



COURT OF APPEAL FOR ONTARIO

CITATION: Birchcliffe Core-Harbour Inc. v. Pinnock, 2019 ONCA
    417

DATE: 20190521

DOCKET: C66184

Doherty, Benotto and Huscroft JJ.A.

BETWEEN

Birchcliffe Core-Harbour
    Inc.

Plaintiff (Appellant)

and

Stella Pinnock, Stainton
    Pinnock
and Homelife/Romano Realty Ltd.

Defendants (Respondents)

David Taub and Jonathan Preece, for the appellant

Osborne G. Barnwell, for the respondents

Heard and released orally: May 15, 2019

On appeal from the judgment
    of Justice Dietrich of the Superior Court of Justice, dated October 26, 2018.

REASONS FOR DECISION

The Main Appeal

[1]

The motion judge found that the respondents (Vendors) could not
    deliver unencumbered title as they had promised in the Agreement of Purchase
    and Sale, and were therefore in breach of the agreement with the appellant (Purchaser):
    see reasons, para. 46. We see no error in that finding.

[2]

The motion judge acknowledged that the respondent Vendors breach gave
    rise to a claim for damages. She, however, limited the damages to the amount of
    the deposit ($25,000). She refused to award damages to the appellant for loss
    of bargain, indicating:

The remedy of damages for a breach of contract causing a loss
    of bargain presupposes that there was a bargain to be had and that it was
    wrongfully withheld from the innocent party. For Birchcliffe, the economic
    consequences of this failed agreement of purchase and sale caused the illusion
    of a loss of bargain but no actual loss of bargain.



In summary, there was no wrongful appropriation of a benefit by
    the Pinnocks. The benefit that Birchcliffe assumed it was denied was illusory
    and did not in fact exist. Accordingly, the Pinnocks have no liability to
    Birchcliffe for loss of bargain.

[3]

With respect, there was no illusion of a bargain between the appellant
    and the respondents. There was a real bargain. There was an agreement to sell
    the property at an agreed-upon price. When the respondents did not close the
    transaction, despite several extensions, the appellant lost the benefit of that
    agreement.

[4]

We do not agree with the motion judge that, as a condition of recovering
    damages for the difference in the price agreed upon with the respondents and
    the higher price eventually paid to the mortgagee, the appellant was required
    to show that the respondents appropriated the benefit otherwise available to
    the appellant. The damages for the loss of benefit are measured by the higher
    price paid by the appellant for the property and are not dependent on any
    benefit that may have flowed to, or been bestowed upon, the respondent Vendors.

[5]

The appellant was entitled to judgment for the difference between the
    purchase price agreed upon and the price eventually paid for the same property.
    That amount is $187,500. The appeal is allowed by deleting para. 2 of the
    judgment as it presently stands and adding a provision awarding damages to the
    appellant for the amount of $187,500. The provision in para. 1, in respect of
    the $25,000, remains in place.

Cross-Appeal

[6]

We do not accept the arguments advanced by the cross-appeal. Those
    arguments are all premised on the assertion that the appellants conduct,
    especially in respect of its dealings with the mortgagee in the months prior to
    the eventual termination of the agreement, was improper and caused the
    respondents to be unable to close the transaction with the appellant under the
    terms of the Agreement of Purchase and Sale. All of these arguments run aground
    on the motion judges finding of fact, at para. 70:

The Pinnocks were never realistically in a position to provide
    clear title to Birchcliffe. The actions of the solicitors for Birchcliffe and
    the mortgagee respectively, while deceptive, were not the cause of the
    Pinnocks failure to close the transaction. Given the Pinnocks negative equity
    in the property and the mortgagees desire to ensure the property was sold at
    its fair market value, the true vendor of the property was going to be the
    mortgagee.

[7]

The appellant on the cross-appeal submits that this finding demonstrates
    a clear and palpable error. We do not agree. The finding is fully justified on
    the record and we must defer to that finding.

[8]

The cross-appeal is dismissed.

The Application for Leave to Appeal Costs

[9]

The respondents have sought leave to appeal the costs order made by the
    motion judge. As we would allow the main appeal and vary the judgment below,
    the issue of costs of the motion must be addressed in light of our disposition
    of the main appeal. Consequently, the motion for leave to appeal the costs
    order by the motion judge is moot and need not be addressed on the merits.

Costs

[10]

We
    are satisfied that the appellant is now the successful party and should have
    its costs on the summary judgment motion. In the circumstances, and having
    regard to the limited material we have, we think the quantum of costs awarded
    by the motion judge offers a good barometer of the appropriate amount. We award
    costs to the appellant of the motion in the amount of $20,000, inclusive of
    disbursements and all relevant taxes.

[11]

Insofar
    as the appeal is concerned, the appellant is entitled to costs on a partial
    indemnity basis. The appeal was relatively straightforward. However, there was
    a cross-appeal, on which the appellant was also successful. It was somewhat
    more factually difficult than the appeal itself. In our view, an award of costs
    on a partial indemnity basis in respect of the appeal and the cross-appeal to
    the appellant in the amount of $20,000, inclusive of disbursements and all
    relevant taxes, is appropriate.

Doherty J.A.

M.L. Benotto J.A.

Grant Huscroft J.A.


