Frank Zechner

The plaintiffs, Suzanne and Joyce Powell, purchased a house that subsequently revealed significant water leakage and mould issues.

They sued the previous owner, Tadeusz Lojko (who settled), and their real estate agent, Barbara Kirby, and her brokerage, Royal Lepage Real Estate Services Ltd., for negligence and breach of professional duties.

The court found that the agent failed to adequately advise the plaintiffs regarding the risks of not obtaining an independent home inspection or reviewing the full seller-provided report, especially given the plaintiffs' financial vulnerability and the summary report's indications of potential issues.

However, the plaintiffs were also found partially responsible due to Suzanne Powell's strong determination to purchase the property.

The court apportioned liability: 25% to the agent and brokerage, 25% to the plaintiffs for their own loss, and the remaining 50% to the seller (Lojko) as per the Pieringer Agreement.

Damages for repairs and lost rent were assessed.

Following a successful appeal, the appellant sought its trial costs.

The parties agreed on most amounts but disputed a $32,025 disbursement for environmental assessment reports prepared prior to the litigation for the purpose of a possible property acquisition.

The Court of Appeal denied the disbursement, holding that the reports were not commissioned in contemplation of litigation and their use at trial did not alter their nature as non-litigation work product.

Trial costs were fixed at $237,364.86.

The appellant purchased a property and subsequently discovered it was contaminated with petroleum hydrocarbons that had migrated from the respondents' neighbouring property.

The respondents had a long history of improper waste storage and non-compliance with Ministry of the Environment orders.

The trial judge dismissed the appellant's claims under s. 99(2) of the Environmental Protection Act, nuisance, and negligence, finding that the appellant failed to prove damages and that an existing MOE remediation order precluded statutory recovery.

The Court of Appeal reversed the decision, holding that the MOE order did not bar civil recovery, that restoration costs were the appropriate measure of damages under the EPA, and that the individual respondent was personally liable.

The Court awarded $1,328,000 in remediation damages and $100,000 in punitive damages.

Following the defendants’ success at trial, the court addressed the appropriate quantum of costs on a partial indemnity basis.

The plaintiff challenged certain components of the defendants’ claim, including $18,000 for services by a lawyer not on the record and $1,000 in disbursements unsupported by receipts.

The court disallowed the claim relating to the lawyer not on the record, finding the authority cited by the defendants inapplicable and the claim incapable of proper scrutiny.

The court rejected the plaintiff’s challenge to the amount of pre‑trial preparation time but required receipts to substantiate the claimed disbursements before awarding them.

Costs were awarded to the defendants on a partial indemnity basis subject to confirmation of the disbursements.

The plaintiff property owner alleged that petroleum hydrocarbon contamination migrated from the defendants’ neighbouring industrial site onto its property and sought damages under the Environmental Protection Act, as well as in nuisance, negligence, and punitive damages.

The court accepted expert evidence that contaminants from the defendants’ property migrated onto the plaintiff’s land, but held the plaintiff failed to prove compensable loss or damage.

Because the Ministry of the Environment had already issued an order requiring remediation, the court found that awarding remediation costs would risk double recovery under s. 99 of the Environmental Protection Act.

The plaintiff also failed to prove actual, substantial physical damage, loss of use, or diminution in value of the property necessary to sustain nuisance or negligence claims.

All claims were therefore dismissed.