Court of Appeal for Ontario

Citation: Mannell v. Okoakih, 2012 ONCA 259

Date: 20120420

Docket: C54590

Before: Feldman, Simmons and Cronk JJ.A.

Between:

Gina Cambone and David Mannell Plaintiffs (Respondents)

and

Jonathan Chukwudi Okoakih and Royal LePage Real Estate Services Ltd. Defendants (Appellant)

Counsel:

Richard Odeleye, for the appellant Jonathan Chukwudi Okoakih

Glen E. Cohen for the respondents

Heard and released orally: April 12, 2012

On appeal from the order of Justice Douglas K. Gray of the Superior Court of Justice, dated October 17, 2011.

ENDORSEMENT

[1] The motion judge granted summary judgment to the respondent vendors for damages arising from a failed real estate transaction.

[2] We see no error in the motion judge’s decision.

[3] Because of the “time of the essence” provision in the contract, the vendors were under no obligation to extend the closing date.

[4] Following the closing date, the appellant purchaser failed to tender funds on the respondent vendors. In these circumstances, it is not open to the appellant to claim that the respondent vendors fell short on their obligation to mitigate by failing to complete the transaction with the appellant.

[5] We see no basis for interfering with the motion judge’s conclusion that the steps taken by the vendors to mitigate were reasonable.

[6] In all the circumstances, the appeal is dismissed with costs to the respondent vendors, fixed in the amount of $5,000, inclusive of disbursements and all applicable taxes.

Signature: “K. Feldman J.A.”

“Janet Simmons J.A.”

“E. A. Cronk J.A.”