Charlene Kavanagh

This is a costs decision following a summary judgment award to the plaintiff for $106,012.93 against the defendants for failure to complete the purchase of a property pursuant to an agreement of purchase and sale dated August 16, 2023.

The defendants' counterclaims for negligent misrepresentation, unjust enrichment, breach of contract, and loss of opportunity were dismissed.

The court awarded costs of $10,000 to the plaintiff, reducing the requested amount of $29,777.87 due to the plaintiff's unreasonable conduct in misinterpreting a final amendment to the agreement and demanding removal of the property listing from MLS for approximately two months, which was central to the litigation.

A developer sought summary judgment for damages of $106,012.93 against purchasers who failed to complete the purchase of a property in a new development.

The purchasers had entered into an agreement of purchase and sale with a closing date of August 16, 2023.

Amendments to the agreement permitted the purchasers to assign the agreement and to list the property for sale on MLS and other platforms.

The developer demanded removal of the MLS listing in January 2023, claiming the amendment permitting such listing was signed in error.

The purchasers removed the listing under protest and later claimed the developer's conduct constituted a repudiatory breach entitling them to rescind the contract.

The court found no repudiation or misrepresentation, determined the final amendment was valid and enforceable, and awarded judgment to the developer for the loss on resale plus incidental costs.

The applicants, neighbours of the respondent, sought a mandatory injunction requiring the removal of a curb wall constructed of concrete blocks along the respondent’s driveway, alleging it constituted a private nuisance and violated City of Ottawa by-laws.

The court found that the respondent was not in breach of the relevant by-laws and that the applicants failed to prove substantial and unreasonable interference with their property.

The application was dismissed and costs awarded to the respondent.

The applicant, Thuy Bich Ti Le, sought relief from forfeiture of deposits paid under an Agreement of Purchase and Sale for a residential property after she was unable to close due to failed financing.

The respondent, Calvan Barrhaven Conservancy Inc., opposed the application, indicating it would pursue damages in a separate action.

The court found the application premature, as the respondent had a prima facie right to forfeit the deposit and the full circumstances would be litigated in the anticipated action.

The application was dismissed without prejudice to the applicant raising the issue in a defence or counterclaim in future proceedings.

The plaintiff developer brought a motion for default judgment against the self-represented defendant for failing to close on an agreement of purchase and sale for a new home.

The defendant, a refugee facing a removal order, failed to file a defence or any evidence regarding his financial circumstances despite being granted an adjournment to do so.

The court found the plaintiff took reasonable steps to mitigate its damages by reselling the property at a lower price.

Default judgment was granted, and the defendant was ordered to pay damages representing the difference in sale price, real estate commissions, and legal fees, plus partial indemnity costs.

The plaintiff, Denis Roy, was seriously injured in a 2004 motorcycle accident, suffering physical and psychological impairments.

His insurer, Primmum Insurance Co. (referred to as TD), initially paid attendant care benefits (ACBs) and housekeeping benefits (HKBs) but later reduced and terminated them.

Roy applied for a catastrophic impairment (CAT) determination in 2010, which TD contested for over three years before conceding in 2014.

Roy then sought retroactive ACBs and HKBs, plus statutory interest, from the date of the accident.

The court found that Roy was catastrophically impaired from the date of the accident, that the claimed retroactive ACBs were reasonable and necessary, and that TD was obligated to pay statutory interest due to its failure to comply with SABS obligations and its duty of good faith.

In an action regarding entitlement to catastrophic impairment benefits, the defendant insurer sought an order permitting its counsel to communicate with three of the plaintiff's former treating occupational therapists prior to calling them as witnesses at trial.

The insurer had retained two of the therapists to conduct section 42 assessments.

The court granted leave to bring the late motion but dismissed it on the merits.

The court held that the therapists owed a duty of confidentiality to the plaintiff arising from their therapeutic relationship, which was not waived by the plaintiff's participation in the section 42 assessments or by the limited consent forms he had signed.