Executive Summary: Key Legal and Evidentiary Issues

• Enforceability and interpretation of amendments to the Agreement of Purchase and Sale (APS), particularly regarding the right to list the property for resale.

• Assessment of whether the Plaintiff’s demand to remove the property from MLS constituted an anticipatory breach or repudiation of the APS.

• Evaluation of the sufficiency of evidence provided by the Defendants to support claims for damages, including alleged loss of opportunity on resale.

• Determination of the appropriateness of awarding damages to the Plaintiff for the Defendants’ failure to complete the purchase.

• Consideration of the parties’ conduct, including the Plaintiff’s misinterpretation of the APS amendment, in the assessment of costs.

• Application of Rules 49 and 57.01 of the Rules of Civil Procedure and the Courts of Justice Act in fixing the quantum and fairness of costs awarded.

Facts of the case

On October 21, 2025, the Plaintiff, Caivan (Fox Run) Limited, obtained summary judgment for damages in the amount of $106,012.93 against the Defendants, Abhishek Gangwal and Suhani Gangwal, for their failure to complete the purchase of a property pursuant to an agreement of purchase and sale (APS) dated August 16, 2023. Amendments to the APS permitted assignment of the agreement and gave the Defendants the right to list the property for sale on MLS or other third-party platforms. On January 11, 2023, the Plaintiff demanded that the Defendants remove the listing of the property on MLS. The Defendants complied on February 7, 2023. Despite being told by Caivan on March 21, 2023, that they could relist the property on MLS, the Defendants advised Caivan that the contract was at an end and demanded the return of their deposit.

Claims and counterclaims

The Defendants sought summary judgment against the Plaintiff for negligent misrepresentation, unjust enrichment, and breach of contract in the amount of $125,452.50. They also made an alternative claim for the return of their deposit of $75,000, $10,452.50 as commissions repaid to the Plaintiff, and $40,000 for loss of opportunity for potential profit on resale. The court dismissed these claims, finding that there was not an anticipatory breach justifying termination of the APS, nor a breach amounting to repudiation or representations entitling the purchasers to rescission. The court also found that no evidence was led as to how the Defendants arrived at the claimed amount of $40,000 for loss of opportunity.

Discussion of policy terms and clauses at issue

The dispute centered on amendments to the APS, specifically the clause permitting the Defendants to list the property for resale. The Plaintiff’s January 2023 demand to remove the listing was found to be mistaken and contrary to the final amendment. However, the court determined that this did not amount to a repudiation of the contract. The Plaintiff’s communications regarding the demand were described as assertive and inflexible, and the Plaintiff’s error in interpreting the final amendment was identified as the main reason for the litigation. The Defendants did not call evidence to quantify their loss during the period they were not permitted to list the property.

Court’s findings and analysis

The court found that the Defendants were not entitled to consider the contract at an end and that the Plaintiff was successful and presumptively entitled to costs. The court acknowledged that the Plaintiff acted unreasonably in misinterpreting the final amendment and demanding the removal of the MLS listing, but concluded that the Plaintiff’s actions did not amount to repudiation. The Plaintiff’s offers to settle were considered, including an offer dated March 11, 2025, for $91,132, and subsequent offers for $47,000. The Defendants’ offer to settle, dated September 9, 2025, proposed that the Plaintiff pay $75,000 plus costs on a partial indemnity basis. The court noted that the Plaintiff’s request for costs of $29,777.87 was 28% of the judgment amount and found this disproportionate.

Costs decision and outcome

After considering the parties’ costs submissions, bills of costs, and offers to settle, and applying the Rules of Civil Procedure and the Courts of Justice Act, the court fixed the amount of costs for the motion at $10,000 in favor of the Plaintiff. The court found this amount to be fair and proportionate, taking into account the Plaintiff’s unreasonable conduct regarding the final amendment. The total amount awarded to the Plaintiff, including damages and costs, was $116,012.93. If the exact amount for costs and monetary award cannot be determined, the court’s decision specifies the amounts as $106,012.93 for damages and $10,000 for costs.