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CONDOMINIUMS - Purchase and sale of - Deposits - Termination of purchase agreement - Written notice of rescission

Thursday, May 11, 2017 @ 8:32 AM  

Lexis Advance® Quicklaw®
Appeal by Talon International (Talon) from a decision which allowed the respondents’ applications for the return of deposits they had paid toward purchases of condo units in Talon’s development, Trump Tower. Several years after entering into their respective agreements of purchase and sale, the respondents, Yim and Harvey, each provided Talon with written notices of their intentions to terminate their transactions, based on material changes to the revised disclosure statement Talon had provided. Talon did not challenge the right of either Yim or Harvey to rescind within time, but defended the applications on the basis that the notices did not meet statutory requirements. The application judge ordered Talon to return both deposits, with interest. She accepted that the notices that Yim and Harvey delivered met the statutory requirements of being in writing, being delivered to Talon, and identifying a ground of material change upon which rescission was based. The judge rejected Talon’s argument that Yim’s claim was statute-barred because two years had lapsed since she discovered the basis for a rescission claim. She held that a 10-year limitation period applied, as per the Real Property Limitations Act, which governed claims for the refund of deposits advanced toward the purchase of condo units.

HELD: Appeals dismissed. It would be contrary to the purpose of the Condominium Act, as consumer protection legislation, to adopt a technical approach in interpreting what the purchasers needed to do to notify Talon of their intention to rescind. The fact that neither Yim nor Harvey used the words rescind or rescission in their notices was not determinative. The notices made their intentions clear. Yim’s application was not statute-barred, as it was clear that the 10-year limitation period in the Real Property Limitations Act applied to her claim, as opposed to the two-year limitation period in the Limitation Act. Her application dealt with money given for the purchase of land.

Yim v. Talon International Inc., [2017] O.J. No. 1609, Ontario Court of Appeal, R.A. Blair, G.J. Epstein and G. Huscroft JJ.A., March 31, 2017. TLD-May82017011