“We find no error in the motion judge’s disposition of the motions.
Though there was a supervening event (the announcement of a new government policy), the supervening event did not constitute frustration of the agreement, as the announcement was not such that “performance of the contract becomes a ‘thing radically different from that which was undertaken by the contract’”: Naylor Group Inc. v. Ellis-Don Construction Ltd., 2001 SCC 58, [2001] 2 S.C.R. 943, at para. 53.
Frustration applies to contracts including real estate transactions, when a supervening event alters the nature of the appellant’s obligation to contract with the respondent to such an extent that to compel performance despite the new and changed circumstances would be to order the appellant to do something radically different from what the parties agree to under their contract: Naylor, at para. 55.
A contract is not frustrated if the supervening event was contemplated by the parties at the time of contracting and was provided for or deliberately chosen not to be provided for in the contract: Capital Quality Homes Ltd. v. Colwyn Construction Ltd. (1975), 1975 CanLII 726 (ON CA), 9 O.R. (2d) 617 (C.A.), at p. 626.
A party claiming that a contract has been frustrated has the onus of proving the constituent elements necessary to establish frustration: Bang v. Sebastian, 2018 ONSC 6226, at para. 30; Gerstel v. Kelman, 2015 ONSC 978, 40 B.L.R. (5th) 314.”