Case information
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40201
Akelius Canada Ltd. v. 2436196 Ontario Inc., et al.
(Ontario) (Civil) (By Leave)
Docket
Judgments on applications for leave to appeal are rendered by the Court, but are not necessarily unanimous.
| Date | Proceeding | Filed By (if applicable) |
|---|---|---|
| 2023-01-12 | Close file on Leave | |
| 2023-01-12 | Copy of formal judgment sent to Registrar of the Court of Appeal and all parties | |
| 2023-01-12 | Judgment on leave sent to the parties | |
| 2023-01-12 |
Judgment of the Court on the application for leave to appeal, The application for leave to appeal from the judgment of the Court of Appeal for Ontario, Number C68832, 2022 ONCA 259, dated March 30, 2022, is dismissed with costs. Dismissed, with costs |
|
| 2022-11-28 | All materials on application for leave submitted to the Judges, for consideration by the Court | |
| 2022-08-22 | Applicant's reply to respondent's argument, (Book Form), Completed on: 2022-08-25, (Printed version filed on 2022-08-22) | Akelius Canada Ltd. |
| 2022-08-10 | Notice of name, (Letter Form), (Printed version due on 2022-08-17) | 2436196 Ontario Inc. |
| 2022-08-10 | Certificate (on limitations to public access), (Letter Form), (Printed version due on 2022-08-17) | 2436196 Ontario Inc. |
| 2022-08-10 | Book of authorities, (Book Form), Completed on: 2022-08-25, (Printed version filed on 2022-08-10) | 2436196 Ontario Inc. |
| 2022-08-10 | Respondent's response on the application for leave to appeal, (Book Form), Completed on: 2022-08-25, (Printed version filed on 2022-08-10) | 2436196 Ontario Inc. |
| 2022-06-10 | Letter acknowledging receipt of an incomplete application for leave to appeal, FILE OPENED 2022-06-10 | |
| 2022-05-30 | Certificate (on limitations to public access), (Letter Form), (Printed version filed on 2022-05-30) | Akelius Canada Ltd. |
| 2022-05-30 | Notice of name, (Letter Form), (Printed version filed on 2022-05-30) | Akelius Canada Ltd. |
| 2022-05-30 | Book of authorities, (Book Form), Completed on: 2022-06-10, (Printed version filed on 2022-05-30) | Akelius Canada Ltd. |
| 2022-05-30 | Application for leave to appeal, (Book Form), require: signed copy of the TC reasons (rec'd 2022-06-15), Completed on: 2022-06-15, (Printed version filed on 2022-05-30) | Akelius Canada Ltd. |
Parties
Please note that in the case of closed files, the “Status” column reflects the status of the parties at the time of the proceedings. For more information about the proceedings and about the dates when the file was open, please consult the docket of the case in question.
Main parties
| Name | Role | Status |
|---|---|---|
| Akelius Canada Ltd. | Applicant | Active |
v.
| Name | Role | Status |
|---|---|---|
| 2436196 Ontario Inc. | Respondent | Active |
| B'Nai Fishel Corporation | Respondent | Active |
Counsel
Party: Akelius Canada Ltd.
Counsel
Maryam Shahid
5300 Commerce Court West
199 Bay Street
Toronto, Ontario
M5L 1B9
Telephone: (416) 869-5529
FAX: (416) 947-0866
Email: dmurdoch@stikeman.com
Agent
Ottawa, Ontario
K2P 0J8
Telephone: (613) 282-1712
FAX: (613) 288-2896
Email: msobkin@sympatico.ca
Party: 2436196 Ontario Inc.
Counsel
Eric Brousseau
123 John Street
Toronto, Ontario
M5V 2E2
Telephone: (416) 593-7107
Email: mross@rossnasseri.com
Agent
400-411 Roosevelt Avenue
Ottawa, Ontario
K2A 3X9
Telephone: (613) 780-2008
FAX: (613) 688-0271
Email: ctrivisonno@conwaylitigation.ca
Party: B'Nai Fishel Corporation
Counsel
Eric Brousseau
123 John Street
Toronto, Ontario
M5V 2E2
Telephone: (416) 593-7107
Email: mross@rossnasseri.com
Agent
400-411 Roosevelt Avenue
Ottawa, Ontario
K2A 3X9
Telephone: (613) 780-2008
FAX: (613) 688-0271
Email: ctrivisonno@conwaylitigation.ca
Summary
Keywords
Contracts — Breach — Remedies — Damages — Date for assessment of damages — Mitigation — How does a court determine the appropriate date for assessment of damages in a real estate transaction given its relationship to the doctrine of mitigation? — What is the correct interpretation of this Court’s decision in Southcott Estates Inc. v. Toronto Catholic District School Board, 2012 SCC 51, [2012] 2 S.C.R. 675, for the purposes of assessing mitigation in the context of global corporate groups?
Summary
Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.
The parties entered into an agreement of purchase and sale (“APS”) under which the applicant, Akelius Canada Ltd., agreed to buy from the respondents, 2436196 Ontario Inc. and B’Nai Fishel Corporation, seven residential apartment buildings for an overall purchase price of $228,958,320. The deal did not close as contemplated on January 7, 2016, because of the respondents’ breach in failing to remove certain encumbrances from title. In September 2018, the respondents sold the properties to a new purchaser for 25 percent more than the purchase price, some $56,544,318. The matter proceeded on a motion for summary judgment. The motion judge found that the respondents breached the APS and awarded the applicant $775,855.46 as costs thrown away. The applicant’s claim of $56,544,318 as its loss of the value of the transaction was dismissed. The motion judge declined to order costs in favour of either party in light of the mixed success on the motion. The Court of Appeal for Ontario unanimously dismissed the applicant’s appeal regarding the damages on the loss of the value of the transaction. It also dismissed the respondents’ cross-appeal regarding the motion judge’s award to the applicant of $775,855.46. The Court of Appeal awarded the costs of the appeal to the respondents in the agreed amount of $25,000.
Lower court rulings
Ontario Superior Court of Justice
2020 ONSC 6182, CV-16-547529
Respondents ordered to pay applicant damages for breach of contract in the amount of $775,855.46. The balance of the applicant’s claim in the amount of $56,544,318 is dismissed. No award of costs to either party.
Court of Appeal for Ontario
2022 ONCA 259, C68832
Appeal and cross-appeal dismissed. Costs of the appeal awarded to the respondents in the agreed amount of $25,000.
Filed documents
The memorandums of argument on an application for leave to appeal will be posted here 30 days after leave to appeal has been granted unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of the memorandum by filling out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.
If you have questions about a memorandum of argument or want to use a memorandum of argument, please contact the author of the memorandum of argument directly. Their name appears at the end of the memorandum of argument. The contact information for counsel is found in the “Counsel” tab of this page.
Downloadable PDFs
Not available
Related links
The factums of the appellant, the respondent and the intervener will be posted here at least 2 weeks before the hearing unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of factums by filling out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.
If you have questions about a factum or want permission to use a factum, please contact the author of the factum directly. Their contact information appears on the first page of each factum.
Downloadable PDFs
Not available
Related links
The condensed books of the appellant, the respondent and the intervener will be posted here upon receipt of the electronic version, 2 days prior to the scheduled appeal hearing. You may also obtain copies of condensed books by filling out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.
If you have questions about a condensed book or want permission to use a condensed book, please contact the author of the condensed book directly. Their contact information appears on the first page of each condensed book.
Downloadable PDFs
Not available