In a recent court case, a paralegal and a real estate agent sued the previous owners of a home (which they believed they were entitled to purchase), as well as the new owners of the property and the lawyers facilitating the purchase.

The paralegal and real estate agent then alleged that a judge of the Ontario Court granted a judgment ex parte, declaring the defendants guilty of conspiracy and fraud, and awarded damages plus exemplary damages and costs. Ex parte means that the defendant parties were not in court and the decision was made without their knowledge or attendance.

The matter was brought before the judge who allegedly made this decision in the Superior Court. The judge found that the plaintiffs (paralegal and real estate agent), or one of them, acting in concert, falsified his signature by cutting and pasting a copy of his signature from another Order or Endorsement on to the judgment.

The paralegal and real estate agent sent copies of the alleged judgment to the defendants, and threatened serious consequences and criminal proceedings. The judgment was also sent to the governing bodies of the professionals (the defendants).

Both the paralegal and real estate agent are appealing the judge’s ruling, alleging that he in fact did sign the ex parte judgment and simply forgot. The judge, however, found that the plaintiffs were “faking a Judgment of the Court” and awarded $40,000 in costs to the defendants.

On the date that the judgment was allegedly signed, the judge was in Family Court. He never would have signed that form of ex parte judgment in any event. It is certainly worthy of disciplinary action against the professionals if they both conspired to carry out the alleged fraud. (John Joseph AKA John D’Souza and Peter D’Gama v. Ritchie James Linton, et al., 2013 ONSC 70)

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Another case involved the death of a guest who was swimming in an unattended pool at Blue Mountain Resorts in Ontario.  An inspector under the Occupational Health and Safety Act took the position that Blue Mountain had to report the person who drowned because this happened at a “workplace”. As strange as this may seem, the Ontario Labour Relations Board upheld that position, as did the Divisional Court.

Finally, the Court of Appeal of Ontario set aside the lower decisions and refused to create such a broad interpretation of the act because there was no nexus between the pool giving rise to the death and a risk to a worker’s safety at that place. In other words, although workers may work or did work or will continue to work to clean up the pool or other matters, the fact that a guest died in the swimming pool did not lead to the owner having to make a report because a worker might reasonably be affected.

To put things in perspective, in workplace terms, this was simply a swimming pool.  (Blue Mountain Resorts Limited v. Ontario (Labour), 2013 ONCA 75)

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In a B.C. case, the plaintiffs purchased a home from the defendant vendors. The purchasers contacted a real estate agent and visited the seller’s property with this agent. The agent told the purchasers that a home inspection had already been done. The agent did not mention potential problems with mould or mildew.

After the purchasers bought the home, they discovered a situation that made the house unliveable. Because of the mould and mildew, the purchasers could not move back into the house as several experts were unable to fully “resolve the problems”.

The purchasers brought an action for breach of contract against the vendors, the real estate agent and his brokerage for deceit.

The court dismissed the action against the vendors because there had been no warranty with regard to the state of the house (as is). The action, however, was allowed against the real estate agent and brokerage. The plaintiffs were awarded general damages of $37,000 and aggravated damages of $10,000. In addition, the agent and brokerage were ordered to pay the court costs of both the plaintiffs and the vendors. (Gundersen v. Savoy, 2012 BCSC 1047)

Donald Lapowich, Q.C. is a partner at the law firm of Koskie, Minsky in Toronto, where he practices civil litigation, with a particular emphasis on real estate litigation and mediation, acting for builders, real estate agents and lawyers.