REASONS FOR JUDGMENT

A plaintiff deprived of an investment property does not have a ‘fair, real, and substantial justification’ or a ‘substantial and legitimate’ interest in specific performance unless he can show that money is not a complete remedy because the land has ‘a peculiar and special value’ to him.

Southcott Estates Inc. v. Toronto Catholic District School Board, 2012 SCC 51, [2012] 2 SCR 675, at para 41 [citations omitted].

[1] In this one sentence in the Southcott case, the Supreme Court of Canada has set out the entire controversy raised in this case: was the residential property that was the subject of an aborted agreement between the parties of “peculiar and special value” to the disappointed purchaser, or was it a business purchase and a matter of money alone?

I. The transaction and relevant background

[2] The basic facts established in the course of this one-week trial are not in dispute. In fact, for the most part they are set out by the parties in an Agreed Statement of Facts and can be summarized as follows:

On June 8, 2017, the Plaintiff and Defendants entered into an Agreement of Purchase and Sale pursuant to which the Plaintiff agreed to purchase and the Defendants agreed to sell the residential property municipally known as 3680 Westney Road, Pickering, Ontario (the “Property”) for $1,620,000.00 (the “APS”).
That same day, Xiu Song Lin (“Mr. Lin”), who was then the sole director and officer of the Plaintiff, along with his son, Chang Cai Lin (“Blanc”), and the Plaintiff’s real estate agent, Samuel Zhou (“Samuel”), met with the Defendants and their real estate agent, Jey Paramanathan (“Jey”), at the Property.
The Property is approximately 10 acres in size with a home of over 3000 square feet, built in 1987.
The Defendants were at all material times the registered owners and residents of the Property. They had purchased the Property on November 4, 2013.
Mr. Lin remained the sole officer and director until August 7, 2019, when Blanc became the Plaintiff’s director and officer.
The shares of the Plaintiff are owned by four companies, being 2575940 Ontario Inc., 2426772 Ontario Inc., 9675507 Canada Inc. and 10321044 Canada Inc. Each of these companies is owned or controlled by one of Mr. Lin’s adult children or the spouse of one of his children who are Canadian citizens and/or residents.
The Plaintiff paid a $75,000 deposit in accordance with the terms of the APS. The check was payable to Homelife/Future Realty Inc. (“Homelife”), the brokerage firm for which Jey works.
The APS was conditional on the Plaintiff obtaining financing and arranging for an inspection of the Property. Both Conditions were waived by the Plaintiff when Samuel emailed to Jey a waiver of the conditions dated June 9, 2017 (the “Waiver”). As a result of the timely delivery of the Waiver, the APS became binding on June 10, 2017.
There were no subsequent amendments to the APS.
On June 10, 2017, the Defendant, Markandu Vijaykumar, sent the following text message to Jey:

Hi Jey

Due to our family situation we have no place to move and our

children doesn’t want to move from this house therefore we have

decided not to sell this house plz

To the buyer agent

Thank you

On June 11, 2017, at 12:23 p.m., Jey sent an email to Samuel acknowledging receipt of the Waiver.
On July 18, 2017, the Plaintiff obtained mortgage approval from the Industrial and Commercial Bank of China (Canada) (“ICBC”) as financing for the purchase of the Property. Mr. Lin and Blanc both signed the letter of offer for the banking facility as personal guarantors on behalf of the Plaintiff.
On July 24, 2017, ICBC’s appraiser attended at and inspected the Property. The Defendant, Mathivathana Vijayakumar (“Mr. Vijayakumar”), was at home at the time of the appraiser’s attendance at the Property and permitted him to enter. The ICBC appraisal valued the Property at $1,510,000.00 as of July 24, 2017.
On August 4, 2017, the lawyer for the Defendants, Sukhjinder Bhangu (“Bhangu”), sent a letter intended for the Plaintiff’s real estate lawyer, Diana Young (“Young”), in which he took the position that the conditions had not been waived in the time frame specified in the APS and, accordingly, the APS was null and void. Ms. Young wrote to Bhangu in response and confirmed that acceptance of the APS was June 8, 2017, at 9:45 p.m., which was acknowledged by Samuel on the Defendants’ behalf and was within the time frame allowed in the APS.
On August 15, 2017, the Plaintiff closed on the purchase of another property at 12301 Keele Street in Vaughan, Ontario for the purchase price of $1,475,000.
In or about late August/early September 2017, the Plaintiff paid the land transfer tax in or about the amount of $29,075.00, in connection with the APS.
On September 1, 2017, the Plaintiff caused a Caution of Agreement of Purchase and Sale to be registered on title to the Property.
On September 7, 2017, ICBC sent Instructions to its solicitor, Betty S.F. Lai (“Lai”), requesting that Ms. Lai complete the mortgage transaction and which confirmed ICBC’s agreement to provide a mortgage of $1,300,000.00 to the Plaintiff as mortgagor.
On September 21, 2017, Young sent a fax transmission marked “Urgent” to Bhangu in which she wrote that she had been informed by her client that Bhangu’s client had refused to schedule a re-visit appointment at the Property despite the APS permitting up to three visits by the Plaintiff.
On September 27, 2017, the day before the closing date, Young sent a fax marked “Urgent” to Bhangu in which she wrote:

Further to our telephone conversation, we have been advised by your office that we will receive documents from your office in the next 10 minutes. It has now almost 2 hours passed and we have yet receive anything from your office. Please note our client will attend to the property prior to closing for an outside re-visit. This shall not be considering as trespassing. Furthermore, our client request to holdback $100,000.00 after closing for any necessary damage or repair.

The Plaintiff was ready, willing, and able to close on September 28, 2017. The transaction did not close.
On September 29, 2017, Bernadette Chan of Young’s office wrote to Lai to ask that the mortgage funds, which had been sent to Lai, be returned to ICBC.
On April 26, 2018, the Plaintiff brought a motion for summary judgment seeking an order for specific performance to compel the Defendants to sell the Property to the Plaintiff. The summary judgment motion was heard by Justice Nakatsuru who concluded that there was a genuine issue for trial as it related to the purpose for which the Plaintiff wished to use the Property (for personal or for investment use).
Between 2011 and 2020, Mr. Lin owned a property located at 5357 Lismic Boulevard.
On March 28, 2019, Mr. Lin purchased from Blanc a property located at 14 Laureleaf Road, Markham, Ontario.
Mr. Lin, who was born in China, visited China for approximately three months in 2018, and then returned to Canada. He returned to China in or about the summer of 2019 and has not returned to Canada since that time.

[3] One more point about the Agreed Statement of Facts is called for. The final paragraph of that document declares: “The Plaintiff no longer seeks specific performance and seeks damages as its remedy.” The document is dated March 24, 2022 – i.e. four days before the commencement of the trial. This addition to the Agreed Facts followed on the heels of a March 15, 2022 email from Plaintiff’s counsel to Defendants’ counsel stating that damages would be the sole remedy sought by the Plaintiff at trial. That email was, in turn, followed up with another email from Plaintiff’s counsel to Defendants’ counsel dated March 27, 2022. In this subsequent message, Plaintiff’s counsel advised that both specific performance and damages (in the alternative) will be pursued after all.

[4] Defendants’ counsel submits that the Plaintiff is bound by the signed Agreed Facts and cannot withdraw an admission like this only a day before the opening of trial. In doing so, he relies on the Court of Appeal’s decision in Charter Building Company v. 1540957 Ontario Inc. (Mademoiselle Women’s Fitness & Day Spa), 2011 ONCA 487. There the Court explained, at para 30, that in circumstances similar to the case at bar a plaintiff can chose to either hold the breaching party to the contract or accept the breaching party’s repudiation and pursue monetary compensation for the breach. As Epstein JA noted, at para. 27, “Once made, the election is binding and cannot be changed.”

[5] On the other hand, Justice Epstein explained, at para. 15, that the rational for this strict approach to an election of remedy for breach of contract is to ensure that one party can rely on the other party’s decision that is “consciously and unequivocally” made. The sign of such a conscious and unequivocal election, according to Justice Epstein, at para. 30, is the party “pursuing a course of action that is inconsistent with the existence of the contract”. That kind of action cannot later be retracted.

[6] Counsel for the Plaintiff argues that here there was no such course of action taken. The Plaintiff commenced its action within weeks of the Defendant’s breach and claimed specific performance. The principals of the Plaintiff refrained from pursuing other properties in mitigation as they would have done had they accepted the Defendants’ repudiation, and consistently stood by their specific performance claim. Counsel explains that neither Blanc nor Mr. Lin are native English speakers – Blanc testified at trial through a Mandarin language interpreter – and, unfortunately, there was a last minute, pre-trial miscommunication between them and their counsel on this issue. In other words, it was an inadvertent error rather than an unequivocal and conscious expression of the party’s will.

[7] Most importantly, the last minute change from specific performance to damages was not acted upon. The Plaintiff did nothing to otherwise change its position a week before trial, and the Defendants were equally unphased by the change. Both sides were engaged in final preparation for trial, all expert reports had been produced and reciprocal disclosure of evidence had long been made. Nothing about the statement by the Plaintiff that it was suddenly only seeking damages changed the parties’ preparation or prejudiced them in any way.

[8] Accordingly, I will disregard the last paragraph of the Agreed Statement of Facts.

II. The Plaintiff’s intention

[9] As indicated above, a summary judgment motion was brought by the Plaintiff and was heard by Nakatsuru J. in 2018. His Honour dismissed the motion, and determined that there was a significant issue of credibility going to remedy that could not be determined on the basis of a paper record. In doing so, he suggested, although did not state explicitly, that there was no doubt about the Defendants’ liability.

[10] The salient passages of Justice Nakatsuru’s reasons for decision, 2018 ONSC 2757, at paras 10-12, are as follows:

a) Is there a genuine issue requiring a trial?

[10] I find that there is a genuine issue for trial. Looking at the whole of the evidence led on this motion, there is a significant credibility issue that can only be resolved by a trial.

[11] Specific performance will only be granted if the plaintiff can demonstrate that the subject property is unique in the sense that a substitute is not readily available. There are two lines of inquiry to assess uniqueness. One focuses on the subjective and objective qualities of the land. The other on whether damages would be an adequate remedy for the plaintiffs in light of their proposed use. A good exposition of the law is found in the case of Gillespie v. 1766998 Ontario Inc., 2014 ONSC 6952, 247 A.C.W.S. (3d) 714. Therefore, the proposed use of a property is indispensable to the test for specific performance: see Southcott Estates Inc. v. Toronto Catholic District School Board 2012, SCC 51, [2012] 2 S.C.R. 675 at para. 41.

[12] On this motion, a key issue is whether Mr. Lin wants the subject property for his family, including some members of this extended family, or for investment Mr. Lin has given evidence both in his affidavit and under cross-examination, that he wanted the property for family use. It is this issue for which his credibility is so significant. While specific performance may be granted even if Mr. Lin's intended purpose for the house is as an investment property, Mr. Lin's intended purpose has to be determined before the test for specific performance can be applied. Therefore, the proposed use of a property is indispensable to the test for specific performance: see Southcott Estates Inc. v. Toronto Catholic District School Board 2012, SCC 51, [2012] 2 S.C.R. 675 at para. 41.

[11] In identifying the one and only issue for trial as a remedy issue, it stands to reason that Justice Nakatsuru viewed liability as being decided in the Plaintiff’s favour. I find that there is no doubt that the Defendants breached the APS and had no rightful reason to do so. The APS was binding on all parties, and the Plaintiffs were in funds and were ready, willing, and able to close. The Defendants simply backed out of the deal for no legally valid reason. The Plaintiff deserves to be made whole. The question is how to do so.

[12] As Nakatsuru J. observed, the real issue here is whether the remedy for breach of the APS is damages or specific performance. To make the Plaintiff whole, does it deserve money or the Property? That question, according to the Supreme Court, turns on the Plaintiff’s intention in contracting for the Property in the first place. And that, according to Justice Nakatsuru once again, turns on an assessment of credibility.

[13] Blanc testified that the Property was attractive to the Plaintiff as a family residential/recreational home. Although he conceded that Mr. Lin has gone back and forth between China and Canada, he testified that the plan was for his parents to have a large Canadian home that could accommodate long and short-term visits by his several children and many grandchildren. It was Blanc’s testimony that in his family’s Chinese culture, having a spacious family compound where all can gather, even if they each have their own houses elsewhere, plays a very important social role, and that the Property perfectly fit the bill for that kind of collective use.

[14] As against this testimony by Blanc, counsel for the Defendants emphasizes four pieces of evidence: a) the Plaintiff is a corporate purchaser which is, in turn, owned by four other corporations; b) Mr. Lin is a property developer in China who does not maintain a residence in Canada; c) testimony by the Defendant, Mathivantha Vijayakumar (“Ms. Vijayakumar”), that Blanc had described the property to her as a “good investment”; and d) the Plaintiff’s lender, ICBC, recorded on its internal form that the borrower was making an “investment” in the property.

[15] Although these points are to an extent interrelated, they will each be considered in turn.

III. Business property or unique purchase?

[16] Turning first to the corporate structure of the Plaintiff, Defendants’ counsel makes much of the fact that the Plaintiff is not only a corporation whose shareholders are also corporations, but that all of the corporations are numbered companies. The optics of this, according to Defendants’ counsel, is very business-like rather than personal.

[17] Blanc specifically addressed this point in his testimony. He explained that the corporate structure was recommended by the family’s accountant for estate planning purposes. He elaborated that the accountant advised that holding the property in corporate names meant would ease any tax issues for the family upon his father’s eventual death.

[18] As far as the corporate naming convention is concerned, Blanc was not asked in either his examination in chief or in cross-examination why he and his family members had used numbers instead of names for their holding companies. That said, in suggesting that there is something corporate rather than personal about using numbered companies, Defendants’ counsel is being entirely speculative; moreover, he seems to ignore the realities of estate planning and the Plaintiff’s family of shareholders.

[19] Blanc testified through a Mandarin language interpreter and, when asked why his father did not appear to testify, indicated that there were logistical difficulties with his father being in China. Mr. Lin would not only have had to be accompanied by someone more adept than him at operating a computer but would have had to locate an interpreter to accompany him in what would have been the small hours of the morning local time. In other words, the family is not English speaking. It is little wonder that in incorporating Ontario companies, they opted for the linguistically easier approach of number names instead of trying to think up names that worked in English and Mandarin.

[20] Defendants’ second point is that although the Property was supposedly bought by Mr. Lin as a residential property, Mr. Lin does not maintain a Canadian residence. He resides in China and is active in land development in his home country. Defendants’ counsel submits that this reality of Mr. Lin’s life is indicative of the Property having been purchased as a business investment, and not as a family residence.

[21] Blanc testified that the Property was purchased not as a full-time residence, but as a recreational residence to be used as often as time would permit. Mr. Lin had incorporated the Plaintiff in April 2016 when he and Blanc began thinking about buying a property for the family. At that point, Mr. Lin had been in Canada for an extended period of time. Blanc took over as director of the Plaintiff in March 2019, a year and a half after the aborted closing and shortly before his father’s return to China. Blanc explained that his father had planned on returning to Canada later that same year, but the COVID-19 pandemic arose in China earlier than in Canada, and the travel restrictions accompanying the pandemic prevented Mr. Lin from returning as he had planned.

[22] Blanc accompanied his father on each visit to the property, and indicated that they were struck by the fact that the house is spacious with four stories, two kitchens, a large backyard, and what Blanc described as a “fantastic view”. He testified that overall the Property impressed him like “a pretty girl that you fall in love with and want to marry.”

[23] Although Mr. Lin is in the real estate development business in China, he is not in business in Canada. Moreover, what is striking is not so much what the evidence contains but what it does not contain – that is, any indication that Mr. Lin, Blanc, or anyone else on behalf of the Plaintiff did even the most rudimentary investigation that would ordinarily accompany a business investment in the Property.

[24] Blanc testified that they were aware of the fact – as anyone visiting the Property would be – that it was located near the edge of Ontario’s “green belt” and might one day be an area where subdivision development might occur. In fact, the Homelife listing of the Property, prepared by the Defendant’s real estate agent, Jey – describes it as a “very good investment property” and as “future development land”. The idea of the Property being purchased as a business investment was obviously in the Defendants’ mind as a marketing approach when they listed it for sale.

[25] But there is no credible evidence demonstrating that either Blanc or Mr. Lin or any other member of the Plaintiff’s family of shareholders actually viewed it that way. They never met with the city building department or any municipal officials, never consulted a land use planner, never investigated the feasibility of subdivision approval, never explored the rental income potential of the Property while holding it, never inquired as to the development or improvement costs of converting a single-family home to an income property, never inspected the region’s official plan, never made inquiries about the local council’s track record on development approval, never explored the availability of contractors, etc. For a businessman engaged in real estate development, Mr. Lin apparently approached this purchase in a decidedly unbusiness-like way.

[26] The investigation that Mr. Lin and Blanc did conduct – inspecting the Property for its size, comfort, and aesthetic rural setting – was entirely consistent with Blanc’s testimony that it was to be a recreational residence for the extended family. Indeed, Blanc went on to testify that he was pleased that the Property had sufficient open grounds for his family to install a mini-golf course, which he said he had planned for Mr. Lin’s grandchildren. In totality, the evidence does not support a suggestion that Mr. Lin was looking for somewhere new to do business or even to park his business and investment funds; rather, it supports Blanc’s view that the Lin family was looking for somewhere to park itself.

[27] The one statement that the Defendants say suggests otherwise was relayed by Ms. Vijayakumar in her testimony. She indicated that during their hour-long visit to the Property on June 8, 2017, she held a conversation with Blanc in the kitchen of the house, and that during that brief conversation Blanc had told her that he thought the Property was a “good investment”. Defendants’ counsel submits that this amounts to an admission by the Plaintiff’s representative that the Property was in reality being purchased as a business proposition.

[28] In my view, Ms. Vijayakumar’s testimony on this point is not credible. In the first place, it is altogether too convenient that Blanc, who otherwise barely spoke with her, would have told her the one thing she needed to hear to make her case on damages. It also happened to be the very thing that her own real estate agent had said about the Property in drafting the listing.

[29] Most importantly, Ms. Vijayakumar’s testimony is contradicted by her real estate agent himself. Jey testified that he was present for the entire visit on June 8, 2017. He described the back-and-forth between the parties and indicated that Blanc and his father were in their car and relayed questions through him to Mr. and Ms. Vijayakumar. It was Jey’s evidence that no face-to-face conversation between Blanc and Ms. Vijayakumar ever took place in the kitchen of the house.

[30] Jey’s view is, in my assessment, an objective one and I accept it as accurate. I conclude that Blanc never told either of the Defendants that the Plaintiff was buying the Property as an investment.

[31] Moreover, to describe the Property as a “good investment” is to say little to nothing about the purpose of buying it or the intention of the Plaintiff as purchaser. In a rising real estate market, all property purchases are an “investment” in some sense of that term. The fact that a person considers their home to be a “good investment” in the ordinary way that expression is used does not mean that the home does not have, in the Supreme Court’s words, “a peculiar and special value” to the homeowner. It certainly does not make a home purchase into a commercial venture.

[32] There is a distinct difference between a residential property being a good investment and a property being purchased as an investment property. In the Homelife listing, Jay said the Property was a very good investment, but at the same time he described its special features and homelike comforts: “fully upgraded house with kitchen granite countertop and backsplash, centre island, skylight, basement partly finished (walkout).” It was obvious to the Defendants’ agent, as it is to me, that a purchaser who buys a house can consider it to be a long-term investment without taking away from the fact that the purchaser has a special attachment to the house and is not buying it as a business purchase.

[33] While the litigation context sometimes causes parties to seize on a particular word or expression and give it a hyper-inflated value, that is not appropriate here. The evidence is that if the Lin family considered the Property to be a good long-term investment, that was in the context of their having found what they considered to be an ideal family compound for themselves. One might describe an attractive family property the way Blanc did – as something so attractive that you “fall in love with and want to marry”; but it would be incongruous to describe a business investment in that way.

[34] Defendants’ counsel points out that the Plaintiff had obtained mortgage approval for the purchase of the Property from the ICBC, and that on the ICBC’s internal documentation it was noted that, “The borrower is holding the land for appreciation”. In Defendants’ counsel’s closing submissions, this statement was heavily emphasized, as if it amounts to a smoking gun proving the Defendants’ case.

[35] I note that the very same bank document also states that the Property will be Mr. Lin’s “future principal residence”. This combination of attributes – a personal residence that the Plaintiff is hoping will appreciate in value over the long run – does not contradict Blanc’s testimony. Indeed, it confirms it.

[36] Clarence Cho, the manager of the ICBC’s commercial banking department, testified at trial that this combination of features was consistent with the bank’s policy of evaluating residential loans in terms of the property’s future value. Accordingly, the bank’s evaluation document states: “New acquisition of property for personal resort and clarified as investment purpose as per policy of the Bank.”

[37] Although written in shorthand, I take the bank’s statement to confirm that the Property was being purchased for personal, not business, use, with the added benefit of its being a good investment for long-term appreciation in value. This, then, supports Blanc’s testimony that the Property was uniquely suited to the Purchaser’s needs – it was large enough and scenic enough for the extended family to use as a “personal resort”, and was a good long-term deployment of the family’s money which was to be their collective inheritance from Mr. Lin.

IV. The availability of specific performance

[38] In Matthew Brady Self Storage Corporation v. InStorage Limited Partnership, 2014 ONCA 858, at para 36, the Court of Appeal in effect encapsulated this description of a property uniquely suited to an extended family’s recreational compound. The Court emphasized the unique aspects of the transaction in assessing whether or not an award of specific performance is appropriate:

The following passage from the Sharpe text, at paras. 7.210 and 7.220, is instructive:

Where the subject-matter of the contract is ‘unique’, a strong case can be made for specific performance. The more unusual the subject-matter of the contract, the more difficult it becomes to assess the plaintiff’s loss…

An award of damages presumes that the plaintiff's expectation can be protected by a money award which will purchase substitute performance. If the item bargained for is unique, then there is no exact substitute.

[emphasis in original]

[39] As the Court of Appeal pointed out in John E. Dodge Holdings Limited v. 805062 Ontario Limited, 2003 5213, at para 38, there is both a subjective and objective aspect to the uniqueness analysis. Subjectively, there must be some “personal connecting factors” making this particular property special to the claimant; objectively, a reasonable person must be able to conclude once familiar with the property that it is unique: Gillespie v 1766998 Ontario Inc., 2014 ONSC 6952, at para 104.

[40] The word “unique” must be read in the realistic light of the property context from which the case emerges. Thus, the court expounded in 1252668 Ontario Inc. v. Wyndham Street Investments Inc., [1999] OJ No 3188, at para. 23 (SCJ) that it…

…[does] not consider that the plaintiff has to demonstrate that the Premises are unique in a strict dictionary sense that they are entirely different from any other piece of property. It is enough, in my view, for the plaintiff to demonstrate that the Premises have a quality that makes them especially suitable for the proposed use and that they cannot be reasonably duplicated elsewhere.

[41] The evidence supports the conclusion that the Plaintiff would have been hard put to find duplicated elsewhere the features of the Property that attracted it in the first place. In coming to this conclusion, I have taken into account the Supreme Court of Canada’s warning in Southcott, supra,, at para 41, that, “A plaintiff deprived of an investment property does not have a ‘fair, real, and substantial justification’ or a ‘substantial and legitimate’ interest in specific performance unless he can show that money is not a complete remedy because the land has ‘a peculiar and special value’ to him” [citations omitted]. But in that case, unlike the case before me, the disappointed purchaser “was engaged in a commercial transaction for the purpose of making a profit. The property’s particular qualities were only of value due to their ability to further profitability”: Ibid.

[42] The message of the courts at all levels in recent years has been that where a party engages in a commercial transaction with a view to earning income or making a profit, damages are the correct remedy: Modopoulos v. Hershberg, 2021 ONSC 2025, at para 68. On the other hand, where a property – including an investment property – is unique in the sense that a substitute is not readily available, specific performance remains the preferred remedy: 1954294 v. Gracegreen Real Estate Development Ltd., 2017 ONSC 6369.

[43] Again, it must be kept in mind that “uniqueness does not mean singularity or incomparability. Instead, it means that the property has a quality (or qualities) making it especially suitable for the proposed use”: Lucas v. 1858793 Ontario Inc. (Howard Park), 2021 ONCA 52, at para 74.

[44] As a final matter, I will make the observation that, with the exception of the apparent miscommunication with counsel the week before trial, the Plaintiff and its principals have acted consistently with their desire for specific performance. The Supreme Court acknowledged in Southcott, at para 37, that a disappointed purchaser with a genuine and justifiable claim for specific performance will act reasonably in refusing to purchase another property in mitigation of its loss.

[45] The Plaintiff here has maintained its claim for specific performance all along, has not looked for or purchased another recreational residence or family recreational compound as a substitute for the Property, and has not received its deposit back from the Defendants. All of this speaks to a consistency in seeking specific performance as its remedy.

[46] As both the Court of Appeal in Lucas, at para 95 and the Supreme Court in Southcott, at para 45, stated, the onus is on the Defendants to prove failure to mitigate or, in this context, that the Plaintiff has unreasonably failed to even attempt to mitigate its losses by purchasing another property. Under the circumstances, and given the unique suitability of this Property to the Plaintiff’s needs, the Defendants have failed to meet that onus.

[47] In the result, specific performance is the appropriate remedy for the Defendants’ breach of the APS.

V. Disposition

[48] I order that the APS be performed, with a closing date no more than 60 days from the date hereof. Any deposit paid by the Plaintiff shall be credited towards the purchase price in accordance with the APS.

[49] The Plaintiff is entitled to its costs. I would ask for Plaintiff’s counsel to email my assistant brief submissions within two weeks of today, and for Defendants’ counsel to email my assistant with equally brief submissions within two weeks thereafter.

Date: June 21, 2022 Morgan J.

9725440 Canada Inc. v. Vijayakumar, 2022 ONSC 3689

Case Summary

REASONS FOR JUDGMENT

I. The transaction and relevant background

II. The Plaintiff’s intention

III. Business property or unique purchase?

IV. The availability of specific performance

V. Disposition

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Legal Tests 1