Executive Summary: Key Legal and Evidentiary Issues

• Summary judgment turned on whether the purchaser’s post-contract hardships (accident, alleged theft, loss of income) could legally amount to frustration of an unconditional Agreement of Purchase and Sale.
• The court scrutinized the evidentiary record supporting frustration, finding vague affidavit evidence, limited medical records, and no corroboration from lenders or employers about an inability to obtain financing.
• Contractual risk allocation in the APS, including an express waiver of financing conditions and a deposit-forfeiture and damages clause (Schedule “E,” s. 25.1), was central to rejecting the purchaser’s defences.
• Assessment of damages required comparing the original net sale price with the eventual resale price and then adding carrying costs, with the court carefully examining and partially disallowing claimed security expenses.
• Mitigation of loss was contested, but the evidence of timely relisting, price reductions on professional advice, and a long period with only one eventual offer supported the developer’s mitigation efforts.
• Interest and costs were addressed separately, with specific orders for pre- and post-judgment interest and directions for written submissions on costs, leaving the precise costs figure to a later determination.

Factual background and the failed real estate transaction
Coco Developments Ltd. was the developer and vendor of a new-build residential property at 391 Hemlock Lane, Belle River, Ontario. On or about 21 September 2021, Coco Developments and purchaser Shazia Sabir entered into an Agreement of Purchase and Sale (APS) for a price of $851,130.50, later adjusted to $851,978 after requested upgrades. Sabir paid deposits totalling $40,000 as required under the APS, and the original closing date was set for 6 October 2022. The property was subject to HST as a new build, with HST payable on closing and a portion rebated to the purchaser. The APS contemplated “unavoidable delay events,” and on 28 April 2022 Coco Developments served notice extending the closing date due to delay related to the COVID-19 pandemic. On 9 December 2022, the developer sent a further notice ending the delay period and fixing a new closing date of 9 February 2023. As the amended closing date approached, Sabir, through counsel, advised on 9 February 2023 that she could not close and requested an extension to 10 March 2023, citing failure to obtain mortgage approval. Coco Developments was willing in principle to grant a further 30-day extension, but only if Sabir provided an additional non-refundable $40,000 deposit and clear information on the status of her mortgage application. The closing was briefly extended to 10 February 2023, then again by agreement to 13 February 2023 (the “Amended Closing Date”). The vendor reiterated that any 30-day extension beyond that date was conditional on a further $40,000 deposit and confirmation regarding financing, to be provided by 1:00 p.m. on 13 February 2023. On 13 February 2023 at 1:56 p.m., Sabir’s counsel repeated the request for a 30-day extension but did not address the additional deposit or provide financing details. At 2:34 p.m., Coco Developments’ counsel advised that the additional deposit had not been received and warned that, absent closing by the end of the day, Sabir would be in default, the APS would be deemed terminated, and the vendor would reserve its rights. Sabir did not close on 13 February 2023. The court accepted that Coco Developments was ready, willing, and able to close on that date.

Key contractual terms and allocation of risk
The APS contained express provisions governing default by the purchaser. Schedule “E,” section 25.1 provided that on the buyer’s default, the buyer would forfeit all deposits in full, “without prejudice to the Seller’s rights to recover from the Buyer(s) all additional costs, losses, and damages” arising from the default under the agreement. The court treated this as a clear allocation of risk to the purchaser for both deposit forfeiture and further consequential losses if she failed to close. The evidence also showed that Sabir signed Schedule “H” to the APS, expressly waiving any financing conditions. There was no evidence she did not understand that she was assuming the risk of being unable to obtain a mortgage. The judge emphasized that, in law, a purchaser under an unconditional APS who cannot obtain financing and fails to close is in breach; inability to secure a mortgage may explain non-performance but does not excuse it.

Events after default and resale of the property
Following Sabir’s default, Coco Developments relisted the property on the MLS on 21 March 2023 at $852,000. The listing remained active without generating offers. On 17 October 2023, acting on the advice of its real estate agent, the developer reduced the listing price to $762,000 and continued marketing, including open houses. Despite these efforts, there were no offers for well over a year after default. On 12 June 2024, Coco Developments finally received its only offer, from Amritpal Singh, for $729,000. The offer was accepted on 14 June 2024 and the resale closed on 31 July 2024. As the property was a new build, the developer had to charge and remit HST on the resale as well, and the court worked with net figures accounting for HST and rebates to calculate the true loss.

Plaintiff’s claimed damages and cost components
Coco Developments advanced a damages claim premised on the standard vendor’s measure in failed real estate transactions: the difference between the original net purchase price and the ultimate resale net price, plus carrying costs, less the deposits already paid. The original net purchase price was $777,026.77 while the resale net price was $668,888.14, producing a primary loss of $108,138.63. On top of this, Coco Developments claimed municipal realty taxes of $833.71, Municipality of Lakeshore water taxes of $1,449.39, Hydro One charges of $1,099.82, Enbridge gas charges of $1,135.45, and third-party security costs of $3,115.93 said to have been allocated to this lot from overall development security. These components yielded a total deficiency of $115,772.93, from which the $40,000 deposit was deducted, leaving claimed damages of $75,772.93. The court accepted the general measure of damages asserted by Coco Developments as consistent with established vendor-purchaser law: the difference between contract price and resale price plus reasonable, foreseeable carrying and resale-related costs, subject to mitigation and proper proof.

The defendant’s frustration of contract defence
Sabir opposed summary judgment primarily on the basis of frustration of contract. She swore two affidavits alleging that extraordinary events beyond her control – a serious motor vehicle accident and the theft of funds by a third party, Balraj Singh – destroyed her ability to complete the purchase. In her first affidavit, she referred to a December 2022 accident and missing medical and police documentation; in the supplemental affidavit, she corrected the accident date to 31 January 2023 and added that she suffered a second accident in September 2023. She asserted that these events caused serious injury, inability to work, income interruption, and severe emotional distress, which collectively prevented her from obtaining mortgage financing. She also pointed to an earlier small claims action she had commenced against Mr. Singh (SC-21-4783) alleging theft of commissions and a loan. The supporting evidentiary record, however, was thin. The medical records from January 2023 documented concussion, neck strain, and knee strain with standard concussion protocol advice and pain medication, but did not describe long-term disability or concrete work restrictions. Later medical notes in 2025 indicated that she had been advised to rest from work during mid-2025 and that she was “not working currently,” yet these were far removed in time from the February 2023 breach. There was no evidence from an employer detailing her work status or income loss at the relevant time or from any lender or mortgage broker explaining why her financing application had been refused. With respect to the alleged theft, the only document produced was an Amended Plaintiff’s Claim filed in November 2021, covering events from early to late 2021, more than a year before the breach. The court record showed that Sabir’s small claims action against Mr. Singh had been dismissed for delay after she failed to comply with directions to provide her documentation by mid-2023, and that a later motion to set aside the dismissal was itself dismissed. Against this backdrop, the judge held that Sabir had not met the high threshold for frustration. To succeed, she had to prove that a supervening event occurring after contract formation rendered performance essentially impossible and radically different from what was agreed, not merely more difficult or burdensome. Her evidence did not create a clear, supported link between the accident, the alleged theft, and a permanent or fundamental impairment of her ability to secure financing. At most, the events might explain a temporary financial setback. The judge further observed that Sabir’s own request for only a one-month extension in February 2023 implied that she expected to be able to close with additional time, undermining any contention that performance had become impossible.

Damages, mitigation, and the challenge to carrying costs
Sabir also argued that Coco Developments’ claimed damages were excessive, particularly the carrying and security costs, and that the developer failed to mitigate its losses by relisting too high, waiting too long to reduce the price, and not responding adequately to market conditions. The court reaffirmed that the vendor’s entitlement is to be put, so far as money can do it, in the position it would have occupied had the contract been performed. This includes the price differential plus reasonable carrying and resale-related costs, provided adequate proof is given and reasonable mitigation steps are shown. On mitigation, the judge found that Coco Developments had acted appropriately. It relisted the property soon after default at a price near the original, adjusted price, then later reduced the asking price based on professional advice, held open houses, and ultimately accepted the only offer it received. Sabir did not identify concrete, realistic steps that would have reduced the loss, nor did she show that a materially better outcome was reasonably available at the time without hindsight. The mitigation defence therefore raised no genuine issue for trial. On the quantum of damages, the court accepted the core calculation based on the net price spread and most of the carrying items but scrutinized the allocation of the $3,115.93 in security costs across 29 unsold lots. The evidence did not clearly explain how that specific figure was attributed to this property. On that narrow point, the judge agreed with Sabir and deducted the security component from the damages, reducing the total from $75,772.93 to $72,657.

Summary judgment ruling and overall outcome
Applying the modern summary judgment principles, the court held that it could make the necessary findings of fact, apply the law, and fairly resolve the dispute on the motion record. Sabir had to put her “best foot forward,” and on this record she did not raise any genuine issue requiring a trial on frustration, mitigation, or quantum (save for the limited adjustment to security costs, which the court could address directly). The judge concluded that Sabir breached an unconditional APS by failing to close on the Amended Closing Date and that her post-contract misfortunes did not legally discharge her obligations. Summary judgment was therefore granted in favour of Coco Developments Ltd. The court ordered that Sabir pay Coco Developments $72,657 in damages, plus pre-judgment interest of $8,185.36 at 4% per annum from 9 February 2023 to 3 December 2025, and post-judgment interest at 6% per annum thereafter, with the precise amount of costs still to be determined following written submissions.