Legal Blog

Honest Performance Breach

Bhatnager v. Cresco Labs Inc. 2023 Ont CA

The vendor claimed that the purchaser ought to have informed the vendor of an after-closing occurrence that would have affected the vendor’s entitlement to a post-closing adjustment. Motion judge agreed, but held that purchaser suffered no damages because the evidence showed that, knowing about the problem or not, the purchaser could have done nothing about it. The Court of Appeal dismissed the appeal and stated that a breach of a duty of honest performance (per the SCC in Callow) does not presume a claimant’s damages; the claimant must still prove that there was a lost opportunity that had monetary adverse effects. The Court also held that, on the evidence, that there actually was no breach – because the vendor had told the purchaser of the problem on a timely basis.

Written by Jonathan Speigel, the founding partner of Speigel Nichols Fox LLP, leads the litigation and construction practices.