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ASSESSMENT OF DAMAGES - Limiting factors - Duty to mitigate

Monday, April 19, 2021 @ 9:27 AM  


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Appeal by the defendants from a trial decision refusing to award them damages for the respondents’ wrongful filing of a caveat against land owned by the appellants. The respondents claimed a beneficial interest in part of the land pursuant to an oral agreement. The respondents’ claim was dismissed at trial. The caveat remained in place for six years. In a supplementary decision, the trial judge held that the appellants had completely failed to mitigate any damages suffered from the unlawful filing of the caveat because they failed to proceed with an early, pretrial application to have the caveat discharged.

HELD: Appeal allowed. Whether the respondents were able to prove that the appellants failed to mitigate part or all their damages by means other than pursuing a pretrial application for discharge of the caveat was remitted to the trial judge for determination after receipt of further evidence. The trial judge engaged in reviewable error in concluding that the respondents met their onus of establishing that the appellants failed to mitigate their damages simply because of their failure to pursue an early application for discharge of the caveat. Such application, had it been pursued, would very likely have been adjourned, pending the conclusion of the trial, or consolidated with the other issues at the trial. The quantum of damages suffered by the appellants, if any, because of the filing of the caveat, was thus remitted to the trial judge.

Lloyd Gardens Inc. v. Chohan, [2021] A.J. No. 265, Alberta Court of Appeal, M.B. Bielby, B.L. Veldhuis and R. Khullar JJ.A., February 25, 2021. Digest No. TLD-April192021003