X-Wear & Nicky's Children's Store

X-Wear is a supplier of children's clothing in Ontario. It has entered into a contract with Nicky, a children's store in Paris, France, for the delivery of 500 holiday sweaters for a total payment of $10,000. The contract requires X-Wear to deliver the sweaters to Nicky by no later than

December 10 to meet the holiday-season demand. The contract states that "time is of the essence". As part of this contract, Nicky pays X-Wear a $5,000 deposit. The contract is governed by the laws of the Province of Ontario. X-Wear arranges for a courier company to deliver the 500 sweaters. On December 5, the courier company notifies X-Wear that the shipment of

sweaters was lost and cannot be found. X-Wear immediately (on December 5) informs Nicky's that the shipment was lost by the courier and it will not get the sweaters by December 10. X-Wear offers to deliver a new set of 500 sweaters but the earliest they would get to Paris would

be January 5. For Nicky's that is too late as it will have missed the holiday market. Nicky wants to discharge the contract with X-Wear.

Can Nicky discharge the contract with X-Wear? Yes or No. Explain and support your answer by identifying the applicable law and applying it to the facts.