



COURT OF APPEAL FOR ONTARIO

CITATION: Bang v. Sebastian, 2019 ONCA 501

DATE: 20190614

DOCKET: C66179

MacPherson, Tulloch and Harvison Young JJ.A.

BETWEEN

Wonkyun
    Bang and Eunkyung Moon

Plaintiffs (Respondents)

and

Julia Bency
    Sebastian

Defendant (Appellant)

and

Signature Realty
    Inc. carrying on business as Royal LePage Signature Realty

Defendant (Noted in Default)

Harpreet Singh Makkar, for the appellant

Victor Tchor, for the respondents

Heard: June 13, 2019

On appeal from the
    judgment of Justice Andrew Sanfilippo of the Superior Court of Justice, dated October
    18, 2018, with reasons reported at 2018 ONSC 6226.

REASONS FOR DECISION

[1]

The appellant Julia Bency Sebastian appeals from the judgment of
    Sanfilippo J. of the Superior Court of Justice granting summary judgment to the
    respondents Wonkyung Bang and Eunkyung Moon for the appellants failure to
    close a residential real estate transaction.

[2]

The motion judge determined that there was no genuine issue requiring a
    trial on the respondent/plaintiffs claim for breach of the applicable
    agreement of purchase and sale. He awarded damages of $122,221.33, representing
    $75,000 in lost value for the property and $47,221.33 in consequential damages,
    including financing and carrying costs. The motion judge gave the appellant
    credit for her $35,000 deposit, resulting in total judgment against the
    appellant of $87,221.33.

[3]

The appellant appeals in respect of only the damages award. She seeks a reduction
    of almost $50,000.

[4]

First, the appellant contends that the trial judge erred by finding that
    there was no evidence of the appellant making an offer in June 2017 to purchase
    the subject property at the reduced price of $920,000 (the original purchase
    price, agreed to by the appellant, was $995,000). This error, says the
    appellant, goes to the root of the motion judges finding with respect to
    mitigation.

[5]

We do not accept this submission. The duty to mitigate does not compel
    the seller of residential property to abandon a perfectly valid agreement and
    accept a substantially reduced price just because the purchaser decides to
    abort the valid agreement because of a falling real estate market.

[6]

Second, the appellant submits that the motion judge erred in not drawing
    an adverse inference against the respondents for not producing evidence from
    their real estate agent and making findings based on hearsay evidence.

[7]

We disagree. These points relate to the mitigation issue. As we said above,
    the respondent did not have to accept a reduced offer (by $75,000) to mitigate
    potential losses caused by the appellants breach of the original agreement.

[8]

Third, the appellant asserts that the motion judge erred by finding that
    the appellant knew that the respondents were selling the property to purchase
    another property and in awarding compensation for financing that property once
    the appellant abandoned the agreement.

[9]

We are not persuaded by this submission. There was evidence that the
    respondents were buying a new home and, in our view, it was reasonably
    foreseeable that there would be finance and carrying expenses related to that
    purchase.

[10]

The
    appeal is dismissed. The respondents are entitled to their costs of the appeal
    fixed at $10,000 inclusive of disbursements and HST.

J.C. MacPherson J.A.

M. Tulloch J.A.

Harvison Young J.A.


