Ben Thind

This endorsement addresses the assessment of damages in a failed real estate transaction.

The court determines the appropriate date for assessing damages and evaluates expert evidence from both parties regarding the market value of the subject property.

The court prefers the evidence of the moving parties' appraiser, finding the value of the property as of August 18, 2022, to be $650,000, and awards damages accordingly.

The respondents purchased a motel and gas station from the appellants.

The trial judge found the appellants fraudulently misrepresented the condition of the underground fuel tank system and breached the Agreement of Purchase and Sale by failing to provide a required safety compliance report.

The trial judge awarded damages based on the cost to replace the tank system.

On appeal, the appellants argued the trial judge erred by not granting an adjournment due to late disclosure of a Pierringer agreement, misapprehending evidence about compliance alternatives, and using the wrong measure of damages.

The Court of Appeal dismissed the appeal, finding the appellants never requested an adjournment or stay at trial, and the trial judge made no palpable and overriding errors in her assessment of damages or contractual interpretation.

The applicants sought an order declaring a condominium lien invalid and requiring its discharge, arguing they were not responsible for water damage from an overflowing toilet, that the respondent engaged in oppressive conduct (unreasonable deductible, overcharging), and that the lien was untimely.

The court dismissed the application, finding the applicants responsible for the damage due to their act or omission (clogged toilet and broken shut-off valve), that the respondent's conduct was not oppressive, and that the lien was registered within the statutory timeframe.

The plaintiffs purchased a motel and gas station from the defendants.

Prior to the sale, the defendants represented that the fuel tank system was in good condition and only required routine testing, concealing outstanding TSSA orders and a history of non-compliance.

The Agreement of Purchase and Sale included a clause requiring the defendants to provide a report confirming the system was safe and compliant, which they failed to do.

The plaintiffs subsequently discovered the system was non-compliant and faced closure by the TSSA, forcing them to incur significant costs to install a new system.

The court found the defendants liable for fraudulent misrepresentation and breach of contract.

The court also found the plaintiffs' real estate lawyer negligent for failing to adequately protect them in the transaction.

Liability for the $635,189.12 in damages was apportioned 80% to the defendants and 20% to the lawyer.