Court and Parties

Court of Appeal for Ontario Date: 2022-04-05 Docket: C69311

Before: Doherty, Huscroft and Harvison Young JJ.A.

Between: Robert Leonard Marshall and Tracey Dorothy Hoyt Plaintiffs/Defendants by Counterclaim (Respondents)

And: John Peter Meirik and Amber Madelynn Meirik Defendants/Plaintiffs by Counterclaim (Appellants)

Counsel: Michael Bookman, for the appellants Colby Linthwaite, for the respondents

Heard: March 31, 2022 by video conference

On appeal from the judgment of Justice Jessica Kimmel of the Superior Court of Justice, dated March 8, 2021, with reasons reported at 2021 ONSC 1687, and 2021 ONSC 3059.

Reasons for Decision

The Main Appeal

[1] The appellants (defendants) agreed to purchase a cottage from the respondents (plaintiffs). The appellants repudiated the agreement prior to closing. The respondents relisted the property and sold the property a short time later for a considerably lower price.

[2] On the summary judgment motion, the appellants acknowledged they had breached the agreement of purchase and sale. Among other things, they argued:

• the resale price did not reflect the true value of the property when the respondents sold it; and
• the respondents did not take available reasonable steps to mitigate their loss and, had they done so, their losses would have been eliminated or at least substantially reduced.

[3] The motion judge rejected both arguments. She held the purchase price on the resale reflected the market value, meaning the respondents’ loss equalled the difference between the sale price agreed upon by the appellants and the ultimate resale price. In addition, the respondents were entitled to a commission adjustment.

[4] The motion judge also rejected the appellants’ mitigation argument. She held the appellants had failed to meet their onus to show on the balance of probabilities that the respondents did not take reasonable steps that would have led to a higher resale price.

[5] The appellants challenge the motion judge’s mitigation analysis. They advance two arguments:

• the motion judge wrongly held, as a matter of law, that absent expert evidence the appellants could not meet their burden on the mitigation issue; and
• the motion judge made various errors in her consideration of the evidence proffered by the appellants, including a failure to consider some of that evidence, and a failure to draw certain inferences.

[6] We reject both arguments. Both amount to an attempt to re-argue the merits of the case before this court.

[7] The motion judge did not hold, as a matter of law, that the appellants could not meet their onus without supporting expert evidence. In fact, the appellants did lead some expert evidence. The motion judge held that, having regard to the totality of the evidence led by the appellants, including the expert evidence, the appellants could not meet their onus on the mitigation issue. The motion judge applied the mitigation principles to the evidence adduced and found the evidence wanting in the absence of any independent expert testimony. We see no legal error in this analysis.

[8] The appellants’ second argument takes issue with the motion judge’s findings of fact. The appellants submit the motion judge did not consider certain evidence and did not draw certain inferences. This ground of appeal is a straightforward attack on the motion judge’s fact-finding and runs headlong into the strong deference owed in this court to that fact-finding.

[9] We see no basis to conclude the motion judge failed to consider evidence. She specifically outlined the evidence which the appellants claim she failed to consider. The inference to be drawn from that evidence was for the motion judge. We cannot interfere, absent palpable and overriding error. There is none.

The Costs Appeal

[10] The appellants also seek leave to appeal the costs order. Leave to appeal is granted sparingly, but, in our view, should be granted in this case.

[11] The respondents made a formal offer to settle the action in 2019. That offer was substantially lower than the amount ultimately awarded to the respondents.

[12] In May 2020, counsel for the respondents, in reply to a query from counsel for the appellants, advised counsel that he was prepared to recommend that his clients accept $375,000 in settlement of the action. While that figure was much closer to the amount claimed and ultimately awarded than the earlier offer, it was still about $100,000 less than the total amount of the judgment eventually awarded.

[13] The motion judge found that the 2020 exchange of correspondence between counsel was not an offer to settle and did not have the effect of revoking the 2019 offer. That offer remained alive to trial.

[14] The motion judge, applying r. 49.10, held the respondents were entitled to their costs on a partial indemnity basis up to the date of the 2019 offer and on a substantial indemnity basis after that date.

[15] There is no error in the motion judge’s conclusion that the 2019 offer remained in effect. The 2020 correspondence was not an offer to settle, but only an indication to counsel for the appellants of an amount counsel for the respondents was prepared to recommend to his clients should further negotiations ensue.

[16] We also agree with the motion judge that, even if the 2020 correspondence is considered to be an offer to settle, the amount proposed in that correspondence was significantly lower than the total amount ultimately awarded to the respondents in the judgment. Assuming the 2020 correspondence was an offer under r. 49, the respondents would be entitled to substantial indemnity costs on the basis of that offer.

[17] The motion judge properly triggered the costs consequences of r. 49.10. There is no reason to interfere with the quantum awarded.

Conclusion

[18] The appeal is dismissed. Leave to appeal costs is granted and the appeal is dismissed. Pursuant to counsel’s agreement, the respondents should have costs of the appeal in the amount of $11,000, inclusive of disbursements and relevant taxes.

“Doherty J.A.”

“Grant Huscroft J.A.”

“A. Harvison Young J.A.”