Court File and Parties
Court File No.: CV-23-81074 Date: 2025-11-17 Ontario Superior Court of Justice
Between:
ANTOINETTE MARIE GRECO, Plaintiff
– and –
ZAINAB JARBOH, Defendant
– and –
MAHMOUD DIB aka MIKE DIB and STATE REALTY LIMITED dba ROYAL LEPAGE STATE REALTY, Third Parties
Counsel:
- R. Di Gregorio, for the Plaintiff
- G. Ladanyi, for the Defendant
- S. Rosenberg, for the Third Parties
Heard: October 28, 2025
Reasons for Decision
Justice M. Bordin
Overview
1The plaintiff's claim is a straightforward claim on a failed real estate transaction. She moves for summary judgment. The defendant resists and asserts this is not an appropriate case for summary judgment. The plaintiff and defendant filed multiple affidavits. The third party did not file any materials or oppose the motion.
Undisputed Facts
2As there were no cross-examinations on the affidavits and given the affidavit evidence of the parties and the positions taken by the parties in submissions, the following facts are not in dispute.
3The plaintiff was the vendor of 185 Golfwood Drive, Hamilton (the "Property"). The defendant was listed as the purchaser in an agreement of purchase and sale for the Property dated March 30, 2022 (the "APS"). The third party, Mr. Dib, was the defendant's real estate agent. The Property had been listed for $799,000. The purchase price in the APS was $965,000. The closing date was scheduled for June 30, 2022. The APS was unconditional. A financing condition was struck out. It had provided that the APS would be null and void unless the defendant provided notice in writing by April 15, 2022, that the condition was fulfilled.
4By bank draft in her name dated March 31, 2022, the defendant paid the $50,000 deposit, which continues to be held in trust.
5The defendant retained a lawyer to close the real estate transaction who communicated with the plaintiff's lawyer. Between June 14 and June 30, 2022, the plaintiff and defendant's lawyers on the real estate transaction exchanged correspondence. The defendant's lawyer sent a requisition letter dated June 17, 2022, and directed the plaintiff's lawyer to prepare the deed/transfer document in the name of the defendant.
6The defendant retained a mortgage broker to obtain financing. On June 21, 2022, an appraisal valued the Property at $835,000. At some point, the defendant became aware that she could not be approved for financing and could not close the APS.
7The APS did not close on June 30, 2022. The defendant's lawyer emailed the plaintiff's lawyer that day to advise that the appraisal came in $130,000 low, the defendant was having difficulty in arranging financing, the defendant was ready and willing to close, and to ask if the plaintiff was willing to renegotiate the purchase price.
8The plaintiff relisted the Property and sold it to another buyer on November 10, 2022, for $747,000, $218,000 less than the purchase price in the APS.
9The defendant's evidence is that she did not sign the APS. For the purposes of this summary judgment motion, the plaintiff does not challenge this evidence. As a result, it is not necessary that I determine who signed the APS.
10In 2019 and 2020 the defendant purchased properties in her name. In 2020, she sold the property she purchased in 2019.
11The statement of claim was issued on March 9, 2023. The statement of defence was served on July 5, 2023. The defendant commenced a third-party claim against Mr. Dib and Royal LePage State Realty Limited on July 11, 2023. The third party served an affidavit of documents on August 17, 2023. The plaintiff served an affidavit of documents on June 25, 2025, and a supplementary affidavit of documents on August 7, 2025. The defendant has not served an affidavit of documents on any party. There have been no discoveries. The motion for summary judgment was served 11 months ago on November 27, 2022.
Position of the Parties
12The plaintiff's position is that the defendant learned of the APS and ratified it by her conduct and therefore is liable to the plaintiff for losses arising from her failure to close. Alternatively, the plaintiff says that there was part performance of the APS.
13The defendant does not deny that she took steps to close the APS and was planning to purchase the Property. However, the defendant submits that she did not have full knowledge of the terms of the APS. Specifically, the defendant submits that she believed that the APS contained a term making the APS conditional on financing right up to the closing date of June 30, 2025, and that she was not aware that there was no financing condition in the APS.
14The defendant proffers several reasons for why this is not an appropriate case for summary judgment, including the following:
a. all the evidence required to make the necessary findings of fact to determine the issues is not before the court and further evidence might come from examination of the parties, especially the third parties;
b. granting summary judgment to the plaintiff will result in partial summary judgment and the potential for inconsistent findings;
c. the defendant did not have knowledge of all the terms of the APS such that the doctrines of ratification and part performance do not apply; and
d. the plaintiff failed to mitigate her damages.
15The third parties submit that the court should not make any factual findings regarding their conduct.
16The primary factual issues for determination are:
a. when did the defendant learned of the existence APS;
b. did the defendant know there was no financing condition in the APS; and
c. when did the defendant learn there was no financing condition.
Summary Judgment
17To grant summary judgment, I must be satisfied that there is no genuine issue requiring a trial.
18The Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, set out the guiding principles on a summary judgment motion, at para. 49:
There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. 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.
19There will be no genuine issue requiring a trial if the summary judgment process provides the court with the evidence required to fairly and justly adjudicate the dispute, and is a timely, affordable, and proportionate procedure, under r. 20.04(2)(a) of the Ontario Rules of Civil Procedure, R.S.O. 1990, Reg. 194: Hryniak, at para. 66.
20The evidence need not be equivalent to that at trial but must be such that the judge is confident that he or she can fairly resolve the dispute: Hryniak, at para. 57.
21The court should first determine if there is a genuine issue requiring a trial based only on the evidence before it, without using the fact-finding powers.
22If there appears to be a genuine issue requiring a trial, the court should then determine if the need for a trial can be avoided by using the powers under rr. 20.04(2.1) and (2.2). Those rules provide:
(2.1) In determining under clause (2)(a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:
- Weighing the evidence.
- Evaluating the credibility of a deponent.
- Drawing any reasonable inference from the evidence.
(2.2) A judge may, for the purposes of exercising any of the powers set out in subrule (2.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.
23The court may, at its discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result, and will serve the goals of timeliness, affordability, and proportionality considering the litigation as a whole: Hryniak, at para. 66. What is fair and just turns on the nature of the issues, the nature and strength of the evidence and what is the proportional procedure: Hryniak, at para. 59.
24Each side on a summary judgment motion must "put their best foot forward" to establish whether there are material issues requiring a trial: Hryniak, at paras. 57, 66; Cuthbert v. TD Canada Trust, 2010 ONSC 830, at para. 12; Canada (Attorney General) v. Lameman, 2008 SCC 14, [2008] 1 S.C.R. 372, at para. 11, citing Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co., 1996 CanLII 7979 (ON SC), 28 O.R. (3d) 423, at p. 434; Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, at para. 26, aff'd 2014 ONCA 878, leave to appeal refused, [2015] S.C.C.A. No. 36341.
25The moving party bears the burden of establishing that there is no genuine issue requiring a trial. Only after the moving party has discharged its evidentiary burden does the burden shift to the responding party to establish there are issues requiring a trial: Sanzone v. Schechter, 2016 ONCA 566, 402 D.L.R. (4th) 135, at para. 30, leave to appeal refused, [2017] S.C.C.A. No. 37245; Rescon Financial Corporation v. New Era Development (2011) Inc., 2018 ONCA 530, at para. 21.
The Disputed Facts
26A trial is not required to enable me to make the necessary findings of fact or apply the law to the facts. It is in the interests of justice that I use the enhanced powers in r. 20.04(2.1) and engage in a limited weighing of the evidence and evaluate the credibility of the defendant and draw inferences on the record before me. The use of the enhanced powers leads to a fair and just result and serves the goals of timeliness, affordability and proportionality considering the litigation as a whole.
27Turning to the evidence, I begin by noting that the defendant deposes that her primary language and that of her husband is Arabic. She does not say that she cannot read or write English.
28There are serious issues with the defendant's evidence.
29The defendant's evidence is that she never discussed the purchase of the Property with the real estate agent, Mr. Dib, and he never discussed with her the terms of the APS or advised her that if the APS was signed, she would be legally bound to purchase the Property. The defendant's evidence is that all discussions regarding the APS were between the agent and her husband. Her husband, therefore, is the person with the best evidence and the direct evidence of what took place between him and the real estate agent.
30Incomprehensibly, there is no affidavit evidence from the husband. All the evidence regarding whether the APS was to contain a financing condition is hearsay and inadmissible for the truth of its contents.
31Rule 20.02(1) provides as follows:
An affidavit for use on a motion for summary judgment may be made on information and belief as provided in subrule 39.01(4), but, on the hearing of the motion, the court may, if appropriate, draw an adverse inference from the failure of a party to provide the evidence of any person having personal knowledge of contested facts.
32The defendant offered no explanation for why her husband did not provide an affidavit.
33Instead, the defendant sets out what occurred and what was discussed between her husband and her real estate agent in paragraphs 9 through 23 and 28 of her main affidavit. Nowhere in her affidavits does the defendant state that her husband told the agent that they required a financing condition to be included in the APS, that it had to remain in place until closing, or that the agent told her husband that such a condition was included in the APS. She does not set out what the real estate agent told her husband about the financing condition, or what her husband told her about the financing condition.
34The defendant suggests that I can infer from other statements in her affidavit that the agent told her husband that there was a financing condition in the APS. The defendant specifically pointed to paragraph 16 of her affidavit in which she states that she understood from her husband that he told the agent that they could not afford to pay mortgages on two properties. The sum total of the rest of the defendant's evidence about the financing condition is as follows:
a. Paragraph 32 of her affidavit where she says that she "found out later on, after the closing date passed that [the agent] removed the financing condition from the APS" without telling them and without instructions.
b. Paragraph 5 of her supplementary affidavit in which she states:
The purchase of the subject Property was supposed to happen on the condition that we would obtain financing. The financing condition had to be waived by no later than April 15, 2022. Neither my husband … nor I told Mike either verbally or in writing to waive that condition.
c. Paragraph 6 of her supplementary affidavit in which she states:
If the condition would not have been removed without my approval and/or authorization or my husband's approval and/or authorization, then even if I was unable to close on the purchase of the subject Property, a claim would not have been commenced against me by the Plaintiff.
d. Paragraph 7 of her supplementary affidavit in which she states:
The issue is that I was proceeding with the purchase of the subject Property on the understanding that it would only take place if I obtained financing. I did not agree and/or approve for that condition to be removed and no longer be a condition in this transaction.
35The defendant is required to put her best foot forward. One would expect that if there was a discussion about the financing condition either between her husband and the agent or between the defendant and her husband, there would be evidence of precisely what was discussed. Instead of tendering such evidence, the court is asked to draw inferences to fill those gaps. I decline to do so.
36Nowhere in the defendant's affidavit does she state that she did not receive a copy of the APS before closing. I am asked to infer this from the defendant's affidavits. The defendant's evidence is that she "did not review, approve or sign the APS" and that she "did not speak with [the agent] to authorize him to sign the APS on her behalf, nor did [she] authorize [the agent] to enter into the APS on her behalf." In submissions, the defendant said this statement should be taken to establish that the defendant never saw the APS, even after it was signed. The defendant later resiled from this position and suggested that she saw the APS, but only after the failed closing date. The basis for this change in position is the defendant's statement in paragraph 5 of her supplementary affidavit.
37I again set out paragraph 5 of the defendant's supplementary affidavit for ease of reference:
The purchase of the subject Property was supposed to happen on the condition that we would obtain financing. The financing condition had to be waived by no later than April 15, 2022. Neither my husband … nor I told Mike either verbally or in writing to waive that condition. [Emphasis added.]
38The defendant's supplementary affidavit states the defendant has knowledge of the information in the affidavit, and, to the extent that the contents of her affidavit is based on information and belief, the defendant has stated the source of the information. The source of the information in paragraph 5 is not set out in the supplementary affidavit.
39In submissions, the defendant urged me to infer that the source of the information in the first part of the paragraph is her husband. On the other hand, the defendant asks me to infer that the statement in the second sentence comes from the plaintiff reviewing the APS after the transaction failed to close. I decline to do so. It would have been a simple matter to put before the court the direct evidence of the husband on these issues, to state the evidence clearly rather than ask the court to draw obscure inferences, or to state the source of the information in the affidavit.
40The defendant is required to put her best foot forward. She had many months to marshal her evidence in response to the summary judgment motion. I have to assume and expect that the evidence before me is the best evidence available to the defendant.
41I draw an adverse inference against the defendant for failing to provide the evidence of her husband who has personal knowledge of the discussions with the agent with respect to the condition and the APS. I draw the inference that there is no evidence forthcoming from the defendant or her husband that supports her position.
42I do not accept the defendant's assertion that she believed the APS was conditional until the day of closing. As noted above, in the defendant's supplementary affidavit, she specifically states that the purchase of the Property was supposed to happen on the condition that she would obtain financing and that the financing condition had to be waived by no later than April 15, 2022. This contradicts her position that she believed the financing condition was to remain open until the day of closing.
43The defendant had experience purchasing two properties and selling one of them in the three years prior to the APS. The defendant took steps to obtain financing after April 15, 2022, not before. Her suggestion that she believed the financing condition in the APS would remain open until the day of closing defies logic and is contradicted by her own evidence. Further, what vendor would agree to such a term that would leave the vendor exposed, with the property removed from the market, until the day of closing at the whim of the purchaser?
44The defendant's position is also contradicted by her third-party claim which adopts the allegations in her statement of defence, including paragraph 17, in which she expressly alleges that the agent advised her husband that "in order to make the offer the most attractive, there would not be any conditions on the offer." [Emphasis added.]
45I recognize that a pleading is not evidence, but it undermines her position on this motion that there was a financing condition until closing; a position which is advanced without any direct evidence from her husband, without any explicit statement of what was discussed regarding the condition, and which is contradicted by her own evidence.
46The defendant states that she found out "after the fact" that the agent had signed the APS using her signature. She does not say when she learned this. The defendant became aware of the APS and took steps to conclude the APS. The defendant knew from the moment she became aware of the APS in her name that she had not signed the APS, so she must have known that someone else signed it for her.
47It defies logic that the defendant would obtain a $50,000 bank draft to pay a deposit on March 31, 2022, without knowledge of the APS. The defendant was not inexperienced in the purchase of houses. She had bought two houses and sold one in the previous three years. I find as a fact that the defendant was aware of the existence of the APS in her name on March 31, 2022.
48I find that the defendant was aware that the APS was not conditional on financing on or before April 15, 2022, was prepared to proceed with the APS without the financing condition and took steps to close the APS including obtaining the bank draft, retaining a mortgage broker to seek financing and retaining a lawyer to close the transaction.
The Third-Party Claim and Partial Summary Judgment
49The defendant argues that I should not grant summary judgment as it may lead to inconsistent findings on the main action and the third-party claim.
50The defendant's third-party claim is framed in negligence and breach of fiduciary duty. She seeks contribution and indemnity. The claim asserts that:
a. The agent should not have encouraged her husband to borrow money for the deposit;
b. The agent failed to communicate with her about the transaction and signed the APS in breach of his fiduciary duty; and
c. The agent was negligent in:
i. soliciting the purchase of the Property and presenting it as a great opportunity with a guaranteed return;
ii. acting in a conflict of interest;
iii. signing the APS;
iv. not discussing the APS with the defendant;
v. failing to recognize that the defendant would have to borrow money to purchase the Property;
vi. failing to explain the consequences of the defendant's inability to obtain financing, how a downturn in the market would affect the value of the Property, the risks of not having a financing condition, and the possible exposure to the plaintiff's collateral costs; and
vii. failing to negotiate a financing condition.
51The third-party claim also incorporates the pleadings in the defendant's statement of defence. The defence includes additional allegations that the agent:
a. told her husband that the Property was a good value, a great deal, an investment, a win-win;
b. knew the defendant and her husband could not afford to pay two mortgages, could not afford the Property, and would have to borrow money to buy the Property;
c. told her husband he would only need to borrow money for a short time;
d. told the defendant's husband that there were multiple offers on the Property, and they had to act fast;
e. persuaded the defendant's husband to submit a strong offer on the Property so they would be successful bidder;
f. suggested the purchase price of $965,000;
g. told the defendant's husband that to make the offer most attractive and get the Property, there would not be any conditions on the offer; and
h. did not explain to the defendant's husband what it meant to make an offer without conditions.
52With the notable exception of g., these allegations or variations of them are set out in the defendant's affidavit.
53None of the claims or allegations against the third party as set out in the defendant's pleadings are impacted by the issue this court must determine on this motion. All of them relate to the real estate agent's representation of the defendant leading up to the execution of the APS. There is no risk of inconsistent findings. Especially since the defendant has specifically pleaded that the agent told her husband there would be no conditions in the APS.
54The defendant has not moved forward with her third-party claim for over two years. Having failed to do so, she now asks the court not to grant summary judgment because there might be further evidence from the third party that may bear on the issues. The defendant did not point to any specific potential evidence. The plaintiff is not required to wait while the defendant does nothing to pursue its third-party claim because the defendant thinks that perhaps further evidence might arise out of that proceeding.
55The existence of the defendant's third-party claim does not raise a genuine issue for trial with respect to the respondent's claim for damages on the failed APS. The wrongdoing alleged by the defendant is all directed at the third party. The defendant does not argue that the plaintiff was not entitled to rely on the APS or that the plaintiff should have known that the defendant did not sign the APS. There is no evidence to suggest that the plaintiff knew that the defendant alleged she had not signed the APS until after the plaintiff commenced the action. There is no evidence to suggest that the plaintiff was aware of any alleged misconduct, negligence or breach of fiduciary duty by the third party. From the plaintiff's perspective, the execution and steps taken to complete the APS proceeded in the ordinary course until the day of closing.
56The defendant has not counterclaimed or claimed any set-off. The third-party claim is a separate proceeding and can continue even if summary judgment is granted.
57Granting judgment to the plaintiff on her claim would not amount to partial summary judgment as asserted by the defendant. Granting judgment would dispose of the entirety of the plaintiff's claim, leaving the defendant to pursue her third-party claim.
Was the APS Ratified?
58The plaintiff asserts that, although the defendant says she did not sign the APS, the plaintiff subsequently ratified the APS. The defendant says she did not ratify the APS because she was not aware of all its terms.
59In John Ziner Lumber Ltd. v. Kotov, 2000 CanLII 16894 (ON CA), 137 O.A.C. 177, the Court of Appeal considered the doctrine of ratification and stated at paras. 5 and 6:
The doctrine of ratification allows a party to come in after the fact and give antecedent authority to a contract that has already been made. In order for the third party to enforce the contract against an undisclosed principal, upon learning of the undisclosed principal's identity, the formerly undisclosed principal would have to be able to ratify the agent's act. This, the undisclosed principal cannot do.
By contrast, a contract made with a person acting as an agent on behalf of a disclosed principal may be ratified by the principal. A disclosed principal may be named or unnamed. The identity of the principal need not be ascertained at the time the contract is made. All that is required is that the third party knows it is dealing with an agent. Consequently, if the third party knows it is dealing with an agent, and the agent acts without the actual authority of his or her disclosed principal, the principal can subsequently ratify the agent's contract. The disclosed principal's subsequent ratification is equivalent to antecedent authority. The result is an enforceable transaction between the third party and the principal. [Citations omitted.]
60At paras. 29, 31 and 32 of John Ziner Lumber Ltd., the court addresses the requirements for ratification:
Before there can be ratification, several requirements must be met. Both Fridman, supra, 86, and Harvey, supra, at 31, cite the three conditions set out in Firth v. Staines (1897), 2 Q.B. 70 at p. 75 by Lord Wright:
To constitute a valid ratification three conditions must be satisfied: first, the agent whose act is sought to be ratified must have purported to act for the principal; secondly, at the time the act was done the agent must have had a competent principal; and thirdly, at the time of the ratification the principal must be legally capable of doing the act himself.
Ratification can be express or implied: Fridman, supra, at 104-107; Harvey, supra, at 47. However, before ratification will be implied, conduct by the principal amounting to ratification must be clear and unequivocal.
Harvey states at 48:
Ratification will be inferred from the principal's act of standing by; in other words, if a principal knows of an agent's unauthorized act, the principal has an obligation to repudiate forthwith the unauthorized act.
61Halsbury's Law of Canada, "Commercial Law I (Agency)", (Toronto: LexisNexis Canada, 2024 Reissue), at HAY 24, addresses the acts of ratification:
Ratification must be evidenced by clear adoptive acts, which must be accompanied by full knowledge of all the essential facts. Ratification may be express or implied. It will be implied whenever the conduct of the person on whose behalf the act was done shows an intent to adopt or recognize the unauthorized act.
62The plaintiff also relies on Davis v. Orion, 2006 CanLII 26966 (Ont. S.C.). In paragraph 57 of Davis, the court stated:
The client cannot simply turn a blind eye to wrongful acts which he alleges that his broker has done, such as unauthorized trading. Upon discovery of the fact, the client may elect to either repudiate or ratify any wrongful act of his broker, no matter how serious and no matter what its nature. Ratification may be established by express assent or by implication from acquiescence or failure to repudiate within a reasonable time after being informed by the broker of what he has done. If not repudiated by the client, the transaction is treated as having been ratified and is binding on the client as if authorized in the first instance. This is in accordance with the simple doctrine of the law of agency. Connolly v. Walwyn Stodgell Cochrane Murray Ltd., 1993 NSCA 141; Grenkow v. Merrill Lynch et al., [1993] M.J. No. 409 (Man. Q.B.).
63The defendant acknowledges that Mr. Dib was her agent. For the purposes of this summary judgment motion, it is accepted that she did not sign the APS. The plaintiff asserts it was signed by Mr. Dib. There is no evidence before me that it was signed by anyone else. On the evidence tendered by the defendant, the only other realistic possibility is that the APS was signed by her husband, who had all the dealings with Mr. Dib with respect to the purchasing of the Property and reported those discussions to the defendant. In either case, it can be readily found that Mr. Dib or the defendant's husband was the defendant's agent.
64However, it appears that the plaintiff believed she was contracting directly with the defendant, not an agent for a known or disclosed principal. In this sense, the facts do not strictly parallel the cases cited.
65Otherwise, all the requirements for ratification are met. I have found that the plaintiff became aware of the APS on the day after it was signed and was aware by April 15, 2022, that the APS was not conditional on financing. The ratification was implied and express. The defendant took steps to complete the contract. Her lawyer communicated with the plaintiff's lawyer with respect to the requirements for closing the APS. The defendant sought financing. The defendant acknowledged in submissions she intended to complete the APS with financing.
66The defendant did not repudiate the APS prior to the closing date. Even on the day of closing, she wanted to proceed but negotiate a lower price.
67It would be unjust to allow the defendant to now repudiate the APS and not be bound by it.
Part Performance
68Given my conclusion above, there is no need to resort to the doctrine of part performance. However, I comment on it briefly. The Court of Appeal in 2730453 Ontario Inc. v. 2380673 Ontario Inc., 2025 ONCA 112, leave to appeal refused, [2025] S.C.C.A. No. 41758, recently reviewed the law of part performance.
69The facts of this case do not fit strictly into the doctrine of part performance as there is a written, not an oral contract for the purchase and sale of land. Otherwise, I would conclude that the acts of the parties taken toward closing the APS were sufficient to constitute acts of part performance. The plaintiff acted to her detriment in carrying out her own obligations under the APS. She took the steps necessary to carry out her obligations under the APS up to the point when the defendant refused to close. She did so without an independent basis or expectation that she would be compensated for doing so. She did so solely with the expectation that the defendant would fulfill her end of the APS, making the detriment of performance worthwhile.
Damages and Mitigation
70The plaintiff's evidence is that the subsequent sale of the Property for $747,000 was the best of five offers received. The evidence discloses that the plaintiff attempted to negotiate the best possible price. The plaintiff did receive an offer for $750,000 but, as with other offers, it was signed back at $799,000 by the plaintiff and the prospective purchaser did not accept or submit a revised offer. The plaintiff's efforts to obtain the best possible price should not be held against her.
71The plaintiff's loss includes carrying costs from the failed closing date to the subsequent closing of the sale of the Property, which the plaintiff clarified in submissions are as follows:
a. Property taxes in the amount of $1,560.00;
b. Utility expenses, including gas, electric and heat in the amount of $367.87;
c. Property insurance in the amount of $243.38; and
d. Mortgage payments of $2,431.24.
72None of this is seriously disputed by the defendant.
73The defendant alleges failure to mitigate and has the burden of proving both that the plaintiff has failed to make reasonable efforts to mitigate, and that mitigation was possible: Southcott Estates Inc. v. Toronto Catholic District School Board, 2012 SCC 51, [2012] 2 S.C.R. 675, at para. 24. She has not met her burden.
74The defendant seeks to have the deposit released to her and applied to her damages. There is no reason not to do so.
Conclusion
75This is an appropriate case for summary judgment. The plaintiff is entitled to judgment as follows:
a. The defendant shall pay to the plaintiff damages in the following amounts:
i. $218,000 for the difference in the sale price of the Property;
ii. Property taxes in the amount of $1,560.00;
iii. Utility expenses, including gas, electric and heat in the amount of $367.87;
iv. Property insurance in the amount of $243.38; and
v. Mortgage payments of $2,431.24.
b. Prejudgment and post-judgment interest on the above damages pursuant to the Courts of Justice Act.
c. The deposit of $50,000 plus accumulated interest shall be released to the plaintiff and shall reduce the amount owing by the defendant to the plaintiff accordingly.
76The plaintiff is presumptively entitled to its costs of the action, including the summary judgment motion.
77If the parties cannot resolve costs, the parties may submit a bill of costs and make written submissions consisting of not more than two double-spaced pages, together with excerpts of any legal authorities and any relevant offers to settle. All submissions are to be filed with the court and uploaded to Case Centre. If no submissions or written consent to a reasonable extension are received by the court by December 15, 2025, the matter of costs will be deemed to have been settled.
M. Bordin, J.
Released: November 17, 2025