Township Officials Go Soft with Mushy Memories
There are quite a few important elements in the Drolet v. Re/Max Riverview case in 2016.
Drolet purchased what he thought was a “buildable lot”, but when he actually submitted an application for a building permit, this was not the case.
The Township bought the property from Drolet, but he still sued his own agent for other losses which he had incurred.
The Township didn’t just buy this property for no reason at all, the Township thought that it would be at risk if there were a lawsuit.
Inquiries at the Township BEFORE the Purchase
Set out below are some excerpts from the Trail Judge’s Reasons for Judgment:
10. Holtzberg (the Buyer’s real estate agent) responded by email advising Thompson (Buyer’s wife) that La Rue Mills Road had a dump on it “years and years ago”, which could not be built on for another 5 years, but the Township had advised her that the Property was safe to build on.
16. Having lived in the area, and recalling that there had been a dump in the vicinity of the Property, Holtzberg testified that she called the Township, and spoke to an unknown male who advised her that the Property was zoned residential and could be built upon.
18. At Tab 15 of Exhibit 1 (“Joint Book of Documents”), in a letter dated May 29, 2013 from the Plaintiff’s solicitor to the Township after closing of the purchase of the Property, it states at paragraphs 4 and 5:
“4. Mr. Drolet’s wife, Jessica Thompson, investigated the representation (i.e. that the Property was suitable for building) prior to closing by attending at the Township’s offices and speaking to Amanda Werner Mackeler, Planning and Development Assistant, and Marcel Lavigne, the Chief Building Official.
Both assured her that, after the purchase of the lot, she and her husband would be able to obtain a building permit.” (Emphasis added)
“5. So Mr. Drolet when ahead with the purchase…”
20. After the closing of the purchase of the Property by the Plaintiff, the Plaintiff obtained an entrance permit for the Property, and an entrance off of La Rue Mills Road was constructed.
21. It was only after the Plaintiff submitted a building permit application that the Township advised the Plaintiff that the Township could not issue a building permit for the Property due to its location within the buffer zone of a waste management site.
22. The two Township staff to whom Thompson claimed to have spoken prior to the purchase of the Property, Amanda Werner Mackeler and Marcel Lavigne, both testified at trial that they recognized Thompson, but could not recall any specific conversations with her, and could not recall ever assuring her that a building permit could be issued in respect of the Property.
23. I take note of the fact, however, that the Township ultimately settled a potential claim by the Plaintiff against the Township by purchasing the Property for $25,000, and obtaining as a condition of the settlement a full and final release of the Township and Mackeler and Lavigne, from any claims relating to the Plaintiff’s purchase of the Property.
24. I accept the evidence of Thompson and Holtzberg that both spoke with Township staff prior to closing and received some form of assurance that the Property was zoned residential and eligible for a building permit.
I find that Thompson’s recollection bolsters the evidence of Holtzberg on this issue, since both appear to have received similar and consistent assurances from Township staff.
40. Both Thompson and the Plaintiff testified that they had no reason to believe that Holtzman had been given any different information by the Township as to the suitability of the Property as a building lot than they themselves were given by Township staff.”
Inquiries at the Township AFTER the Purchase
From the Judgment:
“12. Subsequent to the closing of the Plaintiff’s purchase, and after spending approximately $18,000 in preparation for the construction of his new home, he was advised by the Township that he could not obtain a building permit for the Property because it was located within a “no build” buffer which extended 500 meters around a former dump/waste site.”
The Recollection of the Township Officials
Let’s look at paragraph 22 again:
“22. The two Township staff to whom Thompson claimed to have spoken prior to the purchase of the Property,
Amanda Werner Mackeler and Marcel Lavigne,
both testified at trial that they recognized Thompson, but
could not recall any specific conversations with her, and
could not recall ever assuring her that a building permit could be issued in respect of the Property."
Very “mushy memories” here from the people at the Township. Obviously, this was not accepted by senior officials at the Township since the purchase of the Drolet property was authorized.
It is important to note that in any lawsuit, witnesses will go into “self-protection mode” using some kind of self-preseving tactic. That might include telling a lie, making things up, or simply engaging in an “over-exagerration” as Ryan Lochte would put it, or it might just be a completely “faded memory” with absolutely no recollection of anything relevant.
In any event, testimony and evidence from a party who is “adverse in interest” in a lawsuit is not going to be helpful.
Remember: “documents don’t lie; people do”!
Try to document as much information as possible “in writing”, by letter, or even by e-mail. Confirm the information that you received, even if the person who provided you with the information is not willing to do so.
In this case, Drolet, his wife and his real estate agent all said the same thing, and that view was accepted by the Township.
So, be careful and document everything!
Brian Madigan LL.B., Broker