Gilbert v. Marynowski

Gilbert v. Marynowski

The claim against the advisors was dismissed because the plaintiffs were aware or on notice that their liability could exceed the deposit, the court lacked expert evidence to establish applicable professional standards of care (and the exceptions did not apply), causation was not proven on a 'but for' basis, and the plaintiffs failed to reasonably mitigate their losses.

Citation
2017 NSSC 227
Parties
Applicants: Robin Gilbert and Dianne Gilbert; First Respondents: Bohdan Marynowski and Emily Marynowski; Second Respondents: Jan Malone; Bryant Realty Atlantic Inc.; Patrick I. Cassidy; Cassidy Nearing Berryman
Court
Supreme Court of Nova Scotia
Jurisdiction
Canada
Judgment Date
30 August 2017
Procedural Posture
Civil: Negligence and Contribution/indemnity Arising From Failed Real Estate Transaction / Trial Decision / Final Judgment
Outcome
Claim against the second respondents dismissed
Legal Topics
Breach of Contract, Duty of Care, Causation, Mitigation, Expert Evidence Requirement, Contribution and Indemnity
Source Language
English
Contract Law Tort Negligence Professional Negligence Real Estate Law Breach of Contract Duty of Care Causation Mitigation +2 more

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Parties

Robin Gilbert and Dianne Gilbert

Applicants

Bohdan Marynowski and Emily Marynowski

First Respondents

Jan Malone; Bryant Realty Atlantic Inc.; Patrick I. Cassidy; Cassidy Nearing Berryman

Second Respondents

Procedural Posture

Civil: Negligence and Contribution/indemnity Arising From Failed Real Estate Transaction / Trial Decision / Final Judgment

Legal Issues

  1. 1 Whether expert evidence is required to establish standards of care for the realtor and the lawyer
  2. 2 Whether the realtor (Malone) breached the standard of care
  3. 3 Whether the solicitor (Cassidy) breached the standard of care

Ratio Decidendi

The claim against the advisors was dismissed because the plaintiffs were aware or on notice that their liability could exceed the deposit, the court lacked expert evidence to establish applicable professional standards of care (and the exceptions did not apply), causation was not proven on a 'but for' basis, and the plaintiffs failed to reasonably mitigate their losses.

Court Disposition

Claim against the second respondents dismissed

Orders

  • Claim against the second respondents dismissed
  • Costs to be determined; parties to exchange written submissions if unable to agree