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

Court of Appeal Confirms Strict Notice Requirements in the Termination of Commercial Leases

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.Appeals, Commercial, Commercial Leasing, Contract Disputes, Summary Judgment0 Comments

The Ontario Court of Appeal in Jay-Pee Drycleaners Inc. v. 2321324 Ontario Inc., 2017 ONCA 798, recently overturned a summary judgment motion decision involving the termination of a commercial lease agreement. In this case, the tenant had operated a dry cleaning business for 12 years before the lease was converted into a month-to-month tenancy.   After the new landlord purchased the property and was assigned the lease, it demanded the tenant provide evidence that it had successfully completed a course related to the management of dry cleaning contaminants and waste.  Even though the tenant advised that the Ministry of Environment had deemed the course to be unnecessary and the course was not available until the following year, the new landlord terminated the lease and retained a bailiff to re-enter and re-possess the premises. The tenant brought an action for damages arising from the unlawful termination of the lease.  The new landlord responded with a counterclaim and brought a summary judgment motion. The … Read More

Nick Poon Comments on Condominium Liability Issues for the Toronto Sun

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.Condo Litigation, Directors' and Officers' Liability, Gilbertson Davis LLP News, Negligence, Property Management0 Comments

Nick Poon was recently asked to comment on the duty and standard of care of condominium corporations, boards of directors and property managers in respect to security and safety in condominiums. Read the Toronto Sun article here: “Creepy Yorkville condo stalker terrifies women“. If you require legal advice and representation in respect to condominium disputes, please contact us for an initial consultation.

7 Things You Should Know Before Requesting Records From Your Condo

Sabrina Saltmarsh, B.A. (Hons), J.D.Condo Litigation, Real Estate Litigation5 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

Gilbertson Davis LLPCommercial, 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

Capturing Online Sales in Shopping Mall Commercial Leases

Gilbertson Davis LLPCommercial and Contract Litigation, Contract Disputes, Counterfeit Goods, eCommerce | Online Retail, Shopping Mall Lease Disputes, Shopping Mall Lease Litigation0 Comments

As more business is done online, and as traditional brick-and-mortar retail stores decrease in popularity, shopping malls and retail shopping landlords are looking for more creative methods to maximize rental income. It is not uncommon for a shopping mall lease to require the tenant to pay a percentage of their sales as part of the additional rent. Many stores, however, also do a significant amount of business online. While tenants usually consider such sales to be separate from sales at their physical storefront, landlords may consider those sales as attributable to the storefront and subject to additional rent.  It is important for any commercial lease to be clear how additional rent is calculated, and if additional rent includes a percentage of revenues, it should be clear to all parties what revenue is included and what revenue is excluded. Where a lease is unclear, the court will often rely on the principle of contra proferentum and … Read More

Construction Heavy Machinery & Equipment Disputes

David Alderson, LL.B, LL.M (Commercial and Corporate), Lawyer, Qualified Arbitrator and MediatorCommercial and Contract Litigation, Commercial Leasing, Construction | Builders, Construction Equipment & Machinery, Construction Litigation, Contract Disputes, Contract Termination, Debt and Enforcing Judgments, Distributors | Dealers, Heavy Industries, Heavy Machinery Disputes, Injunction & Specific Performance, Sale of Goods, Trucking and Transportation0 Comments

We have experience and can act in matters relating to construction heavy machinery and equipment. Disputes often arise in connection with the purchase and sale, leasing, financing, use or operation of construction heavy machinery.  Sometimes disputes arise in relation to ownership or possession of  construction heavy equipment. We set out below some of the common types of disputes arising in relation to construction heavy equipment. Types of Disputes Common disputes include those related to: purchase and sale, pre-sale representations, warranties, damaged equipment, sale by auction, shipping heavy machinery and equipment, damages, loss and collapse, hire-purchase disputes, ownership and possession, and repossession by court order. Types of Construction Equipment A vast array of construction equipment is deployed in modern construction projects.  Some construction companies lease and others purchase. Some have only occasional need for some construction heavy equipment. Typical construction heavy equipment and machinery includes: Backhoe loaders, breakers, bulldozers, chippers, compactors, concrete plants and pumps, conveyors, … 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

Cross-Border Ship Mortgage Enforcement

David Alderson, LL.B, LL.M (Commercial and Corporate), Lawyer, Qualified Arbitrator and MediatorCommercial, Contract Disputes, Creditors Rights, Cross-Border Litigation, Debt and Enforcing Judgments, Enforcement of Foreign Judgments, Heavy Industries, Jurisdictional Challenges, Lenders | Borrowers, Loan and Guarantee, Marine | Maritime | Aviation, Mortgage Enforcement, Mortgage Litigation, Of Interest to US Counsel0 Comments

In an admiralty action in rem and in personam, Lakeland Bank v. Never E Nuff (Ship), 2016 FC 1096, the Federal Court dismissed the action in personam on a US mortgage, registered in New York State, against the mortgagor, a U.S.based former owner of a 38-foot pleasure craft and against its innocent purchaser for value without notice in Canada and dismissed the purchaser’s counterclaim for abuse of process, but ordered the return of a trailer and other personal items, which had been arrested in Canada with the pleasure craft, but were not covered by the mortgage. The Federal Court did however order that the action in rem be maintained and provided that the plaintiff shall promptly move for sale of the pleasure craft. The plaintiff, an American bank, held a first preferred mortgage registered at the National Vessel Documentation Center, United States Coast Guard. The bank had instituted proceedings in personam and in rem in the United States District Court, Northern District of New York, but it could … 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

Evicted Tenant Granted Relief From Forfeiture in Commercial Lease Case

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.Civil Litigation, Commercial Leasing, Contract Disputes0 Comments

In Kristen Lee Nesbitt v. RJH Reinsurance Services Inc., 2014 ONSC 2643, the landlord evicted the tenant due to alleged unpaid rent, realty taxes, water bills and arrears on a demand loan for leasehold improvements.  The tenant applied to the Court for relief from forfeiture (e.g. possession of the premises) under the Commercial Tenancies Act, R.S.O. 1990, c. L.7, in order to continue operating its restaurant business on the premises. Since relief from forfeiture is an equitable remedy, the Court must consider the proceedings and the conduct of the parties under the circumstances, and any such terms as to payment of rent, costs, expenses, damages, compensation, penalty or the granting of an injunction to restrain any similar breach in the future.  Justice Morgan found that the tenant did not appear to come to the Court with “unclean hands” as the dispute was regarding an accounting issue and the terms of the lease agreement, and it was not equitable to put the tenant out of business … Read More