Why the Vendor Won Without Calling an Expert
James D. Taylor Holdings Ltd. v. WJ Groundwater Canada Limited, 2025 ONSC 7243
When a purchaser walks away from a firm Agreement of Purchase and Sale, damages are often straightforward: the difference between the contract price and the eventual resale price. What is not straightforward—at least for defaulting purchasers—is how to use expert evidence to avoid summary judgment.
Justice Charney’s decision in James D. Taylor Holdings Ltd. v. WJ Groundwater Canada Limited is a clear reminder that expert appraisal evidence does not automatically create a triable issue, and, critically, that a vendor may succeed without calling an expert witness at all.
The Plaintiffs’ “Expert” — Present, but Not Called
The plaintiffs did obtain an appraisal report valuing the property between $1.55 million and $1.65 million as of January 2023. However:
- The author did not swear an affidavit
- The author did not sign a Rule 53 Acknowledgement of Expert’s Duty
- The report expressly stated that its “Intended Use” was “to assist with litigation settlement related to the subject purchase and sale”
Justice Charney held that:
“Since the Report was not introduced through an affidavit sworn by its author, and the author of the Report did not sign a Rule 53 Acknowledgment, it is not admissible as expert evidence on this motion.”
Importantly, the plaintiffs did not attempt to rely on it as expert evidence. Instead, they relied on:
- The arm’s-length resale price, after
- Approximately nine months of open-market exposure, and
- Repeated, documented price reductions.
This approach aligned squarely with Ontario appellate authority.
When No Expert Is Required
Justice Charney reaffirmed a well-settled principle:
If a property is sold on the open market in an arm’s length transaction, the resale price is the best evidence of market value.
Citing Arista Homes (Richmond Hill) Inc. v. Rahnama, 2022 ONCA 759, the Court emphasized:
“In such circumstances, there will be no need for expert evidence.”
The plaintiffs’ damages case required only two numbers:
- The APS price ($2.4 million)
- The resale price ($1.5 million)
No expert opinion was needed to bridge that gap.
The Defendant’s Expert: Admissible but Ineffective
The defendant did call a properly qualified expert:
- Robert Solnick, Vice President, Cushman & Wakefield
- Accredited Appraiser, AIC
- Signed a Rule 53 Acknowledgement
- Filed a compliant expert report
Mr. Solnick opined that the market value was approximately $2.24 million, significantly higher than the resale price.
However, this expert evidence failed for a critical reason.
The Fatal Flaw: Valuation Is Not Mitigation Evidence
Justice Charney held that the defendant’s expert report:
- Critiqued the plaintiffs’ appraisal methodology
- Offered an alternative market value opinion
- Did not analyze the plaintiffs’ sales process
Specifically, the expert did not:
- Identify any unreasonable steps taken by the plaintiffs
- Identify any reasonable steps not taken
- Opine that different marketing would have produced a higher price
As the Court noted:
“The Defendant’s expert report is a critique of the Plaintiffs’ expert’s appraisal methodology, it is not a critique of or comment on the Plaintiff’s sales process.”
That distinction was decisive.
The Governing Test: Marshall v. Meirik
Justice Charney relied heavily on Marshall v. Meirik, approved by the Court of Appeal, which sets out the defendant’s burden where mitigation is challenged.
To defeat summary judgment, the purchaser must present evidence showing:
- Specific failures in mitigation, and
- That mitigation was possible and would have reduced the loss.
As Justice Kimmel held in Marshall (and as Justice Charney adopted):
“The absence of evidence from a professional which opines that the shortcomings in the sale process alleged by the purchasers actually had an impact on the final sale price… is fatal.”
The defendant’s expert did not meet this test.
Argument Is Not Evidence
Defence counsel argued that:
- The initial listing price was too high, and
- The final price reduction created a “fire sale”
Justice Charney rejected this outright:
“Argument and speculation by counsel cannot take the place of evidence.”
Without expert testimony tying the alleged marketing flaws to the resale price, the defence collapsed.
Considerations for Litigators
For Vendors
- You do not need an expert appraisal if you have a clean, arm’s-length resale.
- Courts will accept the market’s verdict over theoretical valuations.
For Purchasers
- A valuation opinion alone is insufficient.
- Your expert must address mitigation conduct, not just price.
- Without evidence that different steps would have changed the outcome, summary judgment is likely.
For Experts
- If mitigation is the issue, the opinion must analyze:
- Listing strategy
- Pricing history
- Market exposure
- Causation between conduct and price
Bottom Line
In Taylor Holdings, the plaintiffs won without calling an expert witness, while the defendant lost despite calling one. The case underscores a core principle of Ontario real estate litigation:
Market evidence beats appraisal theory, unless the expert can prove the sale process was unreasonable.
Brian Madigan LL.B., Broker
www.OntarioRealEstateSource.com