Papovic v. Re/Max, 2016 ONSC 5077

CITATION: Papovic v. Re/Max, 2016 ONSC 5077

COURT FILE NO.: CV-11-17254

DATE: 20161011

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Filomena Papovic Plaintiff

– and –

Re/Max Preferred Realty Ltd. and Terry Cook Defendants

Jeffrey W. Nanson, for the Plaintiff

Amy C. Dale, for the Defendants

HEARD: March 21, 22, and 24, 2016

REASONS FOR JUDGMENT

VERBEEM J.:

INTRODUCTION

[1] Mrs. Papovic is a hairstylist by trade. In 2009, she wanted to purchase a building where she could operate her own salon. In November of that year, she met real estate agent Terry Cook. He agreed to help her find a suitable building. Mrs. Papovic told him, among other things, that she wanted a building with adequate parking for her customers. In January 2010, they looked at a building listed for sale through a different agent. The listing information disclosed that four parking spaces were associated with the property. Mrs. Papovic says Mr. Cook negligently provided her with inaccurate information with respect to the parking associated with the property. She asserts that she relied on his misrepresentations and, as a result, she agreed to purchase the property. She says that the parking spaces Mr. Cook said would be available to her were, in fact, not available to her. She claims to have suffered significant financial losses as a result. She brings this action for compensatory damages for the losses she says were caused by Mr. Cook’s negligent misrepresentations.

[2] Mr. Cook denies that he made the misrepresentations alleged, and he challenges the plaintiff’s asserted damages. He also submits that, on her own evidence, Mrs. Papovic did not reasonably rely on his alleged misrepresentations. He asks that the action be dismissed.

[3] Below, I will review the evidence adduced at trial, briefly summarize the parties’ positions and explain my reasons for judgment.

THE EVIDENCE

Filomena Papovic

[4] Mrs. Papovic was born in Albania and immigrated to Canada in 1993. She is married to Zarko Papovic. Together they have one son. Prior to immigrating to Canada, Ms. Papovic completed high school and worked as an assistant in a hairdressing salon.

[5] In 2006, she completed a beauty college 12-month “hairdressing program”, following which she was employed as a hairstylist at a salon located in a mall in Windsor, Ontario.

[6] Over time, she developed her own client base and saved money with a view to opening her own salon. Eventually, she sought out a premises close to the mall that could accommodate up to six stylist’s chairs.

[7] In November 2009, she became aware of a residential premises with a built-in hair salon in her neighbourhood that was listed for sale through the defendant, Re/Max Preferred Realty Ltd. (“Re/Max”), with Mr. Cook as the listing agent. Mrs. Papovic and her husband viewed the property with Mr. Cook and the vendor. Mrs. Papovic told Mr. Cook that she wanted to open her own hair styling business with space for up to six stylist chairs and that the availability of parking was an important issue to her. Mrs. Papovic advised Mr. Cook that the residential property had insufficient parking space for her needs and she did not make an offer to purchase it. Mr. Cook agreed to help her find a suitable location.

[8] In late November 2009, Mr. Cook sent an e-mail to Mrs. Papovic’s husband with listings for other properties potentially suitable for the plaintiff’s anticipated salon, including one for a property located at 2558 Howard Avenue in Windsor, Ontario.

[9] The listing, which was authored by the listing agent Anna Kolm of Manor Windsor Realty Ltd., described the property as follows:

NICELY RENOVATED RETAIL SPACE W/APT IN A HIGH TRAFFIC AREA. APPROX 900 SQ FT OF RETAIL AREA, PERFECT FOR HAIR/NAIL SALON, FLOWER/GIFT SHOP, ETC. ADD LIVING AREA W/KITCHEN, 2 BDRMS, LIV RM W/SEPARATE SIDE ENTR, 4 PC BATH, PART BSMT W/LAUNDRY/STORAGE AREA & ALLEY ACCESS FOR DELIVERIES OR ADD PRKG W/FENCED IN YARD. UPDATES INCLUDE: LAMINATE FLRS, ELECTRICAL, C/AIR, LIGHT FIXTURES, ALARM SYSTEM & FLORIST COOLER. WASHER/DRYER INCLUDED. L/S RELATED TO SELLER.

[10] The listing also included, under the heading “Parking Spaces”: “4 CAR”.

[11] The plaintiff and her husband made an appointment to view the Howard Avenue property. Mrs. Papovic originally stated that they first attended the property in November 2009. Later in her evidence, she stated that they first attended the property approximately two weeks before January 26, 2010. They attended the property two times before making an offer to purchase.

[12] Mrs. Papovic ultimately settled on the proposition that she first attended the Howard Avenue property in early January 2010 with her husband, son and Mr. Cook. The interior of the building was dark. Mr. Cook turned on the lights by accessing an electrical panel in the basement. While they were still inside, Mrs. Papovic asked Mr. Cook, “Can you show us the parking in the listing?” Mr. Cook took them outside and led them to a parking area on the other side of a neighbouring building and pointed out four spots. He said, “These are your four spots.” Mrs. Papovic asked him if he was certain those were the four spots associated with the property that she viewed. Mr. Cook assured her that they were, but he also indicated that he would call the listing agent to confirm the location of the parking spaces.

[13] In cross-examination, Mrs. Papovic was asked about the specific words that Mr. Cook used to identify the four parking spaces. She indicates that he said, “These belong to your building – I will confirm one more time with the listing agent Anna to confirm.” He did not say anything more about parking on that occasion. During the course of her first attendance at the Howard Avenue property, Mrs. Papovic told Mr. Cook for the first time that adequate parking was “her main concern.”

[14] Mrs. Papovic and her husband next attended the property with Mr. Cook on January 26, 2010. When Mr. and Mrs. Papovic arrived at the property, Mr. Cook was waiting for them in the parking area where he had previously identified the four spaces associated with the Howard Avenue property. On their arrival, Mr. Cook brought the Papovics to the parking spaces that he had previously identified and said, “I confirmed with Anna and she said these four spots are yours – I one hundred percent guarantee.”

[15] After their second viewing, Mrs. Papovic and her husband proceeded to the Dougall Avenue Re/Max office and executed an offer to purchase the property for $75,000, conditional on the following:

a) the purchasers obtaining financing and satisfactory inspection by February 15, 2010;

b) production of an existing survey; and

c) production of current utility bills and insurance premiums (although on the face of the agreement this appears to have been added in a counter offer).

[16] According to Mrs. Papovic, the survey condition was removed before the final agreement of purchase and sale was signed. Mr. Cook did not disclose or explain why it was removed. Instead, Mr. Cook advised Mr. and Mrs. Papovic that the vendors had a survey of the property but they were on vacation up north.

[17] In cross-examination, Mrs. Papovic concedes that at the time she signed the offer to purchase, she was aware that the purpose of a survey was to delineate the specific property that she was buying and to demonstrate specifically what she would own when the purchase was completed.

[18] Mrs. Papovic recalls that the issue of the survey came up again when she signed a notice of fulfillment of conditions on February 23, 2010. At that time, Mr. Cook advised her and her husband that the vendors had a survey but they were up north. He then made her sign some papers. In response to further inquiries from Mr. Papovic, Mr. Cook said the people have a survey, they are on vacation and that he would get it from them when they returned. Mr. Cook never advised them they had waived the survey condition. She subsequently learned there was no survey available for the property and she never received one. Mrs. Papovic states that had she known that there was no survey for the property, she never would have agreed to purchase the property because the property is “worth nothing without a survey”.

[19] Mr. and Mrs. Papovic also executed a Buyer Representation Agreement with Re/Max, through Mr. Cook, on January 26, 2010, which granted Re/Max the exclusive and irrevocable authority to act as their agent beginning December 4, 2009 to May 31, 2010 with respect to locating real property meeting the general description, “commercial/residential” in Windsor/Essex County.

[20] Through a series of counter offers, the plaintiff and her husband entered into a binding agreement of purchase and sale for the Howard Avenue property on January 28, 2010 for a purchase price of $80,000.

[21] On February 23, 2010, the agreement was amended to remove Mrs. Papovic’s husband as purchaser.

[22] As part of her application for financing, Mrs. Papovic’s commercial lender required her to complete a pre-printed “business planner” document, in which she disclosed that she planned to work part time at her own salon while she continued to work at the mall salon for four days a week until she had enough business at the new salon to occupy her on a full-time basis.

[23] In response to the question, “Where do you expect your business to be in five years?” she responded, “If economy picks up and through hard work expect to have 2 – 3 stylists renting chairs.” She projected total cash receipts of $26,000 during the first 12 months of the new salon’s operation, all arising from the provision of her own services. She did not forecast any income from the chair rentals by other stylists during that time.

[24] Prior to executing the original offer to purchase the Howard Avenue property, Mrs. Papovic claims that she obtained expressions of interest from four of her friends (Diella Marku, Marinela Daschi, Snezana Papozodaro and Sophia – whose last name she cannot remember) to rent chairs from her in the new salon. She told each of them that she and her husband intended to start a new salon business near the mall “with lots of parking and five or six chairs.” All of them expressed a willingness to rent a chair. Once her purchase of the Howard Avenue property closed, she advised her friends that she intended to charge $600-$650 per month for a chair.

[25] On Mrs. Papovic’s evidence it is unclear whether any of these individuals actually agreed to rent a chair in the new salon. In cross-examination, Mrs. Papovic provided non-responsive answers when she was asked on three separate occasions whether she and her friends had made “firm arrangements” for the chair rentals in her new salon, at any time.

[26] Mrs. Papovic had legal representation on the purchase transaction, which was scheduled to close in early March 2010. She met with a lawyer in advance of the closing date. After meeting with her lawyer, she believed that she was purchasing property located at 2558 Howard Avenue, together with four parking spaces located in the parking area of a building adjacent to the property she was purchasing.

[27] The purchase transaction closed in March 2010 as scheduled. Mr. Papovic extensively renovated the interior of the building over several months and the new salon opened in October 2010.

[28] Mrs. Papovic testifies that sometime in 2010, after the purchase transaction closed, she discovered that she did not own the four parking spaces that she believed she had purchased. The specific timing of her discovery is unclear in her evidence. She generally deposes that during the course of a railway overpass construction project undertaken in the immediate vicinity of 2558 Howard Avenue, she was advised by an employee of the Corporation of the City of Windsor that the City owned the parking lot area adjacent to the building next to the salon, including the four parking spaces that she thought she owned. She attended City Hall on four occasions and attempted to purchase spaces in the parking area. The City would not sell her land for parking.

[29] Mrs. Papovic’s intention was for her customers to park in the four spaces located in the parking lot that she subsequently discovered was owned by the City. After she discovered that she did not own those spaces, Mr. Papovic created a four space parking area at the rear yard of 2558 Howard Avenue. The plaintiff intended those spaces to be used by her, other stylists and the tenant of a residential unit located at 2558 Howard Avenue.

[30] Mrs. Papovic confirms that when her salon first opened, the occupier of the premises to the north of 2558 Howard Avenue allowed Mrs. Papovic’s clients to park in the parking area where the four spaces she thought she owned were located. This was supposed to continue for approximately six months until the parking area at the rear of the plaintiff’s salon was completed. However, she acknowledges that her clients continued to park in the north parking area even after the rear parking area was completed.

[31] The plaintiff claims that her lack of ownership of the four northerly parking spaces has resulted in a substantial loss of rental income. Specifically, once she learned that she did not own those parking spaces, she advised her friends who were interested in renting chairs that there was “no parking” at the new salon. As a result, none of them rented a chair because without adequate parking, their clients would not attend the new salon. Even though salon customers were permitted to park in the northerly parking area, she still did not rent chairs to her friends because she knew that eventually they would not be allowed to park in that area, which is now the case.

[32] The plaintiff is confident that but for the lack of the four parking spaces she believed she purchased, she would have continuously rented four chairs in her salon to her four friends, as identified, at a rate of $600 to $650 per month from the time the salon opened in October 2010 until the present.

[33] Mrs. Papovic has attempted to lease parking spaces from another nearby business, but she was unable to do so.

[34] Mrs. Papovic still has four parking spaces behind the salon which are used by her, her clients and her residential tenant. She agrees that if an individual rented a chair at the salon, those parking spaces could be used by their clients.

[35] The plaintiff has and continues to engage in periodic efforts to rent chairs at the salon. Beginning three months after the salon opened, she has intermittently advertised the availability of salon chairs on a website called Kijiji. She has received responses to her advertisements. Some of the respondees have advised her that they thought that the rental amount she proposed was too high. Other respondees have indicated that they do not want to rent a chair from her because parking for the salon was located at the back of the building and they have “never seen anyone enter a salon from a back entrance”. She has never secured a chair rental from her Kijiji advertisements. She believes she has advertised chair rentals on Kijiji three times a year since the salon opened.

[36] During the salon’s operation, the plaintiff has only rented one chair to one individual for an eight-month period. That arrangement ended for reasons unrelated to parking.

Zarko Papovic

[37] Mr. Papovic and the plaintiff have been married since 2003.

[38] Mr. Papovic first met Mr. Cook in November 2009, when he and his wife viewed property that was listed for sale through Mr. Cook. While they thought that property might be a suitable venue for a hair salon his wife wanted to open, after viewing it they determined it had insufficient parking for her needs. They discussed Mrs. Papovic’s intended business with Mr. Cook and he indicated that he would e-mail Mr. Papovic other listings for properties which may be suitable locations for the business. A couple of weeks later, Mr. Cook sent him a number of listings, including one for 2558 Howard Avenue.

[39] Mr. Papovic showed his wife the listing for 2558 Howard Avenue and they called Mr. Cook to arrange a meeting at that property. Mr. and Mrs. Papovic met with Mr. Cook at that property twice before submitting an offer to purchase on January 26, 2010. The first meeting occurred approximately two weeks before they submitted that offer.

[40] During their first attendance, Mr. Cook had difficulty turning the lights on inside the premises and they did not see all of the interior. Mrs. Papovic asked Mr. Cook to show them where the parking spaces referred to in the MLS listing were located. Mr. Cook led them to the parking area of a building that was adjacent to 2558 Howard Avenue. He pointed to four specific parking spaces and said “These four spots are yours.” He also said that he was “sure” that these were their spaces, but he would check with the other agent about the parking.

[41] About two weeks later, Mr. and Mrs. Papovic again met with Mr. Cook at 2558 Howard Avenue. Mr. Cook walked them to the same four spaces he had previously shown them and confirmed that those parking spaces “belonged to” Mr. and Mrs. Papovic, although he does not recall the specific words that Mr. Cook uttered in that regard. When they went inside the building at 2558 Howard Avenue, the lights were still not fully functioning. Mr. Cook advised them that the other agent indicated the vendor was prepared to pay $500 for any necessary repairs to the lights or furnace (however, based on the documentary evidence submitted by the parties, that credit actually arose in response to the results of a property inspection in February 2010).

[42] Mr. and Mrs. Papovic made an offer to purchase 2558 Howard Avenue on January 26, 2010, for a purchase price of $75,000. The offer was made conditional on financing and an inspection. Mr. Papovic asked Mr. Cook to include a condition that the vendors produce a survey. Mr. Papovic felt he should have a survey because it would show the boundaries of the property they offered to purchase.

[43] Mr. Papovic believes that the vendor made a counter offer to sell at $80,000 and he and Mrs. Papovic accepted it (however, the documentary evidence submitted by the parties indicates the vendor’s counter offer was at $85,000 and the Papovics further counter offered at $80,000). During the course of their meeting with respect to the counter offer, Mr. Cook struck out the survey clause in the presence of Mr. Papovic and his wife. He told them that the vendors were vacationing up north and could not provide a survey at the time but that he would ensure the proper paperwork was provided. Mr. Cook said that as soon as the vendors returned, he would get the survey. He guaranteed it. Mr. Papovic followed up with Mr. Cook for several months after the transaction closed in order to get the survey. Mr. Cook never provided him with one. He did not ask Mr. Cook for the survey between the time the Agreement of Purchase and Sale was made and the time the conditions were removed. Mr. Papovic also asked his wife’s transactional lawyer for a copy of the survey and never received a copy from him.

[44] Mr. Papovic denies that he met with Mr. Cook on January 29, 2010. He met with Mr. Cook on January 28, 2010, and he thinks that he received a copy of the signed Agreement of Purchase and Sale at that time. He also thinks that he provided Mr. Cook with the deposit cheque for $1,000, which was dated January 29, 2010, on January 28, 2010.

[45] Mr. Papovic acknowledges that he and his wife signed an Acknowledgement of Receipt of a Signed Copy of the Agreement of Purchase and Sale and the recorded dates of their signatures are both January 29, 2010. Mr. Papovic recalls signing that document but he does not remember if he was present on January 29, 2010.

[46] In the original agreement of purchase and sale, Mr. and Mrs. Papovic were listed as purchasers. Mr. Papovic was eventually removed as a purchaser to facilitate financing. Prior to being approved for financing, Mrs. Papovic completed certain documents at the lender’s request, including a “business planner” with respect to the proposed salon. Mr. Papovic provided Mrs. Papovic with the information set out in that document. He explains that after he and his wife viewed the Howard Avenue property, they discussed the possibility of renting out additional chairs in the salon to other stylists for $600 per month. Mr. Papovic determined that specific amount for a chair rental was fair based on an unspecified guide he found online. Mr. Papovic did not personally have any discussions with anyone about renting a chair at the salon.

[47] Adequate parking was an important element of his wife’s intended business. He and Mrs. Papovic advised Mr. Cook of the importance of adequate parking twice before they made an offer to purchase 2558 Howard Avenue. First, when they originally met Mr. Cook in November 2009, they told him they were not interested in the building he listed because it did not have the parking they needed. Second, the first time they attended the Howard Avenue property, they told Mr. Cook that they intended to rent chairs to other stylists and parking was extremely important. They did not discuss the importance of parking during the course of the second meeting at the Howard Avenue property.

[48] Mr. Papovic confirms that he added a parking area to the rear of 2558 Howard Avenue, after his wife purchased it. When he originally viewed the rear of the property, it was enclosed with a fence and it was populated by a shed, a tree, grass and bushes. Originally, he removed the shed and cleaned up the yard. Once his wife learned that she did not own the parking spaces in the parking area of the adjacent building, he converted the rear yard into a four space gravel parking area. He states that he was counting on the parking being out front and not spending money converting the rear yard to a parking lot.

[49] Once Mr. Papovic learned that his wife did not own the parking spaces she thought she purchased, he spoke to the occupier of the premises to the immediate north of 2558 Howard Avenue where the parking spaces that Mr. Cook showed them were located. The occupier agreed that Mrs. Papovic could utilize parking spaces located in his parking area but he cautioned Mr. Papovic that he intended to move out of the premises once the construction on Howard Avenue was completed. Ultimately, he allowed Mrs. Papovic to utilize his parking area until he moved out of the premises sometime before 2014. After that, Mrs. Papovic was no longer permitted to utilize those parking spaces.

[50] Mr. Papovic states that had Mr. Cook advised him there was no parking associated with the Howard Avenue property or that there was no survey at all, he would have been concerned about purchasing the property.

[51] Mr. Papovic states that Mr. Cook never discussed the issue of parking with him after January 28, 2010, and Mr. Cook never advised him there were no parking spaces included in the purchase price. If Mr. Cook had advised him that there were no parking spaces included in the purchase price, his wife would not have purchased 2558 Howard Avenue.

Diella Marku

[52] Ms. Marku grew up with Mrs. Papovic in Albania. She moved to Canada from the United States in 2011. She enrolled at Marvel Beauty School for hairstyling in 2012. She currently works at the Golden Razor located in the Tecumseh Mall in Windsor, Ontario. She has never worked with the plaintiff. Prior to working at Golden Razor, Ms. Marku worked at other “chain” hairstyling salons in Essex County. She was paid an hourly wage in each of her positions. She has never rented a chair in a salon.

[53] Ms. Marku states that the plaintiff advised her she was going to open a new hair salon and she wanted to work with her. The plaintiff asked her if she wanted to rent a chair and Ms. Marku said she did. The plaintiff called her back later to say that there was no parking. Ms. Marku told her she no longer wished to rent a chair because her customers would not have attended the salon.

[54] Ms. Marku ostensibly authored a letter to Mrs. Papovic, dated June 6, 2012, which states the following:

“Dear Filomena,

I would like to rent chair for 600.00 dollars per month at your hair salon, but my main concern is lack of parking. I appreciate your honesty to disclose parking problem which I find extremely important to run successful business.

Please let me know if you resolved this issue.”

[55] Had there been sufficient parking, Ms. Marku would have rented a chair at Mrs. Papovic’s salon for $600 per month starting in June 2012, and she would still be there.

[56] In cross-examination, Ms. Marku states that the plaintiff asked her to write the June 2012 letter because the plaintiff “wanted to prove…” – and then her answer trailed off. She gratuitously observed that the plaintiff was pretty upset about the parking issue at that time. Ms. Marku concedes that when she wrote the letter she was, “fresh out” of hairstyling school but she had an established clientele from her tenure at the Marvel Beauty School and from the Albanian community at large. However, her first position after graduating was in a salon in Amherstburg, Ontario. None of her clients followed her there. Ultimately, she returned to Windsor.

[57] Ms. Marku continues to work as an hourly paid employee at The Golden Razor. She has never “rented a chair” at another salon because chair rentals are “too expensive”.

Marinela Daschi

[58] Ms. Daschi became a hairstylist in 2006 after completing hairstyling school in Detroit, Michigan. She immigrated to Canada in 2008. In 2009, she worked as a hair stylist alongside Mrs. Papovic at a hair salon in a local mall.

[59] Ms. Daschi states she was interested in renting a chair in the plaintiff’s new salon in 2010. However, she found out about parking issues at the plaintiff’s new salon almost immediately after the plaintiff opened her shop. Mrs. Papovic called her and said “don’t come – there is no parking”. Mrs. Daschi’s customers would not attend a salon without parking. Had there not been parking difficulties, she testifies that she would have started with the plaintiff right away. She would have remained with the plaintiff for “the long term” because they were friends and spoke the same language.

[60] Ms. Daschi authored a letter dated May 10, 2011, addressed to the plaintiff, indicating that she wanted to work at her new hairstyling salon and was willing to pay $650 per month to rent a chair. In her letter, she further states that she could not rent a chair at the salon because “future problem might be parking.” She invited the plaintiff to let her know when she took care of the problem.

[61] Ms. Daschi believes $650 per month was a “good amount” to pay because other salons charged more. In her view, $650 per month is not the industry standard.

[62] Ms. Daschi cannot recall if the plaintiff advised her that it was possible to park in the parking area of the premises to the immediate north of the salon.

Terry Cook

[63] Since 2009, Mr. Cook has been licensed as a commercial and residential real estate salesperson. At the times relevant to this action, he was associated with the defendant, Re/Max, a real estate broker.

[64] Mr. Cook met Mr. and Mrs. Papovic in November 2009 when they viewed a property that was listed for sale through Re/Max. The plaintiffs were not interested in that property because its price and associated municipal taxes were too high.

[65] He confirmed that the listed property had street parking only. He does not recall the Papovics raising an issue with respect to the lack of adequate parking at that property, but he agrees it is possible that they did.

[66] At their request, Mr. Cook agreed to help Mr. and Mrs. Papovic find a suitable property for their proposed hair salon business. To do so, he searched the MLS system with specific criteria regarding location and purchase price that were given to him by Mr. Papovic, and he provided Mr. Papovic with the search results.

[67] In cross-examination, Mr. Cook concedes that he was never involved in the purchase of a property intended to be used as a hair salon prior to his involvement with Mr. and Mrs. Papovic. He agrees that they told him they needed “parking for a business” and that was one of the search criteria they provided to him.

[68] As a business practice, Mr. Cook contemporaneously records notes of his daily events and conversations in a DayTimer. On his DayTimer’s page for Sunday, January 17, 2010, he recorded that Mr. Papovic called and asked him to obtain a listing associated with a specific MLS listing number which Mr. Papovic also provided. Mr. Cook deposes to the truth of that entry. The MLS number corresponded to 2558 Howard Avenue. On January 19, 2010, Mr. Cook e-mailed the corresponding MLS listing to Mr. Papovic.

[69] In cross-examination, Mr. Cook agrees that on January 8, 2010, he sent Mr. Papovic a number of MLS listings but he does not believe he sent him a listing for the Howard Avenue property at that time because Mr. Papovic subsequently provided him with the MLS number. However, he agrees it is possible that he sent Mr. Papovic the MLS listing for Howard Avenue on January 8, 2010 and that Mr. Papovic simply referred to the MLS number on January 17, 2010. Mr. Cook then stated that he sent the MLS listing to Mr. Papovic on January 17, 2010, after he called, but that event is not recorded in his notes. He concedes that it is possible his notes do not document everything he did with respect to 2558 Howard Avenue.

[70] On January 25, 2010, Mr. Papovic called Mr. Cook to set up an appointment to view the Howard Avenue property. A showing was arranged for January 26, 2010. In cross-examination, he concedes that while he only recalls meeting with the Papovics at 2558 Howard Avenue on two occasions (January 26, 2010 and the day of the inspection in February, 2010), it is possible that they all attended together at the property a third time and he simply does not recall it.

[71] On January 26, 2010, Mr. Cook met with Mr. and Mrs. Papovic and their young son at 2558 Howard Avenue. They initially met outside the premises. Mr. Cook let them into the premises where they toured the main shop area and the premises’ residential apartment. Mr. and Mrs. Papovic did not ask any questions about the property while they were inside.

[72] When they exited the building, Mr. and Mrs. Papovic asked where the four parking spaces identified in the MLS listing were located. At that time, Mr. Cook did not know where the spaces were located. He states that there was a video store located immediately adjacent to the north of 2558 Howard Avenue and there was a parking area to the north of that building. He believed the parking spaces were there but he did not know their specific location within the area. He advised Mr. and Mrs. Papovic that he needed to clarify where the parking spaces were and suggested that they could make an offer to purchase the property conditional on the production of a survey. Nothing else was said about parking at that time. Mr. Cook agrees that he never thought the rear portion of 2558 Howard Avenue was the parking area referred to in the MLS listing.

[73] Later that day, he received a telephone call from Mr. Papovic indicating that he and Mrs. Papovic wanted to make an offer to purchase the property for $75,000, left open for acceptance until January 28, 2010. Mr. Cook prepared an Agreement of Purchase and Sale/Offer in accordance with those instructions. He included a survey clause because the location of the four parking spaces was unclear. Once the documentation was prepared, he believes he met with Mr. and Mrs. Papovic at a Tim Hortons location or one of Re/Max’s offices in order to sign the offer and a Buyer Representation Agreement. During the meeting, he explained all of the documents to Mr. and Mrs. Papovic. He does not recall the specific discussions he had with them regarding the terms and conditions of the offer. They signed the offer and Mr. Cook e-mailed it to Ms. Kolm, the listing agent.

[74] Mr. Cook was aware of the Papovics’ expectation that if they purchased 2558 Howard Avenue, they would also obtain four parking spaces in the area north of the property. However, he did not include a condition in the original offer specifically tailored to parking, or the acquisition of four parking spaces, because he felt the survey condition he inserted would include parking spaces.

[75] After Mr. Cook wrote the original offer to purchase, he conducted a historical MLS search because the issue of the location of the parking spaces had him “confused.” He discovered that a prior listing associated with the subject property disclosed that five parking spaces were associated with the property.

[76] On January 27, 2010, the vendor made a counter-offer to sell the property for $85,000. The counter offer was sent to Mr. Cook with the survey condition crossed out.

[77] Upon receipt, Mr. Cook met with Mr. and Mrs. Papovic at the Re/Max office and explained the terms of the counter-offer to them. Mr. and Mrs. Papovic asked Mr. Cook to obtain utility and insurance bills for the premises. Mr. Cook inserted a term in the Papovics’ counter to the vendor’s counter offer that required the vendor to produce that documentation. He advised the Papovics that the vendor did not have a survey, which was something that he had learned from a telephone discussion with the listing agent. He did not discuss the survey with Mr. and Mrs. Papovic other than to tell them it was not available. He also told them the vendors lived in Northern Ontario. Mr. Cook agrees that when the vendor returned a counter offer with the survey clause struck out, he did not add any further conditions to the Papovics subsequent counter offer with respect to the parking associated with 2558 Howard Avenue.

[78] Mr. and Mrs. Papovic made a counter-offer to purchase the property for $80,000, which was accepted on January 28, 2010. Mr. Cook contacted Mr. Papovic and advised him accordingly.

[79] On January 29, 2010, Mr. Papovic attended at the Re/Max office with a deposit cheque. At that time, Mr. Cook advised him that he had been told by the listing agent that the four parking spaces referenced in the MLS listing were owned by the City of Windsor. He also told Mr. Papovic that the listing agent told him the building to the south of 2558 Howard Avenue would be “coming down” and a parking lot would be built in its place. Mr. Papovic provided Mr. Cook with a cheque for $1,000 to be deposited in Manor Realty’s trust account. Mr. Cook identified a receipt of funds document which evidences that deposit cheque for the transaction was received from Mr. Papovic on January 29, 2010. Mr. Cook is certain they met on that date. They did not discuss the parking issue any further at that time.

[80] In cross-examination, Mr. Cook specifically denies that he failed to advise Mr. Papovic about the City of Windsor’s ownership of the parking spaces on January 29, 2010, although he agrees that there is no specific indication in his notes that he did so.

[81] Mr. Cook was advised that the City of Windsor owned the parking spaces referenced in the MLS listing during a telephone discussion that he had with the listing agent, Ms. Kolm, at some point during the period when the offer and counter offers were being exchanged. He did not make any notes with respect to that conversation in his DayTimer. He does not recall the specific date that Ms. Kolm advised him about the ownership of the spaces. He did not tell Mr. Papovic that the parking spaces were owned by the City of Windsor until the time that Mr. Papovic provided him with the deposit cheque, after the Agreement of Purchase and Sale was made.

[82] In addition to making inquiries of Ms. Kolm about the parking spaces, Mr. Cook states that he attended at the Land Registry Office and determined that a survey was not registered on title to 2558 Howard Avenue. He does not know when that happened.

[83] On February 10, 2010, Mr. Papovic contacted Mr. Cook and advised him that a scheduled inspection of 2558 Howard Avenue could not proceed because of poor weather conditions. Mr. Papovic called Mr. Cook on February 19, 2010 and advised him that the inspection was re-scheduled for February 22, 2010. Mr. Cook did not attend at the Howard Avenue property between January 26, 2010 and February 22, 2010.

[84] On February 22, 2010, Mr. Cook attended 2558 Howard Avenue with Mr. Papovic and the inspector. The inspector identified evidence of a previous electrical fire and some issues with respect to the building’s lights. No one discussed parking issues during the course of the inspection.

[85] In cross-examination, Mr. Cook spontaneously suggested that the “inspection clause” could have been used by the Papovics to “get out of the agreement” if the parking spaces were an issue. He states that he discussed the ability to use the inspection condition as an “escape clause” with the Papovics on either January 26 or 27, 2010, but concedes he did not specifically tell them it could be used in relation to parking space issues.

[86] On February 23, 2010, Mr. Cook prepared an amendment to the agreement of purchase and sale that removed Mr. Papovic as a purchaser, together with a document confirming that conditions had been fulfilled. He used a computer program to complete the Notice of Fulfillment of Conditions document, which populated the stated conditions in that document with the same conditions set out in the original offer prepared by Mr. Cook. Accordingly, the survey condition was inserted into the Notice of Fulfillment of Conditions document even though it had been manually removed by the vendor in its counter offer to the plaintiff’s original offer to purchase.

[87] Based on the results of the inspection and subsequent discussions he had with the listing agent, Mr. Cook included an additional term in the Notice of Fulfillment of Conditions confirming that the vendor had agreed to a $500 allowance for the repair of any outstanding electrical issues within the subject premises.

[88] Mr. Cook subsequently met with Mr. and Mrs. Papovic at a Tim Hortons location where Mrs. Papovic executed the Notice of Fulfillment of Conditions. With that, his involvement in the transaction came to an end.

[89] In cross-examination, Mr. Cook was confronted with evidence from his examination for discovery. At that time, he testified that he spoke to Ms. Kolm about parking on January 29, 2010. Ms. Kolm advised him there were four parking spaces owned by the City of Windsor that were “grandfathered.” He did not take any steps to verify that information before Mrs. Papovic executed the Notice of Fulfillment of Conditions. In response to that evidence, Mr. Cook said he very well could have discussed the issue with Ms. Kolm on January 29, 2010. Mr. Cook agrees that the subject parking spaces were ultimately not grandfathered by the City.

Anna Kolm

[90] For the past 14 years, Ms. Kolm has been licensed as a realtor. She was the listing agent for 2558 Howard Avenue at the times relevant to this proceeding. The property was owned by a corporation controlled by her brother and sister-in-law. Ms. Kolm assisted in the corporation’s purchase of the property as well as its sale.

[91] Ms. Kolm personally entered the information that appeared in the MLS listing for 2558 Howard Avenue that Mr. Cook and Mr. Papovic viewed. Under the heading “Parking Spaces”, she inputted “4 car” based on information she received from the City of Windsor. It was her understanding that the parking spaces could be leased from the City of Windsor and that the four spaces she referred to in the listing were “potential parking” associated with 2558 Howard Avenue.

[92] At some point during the listing of the property, Terry Cook requested a showing. She next heard from Mr. Cook when he advised her that he had procured a written offer to purchase the property, which he forwarded to her. An Agreement of Purchase and Sale was eventually negotiated through an exchange of counter offers between Mr. Cook and Ms. Kolm.

[93] Ms. Kolm recalls that Mr. Cook asked her if a survey was available for the property, and he asked if the parking spaces in the MLS were associated with the building and whether they were included in the purchase price. She advised him that a survey was not available. She also advised him that the parking spaces were located in a parking lot owned by the City of Windsor and were available for lease, and that the lease amount was not included in the purchase price for the property. She does not recall specifically when she had that conversation with Mr. Cook, but she states it was some time in the process between the presentation of the original offer and the ultimate acceptance of the second counter offer. She does not recall any other conversations with Mr. Cook about parking for 2558 Howard Avenue or about the availability of a survey. She does not recall who removed the survey condition from the original offer.

[94] In cross-examination, Ms. Kolm agrees that the MLS listing did not disclose that the parking spaces were only available for lease. She denies that the MLS listing information was misleading and she states that she advised all prospective purchasers that the parking spaces were leased.

AGREED FACTS

[95] The parties agree that Re/Max is vicariously liable for Mr. Cook’s conduct in the event that he is found to be liable to the plaintiff in negligent misrepresentation.

[96] Based on an appraisal report dated October 27, 2014, prepared by Mr. Ray Bower of Ray Bower Appraisal Services Inc., the parties agree that $7,696 is the value of the land that would be required for four parking spaces in the vicinity of 2558 Howard Avenue.

POSITION OF THE PARTIES

[97] The plaintiff’s theory of liability is narrowly limited to an allegation that Mr. Cook negligently misrepresented to her that four parking spaces located in a parking area north of 2558 Howard Avenue, which he specifically identified, were associated with 2558 Howard Avenue and that the subject parking spaces would belong to her if she purchased that property.

[98] The plaintiff does not claim against Mr. Cook in negligence, contract or breach of fiduciary duty for failing to make any offers to purchase the Howard Avenue property conditional on the existence and conveyance of four parking spaces; for removing the survey condition or permitting it to be removed; or, for failing to counsel the plaintiff with respect to the potential to rescind the contract through the use of the inspection condition.

[99] The parties agree that in order for the plaintiff to succeed, the plaintiff must establish the following elements of the tort of negligent misrepresentation as set out in Queen v. Cognos Inc., 1993 CanLII 146 (SCC), [1993] 1 S.C.R. 87, at para. 34, specifically:

1. There is a duty of care based on a special relationship between the representor and the representee;
2. The representation in question must be untrue, inaccurate or misleading;
3. The representor must have acted negligently in making the representation;
4. The representee must have relied, in a reasonable manner, on the negligent misrepresentation; and
5. The reliance must have been detrimental to the representee in the sense that damages resulted.

[100] The plaintiff asserts that she has established all five elements of the tort of negligent misrepresentation. She submits that Mr. Cook’s evidence about the nature and extent of the representation(s) he made about the parking spaces is largely incredible.

[101] Conversely, Mrs. Papovic’s evidence that Mr. Cook physically took her to the north parking area and said “these are your spots” is credible, particularly because of the importance that Mrs. Papovic placed on the availability of adequate parking for her business. Mrs. Papovic submits that she would not have made an offer to purchase the subject property in the absence of Mr. Cook’s confirmation that four parking spaces in the adjacent parking area were included in the purchase of 2558 Howard Avenue. Her evidence is confirmed by Mr. Papovic’s evidence.

[102] Mrs. Papovic submits that Mr. Cook’s representations were inaccurate because the parking spaces he identified were not included with the purchase. Mr. Cook’s representations were negligently made. Mr. Cook could have obtained accurate information with respect to the parking spaces had he made reasonable inquiries to the listing agent before the plaintiff made an offer to purchase.

[103] The plaintiff relied on Mr. Cook’s assurance that four spaces in the north lot “belonged to 2558 Howard Avenue” when determining whether to make an offer to purchase that property. Adequate parking was required for her clientele and it was an essential component of her business plan to rent chairs at the salon. Had Mrs. Papovic known that there were no parking spaces included with the purchase of 2558 Howard Avenue, she would not have made an offer. As a result of Mr. Cook’s negligent misrepresentations, she did make an offer and ultimately purchased the premises.

[104] She submits that she has suffered damages as a result of Mr. Cook’s negligent misrepresentations and her reliance on them. First, there is no dispute that the property value is affected by the lack of parking spaces in the amount of $7,696. Second, Mrs. Papovic submits she has suffered a significant past loss of income because her ability to rent chairs in the salon has been frustrated by the lack of parking spaces associated with the premises. “But for” the absence of dedicated parking spaces associated with the building, Mrs. Papovic maintains that beginning in October 2010 and continuing up to the date of trial, she would have rented at least two to three chairs at a rate of $600 to $650 per month. She calculates her lost chair rental income in the range of $90,000 to $136,800. She concedes it is appropriate to deduct the income derived from a rental of one chair for an eight-month period when calculating damages for her past loss of income.

[105] Mrs. Papovic submits that there is “little evidence” upon which an award for future economic loss could be made.

[106] The defendants deny that Mr. Cook made statements of fact with respect to the parking spaces. The MLS listing that disclosed four spaces was not prepared by Mr. Cook. If Mr. Cook’s evidence with respect to the extent of his statements about the parking spaces associated with 2558 Howard Avenue is accepted then liability does not follow because he did not make any inaccurate statements of fact.

[107] If the evidence of Mr. Papovic and Mrs. Papovic about the extent of Mr. Cook’s representations with respect to parking spaces is accepted, the claim still fails because the plaintiff did not reasonably rely on that statement. The lack of parking spaces was a patent defect. Visually, the parking spaces are not located on the same parcel of property that the premises at 2558 Howard Avenue is located. Instead, they are located in a lot adjacent to a different building that is adjacent to the subject premises. Based on this unusual configuration, the plaintiff ought to have known that no parking spaces were included with the purchase of the premises and she ought to have appreciated the need to undertake a more thorough investigation of that issue through her legal counsel acting on the purchase and sale transaction. In all the circumstances, the plaintiff could not reasonably rely on Mr. Cook to warrant the location of the parking spaces: see Manita Investments Ltd. v. T.T.D. Management Services Ltd., 2001 BCCA 334, [2001] B.C.T.C. 133, aff’g (1997), R.P.R. (3d) 88 (B.C.S.C.), at para. 24.

[108] Apart from liability, the defendants submit that the plaintiff’s damages are limited to the diminution of the property’s value as measured by the value of real property in the general vicinity of 2558 Howard Avenue required for four parking spaces.

DISPOSITION

[109] The plaintiff’s claim is exclusively founded in an allegation that the defendant, Cook, negligently misrepresented to her that four parking spaces located in relatively close proximity to property municipally known as 2558 Howard Avenue, Windsor, Ontario, (which he visually identified for her on two separate occasions) were associated with the subject property and that they would belong to the plaintiff if she purchased that property.

[110] The plaintiff expressly confirms that she is not pursuing any other claim or theory of liability against the defendants in contract, tort or breach of fiduciary duty arising out of any other aspect of Mr. Cook’s conduct in relation to the events that resulted in her purchase of 2558 Howard Avenue. Specifically, she does not advance a claim arising from:

a) Mr. Cook’s failure to make her original offer to purchase conditional on confirmation that the subject parking spaces would be conveyed to the her as part of the purchase of 2558 Howard Avenue, despite his knowledge of the importance she placed on adequate parking and his own uncertainty over the location of the spaces;

b) Mr. Cook’s initial reliance on a survey term in the Papovics’ original offer as the method to address the location of the parking spaces and their inclusion in the purchase and his corresponding failure to add or recommend that a further term designed to address those issues be added to the Papovics’ counter offer after the survey term was removed in the vendor’s counter offer;

c) Mr. Cook’s failure to advise Mrs. Papovic of her ability to use the inspection condition to abort the purchase and sale transaction once it was clear that title to the subject parking spaces would not be transferred as part of the transaction;

d) Mr. Cook’s failure to advise Mrs. Papovic to refrain from making an offer to purchase 2558 Howard Avenue until he had an opportunity to “clarify” the location of the parking spaces, particularly given his knowledge of the importance she placed on adequate parking;

e) His failure to promptly advise Mrs. Papovic that he received information from Ms. Kolm that the City owned the parking spaces referred to in the MLS listing as soon as he received that information and especially before the Papovics made their counter offer to purchase the property;

f) Mr. Cook’s failure to promptly advise Mrs. Papovic that he discovered that a previous MLS listing for the Howard Avenue property disclosed that five parking spaces were associated with the property, not four;

g) Mr. Cook’s alleged undisclosed removal of the survey term from the original offer to purchase and/or his representation guaranteeing the production of a survey despite the removal of that term.

[111] While Mr. Cook’s conduct with respect to the foregoing may be questionable in whole or in part, none of it forms the subject matter of the plaintiff’s claim.

[112] Instead, the basis for the plaintiff’s claim arises solely from the two pre-offer statements she alleges Mr. Cook made with respect to parking spaces.

[113] The parties dispute the date, number, nature and extent of the representations that Mr. Cook made to Mrs. Papovic with respect to parking spaces associated with 2558 Howard Avenue. The alleged representations are not reduced to writing. Other than the parties and Mr. Papovic, there are no other witnesses to Mr. Cook’s alleged utterances. Accordingly, the credibility and reliability of their evidence, respectively, are paramount issues in the disposition of this action.

[114] For reasons which I will detail below, I have difficulty with aspects of the evidence of each of Mr. Papovic, Mrs. Papovic and Mr. Cook. Before addressing those concerns, I observe that the following factual propositions are supported by a general consensus in the evidence and I so find:

1. At the times relevant to this action in 2009 and 2010, Mr. Cook was a licensed real estate salesperson associated with the defendant Re/Max, a real estate broker.

2. In late 2009, Mrs. Papovic and her husband sought to purchase a suitable property for the operation of a hair salon that Mrs. Papovic planned to open.

3. The Papovics specifically sought a property located close to the mall where Mrs. Papovic was employed. They wanted to purchase a property with parking facilities that would be adequate for her clientele.

4. In November 2009, Mr. and Mrs. Papovic viewed a property that was listed for sale through Re/Max with Mr. Cook as the listing agent. The Papovics determined that the property was not suitable because it lacked adequate on-site parking, among other things. The Papovics and Mr. Cook agreed that Mr. Cook would assist them in locating properties for sale that were potentially suitable for Mrs. Papovic’s proposed business. To do so, Mr. Cook provided Mr. Papovic with a number of MLS listings, including one for 2558 Howard Avenue. (The parties, together with Mr. Papovic, give conflicting evidence about when Mr. Cook provided the 2558 Howard Avenue listing information and the circumstances that led him to do so.) In that listing, the number “4” appears under the heading “parking spaces”. That information was inputted by the listing agent, Anna Kolm, who was not affiliated with Re/Max.

5. Although the parties disagree about whether it was Mrs. Papovic’s first attendance at the property, Mr. Cook showed 2558 Howard Avenue to Mr. and Mrs. Papovic on January 26, 2010. The property did not have an on-site parking area. However, a series of parking spaces were located to the north of another premises that was immediately to the north of 2558 Howard Avenue. Mrs. Papovic asked about the location of the parking spaces referenced in the MLS listing for 2558 Howard Avenue. Based on his previous discussions with Mr. and Mrs. Papovic on January 26, 2010, Mr. Cook was aware that Mrs. Papovic sought adequate parking spaces for use in her intended business.

6. After viewing the property on January 26, 2010, Mr. and Mrs. Papovic made an offer to purchase it for $75,000. Mr. Cook prepared the offer on their behalf. At the time he did so, Mr. Cook was aware of the Papovics’ expectation that if they purchased the Howard Avenue property, they would also obtain four parking spaces, consistent with the information in the MLS listing. Mr. Cook did not prepare or recommend that the offer be made conditional on verification of that expectation nor did he expressly refer to the inclusion of any parking spaces in the offer he prepared.

7. The original offer submitted by the Papovics compelled the production of a survey, among other things. In response to the Papovics’ original offer, the vendor made a counter offer to sell the property for $85,000. In response, the Papovics made a counter offer to purchase the property for $80,000, which was accepted by the vendor. By the time the agreement of purchase and sale was made, the survey term had been removed.

8. The plaintiff did not acquire title or any other legal or equitable interest in any portion of the parking area to the north of the premises adjacent to 2558 Howard Avenue, as a result of the purchase and sale transaction, or at all.

9. After the purchase was complete, the occupier of the premises immediately to the north of 2558 Howard Avenue allowed the plaintiff to utilize the north parking area in relation to her salon’s business for a period of time.

10. Several months after Mrs. Papovic’s purchase of 2558 Howard Avenue closed, Mr. Papovic created a parking area with four spaces in the rear yard of that property.

[115] The parties and Mr. Papovic gave conflicting evidence on several significant points including:

1. The number of times the Papovics attended the property with Mr. Cook before an offer to purchase was made;

2. The content of Mr. Cook’s pre-offer statement or statements about the parking spaces associated with 2558 Howard Avenue, as well as his pre-offer statement, if any, about the efforts he undertook to confirm information about the parking spaces and the results of his efforts;

3. The circumstances surrounding the removal of the survey term;

4. Whether Mr. Papovic met with Mr. Cook on January 29, 2010, and, if so, whether Mr. Cook disclosed to Mr. Papovic on that date, or at all, information about the parking spaces that he had received from Ms. Kolm during the course of the exchange of counter offers.

[116] For the reasons set out below, after considering the evidence of each of the witnesses, including Mrs. Papovic and Mr. Cook, in the context of the totality of the evidence, I find that the plaintiff has failed to establish, on a balance of probabilities, that Mr. Cook made an unequivocal statement of fact indicating that if the plaintiff purchased 2558 Howard Avenue she would also acquire ownership of four identified parking spaces in a parking area located to the north of a building adjacent to 2558 Howard Avenue.

[117] I also find that the plaintiff has failed to prove that Mr. Cook made an unequivocal statement of fact that four specific and identified parking spaces were associated with 2558 Howard Avenue.

[118] I accept Mr. Cook’s evidence and find that before the Papovics made an offer to purchase 2558 Howard Avenue, they attended there once with Mr. Cook on January 26, 2010. At that time, Mrs. Papovic made an inquiry about the four parking spaces referenced in the MLS listing and Mr. Cook provided an equivocal response consistent with his uncertainty about that subject. I further find that he indicated that he would obtain information from the listing agent about the parking spaces referred to in the MLS.

[119] After considering Mrs. Papovic’s evidence in the context of the evidence as a whole, I reject her evidence that Mr. Cook met with her and her husband at 2558 Howard Avenue on two occasions. Further, I do not accept her evidence that Mr. Cook pointed out four specific parking spaces and told them that they “were theirs”, that they “belonged to the building, that he “guaranteed” the location of the spaces or that he guaranteed specific spaces were associated with 2558 Howard Avenue.

[120] In my view, the credit of Mrs. Papovic’s testimony, is significantly undermined by what I find to be patently misleading evidence from her with respect to the particulars of the “chair rentals” that she testified would have started in 2010 “but for” the lack of available parking spaces. Specifically, she deposes, unequivocally, that “but for” the lack of availability of four parking spaces, she would have continuously rented four chairs in her salon to four of her friends (who she identified) beginning shortly after opening the salon in October 2010. She asserts a claim for loss of rental income ranging from $90,000 (premised on two chair rentals for six years with one rented at $600 per month and the other at $650 per month) to $136,800 (premised on three chair rentals for six years with one rented at $600 per month and the other two chairs rented at $650 per month). She testifies that her lifelong friend, Ms. Marku, is one of the stylists who expressed a willingness to rent a chair from her in 2010. Mrs. Papovic claims damages arising from the loss of Ms. Marku’s anticipated chair rental commencing shortly after the salon opened in October 2010.

[121] However, Ms. Marku testifies and I accept that in 2010 she lived in the United States and she was not trained as a hairstylist at that time. She did not immigrate to Canada until 2011 and did not complete a hair styling program until June 2012. At the plaintiff’s request, she wrote a letter which is dated in June 2012 expressing that she would have been willing to rent a chair at that time “but for” a “parking problem”. In her evidence, she says she would have rented a chair beginning in June 2012.

[122] Ms. Marku’s evidence cannot be reconciled with Ms. Papovic’s assertion that Ms. Marku was willing to rent a chair from her dating back to 2010. Based on the evidence I accept, I find Ms. Papovic’s evidence in that regard to be demonstrably untrue and to be consistent with an effort designed to inflate the quantum of damages she claims from the defendants.

[123] Given the significant temporal disparity between the date that Mrs. Papovic testifies that Ms. Marku would have initially rented a chair (shortly after October 2010), and the date that Ms. Marku completed the program at the hair styling school (June 2012), and Mrs. Papovic’s active solicitation of correspondence from Ms. Marku in June 2012 (and not in 2010 or 2011), I find that Mrs. Papovic’s evidence that Ms. Marku expressed a willingness to rent a chair from her in the latter portion of 2010 did not result from an innocent error or an inability to accurately recall a specific date on a peripheral matter. Ms. Papovic’s evidence with respect to the timing of Ms. Marku’s anticipated chair rental goes to a matter of substance, specifically the quantification of damages that she claims.

[124] Further, I am troubled by the circumstances that led Ms. Marku to author her correspondence to Mrs. Papovic in June 2012. Based on Ms. Marku’s evidence, which I accept, the plaintiff asked her to provide her with that letter for the purpose of “proving” something in relation to a parking issue over which Mrs. Papovic was upset.

[125] In that context, the evidence of the circumstances surrounding Ms. Marku’s alleged willingness to rent a chair in June of 2012 and the letter that Mrs. Papovic requested are, in my view, more consistent with an attempt to build a damages claim than an accurate reflection of genuine contemporaneous discussions between Ms. Marku and Mrs. Papovic about renting a chair. Their alleged interaction in that regard occurred about six months after this action was commenced. Ms. Marku states that Mrs. Papovic asked her about renting a chair in June 2012. Ms. Marku expressed a willingness to do so. Sometime later, Mrs. Papovic called her back to disclose a parking issue. That sequence of events does not make sense. On her own evidence, Mrs. Papovic was aware of the alleged parking issue since 2010. She asserts that it is the reason no one has been willing to rent a chair in her salon since 2010. There is nothing in the evidence, or that can be reasonably inferred from the evidence, that explains why Mrs. Papovic would withhold information about the alleged parking problem from her lifelong friend when she initially approached her about renting a chair in June 2012, only to disclose the information in a subsequent conversation after Ms. Marku expressed an interest in doing so.

[126] As a result of the foregoing, I am left with serious concerns over Mrs. Papovic’s credibility.

[127] My faith in her credit is not restored by the consistency between her evidence and Mr. Papovic’s evidence about both the number of times they attended 2558 Howard Avenue before the offer and the general nature of the statement(s) of fact they assert Mr. Cook made with respect to parking spaces “belonging to the building”.

[128] There are aspects of Mr. Papovic’s evidence and aspects between his evidence and Mrs. Papovic’s evidence that cause me concern over the reliability of Mr. Papovic’s evidence on contentious issues of fact, including:

a) Mr. Papovic refuses to admit that he met with Mr. Cook on January 29, 2010, despite being confronted with evidence confirming the deposit cheque that he acknowledges he provided to Mr. Cook is dated January 29, 2010, and the purchasers’ acknowledgment of receipt of the agreement of purchase and sale was, on its face, executed on January 29, 2010, while he was still a purchaser;

b) Mr. Papovic deposes that it was at his insistence, and not Mr. Cook’s suggestion, that the term requiring the vendor to produce a survey was inserted into the original offer. Contrary to the evidence of Mrs. Papovic who testifies that Mr. Cook did not disclose the subsequent removal of the survey condition to them, Mr. Papovic states that after receiving the vendor’s counter offer, Mr. Cook struck out the survey clause in their presence but “guaranteed” that the vendors had a survey and it would be produced. Despite his evidence about the significance that he placed on the survey, he did not ask Mr. Cook about the survey again between the time the agreement of purchase and sale was formed and the time the transaction closed;

c) Mrs. Papovic does not testify that Mr. Cook guaranteed the production of a survey at any time, while Mr. Papovic does;

d) Mr. Papovic testifies that the vendor credit of $500 for electrical repairs developed as a direct result of their January 26, 2010 attendance at the property. However, the documentary evidence establishes that the subject credit did not form part of the original agreement of purchase and sale. Instead, it was part of the Acknowledgement of Fulfillment of Conditions executed after the inspection in late February 2010;

e) Mr. Papovic testifies that he and Mrs. Papovic told Mr. Cook about their plan to rent out chairs during their first attendance at 2558 Howard Avenue. However, Mr. Papovic also testifies that he and Mrs. Papovic did not discuss the possibility of renting chairs as between themselves until after their first attendance at 2558 Howard Avenue.

f) Mr. Papovic does not depose that Mr. Cook used the word guarantee in relation to the parking spaces at any time, while Mrs. Papovic does.

[129] In the result, I am left with concerns about the reliability of Mr. Papovic’s evidence in general, including his evidence with respect to Mr. Cook’s alleged representation about parking spaces.

[130] Mr. Cook testifies that prior to the initial offer, the only time he discussed the location of the parking spaces referenced in the MLS listing with the plaintiff was on January 26, 2010. Since he did not know where they were located, he indicated he would follow up with Ms. Kolm. He deposes that because of his uncertainty over the parking spaces, he recommended the inclusion of a condition requiring production of a survey. He states that after the Papovics made their offer on January 26, 2010, he followed up with Ms. Kolm with respect to the parking spaces and obtained information that they were City owned and potentially available for lease. He communicated that information to Mr. Papovic on January 29, 2010. I accept his evidence in that regard and make findings accordingly. Below, I will explain my reasons for doing so.

[131] In arriving at the foregoing findings, I remain mindful that through effective cross-examination, there are reasons to approach certain aspects of Mr. Cook’s evidence with caution, because:

a) He relied on contemporaneous notes that he made in his DayTimer in order to refresh his memory about his involvement in the plaintiff’s purchase of 2558 Howard Avenue. He concedes that it is possible that his notes may be incomplete in that regard;

b) He originally testified that price and location were the two search criteria provided to him by Mr. Papovic for the purpose of locating suitable properties for the anticipated salon. Later he agreed that “adequate customer parking” was also a search criteria that was provided to him;

c) He asserts that the inspection condition could have been used by the Papovics to “get out of the agreement of purchase and sale” if they were not satisfied with the parking facilities associated with 2558 Howard Avenue but he never advised the Papovics of his belief in that regard;

d) He did not document the conversation he had with Ms. Kolm about the survey and the parking spaces in his contemporaneous DayTimer notes.

[132] However, when I consider Mr. Cook’s evidence in the context of the evidence as a whole, I find it to be consistent with other evidence that I accept with respect to the number of times that Mr. Cook attended at 2558 Howard Avenue with the Papovics prior to their initial offer, which, in turn, informs the issue of the number of statements that Mr. Cook made with respect to the parking spaces prior to the initial offer.

[133] Both Mr. and Mrs. Papovic testify that they attended the property approximately two weeks before January 26, 2010. Although Mr. Cook allows for the possibility that he sent the MLS listing for the Howard Avenue property to Mr. Papovic on January 8, 2010, he remained firm in his evidence that he sent it to Mr. Papovic on January 19, 2010, after Mr. Papovic requested that he obtain the listing and provided Mr. Cook with the requisite MLS number on January 17, 2010. Mr. Cook made a contemporaneous entry in his DayTimer on January 17, 2010, recording the substance of a telephone call from Mr. Papovic in that regard. Accepting the evidence of that sequence of events, which I do, the proposition that the plaintiff attended at the property with Mr. Cook two weeks before January 26, 2010, is not feasible because at that time Mr. Papovic had not yet requested the listing information from Mr. Cook.

[134] Further, I find the evidence of Ms. Kolm, which I accept, helpful in resolving the parties’ inconsistent evidence on this point. She testifies that at some point during her listing of the property, Mr. Cook requested a showing. She next heard from him to advise that he had procured a written offer to purchase. She does not depose to multiple showings spaced two weeks apart, or even a request for an additional showing. Mr. Cook’s request was limited to a singular showing, which is consistent with his evidence that he and the Papovics attended the property once, on January 26, 2010, before the initial offer was made.

[135] Further, I find the plaintiff has failed to establish on a balance of probabilities that Mr. Cook made a positive representation of fact guaranteeing that Mrs. Papovic would own four parking spaces in a parking area servicing a premises north of 2558 Howard Avenue if she purchased the property at any time. In that regard, I accept Mr. Cook’s evidence that when asked, he indicated that he had to confirm the particulars of the four parking spaces referenced in the MLS listing with the listing agent. I accept that based on Mr. Cook’s actual statement, Mrs. Papovic was aware that he was not providing unequivocal information to her about the parking spaces in the form of a positive statement of fact. She was aware that Mr. Cook did not have personal knowledge about the particulars of the parking spaces referenced in the MLS listing prior to, and at, the time that she made her original offer to purchase the property. Further, he did not hold out to her that he did.

[136] Again, I find the evidence of Ms. Kolm helpful in resolving the discord between the parties’ evidence, respectively, with respect to this issue. Ms. Kolm confirms that during the course of the presentation of the original offer and the exchange of the subsequent counter offers, Mr. Cook made specific inquiries with respect to the parking spaces referenced in the MLS listing. She provided Mr. Cook with information concerning the municipality’s ownership of the spaces and her belief that they could be leased. Her evidence in that regard is consistent with Mr. Cook’s evidence that on January 26, 2010, he advised Mrs. Papovic that he would follow up with the listing agent about the particulars of the parking spaces referenced in the MLS listing. Ms. Kolm’s evidence confirms that he did just that.

[137] Further, in my view, acceptance of Mr. and Mrs. Papovic’s evidence about Mr. Cook’s alleged statements regarding the parking spaces would effectively endorse a view that Mr. Cook serially and intentionally deceived them.

[138] The Papovics testify that in mid-January 2010, Mr. Cook made a positive statement of fact to them specifically identifying the location of the four parking spaces referenced in the MLS listing and said that he was “sure” that those were their spots, although he would check with the other agent. On his own evidence, Mr. Cook had no actual knowledge about the location of the four spaces referenced in the MLS listing as of mid-January 2010. He had not spoken to Ms. Kolm about the Howard Avenue property at all, as of that time. Further, he had not conducted any independent investigations with respect to the location of, or the nature of the marketable interest (whether ownership or leasehold) in, the four parking spaces referred to in the MLS listing, as of that time.

[139] Accordingly, if in mid-January 2010 he identified four specific parking spaces and indicated that he was “sure” those parking spaces “were the plaintiff’s”, he would have done so on the basis of guesswork and with knowledge that he had no factual basis for making the statement, or for expressing certitude in that regard.

[140] On Mr. and Mrs. Papovic’s respective evidence, Mr. Cook’s deceit continued on January 26, 2010, when, according to them, he said that the four parking spaces he had previously shown to them were “theirs” and he assured them that he had confirmed that information with the listing agent. Ms. Kolm and Mr. Cook’s respective evidence, which I accept, establishes that he did not have any discussion about parking spaces with Ms. Kolm prior to the purchaser’s original offer. On his evidence, Mr. Cook did not know the location of the four parking spaces referenced in the MLS listing on January 26, 2010. Therefore, to the extent he made the representations the plaintiff attributes to him, he would have done so by not only fabricating the information about the parking spaces he provided, but also by fabricating the content of a conversation with Ms. Kolm that he did not, in fact, have. There is no direct evidence that establishes that Mr. Cook had a motive to fabricate information with respect to the parking spaces referenced in the MLS listing at any point in time, and from the evidence as a whole, I am unable to reasonably infer that he had such a motive.

[141] Given the consistency of Mr. Cook’s evidence with other evidence that I accept, particularly Ms. Kolm’s evidence, and my concern with respect to the credibility of Mrs. Papovic’s evidence, I find that the plaintiff has failed to establish that Mr. Cook made the alleged misrepresentations that she attributes to him. The consistency between Mr. and Mrs. Papovic’s evidence on the point, when considered in the context of the evidence as a whole, does not cause me to find otherwise. It may be that Mr. and Mrs. Papovic misunderstood the specific nature of what Mr. Cook told them on January 26, 2010, but that does not serve to alter the character of what he said from an equivocal opinion that was expressly subject to further information from the listing agent to an unqualified and unequivocal statement of fact.

[142] While it is not necessary to resolve the other discrepancies between the evidence of Mr. Cook and Mr. and Mrs. Papovic as noted above, in my view an analysis of that evidence serves to further illustrate the general consistency of Mr. Cook’s evidence with other evidence that I accept and the general unreliable nature of the evidence of Mr. and Mrs. Papovic.

[143] Turning first to the deletion of the survey term.

[144] Ms. Kolm testifies that during the process of exchanging the original offer and subsequent counter offers, Mr. Cook asked about the existence of a survey and she advised him that the vendor did not possess one. The timing of that conversation and Ms. Kolm’s advice in that regard are consistent with Mr. Cook’s evidence that when he received the vendor’s counter offer, the survey term was struck out and it is consistent with his evidence that he advised the Papovics that a survey was not available when he presented the vendor’s counter offer to them.

[145] On Mrs. Papovic’s narrative, Mr. Cook never disclosed that the survey term was removed when he reviewed the counter offer with them. Instead, he advised them that the vendor had a survey. Mr. Papovic says Mr. Cook crossed the survey term out in their presence but he still guaranteed it would be provided to them. Based on the totality of the evidence, including Mr. Cook’s evidence, that statement would have been knowingly false had Mr. Cook made it. In my view, logic and human experience militate against finding that Mr. Cook intentionally provided inaccurate information about the survey, that he failed to disclose that the survey term was struck out or that he intentionally misrepresented the existence of a survey when he presented the vendor’s counter offer to the Papovics and there is no evidence that explains why Mr. Cook would do so.

[146] I am satisfied on a balance of probabilities that Mr. Cook did disclose that a survey was not available when he presented the vendor’s counter offer to the Papovics. That finding does not directly inform the essential elements of the cause of action asserted in this action but, in my view, it does inform the assessment of the reliability of both Mr. and Mrs. Papovic’s evidence.

[147] Mr. and Mrs. Papovic testify that the existence of the survey was a very important issue to each of them. Mrs. Papovic says that without one, she would not have purchased the property. In light of the importance they placed on the existence of a survey, their inability to accurately recall the circumstances of the removal of the survey term, even as between themselves, informs the reliability of their evidence with respect to the information that Mr. Cook conveyed to them, generally, including at the time of the alleged misrepresentation.

[148] Turning to the meeting on January 29, 2010, I find that Mr. Cook and Mr. Papovic met on January 29, 2010, because the deposit cheque that Mr. Papovic agrees he provided, the receipt for the deposit cheque and the acknowledgment of receipt of the agreement of purchase and sale are all dated January 29, 2010. I also find that during their meeting, Mr. Cook advised Mr. Papovic that the parking spaces referenced in the MLS were municipally owned.

[149] I reiterate my prior observation that the plaintiff’s claim is limited to Mr. Cook’s alleged negligent misrepresentations about the parking spaces. Given my finding that Mr. Cook did not make the representations attributed to him by the plaintiff with respect to the parking spaces referenced in the MLS listing, her claim fails.

[150] Having found that Mr. Cook did not make the representations forming the subject matter of the claim, it is not necessary to determine whether the plaintiff relied, in fact, on those representations and, if so, whether her reliance was reasonable.

[151] For the foregoing reasons, I find that the plaintiff has not established liability against the defendants and her action is dismissed.

DAMAGES

[152] Although I have dismissed the action, I will go on to assess damages.

[153] In my view, if I had found that the defendant, Cook, negligently misrepresented the location of the four parking spaces referenced in the MLS and further represented that that legal ownership of those spaces would vest in the plaintiff if she purchased 2558 Howard Avenue, and if she was found to have reasonably relied on that representation (or those representations), I would assess her damages at $7,696, which is the agreed upon value of the land required for the parking spaces that she says she was told she would acquire.

[154] I would not assess any damages for the plaintiff’s alleged loss of chair rental income. I am not satisfied, on the evidence that I accept, that the plaintiff has established a past loss of income that was caused by Mr. Cook’s misrepresentations about the parking spaces as asserted. I will explain why.

[155] First, in my view, at the time the plaintiff made her initial offer to purchase, she and her husband were aware through the MLS listing that a total of four parking spaces were said to be associated with 2558 Howard Avenue. There is no evidence that Mr. Papovic or Mrs. Papovic advised Mr. Cook that Mrs. Papovic required more than four parking spaces for her salon. Instead they wanted to know where the spaces were located. Since the Papovics made an offer to purchase 2558 Howard Avenue with a belief that four parking spaces were associated with the property, it is reasonable to infer that they contemplated that four spaces would adequately address the parking required for Mrs. Papovic’s business.

[156] Mr. Papovic suggests that the rear yard parking area was not contemplated or considered until Mrs. Papovic determined, after closing, that she could not lease parking spaces from the City. Indeed, Mr. Papovic says he was counting on the four spaces being available in the front so he would not have to spend money converting the rear yard to a parking area.

[157] As a result, I find that whatever the plaintiff’s intended business model for the salon was at the time of Mr. Cook’s alleged negligent misrepresentations, it was predicated on four parking spaces being available for salon and tenant related use.

[158] On the evidence, the plaintiff has continuously had access to at least four parking spaces from the time the salon opened in October of 2010 to the present despite the alleged negligent misrepresentations made by Mr. Cook. Shortly after the salon opened, the rear yard was converted to a parking area with four spaces available for salon and tenant related use.

[159] In addition, Mr. and Mrs. Papovic agree that prior to the conversion of the rear yard, the occupier of the premises to the north of 2558 Howard Avenue made parking spaces available to Mrs. Papovic for salon related use. On the evidence of both Mr. Papovic and Mrs. Papovic, those spaces were available for such use even after the rear yard was converted, until that occupier left the neighbouring premises some time before 2014. In the period of time before he left, there were more than four parking spaces available (between the rear yard and the north parking area) for salon related use.

[160] Mr. and Mrs. Papovic incurred additional and, on the evidence of Mr. Papovic, unanticipated expenses to re-purpose the rear yard of 2558 Howard Avenue. However, no evidence was called with respect to the actual expenses they incurred and plaintiff’s counsel confirms that the plaintiff is not advancing a claim in that regard.

[161] As I noted above, there is no evidence that the Papovics intended to convert the rear yard to an additional parking area had four spaces been permanently available for salon use in the north parking area. Instead, the evidence leads to the opposite conclusion. Therefore, I find that to the extent that the plaintiff’s opportunity and ability to rent chairs to other stylists was (and is) frustrated because there were (and are) only four parking spaces available for salon related use (after the rear parking area was completed), her opportunity and ability in that regard would have been frustrated even if four parking spaces had been included with the purchase of 2558 Howard Avenue (as Mrs. Papovic deposes Mr. Cook led her to believe).

[162] I am mindful that one of the witnesses other than Mrs. Papovic indicated that her clientele would not park in a parking area located at the rear of a salon, however, I place no weight on that evidence. The basis for that belief was not explained in the evidence. Further, that evidence does not appear to be consistent with the other evidence before me. Mrs. Papovic operates her own stylist business at 2558 Howard Avenue. She did not provide evidence that she has lost clientele or that her active styling business has suffered any economic impact as a result of the salon’s parking spaces being located behind the building. There is no evidence that her customers have expressed any concerns about parking behind the salon.

[163] Further, there is no evidence that the location of the rear parking spaces had any impact on the attendance and retention of the clients of the stylist that actually did rent a chair from Mrs. Papovic for eight months. That stylist severed his relationship with Mrs. Papovic for reasons other than the parking that was (and is) available for patrons of 2558 Howard Avenue.

[164] I conclude that through the conversion of the rear yard to a four-space parking area, the plaintiff has mitigated her potential losses arising from her failure to acquire four spaces in the north area as part of her purchase of 2558 Howard Avenue. She acted reasonably in doing so, however, she expressly states, through counsel, that she is not pursuing a claim for the costs of her mitigation efforts in that regard.

[165] I now turn to the second reason for limiting the plaintiff’s damages to the value of real property required for four parking spaces. For reasons set out below, I am not persuaded on the evidence that I accept, that the plaintiff has established a past loss of rental income, in fact, as a result of the failure of her four friends to rent chairs in her salon.

[166] I have previously determined that the plaintiff’s evidence on the point is incredible. She deposes that four individuals, including Ms. Marku, expressed a willingness to rent chairs from her in 2010. Ms. Marku was not a Canadian resident or a trained hair stylist at the time. Further, Mrs. Papovic would not or could not provide a direct response when she was repeatedly asked if there were firm arrangements with any of her friends for chair rentals in 2010. The business planner document that Mrs. Papovic submitted to her commercial lender in 2010 evidences that chair rental income was something that she expected to earn two to three years after the salon opened and then only if the economy improved. She did not project any chair rental income during the first 12 months of the salon’s operation. However, her loss of income claim is premised, in part, on the assumption that “but for” Mr. Cook’s tortious conduct, she would have continuously earned rental income from the rental of two to three chairs commencing almost as soon as the salon opened in October 2010.

[167] Mrs. Papovic called evidence from two of the four alleged would-be renters. The other two alleged would-be renters did not testify and she cannot even recall the full name of one of them. There is no evidence that Mrs. Papovic and any of the alleged renters made firm agreements with respect to chair rentals.

[168] While the plaintiff suggests the “parking issue” frustrated her ability to rent chairs to her friends, there is no evidence that she advised her friends that the occupier of the premises to the north of the salon agreed to allow access to parking spaces in the north parking area for salon related use. There is no evidence that the alleged “parking issue” impacted the plaintiff’s own active hairstyling business or her clientele. There is no evidence that the alleged “parking issue” impacted the business or clientele of the stylist who did rent a chair.

[169] There is no evidence, apart from the plaintiff and two of her friends, that chairs in the salon cannot be rented because of the alleged “parking issue”. Mrs. Papovic gives general evidence that in response to her periodic Kijiji advertisements, some individuals have expressed concerns over the parking available at 2558 Howard Avenue. She also states that reaction is not universal and others have taken issue with the cost of the chair rental proposed by Mrs. Papovic and not the salon’s parking amenities.

[170] While Ms. Marku and Ms. Daschi lend some support to Mrs. Papovic’s claim, I find their evidence, respectively, to be dubious.

[171] Ms. Marku states that in June 2012 the plaintiff asked her if she was interested in renting a chair in the salon. Ms. Marku indicated that she was. Mrs. Papovic, subsequently contacted her and told her about a “parking matter”. Ms. Marku did not rent a chair. That narrative is puzzling. By June 2012, the alleged parking problem was well known to the plaintiff and the rear yard was already converted to a parking area. There is nothing in the evidence that explains why the plaintiff would refrain from advising her lifelong friend about the “lack of parking” at the time she originally invited the plaintiff to rent a chair from her, or why she did so in a second discrete conversation only after Ms. Marku indicated she was willing to rent a chair. That sequence of events makes little sense, particularly given Ms. Marku’s evidence that the plaintiff was “pretty upset about parking” at the time.

[172] At the plaintiff’s request, Ms. Marku authored a letter in order to assist the plaintiff in “proving” something. In that correspondence, she states her main concern was “lack of parking”. Yet, 2558 Howard Avenue did not “lack” parking amenities at that time. As of June 2012, between the rear parking area and the ability to use the north parking area, the salon had as many, if not more, parking spaces available for use than it would have had from the four spaces referenced in the MLS listing. If Ms. Marku felt that access to four parking spaces constituted a “lack of parking”, then it follows that her view would have remained the same if the four spaces described in the MLS listing were available instead of the four spaces in the rear yard.

[173] Ms. Daschi states that she did not rent a chair at the plaintiff’s salon because the plaintiff told her “not to come to the salon because there was no parking”. She does not recall if she was told that the north parking area was available for salon related use. There is no evidence that she was told about the plan to convert the rear yard to a parking area or that she was ever invited to rent a chair after the conversion was complete. Ms. Daschi says her clients would not attend a salon without parking. However, Mrs. Papovic’s salon had (and has) an equivalent number of parking spaces to the number disclosed in the MLS listing. To the extent that the availability of four parking spaces was the “parking problem” Ms. Daschi references in her May 2011 correspondence, that problem would have existed if the four spaces referenced in the MLS listing were, in fact, associated with the property.

[174] In the result, I place no weight on Ms. Daschi’s or Ms. Marku’s evidence regarding chair rentals at the salon. I find the accuracy of their evidence, particularly with respect to the actual availability of parking spaces for salon related use, to be tenuous in all of the circumstances. Further, they are the plaintiff’s close friends and the potential for subjective bias in favour of the plaintiff is quite high and, in my view, it is operative in each of their accounts.

[175] The plaintiff did not call evidence from an objective independent source establishing a correlation between her lack of ownership of four spaces in the north parking area and her inability to rent chairs in the salon, and she did not call evidence from the individual that actually rented a chair at her salon.

[176] Overall, the plaintiff has not adduced cogent or compelling evidence that the alleged negligent misrepresentation(s) has (have) impaired her ability to rent chairs in her salon to other stylists and I would not allow her claim for past income loss on that basis, in any amount.

FINAL DISPOSITION

[177] As a result of the foregoing, the action is dismissed. Damages are provisionally assessed at $7,696.

[178] If a costs award is pursued and the parties cannot agree on its terms, they may schedule a costs hearing before me on a mutually agreeable date, through the office of the trial coordinator in Windsor. In the event that such a hearing is arranged, the parties shall deliver their respective costs outlines at least 10 days prior to the hearing date. If the parties do not contact the office of the trial coordinator within 60 days to arrange a hearing, the issue of costs will be deemed to be settled.

Original signed by Justice Gregory J. Verbeem

Gregory J. Verbeem

Justice

Released: October 11, 2016

CITATION: Papovic v. Re/Max, 2016 ONSC 5077

COURT FILE NO.: CV-11-17254

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

FILOMENA PAPOVIC

Plaintiff

– and –

RE/MAX PREFERRED REALTY LTD. and TERRY COOK

Defendants

REASONS FOR JUDGMENT

Gregory J. Verbeem

Justice

Released: October 11, 2016