Court File and Parties
Court File No.: CV-23-00000022-0000 (Napanee) Date: 2025-07-28 Superior Court of Justice - Ontario
Re: Donald R. Brodie in his capacity as Estate Trustee of The Estate of Donald Brodie, deceased, Plaintiff
And: Dale Moses, Defendant
Before: Mew J.
Counsel: Veronica Marson, for the plaintiff Defendant in default, not participating
Heard: 28 July 2025, at Kingston
Endorsement
MEW J (orally):
[1] This action involves an agreement for the purchase and sale of a residential property. The defendant, as purchaser, failed to complete the transaction, despite extensions and other accommodations agreed to by the vendor, and, thus, breached his contract with the vendor, who was ready, willing and able to close the transaction on the closing date of 9 September 2022.
[2] The defendant's statement of defence in this action was struck out on 24 October 2024. But not before the defendant had been given multiple opportunities to engage in the litigation process and to repair the effect of his non-compliance with several court orders.
[3] Ultimately, the defendant was noted in default, and this matter was listed for an unopposed trial.
[4] The original plaintiff, Donald Brodie, has passed away. His claim has been continued by his Estate.
[5] The trial proceeded today. Evidence was tendered by way of affidavit.
[6] A vendor in the plaintiff's position will usually be entitled to an amount for damages that places the vendor in the same position as they would have been if an agreement of purchase and sale had been duly performed by the buyer. This will normally be the difference between the original contracted price and the eventual sale price, plus any consequential, incidental, or special damages suffered by the vendor: Arista Homes (Richmond Hill) Inc. v. Rahnama, 2022 ONCA 759.
[7] When the defendant failed to complete the agreement, the vendor remarketed it. It sold to an arm's length purchaser 82 days later than the amended closing date agreed to by the defendant, and for $70,000 less than the defendant had agreed to pay.
[8] The plaintiff is entitled to the shortfall in the purchase price as well as other expenses that were incurred because of the defendant's breach of contract.
[9] One of the expenses claimed is for living expenses that the late Mr. Brodie incurred from July to September 2022 at a community retirement home. He moved there after entering into the agreement of purchase and sale, but before the closing date. The evidence is that he would not have done so at that time but for the pending closing of the real estate transaction. One could argue that expenses incurred in anticipation of closing are not reasonably foreseeable. However, the explanation given – that the late Mr. Brodie was anxious about moving from what had been his home for many years into a retirement residence and decided to take the first opportunity to do so that presented itself after he thought he had a deal to sell his home – strikes me as reasonable. The late Mr. Brodie would, in any event, have had to move somewhere by no later than 9 September 2022 in order to give the defendant vacant possession. Accordingly, the plaintiff could have, but has not, claimed for Mr. Brodie's living expenses at the retirement residence for the 82 day period between 9 September and the eventual sale of the property to another party on 30 November.
[10] The plaintiff sought damages for property taxes paid from 18 July 2022 until 30 November. But 12 July was the original closing date. Mr. Brodie agreed to extend that until, ultimately, 9 September. So, absent express agreement to the contrary, he retained the obligations of a property owner, including the obligation to pay the taxes, until the extended closing date.
[11] The other expenses claimed by the plaintiff – hydro, home fuel, hot water tank, home insurance, lawn care and home maintenance expenses from September to November 2022, are all reasonable and recoverable, as are the legal fees thrown away as a result of the failed sale to Mr. Moses.
[12] The resulting damages are as follows:
| Description | Amount ($) |
|---|---|
| Difference between the Property's original purchase and the final purchase price (i.e. $1,220,000.00 - $1,150,000.00) | $70,000.00 |
| Property taxes from 9 September to 30 Nov 2022 (82 days) | $1,776.20 |
| Hydro expenses from Sept to Nov 2022 | $147.00 |
| Home fuel expenses from Sept to Nov 2022 | $685.40 |
| Hot water tank expenses from Sept to Nov 2022 | $69.74 |
| Home insurance expenses from Sept to Nov 2022 | $318.03 |
| Lawn care and home maintenance expenses from Sept to Nov 2022 | $400.00 |
| Legal fees thrown away re failed sale to Mr. Moses | $3,402.69 |
| Living expenses at the Kingsbridge Retirement Community from July to Sept 2022 | $16,504.95 |
| TOTAL AMOUNT CLAIMED | $93,304.01 |
[13] The defendant's deposit and accumulated interest thereon ($25,243.15) should be credited against the gross amount. The resulting net amount of damages is $68,060.86.
[14] The applicable pre-judgment interest rate is 4%, which applied to the amount of $68,060.86 from 9 September 2022 to today's date amounts to $7,854.04.
[15] The costs of the trial are fixed on a partial indemnity scale at $10,300 inclusive of disbursements. These costs are payable in addition to the previous costs awards totalling $21,002.85 which have been made against the defendant during the course of this litigation.
[16] The purchaser's deposit of $25,000, plus any accumulated interest thereon, which is currently being held by the Real Estate Council of Ontario shall be released to the plaintiff.
[17] Judgment shall go accordingly.
Mew J.
Date: 28 July 2025