I note a very interesting case in Arizona called Desert Palm v. Petta. At the trial stage a disgruntled patient was found liable in defamation and libel for an article she posted online about alleged unprofessional behaviour and incompetence of the plaintiff doctors.

The court required the defendant Petta to remove the posting from her website, which she did. In a jury trial, the doctors were awarded some $12 million but on an appeal the court was not pleased with the amount awarded and certain aspects of the trial. The Arizona Court of Appeal ordered a new trial.

It seems “all the rage” to rate your professional online. I note that many individuals do not sign their rating and yet give a very negative and demeaning comment about the professional’s competence and ability. It will be interesting to see if someone challenges such an article.

Conversion of a legal non-conforming use

A property owner leased premises to a tenant who operated a traditional bar, selling alcohol. This was not authorized by the municipal by-law but was a non-conforming use.

Subsequently, the owner leased the premises to a third person who decided to operate a juice bar. The venture was unsuccessful and the third party had to close up. The owner who retook possession applied to operate the traditional type of bar (alcohol) and the municipality objected. When the owner brought a motion seeking a court order that it had the right to the non-conforming use, it was found that there had been a “change in use”, which extinguished the non-conforming use. The premises could no longer be used for the sale of alcohol. There was no doubt that the non-conforming use had ceased (or had been interrupted) and that the owner was fully aware of the change to a juice bar.

Credible vendors

The plaintiff agreed to buy the defendant’s home. The vendors had made a disclosure that there was never any water entering their basement during their ownership.

Once the purchasers moved in they found that water was leaking from cracks in the wall. They brought an action. The court found that the vendors were not negligent, did not make fraudulent or negligent misrepresentations and were honest. They also did not try to conceal “a latent defect” even though they painted the basement floor to make it look cleaner. This was on the advice of their real estate agent.

Obviously the credibility of the individuals convinced the judge that the representation and act of painting the floor did not supersede the vendor’s honesty. Clark v Styles, 2014 SKQB 343

Earned commission

A brokerage entered a Listing Agreement for the sale of a property. During the time of the listing, the brokerage, through its agent, introduced the eventual purchaser but no Agreement of Purchase and Sale was forthcoming. The listing continued the right to a commission if “written notice” was given by the brokerage that it introduced the purchaser during the listing agreement.

Three and one-half months after the expiry of the listing agreement, the purchaser signed an agreement to purchase the property. After the sale closed the brokerage submitted an invoice to the vendor for commission on the sale. The vendor did not pay the invoice and the brokerage commenced an action for payment.

The Court of Appeal held that the commission was not payable to the brokerage because of the lack of written notice of the prior introduction. On a quantum meruit basis the court allowed the brokerage $20,000 for services provided after expiry of the Listing Agreement. Ariston Realty Corp. v. Elcarim Inc., 2014 ONCA 737


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