Executive Summary: Key Legal and Evidentiary Issues

Acceptance of a purchaser's repudiation terminates the contract and extinguishes the vendor's right to claim future damages. Expert evidence from a realtor serving as the vendor's agent lacked required independence and impartiality and was properly excluded. Damages claimed on summary judgment must be proven with particularized, substantiated evidence; unsupported assertions cannot support claims exceeding $1 million. The Agreement's express language permitted deposit forfeiture upon default while reserving remedies "at law or in equity," but accepting repudiation precluded further damages claims. Procedural fairness concerns arise when a moving party introduces supplementary evidence on the eve of hearing after defendants rely on the original motion record. Boomerang summary judgment is appropriate where the moving party fails to establish a genuine issue for trial.

The failed real estate transaction and contractual termination dispute

Facts of the case

Ambria (Bloomington) Limited, a residential home builder, entered into an Agreement of Purchase and Sale with Reza Esmaeili and Sara Bian in February 2022 for a property in Aurora, Ontario valued at $4,009,990. The defendants paid a $30,000 initial deposit and agreed to five further deposits. They missed the second deposit deadline in March 2022 and requested an extension while attempting to sell their own property, which was granted until April 8, 2022. After denying a further extension request, the parties agreed the third deposit of $100,249.75 was due August 9, 2022. The defendants missed this deadline and advised on August 10, 2022 that they could not sell their property and lacked funds for remaining deposits. On November 14, 2022, Ambria gave them until November 21 to remedy their default. On November 21, the defendants emailed Ambria's counsel stating they were unable to make further payments and requested the contract be cancelled, constituting clear repudiation of the Agreement.

Policy terms and contractual provisions

Section 37.1 of the Agreement was central to the dispute. This clause permitted the vendor, at its sole option, to unilaterally suspend the purchaser's rights and declare the Agreement terminated upon default. Upon termination, all deposits would be forfeited to the vendor as liquidated damages "without prejudice to any other rights or remedies available to the Vendor at law or in equity." This dual remedy structure—forfeiture combined with reservation of further legal remedies—proved critical to the court's analysis.

Ambria's response and legal action

On November 30, 2022, Ambria terminated the Agreement "effective immediately," stating all monies previously paid were forfeited as liquidated damages without prejudice to further rights and remedies. Ambria did not build the property and kept the $30,000 deposit. On February 13, 2023, Ambria sued for breach of contract claiming damages exceeding $1 million. The defendants defended and filed a counterclaim that they subsequently abandoned.

Procedural issues and evidence

At the October 31, 2025 summary judgment hearing, Ambria sought a declaration the Agreement remained "binding and enforceable" and damages. The defendants sought boomerang summary judgment, arguing Ambria had already accepted termination and failed to prove damages. Justice Penman dismissed Ambria's adjournment motion, noting Ambria had filed only one affidavit by May 30, 2025 deadline, causing defendants to serve no responding evidence. On October 20 and 28, Ambria served supplementary records containing expert evidence and additional damage particulars—exactly the unfair case-splitting the court rules prohibit.

Expert evidence exclusion

Justice Penman excluded the expert evidence of Stefanie Cooper, a realtor and Ambria's exclusive marketing agent, under White Burgess criteria. Ms. Cooper was the realtor who sold the property to defendants and provided Ambria strategic advice on mitigating damages. The court found her evidence "entirely tainted" and "borne out of an echo chamber," lacking the required independence and impartiality. Additionally, her qualifications—RECO registration since 2011 and ten years as General Manager of Sales and Marketing—did not qualify her as an expert in property valuation, typically done by appraisers. Her report lacked analysis and sources, contradicted itself on comparable sales data, and never opined on property value at any date except purchase, which was critical since Ambria claimed loss of bargain damages.

Termination of the Agreement

The court found no dispute the defendants defaulted. Upon repudiation, the innocent party may accept the repudiation (terminating the contract and releasing both parties from future obligations) or hold it open. As the Supreme Court stated in Guarantee Co. of North America v. Gordon Capital Corp., [1999] 3 S.C.R. 432, acceptance of repudiation "terminates the contract, and the parties are discharged from future obligations." Section 37.1 directly contemplated Ambria's unilateral termination right upon default, with deposit forfeiture. Ambria exercised this right on November 30, 2022. By accepting termination, Ambria relieved both parties from future obligations. While deposits could be forfeited, Ambria could not seek damages as if the contract had been performed—doing so would contradict the express Agreement terms and contract law principles.

Damages and proof of loss

The Agreement specifically addressed early default damages through deposit forfeiture. Ambria had no entitlement to additional damages because it accepted termination. Even if entitled, Ambria failed to prove loss. Until three days before hearing, Ambria relied on a single affidavit containing only two paragraphs listing damage categories—carrying costs, construction costs, remarketing costs, administrative fees, and anticipated value difference—with no supporting documentation. The supplementary affidavit improperly split its case after defendants based their position on the original record and declined responding evidence. Even if admitted, the damage claims were unreliable: carrying costs of $243,517.72 (later $324,251.51) based on interest Ambria would have earned is implausible since those funds would have been used for construction; construction cost increases of $210,000 lacked clear definitions; an unidentified person "Manocchio's" opinion regarding $111,185.92 additional costs appeared "picked out of thin air"; remarketing costs doubled from $29,030 to $69,030 with no explanation; administrative fees doubled from $25,000 to $50,000 based on costs from other defaulting purchasers, improperly charging these defendants for unrelated defaults; and loss of bargain damages of $801,998 (representing 20% market decline) lacked proof and could not extend beyond the breach date.

Outcome and ruling

Justice J.K. Penman granted boomerang summary judgment in favor of the defendants, Reza Esmaeili and Sara Bian, dismissing Ambria's claim entirely. The defendants were the successful party. No monetary damages were awarded to either party. The $30,000 initial deposit was forfeited to Ambria as a contractual consequence of default and termination under Section 37.1. Costs of the motion remain undetermined, with the court encouraging settlement or subsequent written submissions by both parties if settlement fails.