Executive Summary: Key Legal and Evidentiary Issues

• Dispute arose from an unpaid website services agreement involving deliverables for a small influencer business.

• Plaintiffs claimed breach of contract, seeking repayment, lost revenue, and a mandatory order for website data access.

• The motion judge found the damage claim disproportionate and unsupported, limiting recovery to the original fee paid.

• Failure to mitigate damages by not seeking alternative service providers was a key factor in dismissing the $90,000 lost revenue claim.

• Mandatory order for deliverables was denied on discretionary grounds, considering the plaintiffs’ litigation conduct.

• The appeal was dismissed as the motion judge did not commit any palpable and overriding error in fact or law.

Background and relationship between the parties

The dispute arose from a failed website service agreement between Natalia Maurer, founder of Sneaky Mommies Inc. (the appellant), and a former university acquaintance, the respondent, Ase Deliri. Ms. Maurer launched a small influencer business focused on sharing family-friendly recipes through a self-made website and social media channels. The respondent offered to help by creating a professional website and migrating the content, with a total estimated cost of about $5,000.

By May 2020, they agreed the work would take six weeks. The respondent issued an invoice for $2,260, which was paid, but made little progress thereafter. In 2022, Ms. Maurer attempted to terminate the arrangement amicably, allowing the respondent to retain the funds if he would return a complete and accessible backup of the original website — referred to as the "SMI Website Deliverables."

Breakdown in delivery and resulting litigation

Despite assurances that the backup had been created, the respondent failed to provide accessible or usable data. Attempts were made via emailed zip files and mailed hard drives, but Ms. Maurer was unable to access the content. Notably, she did not seek third-party technical assistance to resolve the access issues. In October 2022, after letting the original site expire, she formally demanded delivery. With no satisfactory result, the plaintiffs sued for repayment of the $2,260, $90,000 in lost income, and a court order compelling the respondent to provide a usable website backup.

The respondent was noted in default, and the plaintiffs proceeded with a default judgment motion. Justice Koehnen granted repayment of the $2,260 but denied the other relief. The plaintiffs appealed that decision to the Divisional Court.

Decision on appeal and review of legal errors

The appellate court, comprising Justices Coats, Matheson, and Nakatsuru, dismissed the appeal. The court confirmed that the motion judge did not misapprehend the evidence. It found that the judge clearly understood the plaintiffs were requesting a backup of their own content — not the respondent’s independent work product.

The court also upheld the finding that the plaintiffs failed to mitigate their damages. They did not pursue alternative providers over two years or preserve the website prior to obtaining a reliable backup. This failure undermined their claim for $90,000 in lost income. Additionally, the court found that even had mitigation not been an issue, the plaintiffs had not provided sufficient evidence to support such a high damages figure.

As for the mandatory order, the appellate court agreed that it was within the motion judge’s discretion to deny equitable relief. The plaintiffs' delay, lack of proportionality, and conduct in the litigation were valid reasons to decline an order requiring further performance from the respondent.

Conclusion and outcome

The appeal was dismissed in its entirety, with no costs awarded. The court concluded that the plaintiffs were entitled only to the return of the $2,260 originally paid, and that the additional claims for damages and equitable relief were properly rejected by the motion judge. Ase Deliri (Respondent) successfully defended the appeal (by default) as the Divisional Court upheld the original decision and dismissed the plaintiffs’ expanded claims.