Douse v. Mascioli et al., (1997) 34 O.T.C. 196 (GD)

• Judge: Grossi, J.
• Court: Ontario Court of Justice General Division (Canada)
• Case Date: June 25, 1997
• Jurisdiction: Ontario
• Citations: (1997), 34 O.T.C. 196 (GD)

Douse v. Mascioli (1997), 34 O.T.C. 196 (GD)

MLB headnote and full text

Temp. Cite: [1997] O.T.C. TBEd. JN.158

Veronica Douse (plaintiff) v. Salvatore Mascioli and Claudia Mascioli (defendants) and Frank Trotta and Family Trust Corporation (third party)

(File No. 360822/89)

Indexed As: Douse v. Mascioli et al.

Ontario Court of Justice

General Division

Grossi, J.

June 25, 1997.

Summary:

Douse agreed to purchase property from the Masciolis for $129,900. Douse had intended to either resell the property or start a nursing home. The Masciolis refused to retain and instruct a solicitor to represent them to close the transaction. They advised Douse's husband that they would not close the transaction. They later entered into contracts to sell the property for $165,000 and, then, $230,000. Douse sued for damages, including punitive damages, for anticipatory breach of the contract. The Masciolis raised the issue of non est factum and brought a third party claim against Trotta, a real estate agent, and Family Trust Corporation, who listed the property, for contribution and indemnity.

The Ontario Court (General Division) allowed Douse's action and dismissed the Masciolis' claim. It held that the three elements for anticipatory breach were present. The court held that it was more likely that Douse would have resold the property than operate a nursing home and awarded her $38,100 representing the profit she would have made if she had resold. The court held that the date of the $165,000 offer was a fair assessment date because it represented an adequate amount of time for Douse to have resold the land if she had acquired it. Douse's use of the property as a nursing home was mutually exclusive of her use of reselling it for profit and it was inappropriate to award damages for the lost business opportunity. The court refused to award Douse punitive damages as she did not have a sufficient interest in the land to warrant the preference of specific performance of the contract over the remedy of damages. The Masciolis' conduct was not so high handed as to warrant a finding for punitive damages. The court rejected the Masciolis' non est factum argument.

Damages - Topic 1305

Exemplary or punitive damages - Breach of contract - See paragraph 33.

Damages - Topic 6100

Contracts - Sale of land - Breach by seller - Measure of damages - See paragraphs 28 to 32.

Damages - Topic 6102

Contracts - Sale of land - Breach by seller - Time for assessment - See paragraphs 28, 29.

Sale of Land - Topic - 3471

Contract - Discharge - Repudiation - Anticipatory breach - See paragraphs 14 to 20.

Sale of Land - Topic - 3761

Contract - Discharge - Rescission - Or annulment - Grounds - Non est factum - See paragraph 21.

Sale of Land - Topic - 6156

Completion - Tender of purchase price - Consequences of defective tender - See paragraphs 17 and 20.

Sale of Land - Topic 8763

Remedies of purchaser - Damages - Time for assessment of - See paragraphs 28, 29.

Sale of Land - Topic 8774

Remedies of purchaser - Damages - Measure of - See paragraphs 28 to 31.

Cases Noticed:

Valemont Development Corp. v. Royal Bank of Canada (1996), 3 O.T.C. 71 (Gen. Div.), refd to. [para. 15].

McCallum et al. v. Zivojinovic (1977), 16 O.R.(2d) 721 (C.A.), refd to. [para. 16].

Bethco Ltd. and 471927 Ontario Ltd. v. Clareco Canada Ltd. (1985), 12 O.A.C. 23; 52 O.R.(2d) 609 (C.A.), refd to. [para. 17].

Jorian Properties Ltd. v. Zellenrath and KRKA Construction Ltd. (1984), 4 O.A.C. 107; 46 O.R.(2d) 775 (C.A.), refd to. [para. 26].

Johnson v. Agnew, [1980] A.C. 367 (H.L.), refd to. [para. 28].

306793 Ontario Ltd. v. Rimes (1979), 25 O.R.(2d) 79 (C.A.), refd to. [para. 28].

McClement v. Lovatt (1954), 13 W.W.R.(N.S.) 695 (Man. Q.B.), revd. (1955), 15 W.W.R.(N.S.) 426 (Man. C.A.), refd to. [para. 30].

Murano v. Bank of Montreal, [1995] O.J. No. 883 (Gen. Div.), refd to. [para. 33].

Authors and Works Noticed:

Fridman, Gerald Henry Louis, The Law of Contracts in Canada (3rd Ed. 1994), pp. 600, 601 [para. 14].

Counsel:

Robert M.S. Lambert, Q.C., for the plaintiff;

Antonio Conte, for the defendants.

This action was heard on October 21 to 24, December 3 to 6 and 16, 1996, by Grossi, J., of the Ontario Court (General Division), who delivered the following decision on June 25, 1997.