Aaron Mayer Postelnik

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 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.

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, 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.

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.

Multiple defendants moved under Rules 21 and 25 of the Rules of Civil Procedure to strike a lengthy statement of claim alleging fraud, conspiracy, breach of fiduciary duty, breach of trust, and unjust enrichment arising from unpaid German loan obligations allegedly concealed through asset transfers and trusts.

The court held that the pleading failed to set out material facts supporting the elements of the alleged causes of action and largely consisted of vague allegations and legal conclusions.

Several claims were struck as disclosing no reasonable cause of action, though the plaintiff was granted leave to amend.

The court emphasized the requirement to plead material facts and provide full particulars for allegations of fraud and related claims.

The plaintiff was also ordered to properly produce loan documents referenced in the pleadings.

The realtor defendants brought a motion to dismiss or stay the action as an abuse of process, arguing that all parties had operated under the mistaken belief that the claim against them had been struck following a consent order requiring delivery of an affidavit of documents.

In fact, no formal order dismissing the action had ever been obtained.

The moving parties argued that principles of finality and fairness required that the action be treated as if it had been dismissed and that the delay in pursuing the claim against them justified termination of the proceeding.

The court held that the finality principle applies only where a final order exists and that prejudice cannot be presumed where the action remains valid and subsisting.

Balancing fairness and the absence of demonstrated prejudice, the court permitted the action to continue against the realtor defendants.

The appellant appealed an order of a Master requiring the appellant to post security for costs.

The Master had found that impecuniosity had not been established, that the appellant’s case did not demonstrate a high likelihood of success, and that no hardship would result even if impecuniosity could not be shown.

Applying the standard of review for appeals from a Master, the court found no palpable or overriding error and no error of law in the Master’s reasoning.

The appeal was dismissed and the security for costs order remained in effect.

The plaintiff corporation sought an adjournment of the defendants’ motion to dismiss the action for failure to comply with interlocutory orders requiring payment of costs and posting of security for costs.

The plaintiff also requested extensions of time and a reduction of the security amount.

The court considered Rules 56.06, 56.07, 57.03, and 60.12 of the Rules of Civil Procedure, emphasizing the balance between enforcing court orders and allowing disputes to be decided on their merits.

Although the plaintiff had failed to comply with prior orders and had only partially raised the required funds, the court found limited evidence supporting a short final extension.

The court granted a final extension of time to post security for costs and pay outstanding costs but refused to reduce the security amount.