Walter R. Wellenreiter

The appellants appealed a summary judgment decision granting the respondent commissions on the sale of two properties.

The motion judge found that the appellant Zaman had executed a valid buyer representation agreement and rejected his defenses based on dyslexia, alleged oral amendments, and failure to disclose commissions.

On appeal, the appellants argued that summary judgment was inappropriate because a counterclaim for negligence was inextricably intertwined with the claim.

The Court of Appeal rejected this argument, finding the counterclaim was not inextricably intertwined with the claim and was premised on the validity of the buyer representation agreement itself.

Following a successful summary judgment motion for breach of a Buyer Representation Agreement, the plaintiff sought costs.

The plaintiff had served a Rule 49 offer to settle that was more favourable to the defendants than the final judgment.

The court awarded the plaintiff partial indemnity costs up to the date of the offer and substantial indemnity costs thereafter, fixing total costs, disbursements, and interest at $58,855.95.

The plaintiff, a real estate brokerage, moved for summary judgment to recover unpaid commissions from the defendants under a Buyer Representation Agreement (BRA).

The defendants argued an oral collateral understanding that commissions would be paid by the seller and that the agent failed to assist.

The court found the written BRA valid and enforceable, rejecting the alleged oral understanding due to the entire agreement clause and the parole evidence rule.

The court also found that the defendants deliberately excluded the agent from final negotiations and failed to disclose property purchases through closely-held corporations to avoid commission payments.

Summary judgment was granted in favour of the plaintiff for commissions owed on two properties, plus interest.

The appellant farmer appealed a decision of the Fire Safety Commission that upheld an inspection order imposing conditions on open air burning of brush on his property.

The appellant argued the Commission erred in its interpretation of the Fire Protection and Prevention Act by not requiring proof that a fire 'would seriously endanger' health and safety before imposing conditions.

The Divisional Court dismissed the appeal, finding the Commission's interpretation of the Act was correct and its factual findings regarding the necessity of the conditions were reasonable and supported by the evidence.

The appellant, having successfully appealed a Divisional Court decision, sought substantial indemnity costs of over $39,000 for the appeal and leave to appeal.

The respondent argued that no costs should be awarded due to the novelty and broader importance of the issues raised, or alternatively, that costs should be modest given the Small Claims Court origin.

The Court of Appeal agreed with the respondent that the costs award should be modest.

The court reinstated the Small Claims Court costs of $1,150, awarded Divisional Court costs of $1,200, and fixed the costs of the appeal and leave application at $2,500, all payable to the appellant.

The plaintiff brought a Small Claims Court action against a court-appointed family law assessor, alleging breach of contract and negligence.

The defendant successfully moved to strike the claim on the basis of expert witness immunity and the expiry of the limitation period.

The Divisional Court overturned the decision, finding that the motion judge erred by making findings of fact on a summary judgment motion.

The Court of Appeal allowed the appeal, holding that while summary judgment motions are not available under the Small Claims Court Rules, the motion judge's decision was sustainable under rule 12.02 as a motion to strike a claim that is a waste of time.