In a recent Ontario case the question of the retainer of the professional was raised before the court. This issue is significant for real estate agents when they are retained, because it points to the duties and obligations that their retainer encompasses.
In the Latta case, the plaintiff said that he was injured in a slip and fall case in 2008. He consulted a lawyer more than two years after the fall and simply paid him $480 cash with a handwritten retainer asking him to issue a Notice of Action against certain defendants.
The professional agreed to do so. Further, the plaintiff was to provide $4,520 for further interim work, but if the case was not viable, the lawyer was to discontinue the claim. However, the claimant never provided the additional money and the lawyer advised that he would not take any further steps. He wrote to tell the claimant to issue his own Statement of Claim within 20 days. The claimant did not do so.
The claimant sued the lawyer for failure to issue a Statement of Claim. The court reiterated that a professional duty to his or her client, whether in contract or negligence, is defined “by the scope of the retainer agreement”. No professional has to take steps on behalf of a client for which he/she was not retained. At no time did the retainer include the Statement of Claim. To do so unilaterally would have been wrong. Therefore the limited retainer was fulfilled. (Latta v. Linden, 2014 ONSC 1400)
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In a different case, tenants rented a unit in a building owned by the landlord corporation. The landlord employed an on-site superintendent who was to live in a unit in the building. The landlord gave the tenants notice of termination at the end of their term on the grounds that it required possession for purpose of its own residential occupancy.
The Tenant Board ruled against the landlord but on appeal, the Divisional Court held that a company is able to occupy a rental unit for the purpose of residential occupation incidental to its status as a landlord. It could reclaim the unit formerly tenanted for its own use. (York Region Condominium Corporation No. 639 v. Lee, 2013 ONSC 503)
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The purchaser agreed to buy a parcel of agricultural land, which included a clause that there would be an adjustment of purchase price for “deduction of environment, if any”.
On closing, wetland species habitat was discovered but the vendor would not reduce the purchase price because of the wetlands.
The transaction was extended but the dispute was not settled and the transaction did not close.
The purchaser sued for an abatement of the purchase price, while the vendor sought termination of the agreement.
The court agreed that no deduction was required because the words “deduction of environment” were too vague and meaningless. Even more important was the fact that the purchaser never tendered the full purchase price on the extended closing date and therefore repudiated the transaction. (Matichuk v Quattro Holdings Ltd, 2013 ABCA 340)
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.
