Andrew Baker

The plaintiffs, former co-owners of a property, sued the defendants, real estate appraisers, for negligence and breach of contract arising from an appraisal report prepared for a prior arbitration.

The defendants brought motions for summary judgment to dismiss the claims based on expert witness immunity.

The court granted the defendants' motions, finding that the appraiser acted as an expert witness in the arbitration and is therefore absolutely immune from civil suit by both the adverse party and his own client for his report and testimony.

The court also held that issue estoppel did not apply to bind the defendants to the arbitrator's findings, as they were not privies to the arbitration.

In the context of a pending summary judgment motion regarding an alleged negligent misrepresentation of intent to acquire property for a GO Train station, both parties brought motions to compel answers to questions refused during cross-examinations on affidavits.

The Master applied the principles from Ontario v. Rothmans Inc. to determine the proper scope of cross-examination.

Notably, the Master found that the defendant waived solicitor-client privilege by relying on its counsel's advice to support its defence of good faith and to allege ulterior motives by the plaintiffs.

Both parties were ordered to answer specific questions and re-attend for further cross-examination.

The court issued an addendum to its Reasons for Judgment, which previously found certain Option Agreement provisions unconscionable and granted relief from penalty and forfeiture under section 98 of the Courts of Justice Act to the applicants.

This addendum sets the specific terms for that equitable relief, including timelines for construction commencement contingent on the respondent withdrawing an objection and the final disposition of any appeal.

The court also addressed costs, finding the applicants entirely successful and awarding them partial indemnity costs of $111,349.43, rejecting the respondents' arguments for divided success or reduced costs.

The applicants sought a declaration that repurchase and daily penalty provisions in an Option Agreement were unenforceable and relief from forfeiture under section 98 of the Courts of Justice Act.

The respondents brought a cross-application to enforce the agreement.

The court found the provisions unconscionable due to gross disproportionality between the forfeiture/penalty and actual damages, coupled with unfair conduct by the respondents, unequal bargaining power, and inherently unreasonable terms.

The court also determined that the respondent Michael's agent implicitly waived Michael's right to rely on the construction deadline through his conduct.

Consequently, the applicants' request for relief from forfeiture was granted, and the respondents' cross-application to enforce the Option Agreement was dismissed.

The court imposed new, equitable terms for future construction and a revised repurchase price if subsequent defaults occur.

The appellant purchased a home constructed by the respondent in 1997.

Mould was discovered in 2002 due to faulty construction and water leakage.

The mould was remedied and the house was sold without loss in value.

The appellant claimed damages for psychological and emotional injuries and out-of-pocket expenses.

The motion judge dismissed the action, finding the psychological injuries were too remote and not reasonably foreseeable.

The appellant appealed, arguing the motion judge erred in dismissing the claims for psychological and emotional injuries and that the contractual warranty limitations were irrelevant to the negligence claim.

The Court of Appeal upheld the dismissal, finding the motion judge properly applied the test from Mustapha v. Culligan and correctly concluded that a person of ordinary fortitude would not have suffered the serious psychiatric injury claimed in these circumstances.

The appellant's property was damaged by flooding following significant rainfalls in May 2013.

The floodwaters originated from adjacent land expropriated by the respondent municipality in 2009 for a construction project.

The appellant had commenced an injurious affection claim before the Ontario Municipal Board in 2011.

Following the flooding, the appellant commenced an action in Superior Court in June 2015.

The respondent moved for summary judgment on the basis that the action was statute-barred under the Limitations Act, 2002.

The motion judge found the claim was discoverable when the flooding occurred in May 2013.

The Court of Appeal allowed the appeal, finding the motion judge erred by failing to consider whether an action in Superior Court would be an appropriate means to seek a remedy, and by misapprehending the evidence regarding the appellant's belief that the OMB had exclusive jurisdiction over injurious affection claims.

The defendant builder brought a motion for summary judgment to dismiss the plaintiff's action for damages arising from mould discovered in a home purchased in 1997.

The plaintiff claimed over $6 million for physical, emotional, and financial injuries.

The court granted the motion, finding that the plaintiff's psychiatric injuries were not reasonably foreseeable to a person of ordinary fortitude, and that there was insufficient evidence to prove the mould caused his physical injuries or financial losses.

The action was dismissed with costs.

The plaintiff sued the defendant appraisers for professional negligence after an arbitrator rejected their real estate appraisal, resulting in the plaintiff receiving a lower buyout price for its property interest.

The defendants brought a third party claim against the plaintiff's former lawyers, alleging the lawyers negligently represented the plaintiff during the arbitration and caused the losses.

The lawyers moved to strike the third party claim, arguing it merely alleged a failure to mitigate and was barred by issue estoppel.

The defendants cross-moved to amend the claim and add another law firm as a third party.

The court struck the portions of the third party claim that amounted to a failure to mitigate the initial loss caused by the appraisal.

However, the court allowed the broader claims regarding the lawyers' negligent representation at the arbitration to proceed, finding they disclosed a tenable cause of action.

The court also granted the defendants leave to add the proposed third parties.