Jonathan P. Collings

The defendants sought their costs of the action, including a summary judgment motion brought by the plaintiff which resulted in the dismissal of the plaintiff's claim.

The defendants sought substantial indemnity costs, arguing the plaintiff acted unreasonably in bringing the motion.

The court found the plaintiff's motion was reasonable, as instances of undue influence being successfully established are rare.

The court awarded partial indemnity costs of $49,000 to the first defendant and $1,000 to the second defendant.

The plaintiff sought summary judgment to enforce a collateral mortgage on an Ontario property owned by the defendant wife, which secured a loan to her husband's company.

A New York court had previously found the personal guarantees valid.

The Ontario Superior Court of Justice declined to apply issue estoppel, finding it would work an injustice.

The court held the mortgage was unenforceable because it was the product of presumed undue influence by the husband, of which the plaintiff had constructive notice, and the plaintiff failed to ensure the wife received independent legal advice.

The action was dismissed.

Following a trial concerning a failed real estate transaction, the vendor sought damages for the difference between the agreed purchase price and the eventual resale price after the purchasers refused to close.

The purchasers successfully resisted the vendor’s $100,000 claim and obtained partial recovery on their counterclaim.

In this addendum and costs decision, the court determined the successful purchasers were entitled to costs under Rule 57.01 of the Rules of Civil Procedure.

Applying the fairness and reasonableness principles from appellate authority, the court fixed costs at $30,000 all-inclusive payable by the unsuccessful vendor.

The court also clarified that a $1,000 deposit held by the real estate brokerage was to be returned to the purchasers as part of the rescission of the contract.

A vendor sued purchasers for breach of an agreement of purchase and sale after they refused to close on a residential property.

The purchasers discovered before closing that the property had been constructed on top of a discontinued landfill site and alleged negligent misrepresentation in the vendor’s Seller Property Information Statement (SPIS).

The court held that once a vendor completes an SPIS, the doctrine of caveat emptor does not protect misleading answers.

The vendor’s responses regarding environmental contamination and landfill activity were misleading and constituted negligent misrepresentation.

The purchasers were entitled to rescind the agreement and recover certain expenses incurred in reliance on the misrepresentation.