A boutique Toronto law firm serving
clients across Canada since 1987

Aug 28, 2023


In my previous post I completed a 9 part series dealing with Self-Help mortgage remedies. Those are mortgage remedies enforcable by a mortgagee without resorting to the Ontario Courts. 

Today's blog changes direction and peaks at a rather interesting case study that crossed my desk recently. Our clients had lived in their family home for years. In the Spring of 2022, having outgrown the property, they bought a new home and put their existing family home up for sale.

The home sold quickly in March of 2022. The closing was scheduled for late June 2022. The buyers had paid a $50,000 deposit to our clients' broker  Unfortunately, between the signing of the agreement and the closing, the market had changed. Interest rates were rising. The covid boom had abruptly ended.

And the buyers couldn’t close the purchase.

These were the facts that came to us in early July of last year. Just after the buyers defaulted.

Most litigators would have brought an action in the Superior Court, suing for damages and suing for the retention of the deposit.

But this could have subjected our client to discoveries, and a motion for summary judgment. Slow and costly propositions at best.

Rather, we took a more aggressive route. Utilizing what we call “Express Litigation”, we issued an Application in the Superior Court. Applications are reserved for lawsuits where there are no material facts in dispute. This was the position that we were taking - that the facts were straightforward and not in dispute.

Along with our Application, we prepared and filed an affidavit from our seller client - detailing all of the facts presented above and also setting out in great detail the mitigation efforts of our clients. Mitigation is the obligation of an injured party in a contract dispute to minimize its damages for which it is asking the Court to order compensation.

Bottom line, we got an expedited Court date and without a hearing (based on the paper record that we had filed) the Court awarded our client full judgment for all of their losses including carrying costs of the home plus the difference between the ultimate (lower) sale price and the initial sale price that the defaulting buyers agreed to pay. Plus the $50,000 deposit was ordered released from the realtor's trust account and paid to our client. 

The Express Litigation lessons that we have learned from our mortgage enforcement practice have worked well in purchaser and seller disputes.

This blog is intended for information purposes only. It is not legal advice and cannot be relied on as such. Nor is it a substitute for hiring your own legal counsel, who will be an essential member of your power of sale and mortgage default team. And lastly, this blog is just my opinion. I reserve the right to change my mind. And I reserve the right to be wrong. Feel free to call me .... 416.662.9550 to discuss.

Be well and stay healthy