Victoria Ostrovsky

This appeal concerned the interpretation of Agreements of Purchase and Sale (APSs) for two apartment buildings, specifically regarding the allocation of common amenity costs in a redeveloped condominium complex and the responsibility for leasing and collecting rent for rental units prior to their legal transfer.

The appellant sought to impose higher maintenance costs on the respondents due to City-mandated design changes and to retain control over pre-transfer leasing and rent collection.

The Court of Appeal upheld the application judge's decision, finding that the appellant's discretion in cost-sharing was not unfettered and that the respondents, as beneficial owners, were entitled to control leasing and receive rents from the time units became available, thereby preventing unjust enrichment of the appellant.

The appellants appealed a summary judgment that granted forfeiture of their deposit and damages for breach of a pre-construction Agreement of Purchase and Sale.

The appellants had advised the respondent they were unable to close and claimed a separate oral contract existed allowing assignment.

They also argued the respondent failed to mitigate damages by selling the property for significantly less.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's decision that no oral contract was proven and that the respondent's mitigation efforts were reasonable, as the appellants provided no evidence to the contrary regarding property valuation or market prices.