Peter Reintzer

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.