What is an anticipatory breach and what can I do about it in Ontario?

An anticipatory breach occurs when one party, before the performance date arrives, makes it unequivocally clear — through words or actions — that they will not perform their contractual obligations. Ontario courts recognize this as a breach even though the performance deadline has not yet passed.

When faced with an anticipatory breach, you have two choices. You can accept the repudiation, treat the contract as ended, and immediately sue for damages. Or you can affirm the contract, insist on performance, and wait until the performance date to see whether the other party follows through — though this carries risks, as your own damages obligation continues if the breaching party ultimately performs or if circumstances change.

Accepting the repudiation and suing right away is often the more practical option because it lets you mitigate losses sooner and start litigation without waiting. However, once you accept the repudiation you cannot go back and insist on performance.

Either way, do not ignore clear signals that the other side will not perform. Document every statement and communication, and speak with a litigation lawyer promptly to choose the strategy that best protects your position.