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Agency

REAL ESTATE AGENTS AND BROKERS

Commission term triggered by qualifyingoffer to purchase

Action by realtor for $8,995 commission plus GST pursuant to listing agreement. Defendant’s property was listed for $199,900. Commission terms of listing agreement stated in consideration of plaintiff listing property, defendant agreed to pay brokerage a commission of 5% of the sale price or 4.5% if sold by plaintiff personally for any valid offer to purchase the property from any source obtained during the listing period and on the terms and conditions set out in agreement or such other terms and conditions as defendant may accept. Plaintiff obtained offer for property at listing price on last day of term of listing agreement, but defendant refused to accept. Defendant argued commission was only payable if he accepted offer and property sold. Defendant further argued that agreement was void because plaintiff was working for him and prospective purchaser and because offer did not meet his conditions of 15-day closing, requirement that buyer install septic tank and well and pay registration fee. Action allowed. There was no doubt defendant began avoiding plaintiff and frustrating his attempts to sell property because he had decided not to sell unless he was able to purchase a farm. “Sale price” in commission clause of listing agreement referred to sale price in offer and did not require a completed sale. Commission term was triggered by qualifying offer to purchase. Offer in question was for listing price. Defendant did not respond to plaintiff’s attempts to contact him about offer until plaintiff advised defendant commission would be payable regardless. Defendant then met plaintiff, refused to sign offer and complained plaintiff was harassing him. Land in question was bare and there was no evidence 15-day closing date and septic tank and well requirement were important terms. Furthermore, defendant had made previous counteroffers that removed these terms. Registration fee was a mere $70, so this was not a material condition. Plaintiff obtained offer matching listing price, so clearly did not breach his duties to defendant. Plaintiff acted in good faith throughout and invested significant work and expense. Defendant changed his mind and turned his back on the contract. Defendant to pay $8,995 commission plus GST. Defendant’s offer to settle for $250 did not impact costs. Trial took two days, with some delay caused by plaintiff’s lawyer’s absence. Defendant to pay $1,225 costs.

T.L. Willaert Realty Ltd. v. Fody (Oct. 4, 2011, Ont. S.C.J. (Sm.Cl.Ct.), Searle D.J., File No. 144/10) 207 A.C.W.S. (3d) 615 (13 pp.).

Debtor and Creditor

ENFORCEMENT

Two principals acted in concert in theft and diversion of scrap metal

Plaintiff claimed unpaid trucking invoices owed by defendant to plaintiff. Defendant brought counterclaim for lost profits caused by plaintiff in diverting shipments of scrap metal and selling it to scrap yards for profit. Plaintiff argued principal of defendant fully participated in scheme and shared profits. Defendant claimed tort of intentional interference with economic relations. Plaintiff was to have judgment in amount of $97,766. Counterclaim was dismissed. Defendant failed to meet burden in relation to tort. Two principals acted in concert in theft and diversion of scrap metal. There was delay and inaction on part of principal of defendant. Principal of defendant ran day-to-day operations related to trucking of scrap metal. Inaction of defendant’s principal was deliberate decision to avoid disclosure and further investigation of involvement of defendant’s principal in scheme. Documentary evidence showed defendant’s principal had knowledge of scheme and was willing participant. Doctrine of abuse of process was not applicable. Issue of misleading court was more appropriately addressed in relation to issue of costs.

1590825 Ontario Ltd. v. 1199547 Ontario Ltd. (Sep. 16, 2011, Ont. S.C.J., Shaughnessy J., File No. 61249/09SR) 207 A.C.W.S. (3d) 272 (13 pp.).

Civil Procedure

CHANGE OF SOLICITOR

Court inferred confidential information imparted

Parties lived together for four years and were never married. Parties had one child. Relationship between parties was high conflict. Respondent had sole custody of child with specified residential schedule for parties to follow. Respondent brought motion for removing solicitors for applicant. Respondent argued current litigation was closely related to earlier litigation. From 1998 to 2006, respondent was represented by previous counsel as well as current counsel. Applicant’s counsel throughout was same. Previous counsel’s legal assistant began working as legal assistant to applicant’s counsel. Previous litigation was inextricably bound to issues in current litigation. Previous counsel’s retainer was not for unrelated proceeding but culminated in order on which father relied in motion for contempt. Court inferred confidential information was imparted. Public represented by reasonably informed person would not be satisfied that no use of confidential information would occur in circumstances. Applicant’s solicitor was to be removed as solicitors of record for applicant.

K. (M.S.) v. T. (T.L.) (Sep. 20, 2011, Ont. S.C.J., Wilson J., File No. 04FA-012804FIS) 207 A.C.W.S. (3d) 203 (7 pp.).

Highways

REPAIR

No evidence that would lead county to know of problems at curve

Defendant operated loaded tractor trailer that tipped over and slid into oncoming traffic. Plaintiffs suffered injuries and losses. Plaintiff’s claims against defendants were settled. Defendants third partied the corporation of the county. Defendants claimed losses were caused or contributed by negligence of county in failing to keep highway in good state of repair. Claim was dismissed. County did nothing that contributed to accident. County may not have complied with parts of Manual of Uniform Traffic Control Devices, but failure to do so did not cause or contribute to accident. Defendant failed to show cause of accident. Cause of accident must have been result of shifting of truck’s load that was not properly secured. Cause was not defendant’s speed and was not nature of curve. Cause of accident was not lack of warning. There were sufficient signs to warn defendant of circumstances of curve. Defendant led no evidence that load was safe. Defendant’s guilty plea to offence under Highway Traffic Act (Ont.) was prima facie evidence that load was unsafe. County had system in place to monitor state of roads and signage in place. There was no evidence of disrepair and no evidence that would lead county to know of problems at curve. County was not in breach of duty.

Lancaster (Litigation Guardian of) v. Santos (Aug. 16, 2011, Ont. S.C.J., Lemon J., File No. 603/09; 510/09; 585/09) 206 A.C.W.S. (3d) 609 (65 pp.).

Appeal

STAY PENDING APPEAL

Reason to doubt whether appellant could be required to secure support obligation that no longer existed

Parties were married 19 years and had five children. Appellant lost employment. Ongoing child and spousal support payable by appellant were suspended. Appellant was required to reinstate life insurance of $400,000 naming respondent as beneficiary. Arrears of support were fixed at $56,253. In event appellant took position appellant could not afford premiums because appellant could not work, appellant was to attend medical examination arranged by respondent. Leave to appeal was granted. Decision was open to serious debate. There was reason to doubt correctness of order. There was reason to doubt whether appellant could be required to secure support obligation that no longer existed. There was basis to doubt correctness of requirement appellant travel to Ontario to attend medical examination. Orders were stayed pending appeal given there was serious issue to be tried and irreparable harm to appellant.

Feinstat v. Feinstat (Aug. 19, 2011, Ont. S.C.J., Gilmore J., File No. DC-11-00331-ML) 206 A.C.W.S. (3d) 459 (7 pp.).

Conflict of Laws

JURISDICTION

Exclusive jurisdiction resided with New York Supreme Court

Husband brought motion for custody and support of two children. Wife had commenced similar proceeding in Supreme Court of New York. Children were born in United States but lived in Canada until family moved to United States in 2010. Children attended school in United States for 2010/2011 school year. Husband resided in former matrimonial home in Ontario on date proceedings were commenced. Husband intended to continue to reside in Ontario. Court had jurisdiction to hear and determine corollary relief proceeding based on husband’s ordinary residence in Ontario. To extent claims were included in New York action, exclusive jurisdiction resided with New York Supreme Court. Claims for custody and access were clearly same matters that were being litigated in both courts. Husband’s claim that court could exercise jurisdiction for failure of New York court to assume jurisdiction in clear and aggressive manner was rejected. Children were not habitually resident in Ontario under Children’s Law Reform Act (Ont.). Court declined to accept jurisdiction over matter as it related to custody and access.

McMurtrie v. McMurtrie (Aug. 22, 2011, Ont. S.C.J., Reid J., File No. D23135/11) 206 A.C.W.S. (3d) 53 (10 pp.).

Civil Procedure

CLASS ACTIONS

Certification would permit court to give effect to negotiated settlement

Plaintiffs in three proposed class proceedings brought motion to consolidate three actions and have them certified as class action. Defendants consented to motion. Certification was for purpose of implementing settlement. For settlement purposes all criterion for certification were satisfied. Certification would permit court to give effect to negotiated settlement and to bind all affected parties. Certification would permit court to satisfy itself as to appropriateness of and oversee implementation of settlement agreement. Motion was allowed. It was appropriate to consolidate actions. Action was certified as class proceeding.

Waheed v. Pfizer Canada Inc.
(Aug. 25, 2011, Ont. S.C.J., Perell J., File No. 04-CV-81149CP; 05-CV-287488CP; 05-CV-82243CP) 206 A.C.W.S. (3d) 27 (6 pp.).
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