Court of Appeal Unable to Review Lower Decision – Forced to Grant Appeal

In an unusual case, the Court of Appeal has granted the Appeal brought by the Defendants due to the fact that the inadequacy of the endorsement of the motion judge rendered the Court of Appeal unable to “conduct a meaningful review of his decision.”

The Plaintiff purchased a house from one of the Defendants. As it turns out, the house had previously been used as a marijuana grow-op. The Plaintiff alleged that the vendor failed to disclose that a grow-op had previously operated at the property and that the property had an extensive mould problem that renders it uninhabitable.

For his part, the vendor admitted that the existence of the grow-op was not disclosed. However, the vendor maintained that at the time of the sale all of the problems with the property had been remediated and that therefore there was no duty to disclose the alleged defect. The vendor also relied on an entire agreement clause in the agreement of purchase and sale.

The Plaintiff moved for summary judgment. The motion judge granted judgment on the issue of liability and directed a trial on the issue of damages.

The Court of Appeal found that the motion judge reached no conclusion as to whether or not there was mould in the property at the time of the closing. The Court of Appeal also noted the lack of analysis as to how the motion judge reached the conclusion that even if the problems in the house had been completely remediated, the responded would still “have a valid claim for the stigma that had attached to the subject property.”

In light of those findings the Court of Appeal found that it had “no alternative but to grant the appeal and set aside the declaration of the motion judge that the appellant is liable to the respondent.”

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Comments

  1. Well Matt – one thing that young lawyers are surprised by is when the grey hairs ask who the judge was.

    In this case, the motion judge has a certain history:

    Sirron Systems Inc. v. North America Construction, 2010 ONSC 873 (CanLII)
    Shekhdar v. K&M Engineering and Consulting Corporation, 2006 CanLII 17742 (ON CA)
    Ghaeinizadeh v. Ku De Ta Capital Inc., 2012 ONCA 242 (CanLII),

  2. Simon – perhaps not so “unusual” after all…

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