Aaron Postelnik

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 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.

The plaintiffs brought an action for condominium deficiencies against the condominium corporation, board members, and the vendor.

Multiple third, fourth, and fifth party claims were subsequently issued, resulting in nineteen parties.

A case management conference was convened to address the scheduling of examinations for discovery and mediation.

To balance the parties' discovery rights with the need for proportionality and cost-efficiency, the court ordered time-limited 'summary' examinations of three hours per witness to take place prior to a mandatory mediation session.

If the matter does not settle at mediation, full examinations will be completed thereafter.

Following a successful summary judgment motion dismissing the plaintiff's action, the defendants sought costs on a partial indemnity basis until an offer was served, and on a substantial indemnity basis thereafter.

The court found no basis in law or fact to award substantial indemnity costs to the defendants.

Considering the defendants' delay in bringing the summary judgment motion despite knowing the facts early on, the court awarded partial indemnity costs fixed at $15,000 inclusive of disbursements and HST.

Following a consent order dismissing the action against several defendants and striking the plaintiff's fresh as amended statement of claim, the successful defendants sought costs.

The court awarded full indemnity costs to a defendant lawyer due to unfounded allegations of fraud and breach of fiduciary duty.

Other defendants were awarded costs on a partial indemnity basis.

The court rejected the plaintiff's argument that costs should be limited or denied due to procedural steps or prior cost awards.

The plaintiff was ordered to pay substantial costs to the moving parties.

The plaintiffs commenced an action for professional negligence and breach of contract arising from a commercial real estate transaction.

After two years, a status notice was issued, and the plaintiffs requested a status hearing to prevent the action from being dismissed for delay.

The defendants opposed the continuation of the action, arguing the plaintiffs failed to adequately explain the delay or demonstrate an absence of prejudice.

The Master reviewed the conflicting jurisprudence on status hearings and concluded that, while the delay was problematic, the plaintiffs provided a sufficient explanation and the defendants suffered no non-compensable prejudice.

The action was allowed to proceed subject to a strict timetable.

The plaintiffs commenced a solicitor's negligence action against the defendant lawyer as a precautionary measure, alleging he failed to prosecute an underlying fraud action.

The plaintiffs took no steps in the negligence action for over two years, intending to hold it in abeyance pending the outcome of a second underlying action against the fraudsters.

At a status hearing, the court applied the Khan test and found that while the plaintiffs' unilateral decision to hold the action in abeyance without notifying the defendant was unreasonable, a contextual approach favoured allowing the action to proceed on its merits, as the defendant suffered no prejudice.