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.

The moving party brought a motion for leave to intervene as a friend of the court in an appeal involving stock broker liability.

The court applied the test for intervention and found that the proposed intervention would not make a useful contribution to the resolution of the appeal, as the issues in the main appeal were essentially fact-driven and the intervention was not supported by any of the parties.

The motion for intervenor status was dismissed with costs.

The plaintiff was injured in a car accident by an unidentified driver and claimed the $200,000 policy limit under his unidentified driver coverage with the defendant insurer.

The plaintiff also received $102,400 in disability benefits from a private disability policy.

The defendant insurer sought to deduct the disability benefits from the $200,000 limit pursuant to s. 2(1)(b) of O. Reg. 676.

The motion judge held the deduction was not permitted due to the common law private insurance exception to the rule against double recovery.

The Court of Appeal allowed the appeal, holding that the regulation abrogated the common law exception and the insurer was entitled to deduct the disability payments.

Following an appeal that reduced the respondent's trial judgment to $25,000, the appellant sought to deprive the respondent of trial costs under former Rule 76.10, arguing the action should have been brought under the simplified procedure.

The Court of Appeal held that it was reasonable for the respondent to have commenced and continued the action under the ordinary procedure, as the original claim was for $70,000 based on bona fide estimates and the trial award was $54,980.34.

The trial costs award was not disturbed.

The appellant appealed a trial judgment awarding the respondent $54,980.34 for the cost of replacing an entire swimming pool structure due to defective workmanship.

The Court of Appeal found the trial judge erred by awarding replacement costs when the evidence indicated the pool was structurally sound and only required repairs to the retaining walls and decking.

The Court held that awarding a new pool would provide a substantial gratuitous benefit.

The appeal was allowed, and damages were reduced to $25,000.