Law360 Canada ( August 12, 2022, 6:08 AM EDT) -- Appeal by Akelius Canada Ltd. (Akelius) from the motion judge’s finding that it was restricted to its damages as of the closing date. Cross-appeal by the respondents from the motion judge’s award to Akelius of its costs thrown away. Appeal by both parties from the motion judge’s decision not to award costs to either party. On August 25, 2015, the parties entered into an agreement of purchase and sale (APS) under which Akelius agreed to buy from the respondent seven residential apartment buildings in Toronto for an overall purchase price of $228,958,320. That was the market value of the properties as of the date of breach. The deal did not close as contemplated on January 7, 2016, because of the respondent vendors’ breach in failing to remove certain encumbrances from title. Akelius had paid the deposits required pursuant to the APS. When the deal did not close, the deposits were returned to Akelius, which returned the funds to its parent company. The matter proceeded on a motion for summary judgment. The motion judge found that the respondent vendors breached the APS, and he awarded Akelius $775,855, finding that those were costs reasonably incurred and thrown away by Akelius as a result of the respondents’ breach of the APS. The lion’s share of the damages claimed by Akelius arose out of the fact that, in 2018, the respondent vendors resold the properties to another purchaser for approximately $56,544,318 more than its market value on the date of the breach. Akelius did not seek damages for lost income, only for the lost capital gains. The motion judge rejected that manner of measuring damages. The motion judge stated that the fact that the respondents ultimately made a speculative profit did not give Akelius such profit as a measure of damages. The motion judge found that Akelius had either mitigated its damages in full or had failed to mitigate. The motion judge declined to order costs in favour of either party in light of the mixed success on the motion. Akelius took the position that the motion judge committed reversible errors....