Court of Appeal for Ontario

Citation: Huttonville Acres Limited (Forest Homes) v. Archer, 2011 ONCA 115

Date: 2011-02-09

Docket: C51390

Before: Moldaver, Simmons and Gillese JJ.A.

Between:

Huttonville Acres Limited carrying on business as Forest Homes

Plaintiff (Appellant)

and

Delrose Eunice Archer also known as Rose Archer

Defendant (Respondent)

Counsel:

Douglas G. Loucks, for the appellant

Rosemary Fisher, for the respondent

Heard: February 8, 2011

On appeal from the judgment of Justice John C. Murray of the Superior Court of Justice dated October 5, 2009.

APPEAL BOOK ENDORSEMENT

[1] This is a breach of contact case. The respondent bought a property from the appellant. She gave a covenant and undertaking in which she agreed that she would not resell the property in question without first building a house on it with certain characteristics. The covenant was not registered on title. In breach of that covenant, the respondent sold the property to a third party without having first built a house on it. The respondent received more for the property than she had paid the appellant. The purchaser built a house on the property that complied with the requirements contained in the covenant and undertakings given by the respondent. This fact was acknowledged by the appellant at the oral hearing of this appeal.

[2] The trial judge was fully aware of the respondent’s breach of contract. He was also aware that the appellant suffered no compensable damages for the breach. He considered the caselaw which suggests that in exceptional circumstances, the normal measure of damages can be departed from. He considered that this was not an exceptional case and refused to exercise his discretion to award damages that reflected a disagreement of some or all of the respondent’s “profit”.

[3] We see no basis on which to interfere with the decision below. The trial judge gave lengthy, compelling reasons for refusing to exercise his discretion.

[4] As for the appellant’s request for nominal damages, we note that this was not requested below. It is not appropriate to raise this issue on appeal for the first time.

[5] Accordingly, the appeal is dismissed. In the circumstances, costs of the appeal in the amount of $5,000, all inclusive, to the respondent.

“E. E. Gillese J.A.”