Legal Blog:

Consumer Protection Act – Residential Construction

The Fifth Wall v. Tonelli 2022 Ont SCJ (AJ)

The associate judge held that the Consumer Protection Act applied to a cost plus renovation contract. Section 10 of the Act provides that, if a consumer agreement includes an estimate, the supplier cannot charge an amount that exceeds the estimate by more than 10% unless, if the consumer required additional or different goods or services, the consumer and supplier agreed to amend the estimate. The judge refused to grant partial summary judgment to the consumer holding that there was a genuine issue for trial dealing with whether the disputed items were “estimates.” These items fell within 3 categories: items described as an allowance, items with a dash or no amount, and items with no caveats in the description.

Real Property Limitations Act – Trust Claims

Studley v. Studley 2022 Ont CA

The RPLA, with its 10-year limitation period rather than the usual two-year period, applies to circumstances in which the ownership of land is in question. It also applies to a monetary claim that shelters under the claim for land. Accordingly, a claim for a resulting trust in property is subject to the RPLA and a claim for damages, if that property is sold, is also subject to the RPLA.

Norwich Order

1061307 Ontario Inc. v. Wang and Weng 2022 Ont SCJ

Creditor brought a motion for a Norwich order against 2 separate lawyers who had been involved in real estate transactions that seemingly used the debtor’s money, but were shown under the names of the debtor’s relatives. The lawyers attended and fought the motion, but their clients did not appear. The court held that there was little in a real estate file that could be solicitor-client privileged and ordered the files produced, subject to the lawyers requesting the judge to exempt a document based on solicitor-client privilege.

Insurance (4)

We keep discussing insurance because it keeps rearing its ugly head. In earlier years, the courts seemed to indicate that a party who had an obligation to insure against a risk also bore the risk. It now seems that this is not so. This was made readily apparent in Capital Sewer Servicing Inc. v. Crosslinx Transit Solutions Constructors, a 2022 decision of the Ontario Court of Appeal.

Damage

Owner entered into a contract with the general contractor to complete work on the Eglinton light rail project. General subcontracted the work on the sewer system. At approximately the same time as that sub was working in an area, two properties adjacent to the area experienced the joys of a sewage backup. The property owners brought an action against both sub and general.