Gilbert v. Marynowski, (2015) 354 N.S.R.(2d) 274 (SC)

Judge:Chipman, J.
Court:Supreme Court of Nova Scotia
Case Date:January 07, 2015
Jurisdiction:Nova Scotia
Citations:(2015), 354 N.S.R.(2d) 274 (SC);2015 NSSC 6
 
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Gilbert v. Marynowski (2015), 354 N.S.R.(2d) 274 (SC);

    1120 A.P.R. 274

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Temp. Cite: [2015] N.S.R.(2d) TBEd. JA.012

Robin Gilbert and Dianne Gilbert (applicants) v. Bohdan Marynowski and Emily Marynowski (respondents)

Bohdan Marynowski and Emily Marynowski (applicants) v. Jan Malone, Bryant Realty Atlantic, Patrick I. Cassidy, Q.C., and Cassidy Nearing Berryman (respondents)

(Hfx. No. 429077; 434549; 2015 NSSC 6)

Indexed As: Gilbert v. Marynowski et al.

Nova Scotia Supreme Court

Chipman, J.

January 9, 2015.

Summary:

The parties entered into an agreement of purchase and sale (APS) of the vendors' condominium. The purchasers subsequently terminated the APS and refused to close. The vendors applied for payment of funds owed under the APS. Discoveries were held. The purchasers asserted that during the discoveries, they learned that a possible claim existed against Malone, Bryant Realty, Cassidy and CNB, for failing to properly advise them on their obligations. The purchasers applied for an order holding Malone, Bryant Realty, Cassidy and CNB, jointly and severally liable for damages and costs. The purchasers moved that the applications be consolidated and for an adjournment of the proceedings.

The Nova Scotia Supreme Court allowed the motions.

Practice - Topic 3073.1

Applications and motions - Applications - Adjournments - The parties entered into an agreement of purchase and sale (APS) of the vendors' condominium. The purchasers subsequently terminated the APS and refused to close - The vendors applied for payment of funds owed under the APS - Discoveries were held - The purchasers asserted that during the discoveries, they learned that a possible claim existed against Malone, Bryant Realty, Cassidy and CNB, for failing to properly advise them on their obligations - The purchasers applied for an order holding Malone, Bryant Realty, Cassidy and CNB, jointly and severally liable for damages and costs - Hearings were set for February 3-5, 2015 - The purchasers moved for an adjournment of the proceedings - The Nova Scotia Supreme Court allowed the motion - Discoveries were incomplete - The vendors' case was not "virtually ready for trial" - See paragraphs 13 to 19.

Practice - Topic 4122

Joinder of causes and consolidations - Consolidation of actions and applications or motions - When available - The parties entered into an agreement of purchase and sale (APS) of the vendors' condominium - The purchasers subsequently terminated the APS and refused to close - The vendors applied for payment of funds owed under the APS - Discoveries were held - The purchasers asserted that during the discoveries, they learned that a possible claim existed against Malone, Bryant Realty, Cassidy and CNB, for failing to properly advise them on their obligations - The purchasers applied for an order holding the purchasers, Malone, Bryant Realty, Cassidy and CNB, jointly and severally liable for damages and costs - The purchasers moved that the applications be consolidated - The Nova Scotia Supreme Court allowed the motion - The applications were inextricably intertwined - Although liability issues might differ, the evidence on quantum of damages was identical - Both applications arose from the same transaction - Furthermore, the court was cognizant of the potential impact of allowing the vendors' application to proceed first, without the involvement of the other respondents - See paragraphs 20 to 28.

Cases Noticed:

Stone v. Confederation Life Insurance Co. (1992), 117 N.S.R.(2d) 194; 324 A.P.R. 194 (T.D.), refd to. [para. 16].

Darlington v. Moore (2012), 318 N.S.R.(2d) 246; 1005 A.P.R. 246; 2012 NSCA 68, refd to. [para. 17].

Secunda Marine Services Ltd. v. Caterpillar Inc. et al. (2010), 297 N.S.R.(2d) 279; 943 A.P.R. 279; 2010 NSCA 105, refd to. [para. 18].

Citibank Canada v. Begg et al. (2010), 287 N.S.R.(2d) 322; 912 A.P.R. 322; 2010 NSSC 56, refd to. [para. 20].

Jeffrie v. Hendriksen et al. (2011), 307 N.S.R.(2d) 388; 975 A.P.R. 388; 2011 NSSC 351, refd to. [para. 24].

Metro Credit Union v. McInnis (2002), 219 Nfld. & P.E.I.R. 229; 655 A.P.R. 229 (P.E.I.T.D.), refd to. [para. 26].

MacNutt and Merriam v. Nova Scotia (Attorney General) (2005), 248 N.S.R.(2d) 31; 789 A.P.R. 31; 2005 NSSC 337, refd to. [para. 26].

Counsel:

Ezra B. van Gelder and Justin Morrison, articled clerk, for Bohdan Marynowski and Emily Marynowski, applicants on this motion;

Mark T. Knox, Q.C., for Robin Gilbert and Dianne Gilbert, respondents on this motion;

Ian R. Dunbar, for Jan Malone and Bryant Realty Atlantic;

Augustus M. Richardson, Q.C., for Patrick I. Cassidy, Q.C., and Cassidy Nearing Berryman.

These motions were heard at Halifax, Nova Scotia, on January 7, 2015, by Chipman, J., of the Nova Scotia Supreme Court, who delivered the following decision on January 9, 2015.

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