Condo Law Digest – April 2017

Campfire 4213.jpgHeyde v Theberge Developments Limited, 2017 ONSC 1574
Decision Date: March 9, 2017
http://canlii.ca/t/h1t67

In Ontario, a Class Action suit must be “certified” by a judge before it can proceed. In this ruling Justice R. Smith has allowed a Class Action suit by owners in the Alta Vista Ridge Development in Ottawa. The plaintiff alleges that the defendant Theberge did not include a heating system in accordance with the specifications in the Disclosure Statement. Each unit purchased before Feb 2015 was supposed to include a forced air heating system. It turned out that the heating system was not included with the unit but was a rental. The plaintiff also proposes a sub-class whose Agreement of Purchase and Sale included a basement storage unit, which was not provided by the defendant. The plaintiff argues that this breach also gives rise to claims of negligent and fraudulent misrepresentation, breach of contract, and failure to act in good faith, among other breaches.

Theberge opposed certification of the class action, arguing that there is no identifiable class, no common issues, and that a Class Proceeding would not be the preferable procedure. Justice Smith disagreed, saying that it was not “plain and obvious” that the plaintiff would be unsuccessful. However he declined to allow any personal claims against Joey Theberge, saying that the plaintiff’s Statement of Claim did not provide any material facts in support of the allegations against him personally.

Law Society of Upper Canada v. Cho, 2017 ONLSTH 48
Decision Date: March 8, 2017
http://canlii.ca/t/h1r1f

Deposits for new condominiums must be held in trust. Meerai Cho, a lawyer, held funds in trust for Centrium between 2010-2013. During this period, she took funds from the trust account and sent them to Joseph Lee, the developer, who promised to pay it back later. Instead he stole the money and fled the country. Over 140 condominium purchasers lost a total of 13 million dollars. Ms Cho is now in jail, having pled guilty to the offense of breach of trust. This LSUC Tribunal found that she engaged in professional misconduct and ordered the most serious penalty, that her license be revoked. Ms Cho had asked for the second most serious penalty (permission to surrender her license rather than have it revoked).

Comment: In the words of D. Wright, panel chair: “A transgression as serious as this – no matter what the person’s record, remorse, or standing in the community – generally leads to revocation of one’s license.”

About the image: By Dirk BeyerOwn work, CC BY-SA 3.0, Link

Posted in Condo Disputes.

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