The court found the seller - not the buyer - at fault and dismissed the $200k damages claim
The Ontario Superior Court of Justice has dismissed a seller’s claim for over $200,000 in damages after a condominium sale collapsed - concluding that the plaintiff’s own failure to deliver closing funds on time was to blame.
In NDA v. Golden, 2023 ONSC 6689, the parties entered into an agreement of purchase and sale for a Toronto condominium unit at a price of $520,000. The scheduled closing date was August 1, 2018, but at the buyer’s request, it was extended to August 3, 2018, to allow additional time for mortgage funds to be arranged.
On the revised closing date, NDA’s counsel advised Golden’s counsel that additional funds - estimated at between $8,000 and $10,000 - were needed to complete the sale, but did not confirm the final amount. No agreement was reached on the shortfall. Despite communications during the day, NDA’s lawyer failed to deliver the necessary closing documents and funds by the 4:00 p.m. deadline.
At 4:08 p.m., Golden’s lawyer advised that the transaction was at an end. NDA subsequently sold the unit to a third party and brought an action against Golden, alleging breach of contract and seeking damages exceeding $200,000 based on the profit the plaintiff claimed would have been made from the resale.
Justice Susan E. Gilmore rejected the plaintiff’s claim in its entirety. The Court found that NDA, not Golden, was the defaulting party. The plaintiff’s failure to close on time, the judge concluded, was a breach of contract. The Court emphasized that NDA bore the responsibility for being ready, willing, and able to close the transaction and had not fulfilled that obligation.
The Court also dismissed the plaintiff’s damages claim as speculative. The resale occurred months later, and no admissible evidence - such as expert reports or financial calculations - was provided to prove loss or entitlement to damages.
Golden was awarded $20,000 in costs.
The decision offers a pointed reminder to mortgage and legal professionals: even brief delays in delivering closing funds and documents can unravel real estate transactions and extinguish a seller’s right to claim damages. The onus to be fully prepared to close lies squarely with the seller, and a failure to do so can have costly consequences.
