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Why I am happy I do not practice real estate law…

One of the more stressful situations that arises for people buying or selling real estate, and their lawyers, is the one where an Agreement of Purchase and Sale contains an inaccurate statement and a purchaser threatens to terminate the transaction unless he gets an abatement in the purchase price. 

Unfortunately, decisions about closing often have to be made very quickly and often without a fully developed set of facts to consider.

At this point, it could well be a matter of who blinks first.  If the transaction aborts, a lawsuit ensues, and the matter goes to trial, the party considered by the court to have been in the wrong could face a massive damages award.  Unfortunately, decisions about closing often have to be made very quickly and often without a fully developed set of facts to consider. 

Many of these circumstances come down to an interpretation as to whether the statement in dispute is to be considered a “condition” or a “warranty”.  Continue reading →

Arbitration is becoming an increasingly popular way of resolving disputes.  This trend is probably due, in large measure, to the increasingly common practice of including arbitration clauses in contracts.  Nevertheless, misunderstandings about arbitration continue to be prevalent, even among the most sophisticated business people.  My previous post consisted of a video in which I discussed two of these myths.  Here are some more.  This article will attempt to identify and explain a number of common myths about arbitration.

Myth #3:  Arbitration is not available in commercial disputes in the absence of an arbitration clause

Where a contract provides that disputes under the contract are to be resolved by arbitration, the parties have no choice but to arbitrate such disputes unless they agree to amend the contract, in effect, by deleting that clause.

However, even in the absence of an arbitration clause, or a written contract, for that matter, it is always open to parties to agree to arbitrate their dispute.  All that is required is for both parties to agree on the scope of the arbitration and the identity of an arbitrator.  Most of the other procedural details, even if not determined at the outset, can be worked out during the course of the matter, with or without the participation of the arbitrator.  Continue reading →

I have developed a list of commonly held myths about arbitration which I would like to share with you.  I have prepared a video in which I discuss a few of these myths.  Please click on the link below.

http://www.youtube.com/watch?v=Y_mZnOUmnhs

On November 8, 2011, the Ontario Court of Appeal released its decision in the case of Schneeberg v. Talon International Development Inc. (2011 ONCA 687), a case involving the sale of a condominium unit to be built in the Trump International Towers development in downtown Toronto, Ontario. 

Mr. Schneeberg bought the unit to be built under an agreement made in 2004.  The agreement provided that the closing would take place on March 20, 2009, assuming that it was ready for occupancy.  It was not ready on that date, and the vendor attempted to unilaterally extend the closing date to give itself more time to finish it.  Eventually, Mr. Schneeberg decided to terminate the transaction and brought an application to the court for the return of his deposits.  The application judge granted that relief, and the vendor appealed to the Court of Appeal.

Purchasers must be given some reasonable opportunity to terminate transactions if delays are excessive.

The fact that newly constructed condominium units are frequently not ready for occupancy on the date originally contemplated by the parties and reflected in the Agreement of Purchase and Sale is well known to anyone who has ever been involved in this type of transaction.  The Court of Appeal made the following observations:

“There is no dispute over the fact that purchases and sales of condominiums are commercial transactions within an industry uniquely plagued by delays.  These delays are caused by the market, as the sale of units in a new development dictates the availability of financing, by the vagaries in the construction process, and by the complexities associated with the registration process required by the Condominium Act.  Delays in the closing of condominium units are expected.  They are part of the business of developing condominium projects and, it follows, part of purchasing a newly-constructed unit.”

Continue reading →

My partner, Arnie Herschorn, recently won a summary judgment motion in an interesting case involving a latent defect in a house.  At one time, the law permitted a person to sell a house that was deficient in some way, and even in a significant way, without disclosing the defect.  This fell under the framework of the term “caveat emptor” or “buyer beware”. 

It is possible for a court to recognize a disclosure obligation where certain types of convicted criminals live in the area, or there may be some other attribute that might impact a purchaser generally or a particular purchaser specifically, i.e. one with young children.

The law has come some distance since those days and now may well recognize an obligation not only to disclose latent defects affecting the structure of the dwelling, in some circumstances, but even defects having nothing to do with the integrity of the building itself but relating only to other circumstances affecting the property that might influence a purchaser.

In Arnie’s case, our clients purchased a home north ofTorontoin the summer of 2010.  They were a young couple with two young children.  After closing but before they moved in, they discovered that a man convicted of possession of child pornography resided across the street.  As a result, they did not consider that the house they had just purchased would be a safe place to live and they took action against the vendor and the vendor’s real estate agent, arguing that this information should have been disclosed to them.  Apparently, this fact was common knowledge in the neighbourhood.

The vendor brought a motion for summary judgment to dismiss the action on the basis that it could not possibly succeed based on the law ofOntarioas it present stands.  Arnie opposed the motion and won.  The judge ruled that an obligation to disclose this information, which might reasonably be seen as making the house uninhabitable by a purchaser with young children, might well exist in law and certainly deserved to be reviewed at a trial. 

Continue reading →

I don’t do criminal work, but I do enjoy reading and talking about criminal law cases.  I find that people generally get a charge out of it (no pun intended).  Mention O.J. Simpson at a cocktail party, and you’ll see what I mean.  This is particularly true when the discussion turns to the topic of plea bargains.

As difficult as it may be to accept, the fact is that our system could not possibly function without the use of plea bargains.

 Several months ago, the Supreme Court of Canada decided the case of R. v. Nixon ([2011] S.C.J. No. 34).  In that case, Ms. Nixon was charged with dangerous driving causing death, impaired driving and other related offences.  Her lawyer signed a written agreement with the Crown providing for a plea bargain:  Nixon would plead guilty to a charge of careless driving, and all other charges would be dropped. 

 When the agreement came to the attention of the Assistant Deputy Minister (ADM), the ADM decided that this deal was not in the interests of justice and instructed the Crown to disregard the agreement and proceed to trial.  Nixon then brought an application under the Charter of Rights to have the Court require the Crown to adhere to the agreement.  The judge hearing the application agreed with Nixon and found that the Crown’s withdrawal from the agreement was an abuse of process.  The case ended up in the Supreme Court of Canada. Continue reading →

Defamation is an intentional tort that involves a false communication harming a person’s reputation or tending to lower the regard in which a person is held. 

For the tort to arise, the defamatory statement must be communicated or published.  To prove publication, a Plaintiff has to establish that the Defendant has conveyed the defamatory meaning to at least one third party, who has received it.

Defamation is tricky at the best of times. The internet has made defamation cases even trickier.

There are now a number of cases that have been decided at a reasonably high level of court dealing with defamatory remarks made on the internet, both in articles and on blogs.  Most of these decisions raise the same issues as are raised in the context of newspaper articles.  One unique feature of the internet as compared to newspapers, however, is the ubiquitous hyperlink.  Where does that fit in?

Continue reading →