Jeffrey S. Klein

The plaintiffs entered into an Agreement of Purchase and Sale with the defendant seller and provided a deposit to the defendant real estate brokerage.

The seller repudiated the agreement but refused to consent to the return of the deposit, forcing the plaintiffs to commence an action and bring a motion for summary judgment.

The seller eventually consented to the return of the deposit after the motion record was served.

The court awarded the plaintiffs substantial indemnity costs against the seller due to his unreasonable conduct, but awarded no costs against the brokerage.

The defendant real estate brokerage sought leave to appeal to the Divisional Court from an order dismissing its motion for summary judgment.

The underlying motion argued that the plaintiff's negligent misrepresentation claims regarding suspected mortgage frauds were statute-barred.

The motion judge had found a genuine issue for trial regarding when the plaintiff reasonably discovered the claims against the listing agent.

The Superior Court dismissed the application for leave to appeal, finding no good reason to doubt the correctness of the motion judge's decision and concluding that the discoverability issue required a trial.

The appellant purchased a vacant lot and hired a builder recommended by a co-worker real estate agent to build a custom home with a walk-out basement apartment.

After the builder encountered financial difficulties and failed to complete the project, the appellant sued the co-worker for negligent misrepresentation and breach of fiduciary duty.

The trial judge awarded damages for negligent misrepresentation regarding the legality of the basement apartment and punitive damages for breach of fiduciary duty.

On appeal, the Court of Appeal dismissed the appellant's appeal to increase damages, finding she failed to mitigate.

The Court allowed the respondent's cross-appeal in part, setting aside the punitive damages award because no fiduciary relationship existed between the parties.

The appellant appealed a decision of the Ontario Court of Appeal which upheld the dismissal of a third party claim on the basis of abuse of process.

The Supreme Court of Canada allowed the appeal, agreeing with the dissenting reasons of Goudge J.A. at the Court of Appeal that it was not an abuse of process to allow the appellant to bring the claim or require the realtors to defend it.

The motion for summary judgment was dismissed.