384125 Ontario v The Diamond at Don Mills Developments, 2015 ONSC 5581
Decision Date: September 4, 2015
The 25 plaintiffs are small business owners who purchased condominium units in “The Diamond at Don Mills,” a retail/commercial development. The defendants are the vendor and developer of the condominium in question, and Parallax Investment Co., who initially owned the land and transferred title to Diamond before the Agreement of Purchase and Sale was entered into. The plaintiffs are suing for about 7 million dollars, charging that their purchases were induced by misrepresentations, that they were burdened with unjustified price increases at closing, and that they were overcharged on occupancy fees. The value of the defendants’ assets, as known to the plaintiffs, is about $500,000. According to evidence, the funds from the sale of the last unit were paid out by Diamond to its creditors and investors. In this action the plaintiffs seek an order preventing Diamond Inc. from in any way disposing of or mortgaging their remaining assets.
Justice Mew noted that the law has “a strong disinclination” to permit execution before judgment. The order that the plaintiffs seek requires strong prima facie evidence that the defendant is about to dispose of its assets in a manner distinct from its usual course of business. In the absence of such evidence, the plaintiffs’ motion is dismissed and they are to pay costs of $22,000, fixed on a partial indemnity scale.
Comment: Justice Mew notes that it is an “everyday risk” of civil litigation that a defendant will be unable to satisfy a judgment against it.
Williams Estate v Carleton Condominium Corporation No. 66, 2015 ONSC 5479
Decision Date: September 3, 2015
In 2012 the executor of the Estate of George Williams sued The Carleton Condominium Corporation No. 66 for water damage to the estate’s condominium unit. The water damage originally dates to December 2009. The statement of claim did not specify ongoing problems with water leaks. In this action, the plaintiff seeks to amend substantially the original statement of claim to include ongoing problems and to make claims under the Condominium Act for breach of fiduciary duty and for an oppression remedy. The defendant resists these amendments on a number of grounds.
Justice Maranger gave permission for the claim to be amended, saying that the core of what is being claimed – the ongoing water damage – should not be a surprise to the defendant, and that denying the amendment could have the result of multiple lawsuits involving the same parties arising from the same issues. He was “strongly inclined” to order no costs.