Following on my blog on scheduling urgent hearings for commercial lease matters, this blog is on the scheduling of an urgent hearing involving a real estate closing. In Ali v. Tariq, 2020 ONSC 1695, the applicant had sold her property and discovered that a writ of execution had been filed against her property during routine searches performed for the closing. Apparently, her former father-in-law had obtained default judgment against her in small claims court and obtained a writ of execution at around the time of her divorce. A writ of execution filed in the county or district in which the property is located will effectively prevent the sale of the property until the judgment is set aside or fully satisfied. After the applicant’s offer to pay the sale proceeds into her lawyer’s trust account was rejected, the applicant sought an urgent hearing before the Ontario Superior Court of Justice under … Read More
On March 15, 2020, the Chief Justice of the Ontario Superior Court of Justice released a Notice to the Profession advising that all scheduled civil hearings were adjourned until further notice. The Notice to the Profession provides a procedure to schedule urgent and time-sensitive motions and applications where immediate and significant financial repercussions may result without a hearing. When motion or application materials are filed, by email to the appropriate courthouse, seeking an urgent hearing, the triage judge will determine whether or not the matter is urgent and should be scheduled for a hearing. There have been a few recent endorsements reported in respect to the scheduling of urgent commercial lease matters. In Oppong v. Desoro Holdings Inc., 2020 ONSC 1697, the applicant sought relief from forfeiture to set aside the landlord’s termination of the lease. Although the application was brought promptly and scheduled to be heard on February 7, 2020, the … Read More
Nick Poon was recently asked to comment on the doctrine of frustration and force majeure clauses in the context of travel refunds during the COVID-19 pandemic. The Huffington Post article is found here: You Can Still Get a Refund for a Flight Cancellation During Coronavirus Pandemic. If you require legal advice and representation in respect to contract termination and cancellation, frustration of contract and force majeure clauses and/or travel and tourism, please contact us for an initial consultation.
Contract Dispute Arbitrator An arbitrator, or an arbitration tribunal, obtains jurisdiction to adjudicate and decide a dispute from an agreement / contract which has been made by the parties to the arbitration. This jurisdiction is not typically provided by legislation, though there are exceptions, such as the arbitration provision deemed by statute to be included in a condominium declaration. Even if there is no arbitration clause in the contract or agreement made by the parties and a dispute arises, then parties to that contract may still agree to have their dispute determined by arbitration. The parties to a contract may prefer to have a dispute determined by arbitration, since it is presumptively a confidential process, it may be faster and less expensive than going to court, or they may wish to participate in the selection of the adjudicator. Common Contractual Issues Arbitrated – Cancellation and Force Majeure Clause One of … Read More
The benefits of a shareholder’s agreement may not be fully considered when parties are intending to go into business together and become joint shareholders in a corporation. Perhaps the mood is optimistic and none of the participants anticipate that things might sour between them down the road. Sometimes corporations are formed absent such an agreement. However, among other benefits, these agreements become particularly useful in managing risk and guiding shareholders through governance issues and disputes that may arise, efficiently so as to minimize disruption to the corporation’s business. Absent a shareholder’s agreement, shareholders in a closely held corporation that cannot see eye-to-eye regarding the operation and path of the corporation, may become stuck in a deadlock where decision-making is effectively stifled due to a stalemate between them. Shareholder’s agreements can serve to provide mechanisms to address deadlock, protect the voice and rights of minority shareholders, provide a road map for … Read More
Nick Poon was recently asked to comment on real estate wire fraud for Yahoo News Canada. Read the Yahoo News Canada article here: ‘The prospects of recovering the money are near zero’: The scam homebuyers need to be aware of. If you have a fraud claim or a real estate dispute, please contact us for an initial consultation.
I had written a previous blog on the “time is of the essence” clause in real estate agreements where it was discussed that the strict adherence to any agreed upon time limits was generally the case. A recent Ontario Court of Appeal case, Fortress Carlyle Peter St. Inc. v. Ricki’s Construction and Painting Inc., serves as a reminder that the “time is of the essence” clause is not absolute and unfettered, and there are preconditions that must be satisfied for a party to rely upon and insist on time being of the essence. The facts are not overly complicated in this case. The respondent was a condominium developer in the process of acquiring properties for a proposed project in downtown Toronto. The developer entered into an Agreement of Purchase and Sale (“APS”) with the vendor to acquire the subject property. Although the APS required the vendor to provide estoppel certificates five days prior … Read More
What Are Latent Defects Or Hidden Damages? Latent defects or Hidden Damage are defects to a property that are not generally discoverable by a prospective purchaser on a reasonable inspection and ordinary vigilance. This can include issues such as, faulty electrical wiring hiding behind the walls or a well-hidden termite or mold problem. Many real estate purchases include a buyer’s right to inspect the property to be purchased. However, these inspections are not exhaustive, and may not reveal latent defects or hidden problems with the property that are not readily visible. Why Do Participants In A Real Estate Transaction Need To Be Concerned About Latent Defects Or Hidden Damage? The problem latent defects or hidden damage can pose for a prospective real estate purchaser is that no amount of vigilance on a visual inspection can uncover such a defect, even one conducted with a home inspector (who’s inspections are typically … Read More
A recent decision of the Ontario Court of Appeal in Jung v. Talon demonstrates at least three ways out of an agreement of purchase and sale with return of deposits. The Ontario Court of Appeal considered appeals in two related cases. The first case, “A.” involved Jung and a numbered company as the purchasers of two commercial condominium units at the Trump International Hotel. The second case, “B.” involved Jung as the purchaser of a residential unit in the same property. The developer in both cases was Talon. In A., Talon delayed closing and ultimately scheduled a later occupancy date. It then provided a revised disclosure statement indicating changes in the condominium building and the commercial units. Jung took the position that these were material changes which entitled the purchaser to rescission under s. 74(7) of the Condominium Act, 1998 and he delivered Notices of Rescission. In response, Talon brought … Read More
In Kaveh v Kaveh Semnani 2019 ONSC 996, the Ontario Superior Court of Justice was asked to determine whether the Maryland Court had jurisdiction and if the judgment could be recognized and enforced in Ontario. The Plaintiff alleged that the Defendant owed him money and the Defendant argued that the Maryland Court did not have proper jurisdiction to hear the case. The Defendants did not defend the case before the Maryland Court and a default judgment was granted in their absence. Subsequently, the Plaintiff sought to have the Maryland judgment recognized in Ontario. Real and substantial connection test The Court applied the ‘real and substantial connection test’ which functions only to test whether the Maryland Court correctly assumed jurisdiction over the matter. The Ontario Court did not consider the facts of the original matter before the Maryland Court, except to consider if the facts would relate to any potential defence … Read More
In 1179 Hunt Club Inc. v. Ottawa Medical Square Inc., 2019 ONCA 700, the purchasers, Ottawa Medical Square Group, entered into an Agreement for Purchase and Sale to purchase condominium units owned by the vendor, 1179 Hunt Club Inc. The value of the commercial condominium units in the Hunt Club Project was $5.6 million dollars. Five days before closing, the purchasers, sent a request to the vendor, requesting an extension of time as the purchasers had not yet finalized their arrangements for financing. Three days before closing, the vendor advised that it would insist on closing, and if the purchaser could not close, it would exercise its rights and remedies under the Agreement for Purchase and Sale. On the date of closing, the vendor learned that the Land Registry Office had made an error in assigning parcel identification numbers. Although this error was ameliorated later that day, this mishap, prevented … Read More
There is continuing intense activity in condominium development in Toronto, the Greater Toronto Area, Hamilton and the Niagara region. Once a condominium corporation is formed by registration of a declaration, it has a lot to do and review, within specific time lines. Getting the essential work done within those specific time lines is crucial to the protection of the rights and remedies of developers, condominium corporations and unit owners. Warranty review time lines occur at one-year, two-year and seven-year marks. If a one-year warranty claim is made, a 120-day period follows for repair or resolution by the builder. If there is no resolution and repairs are incomplete, the condominium corporation has 30 days to request conciliation or assistance with resolution of outstanding issues from the warranty provider. The conciliation process typically involves inspection by a warranty services representative who then renders a decision as to whether the claims are … Read More
The recent case of The Catalyst Capital Group Inc. v VimpelCom Ltd., 2019 ONCA 354 [Catalyst], serves as a reminder that a court’s finding will not be considered obiter simply because there was another sufficient basis for the court’s decision. The Rule of Precedent The rule of precedent requires that courts render decisions that are consistent with the previous decisions of higher courts [Canada (AG) v Bedford, 2012 ONCA 186]. There are several well-known rationales for the rule: it promotes consistency, certainty and practicability in the law, sound judicial administration, and it enhances the legitimacy and acceptability of the common law [David Polowin Real Estate Ltd. v Dominion of Canada General Insurance Co., 2005 ONCA 21093]. Ratio vs Obiter The traditional dichotomy of ratio decidendi (“ratio”) and obiter dicta (“obiter”) is important for the scope of the rule. Only the ratio is binding on a subsequent court. Ratio refers to … Read More
The Ontario Superior Court of Justice decision in Arcon Property Holdings Ltd. v. Nelson, 2019 ONSC 2267, involved a dispute between cottage owners over easement rights related to a 15 foot wide strip of land near Grand Bend. The right-of-way was mainly a paved road used by the cottage owners to access their properties from the road but it also extended past the pavement to the waterfront. The applicant complained that the respondents parked their vehicles on the right-of-way which prevented them from accessing the beach, launching their boat, building ramps and structures to facilitate launching their boat and parking a trailer in their driveway. The applicant sought an order prohibiting the respondents from parking on the right-of-way and interfering with their easement rights. The Court found that the applicant’s easement was merely for “ingress and egress, in, over and upon” the property and did not provide the applicant with the right to access … Read More
Merrifield v Canada (Attorney General), 2019 ONCA 205 is the first case in which a Canadian appellate court has been required to determine whether a common law tort of harassment exists. The Ontario Court of Appeal has decided that it does not. Ontario Superior Court of Justice Relying on four trial-level decisions, the trial judge held that the tort of harassment exists as a cause-of-action in Ontario and that the elements of the tort are: Outrageous conduct; Intention to cause, or reckless disregard for causing, emotional distress; Suffering of severe or extreme emotional distress; and The outrageous conduct is the actual and proximate cause of the emotional distress. Ontario Court of Appeal The Ontario Court of Appeal held that, in sum, the four trial-level decisions assume rather than establish the existence of the tort or its elements. Contrasting the case at bar with Jones v Tsige, which recognized a new … Read More
The Law Times recently published an article by Andrew Ottaway on the United Nations Convention on Contracts for the International Sale of Goods (the “CISG”). The article includes: a discussion of the recent case of Solea International BVBA v. Bassett & Walker International Inc., 2018 ONSC 4261 (CanLII), in which the Ontario Court applied the CISG; a discussion of the near total obscurity of the CISG in Ontario; examples of the notable differences between the CISG and the Ontario common law / Sale of Goods Act. The article can be read in its entirety here. The lawyers at Gilbertson Davis LLP have experience in commercial litigation, including cross-border litigation involving the CISG. Contact us for an initial consultation.
In Colistro v Tbaytel, 2019 ONCA 197, the Ontario Court of Appeal recently dismissed an appeal and cross-appeal in an employment dispute. Appeal: Intentional Infliction of Emotional Suffering In the appeal, the Ontario Court of Appeal confirmed that three elements comprise the tort of intentional infliction of mental suffering: Flagrant or outrageous conduct; Calculated to produce harm; and Resulting in a visible and provable illness. Objective vs Subjective Following its earlier decisions in Prinzo v Baycrest Centre for Geriatric Care and Piresferreira v Ayotte, the Ontario Court of Appeal held that the first and third element are objective, while the second is subjective. The Court held that the second element requires the plaintiff to prove that “the defendant must have intended to produce the kind of harm that occurred or have known that it was almost certain to occur” [Boucher v Wal-Mart Canada Corp.]. It is insufficient to show only … Read More