Condo Arbitration, Condo Litigation, Condo Oppression Claims, and Piggybacking

David Alderson, LL.B, LL.M (Commercial and Corporate), Lawyer, Qualified Arbitrator and MediatorArbitration, Arbitrators, Commercial, Condo Arbitrator, Condo Litigation, Moving Litigation to Arbitration, Oppression Remedies, Real Estate Arbitrator0 Comments

As a Condo Dispute Arbitrator, I am very interested when the Court of Appeal for Ontario addresses an appeal concerning an arbitration clause in a condominium document and a motion to stay Superior Court proceedings in favour of arbitration. The Case In the very recent decision Toronto Standard Condominium Corporation No. 1628 v. Toronto Standard Condominium Corporation No. 1636, 2021 ONCA 360, the Court of Appeal for Ontario, allowed an appeal from the order of the motion judge dismissing the appellants’ motion to stay an application in favour of arbitration. The dispute concerned a cost-sharing agreement (“Reciprocal Agreement”), wherein the parties agreed to contribute to the costs of the operation and maintenance of defined Common Facilities.  A dispute arose as to the amounts due under the Reciprocal Agreement, which contained this arbitration clause: “The validity, construction and performance of this Agreement shall be governed by the laws of the Province … Read More

Aborting A Real Estate Deal Can Have Major Consequences

Sabrina Saltmarsh, B.A. (Hons), J.D.Appeals, Condo Litigation, Contract Disputes, Cottage Litigation, Cottage Purchase and Sale, Real Estate Litigation, Recreational Property0 Comments

A recent Court of Appeal ruling illustrates the severe consequences that can flow from aborting a real estate transaction. In the decision of Joo v. Tran, 2021 ONCA 107, the Court of Appeal declined to give effect to a term that was included in an agreement of purchase and sale (APS), on the basis that such an interpretation of the clause would have resulted in an absurdity. The clause indicated that the vendors would discharge any encumbrances on or before closing, either through sale proceeds or by way of a solicitor’s undertaking, which term was included in Schedule A of the APS. The decision arose from the appeal of a ruling on a summary judgment motion brought by the seller, who sued the purchaser in a real estate transaction for breach of contract, after the purchaser expressing concerns regarding utility easements on the property, aborted the real estate transaction. The … Read More

Five Reasons People Sue After Buying or Selling Real Estate

Sabrina Saltmarsh, B.A. (Hons), J.D.Condo Litigation, Contract Disputes, Cottage Litigation, Misrepresentation, Mortgage Broker Litigation, Negligence, Professional Liability, Real Estate Agent and Broker, Real Estate Litigation0 Comments

In a heated real estate market where blind bidding and unconditional offers are necessary to compete, often times purchasers are vulnerable to pulling the trigger and asking questions afterwards. Conversely sellers are looking to capitalize on market highs and looking to sell for top dollar which often comes down to timing. These competing interests can lead to litigation when a real estate transaction doesn’t go as planned. Here are five common reasons that litigation arises from real estate transactions: 1) Breach of Contract Litigation often arises because a seller or purchaser has breached the purchase and sale agreement. There are many contractual terms that set out the rights and obligations of the respective parties in a real estate transaction including the closing date, title clearance, deposit requirements, inclusions, exclusions, and conditions. A Plaintiff commencing suit over a breach of the contract must prove that they have complied with all of … Read More

Can The Condo Corporation Register A Lien On My Condo Unit?

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.Building | Property Management, Civil Litigation, Commercial, Condo Litigation, Creditors Rights, Debt and Enforcing Judgments, Real Estate Litigation0 Comments

A recent Divisional Court decision, Amlani v. YCC 473, 2020 ONSC 5090, confirmed that there are two separate ways to register a condo lien depending on whether the amount is related to common expenses (or “condo fees”), or related to compliance and enforcement expenses. A condo lien may be registered without a court order when the condo corporation seeks to recover unpaid condo fees.  However, condo corporations are required to obtain a court order to register a lien when seeking to recover legal fees and expenses incurred for compliance and enforcement matters. Background The condo owner, a smoker for 56 years, purchased the unit after confirming that smoking was allowed. A few years later, the neighbour complained about the smell of smoke but the issue was resolved after the the condo corporation sealed certain openings at its own cost. When new complaints about the smell of smoke came up again … Read More

Construction Arbitrator | Reasonable Hourly Rate | Good Availability

David Alderson, LL.B, LL.M (Commercial and Corporate), Lawyer, Qualified Arbitrator and MediatorArbitrators, Commercial, Condo Arbitrator, Condo Construction, Construction | Builders, Construction Arbitrator, Construction Litigation, Contract Disputes, Contract Termination, Cottage Litigation, Employment, Employment & Wrongful Dismissal, Expedited Arbitration, Force Majeure, Force Majeure Clauses, Fraudulent Schemes, Heavy Industries, Heavy Machinery Disputes, Infrastructure Arbitrator, Injunction & Specific Performance, International Joint Venture Arbitrator, Joint Venture Disputes, Labour Arbitrator, Mining, Infrastructure and Projects, Moving Litigation to Arbitration, Roster Arbitrator1 Comment

Construction arbitrators must be able to arbitrate efficiently and at the pace required by the parties, disputes ranging from simple renovations and repair, to complex multi-party multi-staged projects. The ability to understand construction stages and complexities of design, architecture, engineering and project management, and technical dimensions of a construction dispute are the hallmarks of an effective construction arbitrator. Experience In his practice here in Ontario, and when practicing in Dubai and Bermuda, David has been involved in a wide array of construction disputes, including, but not limited to project development, project finance, infrastructure and construction disputes, including matters involving parking garages, road building, residential house construction and renovation, condo development and financing disputes, numerous joint venture disputes, matters involving demolition, collapse, fire and flood, as well as contract disputes concerning construction quality and warranties; and labour disputes in the construction industry. Arbitrator for Construction Disputes David offers appointment as sole … Read More

COVID-19 / Coronavirus: Urgent Hearings in Small Claims Court

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.Business Disputes, Business Interruption, Civil Litigation, Commercial and Contract Litigation, Commercial Leasing, Condo Litigation, Construction Litigation, Contract Disputes, Contract Termination, Coronavirus, COVID-19, Creditors Rights, Debt and Enforcing Judgments, Event Cancellation, Event Termination, Fraud Recovery, Mortgage Litigation, Real Estate Litigation, Retail Litigation, Shopping Mall Lease Litigation0 Comments

Since March 16, 2020, all hearings in the Ontario Small Claims Court have been suspended due to the COVID-19 pandemic.  Although the Superior Court of Justice has had procedures in place to bring an urgent civil or commercial list hearing since March 15, 2020, the Small Claims Court was left without the ability to hear urgent motions and garnishment hearings until today. Today, the Chief Justice of the Superior Court of Justice released the updated Notice Regarding the Suspension of Small Claims Court Operations to outline the procedure to request an urgent hearing in Small Claims Court and to provide guidance on the type of matters a judge may find to be urgent.  Urgent  hearings may include: Cases in which a judgment debtor has an outstanding warrant for arrest issued in relation to a Small Claims Court proceeding; or Time-sensitive cases that would result in immediate and serious financial hardship … Read More

Toronto Lawyers for COVID-19 / Coronavirus Urgent Legal Services

David Alderson, LL.B, LL.M (Commercial and Corporate), Lawyer, Qualified Arbitrator and MediatorAlternative Dispute Resolution (ADR), Arbitration, Business Disputes, Business Interruption, Civil Litigation, Commercial, Commercial and Contract Litigation, Condo Litigation, Construction Litigation, Coronavirus, COVID-19, Debt and Enforcing Judgments, Estates Litigation, Family Law, Franchise Law, Wills and Estates0 Comments

See our information and resources regarding legal services during COVID-19 through these links to the Gilbertson Davis LLP website: Arbitration During the Pandemic Remote Arbitration Hearings – Emerging Protocols Arbitration & Court Closure  Contract Arbitrator Event Cancellation Arbitrator Contract Termination Arbitrator Moving Litigation to Arbitration | Arbitration Options Business and COVID-19 Ontario Allows More Businesses To Reopen Soon Ontario to Permit Some Businesses to Reopen on May 4 Small Business Relief Resources Ontario Extends Mandatory Closure of Non-Essential Businesses Ontario-Canada Emergency Commercial Rent Assistance Program Construction and COVID-19 Are Closing Dates Extended Due to Construction Sites Closing? Urgent Hearings for Real Estate Closings Contracts and COVID-19 Pandemic Closures: Considerations For Commercial Tenants And Landlords How to Schedule an Urgent Civil or Commercial List Hearing Comments on Frustration and Force Majeure Clauses in The Huffington Post Legal Consequences on Commercial Contracts Distribution Agreements Manufacturing Contracts Shopping Mall Lease Deferral Contract Disputes … Read More

Ontario Courts Suspend Civil Jury Trials Due to COVID-19 / Coronavirus

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.Arbitration, Business Disputes, Business Interruption, Civil Litigation, Commercial and Contract Litigation, Commercial List Matters, Commercial Litigation, Condo Litigation, Construction Litigation, Coronavirus, COVID-19, Debt and Enforcing Judgments, Family Law, Force Majeure, Franchise Law, Real Estate Litigation0 Comments

On April 20, 2020, the Chief Justice of the Ontario Superior Court of Justice issued a Notice to the Profession, Public, Accused Persons and the Media Regarding the Suspension of Criminal and Civil Jury Trials to advise that criminal and civil jury trials will be suspended until September, 2020, at the earliest. Since March 17, 2020, the Ontario Superior Court of Justice has suspended all regular operations, including adjourning all civil matters except: (a) civil motions and applications deemed to be urgent and time-sensitive by the court; (b) outstanding warrants issued in relation to a Small Claims Court or Superior Court civil proceeding; and (c) the following expanded civil matters, subject to each region’s notice and effective April 6, 2020: (i) pre-trial conferences that were cancelled between March 16 and May 31, 2020, and to be held for the purpose of settlement; (ii) Rule 7 motions or applications for approval … Read More

COVID-19 / Coronavirus: Are Closing Dates Extended Due to Construction Sites Closing?

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.Arbitration, Civil Litigation, Commercial, Condo Construction, Condo Litigation, Construction | Builders, Construction Litigation, Contract Disputes, Contract Termination, Coronavirus, COVID-19, Force Majeure, Real Estate | Developers, Real Estate Arbitrator, Real Estate Litigation0 Comments

On April 3, 2020, the Ontario government ordered that further non-essential businesses must close by April 4, 2020 at 11:59 p.m. including closing down most construction sites in order to flatten the curve of the COVID-19 pandemic.  The number of essential businesses was reduced from 74 to 44.  The revised list of essential businesses can be found here. Construction sites related to the healthcare sector, provincial infrastructure such as transit, and projects related to the production of ventilators and other products directly related to fighting COVID-19 were permitted to remain open.  Residential construction sites were permitted to remain open where: (i) a footing permit has been granted for single family, semi-detached and townhouses; (ii) an above grade structural permit has been granted for condominiums; or (iii) the work was related to renovations and started before April 4, 2020. Given the expansive definition of essential residential construction sites, it appears that … Read More

Prompt Payment Regime Takes Effect For Construction Projects

Sabrina Saltmarsh, B.A. (Hons), J.D.Arbitration, Condo Construction, Construction Equipment & Machinery, Construction Litigation, Cottage Litigation, Heavy Machinery Disputes, Mining, Infrastructure and Projects, Real Estate | Developers, Real Estate Litigation, Recreational Property, Recreational Property Litigation0 Comments

A major shift has been underway in Ontario since the legislature ushered in reforms under Bill 142, the Construction Lien Amendment Act, 2017, S.O. 2017, c. 24., perhaps none of which is more significant than the prompt payment regime which took effect on October 1, 2019. Changes To Lien Period: Effective July 1, 2018 Changes to the previous legislation (The Construction Lien Act) have come into effect in phases, with the first set of changes having taken effect in July of last year. We are now in the midst of transition rules which apply depending on the commencement date of a construction project to determine the applicable lien period which changed from 45 days to 60 days for prime construction contracts entered into after July 1, 2018. There were several additional notable changes which took effect as of July 1, 2018, including the extension of the period to perfect a … Read More

Latent Defects or Hidden Damage in Real Property Transactions

Sabrina Saltmarsh, B.A. (Hons), J.D.Agents and Brokers, Broker and Agent Claims, Civil Litigation, Commercial, Condo Litigation, Contract Disputes, Cottage Litigation, Cottage Purchase and Sale, Misrepresentation, Professional Liability, Real Estate Agent and Broker, Real Estate Litigation, Recreational Property, Recreational Property Litigation1 Comment

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

Cart Before the Horse – Requesting Accommodations to Condominium Common Elements Before Commencing Litigation

Gilbertson Davis LLPAdministrative Law, Commercial Litigation, Condo Construction, Condo Litigation, Construction | Builders, Human Rights0 Comments

In Charlie Andrews v. Great Gulf, 2019 HRTO 370, the applicant, a condominium owner, alleges that the respondent, builder of the condominium complex, failed to provide gender-inclusive washrooms in the pool and stream areas of the condominium building. The builder of the condominium complex did not file a response, but rather, asked that the matter be dismissed as it had no prospect of success, as the builder could not be held liable for the alleged discrimination, since: It no longer had an ongoing service relationship with the condominium; The applicant, as a condominium board member could not point to any requests by any individual, including themselves, that the builder or condominium provide gender-inclusive change rooms; The  subject areas that were allegedly discriminatory were located in the common elements of the condominium and related to accessibility,  rendering it the responsibility of the condominium, of which the applicant was a member; and At the time the … Read More

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

Gilbertson Davis LLPAppeals, 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

Toronto Condo Arbitrator – Independent, Reasonable Fees and Available

David Alderson, LL.B, LL.M (Commercial and Corporate), Lawyer, Qualified Arbitrator and MediatorArbitration, Arbitrators, Commercial, Commercial Arbitration, Condo Litigation0 Comments

David Alderson, LL.B., LL.M, Q.Arb –  Condo Dispute Arbitrator David has been accredited by the ADR Institute as Canada as a Qualified Arbitrator (Q.Arb). He accepts appointments as a commercial arbitrator, including as condominium dispute arbitrator, at a reasonable hourly rate of$375.00, plus facilities and applicable taxes) and with good availability. The Ontario Superior Court of Justice has appointed David in commercial (including condominium) arbitration matters. David is a member of the Toronto Commercial Arbitration Society, and has successfully completed the Toronto Commercial Arbitration Society Gold Standard Course in Commercial Arbitration. He is also a Full Member of the ADR Institute of Ontario and appears in its Member Directory. He has legal experience in arbitration in under different institutional and ad hoc rules, in a wide variety of matters.  David accepts appointment as sole arbitrator and party-appointed arbitrator in a wide variety of condominium disputes. David has appeared as a barrister in the Ontario Superior … Read More

7 Things To Consider Before Buying A Condo

Sabrina Saltmarsh, B.A. (Hons), J.D.Condo Litigation, Real Estate Agent and Broker, Real Estate Litigation0 Comments

As condominiums proliferate as the home of choice for many, it is important to realize it is a different kind of ownership than a house or freehold townhome.  To make sure you’ve made the right decision here’s 7 things you should know before purchasing a condo: 1) Read the declaration, by-laws and rules Every condo community is unique. The declaration, by-laws and rules provide critical information about the restrictions and allowances within the community. Some condo’s may have strict rules regarding pet ownership, other’s may entirely prohibit short term rentals, while some may specifically protect such use of the unit within the declaration. There will likely be rules about smoking whether it be cigarettes or cannabis. Most condominiums also have rules about visitors, whether they can use amenities independently or can only do so with a resident. These are just some examples of rules that can have a major impact … Read More

Five Things To Know Before Renting Your Condo Out As A Short-Term Rental

Sabrina Saltmarsh, B.A. (Hons), J.D.Condo Litigation, Real Estate Litigation0 Comments

Since the rise in popularity and use of Airbnb and other similar sites, the opportunity to make some extra cash by listing property on these websites seems to be gaining appeal. In urban centres short-term rentals have become a sizeable industry. This has meant that municipalities, and condominium communities alike have all had to grapple with how to respond to this growing sector of the new home-sharing platform. In this blog we address some important things you should take into account as you consider listing your home for short-term rental. 1) Are There Any Municipal Rules Restricting Short Term Rentals In Your Area? On December 7, 2017 Toronto’s City Council approved the regulation of short-term rentals in the City. Other jurisdictions might take a different approach, including prohibiting or zoning short-term rentals, or excluding certain types of properties from eligibility. In Toronto short-term rentals are permitted in all housing types … Read More

Condo Dwellers Get A Lift From New Elevator Regulations

Sabrina Saltmarsh, B.A. (Hons), J.D.Condo Litigation, Real Estate Litigation0 Comments

With more Ontario residents making the move to vertical condominium communities the Ontario government has turned their attention to that pesky problem of elevators down for service. There are approximately 20,000 elevators already operational in buildings throughout the province, and about 1550 of them are more than 50 years old with another 10,000 over 25 years old. The legislation is not only a positive step towards recognizing the essential service that elevators provide to condominium residents and particularly, elderly residents, those with disabilities and those living on the highest floors of increasingly taller condominium buildings, but the first jurisdiction to pass such regulation in the world. So what is this new legislation going to mean? Enhanced enforcement of maintenance requirements including , preventative maintenance requirements and a maximum time allotment for elevator service outages. With enforcement through fines levied against elevator maintenance companies, and owners. Improved information sharing with Fire and … Read More