an agreement, pre-construction, for the purchase and sale of a condominium unit in Toronto (the “Agreement”) for a price of $369,900.

[3] 185, a condominium development company, is owned and operated by Mario and Francisco Ribeiro (“Mario” and “Francisco” or, together, the “Ribeiro Brothers”). Alex worked for a roofing company owned by the Ribeiro Brothers from 2009 until 2017, when he left to join a competitor.

[4] In February 2019, just prior to the sale’s scheduled closing, 185 purported to terminate the Agreement and forfeit the Lucases’ deposit of $73,980. 185 claimed that the Lucases had breached the Agreement by leasing the unit to a tenant, Renato Duarte, during the interim occupancy period without 185’s permission.

[5] On March 12, 2019, 185 entered into an agreement to re-sell the unit to the appellants Sofia and Andre Ribeiro (“Sofia” and “Andre”), who are Francisco’s children and Mario’s niece and nephew. In May 2019, during the interim occupancy period under that agreement, Sofia and Andre leased the unit to two tenants with 185’s consent. The Lucases registered a caution on title which prevented the sale to Sofia and Andre from closing.

[6] The Lucases commenced this application seeking relief from forfeiture and, in effect, specific performance of the Agreement. The application judge granted both. He concluded that 185 had wrongfully terminated the Agreement, declared the sale to Sofia and Andre null and void, and ordered 185 to close the sale of the property to the Lucases.

[7] The appellants appealed. 185 sought a stay of the judgment pending appeal. MacPherson J.A. dismissed the motion by order dated February 14, 2020, following which title to the unit was transferred to the Lucases. They took possession of the unit on April 1, 2020 and, with the consent of the appellants, placed a $200,000 mortgage on title in June 2020.

[8] The appellants advance three main grounds of appeal. [1] First, they argue the application judge erred by finding that 185 wrongfully terminated the Agreement. Second, they submit the application judge misapplied remedial principles in awarding specific performance. Finally, they say the application judge had no basis to interfere with 185’s subsequent sale of the unit to Sofia and Andre and disrupt the rights of their tenants, who were not parties to the application and had no opportunity to respond.

[9] I would dismiss the appeal. The record supports the application judge’s finding that 185 lost its right to terminate by declining to treat the Agreement at an end within a reasonable time following the Lucases’ alleged breach. Further, the application judge correctly identified the principles governing the remedy of specific performance. I see no reversible error in his application of those principles to the facts of this case or his order that 185 perform the Agreement and transfer the unit to the Lucases rather than to Sofia and Andre.

II. Issue 1: 185’s Termination of the Agreement

A. The evidence

[10] Alex and Kelly are married. At the time they entered into the Agreement, they had one child; at the time of judgment, they had two.

[11] In 2009, Alex began working for Triumph Roofing and Sheet Metal Inc. (“Triumph”), a company owned and operated by the Ribeiro Brothers. Over the next few years, Alex and Kelly became friends with Mario and Francisco. By 2015, Alex had been promoted to manager of Triumph’s roofing division.

The Agreement for Unit 421

[12] On January 11, 2015, the Lucases and 185 entered into the Agreement for Unit 421 at 38 Howard Park Avenue in Toronto, which was to be a 595 square-foot, one-bedroom unit located on the fourth floor of an eight-storey building (the “Unit”). The Agreement set the purchase price at $369,900 and would have required the Lucases to make five deposit payments totalling $73,980 by the occupancy date, which was yet to be determined.

[13] However, Mario deposed that 185 offered the Unit to the Lucases on “advantageous terms” based on their friendship, Alex’s long-standing employment with Triumph, and the expectation that Alex would remain a key Triumph employee “for years to come”. These terms, added by separate amendments to the Agreement, included the following:

(i) a $15,000 credit toward the purchase price, $5,652.26 of which the Lucases used to pay for upgrades to the Unit; and (ii) the ability to stretch out payment of part of the deposit in twenty interest-free monthly increments of $1,000 payable from March 2015 to October 2016, with the balance due on occupancy.

[14] Section 18 of the Agreement prohibits the buyers from leasing the Unit prior to the closing date without the vendor’s written consent, stating, in part:

18. The Purchaser covenants and agrees with the Vendor not to … offer for lease … the Unit, at any time prior to the unit Transfer Date without first … obtaining the written consent of the Vendor … The Purchaser acknowledges and agrees that once a breach of the preceding covenant occurs such breach is or shall be incapable of rectification, and accordingly the Purchaser acknowledges and agrees that in the event of such breach the Vendor shall have the unilateral right and option of terminating this Agreement and Occupancy License, effective upon delivery of notice of termination to the Purchaser or Purchaser's solicitor, whereupon the provisions of this Agreement dealing with the consequence of termination by reason of the Purchaser's default, shall apply…. [Emphasis added.]

[15] Section C.12 of the Terms of Occupancy License, attached as Schedule “C” to the Agreement, contains a similar prohibition, stating in part that “the Purchaser shall not have the right to assign, sublet or in any other manner dispose of the Occupancy License during Interim Occupancy without the prior written consent of the Vendor”.

[16] Section 17 of the Agreement provides that the buyers agree not to register a caution or certificate of pending litigation against title to the Unit.

Alex leaves Triumph

[17] In January 2017, Alex resigned from Triumph to become part owner of a competitor company called Maxim Roofing Limited (“Maxim”). As a result, Alex’s relationship with the Ribeiro Brothers soured. Mario believed Alex was trying to poach Triumph employees to work for Maxim.

The Lucases take possession of Unit 421

[18] 185 advised the Lucases that the Unit would be ready for occupancy on April 20, 2018. The Lucases signed an interim occupancy agreement requiring them to provide 185 with 12 post-dated monthly occupancy cheques for $1,548.03 each.

[19] During the interim occupancy period and before the Agreement could close, 185 needed to address outstanding building deficiencies and register the condominium declaration on title. Registration would not occur until February 21, 2019.

[20] On April 20, 2018, the Lucases took possession of the Unit. By that time, they had paid all required deposits, totalling $73,980.

Renato Duarte moves into Unit 421

[21] The Lucases did not move into Unit 421 upon taking possession; they allowed Mr. Duarte to move in.

[22] Mr. Duarte and Alex met in 2016, when Mr. Duarte worked for Triumph as a roofing foreman. In 2017, after Triumph let Mr. Duarte go, Alex hired him to work for Maxim.

[23] In April 2018, Mr. Duarte told Alex he was having financial problems and needed a place to stay. The Lucases agreed to let Mr. Duarte live in the Unit rent-free “until he got back on his feet”. Mr. Duarte moved into the Unit on May 1, 2018.

185 alleges a breach of the Agreement

[24] In late July 2018, Mario became aware that Mr. Duarte was living in the Unit, when he was advised of such by 185 employees who worked in the building.

[25] On September 21, 2018, Ms. Vanessa Spagnuolo, on behalf of 185, emailed Kelly to advise that 185 had been unable to address certain deficiencies in the Unit because Mr. Duarte, whom Ms. Spagnuolo referred to as a “tenant”, had denied access to 185 contractors. Ms. Spagnuolo told Kelly that Mr. Duarte’s occupancy was a breach of s. 18 of the Agreement:

I would like to take this opportunity to bring to your attention the terms of [the Agreement] with respect to leasing. As per item 18 … you are currently in breach of [the Agreement]. As per [the Agreement], written consent of [185] is required to offer for lease or lease the unit … All requests for leases are at the sole discretion of our management and are only reviewed once all deficiencies are signed off … please expedite permission to allow deficiencies to be completed, once they are completed / signed by You with site staff you may request permission to lease / rent the unit … until then we will consider you to be in breach of [s. 18 of the Agreement].

[26] Kelly replied by email on the same day and denied that Mr. Duarte had refused access to the Unit. She also asserted that Mr. Duarte was not leasing the Unit, writing:

I’m familiar with the terms of [the Agreement] but in regards to Mr. Duarte, he does not lease the unit. We do not have any type of rental agreement with him nor have we ever received any type of compensation from him.

[27] On October 1, 2018, Mr. Duarte was arrested following a police search of the Unit. He vacated the Unit and did not return.

[28] After Mr. Duarte’s departure, the Unit remained unoccupied. 185 continued to cash the Lucases’ monthly occupancy cheques. In November 2018, the Lucases permitted 185 to enter the Unit on several occasions to rectify various deficiencies.

[29] 185 did not raise the Lucases’ alleged breach of s. 18 again until December 2018, in the context of a dispute over a bathtub repair (the “Bathtub Dispute”).

The Bathtub Dispute

[30] A gouge in the Unit’s bathtub was identified in the late spring or summer of 2018. In an email to Kelly dated August 9, 2018, a 185 employee acknowledged it was the company’s responsibility to fix the deficiency with the bathtub.

[31] On November 23, 2018, the Lucases attended the Unit for a Tarion inspection, which revealed that the bathtub gouge had not been rectified.

[32] On December 6, Mr. Ross Eskandari, another 185 employee, informed the Lucases that 185 had opted to repair – not replace – the bathtub. Mr. Eskandari also suggested that Mr. Duarte had caused the damage to the bathtub and again alleged that the Lucases had breached the Agreement. He gave the Lucases two options:

Option 1 – We have completed a second tub repair as a courtesy to you … We ask that you review the work in person and trust that you will find it acceptable. If accepted, we ask that you remove it from your deficiency list to close this item. Option 2 – If on the other hand you do not accept the repair & we are directed to replace the tub by Tarion, we will proceed with a full tub replacement in protest. All costs involved with your unit and breach of the occupancy agreement with regards to leasing will be tabulated at closing. We reserve the right to have all costs be included as part of your settlement fees owed to the developer prior to closing. [Emphasis added.]

[33] In an email dated December 19, 2018, Ms. Spagnuolo suggested that 185 would “pursue” the Lucases for the alleged breach stemming from Mr. Duarte’s occupancy if they did not release 185 from its obligation to replace the bathtub:

Without prejudice, we are willing to come to an agreement for a limited time. If the bathtub repair that we completed in good faith, which was caused by your tenant, along with all other Tarion issues are cleared, [185] will not pursue your breach of the occupancy agreement any further. If you are not in agreement please advise and we will consult with Tarion for next steps.

[34] The Lucases were not satisfied with the repair and refused to sign off.

[35] On January 2, 2019, Tarion determined that the damage to the bathtub was not consistent with “homeowner use”, confirming it was 185’s responsibility to replace the tub. Nevertheless, 185 continued to urge the Lucases to sign off on the repair in exchange for relief from their “breach of the occupancy agreement”. The Lucases once again refused.

[36] By email dated January 22, 2019, 185 advised the Lucases it would replace the bathtub “in protest” and that “all costs related to [the Unit] associated with damage caused by your tenant will be tracked and kept in claim of your breach of occupancy agreement”.

[37] 185 replaced the bathtub on January 28, 2019.

185 purports to terminate the Agreement

[38] A week later, on February 5, 2019 – which was about two weeks prior to the scheduled closing date for the Unit – 185 sent a letter to the Lucases purporting to terminate the Agreement on the basis of Mr. Duarte’s occupancy. (Mr. Duarte had vacated the Unit a little over four months earlier.) The letter stated, in part:

We refer you to Section 18 in the Agreement in which the section sets out that the unit cannot be leased to a tenant without the prior written consent of the vendor. We have learned that you leased the unit to a third party tenant which is a fundamental breach … entitling us to terminate your Agreement. Section 18 goes on further to state that once a breach of this covenant occurs, the breach is incapable of rectification and that we have the unilateral right to terminate your [Agreement] effective upon delivery of this letter … We hereby terminate your [Agreement] and have had your deposits and occupancy fees forfeited to us as liquidated damages.

[39] By the time they received the termination letter, the Lucases had paid 185 a total of $93,534.70, covering the deposits, $15,482 in monthly interim occupancy fees for the period May 2018 through February 2019, and other expenses. 185 claimed it was entitled to retain the entire sum based on the Lucases’ alleged breach of s. 18.

185 agrees to sell the Unit to Sofia and Andre

[40] Just over a month later, on March 12, 2019, 185 agreed to sell the Unit to Francisco’s children, Sofia and Andre, for a purchase price of $418,000. Edgar Shamilyan, a realtor retained by 185 to provide an expert report, placed a significantly higher value on the Unit. In his report dated May 1, 2019, Mr. Shamilyan opined that the base price for the Unit at the time of his report was approximately $489,000. Another realtor retained by 185, Alexandre Alves, in his April 26, 2019 expert report, valued the Unit at $500,000 to $520,000.

[41] The agreement required Sofia and Andre to put down $5,000 at signing and another $13,000 on the closing date, which had not been set. Mario also advised Sofia that, because she was family, 185 would agree to act as the lender to finance the balance of the purchase price. The loan was secured by a promissory note and a vendor take-back mortgage, with a yearly interest rate of 3%.

[42] In May 2019, Sofia and Andre obtained 185’s permission to lease the Unit during the interim occupancy period. A one-year lease of the Unit to two non-party tenants was signed on May 23, 2019.

[43] On March 19, 2019, a week after 185 agreed to sell the Unit to Sofia and Andre, the Lucases commenced this application against 185 seeking relief from forfeiture and specific performance of the Agreement. The application did not seek damages as an alternative to, or in lieu of, specific performance. On April 1, they also registered a caution on title, which prevented the sale to Sofia and Andre from closing pending the outcome of this litigation. On May 15, 2019, the Lucases amended their application to add Sofia and Andre as parties.

B. Reasons of the application judge

[44] On the application, the Lucases argued they had not breached s. 18 of the Agreement because they never had a lease agreement with Mr. Duarte and he never paid rent. In the alternative, if they had breached s. 18, the Lucases submitted that 185 had not treated Mr. Duarte’s occupancy as a fundamental breach within a reasonable time and had thereby waived its termination and forfeiture rights.

[45] The application judge agreed with the Lucases in both respects. First, he found that the Lucases had simply “loaned” the Unit to Mr. Duarte for a short time, without a lease agreement, and had received no rent or other benefits from him. As such, he held there was no lease and therefore no breach of s. 18: at para. 31.

[46] Even if there had been a breach, the application judge concluded that 185 affirmed the Agreement by its conduct after learning of Mr. Duarte’s occupancy: at para. 45. He found 185 became aware of the alleged breach by September 21, 2018 “at latest”, the day Ms. Spagnuolo told Kelly that Mr. Duarte had denied access to the Unit. Nevertheless, 185 did not exercise its right to treat the contract at an end within a reasonable time. Instead, it continued to accept occupancy payments until February 2019, only “vaguely” purporting to rely on s. 18 as a “bargaining chip” in the Bathtub Dispute. 185 thus lost the right to terminate and, as of February 2019, “nothing stood in the way of closing the sale”: at paras. 39-42.

C. The issue stated

[47] For the purposes of my analysis, I shall assume, without deciding, that the Lucases breached s. 18 by allowing Mr. Duarte to live in the Unit during the occupancy period without 185’s written consent. My analysis will focus on 185’s submission that the application judge erred in finding that 185 lost its right to terminate by failing to treat the Agreement at an end within a reasonable time after the alleged breach.

[48] 185 submits that it did not lose or waive its contractual termination rights as the Agreement was clear that any breach of s. 18 was “incapable of rectification”. The emails exchanged with Kelly on September 21, 2018 show that, contrary to the application judge’s findings at paras. 42-45, 185 insisted on strict compliance with s. 18 of the Agreement as soon as it learned Mr. Duarte was living in the Unit. From this point on, 185 says it was entitled to terminate “unilaterally”. As such, and since the Agreement did not expressly require timely termination, 185 argues the application judge erred by concluding 185 waived its right to terminate by failing to do so “within a reasonable time”.

[49] In any event, 185 contends that it did terminate within a reasonable time. From December 6, 2018 to January 11, 2019, the parties exchanged emails regarding the Bathtub Dispute which 185 says were privileged “settlement communications” relating to the Lucases’ alleged breach of s. 18. 185 argues that, when the period during which these emails were exchanged is removed from the calculation, its decision to terminate in February 2019 was made only “three months” after it gave the Lucases notice of the breach on September 21, 2018. According to 185, three months was a reasonable period between the notification of breach and the notice of termination.

D. Analysis

[50] Section 18 of the Agreement provides that if a purchaser leases a unit during the occupancy period without first securing the vendor’s written consent, a breach occurs and “such breach is or shall be incapable of rectification.” However, while the breach may be “incapable of rectification”, such a breach does not cause an immediate termination of the Agreement. As s. 18 goes on to state, “in the event of such breach the Vendor shall have the unilateral right and option of terminating this Agreement and Occupancy License.”

[51] Upon learning of Mr. Duarte’s occupancy of the Unit, 185 did not exercise its termination rights under s. 18 of the Agreement. It waited many months before so doing. During that period, 185 accepted the Lucases’ monthly interim occupancy payments and worked to remedy the bathtub deficiency. This conduct by 185 led the application judge to state, at paras. 37 to 39, that:

The problem … is that 185 did not treat [the Agreement] at an end; to the contrary, it did not treat the breach as “fundamental” or “incapable of rectification” at all … [185] took no steps to investigate or require compliance with section 18 of the Agreement until it raised the issue in September 2018, in the context of an emerging dispute between the Lucases and 185 about deficiencies. Spagnuolo’s September 21 email did not terminate the Agreement, but suggested the breach could be cured by signing off on deficiencies.

185 did not respond to Kelly’s denial of a breach on September 21, 2018, and did not raise the issue again until December, long after the breach, if any, had been cured. Throughout this time, 185 continued to cash the applicants’ cheques paying the monthly occupancy fee.

Only on December 19, 2018, was the alleged breach raised again, as a bargaining chip over the bathtub repair – a repair 185 was obliged to make. The applicants objected to 185’s demands, and 185 continued to treat the contract as extant and continued to take the applicants’ monthly occupancy fees. 185’s demand was repeated on January 11, 2019, though it never said the contract would be terminated if the Lucases did not agree to 185 not repairing the bathtub. 185’s email of January 22 was even more tactical, saying that the tub would be repaired “in protest” ….

[52] That course of events led the application judge to conclude, at para. 42, that:

In my view, by not treating the Agreement at an end and “incapable of rectification” when it knew of the breach, at latest, by September 21, 2018, 185 lost the right to terminate and claim the deposits and fees as liquidated damages. It sat on its rights, to the detriment of the applicants, who continued to pay occupancy fees and expected to close the sale in early 2019. Assuming there had been a breach between May 1 and October 1, 2018, that breach was rectified and both parties acted on that basis from October 1 forward. There was no breach in February 2019 and nothing stood in the way of closing the sale. 185 acted wrongly in terminating the Agreement.

[53] In reaching that conclusion, the application judge did not commit any error of law. He correctly identified the applicable legal principle. Even if the Lucases’ breach could be characterized as repudiatory, on the basis that s. 18 of the Agreement describes that particular kind of breach as one “incapable of rectification”, an innocent party must elect to treat the contract at an end and communicate that election to the repudiating party “within a reasonable time”: Place Concorde East Ltd. Partnership v. Shelter Corp. of Canada Ltd. (2006), 270 D.L.R. (4th) 181, 2006 ONCA 16346, at para. 50.

[54] Nor do I see any palpable and overriding error of fact in the application judge’s finding that 185 failed to elect to treat the Agreement as at an end within a reasonable time. The record amply supports that finding of fact by the application judge.

[55] I am also not persuaded by 185’s submission that the application judge should have treated the Bathtub Dispute emails as privileged “settlement communications”. The application judge held, at para. 46 of his reasons, that the emails are not properly characterized as settlement communications:

This submission has no merit. First, only one email, dated December 19, states it is “without prejudice”. Second, these are not settlement discussions between lawyers; they are communications between the parties regarding their positions on the performance of a continuing contract, including the fulfillment of 185’s obligation to repair and resolve deficiencies in the Unit. There is no basis to treat them as being inadmissible on the basis of settlement privilege.

[56] I see no error in that characterization. The emails focused on how the vendor would remedy a construction deficiency with the bathtub: the vendor wanted to patch the bathtub; the Lucases wanted the bathtub replaced. The emails did not purport to compromise the dispute that is the subject-matter of this litigation – namely, whether 185 was entitled to terminate the Agreement because the Lucases had permitted Mr. Duarte to occupy the Unit for a period of time. That litigious dispute was not yet in existence or within contemplation: Losenno v. Ontario Human Rights Commission (2005), 78 O.R. (3d) 161 (C.A.), 2005 ONCA 36441, at para. 21; Sidney N. Lederman, Alan W. Bryant & Michelle K. Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 5th ed. (Toronto: LexisNexis Canada, 2018), at §14.348; Bercovitch v. Resnick, 2011 ONSC 5082, at para. 26, leave to appeal refused, 2011 ONSC 6410 (Div. Crt.). To the contrary, the two options set out in the vendor’s email of December 6, 2018 – reproduced at para. 32 above – specifically contemplated that the Agreement would close even if the Lucases insisted on the replacement of the bathtub.

[57] As well, from the language of the Bathtub Dispute emails, the Lucases could not have contemplated that a disagreement over how to repair the bathtub would lead 185 to terminate the Agreement and trigger this litigation. The application judge was therefore entitled to rely on the Bathtub Dispute emails to support his finding that 185 did not treat the Lucases’ alleged breach of s. 18 as fundamental or “incapable of rectification”.

E. Conclusion on Issue 1

[58] Accordingly, I am not persuaded by this ground of appeal. I see no reversible error in the application judge’s finding that 185, by its conduct, lost the right to rely on the alleged breach by the Lucases as a basis to terminate the Agreement.

III. Issue 2: The Availability of Specific Performance

A. The application judge’s reasons and order

[59] As remedies for 185’s wrongful termination, in their application the Lucases sought relief from forfeiture of the deposit and specific performance. The Lucases did not seek damages in lieu of specific performance.

[60] The application judge first exercised his discretion under s. 98 of the Courts of Justice Act, R.S.O. 1990, c. C.43 to grant the Lucases relief from forfeiture, concluding the applicable test was “clearly met”: Saskatchewan River Bungalows Ltd. v. Maritime Life Assurance Co., [1994] 2 S.C.R. 490, 1994 SCC 100. 185 does not contest that part of his judgment.

[61] He then considered whether the Lucases were entitled to specific performance based on three factors: (1) the nature of the property, particularly its “uniqueness” within the meaning of Semelhago v. Paramadevan, [1996] 2 S.C.R. 415, 1996 SCC 209, at para. 22; (2) the related question of the inadequacy of damages as a remedy; and (3) the behaviour of the parties: Matthew Brady Self Storage Corp. v. InStorage Limited Partnership, 125 O.R. (3d) 121, 2014 ONCA 858, at para. 32, leave to appeal refused, [2015] S.C.C.A. No. 50.

[62] With respect to the nature of the property, the application judge held, at paras. 59 and 64, that uniqueness arose not from the Lucases’ subjective needs or the Unit’s physical characteristics, but because the Agreement contained “advantageous terms” and could not have been readily duplicated in Toronto’s competitive, volatile real estate market: 1954294 Ontario Ltd. v. Gracegreen Real Estate Development Ltd., 80 C.L.R. (4th) 297, 2017 ONSC 6369, at para. 151.

[63] Relatedly, the application judge concluded that the circumstances surrounding the Agreement rendered damages inadequate. The Lucases paid over $90,000 toward the Unit from January 2015 to February 2019. During this time, as the Unit increased in value “significantly” along with much of Toronto’s housing market, this money was not available to the Lucases for acquiring another property. The application judge commented that the litigation would likely “drag for years” if the Lucases were limited to suing for damages, during which time the Lucases would be denied “the advantage of the rise in value of the Unit that exists today” as well as the use of their deposit. In other words, the Lucases’ losses were difficult to mitigate, making specific performance a “more complete and just remedy” than damages in the circumstances: at paras. 63-65.

[64] Finally, the application judge held that 185’s conduct favoured granting specific performance. 185 had continued to accept payments from the Lucases while “improperly” trying to use the allegation of a breach to avoid its responsibility to replace the bathtub. It then terminated the Agreement and took the Lucases’ deposit without justification, long after Mr. Duarte had vacated the Unit: at para. 75. Moreover, 185’s subsequent sale to Sofia and Andre, which was not at arm’s length and did not contain commercially reasonable terms, was a “sham” designed to put the Unit out of the Lucases’ reach: at paras. 66 and 77. As he amplified in his cost reasons, the application judge concluded the transaction was a sham in part because it involved a sale below market price, with little by way of an up-front payment: 2020 ONSC 1329, at para. 4.

[65] Based on the foregoing, the application judge concluded that specific performance was the best remedy to serve justice between the parties. He ordered 185 to complete the sale of the Unit to the Lucases in accordance with the Agreement no later than February 14, 2020, with all payments to date credited toward the purchase price. In addition, the application judge declared the sale to Sofia and Andre null and void and ordered the lease with their tenants assigned to the Lucases.

B. The issue stated

[66] The appellants contend that the application judge made three main errors in granting the Lucases specific performance of the Unit rather than directing an assessment of damages:

(1) awarding specific relief for a “generic” condominium unit that the Lucases now intend to sell, contrary to the principles governing specific performance of real estate contracts; (2) finding that damages were inadequate as a remedy without evidence that (a) the Lucases would have had trouble finding a replacement property, or (b) damages would be difficult to assess; and (3) holding that 185’s behaviour favoured granting specific performance but failing to properly consider the Lucases’ misconduct.

[67] Before explaining why I am not persuaded by these submissions, I first set out the principles applicable to a purchaser’s claim for specific performance of a contract for the sale of residential property.

C. The governing principles

[68] The most appropriate place to start the analysis is by recalling first principles. In general, contractual remedies are intended to provide the non-breaching party with what the contract was to provide: Angela Swan, Jakub Adamski & Annie Na, Canadian Contract Law, 4th ed. (Toronto: LexisNexis Canada, 2018), at §6.14. That usually is done by requiring the party in breach to pay, as damages, an amount of money that will provide the victim of the breach with the financial equivalent of performance: John D. McCamus, The Law of Contracts, 3rd ed. (Toronto: Irwin Law, 2020), at p. 971. However, as observed by The Honourable Robert J. Sharpe in Injunctions and Specific Performance, loose-leaf (2020-Rel. 29), 4th ed. (Toronto: Thomson Reuters, 2012), at §7.50:

The existing regime of remedial law strongly favours the first option of damages and awards specific performance only in exceptional cases. Yet in many cases, specific relief may seem to be the only sure way to put the plaintiff in the position he or she would have been in had the contract been performed …The assessment of damages the innocent party has suffered can be a difficult, expensive and time-consuming task. Specific performance has the advantage of avoiding the problems and costs the parties and the judicial system must incur if damages are to be assessed. Perhaps more significant is the very real element of risk that the translation into money terms of the effect of the breach on the plaintiff may be inaccurate. Some cases will present more risk than others but it cannot be denied that the element of risk of error is virtually swept away if the court is able to make an order of specific performance. The innocent party receives the very thing bargained for rather than a monetary estimate of its worth. [Emphasis added.]

The overarching test for granting specific performance

[69] The basic rationale for an order of specific performance of contracts is that damages may not, in the particular case, afford a complete remedy: Adderley v. Dixon (1824), 57 E.R. 239 (Ch.), at p. 240; Semelhago, at para. 21; Matthew Brady, at para. 29. In Semelhago, the Supreme Court noted that at one time the common law regarded every piece of real property as unique. However, in the contemporary real estate market, which is characterized by the mass production of urban residential housing, it cannot be assumed that damages for breach of contract for the purchase and sale of real estate would be an inadequate remedy in all cases: at para. 21. Accordingly, specific performance should not be granted as a matter of course absent evidence that “the property is unique to the extent that its substitute would not be readily available”: at para. 22. Therefore, a party seeking specific performance must establish a fair, real, and substantial justification by showing that damages would be inadequate to compensate for its loss of the subject property: Asamera Oil Corp. v. Seal Oil & General Corp., [1979] 1 S.C.R. 633, 1978 SCC 16, at p. 668.

[70] In his article “Death to Semelhago!” (2016) 39:1 Dalhousie L.J. 1, Professor Bruce Ziff commented, at p. 9, that “the change ushered in by Semelhago can be seen as one of degree, not principle.” The point was made, in a slightly different way, by Lax J., in John E. Dodge Holdings Ltd. v. 805062 Ontario Ltd. (2001), 56 O.R. (3d) 341 (S.C.), 2001 ONSC 28012, aff’d (2003) 63 O.R. (3d) 304 (C.A.), 2003 ONCA 52131, leave to appeal refused, [2003] S.C.C.A. No. 145. She ventured the view, at para. 55, that Semelhago did not replace the presumption of uniqueness with a presumption of replaceability. [2] Certainly the plaintiff bears the onus of demonstrating entitlement to the remedy of specific performance. But what does that require the plaintiff to demonstrate? Lax J. stated, at para. 55:

Semelhago asks us to examine in each case, the plaintiff and the property. The danger in framing the issue as one of uniqueness (a term that carries with it a pre-Semelhago antediluvian aroma) is that the real point of Semelhago will be lost. It is obviously important to identify the factors or characteristics that make a particular property unique to a particular plaintiff. The more fundamental question is whether the plaintiff has shown that the land rather than its monetary equivalent better serves justice between the parties. This will depend on whether money is an adequate substitute for the plaintiff's loss and this in turn will depend on whether the subject matter of the contract is generic or unique. [Emphasis added.]

[71] Whether specific performance is to be awarded or not is therefore a question that is rooted firmly in the facts of an individual case: Matthew Brady, at para. 32. In determining whether a plaintiff has shown that the land rather than its monetary equivalent better serves justice between the parties, courts typically examine and weigh together three factors: (i) the nature of the property involved; (ii) the related question of the inadequacy of damages as a remedy; and (iii) the behaviour of the parties, having regard to the equitable nature of the remedy: Landmark of Thornhill Ltd. v. Jacobson (1995), 25 O.R. (3d) 628 (C.A.), 1995 ONCA 1004, at p. 636. Whether a property is unique, either by virtue of its nature or the features of the contract for its purchase and sale [3], operates as only one of several factors a court must consider when determining entitlement to specific performance.

[72] Against that backdrop of general principles, I shall examine the case law regarding each factor.

(i) The nature of the property

[73] In assessing whether a property is unique, courts may have regard to: (a) a property’s physical attributes; (b) the purchaser’s subjective interests, or (c) the circumstances of the underlying transaction. While physical and subjective uniqueness of property will usually be significant in cases where a purchaser – as opposed to a vendor – seeks specific performance, the types of uniqueness are not exclusive and no difference in evidential weight should be given to one form over another: Jeffrey Berryman, The Law of Equitable Remedies, 2nd ed. (Toronto: Irwin Law, 2013), at pp. 355-57.

[74] Uniqueness does not mean singularity or incomparability. Instead, it means that the property has a quality (or qualities) making it especially suitable for the proposed use that cannot be readily duplicated elsewhere: Dodge (S.C.), at para. 60. For example, a rising real estate market, particularly where the purchaser’s deposit remains tied up by the vendor, may indicate that the transaction could not have been readily duplicated or that other properties were not readily available at the time of breach within the plaintiff’s price range: Walker v. Jones (2008), 298 D.L.R. (4th) 344, 2008 ONSC 47725, at para. 165; Sivasubramaniam v. Mohammad, 98 R.P.R. (5th) 130, 2018 ONSC 3073, at paras. 84 and 92, aff’d 2019 ONCA 242, 100 R.P.R. (5th) 1.

[75] The court should examine the subjective uniqueness of the property from the point of view of the plaintiff at the time of contracting: Dodge (S.C.), at para. 59. The court must also determine objectively whether the plaintiff has demonstrated that the property or the transaction has characteristics that make an award of damages inadequate for that particular plaintiff: Dodge (S.C.), at para. 59; Di Millo v. 2099232 Ontario Inc., 430 D.L.R. (4th) 296, 2018 ONCA 1051, at paras. 70-73, leave to appeal refused, [2019] S.C.C.A. No. 55.

[76] While units in cookie-cutter townhouses or condominium units may be considered less unique than other forms of property, some condominiums are truly unique: Gillespie v. 1766998 Ontario Inc., 49 R.P.R. (5th) 65, 2014 ONSC 6952, at para. 26; Landmark of Thornhill, at p. 636. Even in the case of mass-produced condominiums, the issue remains whether the plaintiff has shown, upon the consideration of all the factors, that the land rather than its monetary equivalent better serves justice between the parties.

[77] Put another way, the specific performance analysis is not merely a search for uniqueness. As the case law discloses, other factors such as the inadequacy of damages as a remedy and the behaviour of the parties also play a role: Landmark of Thornhill, at p. 636; Dodge (S.C.), at para 55; UBS Securities Inc. v. Sands Brothers Canada Ltd., 95 O.R. (3d) 93, 2009 ONCA 328, at para. 100.

(ii) Adequacy of damages

[78] As indicated above, one other factor is whether damages would be adequate to remedy the purchaser’s loss. For instance, courts should be reluctant to award specific performance of contracts for property purchased solely as an investment, since money damages are well-suited to satisfy purely financial interests: Southcott Estates Inc. v. Toronto Catholic District School Board, [2012] 2 S.C.R. 675, 2012 SCC 51, at paras. 40-41.

[79] By contrast, if damages would be particularly time-consuming, difficult, or complex to compute, this may point in favour of specific performance: Sharpe J., Injunctions and Specific Performance, at §7.220; Neighbourhoods of Cornell Inc. v. 1440106 Ontario Inc. (2003), 11 R.P.R. (4th) 294, at paras. 112-14, aff’d (2004), 22 R.P.R. (4th) 176 (C.A.), leave to appeal refused, [2004] S.C.C.A. No. 390.

(iii) The behaviour of the parties

[80] A final factor involves considering the behaviour of the parties and weighing the equities at play in the transaction: Paterson Veterinary Professional Corporation v. Stilton Corp. Ltd., 438 D.L.R. (4th) 374, 2019 ONCA 746, at para. 31, leave to appeal to S.C.C. refused, 38927 (April 2, 2020); Matthew Brady, at para. 32. A vendor’s bad faith attempt to terminate a valid agreement of purchase and sale may support an order of specific performance against that party: Gracegreen, at para. 170.

D. Analysis

[81] In assessing the appellants’ submission that the application judge misapplied the foregoing principles in granting specific performance, I shall address the three main errors alleged by the appellants.

First error: The Unit was not unique to the Lucases

[82] The appellants contend that Unit 421 was not unique to the Lucases in any way; it was merely a generic investment opportunity. They submit the application judge misapplied the applicable principles by awarding specific performance after finding, at paras. 59 and 61, that the Unit “cannot be described as physically unique” and that “uniqueness of the property in the sense that it has some special characteristic sought by the party, does not apply”. According to the appellants, the fact the Lucases now intend to sell the Unit and buy a larger home – due to their expanding family – proves that Unit 421 is only valuable to them financially and therefore is not unique: Southcott, at paras. 38-40.

[83] I see no reversible error in the application judge’s analysis. Although he acknowledged that the Unit is one of many similar properties available in Toronto at any given time, there is no rigid rule requiring a court to decline specific performance to a prospective purchaser in the absence of physical or subjective uniqueness. In determining whether a substitute for the Unit was “readily available” within the meaning of Semelhago, a court may look beyond the physical attributes or location of a property to examine the features of the purchase transaction.

[84] That is what the application judge did. At para. 64, he found that the Unit was unique based on “advantageous terms” in the Agreement. These terms included: (a) a $15,000 credit, part of which the Lucases used to customize the Unit with upgrades, and (b) the ability to stretch out payment of the deposit into small monthly increments. The appellants now argue that these terms were available to the public at large. However, 185’s evidence on the application was that (a) the “overall deal” outlined in the Agreement was “unique to Alex Lucas” and (b) the deposit payment structure was only available to the Lucases, not to others, because of Alex’s long-standing employment with Triumph. The Agreement locked in a home for the Lucases at a favourable price, along with the ability to slowly build their deposit. As long as they made their payments, they were insulated from market fluctuation while their home was being constructed and fitted with custom upgrades. On this basis, the application judge found that the Agreement could not have been readily duplicated at the time of 185’s wrongful termination in February 2019. I see no palpable and overriding error in that finding.

[85] This case is distinguishable from Southcott, where a developer sought specific relief with respect to property it had agreed to purchase solely as an investment. At the hearing, 185 acknowledged there was no evidence that the Lucases purchased Unit 421 as an investment property. Rather, the Lucases’ evidence was that they intended to live in the Unit when they entered into the Agreement in 2015. Later, when their second child was born, they decided they needed more space. While the arrival of a second child before the Unit’s closing date changed their plans to live in the Unit, Kelly deposed that their interest in completing the purchase of the Unit remained one tied to residential use, not investment – they could use the sale proceeds as the means to buy a 2-bedroom unit in the condominium in which to live. Accordingly, the evidence does not support the appellants’ efforts to paint the Lucases’ interest in the Unit as solely an investment opportunity.

Second error: The Lucases failed to establish the inadequacy of damages

[86] The second alleged error concerns the application judge’s finding, at para. 65, that pursuing damages would deny the Lucases the advantage of the rise in value of the Unit, hindering their ability to buy a home “of the size and quality they could otherwise afford now”. The appellants say the application judge failed to acknowledge that damages would be assessed at the date of judgment based on a straightforward analysis of the Unit’s fair market value. As such, damages would not be complex to assess and the Lucases would not lose out on any increase in value.

[87] The appellants further argue that the Lucases did not specifically plead that damages were inadequate or adduce evidence that it would have been difficult for them to obtain a similar property in Toronto. Therefore, the appellants submit that there was no basis on which to find damages inadequate and the application judge should have recognized the Lucases’ duty to mitigate.

[88] I am not persuaded by the appellants’ submissions for four reasons.

[89] First, the application judge found damages inadequate because of delay, not quantum. He did not ignore the practice that damages generally are assessed as of the date of judgment (or trial); he held that it would be unfair to make the Lucases wait any longer to be compensated for 185’s misconduct.

[90] As I read his reasons, especially at para. 65, the application judge made three points:

(i) To accept 185’s position that specific performance should not be available for a breach of a contract to sell a standard condominium unit where a vendor retains control of the purchaser’s deposit would make it difficult for purchasers to mitigate their damages. They would not be able to use their deposit to acquire a replacement property; (ii) Even with a damages award in their pockets, purchasers such as the Lucases would still have to spend time and money pursuing their vendor, such as 185, if it did not immediately honour the judgment; and (iii) Finally, a suit for damages could “drag on for years”. I take the application judge to be pointing to the Lucases’ choice to bring an application, rather than an action, to obtain their remedy for 185’s breach. Bringing an application for specific performance would “better achieve justice than requiring the [Lucases] to sue for damages,” as the application judge put the matter. [4]

I see no error in any of these points made by the application judge. Indeed, I agree with them.

[91] In regard to the application judge’s comment that a suit for damages could drag on for years, I would note that an application is designed as a more stream-lined device than an action to obtain a remedy, avoiding the delays and costs too often associated with productions, discoveries, and the scheduling of trials. And the potential advantage of an application over an action was demonstrated in this case: the Lucases issued their notice of application in March 2019 and obtained their judgment less than 10 months later, in January 2020. An example of the court’s process satisfying the “service guarantee” promised by r. 1.04(1) of the Rules of Civil Procedure to secure “the just, most expeditious and least expensive determination of every civil proceedings on its merits”: Louis v. Poitras, 2020 ONCA 815, at para. 33; 2021 ONCA 49, at para. 22.

[92] Second, the Lucases were not required to specifically plead the “inadequacy of damages”, as the appellants contend. A claim for specific performance, by its nature, requires a court to inquire into whether damages would be an adequate remedy in the circumstances. While choosing not to plead damages as an alternative to specific performance may, in some circumstances, be a risky litigation strategy, it does not preclude a court from assessing the circumstances surrounding the transaction and subsequent litigation in exercising its remedial discretion. Accordingly, 185’s contention that it was “taken by surprise” when the application judge considered inadequacy of damages is not tenable given the Lucases’ claim for specific performance.

[93] Third, there was sufficient evidence to support the application judge’s finding that damages were inadequate to compensate the Lucases. It is common ground that prices in the Toronto real estate market rose significantly over the past several years. The evidence before the application judge was that the Unit had increased in value by about 40% between the signing of the Agreement in 2015 and 185’s purported termination in 2019. Given that four years had elapsed between the execution of the Agreement and 185’s wrongful termination, it was reasonable for the application judge to infer that it would have been difficult for the Lucases to find a property at a comparable price, particularly when 185 had seized their deposit.

[94] Finally, I do not accept the appellant’s suggestion that in order to obtain specific performance the Lucases were required to prove they lacked the financial means to mitigate their loss. In their application, the Lucases claimed specific performance, not damages. In Southcott, the Supreme Court explained the interplay between a claim for specific performance and the obligation of the innocent party to mitigate when faced with a breach of contract. At para. 37, the court stated:

Asamera set out the general principles governing mitigation: was the plaintiff’s inaction reasonable in the circumstances, and could the plaintiff have mitigated if it chose to do so. Those principles apply to a plaintiff seeking specific performance. If the plaintiff has a “substantial justification” or a “substantial and legitimate interest” in specific performance, its refusal to purchase other property may be reasonable, depending upon the circumstances of the case.

[95] In assessing whether the plaintiff’s refusal to purchase another property was reasonable, the defendant vendor bears the burden of proof. As the court went on to state in Southcott, at para. 45: “[W]here it is alleged that a plaintiff has failed to mitigate damages, the onus of proof on a balance of probabilities lies with the defendant, who must establish not only that the plaintiff failed to take reasonable efforts to find a substitute, but also that a reasonable profitable substitute could be found.”

[96] The application judge obviously found that 185 had not discharged that onus. 185’s retention of the deposit evidently played a large role in the application judge’s analysis for he noted, at para. 64, that “the [Lucases’] deposits have been provided to 185, and that money has been, and remains, tied up in the property, unavailable for acquiring another property, as the market continues to rise.” The evidence also disclosed two other impediments to reasonable mitigation: (i) the expert evidence indicated that any potential substitute property in February 2019 would have been significantly more expensive than the contract price for the Unit; and (ii) the Agreement had provided the Lucases with special advantageous terms because of their relationship with the vendor’s principals.

[97] Given those circumstances, I see no error in the application judge’s determination that the Lucases had shown that specific performance of conveying the Unit, rather than awarding its monetary equivalent, better served justice between the parties.

Third error: the Lucases behaved inappropriately, not 185

[98] The appellants also contend the application judge failed to consider that the Lucases did not bring their claim for equitable relief with clean hands. Conversely, they argue that the subsequent sale to Sofia and Andre, while a “favourable deal”, was legitimate. As such, the appellants say the application judge erred in finding that the behaviour of the parties weighed in favour of awarding specific performance against 185.

[99] I see no merit in this submission. The application judge considered and rejected essentially the same argument: at paras. 72-75. On appeal, 185 seeks to re-litigate the issue. Although 185 may disagree with the application judge’s reasoning, I see nothing to suggest he made any palpable and overriding error in his application of the doctrine of clean hands.

[100] Further, as the application judge noted, at para. 75, the equities in this case strongly favour the Lucases. The Lucases upheld their end of the Agreement and expected 185 to do the same. Over the course of four years they made all required payments to secure ownership of the Unit. In September 2018, 185 took issue with Mr. Duarte’s occupancy. However, 185 did not promptly invoke any right to terminate under the Agreement. Instead, it did nothing for months, only raising the matter again in December as leverage in the Bathtub Dispute, long after Mr. Duarte had already vacated the Unit. When that tactic failed, 185 terminated the Agreement on the eve of closing, seized the Lucases’ deposit, and re-sold the Unit to close relatives of the company’s principals on favourable terms.

[101] The appellants submit that the application judge erred in finding, at para. 77, that the re-sale of the Unit to Sofia and Andre was “a sham, intended by the [appellants] to prevent the [Lucases] from acquiring title to Unit 421.” While the word “sham” might overstate the commercially favourable aspects of the re-sale transaction, the evidence certainly supported the application judge’s inference that 185 entered into that transaction to prevent the Lucases from acquiring title to the Unit. Specifically, the evidence revealed that:

(i) Sofia and Andre were the children of one of 185’s principals; (ii) The re-sale price of $418,000 was far below the then market price for the Unit, which 185’s own experts valued at between $489,000 and $520,000; (iii) The required deposit of $5,000 was only 1% of the purchase price, far lower in proportion than the deposit required of the Lucases on their purchase. [5] Another $13,000, or 3%, was to be paid on closing, with the balance financed by a vendor take-back mortgage from 185, the company owned by the purchasers’ father and uncle; [6] (iv) Mario deposed that 185 offered the mortgage because he was aware that Sofia and Andre did not have the money to close the transaction; (v) The re-sale was not the result of listing the Unit on the open market. Instead, Sofia deposed that her uncle approached her to advise that the sale of the Unit to a former Triumph employee was not proceeding; and (vi) Sofia deposed that her uncle’s overture occurred in early March 2019, just three weeks after 185 purported to terminate the Agreement.

[102] Given the evidence set out above in paras. 100 and 101, it certainly was open to the application judge to find that 185 acted in bad faith in terminating the Agreement and to take that conduct into account in granting equitable relief to the Lucases.

E. Conclusion on Issue 2

[103] Accordingly, I would dismiss the appeal with respect to remedy. I see no reversible error in the application judge’s decision to grant specific performance in favour of the Lucases. He properly applied the controlling principles to the evidence before him. Rather than focus solely on the uniqueness of the Unit itself, he conducted a broad critical inquiry as to the adequacy of damages having regard to the circumstances of the transaction as a whole. Based on this inquiry, the application judge was entitled to conclude, as he did, that specific performance would best serve justice between the parties.

IV. Issue 3: The Subsequent Sale to Sofia and Andre

[104] The final issue on appeal concerns 185’s subsequent sale of the Unit to Sofia and Andre. The appellants submit the application judge erred by ordering the lease with Sofia and Andre’s tenants assigned to the Lucases. As non-parties to the litigation, the appellants submit that the tenants had no recourse to challenge the application judge’s interference with their contractual rights. They say the lease should be re-assigned and all rent payments returned to Sofia and Andre.

[105] As a practical matter, this is no longer a live issue. At the hearing, respondents’ counsel confirmed that Sofia and Andre’s tenants voluntarily vacated the Unit on March 31, 2020, after paying only one month of rent to the Lucases. The Lucases re-took vacant possession of the Unit in April 2020.

[106] As well, given my conclusion that the application judge did not err in granting the Lucases specific performance of the Agreement, I see no error in that part of his judgment which, in effect, directed the Lucases to honour the lease with the then existing tenants of the Unit.

V. Disposition

[107] For the reasons set out above, I would dismiss the appeal.

[108] I would order the appellants to pay the respondents their partial indemnity costs of the appeal fixed in the amount of $18,500, inclusive of disbursements and applicable taxes.

Released: “AH” JAN 28 2021

“David Brown J.A.”

“I agree. Alexandra Hoy J.A.”

“I agree. Thorburn J.A.”

[1] 185 abandoned its appeal of the application judge’s order with respect to relief from forfeiture and released $73,980 in deposit monies to the Lucases.

[2] Low J. first made this point in 904060 Ontario Ltd. v. 529566 Ontario Ltd., [1999] O.J. No. 355 (S.C.), at para. 14.

[3] Domowicz v. Orsa Investments Ltd. (1993), 15 O.R. (3d) 661, 1993 ONSC 5472, at pp. 687-88, aff’d (1998), 40 O.R. (3d) 256 (C.A.), 1998 ONCA 17748; Matthew Brady, at para. 39; Di Millo v. 2099232 Ontario Inc., 430 D.L.R. (4th) 296, 2018 ONCA 1051, at paras. 70-74, leave to appeal refused, [2019] S.C.C.A. No. 55.

[4] In Youyi Group Holdings (Canada) Ltd. v. Brentwood Lanes Canada Ltd., 377 D.L.R. (4th) 701, 2014 BCCA 388, the British Columbia Court of Appeal noted the advantages of the remedy of specific performance in providing greater access to justice in the courts, stating, at para. 49:

In terms of the modern concept of access to justice, the remedy has much to be said for it, at least in the context of contracts for the sale and purchase of land. Certainly it is likely to be less expensive and time-consuming than the assessment of damages, which requires the parties to marshal expert evidence concerning the value of the land as at a particular date (which may be in issue) in what may be an unstable market….

[5] Sofia and Andre recovered their deposit through the rent paid by their tenants prior to the judgment and transfer of the Unit to the Lucases.

[6] Although the application judge, at paras. 22 and 77, stated that the agreement to secure payment of the balance of the purchase price was by way of a promissory note, not a mortgage, in my view this mischaracterization is of no consequence. At the end of the day, the purchasers were offered financing for 96% of the purchase price by the company owned by their father and uncle.