



COURT OF APPEAL FOR ONTARIO

CITATION: Marshall v. Meirik, 2022 ONCA 275

DATE: 20220405

DOCKET: C69311

Doherty, Huscroft and Harvison
    Young JJ.A.

BETWEEN

Robert Leonard Marshall and
    Tracey Dorothy Hoyt

Plaintiffs/Defendants by Counterclaim
    (Respondents)

and

John Peter Meirik and Amber
    Madelynn Meirik

Defendants/Plaintiffs by Counterclaim
    (Appellants)

Michael Bookman, for the appellants

Colby Linthwaite, for the respondents

Heard: March 31, 2022 by video
    conference

On appeal from the judgment of Justice Jessica
    Kimmel of the Superior Court of Justice, dated March 8, 2021, with reasons
    reported at 2021 ONSC 1687, and 2021 ONSC 3059.

REASONS FOR DECISION


The Main Appeal

[1]

The appellants (defendants) agreed to purchase a
    cottage from the respondents (plaintiffs). The appellants repudiated the
    agreement prior to closing. The respondents relisted the property and sold the
    property a short time later for a considerably lower price.

[2]

On the summary judgment motion, the appellants
    acknowledged they had breached the agreement of purchase and sale. Among other
    things, they argued:

·

the resale price did not reflect the true value
    of the property when the respondents sold it; and

·

the respondents did not take available
    reasonable steps to mitigate their loss and, had they done so, their losses
    would have been eliminated or at least substantially reduced.

[3]

The motion judge rejected both arguments. She
    held the purchase price on the resale reflected the market value, meaning the
    respondents loss equalled the difference between the sale price agreed upon by
    the appellants and the ultimate resale price. In addition, the respondents were
    entitled to a commission adjustment.

[4]

The motion judge also rejected the appellants
    mitigation argument. She held the appellants had failed to meet their onus to
    show on the balance of probabilities that the respondents did not take
    reasonable steps that would have led to a higher resale price.

[5]

The appellants challenge the motion judges
    mitigation analysis. They advance two arguments:

·

the motion judge wrongly held, as a matter of
    law, that absent expert evidence the appellants could not meet their burden on
    the mitigation issue; and

·

the motion judge made various errors in her
    consideration of the evidence proffered by the appellants, including a failure to
    consider some of that evidence, and a failure to draw certain inferences.

[6]

We reject both arguments. Both amount to an
    attempt to re-argue the merits of the case before this court.

[7]

The motion judge did not hold, as a matter of
    law, that the appellants could not meet their onus without supporting expert
    evidence. In fact, the appellants did lead some expert evidence. The motion
    judge held that, having regard to the totality of the evidence led by the
    appellants, including the expert evidence, the appellants could not meet their
    onus on the mitigation issue. The motion judge applied the mitigation
    principles to the evidence adduced and found the evidence wanting in the
    absence of any independent expert testimony. We see no legal error in this
    analysis.

[8]

The appellants second argument takes issue with
    the motion judges findings of fact. The appellants submit the motion judge did
    not consider certain evidence and did not draw certain inferences. This ground
    of appeal is a straightforward attack on the motion judges fact-finding and
    runs headlong into the strong deference owed in this court to that fact-finding.

[9]

We see no basis to conclude the motion judge
    failed to consider evidence. She specifically outlined the evidence which the
    appellants claim she failed to consider. The inference to be drawn from that
    evidence was for the motion judge. We cannot interfere, absent palpable and
    overriding error. There is none.

The Costs Appeal

[10]

The appellants also seek leave to appeal the
    costs order. Leave to appeal is granted sparingly, but, in our view, should be
    granted in this case.

[11]

The respondents made a formal offer to settle
    the action in 2019. That offer was substantially lower than the amount
    ultimately awarded to the respondents.

[12]

In May 2020, counsel for the respondents, in
    reply to a query from counsel for the appellants, advised counsel that he was
    prepared to recommend that his clients accept $375,000 in settlement of the
    action. While that figure was much closer to the amount claimed and ultimately
    awarded than the earlier offer, it was still about $100,000 less than the total
    amount of the judgment eventually awarded.

[13]

The motion judge found that the 2020 exchange of
    correspondence between counsel was not an offer to settle and did not have the
    effect of revoking the 2019 offer. That offer remained alive to trial.

[14]

The motion judge, applying r. 49.10, held the
    respondents were entitled to their costs on a partial indemnity basis up to the
    date of the 2019 offer and on a substantial indemnity basis after that date.

[15]

There is no error in the motion judges
    conclusion that the 2019 offer remained in effect. The 2020 correspondence was
    not an offer to settle, but only an indication to counsel for the appellants of
    an amount counsel for the respondents was prepared to recommend to his clients
    should further negotiations ensue.

[16]

We also agree with the motion judge that, even
    if the 2020 correspondence is considered to be an offer to settle, the amount
    proposed in that correspondence was significantly lower than the total amount
    ultimately awarded to the respondents in the judgment. Assuming the 2020
    correspondence was an offer under r. 49, the respondents would be entitled to
    substantial indemnity costs on the basis of that offer.

[17]

The motion judge properly triggered the costs
    consequences of r. 49.10. There is no reason to interfere with the quantum
    awarded.

Conclusion

[18]

The appeal is dismissed. Leave to appeal costs
    is granted and the appeal is dismissed. Pursuant to counsels agreement, the
    respondents should have costs of the appeal in the amount of $11,000, inclusive
    of disbursements and relevant taxes.

Doherty J.A.

Grant Huscroft J.A.

A. Harvison Young J.A.


