COURT FILE NO.: CV-10-1010-00
DATE: 2020 10 07
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
JOSEF OGORZALY and ANNA OGORZALY
Plaintiffs
- and -
NAGE ABOU SHAKRAH, RANDA ABOU SALEM, NIVIN FOUAD, RESIDENTIAL LIFESTYLES REALTY INC. BROKERAGE, RENATA KUZMA, HOMELIFE/RESPONSE REALTY INC., REFAEL TYSZLER and BLUERAY HOME INSPECTIONS INC.
Defendants
Frank Loreto and David Fenig, for the Plaintiffs
Leigh Harrison-Wilson, for the Defendants Nage Abou Shakrah and Randa Abou Salem
HEARD: July 13, 2020
REASONS FOR JUDGMENT
Dennison J.
INTRODUCTION
[1] The Defendants Nage Abou Shakrah and Randa Abou Salem (the Defendants) seek partial summary judgment to have the claim against them dismissed.
[2] The Defendants purchased their residence in 2002. Approximately one month before the Defendants purchased the residence, police searched the home and seized approximately 305 marijuana plants. The residence had been used solely for growing marijuana (grow-op).
[3] The Defendants sold their home to the Plaintiffs on July 31, 2009.
[4] The Plaintiffs claim that the Defendants mislead and actively concealed the fact that the property was previously used as a grow-op. The Plaintiffs also claim that the Defendants' real estate agent, Nivin Fouad, and his brokerage, Residential Lifestyles Realty Inc. Brokerage, either advised the Defendants to conceal the grow-op or were negligent in their obligation to investigate the matter.
[5] The Plaintiffs state that they would not have purchased the property or paid the amount they paid had they known that the residence had previously been used as a grow-op. They submit that they have suffered damages. They received a low offer to purchase the house from an agent who explained that the offer was low because the residence had been used as a grow-op and the cost of obtaining a Certification of Remedy.
[6] The Defendants brought a summary judgment motion to have the action dismissed against them. Mr. Fouad and Residential Lifestyles did not participate in the summary judgment motion.
[7] The issue to be determined is whether it is appropriate to grant partial summary judgment in favour of the Defendants.
SUMMARY OF THE FACTS
[8] The Defendant Randa Abou Salem filed an affidavit in support of the summary judgment motion. There was no affidavit from her husband, Nage Abou Shakrah. Ms. Salem stated that the Defendants purchased the residence located at 3263 Pilcom Crescent, Mississauga on February 20, 2002. The purchase closed on March 29, 2002.
[9] On January 24, 2002 less than a month before the Defendants entered into an agreement of purchase of sale for the property, police entered the residence and found a large marijuana grow-op. Police seized 305 plants that were worth approximately $341,000. The residence was used solely as a grow-op; no one resided in the residence.
[10] The evidence of Ms. Salem is that the Defendants had no direct dealings with the previous owner. All dealings were done through their real estate agent. They viewed the property before purchasing it. A home inspection was done on the house, which noted dampness along the front, left and rear wall of the basement and a crack resulting in high moisture. There was no mention of the home being used as a grow-op.
[11] Ms. Salem stated that the Defendants did not know if the price of the residence was discounted because it was a grow-op. She stated that they never inquired and were never advised of the market value of the residence or if the price of the residence was comparable to other properties in the same neighbourhood. The Defendants, however, lived nearby and choose the residence so that their children would not have to change schools.
[12] Ms. Salem stated that when the Defendants purchased the residence, they had no knowledge that the residence was previously used a grow-op, nor did they discuss it with any neighbours. They resided at the residence from June 2002 until June 2008 with their four children. She stated that while they lived there, they did not observe or experience anything that would suggest the residence had previously been used as a grow-op.
[13] In 2008, the Defendants leased the property until it was sold in 2009. Ms. Salem indicated that her son managed the property. She stated that her son would call her husband or her if the tenants had any issues. She stated that her son never told her that the tenants had any health complaints.
[14] On April 10, 2009, the Defendants signed a listing agreement with the Defendants Residential Lifestyle Realty Inc. and Nivin Fouad. Ms. Salem stated that the Defendants completed the Seller Property Investment Statement (SPIS).
[15] The SPIS form asks, "whether the use of the property ever been for the growth or manufacture of illegal substances". The form gives the option of stating "yes", "no", or "unknown". The Defendants indicated "no" that the residence was not used as a grow-op. There is no evidence that the Defendants contacted police to see if the residence had ever been used as a grow-op. On the SPIS form the Defendants stated that it was "unknown" if the property was subject to flooding or under the jurisdiction of any Conservation Authority or Commission.
[16] The Plaintiffs entered into an Agreement of Purchase and Sale on July 8, 2009 with the sale to close on July 31, 2009. Prior to the sale closing, the Plaintiffs retained the services of a home inspector. The home inspector did not notice any visible signs of damage as a result of the grow-op.
[17] A month after the closing of the sale of the residence, a neighbour approached the Plaintiffs and told them that the residence had been used as a grow-op. That neighbour is now deceased. The Plaintiffs obtained a police report confirming that the residence had been used as a grow-op.
[18] The Plaintiffs stated that had they known about the grow-op, they would not have purchased the residence. The Defendants also stated that if they had known the residence was used as a grow-op they would not have purchased the home.
[19] The Plaintiffs filed a Statement of Claim on March 17, 2010 against the Defendants, Mr. Fouad, Residential Lifestyles Realty and several other parties.
[20] The Plaintiffs submit that the residence has decreased in value because they must disclose that the residence was a grow-op should they wish to sell it. Lenders will be more hesitant to lend against a home that was used as a grow-op because of the latent defects involving mould and other issues. The Plaintiffs also stated that they incurred costs in fixing the basement.
[21] The Plaintiffs are continuing their action against the Defendants, Nivin Fouad and Lifestyles Reality for breaches of various duties and for misrepresentation.
[22] Mr. Fouad and the Realty Agency have cross-claimed against the Defendants.
[23] Shortly before the pre-trial in this matter the Defendants brought the summary judgment motion, so no trial date was scheduled. Mr. Fouad and Lifestyle Realty did not participate in this summary judgment motion and the Defendants have not attempted to dismiss Mr. Fouad's and Lifestyle Realty's cross-claim. Mr. Fouad and Lifestyle Realty were not opposed to the bringing of the summary judgment motion.
POSITION OF THE PARTIES
i) The Defendants' Position
[24] The Defendants submit it is appropriate to grant partial summary judgment, dismissing the action against them for several reasons.
[25] First, the Defendants submit that there is not sufficient evidence that meets the threshold of demonstrating that the Defendants knew the house had ever been used as a grow-op. The Defendants submit that the only evidence that the Plaintiffs have to support this contention is that a neighbour told the Plaintiffs a month after they moved in that the house had been used as a grow-op. The Defendants submit that the Plaintiffs are asking the court to presume and speculate that the neighbour also told the Defendants about the grow-op when the Defendants moved in. The Defendants submit that this hearsay evidence should be given little value.
[26] Second, it is the position of the Defendants that the court can consider the credibility of the Defendants and determine that they did not know about the grow-op based on the evidence filed. They submit that other than the hearsay statement, there is no evidence to contradict the Defendants' position that they did not know about the grow-op. In fact, the evidence suggests that they did not know about the grow-op because there was no indication that the home was used as a grow-op on either the Defendants' home inspection in 2002 or the Plaintiff's home inspection in 2009.
[27] Third, there is no basis to the Plaintiffs' argument that the SPIS is a warranty and therefore the Plaintiffs are entitled to rely on the SPIS for indemnification. The Defendants submit that the SPIS is not a statement collateral to the Agreement of Purchase and Sale based on the wording in the SPIS and the jurisprudence.
[28] Fourth, the Defendants argue that granting partial summary judgment in this case will not create delay because the bulk of the action is against the Defendants. All that will remain is the action against the Realtor and the Realty. If the action against the Realtor continues, it is possible that the Defendants would be called to give evidence. They would be witnesses and not parties, which would reduce the trial complexity. Moreover, given the stage of the proceedings, most of the research and evidence gathering has been completed.
[29] Finally, the Defendants submit that while there may be some overlapping productions, the claims against the Defendants are not the same as against the Realtor and the Realty Agency. They are not internally intertwined. The Defendants also submit that there is not a risk of inconsistent results, given that the legal issues in the action against the Defendants are different than the actions against the Realtor and Realty Agency.
ii) The Plaintiffs' Position
[30] The Plaintiffs submit that bringing this summary judge motion on the eve of the pre-trial almost ten years later is an attempt by the Defendants to delay a matter that has already taken too long to go to trial.
[31] The Plaintiffs submit that it is not appropriate to grant partial summary judgment in this case for several reasons.
[32] First, the Plaintiffs submit that there is sufficient circumstantial evidence from which a trier of fact could infer that the Defendants knew about the grow-op.
[33] Second, the key issue to determine in this case is the Defendants' credibility and that cannot be determined on the record before the court.
[34] Third, the issues involving the Defendants cannot be readily bifurcated from the action against the Realtor and Realty Agency. They are factually interrelated. There is also a risk of inconsistent findings. A finding of partial summary judgment will require a finding that the Defendants did not know about the grow-op. A trial judge in the action against the Realtor and Realty may find that the Defendants told their Realtor about the grow-op or information that should have resulted in the Realtor making further inquiries.
[35] Finally, it is the position of the Plaintiffs that there are no real cost savings in granting partial summary judgment because the Realtor and Realty Agency will likely call the Defendants to give evidence or bring a third party claim against the Defendants.
LEGAL PRINCIPLES
[36] The test for summary judgment is set out in Rule 20.04 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Rule 20.04 (2)(a) states that the court shall grant summary judgment "if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence." In considering if there is a genuine issue requiring trial, pursuant to Rule 20.04(2.1) the judge may exercise certain powers "unless it is in the interest of justice for such powers to be exercised only at a trial". These powers include:
- Weighing the evidence.
- Evaluating the credibility of a deponent.
- Drawing any reasonable inference from the evidence.
[37] The Supreme Court of Canada considered the summary judgment regime in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87. At paragraph 66, Hryniak instructs that the court's analysis on a summary judgment motion must take place in two stages:
- First, the motion judge must determine if there is a genuine issue requiring a trial based only the evidence filed on the motion, without regard to the fact-finding powers described in Rule 20.04(2.1). No genuine issue requiring a trial will exist if the evidence permits the motions judge to fairly and justly adjudicate the dispute in a timely, affordable and proportional matter. If no genuine issue requiring a trial exists, the motion judge must render summary judgment.
- If the motion judge concludes at the first stage that a genuine issue for trial exists, the motion judge is then directed to consider whether a trial may be avoided by using the enhanced fact-finding powers set out in Rule 20.04(2.1). The motion judge may exercise those powers, unless doing so would be contrary to the interests of justice.
[38] The overarching concern with this test is whether the summary judgment will provide a fair and just adjudication. The Supreme Court explained In Hryniak, at paragraph 50, that when a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective. Similarly, where the judge cannot have confidence in their conclusion, summary judgment is not a proportionate way to resolve a dispute. The trial judge has to be sure that they can find the necessary facts and apply the relevant legal principles to resolve the dispute.
[39] In a summary judgment motion each party must put its best foot forward by setting out in the affidavit material or other evidence specific facts showing that there is a genuine issue requiring a trial. For example, if there is a specific fact that must be proven to succeed at trial and the party having the onus to prove that fact cannot demonstrate there is sufficient evidence, then a trial is unnecessary: Pammet v. Ashcroft, 2014 ONSC 2447, at paras. 27 and 29.
[40] In addition, the court may determine issues of credibility if the court finds that the record on the motion is sufficient to make that determination: Zhu v. Kendellhurst Academy Inc., 2018 ONSC 7685, at para. 12. However, as noted by the Court of Appeal in Cook v. Joyce, 2017 ONCA 49, at para. 92, the more important credibility is to determining key issues, the harder it will be to fairly adjudicate those issues solely on a paper record.
[41] When considering if it is in the interest of justice to grant summary judgment where some but not all parties bring a motion for summary judgment, the court must consider "the consequences of the motion in the context of the litigation as a whole." As explained by the Supreme Court in Hryniak, at para. 60,
The "interest of justice" inquiry goes further, and also considers the consequences of the motion in the context of the litigation as a whole. For example, if some of the claims against some of the parties will proceed to trial in any event, it may not be in the interest of justice to use the new fact-finding powers to grant summary judgment against a single defendant. Such partial summary judgment may run the risk of duplicative proceedings or inconsistent findings of fact and therefore the use of the powers may not be in the interest of justice. On the other hand, the resolution of an important claim against a key party could significantly advance access to justice, and be the most proportionate, timely and cost-effective approach.
[42] More recently, the Court of Appeal for Ontario has cautioned against granting partial summary judgment except where there is "no risk of duplicative or inconsistent findings at trial and that granting summary judgment [is] advisable in the context of the litigation as a whole": Canadian Imperial Bank of Commerce v. Deloitte & Touche, 2016 ONCA 922, 133 O.R. (3d) 561, at para. 4. In Butera v. Chown, Cairns LLP, 2017 ONCA 783, at para. 34, the Court of Appeal for Ontario cautioned that partial summary judgment should be considered a rare procedure. It should only be used in limited circumstances where "an issue or issues that may be readily bifurcated from those in the main action and that may be dealt with expeditiously and in a cost-effective manner."
IS THIS AN APPROPRIATE CASE TO GRANT PARTIAL SUMMARY JUDGMENT?
[43] For the reasons set out below, it is not in the interest of justice to decide the issues raised in this action by way of partial summary judgment. I am satisfied that there is a genuine issue for trial that cannot be resolved on this motion record or by using the enhanced fact-finding powers set out in Rule 20.04(2.1). I also conclude that granting partial summary judgment is not in the interests of justice in the context of the litigation as a whole.
There is a genuine issue as to whether the Defendants knew that the residence had been used as a grow-op that requires a trial
[44] I am not able to determine if the Defendants knew or ought to have known that the residence was previously used as a grow-op and intentionally or negligently mislead the Plaintiffs based on the motion record or by using the enhanced fact-finding powers.
[45] There is no dispute that the residence was used as a grow-op and that it was represented to the Plaintiffs that it was not. The main issue to determine in the action against the Defendants is whether they knew the residence was previously a grow-op or were reckless as to whether representations were false that it was not used as a grow-op. Determining the credibility of the Defendants is critical in resolving the issue of the Defendants' knowledge.
[46] There is no direct evidence that the Defendants knew that the residence had been previously used as a grow-op. There is, however, circumstantial evidence which raises serious questions about the Defendants' credibility that they did not know that the residence had been previously used as a grow-op. The facts include:
- When the Plaintiffs' moved into the residence they were approached by a neighbour within a month and were informed that the residence had previously been a grow-op, yet Ms. Salem claims that despite having lived in the residence for over six years no one told either her or her husband about the grow-op.
- Police searched the residence and discovered the grow-op less than a month before the Defendants signed the Agreement of Purchase and Sale.
- Ms. Salem stated that the Defendants purchased the premises without comparing housing prices in the neighbourhood, yet the Defendants lived in an area close enough that their children would not have to change schools.
- The Defendants' home inspection when they purchased the house did not reveal that there was a grow-op but did indicate that there was moisture in the basement.
- The Defendants checked off the box that the residence was not used as a grow-op when they had the option to check off the box that they did not know. They checked off that they did not know about other conditions of the property.
[47] The crux of this case is whether the Defendants' evidence is credible. Is it believable that none of the neighbours told the Defendants about the grow-op despite living in the area for six years? Is it believable that having signed an Agreement of Purchase of Sale less than a month after the police executed a search warrant and seized 305 plants that no one told them the residence was used as a grow-op, including neighbours or their real estate agent? The inference that the Plaintiffs knew about the grow-op is not unreasonable or speculative when the whole of the evidence is considered. The evidence raises legitimate credibility concerns about the Defendants' evidence that they did not know the residence was used as a grow-op.
[48] In addition, it is worth noting that only Ms. Salem filed an affidavit for this motion. As such, it is not clear what contact her husband had with the realtor when they bought the residence or what his knowledge was with respect to the price of the residence.
[49] In concluding that I cannot fairly resolve this case using the enhanced fact-finding powers, I am cognizant of the fact that the more important issues of credibility are to the determination of a central issue, the harder it will be for a motion judge to confidently resolve the dispute solely on a paper record: Bains v. Khatri, 2019 ONSC 1401, at para. 22; 2212886 Ontario Inc. v. Obsidian Group Inc., 2018 ONCA 670, at paras. 40 and 41; Baywood Holmes Partnership v. Haditaghi, 2014 ONCA 450, at para. 44; Cook v. Joyce, 2017 ONCA 49, at para. 92.
[50] Moreover, where the allegation is fraud, courts have expressed a preference for credibility issues to be determined at trial. As stated by Doi J., in Bains v. Khatri, at para. 23:
In cases involving allegations of fraud, the courts have expressed a preference for credibility issues to be determined at trial. Making a finding of fraud is a serious matter that calls for a rigorous and careful examination of the evidence as a whole, particularly as to the credibility of a witness, and may also involve the evaluation, assessment and comparison of the credibility of multiple witnesses. Given these required findings in cases featuring allegations of fraud, a summary judgment motion is not a suitable procedure even with the Rule 20.04(2.1) expanded powers. The evidentiary issues in such cases are best determined by considering them in the context of all the other evidence at trial; Cannon v. Funds for Canada, 2012 ONSC 399 at paras. 476-479 and 485, leave to appeal refused [2012] O.J. No. 5117 (Div. Ct.); 1305268 Ontario Inc. v 823042 Ontario Inc., 2018 ONSC 6121, at paras. 12 and 13.
[51] Determining the credibility of the Defendants is even more difficult on this record because the court does not have the entire factual matrix upon which to assess the Defendants' credibility. There may be evidence introduced at the trial from the Realtor about what he told the Defendants and what the Defendants told him that has bearing on the Defendants' credibility and their knowledge or lack of knowledge of the grow-op. For this reason, it is also not appropriate to engage in a mini-trial.
[52] I do not find that the Defendants' reliance on Leech v. Dietrich, 2012 CanLII 98284 (ON SCSM) assists them in this case. The issue in that trial was whether the purchasers' refusal to close the transaction was justified. The Plaintiffs purchased a residence in 2001. There was a neighbourhood rumour there was a grow-op or meth lab previously in the residence. The Plaintiffs followed up with the police in 2007 and were told that there was no record of a grow-op. The Plaintiffs then sold the residence to the Defendants. The Defendants were told of the rumour and followed up with the police. The police confirmed that a large quantify of hash oil was seized from the residence. Police found no grow-op or meth lab but believed there to have been a clandestine lab of a minor nature in March 1995. The trial judge was satisfied that in those circumstances, the Plaintiffs did not know that the previous owner was a drug dealer and there was no evidence to suggest that the residence was used as a lab. The Defendants should have closed the deal on the residence.
[53] There are two important distinctions between Leech and this case. First, Leech was a trial where the trial judge had the opportunity to fully consider whether the Plaintiffs were being truthful about what they knew about how the previous owners used the residence. Second, there was no finding by the police that there was a grow-op or a meth lab, whereas in this case there were a substantial amount of marijuana plants seized by police a month prior to the Defendants purchasing the residence.
This part of the action should not be bifurcated from the rest of the action
[54] Partial summary judgment may be granted where there is "no real concern about duplicative or inconsistent findings arising with respect to the claims asserted against the remaining defendants," and where the claims raised against one party are "readily separable from the balance of the case": Larizza v. the Royal Bank of Canada, 2018 ONCA 632, at para. 40.
[55] The potential liability of the Defendants cannot readily be bifurcated from the Plaintiffs' action against the Mr. Fouad or the Realty Agency because they are factually interrelated.
[56] The Plaintiffs' claim against the Defendants is that the Defendants knew the residence was used as a grow-up. They also submit that the Defendants knowingly or negligently misrepresented this fact in the SPIS and that the SPIS should be treated as a warranty to the Agreement of Purchase and Sale.
[57] The Plaintiffs' action against Mr. Fouad and the Realty Agency is that they knew or were put on notice that the residence had been used as a grow-op. Even if the Realtor and the Realty Agency were not put on notice, the Realtor had an obligation to make sure that the information contained in SPIS was accurate.
[58] I disagree with the Defendants' submission that the issues between the Plaintiffs and Mr. Fouad, and the Plaintiffs and the Defendants, are not internally intertwined and therefore partial summary judgment is appropriate. While they may raise different legal issues such as duty of care and negligence as opposed to false representation, the issues are factually intertwined.
[59] The issues raised in both claims arise out of the same factual matrix. What the Defendants were aware of and what the Defendants told Mr. Fouad are relevant in determining if Mr. Fouad and the Realty Agency are liable for damages. For example, if Mr. Fouad investigated the questions contained in the SPIS and learned any information, that would be relevant to the determination of whether the Defendants knew that the residence was previously used as a grow-op. Similarly, if Mr. Fouad provided instructions to the Defendants about how to fill in the SPIS form, this may have some bearing not just Mr. Fouad's potential liability, but the Defendants' as well, particularly if there was a finding that the SPIS was a warranty.
[60] The interconnectedness between the issues raised by the Defendants, Mr. Fouad and the Realty Agency is further demonstrated by the fact that Mr. Fouad and the Realty Agency brought a cross-claim against the Defendants.
[61] Granting partial summary judgment is not appropriate where claims are intertwined because it can lead to inconsistent results: Butera, at paras. 36 and 38: Canadian Imperial Bank of Commerce, at paras. 37 and 38. That risk exists in this case. If partial summary judgment were granted in this motion there would have to be a finding that the Defendants did not know about the grow-op. A trial judge hearing the action against Mr. Fouad and the Realty Agency may come to a different conclusion after hearing all of the evidence, which could include the Defendants' evidence.
[62] Finally, I do not find that the decision of Mederios v. Petopia Ltd. et al., 2020 ONSC 1562, where partial summary judgment was granted, assists the Defendants as they submit. In that case, the issues in the motion for summary judgment was whether the owner of a dog, Mr. Campbell, was responsible for biting injuries to an employee of a kennel. There was also a claim by the employee against the kennel. Sossin J. found that the duties of an employer to an employee would not turn on evidence of the liability of Mr. Campbell. Sossin J. held that there was no evidence that Mr. Campbell was aware that the dog had bitten someone else while at the kennel on a previous occasion or that the kennel had any concern about the dog. Sossin J. held that the separation between the negligence claim and the duties of an employer to an employee was "even more stark now that the cross-claims between Mr. Campbell and the kennel have been withdrawn." Moreover, Petopia, the employer, confirmed that it would not be raising any issues of negligence or liability in relation to Mr. Campbell at trial. This is very different from the present situation because Mr. Fouad and the Realty Agency have given no indication that they would not seek to continue a claim against the Defendants.
Granting summary judgment does little to move the matter forward
[63] Even if summary judgement were granted in favour of the Defendants, it would not end the action in this case and does little to move the matter forward, further demonstrating why granting partial summary judgment is not appropriate.
[64] Granting partial summary judgment does little to move the action forward as a whole because the Plaintiffs' action against Mr. Fouad and the Realty Agency would continue and Mr. Fouad and the Reality Agency may seek to continue a claim against the Defendants.
[65] It is important to note that a finding that the Defendants did not know about the grow-op would not preclude the Plaintiffs from pursuing their claim against Mr. Fouad and the Realty.
[66] For the Plaintiffs to be successful in the action against Mr. Fouad and the Realty Agency, they must show that the realtor's conduct fell below the standard of care required for real estate agents. The jurisprudence has held that even if an agent was not put on notice that they should make an inquiry, they may still be found to be liable. As explained by the Court of Appeal for Ontario in Krawchuk v. Scherbak, 2011 ONCA 352, 106 O.R. (3d) 598, at paras. 151-152:
Then, there are authorities that support the proposition that a purchaser's agent has a duty to verify material facts about a property; interestingly, not only in circumstances where the court has found that the agent has been put on his or her inquiry with respect to the accuracy of the Defendants' representations, but also in cases where the court has found no such "red flag".
...in Johnstone v. Dame, [1995] B.C.J. No. 2637, 49 R.P. R. (2d) 279 (S.C.); Bond v. Richardson, 2007 NBQB 264, [2007] N.B.J. No. 318, 324 N.B.R. (2d) 64 (Q.B. (T.D.)); Posthumas v. Garner, [1995] O.J. No. 3362, 48 R.P.R. (2d) 286 (Gen. Div.); and 11 Suntract Holdings Ltd. v. Chassis Service & Hyrdraulics Ltd. (1997), 1997 CanLII 12181 (ON SC), 36 O.R. (3d) 328, [1997] O.J. No. 5003 (Gen. Div.) the purchasers' agent's duty to verify the vendor's information about the property was found to exist without reference to the agent's having been put on inquiry. [Emphasis added]
[67] In addition, there is little efficiency or cost savings, which is a relevant factor to consider: Mason v. Perras Mongenais, 2018 ONCA 978, at paras. 39 and 41. This summary judgment motion was brought late in the proceedings. Moreover, the trial will not be significantly shortened if partial summary judgment is granted because it is likely that the Defendants would still have to testify at the trial either as witnesses or as parties given their involvement in the sale of the residence.
[68] Ultimately, when all of the relevant factors are considered including the credibility issues that need to be resolved, the fact that this would not end the matter nor would it significantly shorten the trial and there would be a risk of inconsistent findings, granting partial summary judgment in favour of the Defendants is not appropriate.
Should the Court determine if the SPIS is an Indemnification?
[69] The Plaintiffs also submit that even if the Defendants did not know about the grow-op they were reckless in this knowledge and recklessly filled out the SPIS. The Plaintiffs submit that the SPIS is a warranty to the Agreement of Purchase and Sale and they should be indemnified on this basis.
[70] Given my finding that a trial is necessary to determine the credibility of the Defendants, it is not in the interests of justice to determine if the SPIS is an Indemnification without the trier of fact having heard all of the evidence to determine the credibility of the witnesses and make findings of fact. I also note that if the trier of fact finds that the Defendants knew about the grow-op, then the issue of the SPIS may be moot.
Should the lack of detail with respect to the damages suffered by the Plaintiff result in a finding that there is no genuine issue for trial?
[71] The Defendants submit that there is no evidence of any damages and therefore, there is no genuine issue for trial. I agree with the Defendants that the damages claimed by the Plaintiffs are not clearly defined and the evidence is slim with respect to what damages the Plaintiffs actually suffered. However, the Plaintiff has put forth some evidence that they suffered damages. For example, they stated in an affidavit that they received an offer to purchase the home and was told that the price was low because the residence was previously used as a grow-op and because of the cost of a certificate of remediation. I do not find that the lack of detail regarding damages is sufficient to find that there is not a genuine issue for trial. Rather, I would have addressed this issue by way of a mini-trial if the Defendants were found liable on a summary judgment motion such that proper expert evidence could be put before the court: Barbieri v. Mastronardi, 2014 ONCA 416, at paras. 19 and 21.
Conclusion
[72] The motion to grant partial summary judgment is dismissed.
Costs
[73] At the end of this motion I advised the parties to provide their bill of costs and those have been provided.
[74] The parties are encouraged to work out the issue of costs between themselves. If the parties are unable to resolve the issue of costs, the Plaintiffs shall serve and file written submissions of no more than two pages, double-spaced, not including relevant case law by October 21, 2020. The Plaintiffs may also file any offers to settle.
[75] The Defendants may file a response consisting of written submissions of no more than two pages, double-paced, not including the relevant case law, and any offer to settle within ten days of receipt of the Plaintiffs' cost submissions.
[76] The Plaintiffs may file a one-page reply, double-spaced within five days of receipt of the Defendant's cost submissions if they so wish.
Dennison J.
Released: October 7, 2020
COURT FILE NO.: CV-10-1010-00
DATE: 2020 10 07
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
JOSEF OGORZALY and ANNA OGORZALY
Plaintiffs
- and -
NAGE ABOU SHAKRAH, RANDA ABOU SALEM, NIVIN FOUAD, RESIDENTIAL LIFESTYLES REALTY INC. BROKERAGE, RENATA KUZMA, HOMELIFE/RESPONSE REALTY INC., REFAEL TYSZLER and BLUERAY HOME INSPECTIONS INC.
Defendants
REASONS FOR JUDGMENT
Dennison J.
Released: October 7, 2020