Damages for Lost Opportunity Cannot be Awarded in a Failed Real Estate Transaction

  • April 05, 2021
  • Daniel Waldman, Pallett Vallo LLP

A recent decision from the Ontario Superior Court of Justice has confirmed that damages for lost opportunity will not be awarded when a real estate deal goes wrong. 

In Akelius Canada Inc. v. 2436196 Ontario Inc., 2020 ONSC 6182, Justice Morgan held that when a real estate deal falls apart due to a seller’s default, damages are to be determined at the closing date and a claim for the future appreciation of the property is therefore not available.

In Akelius, two sophisticated real estate investors entered into an Agreement of Purchase and Sale (“APS”) in 2015 for seven residential apartment buildings in Toronto.  The plaintiff buyer was a Canadian subsidiary of a large international investment corporation with holdings across Europe, the United States, and Canada. Over the course of the transaction, the purchase price was negotiated to a final price of $225,400,000.