NEWMARKET COURT FILE NO.: CV-18-135298-00
DATE: 20210720
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Julius Palladino
Plaintiff
– and –
Mark Arthur Melvin Durham and Kay Robertson
Defendants
Jamie M. Sanderson for the Plaintiff
Scott R. Fairley for the Defendants
Heard: December 4 and 5, 2019, January 14 and 15 2020 and virtually on January 26, 2021.
DECISION FROM MOTION FOR SUMMARY JUDGMENT
SUTHERLAND J.:
Overview
[1] The plaintiff, Julius Palladino has brought a motion for summary judgment. The plaintiff seeks general damages in the sum of $124,000, forfeiture of the deposit in the sum of $15,000 and special damages in the sum of $2,702.58.
[2] The proceeding flows from a real estate transaction on the purchase of a family residence owned by the plaintiff that did not close.
[3] On August 30, 2019, I adjourned the plaintiff’s summary judgment motion to a focused hearing to hear viva voce evidence from the parties’ respective experts.
[4] The parties agree that the evidence provided on this summary judgment motion would not be any better at a trial.
[5] For the reasons to follow, I grant summary judgment in favour of the plaintiff.
Factual Background
[6] The plaintiffs and the defendants entered into an Agreement of Purchase and Sale (APS) for the defendant to purchase the home of the plaintiffs municipally located at 2607 Leonard Street, Innisfil, Ontario (the Property).
[7] The property was listed for sale in May 19, 2017.
[8] The defendants presented an APS to the plaintiff.
[9] The plaintiff accepted the defendant’s APS and the parties entered in an unconditional APS on May 26, 2017 (The APS). The Property was listed for seven days.
[10] The terms of The APS included:
(a) The purchase price was $749,000, with a deposit of $15,000 to be held in trust by Bernice Whelan Realty Inc.;[^1]
(b) The closing date was scheduled for August 25, 2017;
(c) Time was of the essence;
(d) The defendants agreed, on closing, to pay the purchase funds, subject to adjustments, by way of a bank draft or certified cheque.
[11] The real estate transaction pursuant to The APS did not close.
[12] The defendants do not dispute that they did not close the transaction. The defendants concede that they are subject to a damage claim by the plaintiff.
[13] The plaintiff relisted the Property for sale on September 11, 2017, 16 days after the failed closing date. The Property was on the market for 37 days. The Agreement of Purchase and Sale was firm on October 18, 2017 and the Property was sold for $625,000 on November 15, 2017. There were two offers to purchase. Previous interested parties during the time the Property was on the market in early 2017 were not interested. The plaintiff accepted the offer recommended by his real estate agent.
[14] The plaintiff is seeking damages being the difference in the sale price and carrying costs and expenses incurred from August 25, 2017 to November 15, 2017.
[15] The defendants oppose the claim of the plaintiff for damages on the basis that the plaintiff failed to mitigate his damages. The defendants accept that the plaintiff has suffered damages for carrying costs and expenses in the amount of $2,702.58.
[16] The plaintiff and the defendant agree that the $15,000 deposit should be credited against any damages found owing by the defendants.
Legal Principles of Summary Judgment.
[17] Pursuant to r. 20.01 of the Rules of Civil Procedure,[^2] the Court must grant summary judgment if it is satisfied there is no genuine issue requiring a trial.
[18] There will be no genuine issue requiring a trial when a court is able to reach a fair and just determination on the merits. A fair and just determination on the merits is achieved when:
(a) The process allows the judge to make necessary findings of facts;
(b) The process allows the judge to apply the law to the facts; and,
(c) It is a proportionate and more expeditious and less expensive means to achieve a just result.[^3]
[19] On a motion for summary judgment, the Court must first determine if there is a genuine issue requiring a trial based on the evidence given on the motion. If there appears to be a genuine issue requiring a trial, the Court would then determine if the need for a trial can be avoided using the powers under r. 20.04 (2.1) of the Rules of Civil Procedure by weighing the evidence, evaluating the credibility of the deponents, and drawing any reasonable inference from the evidence unless it is in the interest of justice for these powers to be exercised only at a trial. These powers are presumptively available to the judge to give effect to the goals of timeliness, affordability and proportionality in review of the litigation as a whole.[^4]
[20] In contrast, the responding party must put their “best foot forward” or risk summary judgment being awarded against them. The responding party bears the evidentiary burden to present affidavit material or other evidence to support the allegations or denials in their pleading. Absent this evidence, an adverse inference can be drawn.[^5]
[21] Rule 20.04 (2.2) permits a court to order that oral evidence be presented to determine if there is a genuine issue requiring a trial.
[22] As mentioned above, the Court did hear oral evidence from the parties’ respective experts.
[23] The factual circumstances that gave rise to this proceeding are not in dispute.
Issues
[24] The issues are of mixed fact and law. The issues are:
(a) Did the plaintiff reasonably mitigate his damages by selling the property in November 2017 in the amount of $625,000?
(b) What is the quantum of the damages?
Did the Plaintiff Reasonably Mitigate his Damages?
The Experts
[25] Each of the parties presented expert evidence on the market value of the property. The plaintiff presented Stefan Epstein. The defendants presented Marie Garbens.
[26] Mr. Epstein has been a certified residential appraiser since 2004. Since 2012, he has been a partner of Core Consulting Group, a business of performing residential appraisals for mortgage financing, matrimonial disputes, estates and assessment appeals. Since 2016, he also has taught as a certified instructor for the Canadian National Association of Real Estate Appraisers (CNAREA). Since 2017, he has been the Chair of the Ethics Committee and ad hoc Chair of Ontario Board dealing with Ontario specific issues. He is also a member of the education committee for CNAREA. He co-authored the course of Certified Appraiser Reviewer Designation. Mr. Epstein indicates that he had prepared 10,000 to 12,000 appraisal reports. He was unable to indicate how many appraisals he has prepared for waterfront property. He has executed the Acknowledgement of Expert Duty and on December 18, 2018 and November 1, 2019 indicating his duties of independence as an expert for the benefit of the Court.
[27] There was no objection that Mr. Epstein is a certified appraiser with the knowledge and experience to provide the Court with an expert opinion on the real estate market value of the Property at the time it was sold in November 2017.
[28] Ms. Garbens obtained her certified appraiser designation through the Canadian Real Estate Appraiser (CRA) since 2007. Prior to her CRA designation, she obtained her Certified Environmental Site Assessor (CESA) in 2003. From March 2006, Ms. Garbens has worked as an appraiser at York Simcoe Appraisals Ltd. Ms. Garbens has been an executive to the Huronia Chapter of the Ontario Appraisal Institute of Canada. She has executed the Acknowledgement of Expert Duty and on September 26 and 30, 2019 indicating her duties of independence as an expert for the benefit of the Court.
[29] As with Mr. Epstein, there was no objection that Ms. Garbens is a certified residential real estate appraiser with the knowledge and experience to provide the Court with an expert opinion on the real estate market value of the Property at the time it was sold in November 2017.
[30] I will now summarize the evidence of both Mr. Epstein and Ms. Garbens.
Stefan Epstein
[31] Mr. Epstein was of the opinion that the market value of the Property as of October 18, 2017 was $625,000.
[32] Mr. Epstein prepared an initial report with values and a second comparative report with values, after receipt of the report of Ms. Garbens.
[33] Mr. Epstein testified that he used two different approaches in reaching his opinion. He used the “cost approach” and “sales comparison approach”.
[34] The “cost approach” is determining the value of the land and the costs to construct the home on the Property.
[35] The “sales comparison approach” is to find properties in the area of the Property with similar characteristics of the Property with increases or decreases in the value comparable subject to the characteristics and qualities of the comparison properties in contrast to the Property.
[36] With the costs approach, Mr. Epstein determined the costs of the serviced lot, the land, and then calculate the costs of construction. He increased the value by site improvements and then deducted the amount with depreciation of the costs to build. After taking all into consideration, he concluded that the value of the Property from the costs approach was $642,600.
[37] Mr. Epstein prepared an initial report with values (first report) and a second comparative report after receipt of the report of Ms. Garbens (second report).
[38] Using the comparable approach, Mr. Epstein used three comparables: 919 Adams Innisfil (Comp. 1), 2289 Crystal Beach Road Innisfil (Comp. 2) and 2352 Bonsecour Crescent, Innisfil (Comp.3).
[39] With Comp. 1, Mr. Epstein, with adjustments for date of sale and lot size, came to a comparable value to the Property in the first report of $656, 210. He revised this amount by decreasing the market price by 9% to take into consideration the falling market from June to October 2017. The revised comparable value to the Property is $646,210.
[40] With Comp. 2, Mr. Epstein made numerous adjustments. He added adjustments due to the smaller lot size, square footage of the premises, and decreases due to age of premises, upgrades, site improvements and heating system. His first report came to a comparable value of $660,000. Mr. Epstein did not revise his certified comparable value of $660,000 in his second report.
[41] With Comp. 3, Mr. Epstein calculated a comparable value of the Property of $622,450. In calculating the value, he decreased the value due to the sale being in July 2017 (in a rising market), smaller lot size, age of the premises, and upgrades. In his second report, he changed the comparable value to take into consideration the falling market after June 2017 to October 2017. He decreased by a further 11.4% to calculate a comparable value of $626,710.
[42] Based on his calculations, the cost approach and the comparable approach, Mr. Epstein opines that the sale price of $625,000 in October/November 2017 was reasonable and market value.
[43] In Mr. Epstein’s second report, he critiques the report of Ms. Garbens. He faults Ms. Graben’s report as being inaccurate as to its calculations and the Price Index used by Ms. Garbens. He critiques the TREB Housing Price Index (HPI) and the discussion and use of the HPI by Ms. Garbens. One significant critique is that Ms. Garbens uses the blended index for all properties rather than limiting the index to detached one-storey properties, given that the subject property was a one-storey detached. By using the blended index, she has included attached one-storey, attached two-storey, apartments, detached one-storey and detached two-storey. By doing so, the decline in the market from June 2017 to October 2017 is not as steep by using a blended index than the index for one-storey detached. The difference is 10.5% for blended and 15.84 % for one-storey detached.
[44] Given, the errors Mr. Epstein notes in the adjustments and calculations in Ms. Garbens’ reports and the difference in index adjustments, he concludes:
Once Ms. Garbens comparable sales have been corrected for the driveway and time adjustment errors her new adjusted range is $617,910 to $726,240. The subject sold for $625,000. This is higher than her comparable sale 3 and within $7,000 of her comparable 4.
Further, we have the fact that the subject sold in May of 2017 and October 2017. Ms. Garbens concluded that if we take the purchase price in May of $749,000 and apply the 10% time adjustment from the HPI, we end up with a final valuation of $674,100. As noted above, the time adjustment for detached 1 storey houses is 15.84%. When we apply that time adjustment to the purchase price in May, it results in a value of $630,358.
[45] Thus, the implication is that Ms. Garbens’ value is very similar to the actual price obtained of $625,000.
Marie E. Garbens
[46] Ms. Garbens was of the opinion, as stated in her report dated September 23, 2019, that the estimated market value range of the Property for October 18, 2017 is $675,000 - $700,000, based on her inspection on September 12, 2019 and market exposure time of 30-90 days.
[47] Ms. Garbens used a comparative analysis approach. She did not perform a costs analysis.
[48] She used five comparables: 919 Adams Road, Innisfil (Comp. 1), 2289 Crystal Beach Road, Innisfil (Comp. 2), 1287 Maple Road, Innisfil (Comp. 3) 1557 Houston Avenue, Innisfil (Comp. 4) and 2352 Bonsecour Crescent, Innisfil (Comp. 5).
[49] All the comparables are within the last eight months of the effective date. Any time adjustments were derived from the TREB MLS Home Price Index statistics.
[50] With Comp.1, Ms. Garbens estimated the value as $696,000 with deductions for time of sale and increases for bathroom, driveway, waterfront of 45 feet and lack of a dock.
[51] With Comp. 2, Ms. Garbens estimated a market value of $767,000 with deduction for age of the premises and increases on the size of the premises, driveway and direct waterfront of 33 feet.
[52] With Comp. 3, Ms. Garbens estimated a market value of $667,000 with deductions for time of sale and the premises being a two-storey and increases due to two-part bathrooms, driveway, 34.8 feet waterfront and no dock.
[53] With Comp. 4, Ms. Garbens estimated the market value of $703,000 with a deduction due to time of sale and two full bathrooms and increases due to age of Comp. 4 and a driveway.
[54] With Comp. 5, Ms. Garbens estimated the market value of $719,000 with deductions due to time of sale, direct waterfront of 67 feet and a dock/boat lift with increases for one full bathroom and driveway.
[55] Ms. Garbens stated that she conducted a “non-invasive observation by walk through” or “site visit” of the property. This form of inspection she indicated is adequate to the describe the Property in the reports, develop an opinion of the Highest and Best use, when such an opinion is necessary to make meaningful comparison in the valuation of the Property.
[56] Ms. Garbens concluded as follows:
Based on the foregoing analysis, the predominate market value range for the subject property as of October 18, 2017 is estimated between $675,000 - $700,000. Lower-mid range was chosen as the subject property had already sold previously and being on the market so soon would indicate the deal fell through, so the listing may be seen stale. Furthermore, the market value at the time was in flux with price declines and the best market for cottages being the spring; so high end range did not seem reasonable. The TREB MLS home price index shows a price decline from when the subject sold in May and to when it sold in October of approximately 10%. The decline if applied to the subject sale would put the adjusted price at approximately $674,100.[^6]
Role of an Expert Witness
[57] Expert opinion evidence is generally inadmissible. Such evidence is admissible if it meets the requirements of admissibility and it passes scrutiny at the gate keeper stage. In this case, there is no dispute that the expert evidence provided meets the requirements of admissibility.
[58] The role of an expert witness is to provide the Court with impartial objective evidence on issues in the action that the Court would not normally have knowledge of. The impartiality is that the evidence given and opined should not unfairly favour one party’s position over another. The expert witness owes a duty to the Court to provide fair, objective, nonpartisan answers within the scope of the witness’ expertise. The expert should never assume the role of an advocate, for the expert’s duty to the Court prevails over any duty owed to the litigants.[^7]
Legal Principles on Damages and Mitigation
[59] It is not disputed that on a breach of contract action, the innocent party is entitled to be put in the position they would have been had the contract not been breached and was performed. The assessment of the damages that may be due to the innocent party are not for avoidable losses which would increase the amount of the damages assessed and payable to the innocent party. The innocent party has a duty to mitigate. The duty encompasses that the innocent party must take reasonable steps to avoid the accumulation of damages. In effect, the innocent party should not receive more than they would have received if they acted reasonably.[^8]
[60] The Court is focused on quantifying damages for the innocent party for the wrongs of the party that breached the contract and not for the unreasonable steps or inaction of the innocent party.[^9]
[61] In the circumstances of failure to close a real estate transaction, the Court reviews the circumstances of the transaction, the failure to close, which party breached the contract and the circumstances and conduct of the innocent party and the guilty party after the breach. The courts have reviewed numerous factors that determine whether the innocent party took reasonable steps to minimize the losses incurred. These factors include:
a) What was the circumstances of the real estate market at the time?
b) How long did it take for the innocent party put the property up for sale?
c) How long was the property up for sale before it was sold?
d) Was the property marketed and how was it marketed?
e) What was the price that the property was relisted for sale?
f) How was the property exposed for sale?
g) Were there any price reductions? If so, how many and what were the price reductions?
h) Were there any other offers to purchase the property?
i) How many offers were made and what was the particulars of those offers?[^10]
[62] The onus in on the party disputing the damages claimed to provide evidence to prove on the balance of probabilities that the innocent party has failed to mitigate their damages and did not act reasonably in that the damages sought do not reasonably flow from the breach. The onus remains upon the innocent party to provide evidence that proves on the balance of probabilities that the damages sought are reasonable and flow from the breach claimed.[^11]
[63] The innocent party does not have a positive duty to mitigate but failure to do so is to be taken into consideration when the Court determines damages.^12
Analysis
[64] The defendants have not provided the Court with any evidence, except for an opinion on market value, that the conduct of the plaintiff resulted in the plaintiff’s failure to mitigate his damages. The defendants have not provided evidence that the listing price was too low. The delay in listing the Property after the defendants’ breach resulted in damages that the plaintiff should not be compensated. The steps taken by the plaintiff to sell the property was inadequate. The length of time the Property was on the MLS was inadequate. Due to the state of the market, the plaintiff should have taken other steps to better the sale price.
[65] The facts are not in dispute. The Property was listed for sale two to three weeks after the defendants failed to close the transaction. Did this cause a failure to mitigate? No evidence was provided to support such an allegation.
[66] The Property was listed on the Multiple Listing Service (MLS). The listing price was first for a higher price than the sale price to the defendants. The plaintiff then lowered the price. No evidence was provided that the lowering of the price contributed to a failure of the plaintiff to mitigate his damages.
[67] The plaintiff only received two offers to purchase, one of which eventually resulted in the sale. The Property was listed on the MLS for 37 days, within the period of time that the defendants’ expert stated is a reasonable time for the listing to be open on the market. There was no evidence that at the time of sale, the exposure on the MLS should be more than 37 days.
[68] The defendants’ singular complaint is that the Property was sold for too low a price. Based on the expert opinion of the expert Ms. Garbens, the defendants contend that the price should have been around $675,000 and thus, was undersold by at least $50,000.
[69] The Court has concerns with both expert opinions as to market value. First, each opinion provided is that, an opinion. They are at best educated guesses. They are considerations by the author of the opinion on what the market value could be given, the assumptions made and information provided. As Edwards J., as he then was, indicated in Gamoff, it is “crystal ball gazing.”[^13]
[70] The concerns that this Court has with the opinion of Mr. Epstein are that there are several occasions in his reports and in his testimony that Mr. Epstein went from a neutral expert to that of an advocate. His impartiality was compromised. Occasions of the impartiality of Mr. Epstein that gives the Court concurs, include:
a) His statements that Ms. Garbens reports were misleading and unethical. He states that the data used by Ms. Garbens was unethical. He refers to the Appraisal Standards (CUSPAP), section 5.2 throughout is Review Report[^14] to imply that Ms. Garbens was unethical. He opines that Ms. Garbens’ report “is misleading and in violation of the CUSPAP standards.”[^15]
b) His Review Report reads more like a submission than impartial objective evidence for the benefit of the Court. In his review report, he makes conclusions on the conduct of the plaintiff “in hiring an expert in the field of real estate transactions by engaging a real estate brokerage to handle both of his 2017 transactions on the property.”[^16]
c) He makes conclusionary comments that the price obtained by the plaintiff meets the definition of market value. He goes on and concludes in his testimony and report that the transaction in October 2017 met the test of reasonable exposure and the plaintiff acted knowledgably.
d) The conclusion of price in his reports denotes that the price of $625,000 was reasonable. He does not provide an independent market value assessment. It appears to the Court that his finding that $625,000 as a reasonable value indicate a result orientated approach, that is, to support the price sold by the plaintiff rather than providing an impartial valuation of the market value of the Property at the time of sale in October, 2017.
[71] These frailties of the evidence and reports of Mr. Epstein detract, significantly, to its persuasiveness and reliability.
[72] Ms. Garbens’ reports also have concerns. There appears to the Court to have been time constraints in Ms. Garbens drafting her reports. The Court is aware that she was retained late in the proceeding, after the adjournment of the summary judgment motion, due to the unreliability of the defendants’ first expert and her later decertification.
[73] Even with the issue of time constraints, Ms. Garbens’ reports have numerous errors and re-calculations that gives the Court pause with respect to its reliability. There were errors in:
(a) driveway adjustments which required a recalculation;
(b) in the sale price of Comp. 2, which required a recalculation;
(c) failure to indicate in her report the deductions and increases made to each comparable to contrast with the Property. This prevented one from reading the report to clearly ascertain the percentages and figures utilized in the adjustments;
(d) the lot size of Comp. 5.
[74] Furthermore, the Court has concerns with the time adjustment percentage that Ms. Garbens utilized. There is no question that the Property was a one-storey waterfront property in Innisfil. However, Ms. Garbens used a HPI for all houses in Innisfil and did not restrict, as Mr. Epstein did, to one-storey homes. This decision by Ms. Garbens results in the percentage used for time adjustment to be lower than if one used a one-storey defined HPI. The effect is that the prices of comparables used by Ms. Garbens is not decreased to the same degree. The time adjustment for all homes during the time periods in question, June to October 2017, is 10.5 percent rather than 15.84 percent for one-storey homes.
[75] I determine that the time adjustments used by Mr. Epstein appears to be more pertinent in the circumstances of this case giving the volatility of the market and the type of home that was the Property. To restrict the types of homes to the type of home that was the Property makes more logical sense. That comparison is more accurate. There were no questions that the numbers of homes in the one-storey category in Innisfil were sufficient as opposed to a nonexistent sample for one-storey waterfront homes in Innisfil.
[76] Taking all these factors into consideration, I have concerns on the reliability of Ms. Garbens’ reports and figures.
[77] Having said all this, I am of the view that the best indicator of the market value of property is what an arms length entity or person will pay on the open market. I agree and accept this observation by Courts.[^17]
[78] I am of the view that the price for which a property is sold has as much credibility and reliability in situations like this case where the property was sold to an arms length buyer. I accept and adopt the statements of the Nova Scotia Court of Appeal in Royal Bank v. Marjen Investments Ltd. where the Court was tasked in determining whether the trial judge erred in determining market value in a foreclosure proceeding:
…When the mortgagee has purchased the property at the Sheriff’s sale, and applies for a deficiency judgment, prior to resale, it is reasonable for the Court to look to objective evidence of value (citation omitted). It may be that the price paid by the mortgagee at the sale is an acceptable amount, in particular where there has been competitive bidding. On the other hand, the purchase price may be nominal, in which case, it is appropriate to assign a more realistic value. This ensures the mortgagee does not, after obtaining a deficiency judgment, resell the property for an amount greater than the price paid at the Sheriff’s sale and thereby effect double recovery. Where the property has not been resold, the best evidence of value is generally established through appraisals. When the property has been sold, however, and, particularly, when subjected to vigorous marketing efforts, as in Offman, supra, the Court should generally not depart from the selling price. Appraisal reports are a best guess, albeit by a person experienced in the real estate field. It is the market that actually determines the value of the property.[^18]
[79] The appraisals provided are best guesses. The Property was sold to an arms length buyer after being listed on the MLS for 37 days, in a down market. Though the plaintiff has not provided detailed evidence on the steps taken to advertise, there is no dispute that the market was in a state of decline, the plaintiff used an experienced real estate agent and that the Property was on the MLS for 37 days. There were only two offers to purchase received by the plaintiff. The offer accepted was the one recommended by the real estate agent that purchased the Property.
[80] Notwithstanding the appraisals provided, there is no evidence put forward by the defendants that, in my view, persuade the Court that the conduct of the plaintiff in the circumstances was not reasonable. The obligation to prove that the plaintiff failed to mitigate his damages is on the defendants. The Court concludes that the defendants have not met that obligation. The Court concludes that the sale price of $625,000 in the circumstances is reasonable.
What is the Quantum of Damages?
[81] The purpose of damages in a breach of contract claim is to put the innocent party in the same position it would have been if the breach did not occur.
[82] In an aborted real estate transaction proceeding, this is accomplished by awarding damages for the difference between the price agreed upon in the aborted transaction and the reasonable value of the property along with any damages incurred for expenses and costs up to the date of trial.[^19]
[83] In the circumstances of this case, the aborted sale price was $749,000. The reasonable value at the time of sale of the Property was $625,000. There are expenses and costs incurred in the amount of $2,702.58. There is a deposit which is agreed the defendants should be credited.
[84] Accordingly, on the evidence provided, the Court determines that it can calculate the damages owed to the plaintiffs. The Court calculates the plaintiff’s damages as follows: $749,000 - $625,000 - $15,000 + $2,702.58 for a total of $111,702.58.
Disposition
[85] Judgment is granted in favour of the plaintiff in the sum of $111,702.58.
[86] If the parties cannot agree on costs, the plaintiff to serve and file his submissions of costs within 30 days from the date of this decision, and the defendants will have 30 days thereafter to serve and file their submissions. The submissions to be no more than five pages, double spaced, exclusive of any cost outline and offers to settle. Any case law to be hyperlinked in their respective submissions. There is no right to reply. Submissions are to be filed with the Court. If no submissions are received within the time period set out herein, an order will be made that there will be no costs.
Released: July 20, 2021
COURT FILE NO.: CV-18-135298-00
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Julius Palladino
Plaintiff
– and –
Mark Arthur Melvin Durham and Kay Robertson
Defendants
DECISION FROM MOTION FOR SUMMARY JUDGMENT
Justice P.W. Sutherland
Released: July 20, 2021
[^1]: The deposit continues to be held in a non-interest-bearing trust account with Bernice Whelan Realty.
[^2]: R.R.O. 1990, Reg. 194.
[^3]: Hryniak v. Mauldin, 2014 SCC 7, at para. 49
[^4]: Ibid at para. 65; and Canaccord Genuity Corp. v. Pilot, 2015 ONCA N 716, at para. 31.
[^5]: Vincorp Financial Ltd. et al. v. Hope’s Holdings Inc., 2010 ONSC 6819, at para 17.
[^6]: York Simcoe Appraisal Corporation Report dated September 23, 2019, p. 45.
[^7]: See White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 and R. v. Abbey, 2017 ONCA 640. The duty of an expert witness is codified in Rule 53 of the Rules of Civil Procedure.
[^8]: Michaels v. Red Deer College, 1975 CanLII 15 (SCC), [1975] 5 W.W.R. 575, [1976] 2 S.C.R. 324, at paras. 9 and 10; Asamera Oil Corporation Ltd. v. Sea Oil & General Corporation 1978 CanLII 16, [1979] 1 SCR 633, pp.pp.646-648; Southcott Estates Inc. v. Toronto Catholic District School Board, 2012 SCC 51, at paras 23 and 24.
[^9]: British Columbia v. Canadian Forest Products Ltd. 2004 SCC 38, [2004] 2 S.C.R. 74 at para. 176.
[^10]: Cuero Lorens v. Carpenter 2017 ONCA 109; Hargreaves v. Barr, 2010 BCCA 489; Gamoff v. Hu 2018 ONSC 2172; Zou v. Sanyal 2019 ONSC 738;
[^11]: McKnight v. Morrison 2019 ONSC 552, at paras 46 and 47. Also see Asamera, note 8 and Gamoff, supra, note 10.
[^13]: Supra, note 10, at para. 39
[^14]: Exhibit 1, tab 3.
[^15]: Ibid, at p. 14.
[^16]: Ibid, at p. 6.
[^17]: Municipal Saving & Loan Corp v. 819035 Ontario Ltd 1993 CarswellOnt 1919 (OCJ (GD)) at para. 3.; Briscoe-Montgomery v. Kelly 2014 ONSC 4240 at para 22.
[^18]: 1998 NSCA 37 at p, 45.
[^19]: Gamoff, supra, note 10;