Semelhago v. Paramadevan, [1996] 2 S.C.R. 415

Sinnadurai Paramadevan and Blossom Paramadevan Appellants

v.

Bernard Semelhago Respondent

Indexed as: Semelhago v. Paramadevan

File No.: 24325.

1996: January 31; 1996: June 20.

Present: La Forest, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

on appeal from the court of appeal for ontario

Contracts ‑‑ Breach of contract -- Damages -- Sale of real property -- Damages in lieu of specific performance -- Vendor refusing to close sale of property to purchaser -- Purchaser suing for damages in lieu of specific performance -- Property values rising after closing date -- Whether damages should be assessed as of date of trial -- Whether purchaser entitled to recover increase in value of property to be purchased and retain increase in value of own unsold residence.

In August 1986, the respondent purchaser agreed to buy a house under construction in the Toronto area from the appellant vendor SP for $205,000, with a closing date of October 31, 1986. To finance the purchase, the respondent was going to pay $75,000 cash, plus $130,000 which he was going to raise by mortgaging his current house. The respondent negotiated a six-month open mortgage, so that he could close the deal on the new house and then sell his old one at an appropriate time in the six months following closing. Before the closing date, the appellant vendor reneged and in December 1986 title to the house was taken by the appellant BP. The respondent remained in his old house, which was worth $190,000 in the fall of 1986, and $300,000 at the time of the trial. The respondent sued the appellants for specific performance or damages in lieu thereof. At the time of trial, the market value of the property to be purchased was $325,000. The respondent elected to take damages rather than specific performance and the Ontario Court (General Division) awarded him $120,000, being the difference between the purchase price he had agreed to pay and the value of the property at the time of trial. The appellants appealed on the ground that the assessment was a “windfall” because the respondent was benefiting not only from the increase in the value of the new house, but also from the gain in the value of the old house. The Court of Appeal allowed the appeal, deducting from the amount awarded at trial the carrying costs of the $130,000 mortgage for six months, notional interest earned on the $75,000, and legal costs on closing. The respondent`s cross-appeal against the disallowance of legal and appraisal fees was also allowed.

Held: The appeal should be dismissed.

Per Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.: While specific performance should not be granted as a matter of course absent evidence that the property is unique, this case was dealt with by the parties throughout on the assumption that specific performance was an appropriate remedy, and this appeal should thus be disposed of on that basis. A party who is entitled to specific performance is entitled to elect damages in lieu thereof. Damages are normally assessed at the date of breach in the case of breach of contract for the sale of goods. The rationale for this rule is that if the innocent purchaser is compensated on the basis of the value of the goods as of the date of breach, the purchaser can turn around and purchase identical or equivalent goods. Given the flexibility of the rule at common law as to the date for the assessment of damages, it would not be appropriate to insist on applying the date of breach as the assessment date when the purchaser of a unique asset has a legitimate claim to specific performance and elects to take damages instead. It is not inconsistent with the rules of the common law to assess damages as of the date of trial. The rationale that the innocent purchaser is fully compensated if provided with the amount of money that would purchase an asset of the same value on the date of the breach no longer applies where the claim for specific performance has been maintained until the commencement of the trial. Moreover, the claim for specific performance revives the contract to the extent that the defendant who has failed to perform can avoid a breach if at any time up to the date of judgment, performance is tendered. In the circumstances of this case, the appropriate date for the assessment of damages is the date of trial. The increase in value of the respondent’s residence which he retained when the deal did not close should not be deducted from the amount of damages awarded. If the respondent had received a decree of specific performance, he would have had the property contracted for and retained the amount of the rise in value of his own property. Since there was no cross‑appeal with respect to the deductions made by the Court of Appeal, they are not at issue here.

Per La Forest J.: Sopinka J.’s proposed disposition of this case was agreed with. The circumstances giving rise to entitlement to specific performance or generally the interpretation that should be given to the legislation authorizing the award of damages in lieu of specific performance should not be dealt with, however, in view of the assumption on which the case was argued.

Cases Cited

By Sopinka J.

Referred to: 306793 Ontario Ltd. in Trust v. Rimes (1979), 1979 1845 (ON CA), 25 O.R. (2d) 79, leave to appeal refused, [1979] 2 S.C.R. xi; Leeds Industrial Co-operative Society, Ltd. v. Slack, [1924] A.C. 851; Wroth v. Tyler, [1974] 1 Ch. 30; Johnson v. Agnew, [1980] A.C. 367; Mavretic v. Bowman, [1993] 4 W.W.R. 329; Adderley v. Dixon (1824), 1 Sim. & St. 607, 57 E.R. 239; Roberto v. Bumb, [1943] O.R. 299; Kloepfer Wholesale Hardware and Automotive Co. v. Roy, [1952] 2 S.C.R. 465; Nepean Carleton Developments Ltd. v. Hope, [1978] 1 S.C.R. 427; Chaulk v. Fairview Construction Ltd. (1977), 14 Nfld. & P.E.I.R. 13; Asamera Oil Corp. v. Seal Oil & General Corp., [1979] 1 S.C.R. 633; McNabb v. Smith (1981), 124 D.L.R. (3d) 547.

Statutes and Regulations Cited

Chancery Amendment Act, 1858 (U.K.), 21 & 22 Vict., c. 27.

Courts of Justice Act, R.S.O. 1990, c. C.43, s. 99.

Authors Cited

McGregor on Damages, 13th ed. By Harvey McGregor. London: Sweet & Maxwell, 1972.

APPEAL from a judgment of the Ontario Court of Appeal (1994), 19 O.R. (3d) 479, 39 R.P.R. (2d) 215, 73 O.A.C. 295, allowing an appeal and cross‑appeal from a decision of Corbett J. awarding damages in lieu of specific performance. Appeal dismissed.

John Swan and Barbra H. Miller, for the appellants.

Martin Sclisizzi and Orlando Da Silva, for the respondent.

The following are the reasons delivered by

1 La Forest J. -- I have had the advantage of reading the reasons of my colleague, Justice Sopinka, and I agree with his proposed disposition in the circumstances of this case. However, given the assumption under which the case was argued, I prefer not to deal with the circumstances giving rise to entitlement to specific performance or generally the interpretation that should be given to the legislation authorizing the award of damages in lieu of specific performance. In considering modification to existing law, both these interdependent factors may well require examination, and the arguments in this case were not made in those terms.

The judgment of Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ. was delivered by

2 Sopinka J. -- This appeal concerns the principles that apply in awarding damages in lieu of specific performance. The appellant vendor refused to close a transaction for the sale of residential property to the respondent purchaser. The latter sued for specific performance and, in the alternative, damages in lieu thereof. At the commencement of the trial, the respondent elected the latter. Subsequent to the date fixed for closing, property values rose. If the closing date is the date on which damages are assessed, the respondent would not recover the increase in the value of the property he agreed to purchase. If, however, damages are assessed as of the date of trial, the question is whether the respondent is entitled to recover not only this increase but also to retain the increase in value of the residence which the respondent owned at the time of the agreement of purchase and sale and which was not sold as a result of the aborted transaction.

I. Facts

3 In August 1986, the respondent purchaser agreed to buy a house under construction in the Toronto area from the appellant vendor Sinnadurai Paramadevan for $205,000, with a closing date of October 31, 1986. To finance the purchase, the respondent was going to pay $75,000 cash, plus $130,000 which he was going to raise by mortgaging his current house. The respondent negotiated a six-month open mortgage, so that he could close the deal on the new house and then sell his old one at an appropriate time in the six months following closing. Before the closing date, the appellant vendor reneged and in December 1986, title to the house was taken by the appellant Blossom Paramadevan. The respondent stayed in his old house, which was worth $190,000 in the fall of 1986, and $300,000 at the time of the trial.

4 The respondent sued the appellants for specific performance or damages in lieu thereof and put a caution on the title. At the time of trial, the market value of the property was $325,000. The respondent elected to take damages rather than specific performance and on December 5, 1990, Corbett J. of the Ontario Court of Justice (General Division) awarded him $120,000, that being the difference between the purchase price he had agreed to pay and the value of the property at the time of trial. The appellants appealed to the Court of Appeal for Ontario on the ground that the assessment was a “windfall” because the respondent was benefiting not only from the increase in the value of the new house, but also from the gain in the value of the old house. The respondent cross-appealed against the disallowance of legal and appraisal fees. On June 17, 1994, the Court of Appeal allowed the appeal and the cross-appeal: (1994), 19 O.R. (3d) 479, 39 R.P.R. (2d) 215, 73 O.A.C. 295.

II. Judgments Below

A. Ontario Court of Justice (General Division)

5 Corbett J. concluded that she was bound by the decision of the Ontario Court of Appeal in 306793 Ontario Ltd. in Trust v. Rimes (1979), 1979 1845 (ON CA), 25 O.R. (2d) 79 (leave to appeal refused, [1979] 2 S.C.R. xi):

In this case, we have evidence of various reference points with respect to the measure of damages, the first being the difference between the contract price and the value which is $120,000. This measure of damages was expressly adopted in 306793 Ontario Limited in trust v. Rimes. . . .

The Court held that adopting the learned trial judge’s approach would not be giving a true alternative to specific performance and that the true loss was the difference between the original purchase price and the reasonable estimate of the value at the date of trial. . . .

This approach, although it was criticized . . . is still the law in Ontario today at this time.

6 Corbett J. examined the respondent’s proposed assessment of damages which consisted of “a calculation of the increase in value of property between the date fixed for closing and the date of trial less the cost to gain the benefit of the increased value. He took the market value of the subject property, deducted the purchase price, deducted the carrying costs of the $130,000 mortgage for six months being $6,716.04”. Corbett J. found that the respondent “would have sold his own property in order to finance the acquisition of the subject property and, therefore, had obtained the $130,000 mortgage open for six months”. Corbett J. then found that the respondent “further deducted notional interest earned by [him] on the $75,000 which he was going toput as part of the purchase price from his own money, being $30,000 less and he deducted legal costs on closing of $2,473.75 for a net amount of damages of $80,810.21”. Corbett J. pointed out that this approach was specifically rejected by the Court of Appeal’s decision in Rimes “which is binding upon me”.

7 Corbett J. stated that:

There is no question that to award damages on the basis of the Rimes case does result in a windfall to the plaintiff. I considered other methods of calculating the damages. For example, if the contract had been carried out, the purchaser would today be the owner of a house worth $325,000 rather than having a property worth $300,000. It would not in my view be unreasonable to calculate the loss on this basis at $25,000.

I also considered a method which has less appeal than the above method, namely that the difference in the increase in value of the defendant’s property when compared with the plaintiff’s property might be considered. The rise in the plaintiff’s property was from $190,000 to $300,000, namely $110,000 and the defendant’s increased by $115,000. The defendant therefore experienced a greater increase in value which put the damages at $5,000.

Corbett J. added that she

might have been inclined on the facts of this case to consider that specific performance was not an appropriate remedy and to assess damages as I have indicated on some other basis. However, there is no sufficient jurisprudence for me to adopt that approach, but I will set out reasons why the question presented itself on the facts of this case.

First of all, the subject property was not unique. It was a building lot under construction which would be interchangeable in all likelihood with any number of others. Second, there is no evidence in this case that the plaintiff did look for other residences or other dwellings. Third, the plaintiff in this case was going to finance the purchase with the sale of his own dwelling so that he continued to have his own dwelling in order to assist in the purchase of the property. Fourth, the plaintiff has retained his own property and received the benefit of the increase in value of that house. Fifth, both of the parties to this transaction were sophisticated dealers in real estate.

Corbett J. concluded that:

There is no question that to award damages on the basis of the Rimes case does result in a windfall to the plaintiff. . . .

I am constrained to follow the Rimes case so long as specific performance is a lawful remedy when Agreements of Purchase and Sale are not concluded or are, in the circumstances of this case, wrongfully not concluded.

I therefore find that I must award damages in the amount of the difference between the contract price and the value given close to trial; namely $120,000.

B. Ontario Court of Appeal (1994), [19 O.R. (3d) 479](https://www.canlii.org/en/on/onca/doc/1994/1994canlii1194/1994canlii1194.html)

8 Austin J.A., for the court, reviewed the decision in Rimes and concluded that “[t]hose are not the facts of the case now before the court” (p. 481). Austin J.A. stated that the object of an award of damages for breach of contract was to “put the injured party into the position in which he would have been had the contract been performed, in so far as that is possible by the payment of money” (p. 482). Austin J.A. concluded that the appellants’ proposal that the respondent be awarded $10,000, that being the difference between the increase in the value of the new house and the increase in value of the old house, “would achieve little, if any, of this objective” (p. 482). Austin J.A. then considered the respondent’s alternative assessment (explained above in the review of the trial decision) and concluded (at p. 482) that:

The trial judge rejected this approach because of Rimes. This case, however, like most damage claims, turned on its own peculiar facts. This alternative approach attempts to track the events as the trial judge found they would have unfolded, and attempts to put the purchaser, to the extent that money can do it, in the position he would have been had the sale closed. In light of the trial judge’s findings of fact, the alternative approach comes closer to the compensatory goal than does the approach followed by the trial judge.

In addition to the foregoing sum [$80,810.21], the purchaser is entitled to out-of-pocket expenses of $673.75 for legal fees and $250 for appraisal fees. These items were dealt with by the trial judge, but seem to have been omitted from the formal judgment.

In the result I would allow both the appeal and the cross-appeal. I would amend para. 1 of the judgment by striking out the figure $120,000 and substituting therefor the figure of $81,733.96.

III. Issue

9 What principles apply to the assessment of damages in lieu of specific performance and, further, how do those principles apply to the facts of this case?

IV. Analysis

10 The trial judge expressed reservations about the propriety of an award of specific performance in this case. While I share those reservations and will return to the question as to the circumstances under which specific performance is an appropriate remedy, this appeal should be disposed of on the basis that specific performance was appropriate. The case was dealt with by the parties in both courts below and in this Court on the assumption that specific performance was an appropriate remedy.

11 A party who is entitled to specific performance is entitled to elect damages in lieu thereof. The jurisdiction to award damages in lieu of specific performance was conferred on the Court of Chancery by The Chancery Amendment Act, 1858 (U.K.), 21 & 22 Vict., c. 27 (known as Lord Cairns’ Act). Although the Act was repealed, in Leeds Industrial Co-operative Society, Ltd. v. Slack, [1924] A.C. 851, the House of Lords established that the jurisdiction to award damages in lieu of specific performance was maintained. This jurisdiction exists as part of the law of Ontario by virtue of the Courts of Justice Act, R.S.O. 1990, c. C.43, s. 99, which provides:

99. A court that has jurisdiction to grant an injunction or order specific performance may award damages in addition to, or in substitution for, the injunction or specific performance.

12 Lord Cairns’ Act permits damages to be awarded in some circumstances in which no claim for damages could be entertained at common law. See Leeds, supra, and Wroth v. Tyler, [1974] 1 Ch. 30, at p. 57. In cases in which damages could also be claimed at common law, the principles generally applicable are those of the common law. In Johnson v. Agnew, [1980] A.C. 367, at pp. 400-401, Lord Wilberforce stated that:

(2) The general principle for the assessment of damages is compensatory, i.e., that the innocent party is to be placed, so far as money can do so, in the same position as if the contract had been performed. Where the contract is one of sale, this principle normally leads to assessment of damages as at the date of the breach -- a principle recognised and embodied in section 51 of the Sale of Goods Act 1893. But this is not an absolute rule: if to follow it would give rise to injustice, the court has power to fix such other date as may be appropriate in the circumstances.

13 The rationale for assessing the damages at the date of breach in the case of breach of contract for the sale of goods is that if the innocent purchaser is compensated on the basis of the value of the goods as of the date of breach, the purchaser can turn around and purchase identical or equivalent goods. The purchaser is therefore placed in the same financial situation as if the contract had been kept.

14 Different considerations apply where the thing which is to be purchased is unique. Although some chattels such as rare paintings fall into this category, the concept of uniqueness has traditionally been peculiarly applicable to agreements for the purchase of real estate. Under the common law every piece of real estate was generally considered to be unique. Blackacre had no readily available equivalent. Accordingly, damages were an inadequate remedy and the innocent purchaser was generally entitled to specific performance. Given the flexibility of the rule at common law as to the date for the assessment of damages, it would not be appropriate to insist on applying the date of breach as the assessment date when the purchaser of a unique asset has a legitimate claim to specific performance and elects to take damages instead (see Wroth v. Tyler; Johnson v. Agnew; and Mavretic v. Bowman, [1993] 4 W.W.R. 329). The rationale that the innocent purchaser is fully compensated, if provided with the amount of money that would purchase an asset of the same value on the date of the breach, no longer applies. This disposition would not be a substitute for an order of specific performance. The order for specific performance may issue many months or even years after the breach. The value of the asset may have changed.

15 Moreover, the claim for specific performance revives the contract to the extent that the defendant who has failed to perform can avoid a breach if at any time up to the date of judgment, performance is tendered. In cases such as the one at bar, where the vendor reneges in anticipation of performance, the innocent party has two options. He or she may accept the repudiation and treat the agreement as being at an end. In that event, both parties are relieved from performing any outstanding obligations and the injured party may commence an action for damages. Alternatively, the injured party may decline to accept the repudiation and continue to insist on performance. In that case, the contract continues in force and neither party is relieved of their obligations under the agreement. As is elaborated in McGregor on Damages (13th ed. 1972), at p. 149:

Where a party to a contract repudiates it, the other party has an option to accept or not to accept the repudiation. If he does not accept it there is still no breach of contract, and the contract subsists for the benefit of both parties and no need to mitigate arises. On the other hand, if the repudiation is accepted this results in an anticipatory breach of contract in respect of which suit can be brought at once for damages . . . .

Thus, the claim for specific performance can be seen as reviving the contract to the extent that the defendant who has failed to perform can avoid a breach if, at any time up to the date of judgment, performance is tendered. In this way, a claim for specific performance has the effect of postponing the date of breach.

16 For all of these reasons, it is not inconsistent with the rules of the common law to assess damages as of the date of trial. It must be remembered that the rules of the common law did not contemplate awarding damages as a substitute for specific performance. The rules of the common law must be applied in light of the statutory imperative contained in s. 99 of the Courts of Justice Act. The damages that are awarded must be a true substitute for specific performance. This point is forcefully made by Megarry J. in Wroth v. Tyler. In that case, the purchaser had contracted for the purchase of a house for £6,000. The vendor defaulted. On the closing date, the property was worth £7,500. As of the date of trial the property was worth £11,500. In assessing damages as of the date of trial, Megarry J. stated, at p. 58:

On the wording of the section, the power “to award damages to the party injured, . . . in substitution for such . . . specific performance,” at least envisages that the damages awarded will in fact constitute a true substitute for specific performance. Furthermore, the section is speaking of the time when the court is making its decision to award damages in substitution for specific performance, so that it is at that moment that the damages must be a substitute. The fact that a different amount of damages would have been a substitute if the order had been made at the time of the breach must surely be irrelevant. In the case before me, I cannot see how £1,500 damages would constitute any true substitute for a decree of specific performance of the contract to convey land which at the time of the decree is worth £5,500 more than the contract price.

At p. 59 Megarry J. added:

Yet on principle I would say simply that damages “in substitution” for specific performance must be a substitute, giving as nearly as may be what specific performance would have given. [Emphasis added.]

17 This was also the basis upon which Rimes was decided by the Ontario Court of Appeal. The reasons for judgment of MacKinnon A.C.J.O. cite Wroth v. Tyler with approval, pointing out that that case was not overruled by Johnson v. Agnew, supra. I agree with that observation. In Johnson v. Agnew, Lord Wilberforce, speaking for the House of Lords, concluded that in view of the flexibility of the common law rule with respect to the date for the assessment of damages to which I have referred, the view taken by Megarry J. in Wroth v. Tyler was consistent with the common law.

18 I therefore conclude that, in the circumstances of this case, the appropriate date for the assessment of damages is the date of trial as found by the trial judge. Technically speaking, the date of assessment should be the date of judgment. That is the date upon which specific performance is ordered. For practical purposes, however, the evidence that is adduced which is relevant to enable damages to be assessed will be as of the date of trial. It is not usually possible to predict the date of judgment when the evidence is given.

19 The difference between the contract price and the value “given close to trial” as found by the trial judge is $120,000. I would not deduct from this amount the increase in value of the respondent’s residence which he retained when the deal did not close. If the respondent had received a decree of specific performance, he would have had the property contracted for and retained the amount of the rise in value of his own property. Damages are to be substituted for the decree of specific performance. I see no basis for deductions that are not related to the value of the property which was the subject of the contract. To make such deductions would depart from the principle that damages are to be a true equivalent of specific performance.

20 This approach may appear to be overly generous to the respondent in this case and other like cases and may be seen as a windfall. In my opinion, this criticism is valid if the property agreed to be purchased is not unique. While at one time the common law regarded every piece of real estate to be unique, with the progress of modern real estate development this is no longer the case. Residential, business and industrial properties are all mass produced much in the same way as other consumer products. If a deal falls through for one property, another is frequently, though not always, readily available.

21 It is no longer appropriate, therefore, to maintain a distinction in the approach to specific performance as between realty and personalty. It cannot be assumed that damages for breach of contract for the purchase and sale of real estate will be an inadequate remedy in all cases. The common law recognized that the distinction might not be valid when the land had no peculiar or special value. In Adderley v. Dixon (1824), 1 Sim. & St. 607, 57 E.R. 239, Sir John Leach, V.C., stated (at p. 240):

Courts of Equity decree the specific performance of contracts, not upon any distinction between realty and personalty, but because damages at law may not, in the particular case, afford a complete remedy. Thus a Court of Equity decrees performance of a contract for land, not because of the real nature of the land, but because damages at law, which must be calculated upon the general money value of land, may not be a complete remedy to the purchaser, to whom the land may have a peculiar and special value.

22 Courts have tended, however, to simply treat all real estate as being unique and to decree specific performance unless there was some other reason for refusing equitable relief. See Roberto v. Bumb, [1943] O.R. 299 (C.A.), at p. 311; Kloepfer Wholesale Hardware and Automotive Co. v. Roy, [1952] 2 S.C.R. 465; Nepean Carleton Developments Ltd. v. Hope, [1978] 1 S.C.R. 427, at p. 438. Some courts, however, have begun to question the assumption that damages will afford an inadequate remedy for breach of contract for the purchase of land. In Chaulk v. Fairview Construction Ltd. (1977), 14 Nfld. & P.E.I.R. 13, the Newfoundland Court of Appeal (per Gushue J.A.), after quoting the above passage from Adderley v. Dixon, stated, at p. 21:

The question here is whether damages would have afforded Chaulk an adequate remedy, and I have no doubt that they could, and would, have. There was nothing whatever unique or irreplaceable about the houses and lots bargained for. They were merely subdivision lots with houses, all of the same general design, built on them, which the respondent was purchasing for investment or re-sale purposes only. He had sold the first two almost immediately at a profit, and intended to do the same with the remainder. It would be quite different if we were dealing with a house or houses which were of a particular architectural design, or were situated in a particularly desirable location, but this was certainly not the case.

Specific performance should, therefore, not be granted as a matter of course absent evidence that the property is unique to the extent that its substitute would not be readily available. The guideline proposed by Estey J. in Asamera Oil Corp. v. Seal Oil & General Corp., [1979] 1 S.C.R. 633, with respect to contracts involving chattels is equally applicable to real property. At p. 668, Estey J. stated:

Before a plaintiff can rely on a claim to specific performance so as to insulate himself from the consequences of failing to procure alternate property in mitigation of his losses, some fair, real and substantial justification for his claim to performance must be found.

A similar position has been taken by the British Columbia Supreme Court in McNabb v. Smith (1981), 124 D.L.R. (3d) 547, at p. 551.

23 The trial judge was of the view in this case that the property was not unique. She stated that, “It was a building lot under construction which would be interchangeable in all likelihood with any number of others.” Notwithstanding this observation, she felt constrained by authority to find that specific performance was an appropriate remedy. While I would be inclined to agree with the trial judge as to the inappropriateness of an order for specific performance, both parties were content to present the case on the basis that the respondent was entitled to specific performance. The case was dealt with on this basis by the Court of Appeal. In the circumstances, this Court should abide by the manner in which the case has been presented by the parties and decided in the courts below. In future cases, under similar circumstances, a trial judge will not be constrained to find that specific performance is an appropriate remedy.

24 This takes me to the deductions made by the Court of Appeal. While I have some reservations about the propriety of these deductions, there was no cross-appeal by the respondent with respect to the award of damages. No argument was presented with respect to these deductions. My reservations relate to the basis upon which the Court of Appeal distinguished Rimes. In this regard, the Court stated (at p. 481):

Those are not the facts of the case now before the court. In this case, the purchaser is not a shell and the trial judge found that the evidence established what probably would have happened had the transaction closed.

25 On my reading of the reasons of MacKinnon A.C.J.O. in Rimes, the principal reason for deciding not to deduct the carrying charges was that to do so would be inconsistent with adopting the date of trial as the assessment date. I am not convinced that there is an inconsistency but would prefer not to express any further opinion on the question inasmuch as there is no cross-appeal and these matters are not in issue here.

26 The Court of Appeal added out-of-pocket expenses of $673.75 for legal fees and $250 for appraisal fees, amounts which were apparently inadvertently omitted from the judgment at trial. There was no dispute about these items.

Disposition

27 In the result, the appeal is dismissed with costs.

Appeal dismissed with costs.

Solicitors for the appellants: Aird & Berlis, Toronto.

Solicitors for the respondent: Borden & Elliot, Toronto.