Hans P. Engell

The seller of a farm property sued after the buyer failed to close a commercial real estate transaction involving land, buildings, and natural gas wells.

The court held that the environmental warranty in the agreement of purchase and sale did not extend to the gas wells and, in any event, was not breached and constituted a warranty rather than a condition, requiring the buyer to close and sue for damages if necessary.

The court further held that the 'as it is, where it is' clause was binding, the buyer was deemed to have admitted inability or unwillingness to close through an unanswered request to admit, and relief against forfeiture was not available because retention of the 14% deposit was not unconscionable.

The seller had reasonably mitigated its loss and recovered carrying and resale-related damages of $287,296.57, subject to credit for the forfeited $250,000 deposit.

The buyer's counterclaim against the realtor and the seller, and the seller's crossclaim against the realtor and brokerage, were both dismissed.

This post-trial costs endorsement followed a trial in which the plaintiff recovered damages and the defendant's counterclaim and third party claim were dismissed.

The court held that the plaintiff was entitled to substantial indemnity costs from the date after its successful Rule 49 offer, and assessed the plaintiff's fees and disbursements as reasonable and proportionate.

The court reduced the third parties' claimed partial indemnity costs, relying on the usual partial indemnity range and proportionality relative to the plaintiff's work.

Total costs of $70,000 were awarded against the unsuccessful defendant.

The court granted judgment in favour of Madison Homes Cornell Rouge Limited for losses arising from the defendants' failure to close a real estate transaction.

The court dismissed the counterclaim and third-party claim, finding no actionable misrepresentation, duress, or unconscionability in the sales process.

The court also found no fiduciary duty owed by the third party, Edward Wong, to the defendants.

Damages were awarded for the difference between the contract price and resale price, plus related expenses.

The Plaintiffs, Hassan Siddiqui and Sara Al-Ahmar, sought summary judgment against real estate agents and their agencies (Gyanesh Paliwal, Re-Max Realty Specialists Inc., Sanjay Bhayana, and World Class Realty Point) to recover commissions and a premium paid in an assignment of a pre-construction home purchase.

The underlying purchase agreement was not completed by the builder, who returned the deposit but not the premium or commissions.

The Plaintiffs had previously settled with the original assignor, Haarikka Sivanarayan.

The court dismissed the Plaintiffs' claims, finding no contractual basis for recovery from the real estate agents as the Plaintiffs did not directly pay the commissions, and the assignor was responsible for them.

Furthermore, the court found no unjust enrichment as there was no direct deprivation of the Plaintiffs corresponding to the agents' enrichment.

The plaintiffs sought a declaration that the defendants misrepresented the location of a property they purchased and sought damages.

The court found that the defendant Yu Si, a real estate agent, misrepresented the property's location, leading the plaintiffs to believe it was at a different intersection than its actual site.

The court rejected the defendants' arguments regarding the plaintiffs' fault or market downturn as the reason for withdrawal.

The plaintiffs were awarded the return of their $120,000 down payment plus prejudgment interest and $30,000 in costs, but their claim for lost profit was denied as they chose to withdraw from the agreement.

The defendants brought a motion to adjourn a three-week trial scheduled to commence in one month, citing the plaintiffs' late production of documents and two expert reports.

The plaintiffs agreed to withdraw one expert report if the trial proceeded.

The court applied the factors from Ariston Realty and Igbinosun, finding that the defendants failed to provide sufficient evidence demonstrating why they could not proceed or how their defence would be significantly compromised.

The court emphasized the prejudice of delay to the plaintiffs in an eight-year-old action and dismissed the motion, without prejudice to the defendants seeking relief at trial regarding the late productions.

The appellants, a real estate agent and brokerage, appealed a trial judgment granting rescission of an agreement of purchase and sale and the return of a $50,000 deposit to the respondent purchaser.

The appellants had negligently misrepresented the size of the home as 2,000-2,500 square feet, when it was actually 1,450 square feet.

The appellants argued that the purchaser's physical inspection of the property displaced his reliance on their misrepresentation.

The Court of Appeal dismissed the appeal, holding that inspection does not absolutely displace reliance in law, and the trial judge correctly considered contextual factors including the substantial discrepancy in size and the purchaser's inexperience.

The plaintiff, a first-time home buyer, entered into an agreement of purchase and sale for a residential property after being told by the seller and the real estate agent that the home was over 2,000 square feet.

An appraisal later revealed the property was only 1,450 square feet.

The plaintiff sought rescission of the agreement and the return of his deposit.

The court found that the plaintiff reasonably relied on the negligent misrepresentations regarding the property's size and granted rescission, ordering the return of the $50,000 deposit.

Following a previous decision fixing costs on a partial-indemnity scale at $144,679.55 subject to a credit from Pierringer Agreements, the parties agreed that no credit amount should be applied.

The court ordered the defendants to pay the plaintiffs the full fixed amount of $144,679.55 for costs, including taxes and disbursements.

The plaintiffs, successful in an action for water and mould damage, sought costs against the non-settling realtor defendants, Suzanne Martineau and Re/Max Hallmark Realty Limited, who were found 70% liable for damages totaling $450,215.35.

The plaintiffs requested substantial indemnity costs, arguing they had beaten their offers to settle.

However, the court found that the plaintiffs had revoked their formal Rule 49 offers prior to trial, precluding an award of substantial indemnity costs.

The court awarded partial indemnity costs, calculated at 70% of the plaintiffs' fees and disbursements, totaling $144,679.55, subject to a credit for amounts received from other settling defendants via Pierringer Agreements.

Further submissions were required to determine the exact credit amount.

The plaintiffs, Aden and Shirley Bowman, purchased a home that was later discovered to have severe undisclosed water and mould damage.

They brought an action against the vendors (Alma and Shelley Emond), their home inspector (Paul Studholme), and their real estate agent (Suzanne Martineau) and brokerage (Re/Max Hallmark Realty Limited).

The court found the real estate agent negligent for failing to provide and review the Seller Property Information Statement (SPIS) and for not disclosing known ongoing roof leaks.

The vendors were also found liable for concealing serious and ongoing leakage.

The home inspector was found not liable.

Liability was apportioned 70% to Martineau/Re/Max and 30% to the Emonds.

Damages were awarded based on the cost to repair the property, including consequential damages from foundation heaving, and out-of-pocket expenses.

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.

This is a costs endorsement following a successful summary judgment motion brought by the defendant, Tanya Lemcke, on the grounds that the plaintiffs' action for damages was prescribed by the statutory limitation period.

The defendant claimed partial indemnity costs, which the plaintiffs opposed, raising concerns about the amount, the timing of the summary judgment motion, and costs already received.

The court applied Rule 57.01(1) factors, acknowledging the defendant's success but reducing the claimed fees due to unnecessarily incurred mediation costs.

Disbursements were awarded in full.

The defendant Tanya Lemcke brought a motion for summary judgment to dismiss the action against her, arguing that the plaintiffs' claim was statute-barred by the two-year limitation period.

The plaintiffs, Louis Sirois and Chandra Martens, alleged that Ms. Lemcke, their real estate agent, failed to disclose plans for a solar farm on an adjacent property, which they became aware of in early 2010.

The court found that the plaintiffs discovered their cause of action by February 2010, as they knew they had suffered damage, even if the full extent was unknown.

Consequently, the two-year limitation period expired in February 2012, prior to Ms. Lemcke being added as a defendant in November 2013.

The motion for summary judgment was granted, dismissing the action against Ms. Lemcke.

This was an amended costs endorsement and directions decision arising from a prior trial judgment involving fraud-related allegations, counterclaims, and title issues concerning a business property.

The court proceeded in the absence of one defendant, corrected typographical errors in the earlier reasons, confirmed the principal judgment amount, and fixed prejudgment and post-judgment interest under the Courts of Justice Act.

The self-represented plaintiff was awarded $100,000 inclusive in substantial indemnity costs against one opposing party for the action and counterclaim, with compensation for his own time at an hourly rate.

No costs were awarded as between the plaintiff and one defendant, but substantial indemnity costs of $75,000 were awarded against the plaintiff in favour of another defendant based on Rule 49 and an earlier offer to settle.

The court also gave directions concerning the form of a title transfer order, future assessment proceedings, potential sale steps, and settlement of the formal judgment.

The plaintiff and defendant entered into a business agreement to build and operate a wood-drying kiln.

The plaintiff advanced funds for construction, while the defendant contributed land.

The plaintiff sued for fraudulent misrepresentation, breach of contract, and conversion, alleging the defendant lied about his experience, grossly overstated the land's value, failed to account for construction costs, and wrongfully transferred the business property to his own holding company.

The court found the defendant made fraudulent misrepresentations and fundamentally breached the agreement.

The court granted rescission, ordering the defendant to pay restitution of the plaintiff's advanced funds, plus punitive damages for his atrocious conduct.

Claims against the real estate agent were dismissed, while the company's lawyer was found to have breached his duty by facilitating the wrongful property transfer.

In a trial of a cross-claim arising from a residential real estate sale, the cross-claimant alleged that the realtor and brokerage misrepresented future market conditions and induced a sale below value during the 2008-2009 financial downturn.

The court rejected the cross-claimant's credibility, accepted the realtor's evidence on key factual disputes, and held that statements about the future direction of the market were not actionable misrepresentations on the facts found.

The court further held that the alleged statements did not amount to contractual warranties and that the property sold at market value.

In any event, the claimed loss based on later appreciation was not proven.

The plaintiffs moved under Rule 48.11 of the Rules of Civil Procedure to restore an action to the trial list after it had been struck from the list for several years, while the defendants brought a cross‑motion to dismiss the action for delay.

Applying the conjunctive test articulated by the Court of Appeal in Nissar v. Toronto Transit Commission, the court held that the plaintiffs bore the burden of providing an acceptable explanation for the litigation delay and demonstrating that the defendants would suffer no non‑compensable prejudice if the action proceeded.

The plaintiffs argued that related litigation justified holding the matter in abeyance, but the court found no evidence that opposing counsel had been informed of such an intention and concluded the action had effectively been neglected for nearly four years.

Although the court found that the defendants had not established actual prejudice, the plaintiffs failed to satisfy the first branch of the Nissar test.

The motion to restore the action to the trial list was therefore dismissed.

The plaintiff corporation sued its real estate agent and brokerage for breach of fiduciary duties arising from the sale of a commercial property.

The court found that the agent acted as an undisclosed dual agent, failed to provide required written disclosure under the Real Estate and Business Brokers Act Code of Ethics, failed to recommend a counter-offer, failed to disclose material information relevant to the transaction, and failed to strongly encourage independent legal advice before execution of the agreement.

The court held that these breaches deprived the seller of an opportunity to negotiate a better deal and constituted a breach of fiduciary obligations owed by a real estate agent to a client.

Although the plaintiff could not prove damages from an improvident sale, the agent had no contractual entitlement to a commission and, in any event, forfeited the commission due to the fiduciary breaches.

The defendants were ordered to return the commission plus prejudgment interest.

The intended plaintiffs in a medical malpractice action obtained an order for pre-action discovery of certain documents from the hospital and doctor.

The defendants appealed.

The Court of Appeal allowed the appeal, holding that the Rules of Civil Procedure do not permit pre-action discovery, and the intended plaintiffs had ample information to plead their case without a Straka order.

The Court also held that a report from the College of Physicians and Surgeons was inadmissible under the Regulated Health Professions Act.