Kapy v. Hwang

Kapy v. Hwang

The summary judgment was appropriate because the vendor proved prima facie that the purchaser failed to close due to lack of financing and the purchaser failed to adduce evidence that the nearby landfill posed a health or safety risk to create a genuine issue for trial; the motion judge erred in awarding substantial indemnity costs without findings of unreasonableness or bad faith and without allowing submissions, so the costs award was reduced and varied.

Citation
2010 ONCA 740
Parties
Plaintiff (respondent): George L. Kapy; Defendant (appellant): Young Ho Hwang
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
5 November 2010
Procedural Posture
Collection / Appeal From Summary Judgment and Costs Order
Outcome
Appeal dismissed in part: summary judgment in favour of respondent affirmed; appeal allowed in part on costs and costs order varied.
Legal Topics
Summary Judgment, Duty to Disclose, Landfill Contamination, Evidentiary Burden, Indemnity Costs, Costs of Appeal
Source Language
English
Civil Property Law Procedural Law Costs Summary Judgment Duty to Disclose Landfill Contamination Evidentiary Burden +2 more

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Parties

George L. Kapy

Plaintiff (respondent)

Young Ho Hwang

Defendant (appellant)

Procedural Posture

Collection / Appeal From Summary Judgment and Costs Order

Legal Issues

  1. 1 Whether the existence of a nearby landfill created a genuine issue for trial regarding health and safety hazards
  2. 2 Which party bears the evidentiary burden on a summary judgment motion once prima facie facts are established
  3. 3 Whether the motion judge properly awarded substantial indemnity costs without findings of unreasonableness or bad faith and without opportunity for submissions

Ratio Decidendi

The summary judgment was appropriate because the vendor proved prima facie that the purchaser failed to close due to lack of financing and the purchaser failed to adduce evidence that the nearby landfill posed a health or safety risk to create a genuine issue for trial; the motion judge erred in awarding substantial indemnity costs without findings of unreasonableness or bad faith and without allowing submissions, so the costs award was reduced and varied.

Court Disposition

Appeal dismissed in part: summary judgment in favour of respondent affirmed; appeal allowed in part on costs and costs order varied.

Orders

  • Summary judgment in favour of respondent affirmed and damages of $282,476.09 upheld
  • Original costs order set aside and replaced with an order for costs on a partial indemnity basis in the amount of $7,500.00 all inclusive (underlying motion)