As readers of REM will know, causation and proof of same against professionals is one of my favourite defences to malpractice.
An oral maxillofacial surgeon leased space in a hospital that was being renovated. A patient complained of disorientation and dizziness. The patient sued, alleging a disability caused by hazardous materials that were released into surgeon’s work environment during renovations.
The Court of Appeal in Eastern Canada applied the standard that the patient must show (prove) that “but for” the renovations (causation), she would not be ill. The patient was not able to prove that heavy metals were released into the air during the renovations, causing the illness.
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An owner of a ranch was being foreclosed and sought the help of a friend, L. That friend contacted D who took title in trust, paid off the mortgage and therefore saved the owner’s equity in the property.
L then dealt with a real estate company as the agent for the owner and signed, “through D”, an MLS contract. The owners then sold the property to a purchaser, but they refused to pay commissions to the real estate company.
The company brought a motion, in British Columbia, for judgment of its commission.
The court held that the plaintiff realty company knew that D, as the registered title holder, was not the seller of the ranch but was simply “agents” for the owner and signed for the purpose of binding the owner to an MLS contract. Therefore, the owners were liable to the real estate company for the commission of sale.
The court also ruled that it was obvious in this circumstance that the real estate company was acting for the person holding in trust “for the owner”. The owner wished to sell the property. The real estate company was successful in achieving the sale and therefore it earned that commission.
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Another case involves very interesting principles of equity. A borrower of funds had an existing loan and the lender had called the loan in. The new lender approved the borrower “without a guarantor.” However, knowing the spot the borrower was in, the new lender demanded that the borrower’s principal co-sign.
The court held that the “personal officer” of the corporate borrower was coerced in obtaining his signing for the loan because of economic duress and that the new lender was taking advantage of the situation. The new lender was not “entitled” to the principal’s “covenant” and it was not enforceable.
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A plaintiff agreed to buy a new home from a builder. It was to be constructed in a new subdivision.
The completion date was set but an extension of 90 days was given to accommodate delays.
By the construction date completion, actual construction had barely begun. No one took any steps to enforce the contract.
The house was not completed and the plaintiff bought a smaller house in the same subdivision on another street. The plaintiff then sued for “specific performance” by the builder for not completing the original home.
The court refused specific performance. It ruled the plaintiff had bought another home that was also new, in the same subdivision that was similar though somewhat smaller. The second house cost more (due to the passage of time) but it was demonstrated to the court that it was a suitable alternative. The court ruled that where the plaintiff can lead no evidence that damages would not be adequate, specific performance is not a proper remedy.
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.
