Case information

None.

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

Property — Condominiums — Agreements — Material changes — Where the declarant delivers a new disclosure statement, what is required for the new documentation to qualify as a “revised disclosure statement or notice” for the purposes of the Condominium Act, S.O. 1998, c. 19, s. 74(3) — Whether purchasers’ subjective expectations of the project should be considered in determining whether or not a “material change” has occurred — Whether the intended use of the condominium unit should be considered when determining whether a “material change” has occurred — If so, whether the economic impact test proffered by Talon is valid for the purposes of the Act — Whether a declarant seeking a judicial determination that no “material change” has occurred bears the legal onus of proof as to whether or not a “material change” has occurred — Whether the declarant forfeits its right to object to a notice of rescission for untimeliness when it fails to raise this issue in its notice of application or in any of its affidavit material — Whether s. 74(6) revives the limitation period applicable to an otherwise untimely notice for another 10-day period following a judicial determination of a “material change” having occurred.

In 2005, Mr. Jung and Long Ocean Holdings Inc. purchased two commercial hotel condominium investment units developed by Talon International Inc. A disclosure statement in accordance with the Condominium Act, S.O. 1998, c. 19, was provided to them. The commercial hotel structure was completed and registered under the Act, and, in February 2012, the units were delivered to Mr. Jung and Long Ocean. On May 1, 2012, a further disclosure statement and summary were delivered to Mr. Jung and Long Ocean. Based on changes to the development they considered material, Mr. Jung and Long Ocean gave notice that they were rescinding their agreements to purchase the units.

Talon applied for declarations that the agreements of purchase and sale were binding, that the notices of rescission are void, and that the project changes do not, individually or cumulatively, constitute material change. Arguing that there were material changes to the development, Mr. Jung and Long Ocean applied for orders dismissing the application and refunding all of the deposits they have paid; they also claimed the return of the paid net common expenses for interim occupancy changes and accrued statutory interest. They claimed the 2012 disclosure statement did not identify any changes from the 2005 disclosure statement, and that the summary that accompanied the 2012 disclosure only identified some of the changes.

Talon’s application was granted and the requested declarations were made; the application by Mr. Jung and Long Ocean was dismissed. The appeal was dismissed.