Limitations in real estate agent’s opportunity is repudiation of contract

Fatima VieiraCommercial Contracts, Contract Disputes, Contract Termination0 Comments

Fatima Vieira B.A., M.A., LL.B. In Barresi and 6491243 Canada Inc. v. Jones Lang Lasalle Real Estate Services, 2019 ONCA 884  the Ontario Court of Appeal considered the test for repudiating a contract. Jones Lang Lasalle (“Lasalle”) was a real estate investment management company. Ryan Barresi (“Barresi”) was a real estate broker. Barresi and Lasalle entered into an agreement whereby Barresi was to be the Ottawa Practice Lead for investment property transactions. One year after entering into the contract, Lasalle advised Barresi that he could only pursue transactions in Ottawa up to a $10 million ceiling, even though the agreement imposed no such ceiling and transactions over $10 million would be exclusively available to another party, National Retail Investment Group (“NRIG”), which would involve Barresi only as Lasalle saw fit. The trial judge found that these two limitations undermined Barresi’s reason for entering into the contract with Lasalle, which was … Read More

Part Two – Timing is Everything in Real Estate Agreements of Purchase and Sale

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.Appeals, Business Litigation, Civil Litigation, Commercial, Commercial and Contract Litigation, Commercial Contracts, Commercial Litigation, Contract Disputes, Contract Termination, Injunction & Specific Performance, Real Estate | Developers, Real Estate Litigation, Specific Performance, Summary Judgment0 Comments

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

Partnership Disputes Between Professionals – Dentists, Doctors, Accountants, Lawyers, Architects and Engineers

David Alderson, LL.B, LL.M (Commercial and Corporate), Q.Arb, Lawyer and ArbitratorArbitration, Breach of Non-Competition Clause, Breach of Non-Solicitation Agreement, Business Litigation, Commercial Arbitration, Commercial Contracts, Commercial Litigation, Joint Venture Disputes, Non-Competition Agreement, Non-Competition Clause, Non-Solicitation Agreement, Non-Solicitation Clause, Partnership Dispute, Partnerships and Shareholder Disputes, Professional Services0 Comments

Partnerships Professionals often carry on their professional practice as partners in a partnership or limited liability partnership. Partnerships can be created simply by conduct and the application of the Partnership Act or by a simple or complex partnership agreement. Joint Venture Contract – Fiduciary Duties? In other cases professionals associate in practice by participation in a contractual joint venture which, depending on the agreement and the circumstances, may or may not at law also be a partnership but, in any event, may attract the duties and obligations of partners, including fiduciary duties. Sharing Space Lastly, some professionals may consider that they are only sharing space with other professional and may be very surprised to find that the arrangement gave rise at law to unexpected obligations. Duty of Honest Performance The recent decision of the Supreme Court of Canada in Bhasin v. Hrynew, though not a case about partnerships, nonetheless has a wide-ranging impact … Read More

Fork In the Road: Critical Considerations by Condominium Corporations in Anticipatory Failed Closings

Mahdi Hussein, B.A. (Hons.), JDAppeals, Appellate Advocacy, Civil Litigation, Commercial, Commercial Contracts, Condo Construction, Condo Litigation, Contract Disputes, Real Estate Litigation0 Comments

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

Can a Pre-Incorporation Contract Prevent the Forfeiture of a Deposit on the Failed Closing of a Property?

Mahdi Hussein, B.A. (Hons.), JDCommercial Contracts, Real Estate | Developers, Real Estate Litigation0 Comments

In Benedetto v. 2453912 Ontario Inc., the Ontario Court of Appeal considered whether a pre-incorporation contract could prevent the forfeiture of a deposit provided pursuant to an agreement of purchase of sale of real property. In this case, the purchaser signed an agreement for purchase and sale of real property, indicating that he was signing as a buyer “in trust for a company to be incorporated without any personal liabilities”. The purchaser then provided $100,000.00 as the deposit to secure the purchase of the property. The purchaser subsequently advised that he would not be closing on the transaction and sought the return of the deposit. The vendor refused and commenced civil proceedings resulting in a summary judgment motion, which was held in favour of the vendor. The Ontario Court of Appeal upheld the findings of the lower court and indicated that: A forfeited deposit does not constitute damages for breach … Read More

Court Stays Injunction Claim in Favour of Arbitration / Refuses to Consolidate Arbitration Proceedings Without Consent of All Parties

Andrew Ottaway, B.A. (Hons.), LL.B.Arbitration, Civil Litigation, Commercial and Contract Litigation, Commercial Arbitration, Commercial Contracts, Commercial Litigation, Contract Termination, Injunction & Specific Performance, Insurance0 Comments

In Loan Away Inc. v. Western Life Assurance Company, 2018 ONSC 7229, the plaintiff had an agreement with the defendant by which the plaintiff sold the defendant’s insurance policies in return for payments by the defendant.  The defendant ceased making payments and the plaintiff commenced an action against the defendant for an injunction to require the defendant to make the payments to the plaintiff and to prevent the defendant from terminating the insurance policies that the plaintiff had sold on the defendant’s behalf. The defendant relied upon an arbitration clause in its agreement with the plaintiff to stay the action.  The plaintiff argued, among other things, that the claim should not be stayed because the arbitration clause contained arbitration clause contained an exception for requests for a temporary restraining order or other forms of injunctive relief. The plaintiff argued that its request for a permanent injunction fell under the category … Read More

Dominican Republic Vacation Claim Examined in Di Gregorio v. Sunwing Vacations Inc.

Janice Perri, B.A. (Summa Cum Laude)Appeals, Appellate Advocacy, Civil Litigation, Commercial Contracts, Contract Disputes, Cross-Border Litigation, Jurisdictional Challenges, Negligence, Summary Judgment, Travel & Tour Operators, Travel & Tourism0 Comments

In Di Gregorio v. Sunwing Vacations Inc., the appellants purchased a vacation package to attend the Dreams Punta Cana Resort and Spa through their travel agent, Sunwing Vacations Inc. (“Sunwing”). While on vacation, the balcony railing gave way resulting in the appellants sustaining injuries. The motion judge was found to have erred in not conducting a jurisdictional analysis pursuant to Club Resorts Ltd. v. Van Breda. The Court of Appeal stated that the relevant connecting factor is that the claim pleaded was based on an Ontario contract. The alleged tortfeasors do not need to be party to the contract, as all that is required is that a “defendant’s conduct brings it within the scope of the contractual relationship and that the events that give rise to the claim flow from the contractual relationship” as stated in Lapointe Rosenstein Marchand Melancon LLP v. Cassels Brock & Blackwell LLP. The Court of … Read More

When is Oral Evidence Required to Resolve Credibility Issues in Summary Judgment Motions?

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.Appeals, Business Litigation, Civil Litigation, Commercial, Commercial and Contract Litigation, Commercial Contracts, Commercial Litigation, Contract Disputes, Contract Termination, Franchise | Licensing, Franchise Law, Summary Judgment0 Comments

The Ontario Court of Appeal decision in 2212886 Ontario Inc. v. Obsidian Group Inc., 2018 ONCA 670, involved the appeal of a partial summary judgment decision in a dispute between the franchisor and a franchisee of Crabby Joe’s Tap and Grill.  In this case, the franchisee operated a Crabby Joe’s franchise for a year and a half prior to serving a notice of rescission of the franchise agreement on the franchisor. Claims The franchisee claimed that the disclosure document provided was materially deficient and it was entitled to rescind the franchise agreement within two years of execution of the franchise agreement under section 6(2) of the Arthur Wishart Act (Franchise Disclousre), 2000 (“the Act”).   The franchisee claimed for rescission damages under section 6(6) of the Act and also damages for breach of contract and breach of the fair dealing obligations under the Act.  In response, the franchisor brought a counterclaim for a declaration that the franchise agreement was validly terminated and a … Read More

Entire Agreement Clause Upheld in Manorgate Estates Inc. v. Kirkor Architects and Planners

Janice Perri, B.A. (Summa Cum Laude)Appeals, Appellate Advocacy, Business Torts | Economic Torts, Civil Litigation, Commercial, Commercial and Contract Litigation, Commercial Contracts, Commercial Law, Commercial Litigation, Construction | Builders, Construction Litigation, Contract Disputes, Misrepresentation, Negligence, Real Estate | Developers, Real Estate Litigation0 Comments

Entire Agreement Clauses are meant to prevent negotiations that occurred prior to the contract being formed from influencing the Court’s interpretation of the terms set out in the final contract. In other words, past discussions are to have no bearing on the understanding of the contractual terms. In theory, a fully integrated agreement of this kind supplants any earlier oral or written agreements. There is competing jurisprudence in which Entire Agreement Clauses have been both effective and ineffective. However, Manograte Estates Inc. v. Kirkor Architects and Planners is a recent Ontario Court of Appeal decision where an Entire Agreement Clause was effective. In Manograte Estates Inc. v. Kirkor Architects and Planners, the Ontario Court of Appeal upheld the Motion Judge’s decision that the Entire Agreement Clause in the relevant agreement, regarding architectural consulting for a construction project, operated as a complete defence to the appellants’ claim of alleged negligent misrepresentation. The Entire Agreement Clause … Read More

Shareholders’ Remedies under the OBCA: An Overview (Part 2/2) 

Janice Perri, B.A. (Summa Cum Laude)Business Law, Business Litigation, Civil Litigation, Closely-Held Business Disputes, Commercial, Commercial and Contract Litigation, Commercial Contracts, Commercial Law, Commercial Litigation, Corporate Disputes, Corporate Litigation, Directors' and Officers' Liability, Oppression Remedies, Partnership Dispute, Partnerships and Shareholder Disputes, Shareholder Disputes0 Comments

When a shareholder’s rights are breached, there are a variety of legal remedies available under the Ontario Business Corporations Act (“OBCA”). For more information on shareholders’ rights, please click here to see part 1 of this post. Oppression Remedy It is first important to note that as per the Ontario Court of Appeal decision Maurice v. Alles, the standard two-year limitation period set out in the Limitations Act applies to oppression remedy claims. The “clock starts to run” when the oppressive conduct first began, meaning that individuals must not delay if they wish to pursue an oppression remedy. The oppression remedy under s. 248 of the OBCA is broad in nature, and there is a large amount of judicial discretion afforded in its application. The oppression remedy can be an especially strong tool in protecting minority shareholders. When the Court determines that there has been oppressive conduct, unfairly prejudicial conduct, or conduct that disregards the interests of any shareholder it may make an order to resolve the matter in a variety of ways. … Read More

Shareholders’ Rights under the OBCA: An Overview (Part 1/2) 

Janice Perri, B.A. (Summa Cum Laude)Business Law, Business Litigation, Civil Litigation, Closely-Held Business Disputes, Commercial, Commercial and Contract Litigation, Commercial Contracts, Commercial Law, Commercial Litigation, Corporate Disputes, Corporate Litigation, Directors' and Officers' Liability, Oppression Remedies, Partnerships and Shareholder Disputes, Shareholder Disputes0 Comments

Under the Ontario Business Corporations Act (“OBCA”), shareholders of a corporation have a variety of rights. Outlined below are a few rights that all shareholders should be aware they possess. Please click here to see part 2 of this post on shareholders’ remedies. Voting Rights The board of directors, under s. 115 are ultimately responsible for managing or supervising the management of the business and affairs of a corporation. Major business decisions also involve the participation of the board of directors, though sales, leases, or exchanges of all or substantially all the property of the corporation that is not in the ordinary course of business requires the approval of shareholders (s. 184(3)). Shareholders also have voting rights that allow them to control the makeup of the board of directors (s. 119(4)), and also the ability to remove directors under s. 122(1) (though this is subject to exceptions under s. 120(f)). Shareholders have additional voting rights under … Read More

UNCITRAL International Sale of Goods Convention – New Members in 2016 and 2017

David Alderson, LL.B, LL.M (Commercial and Corporate), Q.Arb, Lawyer and ArbitratorCommercial and Contract Litigation, Commercial Arbitration, Commercial Contracts, Commercial Litigation, Conventions & Treaties, Counterfeit Goods, Distribution Agreements, Distributors | Dealers, International Sale of Goods, International Traders, Jurisdictional Challenges, Manufacturers | Re-Sellers, Sale of Goods, UNCITRAL0 Comments

The United Nations Convention on Contracts for the International Sale of Goods (“CISG”) establishes a comprehensive code of legal rules governing the formation of contracts for the international sale of goods, the obligations of the buyer and seller in contracts for the international sale of goods, and the remedies for breach of contracts for the international sale of goods. Canada on accession to the CISG declared that, in accordance with article 93 of the Convention, the Convention would extend to Ontario (and other provinces named in the declaration). The Canadian International Sale of Goods Contracts Convention Act, S.C. 1991, c. 13, has been in effect in Ontario since 1992 because of the International Sale of Goods Act, R.S.O. 1990, c. I.10.  These two acts brought into effect in Canada the United Nations Convention on Contracts for the International Sale of Goods. The Ontario International Sale of Goods Act provides that the contracting parties “may … Read More

Is a Burrito a Wrap? Ontario Court Decides Injunction Involving Exclusivity Clause in Commercial Lease

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.Business Litigation, Civil Litigation, Commercial, Commercial and Contract Litigation, Commercial Contracts, Commercial Leasing, Contract Disputes, Injunction & Specific Performance0 Comments

In 2432714 Ontario Inc. v. Heffner Development Group Limited, 2018 ONSC 1034, the Ontario Superior Court of Justice was recently asked to decide the age old question of whether a burrito was a wrap in the context of an exclusivity clause in a commercial lease agreement. In this case, the tenant operated a Pita Pit franchise in a 13 unit plaza owned by the landlord.  The tenant had negotiated an exclusivity clause in the lease agreement that gave it the exclusive right to sell “pitas and wraps” in the plaza.  When the tenant discovered that a Mexican fast food chain, Holy Guacamole, was renovating one of the units, it brought a motion for an interlocutory injunction prohibiting the landlord from leasing a unit in the plaza to Holy Guacamole. The tenant argued that Holy Guacamole sold “wraps” because its menu of tacos, burritos and quesadillas were all prepared by wrapping up food items in a tortilla.  … Read More

Court of Appeal States that Placing Oneself in Position to Close Transaction not Waiver of Deficiency

Andrew Ottaway, B.A. (Hons.), LL.B.Appeals, Appellate Advocacy, Business Law, Business Litigation, Civil Litigation, Commercial and Contract Litigation, Commercial Contracts, Commercial Litigation, Contract Disputes, Real Estate Litigation, Sale of Business Disputes0 Comments

In 1418885 Ontario Ltd. v. 2193139 Ontario Limited, 2018 ONCA 54, the appellant entered into an agreement of purchase and sale to buy a property from the respondent.  The property included residential apartments.  The appellant sought confirmation from the respondent that the residential apartments were permitted use under the existing zoning by-law.  The respondent maintained that the residential apartments were “a legal non-conforming use”.  However, the planning authority indicated that there was a possible problem with the residential apartments.  The appellant’s lawyer advised the respondent’s lawyer that the purchase deposits had to be returned if the issue was not resolved. In spite of the residential apartments issue, the appellant and respondent moved towards the closing date by exchanging draft documentation and related material.  However, on closing date, the appellant’s lawyer advised the respondent’s lawyer that the appellant would not be closing because of the residential apartments issue.  The deal did … Read More

Court of Appeal Confirms Importance of Requisitions in Real Estate Transactions

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.Appeals, Commercial, Commercial and Contract Litigation, Commercial Contracts, Commercial Litigation, Contract Disputes, Contract Termination, Real Estate Litigation, Summary Judgment0 Comments

The Court of Appeal of Ontario decision in 1418885 Ontario Ltd. v. 2193139 Ontario Limited, 2018 ONCA 54, recently overturned a summary judgment motion decision which confirmed the importance of requisition letters in real estate transactions. In this case, the parties had entered into an Agreement of Purchase and Sale for a property with a restaurant, golf course, 12 residential apartments, a two-storey home and a banquet hall.  The Agreement of Purchase and Sale included the following requisition clause:    8.  TITLE SEARCH:  Buyer shall be allowed until 6:00 p.m. on the 30th day of May, 2016 (Requisition Date) to examine the title to the property at his own expense and until the earlier of: (i) thirty days from the later of the Requisition Date or the date on which the conditions in this Agreement are fulfilled or otherwise waived or, (ii) five days prior to completion, to satisfy himself that there are … Read More

Ontario Court Finds Jurisdiction Resulting From Cumulative Effect of Individually Insufficient Connecting Factors

Andrew Ottaway, B.A. (Hons.), LL.B.Business Litigation, Civil Litigation, Commercial Contracts, Commercial Litigation, Contract Disputes, Contract Termination, Cross-Border Litigation, Forum Challenges, International Sale of Goods, Jurisdictional Challenges0 Comments

In Freshway Services Inc. v. CdEnviro Ltd., 2017 ONSC 6591, the plaintiff Ontario company contracted with the defendant Northern Irish company.  The defendant was to build a waste recycling facility and install it at the plaintiff’s facility in Ontario.  A third party to provide warranty coverage and servicing for components of the waste recycling plant, once it was built and delivered to Ontario.  A dispute arose between the parties, and the plaintiff sued the defendant in Ontario.  The defendant brought a motion to stay the Ontario action on the basis that Ontario lacked jurisdiction. The motion judge considered the the presumptive connecting factors for jurisdiction set out by the Supreme Court in Club Resorts Ltd. v Van Breda, 2012 SCC 17, being whether the contract was made in the Ontario: whether the defendant was carrying on actual business in Ontario; whether the defendant is resident in Ontario; or where the … Read More