Whether applicants failed to mitigate was factual issue

Civil Practice and Procedure - Commencement of proceedings - Originating notice, summons or application

Applicants entered into agreement of purchase and sale to sell property to respondent for $1,098,000. Agreement included inspection clause which required inspection of property to take place within one business day of offer. Respondent had property inspected and provided notice of fulfillment of condition. After receiving inspection report, which noted significant defects with property, applicants conveyed willingness to assume cost of remedial work, but respondent decided not to purchase property and did not pay deposit. Applicants relisted property three times and sold it approximately six weeks after original scheduled closing date for significantly less and commenced application for breach of contract. Respondent brought application to convert application into action and add realtors as third party defendants. Application dismissed. In order for application to be converted to action there must be factual dispute material to issues to be determined that could not be fairly resolved by affidavits and cross-examination on affidavits. Main issue to be decided on application was whether respondent waived inspection clause, which was dependent on interpretation of agreement, notice and impacts of notice on agreement. There were no material facts in dispute and no credibility issues. Whether applicants failed to mitigate was factual issue that did not require assistance of expert and if cross-examination on issue of mitigation of damages was insufficient to amplify record to permit fair and just resolution of issue, it was open to application judge to direct discrete issue of mitigation of damages be set down for trial.

Yen Pin v. Wang (2019), 2019 CarswellOnt 3334, 2019 ONSC 1497, Barnes J. (Ont. S.C.J.).

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