Joseph Juda

The moving party brought a motion for leave to appeal a lower court decision.

The Divisional Court dismissed the motion for leave to appeal.

As agreed by the parties, costs of $5,000 were awarded to the responding parties.

The plaintiff appealed an associate judge's order compelling him to answer questions refused on discovery based on solicitor-client privilege.

The plaintiff sued his real estate agents for negligence in a real estate transaction, and in a companion action, sued his real estate solicitor for negligent advice regarding the same transaction.

The court found that by voluntarily putting his reliance on his solicitor's advice in issue in the companion action, the plaintiff had impliedly waived privilege.

Fairness and consistency required that the waiver extend to the present action, as the plaintiff's state of mind and reliance were central to both proceedings, which were to be tried together.

The appeal was dismissed.

The plaintiff sought to set aside a Registrar's dismissal order dated October 10, 2024, which dismissed the action for delay.

The action arose from a failed agreement of purchase and sale for a property.

The plaintiff alleged breach of contract and sought damages against the defendants.

The court applied the Reid factors test and found that the plaintiff failed to provide satisfactory explanations for the substantial litigation delay spanning over six years.

The court dismissed the motion, finding that the principle of finality outweighed the interest in having the action decided on its merits, particularly given the inordinate delay without adequate explanation.

A receiver appointed over Wynn Realty Corporation sought approval of a proposed distribution of recovered funds to the plaintiff and intervenors who initiated the receivership.

The insurance coverholder objected, asserting subrogated and assigned claims on behalf of the insurer for amounts paid to fraud victims under a mandatory consumer deposit insurance policy.

The court rejected both the subrogation claim and the assignment-based claim, finding that the common law prohibition against insurers suing their own insureds applies and cannot be circumvented through assignments.

However, the court determined that the proposed distribution improperly excluded other similarly situated consumers and directed that all known consumers be included in an equitable distribution.

This decision addresses whether solicitor-client privilege was waived by implication in a real estate dispute involving overlapping claims against a realtor and a lawyer.

The court found that, due to the plaintiff’s virtually identical allegations in two related actions, fairness and consistency required a finding of implied waiver of privilege.

The motion to compel disclosure of the lawyer’s advice and file was granted.

The plaintiffs moved for leave to amend their statement of claim and to add their daughter and son-in-law (the "proposed plaintiffs") as party plaintiffs, to whom they had transferred the property at issue.

The defendants opposed the addition of the new parties and related amendments.

The court dismissed the request to add the proposed plaintiffs, finding no evidence of an assignment of the cause of action and that they were not necessary parties under Rule 5.03(1) of the Rules of Civil Procedure.

The court granted leave for other requested amendments to the statement of claim.

Costs were ordered against the plaintiffs.

The appellant's action for breach of fiduciary duty and negligence against real estate agents was dismissed on summary judgment due to being commenced outside the two-year limitation period.

The appellant argued she did not discover the material facts until later.

The Court of Appeal upheld the motion judge's decision, affirming that the discoverability period begins when the plaintiff knows or ought to have known the material facts, not the legal conclusion.

The court noted the appellant had previously pleaded the agents were her agents in a prior action, indicating knowledge of the material facts.

The appeal was dismissed with costs.

The plaintiffs brought a motion for summary judgment to claim a $100,000 deposit after the defendant purchasers failed to close a residential real estate transaction.

The defendants had submitted an unconditional offer but failed to close due to financing issues, and subsequently attempted to cloud the title to prevent resale.

The court found no genuine issue requiring a trial, holding that the deposit was a true deposit subject to forfeiture.

The court rejected the defendants' claim for relief from forfeiture, finding the deposit amount proportionate and no unconscionability in the plaintiffs retaining it.

Summary judgment was granted in favour of the plaintiffs.

The defendants brought a motion for summary judgment arising from a failed real estate transaction, and the plaintiffs responded with a cross-motion for summary judgment seeking specific performance or damages.

The defendants also initiated a third-party claim against the real estate agents and their daughter, alleging negligence, breach of fiduciary duty, duress, and forgery.

The court dismissed both summary judgment motions, finding that the multiple intertwined issues, conflicting evidence, and credibility concerns required a full trial.

The motion judge remained seized of the matter for trial management.

The plaintiff, Mohmmad Danesh, and the defendants by counterclaim, ReMax Crossroads Realty Inc. and Michael Bury, brought motions for summary judgment in a dispute arising from a failed condominium purchase.

The vendor, Elahe Vahed, argued that a second extension to the closing date was invalid due to fabrication and non-compliance with the Statute of Frauds.

The court found that Vahed breached the agreement of purchase and sale by failing to close on the extended date, rejecting her arguments regarding fabrication and the Statute of Frauds due to solicitor's authority and part performance.

Danesh was awarded damages for out-of-pocket expenses and the return of a deposit.

Vahed's counterclaims against Danesh, ReMax, and Bury for general and punitive damages were dismissed.

The applicant property owners sought a writ of possession and the removal of a caution to complete the sale of a commercial unit to a third-party purchaser.

The respondent tenant, who had been overholding since the expiration of the original lease, claimed a First Right of Refusal (FRR) to match the purchase offer.

The court found that the FRR expired with the original lease and did not carry over into the overholding period.

The application was granted, the caution was ordered removed, and a writ of possession was issued.

The plaintiff brought a motion to turn a second action against his real estate agents into a third party proceeding in his main action against the vendors for a failed real estate transaction, or alternatively to consolidate the actions.

The defendants opposed, arguing the motion was premature and should wait until their summary judgment motions were heard.

The court granted the plaintiff's motion, finding that leave to issue a third party claim is mandatory unless prejudice results, and the defendants would not be prejudiced by correcting the procedural error of commencing a separate action.

The defendants brought a motion to dismiss the action for delay under Rule 24.01(1) of the Rules of Civil Procedure, citing the plaintiffs' two years of inaction and failure to respond to correspondence.

The plaintiffs argued the defendants were in default for not delivering affidavits of documents and offered an explanation for their delay.

The court found the defendants were not in default due to rule amendments and rejected the plaintiffs' explanation as incredible.

However, the court declined to dismiss the action, noting that "contumelious" delay typically requires serial violations of court orders, which was not present.

The motions were dismissed without prejudice, but the plaintiffs were ordered to pay $11,000 in costs to the defendants and to deliver their affidavit of documents within 30 days, with defendants to follow 30 days thereafter.

The defendants brought a motion to strike two separate but related Statements of Claim, alleging they failed to comply with Rule 25.06(1) of the Rules of Civil Procedure by being excessively long, incomprehensible, and pleading evidence rather than concise material facts.

The court found the pleadings cluttered with extraneous or redundant verbiage, making them confusing and almost unintelligible.

Citing established jurisprudence on the importance of clear and concise pleadings, the motion was granted.

Both Statements of Claim were struck with leave for the plaintiffs to deliver fresh as amended statements of claim within thirty days, and costs were awarded to the defendants.

The plaintiff purchased a home with a leaky basement and sued the vendors, her real estate agent, and the home inspector for damages.

The court dismissed claims against the real estate agent for failure to establish the standard of care and causation regarding Tarion warranty advice.

Claims against the vendors were dismissed based on the rule of *caveat emptor*, as active concealment of defects was not proven, despite their likely knowledge of the issue.

The home inspector was found negligent and in breach of contract for failing to inspect the exterior foundation and report obstructions, but an exclusion clause in the inspection agreement limited damages to the cost of the inspection ($325).

The appellant appealed an order striking his fresh as amended statement of claim without leave to amend.

The motion judge had found the claim, which alleged conspiracy, deceit, negligence, and professional misconduct, did not disclose a reasonable cause of action and was an abuse of process.

The Court of Appeal dismissed the appeal, agreeing that the pleading was irreparably deficient for failing to plead material facts in support of the serious allegations advanced.

The plaintiff appealed a motion judge's order requiring it to post $30,000 as security for costs in a fraudulent misrepresentation action against a real estate brokerage.

The Divisional Court allowed the appeal, finding that the plaintiff had established impecuniosity and that its claim against the brokerage had a good chance of success.

The order for security for costs was set aside.

The defendants moved for non-destructive inspections of residential property in a termite and structural damage action arising from an alleged defective property transaction.

The court applied Rule 32.01 and held that inspections need only be necessary in the sense of being useful or probative of an issue, and that fairness favoured allowing the defendants to obtain responsive expert evidence where the plaintiff had already served expert reports.

Objections based on expert qualifications, delay, and the statutory limit on expert witnesses did not justify refusing the inspections.

The motions were granted, but no costs were ordered because the plaintiff's opposition was not unreasonable given the defendants' delay.

The appellants appealed a trial decision awarding the plaintiffs $20,000 for a purchaser's lien and dismissing their counterclaim and crossclaims, as well as the subsequent costs awards.

The appellants argued the $20,000 award constituted double recovery because the plaintiffs had previously settled with other defendants for $400,000.

The Divisional Court dismissed the appeal, finding no double recovery because the purchaser's lien claim was only advanced against the appellants.

The court also found no error in principle in the trial judge's discretionary costs awards.

The realtor defendants brought a motion to dismiss or stay the action as an abuse of process, arguing that all parties had operated under the mistaken belief that the claim against them had been struck following a consent order requiring delivery of an affidavit of documents.

In fact, no formal order dismissing the action had ever been obtained.

The moving parties argued that principles of finality and fairness required that the action be treated as if it had been dismissed and that the delay in pursuing the claim against them justified termination of the proceeding.

The court held that the finality principle applies only where a final order exists and that prejudice cannot be presumed where the action remains valid and subsisting.

Balancing fairness and the absence of demonstrated prejudice, the court permitted the action to continue against the realtor defendants.