Damages for loss of benefit were measured by higher price paid by purchaser

Motion judge found that vendors could not deliver unencumbered title as they had promised in agreement of purchase and sale, and were therefore in breach of agreement with purchaser. Motion judge acknowledged that vendors' breach gave rise to claim for damages, but limited damages to amount of deposit ($25,000). Motion judge refused to award damages for loss of bargain. Purchaser appealed. Appeal allowed; judgment varied. Contrary to motion judge's finding, there was no “illusion” of a bargain between purchase and vendors. There was real bargain; there was agreement to sell property at agreed-upon price. When vendors did not close transaction, despite several extensions, purchaser lost benefit of that agreement. There was disagreement with motion judge that, as condition of recovering damages for difference in price agreed upon with vendors and higher price eventually paid to mortgagee, purchaser was required to show that vendors “appropriated the benefit” otherwise available to purchaser. Damages for loss of benefit were measured by higher price paid by purchaser and were not dependent on any benefit that may have flowed to vendors. Purchaser was entitled to difference in price, $187,500, in addition to $25,000 deposit.

Birchcliffe Core-Harbour Inc. v. Pinnock (2019), 2019 CarswellOnt 7525, 2019 ONCA 417, Doherty J.A., M.L. Benotto J.A., and Grant Huscroft J.A. (Ont. C.A.); varied (2018), 2018 CarswellOnt 17845, 2018 ONSC 5805, Dietrich J. (Ont. S.C.J.).

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