Aaron Mayer Postelnik

The moving party brought a motion for leave to appeal the decision of Koehnen J. dated March 19, 2025.

The Divisional Court dismissed the motion in a brief endorsement and awarded costs of $5,000 to the responding party.

This summary trial decision concerns a failed real estate transaction.

The court found that the defendant, Qura Tul Ain, breached a binding agreement to purchase the plaintiff Ammar Ahmad’s home.

The court rejected the defendant’s arguments and crossclaim against her real estate brokerage, finding no evidence of bad faith, concealment, or breach of fiduciary duty.

Damages were awarded to the plaintiff for the difference in sale price, carrying costs, repairs, legal fees, and rental costs, but not for moving expenses or real estate commission.

The total damages awarded were $386,460.60.

The court considered a motion by the Defendants for leave to late-serve an expert report on the standard of care in a real estate negligence action.

The report was served after the pre-trial conference, and the Third Parties opposed its admission.

The court applied the test under Rule 53.08 of the Rules of Civil Procedure, considering whether there was a reasonable explanation for the delay, whether prejudice would result, and whether the trial would be unduly delayed.

The court found the explanation of solicitor’s inadvertence to be at the low end of reasonable, but accepted it.

The court concluded that any prejudice could be managed by costs or adjournment, and that the trial would not be unduly delayed.

Leave was granted to admit the report, subject to strict terms to protect the Third Parties.

The moving parties brought a motion for leave to appeal the decision of Rees J. dated December 18, 2024.

The Divisional Court allowed the motion for leave to appeal.

As no costs outline or bill of costs was provided, the court made no order as to costs.

The court considered a motion by Century 21 Harvest Realty Ltd. and Samuel Kin Yip Chang for security for costs against 5000917 Ontario Inc. in a commercial real estate dispute.

The court reviewed the applicable legal principles under Rule 56.01, including the justness of ordering security, the financial circumstances of the parties, and the merits of the claims.

The court found that 5000917 Ontario Inc. did not have sufficient assets in Ontario to satisfy a costs award and that its claims did not have a clear chance of success on the record.

The court ordered security for costs in the amount of $30,000, to be paid in two installments, and reserved costs of the motion to the trial judge.

The defendants brought a motion for an order requiring the plaintiff, a corporate entity, to post security for costs.

The plaintiff conceded it had no assets or income but argued it was impecunious and its claim was not devoid of merit.

The court found the plaintiff failed to provide sufficient financial disclosure to establish impecuniosity and could not assess the merits at an interlocutory stage.

While noting the defendants' delay in bringing the motion, the court ordered the plaintiff to post partial security for costs, balancing the need to protect defendants from unenforceable cost awards against allowing a claim to proceed.

The defendants brought a motion for security for costs against the corporate plaintiff in an action arising from the purchase of a radiology clinic.

The plaintiff claimed it was impecunious and that its claim was not devoid of merit.

The court found that the plaintiff failed to provide sufficient financial disclosure to establish impecuniosity and that the merits of the complex claim could not be properly assessed at the interlocutory stage.

Applying a holistic approach, the court ordered the plaintiff to post security for costs in the total amount of $80,000 on a partial indemnity scale.

This endorsement from a case conference addresses delays in the discovery process across several consolidated actions.

The primary issue identified was Mr. Behzad Pilehvar's failure to produce all relevant documents, including approximately 11,000 emails and text messages.

The court ordered Mr. Pilehvar to deliver a further and better affidavit of documents by December 19, 2023.

The endorsement also noted Mr. Pilehvar's counsel's contemplation of bringing a motion to remove himself from the record, which would impact scheduled discoveries and a planned mediation session in early spring 2024.

The court provided directions for scheduling future motions and case conferences.

The defendants brought a motion for security for costs against the corporate plaintiff in an action arising from a commercial lease dispute.

The plaintiff conceded it had insufficient assets to pay a costs award but argued its claims had a good chance of success and its impoverishment was caused by the defendants' conduct.

The court found the merits could not be determined on an interlocutory basis due to disputed facts and credibility issues.

Applying a holistic approach, the court ordered the plaintiff to post security for costs in the amount of $30,000 for the corporate defendants and $15,000 for the real estate agent defendant, up to and including examinations for discovery.

The plaintiff and two defendants were partners in an income property held in trust by one defendant.

After the plaintiff demanded to be bought out, the defendant holding title sold the property to a third party without the plaintiff's consent or full disclosure.

The plaintiff sued for breach of fiduciary duty, negligence, and an accounting, and also sued the real estate agent and brokerage.

The court found the partnership was dissolved by the plaintiff's demand, but fiduciary duties continued.

The title-holding defendant breached his duty of full disclosure but had authority to sell the property to wind up the partnership.

The sale was not improvident.

The court ordered an accounting but dismissed the claims for damages, negligence, and the claims against the real estate agent and brokerage.

The court determined the costs payable following a trial where the plaintiff vendor successfully sued the defendant purchaser for failing to close a real estate transaction, and successfully defended against the purchaser's claims of conspiracy, fraud, and professional negligence.

The court awarded the vendor and her real estate agent partial and hybrid substantial indemnity costs totaling $265,000, considering the unproven allegations of fraud, the complexity of the proceedings, and the impact of Rule 49 offers to settle.

The plaintiff, Klara Kazakevich, brought an action against the defendant, Konstantin Sychev, for damages arising from an aborted residential real estate transaction.

Sychev had agreed to purchase Kazakevich's property but failed to close, alleging that the waiver of a condition was backdated and that his real estate agent, Angelika Bekman, was negligent and made misrepresentations.

The court found that the agreement of purchase and sale was validly formed, all conditions were duly waived, and there was no fraud or misrepresentation.

Sychev's refusal to close constituted an anticipatory breach.

The court awarded Kazakevich damages for the difference in the resale price and carrying costs, and dismissed Sychev's claims against Kazakevich and Bekman.

At the eleventh case management conference in this action, the plaintiffs sought an expedited trial date and an order for a summary trial under Rule 76.12.

The defendants opposed the summary trial process and sought time to complete discoveries and deliver responding expert reports.

The court declined to order a summary trial at this stage but established a timetable for the delivery of amended pleadings, completion of discoveries, and exchange of expert reports, with the next case management conference scheduled for January 2020.

The defendants brought motions to strike the plaintiffs' claims for fraudulent and negligent misrepresentation regarding the purchase of a condominium unit, arguing that the unit was purchased by a corporation rather than the plaintiffs personally.

The court dismissed the motions on two grounds.

First, the motions were brought after an inordinate and unexplained delay, contrary to rules 2.02 and 21.02.

Second, on the merits, it was not plain and obvious that the plaintiffs' claims in their personal capacity as prospective purchasers and intended occupants would fail, nor was it plain and obvious that they lacked legal capacity to bring the claims.

The defendants, Ted Slightham and Tatiana Doubovsky, sought to schedule motions under Rule 21.01 to dismiss the action against them, arguing the Fresh as Amended Statement of Claim did not plead a reasonable cause of action or that the plaintiffs lacked legal capacity.

The plaintiffs, Walter Zuppinger and Min Yan, opposed, arguing the motions were untimely and would cause delay.

The court, exercising its gatekeeping function in a case-managed action, determined that granting the defendants' request to advance these motions was proportionate, efficient, and timely given the significant change in the action following a partial settlement.

The court provided detailed case management directions for the scheduling and conduct of the motions, reserving substantive assessment to the motions judge.

In a case management attendance for five related actions arising from aborted real estate transactions, the court addressed three outstanding motions.

The moving party's motion to strike a cross-claim was adjourned sine die to allow the parties to resolve representation issues.

The moving party's motion for further documentary production was deferred, with the court noting that questions regarding additional documents should first be asked at examinations for discovery.

Finally, the responding parties' motion to approve discovery plans was granted, subject to minor amendments and final comments from a non-attending party.

This endorsement addresses eight related motions in five consolidated actions stemming from uncompleted real estate transactions.

The court case-managed the proceedings, resolving most motions by agreement or direction.

The primary substantive dispute adjudicated concerned the quantum of security for costs to be paid by the plaintiffs, Gui Zhao and Juanli Liu, to the defendant Qing Hui, which the court set at $27,000, a figure between the parties' proposals.

Other motions, including those for discovery and to strike a cross-claim, were adjourned sine die with directions for future resolution or agreement.

The appellants purchased a rural property in late 2009 and subsequently discovered that an adjoining property had an option to purchase registered in favor of a solar farm company.

The appellants claimed they would not have purchased the property had they known of this option.

They sought damages from the respondent, a real estate professional, for negligence.

The motion judge dismissed the claim on the basis that the two-year limitation period had expired before the claim was instituted.

The appellants appealed, arguing the limitation period did not begin to run until construction of the solar farm commenced in February 2013.

The Court of Appeal upheld the dismissal, finding that the appellants discovered their cause of action by February 2010 when they learned of the solar farm option and its negative impact on property value.

The plaintiff brought an action regarding a failed real estate transaction against the sellers, the real estate agents, the brokerage, and the Real Estate Council of Ontario (RECO).

RECO moved to dismiss the action against it, arguing it owed no private law duty of care to the plaintiff.

The realtor defendants moved to strike several paragraphs of the Statement of Claim for improperly pleading legal argument.

The court granted both motions, dismissing the action against RECO and striking the argumentative paragraphs with leave to amend, awarding $11,000 in costs to the moving parties.

At a case management conference, the plaintiffs sought costs against the defendant condominium corporation for the late production of over 4,600 pages of documents.

The late production necessitated vacating a scheduled mediation and modifying the case management timetable.

The court found that the defendant's breach of the court-ordered timetable resulted in foreseeable delay and wasted costs.

The plaintiffs were awarded $1,500 in costs payable forthwith.