Haya Sardar

The appellant purchasers appealed a judgment enforcing a limitation of liability clause in a pre-construction condominium agreement of purchase and sale that restricted their damages for the respondent developer's breach to the return of deposits with interest.

The appellants argued the clause was unconscionable, contrary to the consumer protections of the Tarion Addendum, and that the respondent should have brought it to their attention.

The Court of Appeal found no error, noting that the appellants were sophisticated purchasers represented by counsel who negotiated significant changes to the agreement, and that the Tercon analysis provided an effective safeguard against abuse of limitation clauses.

This decision concerns a comeback motion on a Mareva injunction originally granted against Alykhan Karmali and AK&H Ltd. The plaintiff, Latif Nanji, alleges that he was induced to invest millions of dollars in a business venture based on fraudulent misrepresentations by the defendants.

The court reviews the background of the investments, the lack of supporting documentation, and the use of funds by the defendants.

The court finds that the plaintiff has established a strong prima facie case for fraudulent misrepresentation and that the risk of dissipation of assets justifies the continuation of the Mareva injunction.