McDonald’s Not Served Valid Revocation of Waiver – Commercial Leasing in the Court of Appeal

David Alderson, LL.B, LL.M (Commercial and Corporate), Q.Arb, Lawyer and ArbitratorAppeals, Arbitration, Business Litigation, Commercial, Commercial and Contract Litigation, Commercial Arbitration, Commercial Leasing, Injunction & Specific Performance, Real Estate Litigation, Retail Litigation, Shopping Mall Lease Disputes0 Comments

The Court of Appeal for Ontario in North Elgin Centre Inc. v. McDonald’s Restaurants of Canada Limited, 2018 ONCA 71 allowed an appeal by McDonald’s from a decision on applications by both parties to determine whether  the subject lease came to an end on a described date because McDonald’s had not complied with the renewal provision in the lease. The Court of Appeal allowed the appeal of the decision of the application judge, that despite that the parties were in negotiations, and that the respondent had waived its right to insist on strict compliance with the  terms of the renewal provision (to refer the determination of the renewal rental rate to arbitration), that the respondent had effectively revoked its waiver and reverted to its strict legal rights, namely to terminate the lease in the absence of the referral of the dispute on renewal rental rate to arbitration within the permitted time. On the … 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

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 Decides on Appropriate Use of Mini-Trial in Summary Judgment Motions

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.Civil Litigation, Commercial, Contract Disputes, Misrepresentation, Negligence, Professional Liability, Real Estate Agent and Broker, Real Estate Litigation, Summary Judgment0 Comments

In Crisafi v. Urban Landmark Realty Inc., 2018 ONSC 191, the Ontario Superior Court of Justice addressed a summary judgment motion brought in a real estate litigation matter and provided guidance on when the Court will use its enhanced fact-finding powers set out in the 2010 amendments. Background This case involved a claim by a real estate agent against his former real estate brokerage for unpaid real estate commissions in the amount of $60,000.  The brokerage took the position that the agent breached his contractual, statutory and fiduciary duties to its clients and was negligent in handling four transactions which caused it to suffer damages. The brokerage argued that the agent failed to properly advise one of its clients while in a multiple representation situation including the anticipated sale price of the house and an estimate of whether the client could afford to purchase a subsequent property.  The house ended up sitting on the market even after several reductions in the listing price.  As is commonplace in the industry, this resulted in … Read More

7 Things You Should Know Before Requesting Records From Your Condo

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

With the new amendments to the Condominium Act, there will be new rules and guidelines on how condominium corporations and unit owners will deal with records requests. There has been recognition on the regulatory level that unit owners requests for records has been a pesky problem causing grief for condominium corporations and unit owners alike, neither of whom are particularly clear on what their rights and obligations are when a unit owner is seeking records. This is in part due to the fact that the Condominium Act originally enacted in 1998, was relatively untouched until the government recognized the need for clarity and began working on legislative reform in 2012. In 2015 two major pieces of legislation were enacted, the Protecting Condominium Owners Act (an amendment to the original Condominium Act), and the Condominium Management Services Act, which have served to dramatically update and clarify a lot of the rules and regulations surrounding … Read More

Bhasin v. Hrynew and the Duty of Good Faith in Real Estate Agreements of Purchase and Sale

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.Certificate of Pending Litigation, Commercial, Real Estate | Developers, Real Estate Agent and Broker, Real Estate Litigation0 Comments

The Supreme Court of Canada in Bhasin v. Hrynew, 2014 SCC 71,  recognized the duty of good faith in contract and the obligations of the parties to act honestly in the performance of their contractual obligations.  The duty of good faith applies to any contract, including real estate contracts such as Buyer Representation Agreements, Listing Agreements and Agreements of Purchase and Sale. As discussed in a previous blog post, Agreements of Purchase and Sale generally include a “time is of the essence” clause which means that time limits will be strictly enforced by the courts.  Problems often arise when vendors refuse to agree to seemingly minor indulgences requested by purchasers such as an extension of the closing date or an extension of the deadline to provide the deposit. Two recent decisions in the Ontario Superior Court of Justice have addressed the duty of good faith, as expressed in Bhasin v. Hrynew, in the performance of Agreements of Purchase and Sale.  Unfortunately for purchasers, it appears that … Read More

New Measures of Ontario’s Fair Housing Plan Take Effect Today

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.Civil Litigation, Commercial and Contract Litigation, Real Estate Agent and Broker, Real Estate Litigation0 Comments

On April 20, 2017, Ontario’s Fair Housing Plan was announced by the current Ontario government in an attempt to cool the housing market and make housing more affordable, particularly in the Greater Toronto Area (GTA).  It has been widely reported that the average purchase price for all types of homes in the GTA has dropped significantly since the announcement. Most of the attention on the housing affordability plan has been focused on the 15 percent Non-Resident Speculation Tax (NRST) imposed on the purchase or acquisition of an interest in residential real estate by a foreign individual, foreign corporation or a taxable trustee.  The NRST only applies to residential real estate, containing one to six single family residences, located in the region around Toronto known as the Greater Golden Horseshoe which includes Barrie, Brant, Dufferin, Durham, Guelph, Haldimand, Halton, Hamilton, Kawartha Lakes, Niagara, Northumberland, Peel, Peterborough, Simcoe, Toronto, Waterloo, Wellington and York. There are certain exemptions and rebates to the NRST available including circumstances where: (a) the foreign individual jointly purchases the property with a … Read More

Court of Appeal Majority Rejects Oppression Claim Against Condominium Corporation’s Leasing of Parking Spaces

Robert Kalanda, B.A. (Hons.), J.D.Commercial, Commercial Leasing, Condo Litigation, Oppression Remedies, Real Estate Litigation, Retail Disputes, Retail Litigation0 Comments

In Cheung v. York Region Condominium, the appellant owned several units which were leased to tenants who operated a 230-seat restaurant out of those units. After complaints by other unit owners that restaurant customers were taking up most or all of the 162 shared common element parking spaces, the condominium corporation enacted a by-law to allow the corporation to lease four parking spots per unit owner “from time to time”, reducing the potential number of spaces available to restaurant guests by 80%. The applicant sought a declaration that the by-law was invalid since the leases could be perpetual and thereby essentially create exclusive use common elements, which can only be created by specific declaration, not through by-law. The applicant further argued that the by-law was oppressive and unfairly prejudicial to the applicant’s interests. The majority held that, since the by-law only approved the ability to enter into leases, which could be on whatever … Read More

Timing is Everything in Real Estate Agreements of Purchase and Sale

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.Appeals, Commercial, Real Estate Agent and Broker, Real Estate Litigation, Specific Performance0 Comments

The recent Court of Appeal decision in Preiano v. Cirillo, 2017 ONCA 615, involved a residential real estate Agreement of Purchase and Sale which required the purchasers to deliver a deposit of $25,000 in the form of a negotiable cheque to the vendors’ brokerage within 24 hours of acceptance of the agreement.  The closing date was scheduled to take place about three months later.  The agreement included a “time shall be of the essence” clause. The purchasers had initially submitted a personal cheque in the amount of $25,000 with the offer but the vendors’ brokerage requested the deposit be paid in certified funds.  The purchasers subsequently delivered the deposit in the form of a bank draft to the vendors’ brokerage but it was about one day late.  The vendors’ brokerage did not take issue with the late delivery and provided a receipt for the deposit. Six days before the scheduled closing date, the vendors took the position that they would not be closing … Read More

Restriction on Use of Summary Judgment Where Key Issues Turn on Credibility

Bianca Thomas, B.Sc.(Hons.), J.D.Appeals, Real Estate Litigation, Summary Judgment0 Comments

Since the Supreme Court of Canada’s landmark decision in Hryniak v Mauldin, 2014 SCC 7, summary judgment has been lauded as an effective tool to enhance access to justice and achieve cost-effective results for litigants. Indeed, in recent years, summary judgment motions have become more common, making trials in civil litigation a rare occurrence. But has the pendulum begun to swing now in the opposite direction? The Court of Appeal’s recent decision in Lesenko v Guerette, 2017 ONCA 522, challenges the limits of summary judgment, and outlines that it may not be appropriate in cases where key issues turn on the credibility of the parties. In Lesenko, a husband, his wife, and his sister decided to sell their respective homes and buy a house together. The sister sold her home, and some of those sale proceeds went to pay for the entire purchase price of the subject property. The sister … Read More

Big Changes Coming for Condo Living In The GTA

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

With the current detached housing market crunch, it’s perhaps no surprise that according to data collected by City News there are currently over 3200 more condo projects either under review, being appealed or actively under construction. That’s an estimated 272,000 new units for the Toronto area. Life in downtown Toronto, Mississauga, or Hamilton will most likely mean living in a condominium for many urban residents.  Condominium legislation is developing at a rapid pace to keep up with the increasingly complex and unique legal issues faced by condo dwellers. In 2015, two major pieces of legislation were enacted, the Protecting Condominium Owners Act, and the Condominium Management Services Act.  These laws will have a big impact on condominium related legal issues. Here’s some of the most important changes you should know about if you own or live in a condominium, or are thinking about it. 1) Most Legal Disputes Will Be Decided By … Read More

How to Protect Yourself From a Home Renovation Disaster

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

With a heated real estate market in Toronto and surrounding regions like Hamilton and Burlington, a lot of homeowners decide it’s a wise investment to undertake renovations to their property for the promise of a higher selling price. Unfortunately a lot of things can go wrong when hiring a contractor, and contractors can have special rights and interests in your property if they are not paid, depending on the scope of the project. Here are a few tips on how to take the appropriate precautions when hiring someone to renovate your property and avoiding contractor disputes. 1) Determine what exactly it is that you want done to the property It’s always a good idea to think about your project in as much detail as possible so that you can ensure that every aspect of the project is discussed and expectations are made clear when you are talking to potential contractors. … Read More

Why Should Home Buyers Get a Home Inspection?

Sabrina Saltmarsh, B.A. (Hons), J.D.Real Estate Litigation, Recreational Property0 Comments

Right now the Toronto and GTA real estate markets are hot, and the effect that this has on the atmosphere for buyers is apparent. Often buyers are unavoidably participating in bidding wars against many other buyers for one property, and houses are selling for over the asking price with no conditions. Unfortunately, this type of a market creates a risky environment for prospective buyers, since they begin to curtail their rights and remedies in a real estate transaction in order to put forward a more appealing offer to the seller and hope to clinch the deal over the competition. Often times one of the first protections that buyers give up in this type of market is the right to get a home inspection done. This is a very important right in the buying process and here are some reasons you should think twice before waiving this right in the purchase … Read More