Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m A U G U S T 2 0 1 8 21 The risk for the lawyer is being drawn into the litigation, which occurred in Gilbert v. Marynowski before the Supreme Court of Nova Scotia last sum- mer, although it was unsuccessful. The purchasers tried to back out of a deal after they failed to sell their prop- erties, but selling their own properties was not included in the condition of purchase. They said they believed that their only loss would be the deposit and that they didn't realize they would be sued for the shortfall of what they were willing to pay and what the condomin- ium sold for in the declining market. "The losses escalated as the market went down and it sold for quite a loss," making it a $100,000-plus case, says Ian Dunbar, a partner in the McInnes Coo- per Halifax office, who represented the real estate agent. They sued their lawyer and real estate representative, claiming they were never advised to include that in the conditions. The respondents pro- vided the contract as evidence, which did lay out the possible consequences were they to default on the purchase. The best protection for the profes- sionals involved is to walk the client through every clause of the contract. But the road splits between what is rea- sonable practice and what is the perfect, ideal practice, says Dunbar. "What I think the case stands for, more than anything, is that where you're alleging that what someone has done is below the industry standard, it's on you to get evidence on that," he says. "The fact that they didn't have expert evidence meant that [it would be dif- ficult for the court to say] that this was below the reasonable standard of care of a lawyer or a realtor without any expert evidence. "I think it also stands for the propo- sition that you can't just say that because something went wrong in hindsight that it's everybody else's fault." Sellers, too, may seek to pull out of a deal, particularly if they see the market moving upward after they signed the agreement to sell. Calgary real estate lawyer Jeffrey Kahane's client was buying a condo from a divorcing couple who wanted to drop out of the deal on the premise that they were going to stay together. But Kahane, principal of Kahane Law Office, calculated the costs from profes- sional fees to storage to the extra cost of buying a home at the now-higher values and came to a bill in excess of $150,000, but he suggested his client would agree not to purchase for $100,000. The seller opted to close instead. In 2016, Alberta also introduced the opportunity for the seller to get out of the deal if a buyer is late with the deposit. And, if it's the seller's desire not to go ahead with the sale, they need to communicate that to their agent so that the broker doesn't accept the deposit when it does arrive. A broker's accep- tance of the deposit is an acceptance of the contract. The same thing applies to the waiver of conditions. "Ultimately, time is of the essence. If someone is late on something, it's there for a reason," says Kahane. Visit canadianlawyermag.com/inhouse Our video coverage topics: CHALLENGES OF MANAGING TECHNOLOGY IN-HOUSE, online July 3 MANAGING CYBER RISK IN-HOUSE, online July 9 USING TECHNOLOGY FOR EFFICIENCY, online July 16 AI AND BLOCKCHAIN, online July 23 13 th Annual Canadian Lawyer InHouse General Counsel Roundtable Jeremy Farr, Bank of Canada Kikelomo Lawal, Interac Corp. Shelley Babin, Ontario Power Generation Beth Gearing, Rexall Gordon Ackroyd, SecureKey Technologies Inc. Brought to you by GC ROUNDTABLE ntitled-7 1 2018-07-13 10:46 AM

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