NEWMARKET COURT FILE NO.: CV-24-00002470-0000
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
KEVIN TALLMAN and ALISON TALLMAN
Plaintiffs
– and –
NORA MILLER, JANE DOE, SHAWN SHOGHI and HOMELIFE/VISION REALTY INC.
Defendants
G. Matushansky, for the Plaintiffs
Defendant Nora Miller: Self-represented
Defendants Shawn Shoghi and Homelife/Vision Realty Inc.: A. Postelnik (not appearing)
HEARD: December 10, 2025
HEALEY J.
Nature of the Motion
Nature of the Motion
1The plaintiffs move under rule 19.05 for judgment against the defendant Nora Miller (the “defendant”). The action arises out of an alleged breach of an Agreement of Purchase and Sale dated November 29, 2023 (the “APS”), which resulted in the sale not being completed.
2The plaintiffs seek damages in the amount of $1,625,733.15 plus prejudgment interest from December 15, 2023 or alternatively, from January 31, 2025, at a rate of 5.3% per annum, arising out of a diminution in the value of the subject property and out of pocket costs.
3In the alternative, the plaintiffs seek judgment in the amount of the deposit that was supposed to have been paid by the defendant, plus prejudgment interest.
4The defendants Shoghi and Homelife/Vision Realty Inc. were the broker and brokerage representing the defendant in the transaction. This court was advised that they take no position on the motion.
The Defendant’s Position
The Defendant’s Position
5The defendant argues that she always understood that the deal “died” unless a deposit was made. She did not provide a deposit even though required by the APS. She told her agent that she was unable to close, and she maintains that she never pushed the plaintiffs to extend the closing date, as alleged.
6In the result, as the plaintiffs knew that she was unable to make a deposit, they should have known that she could not complete the transaction, the APS was not binding, and the plaintiffs could have accepted another offer at any time. The defendant submits that she should not be held responsible for the plaintiffs’ lost opportunity costs that arose from a change in market conditions.
The Evidence
The Evidence
7The defendant has not provided any responding material, despite this being the third time that the matter was before the court. Previous adjournments were at her request.
8The plaintiffs’ evidence is that on or about November 30, 2023, the plaintiffs as vendors and the defendant as purchaser entered into the APS with respect to the plaintiffs’ property at 115 Hazelridge Court, Vaughn, Ontario, for a purchase price of $5,420,000. The offer was not conditional on financing.
9The APS provides that the defendant was to submit a deposit in the amount of $280,000 by negotiable cheque payable to Re/Max West Realty Inc. as the deposit holder “upon acceptance”, which is defined in the APS as “within 24 hours of the acceptance of this Agreement”.
10Schedule A provides that the deposit shall be kept by the listing brokerage and not released without written consent from the defendant upon completion of the transaction. Schedule B to the APS details the terms under which Re/Max West Realty Inc. was to hold the deposit. The original completion date of the Agreement was December 15, 2023.
11On or about December 1, 2023, the parties signed an amendment to the APS using OREA Form 120, by which they agreed to vary the meaning of “upon acceptance”, such that the meaning of that phrase was “the Buyer is required to deliver the deposit to the Deposit Holder by December 2, 2023 by 4:00 p.m.”
12On or about December 8, 2023, the parties signed another Form 120 to amend “upon acceptance” to require delivery of the deposit to the Deposit Holder by December 11, 2023 by 4:00 p.m..
13The plaintiffs were in a position to close on December 15, 2023, as set out in correspondence sent by their real estate solicitor, David Munday, on December 12, 2023, and on December 18, 2023. Similar correspondence was sent again to the defendant’s solicitor, Mitra Mohammadi-West, on December 29, 2023 by Mr. Munday, noting that the closing date was “today” and that his clients were ready, willing and able to complete the transaction.
14A further amendment extended the date for delivery of the deposit to January 8, 2024 by 6:00 p.m., and the completion date was extended to January 9, 2024 at 6:00 p.m.. Mr. Munday sent correspondence to Mitra Mohammadi-West on December 29, 2023, noting that the closing date was “today” and that his clients were ready, willing and able to complete the transaction.
15On January 26, 2024, the defendant sent an email to Shawn Shoghi with the subject “final amendment” in which she informed him that she would be able to pay the deposit on January 26, and the closing date would be February 29. She asked him to prepare a new amendment based on her update.
16A further amendment extended the date for delivery of the deposit to January 30, 2024 by 6:00 p.m. and the completion date was extended to February 29, 2024.
17When these dates passed without performance by the defendant, Mr. Munday wrote to Ms. Mohammadi-West on February 8, 2024 to advise that: 1) the plaintiffs had relisted the property in an effort to mitigate their losses; and 2) the plaintiffs would be holding the defendant responsible for all losses suffered, including the carrying costs and any deficiency in the sale price to a third party. His correspondence also noted that the plaintiff requested an extension to December 18, 2023. It also noted that the additional extensions had been arranged because Ms. Mohammadi-West’s office had continued to advise that the defendant’s funds had been wired to her bank but were being held and were to be released imminently.
18In an affidavit sworn April 1, 2025, the plaintiff Kevin Tallman verified that the reason that he and his wife agreed to the extensions was because Mr. Shoghi and Ms. Mohammadi-West repeatedly confirmed that the defendant had funds that were being held but would be available soon.
19Once the plaintiffs’ litigation lawyers became involved in April 2024, they communicated to Ms. Mohammadi-West the plaintiffs’ intention to commence this claim. There is evidence through an email from Mr. Matushansky of Miller Thomson to Ms. Mohammadi-West stating that the defendant had called him on April 15, 2024. The defendant had provided a phone number and email, but she would not provide her current address “explaining instead that she knew she was in breach of the agreement and was hoping to pay the deposit some time this week”.
20After extensive efforts by Miller Thomson to ascertain whether the defendant was using an alias, and to determine her address for service, the defendant was eventually served with the Statement of Claim in July 2024 pursuant to r. 16.03(5).
21The defendant did not serve a Statement of Defence and was noted in default on August 19, 2024.
22The defendant was served with this motion by email in December 2024.
23The subject property has still not been sold as of the date of the argument of this motion. It is the plaintiffs’ position that the market has softened since the date of the APS. The plaintiffs rely on the appraisal report of CHS Realty Advisors Inc. dated March 31, 2025, which estimates the market value of the property at $4,200,000 as of February 29, 2024, which was the final extended closing date.
24The difference between the market value at February 29, 2024 and the purchase price is $1,220,000.
25The plaintiffs re-listed the property on March 20, 2025 for $5,299,800. There have been viewings but no offers. They subsequently reduced the price to $4,999,800 but the property has not sold.
26The plaintiffs’ carrying costs for the property included property taxes, insurance, and interest fees on their line of credit. From the beginning of 2024 to April 1, 2025, those costs now total $315,129.66.
27They also incurred the legal fees related to the aborted sale, and utilities and property maintenance.
28The core facts outlined above were pled in the Statement of Claim. Pursuant to r. 19.02(1)(a), a defendant who has been noted in default is deemed to admit the truth of all allegations of fact made in the Statement of Claim. In particular, the defendant has admitted the terms of the APS and admitted that she breached them, that the plaintiffs attempted to mitigate their losses by extending the closing date and then by relisting the property, and that the plaintiffs have suffered and are continuing to suffer damages as a result.
Issue
Issue
29Have the plaintiffs proven that they are entitled to judgment in the amount of $1,625,733.15 plus prejudgment interest and costs?
Analysis
Analysis
30The facts must entitle the plaintiffs to judgment in order to succeed on this motion: r. 19.06.
31The defendant breached the APS, a fact that she has admitted. The plaintiffs were entitled to treat the agreement as repudiated by the defendant as a result of her failure to pay the deposit and failure to close on the final scheduled date, and sue for damages. The plaintiffs are entitled to recover any reasonable damages that flow from the breach.
32While it is rare for a purchaser to fail to pay a deposit, there are reported cases in which courts have concluded that a binding contract exists without the deposit requirement being fulfilled: Gagliardi v Al-Karawi, 2023 ONSC 6953, 2023 CarswellOnt 19051 (Ont. S.C.J.); Argo Adventures Inc. v. Choi, 2020 BCCA 17. These cases answer the defendant’s argument that the APS was not binding unless the deposit was paid.
33The normal measure of damages for a failed real estate purchase is the difference between the contract price and the market value of the land on the “assessment date”, which is the date on which the purchase was scheduled to close: The Rosseau Group Inc. v. 2528061 Ontario Inc., 2023 ONCA 814, at para. 62.
34The last scheduled closing date in this case was February 29, 2024, and the evidence offered by the plaintiffs is that by then the property had a market value of $4,200,000, $1,220,000 less than the purchase price. The defendant has not challenged that evidence nor offered any contrary evidence of value.
35Nor did the defendant challenge any of the carrying costs incurred by the plaintiffs since her breach; I note that the calculations stop as of April 2025 but that there will of course have been even more insurance, taxes and interest expenses incurred in the 8 months that have passed since then. The plaintiffs have provided documentary evidence to support each of these expenses. Accordingly, I find that the plaintiffs have incurred carrying costs of, at least, $405,733.15.
36The calculation of the plaintiffs’ damages is $1,625,733.15. The deemed admissions together with the additional evidence adduced by the plaintiffs entitles them to judgment in the amount sought.
37Prejudgment interest shall be calculated from January 31, 2024, the day after the deposit was due under the final amendment, at 5.3% per annum, pursuant to s. 128(1) of the Courts of Justice Act, R.S.O 1990, c. C.43, as amended.
Costs
Costs
38The plaintiffs have been entirely successful in their action and are entitled to their costs of this action. The costs are higher than typically seen for a default proceeding because of the additional steps that were required to be taken by the plaintiffs’ counsel to determine the defendant’s identity and location for service. Additionally, there were two prior attendances on the motion.
39The plaintiffs seek costs on a partial indemnity basis in the amount of $26,000 inclusive of disbursements and HST. This is a fair and reasonable amount given the success achieved, the amount of the claim, the lack of merit in the defendant’s position and the fact that she failed to admit that her breach was the cause of the damages.
Decision
Decision
40This court orders:
Nora Miller shall pay the sum of $1,625,733.15 to Kevin Tallman and Alison Tallman.
Prejudgment interest shall be payable on the above amount from January 31, 2024 at the rate of 5.3% per annum.
Nora Miller shall pay costs of this action to Kevin Tallman and Alison Tallman fixed in the amount of $26,000 inclusive.
Post-judgment interest shall run from today’s date.
Formal approval of the order as to form and content by the defendants is hereby dispensed with.
HEALEY J.
Released: January 5, 2026