Andreas G. Seibert

This appeal concerned a pre-construction agreement of purchase and sale for a condominium unit.

The vendor purported to terminate the agreement, alleging the purchasers breached a clause prohibiting leasing without consent.

The application judge found the termination wrongful and granted specific performance.

On appeal, the Court of Appeal affirmed the lower court's decision, holding that the vendor lost its right to terminate by failing to act within a reasonable time after the alleged breach.

The Court further upheld the award of specific performance, finding that damages were an inadequate remedy given the advantageous terms of the original agreement, the rising real estate market, the purchasers' tied-up deposit, and the vendor's bad faith in attempting to re-sell the unit to related parties at an undervalue.

The issue regarding the subsequent lease to tenants became moot.

The plaintiffs sought production of banking, income tax, and municipal records from the defendants in two civil actions alleging conversion of millions of dollars in assets.

A preliminary motion by the defendants to strike the plaintiffs' extensive affidavit evidence was partially successful, but the court decided to proceed with the main production motion, ignoring irrelevant evidence.

The court granted the production order for tax records and CIBC banking records, finding them relevant to the alleged breach of fiduciary duty and fraud, and that the need for information outweighed privacy concerns.

Municipal and county records were produced by consent.

Following a judgment granting the applicants relief from forfeiture and specific performance for a condominium unit, the applicants sought full indemnity costs of $73,535.05 based on the respondents' alleged grave misconduct.

The respondents argued for partial indemnity costs in the range of $25,000 to $35,000.

The court found that while the respondents engaged in misconduct, it did not warrant an elevated costs award.

The court awarded the applicants partial indemnity costs fixed at $45,000 inclusive of disbursements and HST.

The applicant, an 81-year-old widow, brought an urgent motion for a Mareva injunction and a Norwich order against the respondent, who had acted as a bookkeeper for the applicant's late husband.

The applicant alleged that the respondent fraudulently transferred $235,567.90 from a joint bank account to her own accounts.

The court granted an interim freezing order over the respondent's bank accounts, finding a strong prima facie case of fraud and a serious risk of dissipation.

The court also granted a Norwich order requiring the bank to disclose the respondent's account information to assist in tracing the funds.

The defendant moved to vary an earlier order requiring that 50 percent of the proceeds from the sale of a property be held in trust pending determination of the plaintiff’s claimed beneficial interest.

The motion alleged that the plaintiff had failed to make full and frank disclosure when obtaining an earlier certificate of pending litigation on an ex parte basis, including failing to disclose prior sworn statements in earlier family proceedings contradicting his asserted ownership interest.

The court held that the newly discovered evidence would likely have affected the earlier decision and that the evidence could not reasonably have been obtained before the earlier motion.

The court varied the previous order to release the sale proceeds to the defendant.

The defendant’s motion to dismiss the action as frivolous or an abuse of process was adjourned and directed to proceed as a summary judgment motion.

The defendant brought a motion under Rule 21.01(1)(b) of the Rules of Civil Procedure to strike the statement of claim for disclosing no reasonable cause of action.

The plaintiff alleged the tort of intentional infliction of mental distress based on two incidents: the defendant’s alleged failure to notify him of their father’s deteriorating medical condition before death, and the defendant’s exclusion of him from participation in the planning and conduct of their father’s funeral.

The court held that the alleged omission to communicate the father’s condition constituted inaction and could not ground the intentional tort alleged.

The court further held that disputes about participation in funeral arrangements and intra‑familial grievances of this nature are not appropriate for judicial adjudication and do not give rise to a cause of action for intentional infliction of mental distress.

The statement of claim was therefore dismissed.

The defendant physician appealed an order of a master compelling him to attend an examination under Rule 39.03(1) of the Rules of Civil Procedure in advance of a motion to strike the statement of claim in a medical negligence action.

The defendant argued that the motion to strike raised only legal issues concerning pleading sufficiency and therefore evidence was irrelevant.

The court held that once the defendant asserted in his factum that he was unable to respond to the allegations, his ability to respond became a relevant issue on the Rule 25.11 motion.

The plaintiffs therefore had a prima facie right to examine him on that issue under Rule 39.03(1).

The court found no error in the master’s reasoning and upheld both the examination order and the costs award.

Following a jury verdict in a medical negligence action, the court had issued written reasons on costs addressing the plaintiffs’ bill of costs and disbursements.

After the release of those reasons, counsel for the plaintiffs sent correspondence directly to the court seeking a further attendance and advancing additional arguments concerning expert disbursements that had been disallowed for lack of supporting information.

The court held that the correspondence constituted improper ex parte communication and an attempt to re‑argue the costs decision after final reasons had been issued.

The judge emphasized that the burden lies on the party claiming disbursements to demonstrate that they are reasonable and necessary and criticized counsel’s failure to provide sufficient supporting detail in the original materials.

The court refused to consider the contents of the letter and reaffirmed that the earlier costs decision was final.