COURT OF APPEAL FOR ONTARIO
Epstein, Pepall and Benotto JJ.A.
BETWEEN
Runquan Jiang
Plaintiff (Appellant)
and
Jade-Kennedy Development Corporation,
Tradeworld Realty Inc., and Philip K.S. Ching
Defendants (Respondent in appeal)
John O’Sullivan, for the appellant
Stephen Schwartz, for the respondent Jade-Kennedy Development Corporation
Heard: March 10, 2015
On appeal from the order of Justice Madam Pollak of the Superior Court of Justice, dated March 20, 2014.
ENDORSEMENT
1The narrow issue before us is whether the trial judge erred when she found that the presence of a large pillar blocking part of a storefront in a constructed condominium unit was not an undisclosed material change in contravention of the Condominium Act 1998, S.O.1998, c.19.
2The appellant purchased a pre-construction commercial condominium unit from the respondent. He was provided with a disclosure statement containing two draft condominium plans. Two months later, he received a supplemental disclosure statement that contained a revised draft condominium plan. In all three plans the storefront was depicted by a straight line. The appellant thought that the storefront of his unit would be all glass. However, three years later, he inspected the nearly-completed unit and discovered a large concrete pillar bisecting the glass store front. The appellant refused to close the transaction. Litigation ensued in which the appellant’s claims include rescission and damages.
3A trial of an issue was directed on the sole issue of the respondent’s compliance with the disclosure requirements under the Condominium Act. The issue was framed as follows:
A determination that the features of the constructed condominium…constitute[s] a material change that was not disclosed in the material required to be provided to the [appellant] pursuant to the Condominium Act 1998, S.O.1998, c.19.
4Under s. 73 of the Act, a finding in the appellant’s favour would entitle him to rescission.
5Section 72(1) of the Act requires a condominium developer to deliver a disclosure statement to the purchaser. The contents of the disclosure statement are listed in section 72(3). If there is a material change in the information in the disclosure statement, the developer must deliver a revised disclosure statement (section 74(1)). Material change is defined as a change that a reasonable purchaser, on an objective basis, would have regarded as sufficiently important to the decision to purchase a unit that it is likely that the purchaser would not have entered into an agreement of purchase and sale for the unit or would have exercised his s.73 right to rescind.
6The appellant argued that the existence of the pillar was not disclosed in either of the disclosure statements, as the straight line on the draft plans led one to believe that no pillar would be present. The existence of the pillar constituted a material change that should have been disclosed.
7The trial judge found that the appellant’s assumption that the storefront shown on the plans was all glass was not supported by the documents provided. In particular, the straight line on the storefront does not represent what type of construction material would be used. It could have represented any type of material. To qualify as a material change, the change had to be information that was contained in the disclosure statement.
8The appellant submits that the trial judge erred in two ways:
by finding that there was no material change in the information contained in the disclosure statement; and
by finding that the disclosure statement was not required to disclose the pillar.
9With respect to the first point we agree with the decision of the trial judge.
10The straight line on the condominium plans, which were all schematic in nature, did not indicate the absence of a pillar, thus the presence of a pillar did not constitute a material change. The Act requires that the disclosure statement provide that the plan is “intended to give purchasers an overview of the units in the Condominium and the location of the Condominium.” It was not intended to provide structural details.
11The appellant’s second point was not the subject matter of the issue ordered to be tried, was not argued before the trial judge, and is not addressed in the judgment under appeal. In these circumstances, we decline to address this issue.
12For these reasons, the appeal is dismissed with costs payable to the respondent, of $7,000.00 inclusive of disbursements and HST, as agreed upon by counsel.
“Gloria Epstein J.A.”
“S.E. Pepall J.A.”
“M.L. Benotto J.A.”