CITATION: Baldwin et al v. Williams et al, 2025 ONSC 2851
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Kythe Baldwin and Deanna Lynn Baldwin
Plaintiffs
– and –
Nicholas Williams and Muntaz Boodoo
Defendants
Arkadi Bouchlev, Counsel, for the Plaintiffs
In-Person
HEARD: August 14, 2024
BEFORE: S. Lavine, J.
REASONS FOR DECISION RE SUMMARY JUDGMENT
1The plaintiffs, Kythe Baldwin and Deanna Baldwin, bring this motion for summary judgment in their claim against the defendants, Nicholas Williams and Muntaz Boodoo, for damages for breach of the agreement of purchase and sale of the plaintiffs’ house in Clarington (“the property”).
2The sale of the property to the defendants was not completed, and the defendants do not dispute that they were in breach of the agreement. The remaining issue is the damages that arise out of the defendants’ breach.
3The defendants were initially represented by counsel, Nikkita Sethi, who prepared the statement of defence. At some point, the defendants continued without counsel. Prior to the motion coming before me, the defendants had been strongly advised to obtain legal advice and to file responding affidavit evidence. When the motion first came before me, I granted the defendants an adjournment, as counsel, Jasmeet Dhaliwal, appeared and confirmed that the defendants were in the process of retaining him. On the return of the motion before me, the defendants appeared without counsel, but had filed a responding motion record. Both defendants made oral submissions, but mainly relied on their responding motion material.
The Factual Background
4The parties executed the agreement of purchase sale (“the APS”) on April 13, 2022. The purchase price was $1,275,000. The plaintiffs provided the $25,000 deposit towards the purchase price to the plaintiffs’ real estate brokers as required. The APS was unconditional with a completion date of July 28, 2022.
5Shortly before the closing date of July 28, 2022, the defendants’ solicitor, Bilal Anjum. wrote by email to the plaintiffs’ solicitor, Valentine Lovekin, and requested a two-week extension of the closing date, as the defendants had been unable to obtain the financing they needed to complete the purchase of the property. Mr. Lovekin advised Mr. Anjam that the plaintiffs were prepared to extend the closing date on the condition that the defendants provided an additional $50,000 deposit.
6Mr. Anjam responded that the defendants were unable to provide the further deposit, and further, that the defendants asked for a $175,000 abatement in the purchase price. The plaintiffs responded that they were not prepared to do so; that they were ready, willing and able to complete the sale in accordance with the terms of the APS; and that the defendants’ failure to do so would be a repudiation of the contract, for which the plaintiffs would seek damages. On July 27, 2022, the day prior to the closing, Mr. Anjam advised Mr. Lovekin by email that the defendants waived tender and would not be completing the purchase of the property. The sale did not close.
7There was no issue that the defendants were in breach of the APS. In an effort to resurrect the sale and avoid damages, the defendants proposed that they provide an additional $20,000 deposit, and that on closing, the plaintiffs accept a vendor-take back mortgage in the amount of $175,000, being the amount which the defendants said was the shortfall between their financing and the purchase price. The plaintiffs agreed to do so.
8On September 27, 2022, Mr. Anjam advised Mr. Lovekin by email that the defendants had not been able to secure a first lender, or enough funds, even with the $175,0000 vendor takeback mortgage. After receiving Mr. Anjam’s email, the plaintiffs relisted the property the following day for $1,279,000.
9On November 15, 2022, having received no offers, the plaintiffs lowered the listing price to $1,227,000. On February 18, 2023, having still not received an offer, the plaintiffs again lowered the price to $1,099,000. On February 28, 2023, the property sold for $985,000. The sale closed on April 1, 2023.
10The plaintiffs had moved out prior to listing the property. In late September and early October 2022, they moved back into the property and lived there until the sale of the property to the new buyers closed on April 1, 2023.
Position of the Parties
11The plaintiff seeks damages of $388,522.84. The most significant part of their damage claim is $290,000, being the difference between the $1,275,000 that the defendants had agreed to pay and the $985,000 which the plaintiffs ultimately received when they sold the property.
12The plaintiffs also claim consequential damages of approximately $48,000, comprised of their legal costs of the failed closing, and the costs which they incurred when they had to move back into and carry the property for an additional eight months.
13The plaintiffs further claim damages for a personal line of credit with a balance of $15,105.01 which they say they could not pay until the property eventually sold, and $41,250 in financing costs to build a home on vacant land that the plaintiffs owned on North Shore Road, in the Township of Algonquin Highlands, Haliburton (“the North Shore property”). Kythe Baldwin, in his affidavit, states that the plaintiffs incurred the additional financing costs to obtain a larger construction mortgage loan as they had less than they had expected after the sale of their Clarington home to build a house on the North Shore property.
14The plaintiffs urge that there are no issues with respect to damages that require a trial, and that the summary judgment process is the appropriate and proportionate process for the determination of damages in this case.
15The defendants advance two defences which they say require a trial. First, they allege that their real estate agent assured them that he would be able to arrange financing for them and that they expressly instructed their real estate agent to ensure that the APS was conditional on financing.
16Second, they allege that the plaintiffs failed to mitigate their damages. The defendants’ position is that the market did not fall as dramatically as the plaintiffs claim. The defendants argue that, had the plaintiffs listed the property at a lower price, the plaintiffs may have stimulated a bidding war which would have yielded an offer higher than the price at which they sold the property to the new purchasers.
17In the alternative, the defendants argue that the plaintiffs’ claim for damages for costs related to their personal line of credit and their construction mortgage loan are too remote, not foreseeable, and do not reasonably arise from their repudiation of the APS.
Analysis
18The general principles applicable to a summary judgment motion are not disputed. The court shall grant summary judgment if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence: see r. 20.04(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
19There will be no genuine issue requiring a trial when the judge “is able to reach a fair and just determination on the merits using the summary judgment process.” This will be the case when the process: “(1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result”: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 at para. 49.
20On a motion for summary judgment, the judge should first determine if there is a genuine issue requiring a trial based only on the evidence before him or her without using the fact-finding powers in subrule 20.04(2.1). If there appears to be a genuine issue requiring a trial, then the motion judge may, at his or her discretion: (1) weigh the evidence, (2) evaluate the credibility of a deponent, or (3) draw any reasonable inference from the evidence unless it is in the “interest of justice” for these powers to be exercised only at trial.
21All parties are obliged to put their best foot forward with respect to the existence or non-existence of material issues to be tried. The motion judge is entitled to assume that the evidentiary record is complete. See Moffitt v. TD Canada Trust, 2023 ONCA 349, 483 D.L.R. (4th) 432; Mazza v. Ornge Corporate Services Inc., 2016 ONCA 753, 62 B.L.R. (5th) 211 at para. 9.
22Even if the defendants’ allegations as to their agent’s assurances about financing, and his failure to make the APS conditional on financing were to be accepted, it would not afford a defence. Regardless, as the defendants acknowledge, they were in breach of the APS. The defendants have not brought a claim against their real estate agent.
23There is no dispute that that the plaintiffs suffered a loss as a result of the defendants’ repudiation of the APS. The onus then shifts to the “defendant to show, if they can, that if the plaintiff had taken certain reasonable mitigating steps the damages would be lower”. The duty to mitigate only requires the plaintiff “to take reasonable steps”, not all possible steps to reduce its loss. What is reasonable is a question of fact to be decided on the basis of all relevant market circumstances. See 100 Main Street Ltd. v. W.B. Sullivan Construction Ltd. (1978), 1978 CanLII 1630 (ON CA), 20 O.R. (2d) 401 (Ont. C.A.), at para. 73, application for leave to appeal refused.
24Where the plaintiff takes reasonable steps to sell the property to a third party in mitigation of damages, and there is nothing improvident about the sale, the difference between the two sale prices will be used to calculate the damages. In such circumstances, there is no need for the plaintiff to adduce expert evidence: 100 Main Street, at para. 80; Arista Homes (Richmond Hill) Inc. v. Rahnama, 2022 ONCA 759 at para. 9. See also Philp v. Osungade, 2024 ONSC 3064 at paras. 27-29, citing Cuervo-Lorens v. Carpenter, 2016 ONSC 4661 at para. 6, affirmed 2017 ONCA 109 at paras. 2-3, and Bang v. Sebastian, 2018 ONSC 6226 at paras. 44-47, affirmed 2019 ONCA 501.
25After the defendants breached the contract, the plaintiffs engaged in discussions with the defendants to assist them in purchasing the property to avoid having to re-list the property and sell it in a falling market. The plaintiffs were prepared to consider providing a vendor takeback mortgage loan of $175,000 to the defendants to make up what the defendants said was the shortfall between their financing and the purchase price. When the defendants advised that, even if the plaintiffs provided the vendor takeback mortgage, they could not proceed with the purchase, the defendants immediately re-listed the property on MLS at the same price with the same real estate agent. They lowered the price until the property sold at what undisputedly was an arm’s length sale to a third party.
26The plaintiffs’ listing real estate agent, Mirwan Eid, then at Belvista Realty, in his affidavit on this motion, explains that market conditions changed drastically from what had been described as an “all-time high” in early 2022 to the summer of 2022. Mr. Eid attributed the downturn in the market to increased interest rates and new legislation concerning the purchase of residential property by non-Canadians. Mr. Eid testified that when the property was re-listed, the plaintiffs were forced to drop the listing price twice as there were no offers and very few showings. Mr. Eid states that the offer of $985,000 was the only offer that the plaintiffs received, and in his opinion, if the plaintiffs had not accepted it, the property might have continued to languish. The defendants argue that Mr. Eid should not be accepted as an independent expert, as he was the listing agent, nor should any weight be placed on his evidence. While I would not rely upon Mr. Eid’s evidence as a Rule 53 expert, as the listing real estate agent, he was aware of the prevailing market conditions at the time. Notably, the defendants did not cross-examine Mr. Eid on his affidavit.
27It is common ground that the market fell significantly after the defendants agreed to purchase the property. The defendants’ position is that, while housing prices in Clarington declined after they entered in the APS, prices did not decline as dramatically as the plaintiffs state. It is, however, not sufficient for the defendants to simply assert that a listing at a lower price may have stimulated a bidding war and yielded a higher offer; or that the marketing of the property was insufficient. I am not prepared to infer that because the plaintiffs received only one offer after twice lowering the listing price that they failed to sufficiently market the property or take reasonable mitigating steps. The plaintiffs listed the property on MLS, with the same agent who had previously marketed the property successfully. The defendants did not cross-examine him. There is no issue that the sale was an arm’s length sale, nor is there any suggestion that the sale was improvident in any way. The defendants have not provided an expert report or professional opinion, or any evidence about the market value of the property. In short, the defendants have not tendered any evidence that the plaintiffs acted unreasonably in the sale process, or, importantly, that the property was undersold.
28A review of the authorities of this court makes clear that, on a summary judgment motion, the defendant must do more than merely rely on vague assertions that the property was sold to a new purchaser at below market value, or baldly assert that there were shortcomings in the sale process that would have impacted the sale price. See, for example, Philp, at paras 27-29, with respect to the damages claimed; Gamoff v. Hu, 2018 ONSC 2172, at para. 35.
29To satisfy their onus, the defendants had an obligation to put evidence before the court that, at the very least, would raise a genuine issue with respect to their assertion that the plaintiff failed to mitigate. For these reasons, the defendants have not satisfied me that there is a genuine issue requiring a trial with respect to a failure to mitigate by the plaintiffs. It therefore follows that the plaintiffs’ claim for damages can appropriately be determined by summary judgment.
30With respect to the damages claimed, the plaintiffs are therefore entitled to the difference between the purchase price, as agreed in the APS, and the ultimate sale price, being $290,000.
31In addition to damages for loss of bargain, it is well established that damages for breach of contract for a failed real estate transaction may also include consequential damages that reasonably flow from the purchaser’s failure to provide them with the closing funds on the scheduled closing date, including, for example, carrying costs of the property post-breach and costs associated with the relisting and re-sale of the property: Bang at paras. 53-60.
32When the defendants advised the plaintiffs in late September 2022 that they could not purchase the property, the plaintiffs moved back in and lived at the property, as it could not remain empty, until they sold it. The defendants do not take issue with the damages as claimed by the plaintiffs for the legal costs of the failed closing on July 28, 2022; the cost for the plaintiffs to move back into the property; and, the property taxes, insurance, utilities, and mortgage costs from August 1, 2022 to April 1, 2023, as set out in paras. 22-26 of the plaintiffs’ factum.
33I agree that, as the defendants argue, that the evidence with respect to the line of credit is insufficient, and that it is not reasonably foreseeable that they would be responsible for payment of the plaintiffs’ personal line of credit as a result of a repudiation of the APS.
34I further find, as the defendants argue, that the cost of the plaintiffs’ construction mortgage loan, entered into on July 13, 2023 is not a reasonably foreseeable consequence of the plaintiffs’ failure to provide the defendants with the closing funds on the scheduled closing date, nor was this claimed in the statement of claim.
35The defendants rely on the decision of Chown J. in Bonner v Gill, 2024 ONSC 3270, 172 O.R. (3d) 309, in which the plaintiffs were relying on the funds from the sale of their home to close the purchase of another property. When the defendants asked for a short extension to the closing date, the plaintiffs had to pay $75,000 to extend the closing on their purchase, or risk being exposed to claim for damages. In granting summary judgment to the plaintiffs for damages of $75,000, Chown J. explained why the particular circumstances in that case warranted damages to compensate the plaintiffs for payment of the $75,000 penalty, when the ‘usual measure’ of damages payable to a vendor when a transaction is repudiated is the loss on resale. As Chown J. observed, remoteness questions are resolved in the detailed facts of the cases in which they arise, and “balance concerns of compensation to those who suffer damages against those who cause them, while balancing concerns of unfair surprise to the defendant[.]” See Bonner at paras. 21-24.
36In my view, the circumstances in this case are distinguishable from Bonner. Importantly, Chown J. found that the plaintiff’s “election to pay $75,000 also eliminated the defendants’ exposure for other financing costs, storage, extra moving costs, short-term accommodation, or other consequential expenses.” Chown J. concluded that “it can be said that the payment of the $75,000 demand was in itself an effort to mitigate.”
37In the circumstances before me, unlike Bonner, and the cases referred to therein where damages were awarded, the plaintiffs did not have a contractual obligation that was placed in jeopardy, and that required payment of a penalty or bridge financing to avoid being in default, and being exposed to damages themselves. It was the plaintiffs’ decision to move forward with the construction of a new home for which they obtained financing in July 2023. In my view, the plaintiffs’ decision to do so at that time is too remote from the purchaser’s failure to provide them with the closing funds on July 28, 2022. In the particular circumstances of this case, I would not award damages as now asked on this motion for the plaintiffs’ construction mortgage.
38Accordingly, applying well-established principles for the assessment of damages when a purchaser breaches an agreement of purchase and sale of land, as set out above, the plaintiffs are entitled to their damages for loss of bargain of $290,000.00, their legal costs thrown away in relation to the aborted closing and the costs of carrying the property from the date of closing to the date of resale, as set out in the affidavit of Klythe Baldwin and the plaintiffs’ factum, at paras. 22-23 and 26-31, as follows:
loss of bargain for resale of the property $290,000
legal costs thrown away $1,547.08
cost of moving back into property $675.04
property taxes (August 1, 2022 to April 1, 2023) $4,190.99
utilities (August 1, 2022 to April 1, 2023) $6,894.41
home insurance (August 1, 2022 to April 1, 2023) $1,374.20
mortgage interest on open mortgage at 7.25% (July 28, 2022 to October 28, 2022) $10,199.52
mortgage interest on closed mortgage at 5.29% (October 28, 2022 to April 1, 2023) $19,959.14
prepayment fee to discharge mortgage on April 1, 2023 $10,087.20
39The parties agree that the $25,000 deposit is to be forfeited to the plaintiffs and shall be deducted from the damages awarded.
Conclusion
40For the foregoing reasons, the plaintiff’s motion for summary judgment against the defendants is granted and it is ordered that:
i. judgment against the defendants shall be in the amount of $319,927.58 (being the damages set out in paragraph 37 above, less the $25,000 deposit);
ii. the deposit of $25,000 that were provided by the defendants to Belvista Realty Inc. shall be forfeited and shall be paid to the Plaintiff’s forthwith.
41The parties are encouraged to resolve the issue of costs. If the parties cannot resolve the issue of costs, the Court will receive written submissions of five pages in length. The plaintiffs may deliver their submissions within 30 days, and the defendants may deliver their submissions within 15 days thereafter.
The Honourable Justice S.E. Lavine
Released: May 12, 2025
Baldwin et al v. Williams et al, 2025 ONSC 2851
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
BALDWIN ET AL
V.
WILLIAMS ET AL
REASONS FOR DECISION RE SUMMARY JUDGMENT
The Honourable Justice S.E. Lavine
Released: May 12, 2025