The plaintiffs sued the defendants when they failed to close on a deal for a preconstruction condominium unit in British Columbia.
The defendants alleged they did not receive a disclosure statement before signing the agreement and did not have the opportunity to review it.
The seller’s real estate agent testified to her business practices of “always” providing the disclosure statement before a contract to purchase was signed. She had many years of experience selling preconstruction condominiums. Her testimony was accepted by the court.
“In my view, given the passage of time that has elapsed between the events of July 4, 2007 and the point when the provision of the disclosure statement became an issue, the reliability of the defendants’ memories and the natural tendency to merge or conflate separate events in the past undermines the defence being advanced,” the judge said.
(Bosa Properties [Edgemont] Inc. v. Ban, 2012 BCSC 94)
In an Ontario case, the plaintiff agreed to sell its property to a corporation and a part of the consideration was a promissory note. When no payment was made on the promissory note, the vendor sued the corporation.
The corporation then made allegations that there were latent defects, breach of representation and warranties by the vendor. There was also an allegation of failure to make full disclosure.
The court noted that the Agreement of Purchase and Sale was not rescinded by the corporation. It also noted that the corporation had information for about a year prior to closing and that any new information added little or nothing to what the corporation already knew. The corporation could have rescinded the transaction in accordance with conditions in the agreement, but it chose to close the deal. Therefore the court awarded judgment to the plaintiff on the promissory note. (French Family Funeral Home Limited v. William Player, Joanne Harpell and Bruce Holtom, and 1564714 Ontario Ltd. and 1872864 Ontario Inc., 2015 ONSC 182)
Donald Lapowich, Q.C. is a partner at the law firm of Koskie, Minsky in Toronto, where he practices civil litigation, with a particular emphasis on real estate litigation and mediation, acting for builders, real estate agents and lawyers.
