Anticipatory Breach and Deposit: Laraia v. Garber

What Laraia v. Garber (2026 ONSC 5868) held about buyer "can't close" messages, acceptance of repudiation, and the deposit on an Ontario resale.

11/4/20266 min read

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Key points

Laraia v. Garber, 2026 ONSC 5868 is an Amended Endorsement of the Ontario Superior Court of Justice, released June 25, 2026.
The court held, on these facts, that the buyer's June 2024 messages were clear anticipatory breach of an agreement of purchase and sale.
The sellers accepted the repudiation in writing; later financing and appraisal steps did not revive the agreement.
The court ordered the listing brokerage to release the deposit (and any interest) to the sellers, with prejudgment interest under the Courts of Justice Act.
Sellers' counsel reported in October 2026 that the buyer has appealed; no appeal decision found as of Nov 4, 2026.

Facts and chronology

The proceeding was an application about whether the buyer repudiated the agreement by anticipatory breach, whether later conduct revived it, and whether the sellers were entitled to the deposit.

Closing under the agreement was set for July 16, 2024, with time of the essence.

The agreement had been financing-conditional; the buyer fulfilled and removed that condition on May 3, 2024.

The agreement was not conditional on the sale of the buyer's own home.

On June 13, 2024 the buyer contacted the listing agent that she would be unable to complete on the closing date.

On June 14, 2024 she messaged the sellers' lawyer's office.

She repeated the inability on June 21, 2024, proposed termination or an extension, and the sellers refused and said they expected closing as agreed.

On June 24, 2024 the buyer signed a mutual release seeking to end the agreement and, as formal notice, demanded that the sellers re-list the property to mitigate damages.

On June 26, 2024 she again wrote that she would not complete and again asked that the property be re-listed.

On June 27, 2024 the sellers' counsel wrote that the buyer had committed an anticipatory breach, that the sellers accepted the breach, and that they reserved rights including as to the deposit.

What the court held

The court described anticipatory breach, citing Zoleta v. Singh, as repudiation by express language, conduct, or implication before obligations fall due, judged objectively by whether a reasonable person would see the other party as deprived of substantially the whole benefit of the contract.

As cited in Laraia, the elect-to-affirm-or-accept point is attributed to Zoleta v. Singh, para. 46; clear and unambiguous acceptance, which may be inferred from conduct viewed objectively, is attributed to Cachet Summerhill Developments Inc. v. Kaznlson, 2021 ONSC 2512, para. 15; Jedfro Investments (U.S.A.) Ltd. v. Jacyk, 2007 SCC 55 appears with "See" — the acceptance rule is not attributed to Jedfro.

On these facts, the court held the buyer's June messages were clear and unequivocal anticipatory breach: read together they said she could not sell her house, would not have the funds to close on July 16, 2024, and that the sellers should re-list to mitigate damages.

The holding is on these facts; the endorsement does not stand for a rule that saying one cannot close is always a breach.

The court took into account that the buyer was a seasoned real estate agent with more than twenty years of experience and that she had voluntarily waived the financing condition.

Once the sellers accepted the repudiation on June 27, 2024, later steps — seeking financing and asking for appraisal access — did not revive the agreement.

The court held the sellers had no contractual obligation, after acceptance of repudiation, to give appraisal or financing access; waiving the financing condition had already removed any inspection right tied to financing.

An unaccepted offer to revive the contract on new terms does not validate the old contract.

The court rejected the buyer's argument that the sellers breached a duty of honest performance or terminated strategically for market reasons; it found they relied on the buyer's own written statements and acted after the June 24 and June 26 emails.

Relying on Kalis v. Pepper, 2015 ONSC 453 (as described in Laraia), the court held that where the purchaser repudiates, the vendor is entitled to the deposit; it ordered the listing brokerage to release the deposit and any interest to the sellers, plus prejudgment interest under the Courts of Justice Act.

Appeal status

Sellers' counsel reported in October 2026 that the buyer has appealed; no appeal decision found as of Nov 4, 2026.

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This article is general information about Ontario law as of November 4, 2026. It is not legal advice.

Sources: Laraia v. Garber, 2026 ONSC 5868 (https://canlii.ca/t/knrdv).Key points

Laraia v. Garber, 2026 ONSC 5868 is an Amended Endorsement of the Ontario Superior Court of Justice, released June 25, 2026.
The court held, on these facts, that the buyer's June 2024 messages were clear anticipatory breach of an agreement of purchase and sale.
The sellers accepted the repudiation in writing; later financing and appraisal steps did not revive the agreement.
The court ordered the listing brokerage to release the deposit (and any interest) to the sellers, with prejudgment interest under the Courts of Justice Act.
Sellers' counsel reported in October 2026 that the buyer has appealed; no appeal decision found as of Nov 4, 2026.