In a civil action, the onus to prove that you have a case rests on the person suing (the plaintiff).

By Donald H. Lapowich

In a civil action, the onus to prove that you have a case rests on the person suing (the plaintiff). The proof is based on a “balance of probabilities”.

This is so even if a person sues a professional alleging a “conspiracy” between, for example, a lawyer and her client, the wife, in allegedly laying a criminal charge against the husband in order to obtain an “advantage” in a matrimonial lawsuit.  Normally you cannot sue the professional acting for your opponent (only) unless you allege malicious conduct.

Since the husband had no evidence of any substance of any conspiracy, the court dismissed against the lawyer and gave the lawyer a higher level of costs, because of the serious allegations that were not proven.

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In a recent case, a real estate agent acted for both vendor and purchaser. The vendor entered the first agreement of sale conditional on the purchaser’s right to conduct a due diligence investigation by a certain date. Failure to waive the condition meant the agreement was null and void (and the deposit was to be returned).

The vendor then entered a “back up” second agreement to sell conditional on non-performance of the first agreement.

The Appeal Court upheld the dismissal of the first vendor to enforce the first agreement. The condition was not a pre-printed form but specific to the vendor/purchaser, where the waiver had to be “personally” delivered to the vendor in the first agreement.

The fact of the dual agency did not mean the real estate agent was the “conduit” to whom notice was accomplished.  The vendor did not cloak the common agent with authority to receive a waiver (on the vendor’s behalf from the purchaser, number one).

The failure to personally deliver the waiver resulted in a null and void first agreement.

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In another case, a purchaser offered to buy a unit owned by G, who counter offered. The purchaser accepted the counter offer.

However, the parties disagreed on the timing of acceptance of amendments requested by G, and when the deposit was payable by the purchaser.

G declared the contract cancelled because the deposit was not allegedly paid on time, and transferred the unit to her parents.

In an action by the purchaser for specific performance or damages against G and her parents, the purchaser’s action was successful – G was liable for breach of the original contract. This was upheld on appeal. G attempted to adduce new evidence on a further appeal, which was denied.

Donald H. Lapowich, Q.C. Hon. FRGD 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 acts for professionals including lawyers, real estate agents, insurance brokers/agents and dentists.

Posted: 2009-12-10 07:39:08

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