Legal Blog:

Damages (Real Estate)

Baldwin v. Williams 2025 Ont SCJ

Purchasers breached an agreement of purchase and sale because they could not get financing after the property had fallen in value. The vendors resold the property for a loss. The court noted that the duty to mitigate only requires the plaintiff to take reasonable steps, not all possible steps, to reduce its loss. The court ordered damages for the difference in the two sale prices and extra costs that the vendor’s incurred as a result of owning the property from the date of the original closing to the date of the final closing of the resale.

Encroachment

Bachli v. McLeod 2025 Ont SCJ

Defendant’s retaining wall encroached on his neighbour’s property. Predecessors in title had entered into an encroachment agreement that allowed the encroachment for 21 years. The agreement had expired and the new neighbour wanted the encroachment gone. The court noted that the parties had not negotiated an extension or a new agreement and granted a declaration that the retaining wall was encroaching on the neighbour’s land.

Krystyne Rusek Recognized by Best Lawyers 2026

Speigel Nichols Fox LLP is delighted to have Krystyne Rusek recognized for a second year in a row by Best Lawyers 2026 in the area of Trusts and Estates in Canada.

Ultimate Limitation

We expect that everybody now knows about the basic limitation period: two years from the date that an aggrieved party (plaintiff) knew or ought to have known about a claim. Because the discovery or deemed discovery may not take place for many years, the basic limitation period, depending upon the circumstances, can be almost unlimited.

The discovery principle arises from the law’s reluctance to remove a right of action from a plaintiff before that plaintiff even knows that a right of action exists. For example, if a negligent motorist causes an accident that puts a pedestrian into a coma for two years, it would hardly be fair for the limitation period to eliminate the pedestrian’s right of action before the pedestrian even awakened.

CPL (2)

A certificate of pending litigation (CPL) is a notice registered against title to property informing the world that title to this property is in issue. Any purchaser or mortgagee who then deals with the property does so at its peril. An action to set aside a mortgage or a transfer of land under the Fraudulent Conveyances Act (Act) is often joined with a motion for the issuance of a certificate of pending litigation. After all, what good will it do to bring an action to set aside a transfer if, just before trial, the fraudsters simply re-transfer the property to another person complicit in the fraud or, worse yet, sell or mortgage the property to arm’s length third parties.

A CPL may be obtained on motion without notice (Rule 42.01 of the Rules of Civil Procedure) and, if there is an apparent claim for an interest in land, it is not overly difficult to obtain a CPL. The real fight ensues when the property owner is notified, as required by the Rules, that the land has now been bound by the CPL. Such was the case in Nedaneg Financial Corporation v. Talebzadeh, a 2025 decision of the Ontario Superior Court of Justice. In Nedaneg, however, the plaintiff brought its motion on notice to the defendants.