In Farid v. Brunt, 2025 ONSC 2117, Justice Fraser delivered a comprehensive decision that serves as both a reminder of the high evidentiary bar in solicitor negligence cases and a cautionary tale about the limits of damages when a real estate transaction fails to close. For transactional real estate lawyers, this case offers valuable insights into what can go wrong when closing day arrives, and what your clients can (and cannot) recover if things fall apart.
This was a rather odd case with a self-represented plaintiff making claims for damages that the judge found would have been largely untenable even if solicitor negligence had been established.
The Transaction That Never Was
The Farids found their dream home at 26 Garrard Road in Whitby, a property that wasn’t even for sale. After pursuing the owner and ultimately suing her, they reached a settlement in September 2013 that included an Agreement of Purchase and Sale (APS) for $281,000. The transaction was to close on September 27, 2013.
The Farids retained Gerald Brunt, an experienced real estate solicitor, to handle the closing. The agreement acknowledged that the house had no working furnace, a detail that would prove crucial. When the mortgage lender learned about the non-functioning furnace on the eve of closing, they refused to advance funds without an inspection. The transaction failed to close by the 6:00 p.m. deadline, and the seller refused to extend.
The Farids then sued Brunt, claiming $4.8 million in damages for negligence, breach of fiduciary duty, and breach of statutory obligations. After trial, Justice Fraser dismissed the action entirely.
Why the Claim Failed: A Credibility Collapse
The heart of this case turned on a fundamental question: What actually happened on closing day? The Farids claimed that Brunt promised to “take care of” obtaining property access for the furnace inspection and never advised them to bring their own funds to close. Brunt testified that he repeatedly urged the Farids to bring in their money to close the deal, but they instructed him to wait for financing and later to request an extension.
Justice Fraser found the Farids’ version of events simply not credible. The plaintiff’s testimony was undermined by:
- Prior inconsistent statements under oath in the earlier litigation against the vendor.
- Documentary evidence that contradicted key assertions (including emails and correspondence showing the plaintiff knew about the furnace issue despite claiming otherwise).
- Lack of corroboration from other witnesses, including the mortgage broker.
- Implausibility of the claimed narrative (why would an experienced real estate lawyer take responsibility for resolving an unknown broker condition rather than advising clients to bring funds?).
The court found that Mr. Farid knew the lender had tied funding to the furnace issue but failed to disclose this to his lawyer. Justice Fraser also found that the Farids had their own funds to close the transaction. However, rather than going to the bank and putting their lawyer in funds, the Farids went home, and Mr. Farid took a nap.
The Expert Evidence Problem
The Farids retained Robert Aaron, a well-qualified real estate lawyer and Law Society certified specialist, to provide expert opinion on the standard of care. However, Justice Fraser refused to give his opinion any weight due to lack of impartiality.
The key problem? When asked whether incorrect facts might change his opinion, Aaron answered “no”—stating that Brunt had made “so many mistakes” that even if some facts were disputed, it wouldn’t change his conclusion of negligence. He also made inflammatory statements suggesting opposing counsel had “concocted” evidence.
This is a stark reminder for litigators: expert witnesses must be (and must appear to be) independent, objective, and willing to adjust opinions based on facts. As Justice Fraser noted, citing White Burgess Langille Inman v. Abbott and Haliburton Co., an expert’s “primary obligation to the Court” requires “fair, objective and non-partisan evidence.”
The Damages Discussion: Even If Liability Existed
Perhaps most instructive for transactional lawyers is Justice Fraser’s analysis of what damages would have been recoverable had negligence been established. The Farids sought to recover:
- The price differential on the replacement home they eventually purchased
- Interest rate differentials
- Lost rental income over nine years
- Transportation costs for their children to school
- Loss of business income
- Damages for emotional distress
Justice Fraser firmly rejected this approach. Even if the plaintiff had been successful in proving negligence, the judge would have limited recoverable damages to $1,400 consisting of: (i) the lost deposit of $5,000 minus $4,000 the vendor offered to return when closing failed; and (ii) the lawyer’s disbursements amount to $400.
The court held that the proper measure of damages would restore clients to the position they would have been in with proper representation, not compensate them for “a loss of lifestyle” connected to a specific property. The Farids could have used their funds to purchase another property immediately. Their decision to pursue further litigation for two years, during which time property values and interest rates increased, was their own choice.
This is consistent with the principles from Toronto Industrial Leaseholds Limited v. Posesorski (TILCO): damages must be reasonably foreseeable and directly linked to the breach. The “dream house” premium and years of alleged consequential losses were simply too remote.
Practical Takeaways
For transactional lawyers advising purchaser clients:
- Document everything on closing day: The lack of proper file notes created ambiguity, though the court ultimately accepted Brunt’s version based on other evidence.
- Late mortgage instructions are dangerous: When financing instructions arrive on closing day, immediately advise clients to have backup funds ready.
- “As is” conditions warrant special attention: When a property is sold with known defects (like a non-functioning furnace), flag potential financing obstacles early.
- Manage client expectations about extensions: In litigation settlements with tight deadlines, extensions may be impossible to obtain.
- Credibility is everything: Inconsistencies between trial testimony and prior sworn statements can be fatal to a claim.
The Farid decision ultimately reinforces that while real estate lawyers owe their clients a duty of competent representation, they cannot be held responsible for transaction failures caused by clients’ own decisions or for speculative lifestyle damages when a preferred property becomes unavailable.
It also serves as a reminder that solicitor negligence claims require clear evidence of breach, causation, and reasonable damages, and that credibility matters immensely when the central facts of a case are in dispute.
