COURT FILE NO.: CV-18-610391-0000 DATE: 2020/01/08

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

KATALIN MALATINSZKY Plaintiff

• and - AHMAD MIRI Defendant

Counsel: David W. Dolson for the Plaintiff Jeffrey M. Neiman for the Defendant

HEARD: December 19, 2019

PERELL, J.

REASONS FOR DECISION

A. Introduction

[1] The Plaintiff, Katalin Malatinszky, entered into an agreement to sell her home to the Defendant, Ahmad Miri. In circumstances that I shall describe below, the sale did not close. Ms. Malatinszky resold the property at a loss, and she brings a summary judgment motion seeking damages of $144,814.70 plus pre-judgment from October 17, 2017 interest in accordance with the Courts of Justice Act. [1] She also seeks a dismissal of Mr. Miri’s counterclaim for the return of his $50,000 deposit and damages.

[2] For the reasons that follow, I grant Ms. Malatinszky judgment as requested and I dismiss the counterclaim.

B. Evidentiary and Procedural Background

[3] The real estate transaction failed to close on October 17, 2017.

[4] On December 7, 2018, Ms. Malatinszky commenced an action by having a Statement of Claim issued.

[5] On January 24, 2019, Ms. Malatinszky delivered an Amended Statement of Claim.

[6] On February 20, 2019, Mr. Miri delivered a Statement of Defence and Counterclaim. He pleaded that Ms. Malatinszky had breached the Agreement of Purchase and Sale by not closing with Mr. Agajani, the assignee purchaser, who had advanced the scheduled closing date. He counterclaimed for refund of the $50,000 deposit and for damages for breach of contract.

[7] On June 12, 2019, Ms. Malatinszky delivered a Reply and Statement of Defence to the Counterclaim.

[8] On June 17, 2019, Ms. Malatinszky brought a motion for summary judgment supported by Ms. Malatinszky’s affidavit dated March 13, 2019 and Mr. Altwerger’s affidavit of June 13, 2019.

[9] On July 25, 2019, Mr. Miri delivered an Amended Statement of Defence and Counterclaim. In addition to the defence that Ms. Malatinszky had breached the Agreement of Purchase and Sale, he pleaded that Ms. Malatinszky had failed to mitigate her damages.

[10] On August 8, 2019, Mr. Miri delivered an affidavit in response to the summary judgment motion. He appended to his affidavit an appraisal report of Tarsem Jutla of TJ Realty Services Inc. He attached a listing of another property similar but smaller than Ms. Malatinszky’s property that sold for $742,000 in November 24, 2017.

[11] On October 28, 2019, Ms. Malatinszky delivered a supplementary motion record containing the affidavit of Melissa Taylor sworn October 22, 2019 and the affidavit of Peter Stewart sworn October 23, 2019.

[12] Ms. Taylor is the original listing agent for Ms. Malatinszky. She provided evidence with respect to Ms. Malatinszky’s efforts to resell the property.

[13] Mr. Stewart is a real estate appraiser. He is a member of the Canadian National Association of Real Estate Appraisers and holds the designations of DAR (Designated Appraiser Residential) and of Certified Appraisal Reviewer. He has over 30 years of experience.

[14] There were no cross-examinations or examinations for discovery.

C. Facts

[15] In 2017, Ms. Malatinszky owed a residence at 72 Olive St., East Gwillimbury (photographs annexed). It is a small bungalow on an 1.46 acre property that backs on a ravine and conservation land.

[16] On March 4, 2017, Ms. Malatinszky signed an Agreement of Purchase and Sale to sell the property to Mr. Miri for a purchase price of $1.0 million. He paid a deposit of $50,000. The closing of the transaction was scheduled for August 31, 2017.

[17] Subsequently, by a series of amendments, the purchase price was reduced to $850,000.

[18] Pausing in the narrative, the appraisal evidence of Mr. Stewart for the summary judgment motion was that following the introduction of the foreign buyer’s tax in April 2017 and following changes in the mortgage qualification rules, there was a substantial decline in the real estate market in the York Region, which is where Ms. Malatinszky’s property is located. Her area in East Gwillimbury where the property is located experienced a reduction from March 2017 to September 2017 of approximately 27.2%.

[19] Following the signing of the Agreement of Purchase and Sale, Ms. Malatinszky retained Mark Altwerger as her conveyancing lawyer. Mr. Miri retained Vishal Bansal as his conveyancing lawyer.

[20] On August 29, 2017, Mr. Altwerger delivered the executed closing documents and keys to Mr. Bansal to be held in trust pending the delivery of the closing funds. There were no title objections and no objections taken to the closing documents prepared by Mr. Altwerger.

[21] Mr. Miri, however, was unable to arrange the financing to close, and on August 31, 2017, he sought an extension of the closing date from August 31, 2017 to September 28, 2017. The extension was granted on terms, including the term that time would remain of the essence.

[22] The transaction did not close on September 28, 2017 because on September 27, 2017, Mr. Miri’s mortgage lender (Street Capital Bank of Canada) advised that it would not authorize the release of the closing funds until it could complete an appraisal of the property. Thus, Mr. Miri was unable to close on September 28, 2017, and another extension of the closing date was granted.

[23] On September 28, 2017, Ms. Malatinszky’s lawyer extended the closing to October 17, 2017 by letter to Mr. Miri’s lawyer, and once again, time was to remain of the essence.

[24] On September 28, 2017, in a letter signed by Mr. Miri, Mr. Miri’s lawyer acknowledged the extension but in the letter of acknowledgement, he added a provision to the acceptance of the extension. The email message added:

The transaction can be closed at any time prior to the amended closing date and will be vacant upon closing as agreed by the both parties.

[25] In anticipation of eventually closing the transaction, Mr. Miri had assigned his Agreement of Purchase and Sale to Al Agajani. Mr. Agajani retained Jessie Ma of Castle Law Professional Corporation to act as his conveyancing lawyer in a transaction that would have to be coordinated with the vendor’s lawyer, the purchaser’s lawyer, and the assignee purchaser’s lawyer.

[26] Just after noon on Thursday October 5, 2017, Ms. Malatinszky’s lawyer received a fax from Castle Law (presumably from Ms. Ma) on behalf of Al Agajani. The fax stated:

Further to your fax of October 2, 2017, my client, Al Agajani will [be] completing this transaction with tentative closing date of tomorrow, October 6, 2017 (instead of October 17, 2017).

[27] Ms. Malatinszky, however, was not in position to close on Friday October 6, 2017, which was the Friday of the Thanksgiving long weekend. Although she had already moved out most her belongings, she was not able to provide vacant possession on one day’s notice. She offered to close on the Friday but to provide vacant possession on the following Wednesday, October 11, 2017.

[28] This proposal, however, was refused by Mr. Agajani’s lawyer. Ms. Ma wrote Mr. Altwerger:

This is reply to your fax of today.

It is my understanding that your client has, on September 28 th , agreed to close the transaction at any time prior to the amended closing date in return for the release of the balance of deposit held in trust. As such, your client has had ample time to prepare for movers.

My client is not agreeable on completing the transaction without vacant possession. He is ready, willing and able to close today and is not satisfied with your client's inability to provide vacant possession.

[29] With this refusal, Ms. Malatinszky’s position was that the closing should remain October 17, 2017. Mr. Altwerger wrote Ms. Ma:

We have your letter of today's date. The terms agreed to on September 28, 2017 stipulated that "this transaction can be closed at any time prior to the amended closing date and will be vacant upon closing as agreed by both parties ", a copy of which is attached for your information.

There was no agreement to the earlier date as our client still has to move. We have offered your client a reasonable solution. Should it not be acceptable we look forward to completing this transaction on October 17, 2017.

[30] Nothing occurred on October 6, 2017. Mr. Miri did not tender closing funds. Neither Mr. Miri nor Mr. Agajani asserted that the Agreement of Purchase and Sale had been repudiated or had been terminated.

[31] On October 10, 2019, Street Capital revoked its mortgage commitment and neither Mr. Miri nor Mr. Agajani had the funds to close.

[32] Ms. Malatinszky readied herself to close the transaction. She was ready, willing, and able to complete the sale on October 17, 2017. Vacate possession was possible, and she had already delivered the keys and the closing package of documents.

[33] On October 16, 2017, Mr. Bansal sent an email message to Mr. Altwerger to advise that he was no longer acting for Mr. Miri and that Mr. Altwerger should retrieve the closing package of documents.

[34] On October 17, 2019, Mr. Altwerger sent an email message to Mr. Miri and advised him that if he failed to close, he would be in default of the Agreement of Purchase and Sale and that Ms. Malatinzsky would re-list the property and hold him accountable for any damages.

[35] On October 17, Ms. Malatinszky’s lawyer received a letter from Mr. Agajani’s lawyer advising that he was unable to complete the transaction on October 17, 2017.

[36] Mr. Miri did not retain another lawyer to close the transaction and neither he nor Mr. Agajani tendered any funds. An agent of Mr. Miri (Ryan Wood) advised Mr. Altwerger that Mr. Miri could not close unless there was a price reduction and an extension of time for the closing.

[37] Had the transaction closed on October 17, after adjustments, including real estate commissions, Ms. Malatinszky would have received net proceeds of $804,040.

[38] With the transaction not closing, Ms. Malatinszky immediately directed Re/Max Realtron Realty Inc. to list the property for sale on the MLS (multiple listing service) of the real estate board. The listing price was $850,000.

[39] I pause here to note that on the summary judgment motion, Mr. Stewart opined that the market value for Ms. Malatinszky’s home at October 17, 2017 was between $650,000 to $700,000.

[40] Returning to the narrative, in early November 2017, Mr. Miri hired Tarsem Jutla of TJ Realty Services to appraise the fair market value of Ms. Malatinszky’s property. He provided an appraisal report opinion that valued the fair market value of the property on November 9, 2017 at $920,000.

[41] I pause again to note that Mr. Miri appended Mr. Jutla’s appraisal report to his affidavit for the summary judgment motion. I foreshadow the discussion below to say that the report is evidence that Mr. Miri obtained an appraisal, which may explain what happened next in the narrative, but it is not admissible appraisal evidence. Mr. Jutla was not called or qualified as an expert witness, and his report is not inadmissible as expert evidence of the value of Ms. Malatinsky’s property on November 9, 2017. The only admissible evidence on this point is that of Mr. Stewart.

[42] Returning to the narrative, on November 10, 2017, Mr. Miri made an offer to purchase Ms. Malatinszky’s property for $799,000. The agreement provided that the deposit from the original agreement was to be a credit and the deposit for the new offer. Under the offer, Ms. Malatinszky could continue to market the property for a better price, but this right was subject to a right of first refusal for Mr. Miri.

[43] Ms. Malatinszky rejected Mr. Miri’s offer. I foreshadow again to say that Mr. Miri says that her refusal is evidence of a failure to mitigate her damages.

[44] After the abortive closing of the transaction, the property did not immediately resell, and the listing price with Re/Max Realtron Realty was adjusted to $799,000 and then $759,900.00 before being relisted with Re/ Max HallMark York Group Realty Ltd on July 2, 2018.

[45] A summary of the marketing history of the property is as follows:

a. Open Houses were held on October 21, 2017, October 22, 2017, November 4, 2017, December 9, 2017, December 10, 2017, February 22, 2018, March 10, 2018, March 17, 2018, March 31, 2018, April 14, 2018, May 10, 2018, May 12, 2018 and May 20, 2018. Open House Signs were posted at the property and at nearby intersections.

b. Print advertisements of the open houses were published in the Era Banner and Advocate for the October 21 and 22 and December 9 and 10, 2017 open houses.

c. A “For Sale” sign was posted on October 18, 2017 and removed December 17, 2017 and then installed from February 6, 2018 to April 15, 2018.

d. The Property was advertised on the internet and the interested parties could view the virtual tour.

e. There were a number of appointments for showings of the property.

[46] On July 2, 2018, Ms. Malatinszky entered into an agreement to resell her home to Sara Meghdadpour and David Eqbal, arms-length purchasers, at a purchase price of $657,000. The transaction was scheduled to close on October 31, 2018.

[47] The transaction closed as scheduled. Net proceeds of the sale to Ms. Meghdadpour and Mr. Eqbal, after real estate commission was $623,269.50, The difference between the net proceeds that Ms. Maltinszky would have received had her transaction with Mr. Miri closed and what she received from the transaction that did close is $180,775.50. Ms. Malatinszky claims this difference as a head of damages.

[48] Ms. Malatinszky incurred moving and storage costs of $5,773.20 to move her property in expectation of completion of a sale to Mr. Miri. This expense was wasted when the transaction did not close.

[49] Ms. Malatinszky’s existing mortgages, which would have been paid in full in October 2017, had Mr. Miri completed his purchase, matured in 2018, and she incurred costs of $3,848.80 to refinance the mortgage.

[50] In consideration of the extensions, Ms. Miri had agreed to leave adjustments as at August 11, 2017; and to pay the Plaintiff’s first and second mortgage interest to October 17, 2017 and to pay additional discharge statement costs. These adjustments from August 11, 2017 to October 17, 2017 totaled $3,264.70.

[51] Ms. Malatinszky incurred legal fees and disbursements on the abortive sale of $1,192.50 in addition to the fees incurred on the resale.

[52] Ms. Malatinszky claims damages of $194,814.70 less the credit of $50,000.00 for the deposit for a total claim of $144,814.70 before prejudgment interest calculated as follows:

$180,775.50 - lost benefit of the bargains $5,733.20 - moving and storage expense $3,848.80 – mortgage expense $3,264.70 – additional closing adjustments $1,192.50 – legal fees ($50,000) – credit for deposit

[53] Prejudgment interest from October 17, 2017 to the date of the judgment, January 6, 2020, (812 days) at the rate of 3% per annum totals $9,664.89.

D. Discussion and Analysis

1. Is the Case Appropriate for a Summary Judgment?

[54] Rule 20.04 (2)(a) of the Rules of Civil Procedure provides that the court shall grant summary judgment if: “the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence”. With amendments to Rule 20 introduced in 2010, the powers of the court to grant summary judgment have been enhanced. Rule 20.04 (2.1) states:

20.04 (2.1) In determining under clause (2)(a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence.

[55] In Hryniak v. Mauldin [2] and Bruno Appliance and Furniture, Inc. v. Hryniak [3], the Supreme Court of Canada held that on a motion for summary judgment under Rule 20, the court should first determine if there is a genuine issue requiring trial based only on the evidence in the motion record, without using the fact-finding powers introduced when Rule 20 was amended in 2010. The analysis of whether there is a genuine issue requiring a trial should be done by reviewing the factual record and granting a summary judgment if there is sufficient evidence to fairly and justly adjudicate the dispute and a summary judgment would be a timely, affordable and proportionate procedure.

[56] If, however, there appears to be a genuine issue requiring a trial, then the court should determine if the need for a trial can be avoided by using the powers under rules 20.04 (2.1) and (2.2). As a matter of discretion, the motions judge may use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if their use will lead to a fair and just result and will serve the goals of timeliness, affordability, and proportionality in light of the litigation as a whole. To grant summary judgment, on a review of the record, the motions judge must be of the view that sufficient evidence has been presented on all relevant points to allow him or her to draw the inferences necessary to make dispositive findings and to fairly and justly adjudicate the issues in the case. [4]

[57] Hryniak v. Mauldin does not alter the principle that the court will assume that the parties have placed before it, in some form, all of the evidence that will be available for trial. The court is entitled to assume that the parties have advanced their best case and that the record contains all the evidence that the parties will present at trial. [5] Thus, if the moving party meets the evidentiary burden of producing evidence on which the court could conclude that there is no genuine issue of material fact requiring a trial, the responding party must either refute or counter the moving party’s evidence or risk a summary judgment. [6]

[58] If a judge is going to decide a matter summarily, then he or she must have confidence that he or she can reach a fair and just determination without a trial; this will be the case when the summary judgment process: (1) allows the judge to make the necessary findings of fact; (2) allows the judge to apply the law to the facts; and (3) is a proportionate, more expeditious and less expensive means to achieve a just result. [7] The motion judge is required to assess whether the attributes of the trial process are necessary to enable him or her to make a fair and just determination. [8]

[59] The case at bar is an appropriate case for a summary judgment. I have a more than adequate evidence to determine the factual narrative, which is well documented and confirmed by the documentary record, which is a virtual diary of the events in the order in which they occurred.

[60] There are no issues of credibility or reliability and the parties did not even see the need for cross-examinations.

[61] After the summary judgment motion was brought, Mr. Miri simply amended his statement of defence to make clear that there were only two defence issues to be determined; namely: (1) Did Ms. Malatinszky repudiate the agreement with a resulting termination of the Agreement of Purchase and Sale relieving Mr. Miri of liability and entitling him to the return of his deposit plus damages?, and (2) if the answer to the first issue is no, did Ms. Malatinszky fail to mitigate her damages?

[62] On a more than adequate evidentiary record, what remains to be done is to apply well settled law to the facts. A trial is not necessary to reach a true and just result. Neither of the issues is a genuine issue requiring a trial.

[63] Applying the law to the facts, as I shall explain below, it follows that at no time did Ms. Malatinszky breach the Agreement of Purchase of Sale and she did not fail to mitigate her damages. I find as fact that Mr. Miri had no excuse for his failure to close the real estate transaction and Ms. Malatinszky is entitled to a judgment of $144,814.70 plus prejudgment interest of $9,664.89 and postjudgment interest at 3 percent per annum. Mr. Miri’s counterclaim should be dismissed.

[64] I am in a privileged position as a trial judge to apply the law to the facts and since in the immediate case a summary judgment is a proportionate, more expeditious and less expensive means to achieve a just result, therefore, in my opinion, the case at bar is an appropriate case for a summary judgment.

2. Did Ms. Malatinszky Repudiate the Agreement of Purchase and Sale?

[65] Mr. Miri submits that Ms. Malatinszky breached the Agreement of Purchase and Sale when she declined to close the real estate transaction on one day’s notice from Mr. Miri’s assignee purchaser on the Friday of the Thanksgiving long weekend. There are at least six reasons why this argument fails.

[66] First, Mr. Miri’s argument depends upon the statement made by Mr. Miri’s lawyer when the closing of the agreement was extended that the transaction can be closed at any time prior to the amended closing date and will be vacant upon closing as agreed by the both parties providing Mr. Miri or his assignee with a unliterally right to fix the closing date.

[67] However, assuming that the statement was a term of the Agreement of Sale, the statement cannot be interpreted to provide the purchaser with a unilateral right to fix the closing date. It can only be interpreted as providing for a bilateral, “as agreed by both parties”, fixing of the closing date. It follows that Mr. Malatinszky did not breach the agreement when she declined to close on one day’s unilateral notice.

[68] Second, mutually independent of the first reason, assuming that: (a) the statement was a term of the Agreement of Sale; and, (b) that it could be interpreted to provide the purchaser with a unilateral right to fix the closing date, then as matter of good faith in the performance of contracts, [9] the statement could be interpreted and applied as only providing for a unilateral fixing of the closing date if reasonable notice of the closing date was given. Half-a-business days’ notice for a closing the next day is absurdly unreasonable. It follows that Mr. Malatinszky did not breach the agreement when she declined to close on one day’s notice, which was not reasonable notice.

[69] Third, mutually independent of the first and second reasons, assuming that: (a) the statement was a term of the Agreement of Purchase and Sale; (b) the statement provided the purchaser with a unilateral right to fix the closing date; and (c) it would be reasonable to give half-a-business days’ notice, I find as a fact that a triggering notice was not given. In this regard, it should be recalled that the fax from Castle Law only stated that there was “a tentative closing date of tomorrow”. It follows that Ms. Malatinszky did not breach the agreement when she declined to close on one day’s tentative notice, which is not a triggering notice.

[70] It may parenthetically be observed that the notice was tentatively given supports the first reason that there was no unilateral right to fix the closing date and it also supports the following fourth reason.

[71] Fourth, mutually independent of the first, second, and third reasons, the statement was not an enforceable term of the Agreement of Purchase and Sale; i.e ., the statement was precatory not promissory. It was a wish not a promise. It was akin to an agreement to agree, which is not enforceable. It follows that Mr. Malatinszky did not breach the agreement when she declined the fantasy of closing on half-a-business days’ notice before a holiday long weekend.

[72] Fifth, mutually independent of the first, second, third, and fourth reasons, assuming that: (a) the statement was a term of the Agreement of Purchase and Sale; (b) the statement provided the purchaser with a unilateral right to fix the closing date; (c) it would be reasonable to give half-a-business days’ notice; and (d) Ms. Malatinszky did breach the agreement when she declined to close the following day, the breach was not accepted, and, therefore, the Agreement of Purchase and Sale was not terminated and was alive to be performed.

[73] To end a contract, the repudiation or fundamental breach of the contract must be accepted. As noted in the oft-quoted passage of Lord Justice Asquith in Howard v. Pickford Tool [10]: "An unaccepted repudiation is a thing writ in water and is of no value to anybody: it confers no legal rights of any sort or kind”.

[74] As a general rule, for a contract to come to an end after a breach, the innocent party must communicate his or her decision to treat the contract as at an end to the repudiating party within a reasonable time, although in some cases the election to treat the contract at an end will be found to have been sufficiently communicated by the innocent party's conduct. [11] In the immediate case, there was no notice of termination and the conduct of the parties was to keep the transaction alive.

[75] Sixth, mutually independent of the first, second, third, fourth, and fifth reasons, the evidence establishes that neither Mr. Miri nor Mr. Agajani were in a position to close because the mortgage lender had cancelled the mortgage commitment. This explains perhaps why the closing date was made tentative by the purchasers. Thus, neither Mr. Miri nor Mr. Agajani was in the legal position to enforce time of the essence for the closing of the transaction.

[76] For a party to treat the agreement at an end for a repudiation or fundamental breach, time must be of the essence. The commonly recited rule for time of the essence is that time may be insisted upon as of the essence only by a litigant: (a) who has shown himself or herself ready, desirous, prompt, and eager to carry out the agreement; (b) who has not been the cause of the delay or default; and, (c) who has not subsequently recognized the agreement as still existing. [12] When both contracting parties breach the contract, the contract remains alive with time no longer of the essence but either party may restore time of the essence by giving reasonable notice to the other party of a new date for performance. [13]

[77] In the immediate case, it follows that Mr. Miri was not discharged from his performance obligations and that he remained obliged to perform the Agreement of Purchase and Sale on October 17, 2017 when Ms. Malatinszky was ready, willing, and able to perform her side of the bargain having given reasonable notice that she intended to close the transaction as scheduled.

[78] It also follows that there is no merit to Mr. Miri’s counterclaim, and it should be dismissed.

3. Did Ms. Malatinszky Fail to Mitigate Her Damages?

[79] Mr. Miri did not dispute the calculation of Ms. Malatinszky’s damages, but he raised the defence that there was a failure to mitigate.

[80] With respect to the issue of mitigation, the onus is on the defendant to prove any failure to mitigate, but the plaintiff must prove his or her calculation of damages. Thus, the plaintiff must adduce evidence of the contract price and of the market price or resale price upon which he or she relies in establishing the loss of bargain and then the onus is on the defendant to show, if he or she can, that if the plaintiff had taken certain reasonable mitigating steps, then the innocent party’s losses would be lower. [14]

[81] Where it is alleged that the plaintiff has failed to mitigate, the burden of proof is on the defendant, who needs to prove both that the plaintiff has failed to make reasonable efforts to mitigate and that mitigation was possible. [15]

[82] In assessing the innocent party's efforts at mitigation, the courts are tolerant, and the innocent party need only be reasonable, not perfect; in deciding what is a reasonable way to mitigate the effects of a breach of contract, the innocent party is not to be held to too nice a standard; it need only act reasonably, using what it knows then, without hindsight, and it need not do anything risky. [16]

[83] It is not a failure to mitigate when an innocent vendor refuses the defaulting purchaser’s revised terms to purchase the property at a lower price. [17] In Azzarello v. Shawqi [18], Justice Feldman writing for the Court of Appeal stated at paragraphs 37-40:

37. However, even if the appellant had made an offer to pay 10% less for the property and not be released from his obligation under the agreement of purchase and sale, I would reject the suggestion that the duty to mitigate obliges a vendor to accept an offer from the defaulting purchaser for less than the agreed price and then to have to sue the purchaser for the difference from the original agreed price.

38. While a vendor may choose to accept such an offer, for example in a declining market, the vendor cannot be obliged to do so.

39. The duty to mitigate is derived from the proposition that the wronged party cannot recover from the defaulting party for losses that could reasonably have been avoided: S.M. Waddams, The Law of Contracts, 7th ed. (Toronto: Thomson Reuters, 2017), at p. 529. It cannot be reasonable for a vendor to be obliged to reduce the loss it claims from the defaulting party by reselling the property to that party, then suing him or her for the difference. This would offer no financial advantage to the defaulting party as that party would be obliged to pay the same amount, either way. Yet the defaulting party would secure a significant tactical and procedural advantage over the innocent vendor.

40. The effect of endorsing the proposition advanced by the appellant would be to undermine the sanctity of the bargain by encouraging purchasers to default, particularly in a falling market, and to offer a lower price for the same property, leaving vendors with the risk and expense of recovering the balance of the original contract price in an action. The duty to mitigate does not go that far.

[84] In the immediate case, Mr. Miri has not met the onus of proving that there was a failure to mitigate. Indeed, Ms. Malatinszky has proven that she was diligent and acted appropriately and reasonable in attempting to resell and in eventually reselling her home. There is no evidence that the sale to Ms. Meghdadpour and Mr. Eqbal was an improvident sale.

[85] I find as a fact that there was no failure to mitigate.

E. Conclusion

[86] For the above reasons, I grant Ms. Malatinszky summary judgment as requested and dismiss Mr. Miri’s counterclaim.

[87] If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with Ms. Malatinszky’s submissions within twenty days of the release of these Reasons for Decision followed by Mr. Mir’s submissions within a further twenty days.

Perell, J.

Released: January 8, 2020

Footnotes

[1] R.S.O. 1990, c. 43. [2] Hryniak v. Mauldin, 2014 SCC 7. [3] Bruno Appliance and Furniture, Inc. v. Hryniak, 2014 SCC 8. [4] Campana v. The City of Mississauga, 2016 ONSC 3421; Ghaeinizadeh (Litigation guardian of) v. Garfinkle Biderman LLP, 2014 ONSC 4994, leave to appeal to Div. Ct. refused, 2015 ONSC 1953 (Div. Ct.); Lavergne v. Dominion Citrus Ltd., 2014 ONSC 1836 at para. 38; George Weston Ltd. v. Domtar Inc., 2012 ONSC 5001. [5] Dawson v. Rexcraft Storage & Warehouse Inc., [1998] O.J. No. 3240 (C.A.); Bluestone v. Enroute Restaurants Inc. (1994), 18 O.R. (3d) 481 (C.A.); Canada (Attorney General) v. Lameman, 2008 SCC 14, [2008] 1 S.C.R. 372 at para. 11. [6] Toronto-Dominion Bank v. 466888 Ontario Ltd., 2010 ONSC 3798. [7] Hryniak v. Mauldin, 2014 SCC 7 at paras. 49 and 50. [8] Hryniak v. Mauldin, 2014 SCC 7 at paras. 51-55; Wise v. Abbott Laboratories, Ltd., 2016 ONSC 7275 at paras. 320-336; Drywall Acoustic Lathing and Insulation Local 675 Pension Fund (Trustees of) v. SNC-Lavalin Group Inc., 2016 ONSC 5784 at paras. 122-131. [9] Bhasin v. Hrynew, 2014 SCC 71. [10] Howard v. Pickford Tool, [1951] 1 K.B. 419 at p. 421 (Eng. C.A.). [11] Brown v. Belleville, 2013 ONCA 148, affg. 2012 ONSC 2554; Spirent Communications of Ottawa Ltd. v. Quake Technologies (Canada) Inc., 2008 ONCA 92 at para. 53, leave to appeal to S.C.C. ref’d [2008] S.C.C.A. No. 151; Place Concorde East Limited Partnership v. Shelter Corp. of Canada Ltd., [2006] O.J. No. 1964 (C.A.); Chapman v. Ginter, [1968] S.C.R. 560 at 568; Lee v. OCCO Developments Ltd., (1996), 5 R.P.R. (3d) 203 (N.B.C.A.). [12] Morgan v. Lucky Dog Ltd. (1987), 45 R.P.R. 263 (Ont. H.C.J.); Metro. Trust Co. v. Pressure Concrete Services Ltd. (1976), 9 O.R. (2d) 375 (C.A.), aff’g. , [1973] 3 O.R. 629 (H.C.J.); King v. Urban & Country Transport Ltd. (1973), 1 O.R. (2d) 449 (C.A.); Brickles v. Snell (1916), 30 D.L.R. 3 (P.C.). [13] Domicile Developments Inc. v. McTavish (2000), 45 O.R. (3d) 302 (C.A.); King v. Urban & Country Transport Ltd. (1973), 1 O.R. (2d) 449 (C.A.). [14] Main Street Ltd. v. W.B. Sullivan Construction (1978), 20 O.R. (2d) 401 at para. 78 (C.A.); Cuervo-Lorens & Zabek v. Linda L. Carpenter, 2016 ONSC 4661, aff’d 2017 ONCA 109; Gamoff v. Hu, 2018 ONSC 2172. [15] Southcott Estates Inc. v. Toronto Catholic District School Board, 2012 SCC 51 at paras. 23-25; Asamera; Evans v. Teamsters Local Union No. 31, 2008 SCC 20 at para. 30; Red Deer College v. Michaels, [1976] 2 S.C.R. 324; Miller v. Wang, 2018 ONSC 7668. [16] Janiak v. Ippolito, [1985] 1 S.C.R. 146 at para. 28; DHMK Properties Inc. v. 2296608 Ontario Inc., 2017 ONSC 2432 at para. 73; Banco De Portugal v. Waterlow & Sons, Ltd., [1932] AC 452 (H.L.). [17] Azzarello v. Shawqi, 2019 ONCA 820 at paras. 39-40; Arista Homes (Kleinburg) Inc. v. Igbinedion, 2019 ONSC 7086; Forest Hill Homes v. Ou, 2019 ONSC 4332 at para. 25; Bang v. Sebastian, 2018 ONSC 6226 at para. 43, aff’d 2019 ONCA 501. [18] Azzarello v. Shawqi, 2019 ONCA 820