Boyd v. Steele, 2025 ONSC 1340

COURT FILE NO.: CV-22-90820
DATE: 2025/02/28
ONTARIO SUPERIOR COURT OF JUSTICE

RE: Andrew Boyd, as Litigation Guardian for Ann Boyd – Plaintiff
v.
Elizabeth Steele – Defendant

BEFORE: Sylvia Corthorn
COUNSEL: Jonathan P.M. Collings, for the Plaintiff
Richard J. Payne, for the Defendant
HEARD: August 6, 2024 (By videoconference, with additional written submissions received in September 2024)

Endorsement

Introduction

[1] In this Simplified Procedure action, the plaintiff seeks damages arising from a failed real estate transaction. In September 2022, the defendant was unable to fulfill her contractual obligation to purchase the plaintiff’s residential property (“the Property”) for the agreed upon price of $885,000. The plaintiff ultimately sold the Property for $830,000.

[2] The plaintiff claims damages of $56,917. That amount is comprised of the following components:

• Difference in purchase price: $55,000
• Additional carrying costs: $471
• Legal fees (failed transaction): $1,446

[3] The defendant acknowledges that the plaintiff is entitled to reasonable damages. The defendant alleges that the plaintiff sold the Property for an unreasonably low price and therefore failed to mitigate her damages.

[4] The defendant forfeited her $25,000 deposit, as was required pursuant to the terms of the Agreement of Purchase and Sale between the parties (“the Agreement”). The defendant does not dispute the plaintiff’s entitlement to the additional carrying costs and the legal fees incurred for the failed transaction. The defendant’s position is that the plaintiff’s damages are more than adequately addressed by the defendant’s forfeiture of the $25,000 deposit (which amount the plaintiff has received).

[5] The parties agree that there is no genuine issue requiring a trial; the matter may be determined by motion for summary judgment.

The Issues

[6] In support of her claim for damages, the plaintiff relies on an affidavit from her real estate agent (“the McAfee affidavit” and “Mr. McAfee”, respectively). Mr. McAfee was the plaintiff’s real estate agent for both the original listing and the re-listing of the Property following the defendant’s breach of her contractual obligation.

[7] The parties disagree as to the category of witnesses into which Mr. McAfee falls. The plaintiff asks the court to treat Mr. McAfee as a participant expert and accept his evidence without a Form 53 acknowledgment of expert’s duty. The defendant submits that the McAfee affidavit includes opinion evidence. The defendant asks the court to exclude the opinion evidence of Mr. McAfee because the plaintiff did not comply with Rule 53.

[8] The court must therefore determine the following preliminary issue: Is Mr. McAfee a participant expert?

[9] The substantive issues to be determined are:

1. Did the plaintiff fail to mitigate her damages?
2. In what amount are the plaintiff’s damages assessed?

[10] I start with the preliminary issue regarding Mr. McAfee’s potential status as a participant expert.

Preliminary Issue – Mr. McAfee’s Status as a Witness

[11] The McAfee affidavit, sworn in February 2024, contains 19 paragraphs and, with exhibits, is 63 pages long. In his affidavit, Mr. McAfee:

• provides a summary of his career prior to becoming a realtor and during his eight years as a realtor;
• sets out the history of the listing for the Property, the offers received and rejected, and the June 2022 offer from the defendant (“$885,000”) accepted by the plaintiff; and,
• addresses the steps taken to re-list and sell the Property after the plaintiff was informed by the defendant that she was unable to finance the purchase of the Property.

[12] For the following reasons, Mr. McAfee falls within the category of a participant expert.

[13] First, Mr. McAfee has “special skill, knowledge, training or experience” within the meaning of Westerhof v. Gee Estate, 2015 ONCA 206, para 60. Not only did Mr. McAfee have six years of experience as a realtor in 2022, when he was involved in the listing and re-listing of the property. He had specific knowledge of and experience in residential real estate in Kanata, Ontario, where the Property is situated.

[14] Second, Mr. McAfee was not retained by the plaintiff after the sale of the Property to express opinions regarding what had transpired. His evidence, including his opinions where expressed, are based on his “observation of or participation in the events at issue”: see Westerhof, at para. 60. For example, Mr. McAfee explains the dynamics of the residential real estate market during the relevant period (spring, summer, and fall of 2022). As another example, Mr. McAfee compares the Property to other properties in the same area of Kanata. He does so to explain the basis for his recommendations over time regarding the listing price for the Property.

[15] Third, Mr. McAfee formed his opinion regarding the listing price and whether offers should be accepted or rejected “as part of the ordinary exercise of his skill, knowledge, training and experience when observing or participating” in the events at issue: see Westerhof, at para. 60.

[16] Mr. McAfee’s evidence about the steps taken to re-list and sell the Property, after the defendant failed to close, is admissible as the evidence of a participant expert.

Issue No. 1 – The Defence of Failure to Mitigate

a) Background

[17] The Agreement is dated June 13, 2022. The original closing date stipulated therein is September 1, 2022. At the defendant’s request, and in accordance with the terms of the Agreement, the closing date was extended to September 29, 2022. The Amended Agreement of Purchase and Sale, stipulating the revised closing date, is dated August 11, 2022.

[18] On August 24, 2022, the defendant’s solicitor informed the plaintiff’s solicitor that the defendant (a) was unable to secure the financing she required to close the transaction, and (b) would not be in a position to close the transaction or to fulfil her obligations pursuant to the Amended Agreement of Purchase and Sale.

[19] In response, and again through the parties’ respective solicitors, the plaintiff informed the defendant that she was in anticipatory breach of the Amended Agreement of Purchase and Sale. On August 29, 2022, the defendant waived tender for the transaction.

[20] At paragraphs 7 to 17 of his affidavit, Mr. McAfee discusses the steps taken between late August and mid-October 2022 to re-list and sell the Property. Those steps include the following steps:

• Listing the Property initially at $885,000 and later at $889,000;
• Receiving (and rejecting) six offers ranging from $775,000 to $825,000; and
• On September 22, 2022, agreeing to sell the Property for $830,000 with a closing date of October 12, 2022.

[21] In his affidavit, Mr. McAfee describes that the Ottawa market, including Kanata, had “softened” between June 2022 (when the plaintiff accepted the defendant’s offer) and September 2022 (when the plaintiff was again trying to sell the Property). Mr. McAfee explains that, as a result of the softened market, properties were both selling for less and remaining on the market longer than they had been in the spring and early summer of 2022.

[22] The only evidence upon which the defendant relies regarding the issue of mitigation of damages is the following three paragraphs from her responding affidavit:

17. I do not think that the vendor took reasonable steps to obtain the best price for the home and that if they had listed it sooner they would have realized a higher price.
18. There were similar homes sold and closed on the same street in the same timeframe at much higher values ($100,000.00 to $200,000.00) more than what the Plaintiff settled for.
19. As a result, it is my views that the vender has suffered very little in the way of damages aside from what has been compensated for by the forfeiture of the deposit.

[23] The defendant does not rely on evidence from her realtor or from an expert retained for the purpose of this proceeding.

[24] The defendant did not cross-examine Mr. McAfee on his affidavit. The defendant also did not cross-examine Andrew Boyd on his affidavit (“the Boyd affidavit”). The Boyd affidavit includes minimal evidence regarding the re-listing and sale of the Property in the late summer and early fall of 2022. The vast majority of the evidence on which the plaintiff relies regarding mitigation of damages is found in the McAfee affidavit.

b) Analysis

[25] The onus is on the defendant to prove that the plaintiff’s efforts to mitigate her damages were unreasonable: 100 Main Street Ltd. v. W.B. Sullivan Construction Ltd.. The evidence upon which the defendant relies (i.e., the three paragraphs quoted above from her affidavit) is given no weight whatsoever.

[26] The defendant chose not to cross-examine either Mr. McAfee or Mr. Boyd. The defendant chose not to attempt, or obtain, through cross-examination, admissions, acknowledgements, or other evidence that might detract from the credibility or reliability of one or both of Mr. McAfee and Mr. Boyd.

[27] The defendant has not met her onus regarding the defence of failure to mitigate. I reject that defence. All that remains to be determined are the damages to which the plaintiff is entitled.

Issue No. 2 – Assessment of the Plaintiff’s Damages

[28] Based on Mr. McAfee’s evidence, I find that the plaintiff acted in a timely and reasonable manner in her efforts to re-list and sell the Property after being informed that the defendant would be unable to close on September 29, 2022. Within less than a month after being so informed, the plaintiff entered into an Agreement of Purchase and Sale with the ultimate purchaser of the Property. The Property was sold, and the transaction completed, within six weeks of the defendant informing the plaintiff that she was unable to secure the financing she required to fulfil her obligations pursuant to the Agreement.

[29] Leaving aside the alleged failure to mitigate (not so found in any event), there is no evidence to support a finding that the damages claimed are in any way unreasonable.

[30] The plaintiff’s damages are assessed in the total amount of $56,917.

Disposition

[31] The plaintiff’s motion for summary judgment is granted. The defendant shall pay the plaintiff a total of $56,917 in damages.

[32] The defendant is entitled to a credit for the $25,000 deposit forfeited and released to the plaintiff, pursuant to a court order, in the latter half of 2024.

[33] The plaintiff is entitled to pre-judgment interest pursuant to the Courts of Justice Act, RSO 1990, c C.43.

[34] There is no evidence before the court of the amount of pre-judgment interest accrued as of the date of this endorsement. The date on which the $25,000 was released to the plaintiff is relevant to the calculation of pre-judgment interest.

[35] Given the modest monetary amounts involved, the court encourages the parties to agree upon the amount of pre-judgment interest accrued and to which the plaintiff is entitled.

[36] The plaintiff is also entitled to post-judgment interest pursuant to the Courts of Justice Act.

Costs

[37] As the successful party on the motion for summary judgment, the plaintiff is presumptively entitled to her reasonable costs of the motion and the action. There is nothing arising from the substantive decision that leads me to conclude that the presumption in that regard has been rebutted. The plaintiff is entitled to her reasonable costs of the motion and the action.

[38] The plaintiff requests that costs be awarded on the partial indemnity scale in the amount of $16,768 (fees, disbursements and HST).

[39] The defendant asks the court to consider the quantum involved, her March 2024 offer (release of the $25,000 deposit and transfer of the action to the Small Claims Court), and the partial indemnity costs of $5,920 (fees, disbursements, and HST) particularized in the defendant’s costs outline.

[40] The damages claimed and awarded are in excess of the $50,000 monetary jurisdiction of the Small Claims Court. The release of the $25,000 and the credit to the defendant for that amount do not bring the action within the jurisdiction of the Small Claims Court. The plaintiff acted reasonably by proceeding with her claim in this court under the Simplified Procedure.

[41] The hourly rate charged by the plaintiff’s lawyer is reasonable given his level of experience. That said, a less experienced lawyer could have handled the litigation. The litigation was not complex and did not require a lawyer with more than 15 years’ experience. The plaintiff is within her right to retain an experienced lawyer. The exercise of that right does not necessarily entitle the plaintiff to costs arising from that choice.

[42] The number of hours docketed on the file is excessive. For example, more than 14 hours were docketed for correspondence and telephone communications and more than 4.5 hours to address undertakings.

[43] I fix the plaintiff’s fees at $9,000 on the partial indemnity scale. To that amount, I add HST of $1,170. The disbursements claimed in the amount of $1,670 (incl. HST) are reasonable.

[44] The defendant shall pay the plaintiff her costs, on the partial indemnity scale, fixed in the amount of $11,840 inclusive of fees, disbursements and applicable HST.

Sylvia Corthorn
Date: February 28, 2025