Gary Petker

Following a trial where the plaintiff was awarded $225,000 in damages arising from an asset purchase agreement, the court determined the issue of costs.

The plaintiff sought $172,362 in costs on a substantial indemnity basis, relying on a Rule 49 offer to settle.

The court found the offer did not comply with Rule 49 as it was made only three days before trial.

The court awarded the plaintiff partial indemnity costs, fixing the amount at $80,000 after finding the hours claimed by the plaintiff's counsel were excessive compared to defence counsel.

The plaintiff sold her real estate business to the defendants under an Asset Purchase Agreement.

Shortly after the defendants took over operations, two key agents resigned.

The defendants refused to close the transaction, alleging the plaintiff misrepresented the agents' contentedness and failed to provide their employment contracts, but the defendants continued to operate the business.

The court found the defendants breached the agreement, holding that the Entire Agreement clause precluded reliance on any alleged pre-contractual misrepresentations.

The plaintiff was awarded $225,000 in damages, representing the unpaid purchase price and an estimated persistency bonus.

The moving parties sought summary judgment dismissing a negligence claim on the basis that it was barred by the two‑year limitation period under the Limitations Act, 2002.

The claim arose from an aborted real estate transaction where the plaintiff alleged that the drafting of a price allocation clause in an agreement of purchase and sale constituted solicitor’s negligence.

The court considered the discoverability provisions in s. 5 of the Act and whether a reasonable person in the plaintiff’s circumstances ought to have known of the potential claim earlier.

The court held that the plaintiff was put on notice of the potential drafting issue no later than the delivery of a statement of defence in related litigation in February 2005.

Because the action was commenced more than two years after that date, the claim was statute‑barred.