of the Act. The trial judge applied s. 73.1
retroactively and dismissed appellant’s
application.
HELD: Appeal allowed. The trial judge
erred in giving s. 73.1 retrospective effect.
There was nothing in the wording of the
provision that expressly or by necessary
implication required retrospective application. While there was evidence that the
provision was remedial, given that it was
enacted in response to a court decision,
there was no specific evidence that the
legislature intended the amendment to be
applied retrospectively. In addition, the
amendment could not be categorized as
procedural as it had the effect of granting
substantive rights in respect of a previously unenforceable lease.
Idle-O Apartments Inc. v. Charlyn
Investments Ltd., [2010] B.C.J. No. 2020,
B.C.C.A., per Levine J.A. (Smith and Kirk-
patrick JJ.A. concurring), Oct. 19/10.
Digest No. 3027-016 (Approx. 10 pp.)
LIMITATION OF ACTIONS
DISCOVERABILITY – Plaintiffs
entitled to add a city as defendant and
amend their statement of claim where
there was a triable issue as to discover-
ability.
Motion to add the city as defendant and
to amend the statement of claim to reflect
claims discovered in 2009. Plaintiffs
retained defendant to construct their new
home and took possession in 2003. By
December 2004, the septic system had
malfunctioned and the parties could not
agree on responsibility. Plaintiffs retained
an engineer in 2005 and commenced the
action against defendant in 2006. Defendant’s statement of defence and third party
claim attributed liability to the city, but
plaintiff did not add the city at that time.
In the 2009 winter, plaintiffs discovered
problems with the HVAC and plumbing
systems. Plaintiffs then sought to add the
city. The city argued that plaintiffs were
trying to draw it into the original action
after the limitations period had expired.
HELD: Motion allowed. There was a
triable issue as to the discoverability of the
HVAC and plumbing systems problems.
While plaintiffs were aware of other deficiencies earlier, it was not clear that they
would have discovered these problems
through due diligence. Plaintiffs were not
required to tear their entire home apart at
the first discovery of deficiencies in order
to avoid limitations issues. The city was
still entitled to plead a limitations defence.
Dobson v. K. Knudsen Construction
Ltd., [2010] O.J. No. 4434, Ont. S.C.J.,
Leroy J., Oct. 13/10. Digest No. 3027-
017 (Approx. 6 pp.)
town had a duty to disclose the former use
of the lands. Plaintiff did not discover that
a portion of the property had also been
used as a waste disposal area until the subdivision process was underway.
HELD: Motion granted. The town was
bound by the provisions of s. 9 of the
Municipal Tax Sales Act (Ont.) to conduct the tax sale in the form prescribed,
which indicated and confirmed that the
municipality was making no representations regarding the title or any other matters relating to the land to be sold. There
was no duty on the town to disclose potential problems with the land. In any event, a
reasonable land developer acting diligently should have completed further land
inspections before investing considerable
amounts of time and money in a development project, particularly given the land’s
proximity to an old waste disposal site.
Plaintiffs knew or ought to have known in
late 2006 that the land was contaminated.
The action was statute-barred.
Tayview Properties Inc. v. Perth
(Town), [2010] O.J. No. 4391, Ont.
S.C.J., Sheffield J., Oct. 13/10. Digest
No. 3027-018 (Approx. 8 pp.)
REAL PROPERTY
PROFESSIONS
& OCCUPATIONS
REAL ESTATE AGENTS – Appel-
lants failed to establish that they relied
on representations made by respondent
real estate agent in purchasing condo-
minium units.
Appeal from the dismissal of appellants’ action against respondent G for
fraudulent misrepresentation. The appeal
resulted from the aborted sale of 12 condominium units. Both G and appellant S
were realtors. Appellants signed a standard form commercial real estate offer to
purchase condominium units and made a
deposit of $100,000 in trust. S was later
advised to substitute the commercial standard form contract with four residential
standard form contracts comprising three
units on each contract. G agreed to issue
four residential contracts identifying S as
the purchaser. In anticipation of mortgage
financing approval, “property check lists”
were prepared, which appellants construed as material misrepresentations by
G. These proved not to be factual. Before
the closing date, S notified respondents
that she would not close because she had
entered into the contracts in reliance upon
G’s misrepresentations. Appellants sued
for return of their deposit. The trial judge
held that there was no evidence that G
knew that any of the representations she
made were false.
HELD: Appeal dismissed. The trial
judge’s reasons were unassailable. S was a
qualified real estate agent who knew or
ought to have known that any representations about a property needed to be incorporated in a written real estate contract in
order to be enforceable. Any reliance that
she placed on oral representations about
the age or configuration of the subject
property, or the amount previously paid,
were not reasonable. Furthermore, appellants’ failure to establish reliance also
doomed any claim against G based on negligent misrepresentation.
LMK Marketing Inc. v. 1133181
Alberta Ltd., [2010] A.J. No. 1193, Alta.
C.A., per Berger, Slatter and McDonald
JJ.A., Oct. 19/10. Digest No. 3027-019
(Approx. 7 pp.)
ADVERSE POSSESSION – Length
of time appellants used a disputed strip
of land was insufficient to establish a
claim for adverse possession.
Appeal from the dismissal of appellants’
claim for adverse possession of a three-foot
wide strip of property located on the boundary between their lot and the adjacent lot,
owned by respondents. The two lots were
previously owned by one family and used as
joint vacation property. Appellants claimed
they had exclusive possession over the disputed portion of the lands from the time
they obtained ownership of their lot in 1997.
A 2002 survey confirmed the disputed
lands were on respondents’ property. In the
meantime, appellants had constructed a
new retaining wall, erected an old mailbox,
planted extensively in the flowerbed and
erected a fence over a portion of the strip of
land. Respondents made some use of the
strip during that time as well. In 2007
respondents commenced an action for a
declaration appellants had no interest in the
disputed strip of property and an injunction
requiring them to remove any structures
they had placed there. The judge found that
appellants knew where the boundary was
when they acquired their lot and engaged in
the use of the disputed strip in a deliberate
attempt to obtain ownership through
adverse possession. They had not had possession of the strip long enough to establish
an adverse possession claim.
HELD: Appeal dismissed. There was
evidence that the parties shared the property
without concern for property lines. The trial
judge properly applied the law of adverse
possession. The length of time appellants
used the disputed strip of land was insufficient to establish an adverse possession
claim. There was no evidence respondents
had been excluded from the property.
Shennan v. Szewczyk, [2010] O.J.
No. 4426, Ont. C.A., per Cronk, Blair
and LaForme JJ.A., Oct. 19/10. Digest
No. 3027-020 (Approx. 5 pp.)
TRUSTS
TESTAMENTARY TRUSTS –
Trustee ordered to pay out a benefici-
ary’s interest in her trust fund.
Classifieds
MUNICIPAL LAW
TAX SALE – Defendant town did not
owe duty of care to plaintiffs to disclose
problems with land sold in a tax sale.
Motion for summary judgment to dismiss plaintiffs’ claim on the grounds that
the action was barred by the application of
the doctrine of caveat emptor and was
statute-barred. Plaintiffs acquired lands
through a tax sale from defendant town in
2000 for $5,100. In 2006, they acquired a
further parcel abutting the original lands
for $2. Plaintiffs now alleged that the original lands were formerly used as a municipal landfill site and not suitable for residential housing development, and that the
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