CITATION: Caivan (Greenbank) Inc. v. Balogun, 2026 ONSC 4790
COURT FILE NO.: CV-24-94273
DATE: 20260821
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Caivan (Greenbank) Inc., Plaintiff
AND:
Olesegun Edward Balogun and Modupe Atinuke Balogun, Defendants
BEFORE: The Honourable Justice A. Kaufman
COUNSEL: Caroline Bédard and Charlene Kavanagh, Counsel for the Plaintiff
Olesegun Edward Balogun and Modupe Atinuke Balogun, representing themselves.
HEARD: August 17, 2026
REASONS FOR DECISION
[1] Caivan (Greenbank) Inc. (“Caivan”) moves for summary judgment arising from the defendants' failure to complete the purchase of a newly constructed residential property located at 432 Epoch Street, Ottawa (the “property”). The plaintiff seeks damages for breach of an agreement of purchase and sale and asks that the defendants’ counterclaim be dismissed.
[2] The defendants, Olusegun Edward Balogun and Modupe Atinuke Balogun, oppose the motion. While they do not dispute entering into the agreement, they submit that genuine issues requiring a trial remain concerning the circumstances that prevented them from completing the transaction, the plaintiff’s mitigation efforts, and the calculation of damages.
[3] The defendants have also asserted a counterclaim. They allege that the transaction failed because they were unable to secure sufficient financing and that the plaintiff ought to have accommodated their circumstances by providing or facilitating vendor financing, including a vendor take-back mortgage. They seek damages arising from the failed transaction. The plaintiff denies that it was under any obligation to provide such financing and maintains that the defendants alone were responsible for their failure to close.
[4] For the reasons that follow, I conclude that there is no genuine issue requiring a trial and that summary judgment should be granted to the plaintiffs for payment by the defendants of the damages resulting from the defendants' breach of the agreement of purchase and sale.
Factual Background
[5] On April 14, 2021, the plaintiff and the defendant, Olusegun Edward Balogun, entered into an agreement of purchase and sale of the property. By amendment dated April 20, 2021, Modupe Atinuke Balogun was added as a purchaser. Following further amendments for upgrades and extras, the final purchase price was $697,369.81, inclusive of HST.
[6] Pursuant to the agreement, the defendants paid deposits totalling $60,870. The transaction was ultimately scheduled to close on August 15, 2023. Prior to closing, the defendants requested extensions of the closing date, citing difficulties relating to the purchase. The plaintiff initially declined a request for an extension to October 2023 and advised that it expected the transaction to complete on August 15, 2023.
[7] The transaction did not close on August 15, 2023. On that day and in the days that followed, counsel exchanged correspondence concerning possible extensions. The plaintiff offered an extension to August 29, 2023 on terms that included the payment of an additional $10,000 deposit. Further discussions led to an offer extending closing to September 15, 2023, conditional upon payment of an additional $20,000 deposit. Although the defendants did not provide that deposit within the time specified, they subsequently paid the $20,000 deposit on August 29, 2023 and the parties revived the transaction with a revised closing date of September 15, 2023.
[8] As the September 15, 2023 closing date approached, the defendants sought a further extension to September 22, 2023. The plaintiff agreed to consider a further extension on terms that included an additional deposit of $10,000. The defendants signed the proposed extension agreement but advised that they were unable to deliver the additional deposit. The transaction again did not close on September 15, 2023. The plaintiff subsequently advised that it considered the agreement terminated and that it would remarket the property.
[9] In late October 2023, discussions resumed concerning a possible revival of the transaction. At the defendants' request, the plaintiff prepared a revival agreement that contemplated a new closing date of December 4, 2023 and required an additional deposit of $15,000. The defendants did not provide the required deposit within the prescribed time. Ultimately, however, the plaintiff accepted a lesser additional deposit of $2,500 and the parties proceeded on the basis of a revived agreement with a closing date of December 4, 2023.
[10] The transaction did not close on December 4, 2023. The plaintiff again advised that it considered the agreement terminated and that it would remarket the property. Nevertheless, on December 19, 2023, after securing another purchaser, the plaintiff gave the defendants a final opportunity to complete the transaction by delivering the required funds no later than December 21, 2023. The defendants did not do so. The plaintiff then proceeded with a resale of the property.
[11] In total, the defendants paid deposits of $83,370 consisting of the original deposits of $60,870, the additional deposit of $20,000 paid in August 2023, and the further deposit of $2,500 paid in November 2023.
The Plaintiff’s Mitigation Efforts
[12] The plaintiff submits that, following the defendants' defaults, it took reasonable steps to mitigate its losses by actively remarketing the property and exposing it to the market. According to the affidavit of Brian Creech, the plaintiff's sales team had experience remarketing other newly constructed properties that had become available as a result of purchaser defaults during the latter part of 2023. That experience informed the plaintiff's assessment of prevailing market conditions and its approach to the resale of the property.
[13] The plaintiff relies on evidence that, during the fall of 2023, it reviewed and updated pricing for inventory in a number of its Ottawa developments, including "The Ridge", where the subject property is located. The plaintiff produced resale price lists dated October 31, 2023 and December 12, 2023 showing asking prices and subsequent reductions for comparable move-in-ready homes. Particular reliance is placed on units 401.04 and 397.03, both townhomes located on Epoch Street in the same development. Those properties were marketed at prices between approximately $640,000 and $650,000 in October 2023 and ultimately sold in December 2023 for $605,000 and $595,000 respectively. The plaintiff submits that these transactions provided useful comparators when assessing the market value of the subject property.
[14] The plaintiff also points to broader market conditions that existed in late 2023. Mr. Creech states that the Ottawa residential real estate market had declined materially from the market conditions that existed when the parties entered into the agreement in April 2021. The plaintiff attributes this decline in part to rising interest rates and reduced affordability, which it says adversely affected demand for new residential construction throughout the relevant period. According to the plaintiff, its pricing decisions reflected those prevailing market conditions rather than any desire to dispose of the property at a discount.
[15] The plaintiff further relies on evidence that it initially attempted to market the property at or near the defendants' original purchase price. It circulated a sales brochure to real estate agents that advertised the property at its original contract value of approximately $697,000 and highlighted the property's upgraded features and finishes. The plaintiff states that these efforts did not generate offers.
[16] Based on its experience with comparable resales in The Ridge development and its assessment of then-current market conditions, the plaintiff concluded that the property's likely resale value fell within a range of approximately $570,000 to $590,000. It notes that the property was an interior townhome, did not back onto greenspace and contained a relatively modest level of upgrades compared with some of the comparable properties identified in the evidence.
[17] Ultimately, the plaintiff entered into a resale agreement on December 21, 2023 at a purchase price of $580,000. The resale closed on January 18, 2024. Mr. Creech expresses the view that the resale price was reasonable having regard to the prevailing market and the prices achieved for comparable inventory during the same period
Issue
[18] The issue on this motion is whether there is a genuine issue requiring a trial in respect of the plaintiff's claim and the defendants' counterclaim. In substance, the defendants contend that the plaintiff was obliged to provide or facilitate vendor financing and that it failed to take reasonable steps to mitigate its losses following the defendants' default. The plaintiff disputes both propositions.
Summary Judgment
[19] Rule 20.04(2)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, requires the court to grant summary judgment where there is no genuine issue requiring a trial with respect to a claim or defence.
[20] In determining whether a genuine issue requiring a trial exists, a judge may weigh the evidence, evaluate credibility and draw reasonable inferences from the evidence, unless it is in the interests of justice that those powers be exercised only at trial.
[21] In Hryniak v. Mauldin, 2014 SCC 7, the Supreme Court of Canada emphasized that summary judgment is available where the process permits the court to make the necessary findings of fact, apply the law to those facts, and reach a fair and just determination in a manner that is proportionate, timely and affordable.
[22] The moving party bears the burden of demonstrating that there is no genuine issue requiring a trial. Once that burden is met, the responding party must point to evidence showing that a trial is required. Neither party may rely solely on the allegations contained in the pleadings. Each must put its best foot forward on the motion. The court is entitled to assume that the evidentiary record contains the evidence that would be presented at trial.
[23] In my view, this matter is appropriately determined by way of summary judgment. The material facts are established largely through documentary evidence, much of which is undisputed. The agreement of purchase and sale, the amendments, the extension agreements, the revival agreement, the correspondence exchanged between counsel, the resale transaction, and the damages calculations are all before the court. The parties have produced a comprehensive evidentiary record and neither side identifies any material witness whose viva voce evidence is necessary to resolve the issues raised on the motion.
[24] Nor does the motion give rise to credibility disputes that require a trial. The central issues are whether the plaintiff was obliged to provide vendor financing and whether its conduct in remarketing and reselling the property satisfied its duty to mitigate. Those issues turn principally on the terms of the parties' agreements and on the documentary record describing the plaintiff's marketing and resale efforts. The defendants challenge the plaintiff's conclusions, but they do not point to conflicting evidence that would require findings based on the credibility or reliability of witnesses
[25] I am satisfied that the record permits the court to make the necessary findings of fact, apply the relevant legal principles, and reach a fair and just determination on the merits. A trial would not meaningfully assist in resolving the issues in dispute. In the circumstances, summary judgment is the proportionate, expeditious and least expensive means of achieving a just result.
No Requirement to Take a Vendor Take-Back Mortgage
[26] The fundamental objective of an award of damages for breach of contract is to place the innocent party, so far as money can do so, in the position it would have occupied had the contract been performed. This is commonly described as the expectation interest. In addition to expectation damages, a plaintiff may recover expenditures reasonably incurred in reliance on the contract where those losses are caused by the breach and are not otherwise compensated through an award of expectation damages: PreMD Inc. v. Ogilvy Renault LLP, 2013 ONCA 412, at para 66; Tega Homes (Attika) Inc. v. Spencedale Properties Limited, 2023 ONCA 475, at para 19; Ahmad v. Ain, 2025 ONSC 4017, at para 38.
[27] In the context of a failed real estate transaction, certain losses are generally regarded as flowing naturally from the purchaser's breach. Where a purchaser fails to complete the transaction and the property is subsequently resold, the vendor is ordinarily entitled to recover the difference between the contract price and the resale price, provided the vendor has acted reasonably in mitigating its losses. The vendor may also recover additional losses caused by the breach, including reasonable costs incurred as a consequence of the failed transaction: DHMK Properties Inc. v. 2296608 Ontario Inc., 2017 ONSC 2432, at para. 49, rev’d on other grounds; 100 Main Street East Ltd. v. WB Sullivan Construction (1978), 1978 CanLII 1630 (ON CA), 20 O.R. (2d) 401 (Ont. C.A.), at para. 55.
[28] The defendants submit that their inability to complete the transaction was attributable to changes in market conditions that occurred between the execution of the agreement in April 2021 and the scheduled closing dates in 2023. They contend that residential real estate values declined significantly during that period and that rising interest rates materially affected affordability and mortgage qualification. As a result, they say they were unable to obtain financing sufficient to complete the purchase at the contracted price.
[29] The defendants rely on appraisal evidence obtained in connection with their financing efforts. They submit that an appraisal dated September 12, 2023 estimated the property's market value at $650,000 "as if complete" and $637,000 "as is". A subsequent appraisal dated October 16, 2023 estimated the property's market value at $665,000. All of those values were below the agreed purchase price of $697,369.81. The defendants contend that, by the time the transaction was scheduled to close, lenders were prepared to advance financing based on the appraised value of the property rather than the contractual purchase price, resulting in a financing shortfall that they were unable to overcome. They submit that the decline in value reflected broader changes in market conditions and explains why they were no longer able to obtain sufficient financing to complete the purchase on the agreed terms.
[30] The defendants plead that they would have been able to complete the transaction had the plaintiff agreed to accept a vendor take-back mortgage for the financing shortfall. The evidence before me does not disclose any request by the defendants for a vendor take-back mortgage during the period leading up to the failed closings. Rather, the correspondence reflects a series of requests for extensions of time to secure financing. In support of their position, the defendants attached to their Statement of Defence and Counterclaim a newspaper article discussing the increasing use of vendor take-back mortgages in circumstances where purchasers of pre-construction homes encounter appraisal shortfalls. The article notes that purchasers whose homes appraise below the original purchase price are sometimes offered vendor take-back financing in Toronto as a means of facilitating closing. However, the fact that such financing arrangements may be used in some transactions by others builders does not establish that a vendor is obliged to offer them.
[31] Even assuming that the defendants had requested a vendor take-back mortgage, the plaintiff was under no legal obligation to provide one. In Wynn v. Kentris, 2024 ONSC 3347, the court rejected a similar argument that a vendor had failed to mitigate its damages by refusing to accept a vendor take-back mortgage from a defaulting purchaser. Healy J. held that the defence was without merit because the vendor was under no obligation to entertain such a proposal. Similarly, in Calleja v. Ahmadi, 2022 ONCA 106, the Court of Appeal confirmed that once a purchaser fails to close on the agreed closing date, the vendor is not required to continue dealing with the purchaser or to restructure the transaction on different terms. The defendants' inability to obtain financing may explain their failure to close. It does not create a legal obligation on the plaintiff to finance the purchase itself.
[32] Nor do I accept the defendants' submission that the plaintiff acted in bad faith by declining to sell the property to them at a reduced price based on the appraisal evidence. The defendants rely on appraisals valuing the property between $637,000 and $665,000, all of which were below the contractual purchase price of $697,369.81. Their argument is that the plaintiff ought to have accepted a reduced purchase price and financed the balance through a vendor take-back mortgage. In my view, that submission misunderstands the plaintiff's contractual rights following the defendants' default. Once the defendants failed to complete the transaction, the plaintiff was entitled to treat the agreement as breached and pursue its ordinary contractual remedies, including damages measured by the difference between the contract price and the resale price. It was under no obligation to accept a lower purchase price from the defaulting purchasers and no obligation to assume the credit risk associated with financing the shortfall through a vendor take-back mortgage. The law of mitigation requires reasonable steps to reduce loss. It does not require an innocent party to forgo its contractual rights or provide financing to the party in breach.
Reasonableness of the Plaintiff's Mitigation Efforts
[33] I am not persuaded that the defendants have raised a genuine issue requiring a trial with respect to mitigation. The record demonstrates that the plaintiff afforded the defendants multiple opportunities to complete the transaction. After the original closing date of August 15, 2023 passed without closing, the plaintiff agreed to a series of extensions and later revived the transaction notwithstanding repeated defaults. Even after the revival agreement failed, the plaintiff provided the defendants with a final opportunity to complete the purchase before proceeding with a resale.
[34] The evidence further establishes that the plaintiff undertook reasonable efforts to market the property before selling it. The plaintiff initially attempted to market the property at or near the defendants' original purchase price. It prepared and circulated a sales brochure advertising the property and highlighting its upgraded features. When those efforts did not generate offers, the plaintiff adjusted its pricing to reflect prevailing market conditions.
[35] The plaintiff did not sell the property in a vacuum. Its pricing decisions were informed by its experience remarketing comparable inventory in the same development and nearby projects. The evidence includes price lists for comparable move-in-ready properties and identifies sales of other townhomes in The Ridge development that ultimately sold for substantially less than their earlier asking prices. The plaintiff also compared the subject property with other available inventory having different locations, lot characteristics and upgrade packages. Those comparators informed its assessment that the property's market value had declined materially from the value reflected in the parties' 2021 agreement.
[36] Importantly, the defendants themselves acknowledge that the residential real estate market had changed significantly between the execution of the agreement and the anticipated closing dates. Their position throughout has been that they could not obtain financing because the property no longer appraised at the contractual purchase price. They rely on appraisals valuing the property between $637,000 and $665,000, well below the agreed purchase price of $697,369.81. In advancing that position, the defendants effectively acknowledge the existence of the same market downturn that the plaintiff relies upon to explain both the need to reduce its asking price and the reasonableness of the eventual resale price.
[37] The duty to mitigate requires an innocent party to take reasonable steps to reduce its losses. It does not require perfection, nor does it require the innocent party to take unreasonable commercial risks in an effort to avoid all loss. On the record before me, the plaintiff's efforts to remarket and resell the property were reasonable. The resale price was consistent with the market evidence relied upon by the plaintiff.
[38] On a motion for summary judgment, the responding party must put its best foot forward and adduce evidence showing a genuine issue requiring a trial. The defendants have not done so on the issue of mitigation. Their criticism of the plaintiff's marketing and resale efforts amounts largely to speculation that a better result might have been achieved. There is no evidence capable of demonstrating that the plaintiff acted unreasonably, delayed a sale unnecessarily, ignored superior offers, or failed to pursue an available course that would likely have reduced its losses. I therefore conclude that there is no genuine issue requiring a trial with respect to the reasonableness of the plaintiff's mitigation efforts.
Assessment of Damages
[39] The plaintiff's damages claim is supported by the affidavit of Brian Creech and the supplementary affidavit of Frank Bourgault. The defendants do not challenge the arithmetic underlying the plaintiff's calculation. Rather, their position is that the losses would have been avoided had the plaintiff accepted a vendor take-back mortgage and otherwise acted differently following their default. For the reasons already given, I have rejected those arguments.
[40] Mr. Creech calculated the plaintiff's damages by comparing the value of the transaction contemplated by the agreement of purchase and sale with the amount realized on the subsequent resale. He deposes that the difference between the original sale price and the resale price, exclusive of HST, was $103,867.00. HST attributable to that loss was $11,944.71. The plaintiff also incurred legal fees of $1,079.60 in connection with the failed transaction. Those amounts produce total losses of $116,891.31.
[41] In the original motion materials, the plaintiff deducted only the deposits of $60,870.00 that had been paid pursuant to the original agreement. This produced a claimed loss of $56,021.31. In his supplementary affidavit, however, Mr. Bourgault explained that the original calculation failed to account for two additional deposits that were subsequently paid by the defendants in connection with the negotiated extensions and revival of the transaction, namely the additional deposit of $20,000 paid on August 29, 2023 and the additional deposit of $2,500 paid in November 2023. As reflected in the trust records, those additional deposits total $22,500.00.
[42] After deducting the full amount of deposits paid by the defendants from the plaintiff's proven losses of $116,891.31, the resulting damages are $33,521.31. I am satisfied that this amount represents the plaintiff's net loss arising from the defendants' breach of the agreement of purchase and sale and the subsequent revival arrangements.
[43] Accordingly, judgment shall issue in favour of the plaintiff in the amount of $33,521.31, together with pre-judgment and post-judgment interest in accordance with the Courts of Justice Act.
Dismissal of the Defendants’ Counterclaim
[44] The defendants' counterclaim is founded on the proposition that the plaintiff acted improperly by refusing to provide financing that would have permitted the transaction to proceed notwithstanding the defendants' inability to obtain sufficient mortgage financing. In particular, the defendants contend that the plaintiff ought to have provided or facilitated a vendor take-back mortgage and that its failure to do so caused them loss.
[45] I am satisfied that the counterclaim discloses no genuine issue requiring a trial. The agreement of purchase and sale expressly addressed the possibility of a financing shortfall. While it provided, at paragraph 2(b) that the plaintiff could make alternate financing arrangements or provide financing in the event of a shortfall, it also expressly stated that the plaintiff was under no obligation to do so. The defendants therefore had no contractual right to insist upon vendor financing and no basis to compel the plaintiff to assume the role of lender.
[46] Moreover, the record demonstrates that the plaintiff repeatedly attempted to preserve the transaction. It granted extensions of the closing date, accepted additional deposits, revived the agreement after earlier defaults, and ultimately provided the defendants with a final opportunity to close after securing another purchaser. The evidentiary record discloses no conduct capable of supporting a finding of bad faith, breach of contract, or any other actionable wrong on the part of the plaintiff.
[47] The defendants were required on this motion to put their best foot forward and adduce evidence capable of demonstrating a viable cause of action or a genuine issue requiring a trial on the counterclaim. They have not done so. At its highest, the evidence establishes that the defendants were unable to complete the purchase because of financing difficulties arising from changed market conditions. That circumstance may explain the defendants' default, but it does not give rise to a claim against the plaintiff.
[48] I therefore conclude that there is no genuine issue requiring a trial in respect of the counterclaim. The counterclaim is dismissed.
Costs
[49] The plaintiff seeks its costs of the action and counterclaim. The defendants did not succeed on any issue. The plaintiff was successful on the motion, obtained summary judgment, and succeeded in having the counterclaim dismissed
[50] Having regard to the factors set out in Rule 57.01, I am satisfied that an award of costs in the amount of $10,000, inclusive of disbursements and applicable taxes, is fair and reasonable in the circumstances.
[51] Although this was not a legally complex proceeding, it was more involved than a routine failed real estate transaction. The defendants advanced a counterclaim and raised issues relating to vendor financing, mitigation, appraisal evidence, and the plaintiff's alleged conduct following the failed closing. The existence of the counterclaim also removed what would otherwise have been a matter capable of resolution in the Small Claims Court and required the plaintiff to respond to and defend against those allegations.
[52] I am also satisfied that the plaintiff's legal fees were reasonably incurred. The hourly rates charged by counsel are reasonable having regard to their respective years of call and the nature of the proceeding. The work was appropriately delegated among senior counsel, junior counsel, articling counsel and law clerks, and there is no indication of duplication or inefficiency. The time expended in preparing the motion materials, responding to the counterclaim, reviewing the evidentiary record and preparing for the hearing was reasonable
[53] In my view, costs fixed at $10,000, inclusive of disbursements and HST, appropriately balance the plaintiff's substantial success with the moderate complexity and value of the proceeding.
[54] Costs are therefore fixed in the amount of $10,000, inclusive of disbursements and applicable taxes, payable by the defendants, jointly and severally, to the plaintiff.
A. Kaufman J.
Date: August 21, 2026