Relief from Forfeiture

King v. 2397043 Ontario Inc., 2019 ONSC 2135 (CanLII)

[11] Section 98 of the Courts of Justice Act, R.S.O. 1990, c. C.43 authorizes a court to grant relief against forfeiture, on such terms as are just. However, relief from forfeiture is to be granted sparingly and the party seeking the relief bears the onus of making the case for it. (Ontario (Attorney General) v. 8477 Darlington Crescent, 2011 ONCA 363, at para 87).

[12] In exercising its discretion to grant relief from forfeiture, a court must consider three factors: (i) the conduct of the Applicant; (ii) the gravity of the breach; and (iii) the disparity between the value of the property forfeited and the damage caused by the breach: Kozel v. The Personal Insurance Company, 2014 ONCA 130, at para. 31; Shah v. Southdown Towns Ltd, 2017 ONSC 5391 (“Shah”), at para. 31.

Kirshenblatt v. Kriss, 2012 ONSC 6568 (CanLII)

[18] There is another compelling reason that the Court is in a position to grant summary judgment: even if the evidence were not clear on the issue of anticipatory breach (which I find that it is) it is uncontroverted that the defendant made a profit. A deposit may be forfeited where the purchaser defaults. In this case, if Ms. Kriss were to keep the deposit it would represent an unjust windfall. A court can exercise its discretion and grant relief from forfeiture of a deposit on an equitable basis: Laredo Construction Inc. et al. v. Sinnadurai, 2005 CanLII 46934 (ON CA), (2005) O.J. No. 5429, 78 O.R. (3d) 321 (C.A.). As I will explain below, it is clear that relief from forfeiture is appropriate.