Sandra Hsia

The appellant vendor appealed the dismissal of its breach of contract claim arising from a failed residential real estate transaction after the respondent purchaser repudiated before closing.

The central issue was mitigation: although the defaulting purchaser bore the burden of proving failure to mitigate, the evidentiary record supported the motion judge's finding that the vendor failed to take reasonable steps to market the property, including by failing to produce records of any property-specific marketing efforts during the six-month resale period.

The court held that, given those factual findings, the motion judge was entitled to assess damages using the property's appraised value as of the breach date rather than the later resale price.

The court also rejected the argument that summary judgment became inappropriate because the appellant's own mitigation evidence was deficient.

Appeal dismissed with costs.

On a motion to compel responses to discovery undertakings in a simplified civil action with a counterclaim under the Business Corporations Act, the moving party asserted three undertakings remained outstanding.

The court found that production of specific Visa statements and a witness list with contact information had been satisfactorily provided, but held that the will-say materials were insufficient because they did not adequately summarize anticipated evidence for expected trial witnesses.

Applying disclosure principles referenced in the jurisprudence, the court required meaningful witness-evidence summaries rather than generic topic statements.

The motion was granted in part with a direction to provide sufficient will-say statements within 30 days.

Costs of $1,000 all-inclusive were awarded to the moving party.

A motion for summary judgment brought by a home developer to recover damages arising from an abandoned agreement of purchase and sale.

The defendant admitted non-completion but argued the plaintiff failed to mitigate damages.

The court found the plaintiff did not reasonably mitigate because it failed to disclose or identify specific marketing steps taken to resell the property, chose not to list on MLS, and delayed resale efforts.

The court assessed damages as of the breach date rather than the resale date, resulting in no damages owed after crediting the defendant's deposits.

The plaintiff brought a motion for summary judgment seeking the return of an assignment fee paid in an aborted real estate transaction.

The original builder went bankrupt, and the purchase agreement was terminated by court order.

The plaintiff argued that the assignment agreement's default provision (Article 17) and a specific refund clause in Schedule A entitled her to the fee's return.

The defendant contended the contract was ambiguous, the evidentiary record incomplete, and that the plaintiff failed to mitigate damages by rejecting a new offer from a stalking horse purchaser.

The court found the case suitable for summary judgment, interpreting the contract to mandate the refund of the assignment fee upon the builder's default, and dismissed the defendant's arguments.

The defendants brought a motion for security for costs against the plaintiff, Unionville Education Inc. (UEI), seeking $41,443.46.

The court granted the motion in part, ordering UEI to post $20,000 in security for costs, payable in tranches.

The court found that UEI had insufficient assets in Ontario to pay costs, satisfying Rule 56.01(1)(d).

The requested amount was reduced because the defendants had asserted a substantial counterclaim and had engaged in unreasonable conduct, including failing to comply with discovery undertakings and serving motion materials late.

The court also set aside a noting in default, granted leave for the defendants to serve a statement of defence and counterclaim, and ordered a further discovery for one of the plaintiff's shareholders.

Costs of the motion were ordered to be absorbed by each party due to the defendants' procedural misconduct.