Dive into the intricacies of civil law with Hamish and Stanford, associate lawyers at Nelligan Law, in this engaging episode of Civil Banter. This episode explores the intersection of personal experiences and professional practice in law, focusing on contract law and the challenges of litigating within family dynamics. Additionally, the hosts share their personal hobbies and insights into how these activities impact their professional lives.
Hosts: Hamish Mills-McEwan and Stanford Cummings
What You'll Learn
Discussion Points
Introduction to the Episode: This episode offers an in-depth look at a compelling case study in family and contract law. The discussion emphasizes the case's complexity and its educational value for legal professionals.
Navigating Complex Legal Waters: Hamish and Stanford provide a detailed analysis of the 'Gill and Gill saga.' They discuss the legal challenges faced during the trial and appeal processes, emphasizing strategic decisions and the outcome's impact on their legal practices. Key points include the enforceability of contracts among family members and the nuances of appealing a trial decision.
A Sense of Community in Law: The episode highlights the sense of collegiality within the legal profession, especially in Eastern Ontario and Ottawa. The hosts discuss their positive interactions with opposing counsel, demonstrating the professional respect that underpins effective legal practice.
Critical Legal Insights: Learned specific legal principles discussed in the episode, such as the rules of civil procedure, contract enforceability, and the specifics of obtaining specific performance in contract disputes. This segment aims to educate listeners on important legal concepts and their application in real-world scenarios.
LARPing Segment (Lawyers Are Real People-ing): A brief touch on personal interests where Stan shares his experience with indoor golf, showcasing how lawyers find balance between their demanding professional roles and personal hobbies.
Contact Information:
Email: civilbanter@nelliganlaw.ca
Social Media:
Hamish:
Hi, I'm Hamish, this is Stan. Welcome to Civil Banter. We are two associate lawyers at Nelligan Law, practicing civil litigation, insurance and all things injury. So our first segment, Stan, you know it, you love it.
Stan:
Yeah. LARPing.
Hamish:
Lawyers are real people. So in this segment we'll be answering the question of how we've been spending our time, what we've been watching, and what we've been occupying our lives with outside of the practice of law. So I think we'll cut straight to you, Stan. How have you been spending your time?
Stan:
Thanks, Hamish. I've been doing some indoor golf, which has been fun and something we're forced to do here in Canada in the winter because we don't have access to luscious green grass until well into the spring. And I went with my cousin, he got a hole in one, which I've never seen live in person. I don't know if it counts quite the same if it's into a screen, but-
Hamish:
To be clear, this is not mini-putt.
Stan:
No, no. The full-blown with a simulator and real golf courses that they've mapped out. And so it's as legit as it can get. No indoor mini-putt. They do have that. I have been, but this is-
Hamish:
Are we going to plug a specific location?
Stan:
I went to GOLFOMAX, it's on Baxter Road. I had a great time. Love it there. They're good people and the simulator seems to be working well. And like I said, my cousin got a hole in one, so I've never seen that in person on a real golf course or on a simulator. And the staff said it was the first one that he had seen in six years. Which went over with no fanfare, they did like no confetti fell from the ceiling, no balloons. It's not like, you get a 300 game on the Simpsons there and the one balloon falls down. Nothing. I was expecting at least a free drink.
Hamish:
Okay, so it really is just for the glory.
Stan:
It is. Yeah. We took a picture of him in front of his scorecard, which was projected onto the screen and that was pretty cool. I guess we'll always have the memories.
Hamish:
Okay. And so I'm thinking, I'm thinking golf town, I'm thinking the huge golf town, which I think it definitely was in Kanata. I don't know.
Stan:
It still is. Yeah.
Hamish:
it still is.
Stan:
Yeah.
Hamish:
That's the only time I've seen a golfing simulator. So compare and contrast.
Stan:
Well, this one is similar in nature to that. They've got, I think 10 or 12 bays. There's a few different, there's more than a few. There's a bunch of different places in Ottawa now. I think it's becoming pretty popular to have these facilities and they're becoming even more and more like a cross between a sports bar and a golf simulator. So there's some pretty cool, I've been to some other ones and some of them are more towards the sports bar side of things and less towards the actual simulator, like about the golf. But it's still fun.
Hamish:
So I know it's big in a very specific crowd, but there is a virtual reality golfing game. And I'm a proponent of virtual reality.
Stan:
with the goggles and everything.
Hamish:
With the goggles. I've not gotten into the world of golfing yet. I think the property insurance claims that could result from me-
Stan:
Swinging a club inside.
Hamish:
Yeah.
Stan:
With goggles on?
Hamish:
With goggles on. As my wife knocks on the door and walks in to say goodbye and I'm teeing off, I think it could be a bit of an issue, but maybe that's something we should investigate.
Stan:
Yeah, it sounds interesting. So what have you been up to?
Hamish:
Aliens.
Stan:
You've seen some?
Hamish:
I've seen some in James Cameron's, I believe it was 1982, classic, fact check me on the date but-
Stan:
The movie Aliens.
Hamish:
The movie Aliens.
Stan:
not actual extraterrestrials hovering over your home.
Hamish:
Fortunately not, but-
Stan:
That's what we need on the 2025 Bingo card. Actual aliens. I thought that. Yeah.
Hamish:
So there was an alien movie that came out very recently. I'm blanking on the name. Alien...
Stan:
I'm going to do a quick Google here.
Hamish:
Yeah, pull that up. But it was excellent. It was really good. It was really like a return to form if you're into sci-fi like I am.
Stan:
Alien Romulus?
Hamish:
Alien Romulus. Excellent. Really well done. The natural thing to do after watching that is to go back a couple of decades and go and find not the original. The original was Ridley Scott, and it was more of a horror movie, if you haven't seen it, you should. But James Cameron did like a big, bold, 80s action movie sequel and practical effects, CGI. I don't know about you, but CGI, I have the eye for it. You know it. You know it when you see it. It can be done well obviously, but that's just something about props, fake blood, puppets. There's just something about that just makes any action movie that much better, any sci-fi movie.
Stan:
I'm with you. I think the classic example for me is a Star Wars one. The difference between the original, which was shot with practical effects, and then you get those prequels, which is green screen everywhere and you can see the difference, is it a situation like that?
Hamish:
It's just like that. So for the past couple of weeks I've been fantasizing about basically why we could be, if the 1980s depiction of the future was accurate and where we are. And I'm just disappointed that I'm not walking around the office in the power loader. I'm not blowing a defense counsel out of the airlock.
Stan:
The airlock. I like it. Before we move on, we're both F1 fans and have you been paying any... This is preseason, so I don't know when this one will drop.
Hamish:
Yeah, we're probably about to be proven very wrong with all our predictions.
Stan:
Yeah. But do you have a prediction for this upcoming season or maybe just the first race weekend?
Hamish:
I, well, I want to believe that Williams is going to be best of the rest.
Stan:
Wow.
Hamish:
So historic British team.
Stan:
Yeah, right in your alley there.
Hamish:
Yeah. You know Alex Albon.
Stan:
Good driver lineup.
Hamish:
Good driver lineup. Alex Albon, [inaudible 00:06:44]. They've both been at proper front of the grid teams. I feel like it's probably got to be one of the stronger driver lineups. There are a lot of them this season, but.
Stan:
Yeah, I... Okay. Well we'll see how that pans out. I was initially not as excited for this season. I just thought it would be more of a continuation of what last year had in store and that most teams would focus on next year because there's a big change in the rules coming. But as the day comes closer and closer, I think the excitement will tick up and we'll see what's in store.
Hamish:
And I mean, the easiest entry point is, if you don't know what F1 is, if you haven't seen any F1, the easiest entry point is, turn on Netflix, Drive to Survive. It is, fans have their qualms with the drama and the heightened editing and stuff like that, but it is super compelling as a watch. Anyone can get into it.
Stan:
Yeah, I'll admit it. It's kind of what got me back into it.
Hamish:
There you go.
Stan:
Yeah, absolutely. All right, enough of us. We're going to move on now to our next segment, which is not a segment we had in our first episode, but one that I think is going to be pretty interesting. This one is called Case Brief. And in this section we're going to chat about some of the more recent newsworthy, notable current events and apply our overworked legal brains to the problem. We thought, let's start easy, hopefully on this one and close to home. And Hamish, you had a trial and a trip to the Court of appeal recently, so I'm going to ask you some questions about that and get your thoughts on the experience and going through everything there. It's the Gill and Gill saga, which is at least a two-part saga.
Hamish:
I can almost see the title card.
Stan:
Yeah.
Hamish:
Yeah. So and this is, you know, we're both civil litigators first and foremost. So while we do personal injury, we do insurance stuff. No, if you can be a civil litigator in one arena, there's the boundary line in your experience and your expertise. And the rules of civil procedure are the rules of civil procedures. So we do take cases outside of injury and insurance, and this was a contract case with a family overview. But-
Stan:
Yeah, why don't you give us an overview here of who the parties are and what brought them into our wonderful judiciary or justice system.
Hamish:
So yeah, this was Caitlin Cardell and I had carriage of this file through the trial and it's essentially, it's a contract case. It's a real estate case, but that really doesn't explain the full context here. It's a contract between family members.
Stan:
Oh, good old family litigation without being family litigation.
Hamish:
Yeah. So it's basically mom and dad and their son.
Stan:
And which ones did you represent?
Hamish:
We represented mom and dad.
Stan:
All right. Against the evil children, child. One, right?
Hamish:
It depends who you ask. So essentially the parents had helped their son buy a house. He was struggling to basically pay the mortgage. He'd had some issues with kind of job security. He'd had a bit of sort of a failure to launch and like they'd paid and assisted him buying the house, but there kind of wasn't a lot of examination of is he going to be able to maintain this property in terms of he's got insurance costs, he's got utilities. It's not a new house, it's not an old house, stuff needs doing. Roofs need repairing, et cetera, et cetera.
Stan:
So he buys this house with some assistance from your clients, the mother and father.
Hamish:
Yeah. So, as time goes on, it becomes clear that home ownership is not really working out. They tried to give him a leg up, but as bills were coming due, it sort of became clear that he's not going to be able to afford to live here anymore. So you know, the parents or the father and his wife step in and they get their son to sign a contract.
Stan:
Okay. What was the terms of this contract?
Hamish:
Well, it's a contract they drafted.
Stan:
Okay. No lawyers involved in drafting?
Hamish:
no lawyers involved, but it's still a relatively clear contract. It's a pretty informed contract, it's pretty specific. It has enough essentially. So the contract is, the son is going to transfer the parents title to the house when the mortgage comes due. The son's going to pay the parents back some loans because they'd advanced in some loans over a number of years.
Stan:
Including the original money to purchase the home?
Hamish:
It actually wasn't that. There were more loans periodically over a number of years, and they essentially, there was some debt that got forgiven. There were some that wasn't, but they wanted to at least put it in writing that at this point we've racked up debt and we need this in writing that we're going to be paid back these loans.
Stan:
Okay. And I take it he didn't seem cashflow positive in a way that gave them any kind of confidence he'd be able to pay them back for those loans.
Hamish:
Yeah. So it was very important to them to get it in writing and they were going to move into the house. They were going to move in and the son would continue to live there. And after a period of time so that he could find, and he also, he wanted to, or the facts is found that he wanted to move to Toronto and go and get a job, and he had kind of an industry he was looking into. And so the idea was parents move in, parents take over all responsibility, they pay the arrears on property taxes, they take over the insurance payments, they take over the mortgage payments, they are now responsible for all the upkeep and all the financial costs. The son's end of the bargain was, he's going to pay back the loans over a certain period of time and when he's able to, he's going to move out. And then when the mortgage is up for renewal, at that time, he's going to transfer the parents to the house and the parents are going to pay the existing mortgage balance and they're going to have title.
Stan:
I take it a fairly substantial amount remaining on the home at that point.
Hamish:
Yeah, yeah. Like at the time, this is going back a number of years, but it was a six figure sum that they were going to basically take care of and then title to the house goes to them. What ends up happening is, the parents move in, there's no real indication that the son's actually going to move out. It's still agreed to, they're still holding him to his word, but he's not really taking any concrete steps and he doesn't start paying the loan back. So the parents sign a second contract after they've moved in and the second contract was witnessed. So the first contract wasn't witnessed, the second contract was essentially the same terms. And that's the contract we really fought about because that's the one where it was for all to see that this contract was signed, witnessed. There was an independent witness who testified at trial about everyone's understanding of the contract.
Stan:
And if anybody reads that trial decision, they'll see that independent witness at trial was probably the only witness the judge had a favorable view on, at least in my reading of it.
Hamish:
Yeah. I mean, I saw her in person, she just wasn't an excellent witness.
Stan:
There you go.
Hamish:
And lots of lessons learned about how to present evidence from a witness and what type of witnesses really speak to a judge in a situation where you might not have all the positive facts on either side of the case, but when you bring that independent witness in, who really has no stake in anything, they can really clear a lot up. So the actual action was essentially, son doesn't move out, doesn't pay loans, at a later date, moves out. Mortgage comes up for renewal, doesn't transfer the house, and then he sues the parents and says, "I want vacant possession of what's on paper," his house.
Stan:
Okay, so let me just make sure I got the facts right. He writes, or he doesn't draft it necessarily, but he signs an agreement with his parents that for all the help that they've given him over the years and for the fact that he can't pay these loans back, he's going to sign over the home to them and vacate it. And that's committed to writing. And then he decides he's not going to hand the home over. He does vacate though, but won't give them legal title to the property. Right?
Hamish:
Yeah. So on paper he very much owned the house. There's no title transfer, the mortgage is in his name, but the parents have this contract. So the parents, our clients counterclaim saying, "No, we have a contract, we get in the house, you owe us the loans."
Stan:
Ok. So trial and court trial, how does this go?
Hamish:
So, at trial, the son tried to get out of the contract. And so the arguments that him and his lawyer raised were basically saying that the contract was unconscionable. So there's some degree of unfairness such that they could actually get out of the contract or it was entered into under duress. And there was a whole portion of the trial devoted to the circumstances in which he signed the contract. So there was evidence, it wasn't accepted, but there was evidence around perhaps threats and living conditions and what the parents put the son through. These weren't established facts, but we heard evidence about this and that was a big focus of the trial. Is this contract enforceable or is it not? And we thought we had a really strong case of this. He's an adult, the contract was witnessed, the contract is enforceable and we succeeded on that point.
Stan:
Yeah, I saw the judge found, yes, this is a valid contract. Yes, it is enforceable. No, it was not entered under duress. And so that's a great finding of fact that you had a finding of law too, I would take it.
Hamish:
Yeah. And that's, as we're reading the decision, Caitlin and I get the decision, we're reading through it and we're thinking, sounds good, sounds good. Yep. The contract's enforceable good, that's-
Stan:
Number one, do we have a contract? Yes. Okay.
Hamish:
And then the son's claim is dismissed, he doesn't get vacant possession. There was no duress, it wasn't unconscionable. We keep reading and then things take a bit of a turn for the worse when it comes to the relief we're asking for, which is specific performance.
Stan:
Right. And why don't you give a little overview of what you mean by specific performance.
Hamish:
So specific performance, and in this case, what we're asking for is we're asking for the house, we're saying we have a contract, it's enforceable, give us the house.
Stan:
Right. You want exactly what you bargained for.
Hamish:
Yeah.
Stan:
So I said, I want the house, you promised to give it to me, then you said you wouldn't. So you've gone to court and you've asked for the house.
Hamish:
Exactly. And our fallback position is, and if we don't get the house, because it's an extraordinary remedy, because you're actually getting the very thing physically transferred versus money, which is what the courts like to deal with. They like to do the accounting and if you're being paid damages in compensation, that's what they'd rather be doing. And we can go into that a little bit later, but we're asking for the house and if we don't get the house, we want the value of the house in monetary terms.
Stan:
And what did you get?
Hamish:
We got neither.
Stan:
Interesting. Okay, so there's a valid contract, but you won't get the home and you won't really get financial damages for the home. So what was the decision like on that front?
Hamish:
Yeah, well it was a pyrrhic victory. It was kind of splitting the baby in half. It was the contract's enforceable and we got some of what we asked for, but they were a bit inconsistent. So we got the loans, good. We got money that had been invested into the house during the course of homeownership.
Stan:
Okay. And that's like the taxes and the upkeep and things like that.
Hamish:
Yeah. And it's also physically our clients had looked after the house, they'd landscaped it, they changed the garden-
Stan:
Doors and windows.
Hamish:
Yeah. All that type of thing. So they'd invested money into the house and that's what we would call on the contract world, that's reliance damages. So we expended money on the basis that you would comply with the contract and you didn't comply. We want our sunk costs basically.
Stan:
Right. And you got those.
Hamish:
We got those. But in terms of the big ticket items, which was the house and if not the house-
Stan:
The value of the house.
Hamish:
The value of the house, we didn't get those and we came back to the office. There was an after work drinks with you, Caitlin and I.
Stan:
I remember that.
Hamish:
And we're reading through the decision. And what's interesting about working at a firm like Nelligan's is all of the lawyers bring something different to the table in terms of their perspectives. And when you're thinking about appeal, there's a lot of risk in appeal.
Stan:
Yeah, of course, I think the stats are about 80% of respondents succeed, which means that 80% of the people who've sought an appeal are unsuccessful on appeal. So the odds are certainly not in your favor just on pure math.
Hamish:
Yeah. And whatever the difficulty is in proving a claim at trial, appeals is just going to be harder because there's already been one set of judicial eyeballs that's already looked at it and made the decision. So you need to be very confident before you're telling someone to embark on appeal that there are good appealable grounds.
Stan:
Right. And in this case, your client's probably thinking, "Well, hold on a minute. The judge has found that I had a valid and enforceable contract, in which case I should have expected to receive transfer of ownership of this home. That hasn't happened. The damages are inadequate, they don't even compensate me for the value of the home." So obviously you went to the court of appeal, you got the instructions to appeal the decision. How was that whole process?
Hamish:
Yeah, well, fortunately we had a long discussion. We had a client who very much accepted our opinion. He saw the injustice in the words of the decision itself. He was perplexed by it and his wife. And it was one of those cases where you read the decision and it just doesn't make sense on a key issue, and you can kind of see the injustice in the inconsistency. And what it comes down to is, the remedy we were asking for. And that's where the risk comes from. So we were asking for a specific performance, as I said. So the default position in contract law is, if it's a contract, you're usually expecting a financial benefit from the contract. So it makes sense that the court's going to say you get the money you would otherwise received had the other side complied with the contract. So that's the default position.
Stan:
Right. It's designed to make you whole again, just as any other lawsuit for any other viable cause of action is to make the person whole, which means putting them into the position they would have been in had this thing not happened to them, be it a breach of contract or an accident.
Hamish:
Yeah. So in contract, these are called expectation damages. And I'm not a contract buff, I'm a civil litigator. I love torts, torts are my jam. But it was a real trip to going back and really thinking about how contract damages are and should be calculated. So the default expectation damages and the reason specific performance, which means do the thing you said you would do.
Stan:
It seems so basic, doesn't it?
Hamish:
It seems so basic, but if you think about some of the consequences, you can understand why the court doesn't really want to do that. And the idea is, I contract with you, I say, "Stan, I'll pay you a hundred dollars a week to cut my grass." If you breach that contract, the court doesn't really want to be in a situation where they're saying-
Stan:
Go cut the grass.
Hamish:
Go cut the grass. Yeah. They don't want to be forcing you to do something.
Stan:
They'll just give you your money back.
Hamish:
They'll give me my money back.
Stan:
And maybe whatever you paid to hire a different contractor who actually showed up to cut the ground.
Hamish:
And then on the flip side of that, if I breach the contract and I didn't pay you, what the court would want to give you is they just say, "Well really you were agreeing to cut my grass but you didn't have a desire to cut my grass. You wanted the money I was going to give you."
Stan:
Yeah. You can't uncut the grass either.
Hamish:
Right. So-
Stan:
Yeah. Well and so specific performance is an equitable remedy, right? It's about fairness at the end of the day. And that's something that the judge who wrote the decision, she says, "A specific performance of an agreement is an equitable remedy granted where damages cannot afford an adequate and just remedy in the circumstances."
Hamish:
Right. And so it's equitable and that's why the risk comes from, it's discretionary and it's equitable. So what that means is, it's not I prove X, Y, Z and then you have to give me specific performance, meaning you have to give me the house. It's I prove X, Y, Z, and then I ask for the court to agree with me and transfer me the house. And the court says, "Hmm, what's fair in all the circumstances?"
Stan:
Right. Well I think you're buoyed slightly on appeal on this one because you didn't quite get the full amount of the damages anyway. So, if you don't want to give me specific performance, well then at least give me the cash value of the home.
Hamish:
Exactly. So that's why we felt like we were on firm ground going for specific performance, but we still had our fallback that was, he didn't assess what the value of the house was on the date of breach. At minimum, we should get the value of the house on date of breach.
Stan:
Well, and just before we move off of the topic of specific performance entirely, as I understand it from the reading the decision, there's sort of three different reasons why with respect to a property specific performance may be awarded. Is that right?
Hamish:
Yeah. So as I said, default position, you get the money and then over time it became the position that, well, when it comes to property, meaning real property, meaning a house, there's not really a good substitute for that. It's unique in the sense that there's only so much of it. So it's a lot easier for a court to decide between property rights and just say, "Well, we'll just transfer a title," because it's kind of a pen stroke thing to transfer a title of house from one person to another so long as a court is enabled to do that.
Stan:
Right. And your case differed from many real estate breach of contract cases because your clients who were seeking legal ownership of the home had possession of the home, which is not what you normally see, right?
Hamish:
Exactly. So the big focus of the appeal decision and what we're really arguing is this property and this transaction are unique and because they're unique, that's why getting the house is really the only fair result.
Stan:
Okay. I'm looking at the three reasons why specific performance may be awarded. And number one was if the property's physical attributes are really important or there's something that sets them apart from another home in the area, let's say. And I don't think that was the case in this situation, was it?
Hamish:
No. And the thing is, that's why the decision fell apart at trial, because all of this case law for the most part gets developed when I'm on Redfin, I find a house, I get my real estate agent, he or she speaks with the real estate agent on the other side, we buy a house and then someone breaches the contract and I say-
Stan:
We'll sell it to you.
Hamish:
I say, well I wanted the house. But that is an arm's length real estate transaction where the purchaser and seller, they don't know each other and they have no existing relationship with each other. So to show that a property is unique in that case law, you have to be showing you had a wishlist of features and this house was so perfect for you. It had the ramp for my mobility scooter that I needed that I couldn't find anywhere else.
Stan:
Or the dream backyard. And that didn't happen here.
Hamish:
Yeah. So that's what you're trying to prove most of the time in this situation. Well, no, I mean-
Stan:
Regular house.
Hamish:
It was a regular house, but what was unique were two things. One, they'd already moved in and by the time of the trial it was some, four or five years later. They had moved into the house by the time the second contract was signed, they were living there.
Stan:
Spent a considerable amount of time and money on upkeep and maintenance of the home.
Hamish:
Exactly. And I think this is the fact that the court of appeal actually found the most persuasive. And it was basically that, how better to prove a property is unique than to say, "This isn't a house, this is my home. I literally live there, we've made it our home. We've put in time, resources, money into this home. And you know, at the end of the day, that's what we'll be returning to after this trial is done."
Stan:
Which is the second grounds that they address for granting specific performance, which is the purchaser's subjective interest. And like you said, what's more important to somebody subjectively than their own home, which they've lived. In your case, I think the facts kind of spoke for themselves on that issue.
Hamish:
Yeah. And that's where a lot of the emotion in the case came from. Like it came from two different factors. I mean, this is a family dispute at the end of the day for the father and his wife. There's the family dispute, which is obviously very contentious. There's also the feeling of this is my home. It's not something where it's, I can go out on the real estate market and anywhere will do. And also, the court also at the end of the day found, well what's the purpose of this contract? The purpose of the contract isn't for the parents to just find a house because they want somewhere to live.
Stan:
Right. It wasn't for them to, profit off of this particular endeavor or to steal anything from this. It was about the specific home that they'd invested in. Really from the outset it sounds like about funding the initial purchase even.
Hamish:
Yeah. And that's one of those factors that comes up. Is this just a spec like you speculating on the real estate market? Is that the only interest you had in the purchase of this home? And the answer in this case was very much no. The interest they had in the home is, they wanted to move in to essentially, evacuate their son from what was-
Stan:
Financial distress.
Hamish:
Yeah. It was a financial distress situation. And while they were getting the house out of it, the intention as found fact was to assist their son financially and to basically shoulden the burden of home ownership that was crushing their son.
Stan:
Yeah. Well, and to read from the appeal decision, the trial judge found that the appellants did not purchase the property as investors. The property was intended to become the appellants home and it did.
Hamish:
Right. So, and then, uniqueness, again, the thing that's fact specific in our case, which I think made uniqueness when the day was the interest in the house as being unique to them because it was their home. But I think the principle that applies a bit more broadly to other cases and whether the law on specific performance in real estate transactions got moved along a bit is, a return of focus on the transaction. And I think that's especially true when it is a real estate transaction that's not at arm's length. So if it's between family members or close business associates or just friends. Or when it comes to a real estate deal, the court has to focus on whether the circumstances of the transaction or contract are unique. And I think this sets the black, white easy situation where of course the circumstances of this transaction are unique. It's not using the real estate council forms, this isn't-
Stan:
Yeah. It was very personal. Hand drawn between family members contract. It's not your orea random house in a random suburb kind of deal.
Hamish:
Right. So this isn't one of those. So this is kind of what I thought and what we thought when we were looking at, this is black and white, this is a unique contract. And that's something where I think there has been a bit of movement in the law in terms of saying this is a unique contract. It's not just the physical properties of the house that makes something unique that allows you to go and get specific performance, it's also the deal. And I think that's just one of those things, it's the saying is, you know, bad facts make bad law. It's not that the real estate, the regular real estate deals are bad facts making bad law, but they make law that is confined to those facts. And until a case comes up that pushes at the boundary and is just really dissimilar, then all of the case law we're going to look through is going to be about those regular real estate deals, which fall apart all the time, but the circumstance of the transaction and a lot of them, they're not going to be unique whatsoever.
Stan:
Well I think it's time that we find out what happened at the Court of Appeal. I think we've kind of hinted at it pretty aggressively here, but what was the end result of this appeal?
Hamish:
Well, yes. So Craig O'Brien and I went to the Court of Appeal and Craig describes it as a route. So we got the house.
Stan:
We got specific performance.
Hamish:
We got specific performance of the house.
Stan:
Your clients had legal ownership transferred to them.
Hamish:
Exactly. And we got elevated damages and we got everything we ever dreamed for really. I mean we got-
Stan:
Well done. And you got a cost award that was higher than the one at trial. We won't get into that, I think that's a different episode probably.
Hamish:
Yeah, that's maybe a different episode on cost. But yeah, we'd also appealed the cost decision and we got that too.
Stan:
Which requires leave.
Hamish:
It does require leave. So it was a good decision, it was the right decision. You can read through the decision, it's not that long. And as you read through it, you can see why the court of appeal is engaging in the issues and really just pragmatically fixing what were inconsistencies in the trial decision.
Stan:
Yeah, it was, I don't want to dump on the trial judge. It was a confusing case at times and it was a sort of an interesting decision at first instance. And I think the Court of Appeal did a really great job summarizing it in a concise manner and coming up with what I think is a clear decision. I'll give the citation for everybody. It's Gill and Gill 2024 ONCA 877 should be available on any of the legal research databases. So 2024 ONCA 877.
Hamish:
Okay. And with that we're going to move on to shout-outs. So in this section we talk about case news, legal events, and we can shout-out a person thing, news tidbit or event. So I'm going to start first and I'm going to shout-out the Ottawa legal community and the Eastern Ontario legal community. And in particular, Jonathan Collings. And I say this because Jonathan Collings is counsel on the other side of both the trial and the appeal case. And like a lot of Eastern Ontario and Ottawa lawyers, there is the sense of collegiality. We argue very hard about the facts that matter, the arguments that matter, and the procedural steps where some lawyers and some jurisdictions really dig in their heels and make the job difficult. We can work past those procedural issues and get straight to the actual merits of the case. And as an opposing counsel, he's a pleasure to work against.
Stan:
Well it sounds like you had a home run of an interesting file, interesting legal issue. You went to trial on it, you had an excellent opposing counsel who, fought hard but respectfully and made that enjoyable. And then, ultimately, victory at the court of appeal, which can feel really wonderful. You know, you're setting some law there sometimes and that's an awesome experience.
Hamish:
Yeah, yeah. This is great. So Stan, who are you shouting out a lot?
Stan:
I'm going to shout out my legal assistant, Emily Castle and my law clerk Sonia Chase, they keep everything moving along for me. And Emily just took a little holiday down to Florida for a week and everything kind of grinds through a halt when that happens. There's nothing like knowing what you're missing out on to realize how valuable it is. So great work, obviously.
Hamish:
Well, I'm just glad to see that with your assistant gone, you've managed to really focus on the priorities of your legal practice, such as Civil Banter podcast.
Stan:
That's right, absolutely.
Hamish:
Okay, and with that we'll say our goodbyes. Um, where can you find our team? We're at nelliganlaw.ca. My LinkedIn handle is H. Mills-McEwan, which is on LinkedIn. I post that more regularly than last time. We joined you on this podcast. Stan, have you made any improvements on LinkedIn?
Stan:
I have not. No, I've been delinquent. I'll get better. I'm hearing it. So, I'm somewhere on LinkedIn, I'm sure. Just Google my name and I'll pop up. I'll for episode three, I might find out what my actual LinkedIn handle is.
Hamish:
Okay. And we do have an email address.
Stan:
It's civilbanter@nelliganlaw.ca. So email us with your questions, feedback, suggestions, and uh, five star reviews.
Hamish:
Okay.
Stan:
Thank you.