In the recent Court of Appeal decision of Mensula Bancorp Inc. v. Halton Condominium Corporation No. 137, the Court of Appeal overturned a lower court decision setting aside an arbitrator’s award, on the basis that the approach taken by the learned application judge was contrary to that mandated by Alectra Utilities Corporation v. Solar Power Network Inc., 2019 ONCA 254, 145 O.R. (3d) 481, leave to appeal refused, [2019] S.C.C.A. No. 202 (Alectra). Background The Halton Condominium Corporation 137 (HCC 137) located in Oakville has 82 residential units and 166 parking units located within it’s parking garage, along with common elements such as a lobby and elevators. The parking units comprise of parking for the residential unit owners (the Residential Parking) along with 43 commercial parking units (the Commercial Parking) owned by the defendant Mensula Bancorp Inc. (Mensula), Mensula does not own any residential units and its business is located … Read More
Supreme Court of Canada Clarifies Duty Of Honest Performance In Contractual Relationships
In the decision of C.M. Callow Inc. v. Zollinger, 2020 SCC 45, the Supreme Court of Canada (SCC) expands on the scope of the duty of honest performance in contractual relationships, previously established by the SCC ruling in Bhasin v. Hrynew, 2014 SCC 71, [2014] 3 S.C.R. 494. Our firm previously blogged about the Court of Appeal Ruling in this case. See the previous blog here. The case concerns a breach of contract claim made by the Plaintiff. The Plaintiff is a company that provides maintenance services to condominium communities. The Defendants, a group of condominium corporations, had winter and summer maintenance contracts with the Plaintiff that renewed every two years. The contracts originated in 2012 and ran to 2014. In March or April of 2013, the Defendants decided to terminate the winter contract but they did not provide notice of their intention to terminate until September of 2013. The Defendants delayed … Read More
Condo Arbitration, Condo Litigation, Condo Oppression Claims, and Piggybacking
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
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
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?
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 generally 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 in the building. A few years later, the neighbour complained about the smell of smoke but the issue was resolved after the condo corporation sealed certain openings at its own cost. When new complaints about the smell of smoke … Read More
Construction Arbitrator | Reasonable Hourly Rate | Good Availability
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. Sole Arbitrator – $450.00 per hour, plus HST 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 … Read More
COVID-19 / Coronavirus: Urgent Hearings in Small Claims Court
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
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
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?
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
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
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
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
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, Q.Arb – Condo Dispute Arbitrator Sole Arbitrator – $450.00 per hour, plus HST 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 fee rate, 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 … Read More
7 Things To Consider Before Buying A Condo
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
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