Nahal v. Gottlieb, 2012 ABQB 209

Court of Queen ’ s Bench of Alberta Citation: Nahal v. Gottlieb, 2012 ABQB 209 Date: 20120328 Docket: 1101 16167 Registry: Calgary Between: Satpal Nahal Plaintiff - and - David Gottlieb, David Gottlieb Professional Corp. and Swiss Investments Inc. Defendants Corrected judgment: A corrigendum was issued on April 5, 2012; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Memorandum of Decision of J.B.

Hanebury, Master in Chambers _______________________________________________________ [ 1 ] This application raises the issue of whether a separate action can be brought alleging a manipulation of the foreclosure sale process when the original order selling the property has not been appealed on that basis.

FACTS [2] Mr. Nahal and the defendant lenders have had business dealings since 2005. [3] In 2008, Mr. Nahal granted a 1.925 million dollar blanket mortgage to David M. Gottlieb Prof. Corp., Swiss Investments Inc.and Laura Germiquet over properties owned by him or companies that he controlled. He required the funds as one property was inforeclosure and he wished to pay out the foreclosing first mortgagee. [4] He states that he was told that he had to use Mr. Gottlieb as his lawyer or the mortgage would not proceed.

As a result hewas unrepresented by another lawyer and his execution of the mortgage was witnessed by Mr. Gottlieb, who through his professionalcorporation was one of the mortgagees. Mr. Nahal says that Mr. Gottlieb acted both for him and the lenders. He states that Mr. Gottliebreviewed the mortgage with him, but failed to provide him with a conflict letter or disclosure statement. To support his statement that Mr.Gottlieb acted for him on the transaction in issue, Mr. Nahal points to a letter from Mr. Gottlieb and a statement indicating that he paidlegal fees for the transaction. Mr. Nahal states that Mr.

Gottlieb had acted for him in the past. [5] Mr. Gottlieb denies acting for Mr. Nahal and points out that the mortgage itself, in paragraph 32, provides that Mr. Gottliebwas not acting for Mr. Nahal. [6] Mr. Nahal states that since the granting of the mortgage the lenders have focused on depriving him of his properties at lessthan fair market value. As well, he states, they have acted to discourage potential investors and purchasers to ensure that they controlwho purchases the properties. [7] Mr.

Nahal points as an example to one specific property, Plan 9813204, Lot 3, “the 40 acre parcel.” He states that Mr.Gottlieb approached him and offered to purchase the property in the summer of 2010, for 3.2 million dollars. When Mr. Nahal refusedthe offer, Mr. Gottlieb stated that he would “get the Property from me in another way.” [8] The blanket mortgage went into foreclosure and the properties were sold. Mr. Nahal confirmed in cross-examination that hisconcern is really about one property, the 40 acre parcel. It was listed for sale in the foreclosure action.

The lenders had an appraisal for1.445 million dollars. Mr. Nahal, through his counsel, argued for a higher listing price. The property was listed in June, 2010, for 1.9million dollars. [9] As the lenders could not clear prior encumbrances at that price, they started foreclosure proceedings on a prior mortgage onthat property held by two of them, David M.

Gottlieb Professional Corporation and Swiss Investments Inc., so that any ultimate salecould occur in that foreclosure action and title could be cleared. [10] On September 23, 2010, the lenders made an application to accept the highest of the four offers that had been received on the40 acre parcel. On that date Mr. Nahal filed an appraisal for the parcel that gave the lands a value of 3.9 million dollars. The Courtdirected a closed tender process, at which time Mr.

Nahal’s counsel indicated that they may not subsequently object to a sale proceeding. [11] Only two bids were filed and the matter came before me for consideration. One bid was for 2.3 million dollars and the otherwas for 2.350 million dollars. The lower bid was in the name of Donald Cameron and the lenders and the subsequent encumbrancer ontitle supported it on the basis that it had a larger deposit. They also argued that the higher bid was by someone related to Mr. Nahal andtherefore was not a bona fide offer. I discounted that argument as it was not supported by evidence.

I reserved my decision and ultimatelydirected that the lower bid be accepted and gave reasons for its acceptance. [12] That decision was appealed and Jeffrey J. held that the transfer was final and could not be overturned: David M. GottliebProfessional Corp. v. Nahal, 2011 ABQB 355, citing Drisdelle v. Able Holdings Ltd., (1981), 1981 ABCA 4 , 31 A.R. 1

(C.A.), and Morguard Mortgage Investments Ltd. v. Faro Development Corp., (AB CA), [1975] 1 W.W.R. 737(Alta. S. C. A. D.). That decision was appealed and upheld: 2012 ABCA 88. [13] The property was transferred into the name of 1275686 Alberta Ltd., apparently the nominee named by Mr. Campbell, thesuccessful offeror. The shareholders of that company are Don and Sherry Campbell. However Mr. Nahal eventually did some sleuthingand discovered that the property is now listed for sale for 4.250 million dollars with Mr. Gottlieb’s daughter, Kaitlyn Gottlieb, and Mr.Gottlieb and Mr.

Germiquet, the principal of Swiss Investments Inc., each have a one third interest in the property through theircompanies. [14] Mr. Germiquet and Mr. Gottlieb acknowledge that Mr. Campbell was known to them prior to his offer and Mr Germiquetacknowledged that he was “enticed” to put in an offer. Apparently Mr. Gottlieb and Mr. Germiquet did not have the cash to put an offerin themselves but told him that they hoped to put funds in once monies were received from the sale of another of Mr.

Nahal’s properties.They ultimately provided some funds used for the cash to close and approximately two weeks later paid the balance to receive theirinterests. [15] In cross-examination Mr. Germiquet justified this behaviour by saying that he wanted to get the highest price for the property. APPLICATION AND STATEMENT OF CLAIM [16] The defendants seek to dismiss the Statement of Claim filed by Mr. Nahal and ask that the certificates of lis pendens registeredagainst the titles to the properties he or his company formerly owned be discharged. [17] The Statement of Claim was filed in November, 2011.

It makes a number of allegations, and, essentially, raises five issues: (

a) that Mr. Gottlieb, as Mr. Nahal’s lawyer, owed him a fiduciary duty and a duty of care to ensure Mr. Nahal’s best interests werebeing served and that he understood the terms of the mortgage and Mr. Gottlieb breached those duties by acting in his own interests andthose of the lenders; (

b) that it was a term of the mortgage that Mr. Nahal use Mr. Gottlieb as his lawyer and he was unable to have an independent lawyer; (

c) that at the time of the granting of the mortgage, the defendants owed a duty to explain the blanket mortgage, to allow Mr. Nahal toobtain independent counsel, and to set out the true nature of the loan, and failed to do so; (

d) that the defendant mortgagees foreclosed aggressively and manipulated the court system to obtain the properties at prices far belowtheir actual market value; and (

e) that the defendant mortgagees used straw buyers to purchase the properties at less than fair market value. [18] In his evidence, cross-examination and argument, Mr. Nahal’s claims were essentially reduced to two: that Mr. Gottlieb actedfor him when the blanket mortgage was executed and registered and failed to protect his interests; and, Mr. Gottlieb, his professionalcorporation, and Swiss Investments Ltd. misled the court and indirectly purchased the 40 acre parcel for less than its true worth. [19] The defendants respond that these claims cannot proceed as Mr.

Nahal is barred in law from proceeding with this action. Theclaims are either res judicata or a collateral attack on the orders granted in the foreclosure actions.

ANALYSIS [20] The test for

summary judgment or, in this case,

summary dismissal, is not in dispute. There must be no genuine issue for trial: 732311 Alberta Ltd. v. Paradise Bay Spa & Tub Warehouse Inc., (2003) 2003 ABCA 362 , 21 Alta. L.R. (4th) 17 (Alta. C.A.);Lamenman v. Canada (Attorney General), 2006 ABCA 302 (C.A.). This test has survived the amendment of the rules: ManufacturersLife Insurance Co. v. Executive Centre at Manulife Place Inc., 2011 ABQB 189 at para. 11; BA Capital Inc. v. Stream Oil & Gas Ltd.,2011 ABQB 91 (Master) at paras. 3-4 [21] For the purposes of a

summary judgment or dismissal application, the relevant facts as set out by the respondent, in this caseMr. Nahal, are assumed to be true where they conflict with the facts set out by the applicants. The reason for this principle isstraightforward: if there is a conflict in the facts, it is to be referred to a judge for the purposes of determining credibility or making thenecessary inferences from the facts. The court cannot determine credibility on a

summary judgment application: Royal Bank of Canadav. McLean (1997), (AB KB), 211 A.R. 297(Q.B.) at paras. 303-304. Therefore, where the facts conflict, those of therespondent are accepted, but only for the limited purpose of the application. [22] The question therefore is whether Mr. Nahal’s claims should be dismissed as res judicata or a collateral attack on a judgmentof the court or, is there a genuine issue to go to trial?

In order to consider this issue the principles underpinning res judicata and collateralattack require delineation. [23] Both res judicata and the doctrine of collateral attack are in place to protect the administration of justice. The courtsemphasize the importance of the finality of litigation and the right of an individual to be protected from more than one action on the samematter: Cliffs Over Maple Bay Investments Ltd. (Re), 2011 BCCA 180, para. 25. Res Judicata [24] The doctrine of res judicata is described in Ernst and Young Inc. v. Central Guaranty Trust Co., 2006 ABCA 337.

Itencompasses both issue estoppel and cause of action estoppel. The former stops the litigation of an issue already decided in a prior courtproceeding while the latter stops the litigation of a cause of action which was determined in a previous court proceeding. [25] The Court in that case described the prerequisites for issue estoppel. [26] Firstly, the issue must be the same as that determined in the prior proceeding. Issue estoppel extends to the material facts andthe conclusions that were decided, necessarily, not explicitly, in the prior proceeding.

In other words, the question for which estoppel issought must have been fundamental to the earlier decision. [27] Secondly, the prior proceeding must have been final. This requirement is met when the prior decision determined thequestion between the parties conclusively. The court that made the decision must have no further jurisdiction to rehear it or to vary orrescind it. [28] Finally the parties in the original hearing and in the subsequent hearing must be the same, or their privies, such as a closely-held corporation. [29] The same Court noted in Calgary (City) v.

Alberta (Human Rights and Citizenship Commission), 2011 ABCA 65, that oncethese three prerequisites are met, the principle is engaged. However, the court has a residual discretion whether to apply the doctrine in aspecific case. Citing Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, the court noted that the discretion not to apply the doctrineis wider when the original decision is one of an administrative tribunal. When the prior decision is a decision of the courts, the discretionis narrower.

[30] This discretion is exercised when there are special circumstances. The Alberta Court of Appeal listed the types ofcircumstances that came within the exception in Ernst and Young (supra). They include allegations that the decision in the firstproceeding was obtained by fraud, and the discovery of new evidence which could not been discovered by reasonable diligence in thefirst proceeding. Special circumstances, it noted, do not exist when a litigant knows of an issue in the first proceeding and does not raiseit. [31] Cause of action estoppel is described in Bank of Montreal v.

Cochrane, 2011 ABQB 259, para. 40. The criteria to beconsidered are set out in Cliffs Over Maple Bay (supra), at para. 28, citing Angle v. Canada (Minister of National Revenue), (SCC), [1975] 2 S.C.R. 248, Bjarnarson v. Manitoba, (1987) (MB KB), 38 D.L.R. (4th) 32 (Man. Q.B.), aff’d (1987) (MB CA), 45 D.L.R. (4th) 766 (Man. C.A.), and Grandview v.

Doering (SCC), [1976] 2S.C.R. 621: there must be a final decision of the court in the prior action; there must be mutuality of the parties; the cause of action andthe prior cause of action must not be separate and distinct; and, the basis of the prior and the existing cause of action was argued in theprior action or could have been argued if the parties had exercised reasonable diligence.

Collateral Attack [32] The doctrine of collateral attack ensures that an order pronounced by one court is not questioned in a subsequent proceedingunless that subsequent proceeding is for that express purpose, that is, an appeal of the original order. It is usually applied in a civil lawcontext. It is applied in a more general way to bar the second proceeding and it does not include the “more principled analysis” that isapplied in relation to issue estoppel.

However, collateral attack is often applied concurrently with issue estoppel or cause of actionestoppel: The Doctrine of Res Judicata in Canada, (3rd ed.) Donald J. Lange: (Lexis Nexis, Toronto) p. 467. [33] The principles behind the doctrine of collateral attack have been outlined in a number of decisions: 420093 B.C. Ltd. v. Bankof Montreal, (AB CA), [1995] A.J. No. 862 (Alta. C.A.), and Hoque v. Montreal Trust Co. of Canada, 1997 NSCA153 , [1997] N.S.J. No. 430 (N.S.C.A.); and have been discussed by the Supreme Court of Canada: Garland v. Consumers’ GasCo., 2004 SCC 25, and Wilson v.

The Queen, [1982] 2 S.C.R. 594. [34] The most recent Alberta case considering collateral attack is Royal Bank of Canada v. Hirsche Herefords, 2012 ABQB 32,para. 21, where the Court quoted from Garland v. Consumers’ Gas Co., at paragraph 71 and Wilson v.

The Queen, at p 599: The doctrine of collateral attack prevents a party from undermining previous orders issued by a court or administrativetribunal....Generally, it is invoked where the party is attempting to challenge the validity of a binding order in the wrong forum, in thesense that the validity of the order comes into question in separate proceedings when that party has not used the direct attack proceduresthat were open to it (ie., appeal or judicial review). In Wilson v.

The Queen...this Court described the rule against collateral attack asfollows: It has long been a fundamental rule that a court order, made by a court having jurisdiction to make it, stands and is binding andconclusive unless it is set aside on appeal or lawfully quashed. It is also well settled in the authorities that such an order may not beattacked collaterally — and a collateral attack may be described as an attack made in proceedings other than those whose specific objectis the reversal, variation, or nullification of the order or judgment. [35] In R. v.

Litchfield, (SCC), [1993] 4 S.C.R. 333, Iacobbuci J. explained that the rationale behind the rule ispowerful, as it seeks to maintain the rule of law and to preserve the reputation of the administration of justice. [36] This doctrine will not be applied when the court who granted the original order had no jurisdiction to make it. As with theexception to res judicata, the courts have also considered whether the doctrine should be applied where a court decision has beenobtained as a result of fraud, or there is new evidence.

In Wilson the Supreme Court of Canada found that an application to set aside acourt order on such grounds could only be brought where appeals or other means of directly attacking the judgment or order have beenunavailing and the only recourse left is an action for review, where grounds exist. [37] With that overview of the relevant principles, I turn to the facts in this case.

Claim against Mr. Gottlieb as Mr. Nahal’s Lawyer [38] Mr. Nahal’s first claim is against his alleged lawyer, Mr. Gottlieb, for the breach of his duties to Mr. Nahal, as his client. Heargues that Mr. Gottlieb, as the lender, was in a conflict of interest and allegedly did not explain to him that he was signing a blanketmortgage. Mr. Nahal confirmed on cross-examination that this claim relates to the execution and registration of the blanket mortgage. [39] The courts have held that a party is under an obligation to bring forward its whole case. Litigation cannot occur on a piece-meal basis.

This includes defences and claims of set-off or counterclaims, which should be brought forward at the time of the originalclaim: 420093 B.C. Ltd. (supra), para. 35-39; Re Abacus Cities Ltd. (No.2), (1987) 1987 ABCA 165 , 55 Alta. L.R. (2d) 123(C.A.); Malik v. Principal Savings & Trust Co., [1985] A.J. No. 921, (ABQB), para. 26; Anko Investments Ltd. v. C.I.B.C. MortgageInvestment Corp. of Alberta, [1987] A.J. No. 403 (Master); and Hoque (supra), and cases cited therein. [40] Situations similar to the facts before this court are found in this case law.

For example, in Malik the mortgagor started a newaction after the foreclosure was completed, alleging that the mortgagee had breached its fiduciary duty to the mortgagor, prior to themortgage being signed. The Alberta Court of Queen’s Bench found that the issues raised in that action were bound up with the issues inthe foreclosure and could not proceed due to res judicata. Mr.

Malik had not defended the foreclosure action but had participated in itfully. [41] In Hoque the Nova Scotia Court of Appeal refused to allow a mortgagor to raise anything in an action against the Bank thatwas essential to the earlier foreclosure judgment.

In deciding which parts of the subsequent claim were barred for a failure to raise themin the earlier action the court considered: whether the new allegations were inconsistent with determinations made in the prior case;whether the new matters related to the same or a distinct cause of action; whether there was an attempt to rely on new facts which couldhave been discovered with reasonable diligence in the earlier case; whether the action was an attempt to impose a different legal structureon the same facts; and, whether it was an abuse of process. [42] In the course of the foreclosure action on the blanket mortgage, the mortgage granted by Mr.

Nahal to the mortgagees, whichincluded Mr. Gottlieb’s professional corporation, was held to be a valid and enforceable mortgage. That determination was fundamentalto the foreclosure action. Without it, the action could not have proceeded. [43] If Mr. Nahal signed the mortgage due to Mr. Gottlieb’s breach of his duties to him, or his negligence or misrepresentations,those allegations should have been found in either a statement of defence or in a counterclaim in the foreclosure action. They were notand Mr. Nahal was noted in default. Mr.

Nahal actively participated, through counsel, in the many subsequent court applications on thatmortgage that ultimately resulted in the loss of his properties. [44] Therefore, for this part of Mr.

Nahal’s claim, the three criteria for issue estoppel are met: the question at issue, the validity ofthe mortgage, was fundamental to the foreclosure action; the foreclosure action is final; and, the parties to this action and the prior actionare the same or their privies. [45] Even if it were argued that issue estoppel cannot apply because Laura Germiquet, who was a mortgagee of the blanketmortgage but is not named in this action, is not a privy to Swiss Investments Inc., this claim in this action is a collateral attack on theforeclosure action. [46] In

summary, Mr. Nahal is seeking to re-litigate a matter fundamental to the action between the parties, the validity of themortgage. He could have questioned the mortgage during the original litigation and did not. He cannot now question its validity byraising these allegations in a separate action against Mr. Gottlieb. It is too late. [47] This part of Mr. Nahal’s action is barred on the basis of res judicata and issue estoppel. This is not the situation found inBank of Monteral v. Cochrane 2011 ABQB 259 where the Bank launched a separate action alleging fraud against various lawyers whohad not been parties to the original foreclosure actions.

[48] Mr. Gottlieb points out that even if Mr. Nahal has a cause of action against him, Mr. Nahal’s claim is statute-barred by theLimitations of Actions Act, R.S.A. 2000, c. L-12. [49] This defence was pled in Mr. Gottlieb’s Statement of Defence and the date of the alleged breach by Mr. Gottlieb wasconfirmed by Mr. Nahal in cross-examination as the date of the execution and registration of the mortgage. Mr. Nahal’s claim was filedmore than two years thereafter. Mr. Nahal put no evidence before the court that would have extended this limitation period. Therefore,even if the claim against Mr.

Gottlieb is not a collateral attack on the foreclosure order, on the evidence before the Court, the limitationfor this aspect of Mr. Nahal’s claim has expired. Sales at Less than Fair Market Value [50] The second claim raised by Mr Nahal is for damages relating to the sale of his properties at less than fair market value. Thecourt is under an obligation to maximize the proceeds of the sale, while balancing the interests of the parties: Calvert Home MortgageInvestment Corp. v. Ro/Lin Holdings Ltd., 2007 ABCA 259. It follows that an order for sale is granted on the basis that this obligationhas been met.

A claim that the properties were not sold for a fair price cannot be brought in a separate action. To do so is to attack theoriginal order. The proper way to question the sale is by an appeal of the original order: 420093 B.C. Ltd. (supra); Hoque v. MontrealTrust (supra), para. 50, 51. No evidence, other than suspicion, was put forward to support these claims, other than for the forty acreparcel which will be dealt with below. Suspicion is insufficient and those claims cannot be sustained, a fact that appears to have beenacknowledged by Mr.

Nahal’s counsel in argument as his focus was on the sale of the 40 acre parcel. [51] The forty acre parcel was sold by Court order, which order was upheld upon appeal. The sale was not pursuant to theforeclosure under the blanket mortgage, but in the foreclosure under a prior mortgage on title, granted by Mr. Nahal to David M. GottliebProfessional Corporation and Swiss Investments Inc. [52] This part of Mr. Nahal’s claim also meets the three requirements of issue estoppel: Mr.

Nahal seeks to attack a fundamentalissue determined in the foreclosure action, the price at which the property was sold; the decision of the Court is final; and, the parties arethe same or their privies. [53] What remains to be determined is whether the Court should apply the doctrine of issue estoppel in the facts of this case. [54] Various comments have been made by the court on when it should refuse to apply the doctrine.

As earlier noted, this refusalhas traditionally occurred in the face of special circumstances, such as new information which could not reasonably have beendetermined at the time, or the development of new law, or when fraud is practised upon the court. The court recognizes that one purposeof res judicata is justice between the parties and in some circumstances the inflexible application of the doctrine could lead to theopposite result: Minott v. O’Shanter Development Co., (ON CA), [1999] O.J. No. 5 (Ont. C.A.), para. 51; WavelVentures Corp. v. Constantini, [1996] A.J. No. 1093 (Alta.

C.A.), para. 39-41. [55] In Danyluk (supra), a case where the prior decision was of a tribunal, rather than a court, Binnie J. of the Supreme Court ofCanada held that once the prerequisites of issue estoppel have been met, the court must determine, as a matter of discretion, whether thedoctrine should be applied.

At para. 33 he noted that the rules should not be mechanically applied as the foundation underpinning thedoctrine is the balancing of the public interest in the finality of litigation with the public interest in seeing justice done in each case. [56] It is clear from the case law that the exception should only be applied when it is seen as important to the overalladministration of justice. [57] Mr. Nahal has not alleged fraud in the statement of claim. However, he has alleged new facts that he argues could not havereasonably been discovered at the time. These facts, he argues, are relevant. [58] I agree.

In this case, the involvement of the foreclosing lenders in Mr. Cameron’s offer to purchase should have been

disclosed to the Court. When the Court considers an offer to purchase and ascertains if it should be accepted, it considers many factors, including the length of time the property has been marketed, the values found in the appraisals on file, and the number and amount of bona fide third party offers that have been made as a result of the marketing of the property. [ 59 ] In this case the offer accepted was not a bona fide independent offer, but an offer that resulted from the “enticement” of the offeror by the lenders who appear to have colluded to bring this offer forward.

Furthermore, the lenders then had the astonishing temerity to argue that their lower offer should be accepted as the higher offer, they suspected, was from someone put forward by Mr. Nahal. [1] [ 60 ] I accept the statement of counsel for the lenders that she had no knowledge of her clients’ involvement in the offer that the court accepted. However, I note that one of the lenders, Mr. Gottlieb, was a lawyer and appears to have permitted his counsel to mislead the Court. [ 61 ] An appeal of the order for sale on that basis is not realistic at this stage of the proceedings.

In addition to being long out of time, the completion of the sale, the distribution of the sale proceeds and the involvement of Mr. Cameron, who was not named in this action, mitigate against this approach. It is too late to wind back the clock. In my view, justice requires that Mr. Nahal be allowed to proceed with his claim in damages against Mr. Gottlieb, his professional corporation and Swiss Investments Inc. in relation to the sale of the 40 acre parcel. CONCLUSION [ 62 ] The application for

summary dismissal on the grounds of res judicata is granted other than the claim for damages relating to the sale of the 40 acre parcel pursuant to the mortgage granted by Mr Nahal to the defendants or their privies. Justice requires that the court exercise its jurisdiction to permit that specific claim to continue. It follows that the certificates of lis pendens are to be discharged, as the only remaining claim is for damages.

Amendments to the Statement of Claim will be required and, if they cannot be consented to, an application is to be brought within 90 days of this decision. [ 63 ] If the parties cannot agree on costs, they may be spoken to within 30 days of the release of this decision. Heard on the 06 th day of March, 2012. Dated at the City of Calgary, Alberta this 28 th day of March, 2012. J.B. Hanebury M.C.C.Q.B.A. Appearances:

Judy D. Burke Demiantschuk Lequier Burke & Hoffinger LLP for the Applicants / Defendants Byron W. Nelson McGuigan Nelson LLP for the Respondent / Plaintiff _______________________________________________________ Corrigendum of the Memorandum of Decision of J.B. Hanebury, Master in Chambers _______________________________________________________ Mr. Campbell was inadvertently referred to as Mr. Cameron. Therefore, the following replaces paragraph ’ s 58 and 61: [58] I agree. In this case, the involvement of the foreclosing lenders in Mr. Campbell ’ s offer to purchase should have been disclosed to the Court.

When the Court considers an offer to purchase and ascertains if it should be accepted, it considers many factors, including the length of time the property has been marketed, the values found in the appraisals on file, and the number and amount of bona fide third party offers that have been made as a result of the marketing of the property. [61] An appeal of the order for sale on that basis is not realistic at this stage of the proceedings. In addition to being long out of time, the completion of the sale, the distribution of the sale proceeds and the involvement of Mr.

Cameron, who was not named in this action, mitigate against this approach. It is too late to wind back the clock. In my view, justice requires that Mr. Nahal be allowed to proceed with his claim in damages against Mr. Gottlieb, his professional corporation and Swiss Investments Inc. in relation to the sale of the 40 acre parcel. [1] On cross-examination Mr. Nahal acknowledged knowing the offeror in a general way as they are from the same community. He did not acknowledge any involvement in the offer.