Court of Appeal for Ontario
Date: February 9, 2017
Docket: C62552
Judges: Simmons, Lauwers and Hourigan JJ.A.
Between
Ralph Cuervo-Lorens and Carla Zabek Plaintiffs (Appellants)
and
Lynda L. Carpenter, Burloak Real Estate Services Inc., and Michael O'Sullivan Defendants (Respondents)
Counsel
Ralph Cuervo-Lorens, in person
Daniel McConville, for the respondent Lynda L. Carpenter
Amanda Gibson, for the respondents Burloak Real Estate Services and Michael O'Sullivan
Heard and released orally: February 6, 2017
On appeal from: the judgment of Justice Dale Parayeski of the Superior Court of Justice, dated July 20, 2016.
Endorsement
[1] The appellants do not dispute that they wrongfully repudiated an agreement of purchase and sale to purchase the respondent's home in Burlington for $1,120,000. They appeal from a summary judgment ordering them to pay the difference in purchase price and related expenses following the vendor's subsequent resale of the property.
[2] The motion judge concluded that the respondent acted reasonably in mitigating her damages. The property was relisted shortly after the repudiation through the same agent that handled the sale to the appellants. The property was resold approximately two months after it was relisted.
[3] The appellants did not file opinion evidence on the summary judgment motion indicating the steps taken on the resale were unreasonable or concerning the $50,000 price differential. In the absence of such evidence, we see no basis on which to interfere with the motion judge's decision to dismiss the action as against the vendor.
[4] As for the dismissal of the action against the broker and the agent, the appellants have acknowledged in this court that the only reason for adding them as parties to the action was to obtain disclosure of their file and the relevant MLS and market data. In light of this acknowledgement, we see no basis on which to interfere with the motion judge's decision to dismiss the entire action.
[5] The appeal is dismissed. The respondent vendor is entitled to his costs on a partial indemnity scale fixed in the amount of $8,500 inclusive of disbursements and applicable taxes. The respondent agent and broker are entitled to their costs in the global sum of $1,000 on a partial indemnity scale inclusive of disbursements and applicable taxes.
Janet Simmons J.A.
P. Lauwers J.A.
C.W. Hourigan J.A.
