Court File and Parties

COURT FILE NO.: CV-21-00672755-0000 DATE: 2022-09-14 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: DOUGLAS EDWARD POLLARD, Plaintiff AND: JAYE PERRY, Defendant

BEFORE: VELLA J.

COUNSEL: Gregory Weedon, for the Plaintiff Matthew Harris, for the Defendant

HEARD by Videoconference: September 6, 2022

ENDORSEMENT

[1] I heard this motion for summary judgment, brought by the plaintiff, Douglas Edward Pollard, on September 6, 2022.

[2] At the conclusion of submissions, I rendered judgment in favour of Mr. Pollard in the sum of $140,886.11 and a declaration that the defendant, Ms. Perry, breached the agreement of purchase and sale she entered into with Mr. Pollard. I advised that reasons would follow.

[3] I also heard submissions with respect to costs and reserved on the issue of costs.

[4] These are the reasons for judgment, and my decision with respect to costs.

Background and Positions of the Parties

[5] The following facts are undisputed.

[6] Briefly, the plaintiff and defendant entered into an agreement of purchase and sale on June 21, 2021, at approximately 6:23 p.m., for the property municipally known as 10 Golfview Drive, Collingwood, Ontario. The listing price was $995,000. The sale price agreed to was $1,050,000.00. Mr. Pollard was represented by his real estate agent, Guy Griffith, throughout.

[7] The APS provided, amongst other things, that it was irrevocable after 8:00 p.m. on June 21, 2021. A deposit of $50,000 was to be paid by the defendant by June 22, 2021 at 6:23 p.m. Time was stipulated to be of the essence. The closing date was set for September 17, 2021.

[8] The APS was unconditional.

[9] Ms. Perry quickly determined that she could not pay the purchase price. Accordingly, on June 22, 2021 she, through her real estate agent, requested an extension of time to close and to make the APS conditional on financing. Ms. Perry was also unwilling to pay the deposit unless the purchase price was reduced by $100,000.

[10] Mr. Pollard refused to accept the proposed amendments, noting that the APS was unconditional. The deposit was not paid, and Mr. Pollard accepted the repudiation of the APS and terminated the deal.

[11] Upon termination, Mr. Griffith approached a prospective buyer who had submitted an offer to purchase the property in the sum of $950,000 at the time Ms. Perry had submitted her offer. However, that prospective buyer was no longer interested in the property.

[12] Accordingly, the real estate agent re-listed the property on the multiple listing services and kept the marketing website advertising the property active.

[13] The listing price was $1,100,000.00.

[14] After receiving no activity, Mr. Griffith recommended that the price be lowered to the original listing price of $995,000. The price was changed.

[15] After nearly 20 days had passed, an offer was received from Mr. Lister and Ms. Fortier on July 19, 2021 for $900,000 with a closing date of October 26, 2021. The offer was conditional on the sale of the purchasers' current property. The APS provide that Mr. Pollard could continue to market the property for sale and in the event that another offer was provided by a third party, the purchasers had the option of waiving the condition and matching the subsequent offer, or terminating the transaction.

[16] On August 20, 2021, a competing offer was received from Mr. Brown and Ms. Hawkins. This offer was for $910,000 with a closing date of October 27, 2021.

[17] Lister and Fortier declined to match, and the Brown and Hawkins' offer was accepted.

[18] The Brown-Hawkins' transaction closed on October 27, 2021.

[19] Ms. Perry no longer denies liability. Rather, she submits that fairness and equity should not require her to pay $140,866.11 in damages because she promptly disclosed her inability to close the transaction, and Mr. Pollard failed to mitigate adequately his damages by failing to leave the property on the market for a longer period of time.

[20] Ms. Perry also submits that Mr. Pollard has not proven what the fair market value of the property was (to establish with the mitigation effort was reasonable) and by not leaving the property on the market longer, Mr. Pollard sold the property at a lower price that he might have received had he left the property on the market.

[21] Had Mr. Pollard followed Ms. Perry's strategy he would have had to reject the two offers he received after Ms. Perry's repudiation of the APS.

[22] The parties agree that this matter is suitable for summary judgment. The defendant concedes liability and that she breached the APS. There are no material facts in dispute and no issues of credibility to resolve. The defendant, however, requests that this matter be referred for an assessment as to the damages in light of her mitigation defence.

Analysis

[23] Dealing with the first issue raised by Ms. Perry. Contrary to her submission, Mr. Pollard has produced uncontested evidence of the market value of the property. That evidence is in the form of the various offers received for the property and the ultimately accepted offer from Brown and Hawkins. The best evidence as to the market value of a property is the price that an independent third-party purchaser is willing to pay to the vendor (Scott v. Farjani, [2021] ONSC 1996 at para 44; Victorian Homes (Ontario) v. DeFrietas et al, [1991] 16 R.P.R. (2nd) 55, at para 55).

[24] There is no suggestion that Mr. Pollard manipulated the price paid by Brown and Hawkins such as to depress it or the property's value. There is no suggestion that Mr. Pollard had any prior relationship with Brown and Hawkins that may have caused him to enter into an improvident or below market deal either.

[25] I note that only the defendant, Ms. Perry, offered to pay a price that was above the original listing price of $995,000. The competing offer by the other prospective buy at the time, 1430850 Ontario Limited, was for $950,000. Furthermore, the price the property sold for is about 9% under the asking price.

[26] I also note that when Mr. Pollard re-listed the property at $1,100,000, he received no offers, though he only left the property listed at that price for a relatively short period of time. He then, on the advice of his real estate agent, Mr. Griffith, reduced the price to the original listed price of $995,000. That prompted two separate offers that were both below the listing price, including the offer ultimately accepted (after negotiation) approximately 2 months after the failed APS transaction with Ms. Perry.

[27] There is no evidence offered by Ms. Perry to suggest that the market value of the property was not in or around $910,000 at the time the Brown-Hawkins' transaction was negotiated or that Mr. Pollard did anything to compromise the market value of the property.

[28] There is also no evidence offered by Ms. Perry to suggest that had Mr. Pollard waited, he would have likely received a better offer.

[29] I am satisfied on the evidence that the purchase price of $910,000 as procured through the Brown-Hawkins' transaction was the market value of the property at the time of sale.

[30] The burden of proof lies on Ms. Perry to demonstrate that Mr. Pollard has failed to mitigate his damages (Southcott Estates Inc. v. Toronto Catholic School Board, 2012 SCC 51, [2012] 2 S.C.R. 675, at paras 24-25). Put another way, Ms. Perry must show that she has a good chance of proving that Mr. Pollard did not take reasonable steps to mitigate his damages.

[31] There is absolutely no evidence from Ms. Perry challenging the reasonableness of the steps Pollard took, through his real estate agent, in marketing the property or in negotiating the sale price of $910,000 with Mr. Brown and Ms. Hawkins.

[32] The suggestion that had Mr. Pollard waited longer, he may have received a better offer is entirely speculative and not supported in the evidence.

[33] Mr. Pollard relied on the advice of his real estate agent, Mr. Griffiths (both of whom filed affidavits and were cross examined). It was reasonable for Mr. Pollard to do so in terms of mitigating his damages.

[34] The fact that Ms. Perry promptly advised Mr. Pollard of her intention to not complete this transaction does not reduce her liability for the damages sustained by Mr. Pollard as a result of her repudiation of the APS, subject to Mr. Pollard's duty to mitigate.

[35] As Phillips J. observed in Briscoe-Montgomery v. Kelly, 2014 ONSC 4240, at para 21, the fact that the price the vendor, in a failed real estate transaction, was ultimately able to successfully secure was lower than the price negotiated with the prior defaulting purchaser, only shows that the housing market "can be fickle and inconsistent".

[36] There was nothing untoward or unreasonable about Mr. Pollard's decision to place the property back on the market promptly and then accepting a reasonable offer. Mr. Pollard could have decided to accept the first, slightly lower, offer he received but instead negotiated a term of the first offer that allowed him to keep the property on the market to try to attract a better offer, which he subsequently did. This is evidence that he took his obligation to mitigate seriously and acted diligently in discharging that obligation.

[37] In addition, the steps Mr. Pollard took, through his real estate agent, to originally sell the property were repeated upon the re-listing of the property albeit initially at a higher listing price which suggests that Mr. Pollard was looking to wholly mitigate his damages if possible.

[38] Mr. Pollard is entitled to the shortfall in the original sale price realized as a result of Ms. Perry's repudiation of the APS. I am satisfied that Mr. Pollard discharged his duty to mitigate.

[39] Finally, I am satisfied that the plaintiff has proven his out-of-pocket damages in the sum of $886.11, by way of carrying costs over the 28-day period between the original failed closing date and the subsequent closing date. These carrying costs were not challenged by Ms. Perry.

Conclusion and Disposition

[40] Accordingly, there is no genuine issue raised that requires a trial. I am satisfied that the summary procedure process provides for a fair and just adjudication of the case. I am able to make the necessary findings of fact, based on the evidence before me, and to apply the law without the need to resort to the enhanced fact-finding powers under r. 20.04(2.1) and (2.2). A summary judgment is the proportionate response in this matter, and the expense and delay of a trial is not warranted or necessary in order for me to reach a fair and just result (see, generally, Hryniak v. Mauldin, [2014] S.C.J. No. 7, 2014 SCC 7 (S.C.C.), and Briscoe-Montgomery at paras 17-18).

[41] Therefore, a declaration will issue, on consent, that Ms. Perry breached the APS she entered into with Mr. Pollard. As well, damages are ordered in favour of the plaintiff in the sum of $140,866.11 plus prejudgment interest and post judgment interest under the Courts of Justice Act, R.S.O. 1990, c. C.43.

Costs

[42] At the conclusion of the motion, I heard submissions as to costs. Of relevance, Mr. Pollard served a r. 49 offer which he beat.

[43] I am satisfied that Mr. Pollard is entitled to his costs of the motion and proceeding on a partial indemnity basis up to the delivery of the r. 49 offer, and costs on a substantial indemnity basis thereafter.

[44] Mr. Pollard seeks costs, on the above basis, in the sum of $23,674.22, all inclusive.

[45] Ms. Perry's cost outline reflected partial indemnity ($9,176) and substantial costs ($11,726) that are about half of those sought by Mr. Pollard.

[46] Ms. Perry submits that the costs sought are "a little high". This ended up being a fairly straight forward matter, and was not complex either in terms of the facts and evidence, or the law.

[47] Mr. Pollard points out that he carried the initial burden to prove his claim and damages, and that Ms. Perry maintained a defence on both liability and damages until she conceded liability in her factum. By then the motion materials and cross examinations of two witnesses had already occurred and Mr. Pollard had already delivered his factum which addressed liability, damages, and the duty to mitigate.

[48] The amount in question was $140,866.11 which is a significant amount to Mr. Pollard.

[49] Having regard to the factors under r. 57.01, and the principles of indemnity, proportionality and the reasonable expectations of the losing party (Boucher v. Public Accountants Council for the Province of Ontario, 2004 CanLII 14579 (ON CA), [2004] O.J. No. 2634, 71 O.R. (3d) 291 (Ont. C.A.) that inform the exercise of my discretion, I am fixing costs, on a partial indemnity basis of up the delivery of the r. 49 offer and substantial indemnity thereafter at $20,000.00, all inclusive, payable by Ms. Perry to Mr. Pollard.

[50] Mr. Weedon may submit a draft judgment reflecting this ruling, on notice to Ms. Perry's lawyer, Mr. Harris, to my judicial assistant.

Justice S. Vella

Date: September 14, 2022