COURT OF APPEAL FOR ONTARIO
Rouleau, van Rensburg and Benotto JJ.A.
BETWEEN
Sarbjit Singh
Plaintiff (Appellant)
and
Donald John Trump Sr., Trump Toronto Hotel Management Corp., Trump Marks Toronto LP, Talon International Inc., Talon International Development Inc., Val Levitan, Alex Shnaider and Toronto Standard Condominium Corporation No. 2267
Defendants (Respondents)
AND BETWEEN
Se Na Lee
Plaintiff (Appellant)
and
Donald John Trump Sr., Trump Toronto Hotel Management Corp., Trump Marks Toronto LP, Talon International Inc., Talon International Development Inc., Val Levitan, Alex Shnaider and Toronto Standard Condominium Corporation No. 2267
Defendants (Respondents)
Mitchell Wine and Kevin D. Sherkin, for the appellants
Symon Zucker, Melvyn L. Solmon and Nancy J. Tourgis, for the respondents
Heard: June 23, 2016
On appeal from the orders of Justice Paul M. Perell of the Ontario Superior Court of Justice, dated July 10, 2015, with reasons reported at 2015 ONSC 4461, 47 B.L.R. (5th) 269.
1In the mid-2000s, Sarbjit Singh and Se Na Lee each bought a Hotel Unit in the Trump International Hotel, a five-star building to be built in Toronto’s financial district. Mr. Singh and Mrs. Lee were both middle-class residents of the Greater Toronto Area and had no intention of occupying the Hotel Units themselves. Instead, they bought the units as investments, expecting that they would profit by participating in the hotel’s “Reservation Program”.
2Under the Reservation Program, owners of individual Hotel Units could place their units in a common pool of rooms to be rented out at luxury rates by the hotel’s operator. Their expectation was that high occupancy and rental rates at the one-of-a-kind Trump International Hotel would provide healthy returns, even after deducting monthly expenses such as property tax, mortgage payments and housekeeping.
3Neither Mr. Singh nor Mrs. Lee were sophisticated investors, in real estate or otherwise. Both had to borrow heavily from family to finance their purchases. Both believed that buying into the Trump project would be an excellent investment. And in time, both came to realize that they were wrong.
4In separate but similar actions, Mr. Singh and Mrs. Lee sued for rescission and damages, claiming they were misled by marketing materials that projected impressive profit margins for purchasers who participated in the Reservation Program. They brought motions for partial summary judgment against the respondents Talon International Inc. (“Talon”), Donald John Trump Sr. (“Trump”), Val Levitan and Alex Shnaider. The motions judge dismissed the motions and, in addition, dismissed the claims against Trump, Levitan and Shnaider in their entirety. This is an appeal from that decision.
A. BACKGROUND
5The motions judge exhaustively reviewed the factual background in his lengthy reasons. I will focus on the details necessary to decide the appeal.
(1) The Trump International Hotel project
6In the early 2000s, Talon International Development Inc. and its parent Talon launched plans to develop a luxury hotel and condominium in downtown Toronto. At that time, Alex Shnaider was a Director and the Chairman of Talon. Val Levitan was a Director and the Chief Executive Officer and President of Talon. Mr. Levitan had no previous experience in construction, hotel management, or operations.
7Talon joined forces on the project with Donald J. Trump Sr., the New York-based developer, reality television personality and now presidential candidate. It entered into a licence agreement with Trump Marks Toronto LP to use the Trump name and trademarks for the building, which would be called Trump International Hotel & Tower. Talon also entered into an agreement with Trump Toronto Hotel Management Corp. to operate the Trump International Hotel.
8The Trump International Hotel & Tower was intended to be, and was ultimately built as, a 70-storey mixed-use complex at the corner of Bay and Adelaide Streets in Toronto’s downtown core. The building would contain two condominiums, one composed of residential condominium units and the other composed of full-service luxury hotel guestroom condominium units. Talon proposed to market and sell both types of units to the general public.
9Persons who bought Hotel Units would have to participate in a maintenance and operation program to cover expenses related to the upkeep of the hotel. Crucially for purposes of these actions, they would also be given the option of participating in the hotel’s Reservation Program. Under the Reservation Program, the hotel would rent the purchasers’ units out through its own system when the purchasers themselves or their guests were not occupying them. After the hotel deducted the expenses related to the Reservation Program, it would remit the rental income to the Hotel Unit purchasers. The Hotel Unit purchasers would use the profits from the room rentals to offset the carrying costs of the condominiums and to generate income.
(2) The Ontario Securities Commission ruling
10In 2004, Talon’s then-lawyers wrote to the Ontario Securities Commission (“OSC”) seeking a ruling under s. 74(1) of the Securities Act, R.S.O. 1990, c. S.5, which would exempt the sale of the Hotel Units from the dealer registration and prospectus requirements of ss. 25 and 53 of the Act.
11Talon’s lawyers sought this exemption because, under s. 1(1) of the Securities Act, the definition of “security” includes “any investment contract”. Without conceding the point, Talon’s lawyers explained in its application for the exemption that there was “a risk that a Hotel Unit could be considered an investment contract” for purposes of the Act. If so, without an exemption the units could not be sold or resold by real estate brokers, and any sale or resale would have to comply with the dealer registration and prospectus requirements of the Act.
12In other words, Talon wanted the Hotel Units to be treated as real estate, not as securities.
13In their application letter to the OSC, Talon’s lawyers correctly explained that the test for what constitutes an “investment contract”—which makes it a “security”—is contextual. Generally, an investment contract is found to exist where:
(a) a person invests his or her money;
(b) in a common enterprise;
(c) with the expectation of profits;
(d) solely, primarily or significantly attributable to the efforts of others.
See SEC v. W.J. Howey Co. (1946), 328 U.S. 293; State Commissioner of Securities v. Hawaii Market Centre Inc. (1971), 485P 2d 105; Pacific Coast Coin Exchange of Canada Ltd. v. Ontario (Securities Commission), 1977 CanLII 37 (SCC), [1978] 2 S.C.R. 112.
14Talon’s lawyers acknowledged that, upon applying these criteria, the Hotel Units “could be considered investment contracts because they must provide accommodation for gain or profit by being part of a Reservation Program”. “Notwithstanding this interpretation,” the lawyers went on, Talon should be exempt from the registration and prospectus requirements of the Act “because of the way in which the Hotel Units will be structured.”
15In particular, Talon’s lawyers represented that the units would “not be marketed or structured as investments for profit or gain”. They would be “marketed as luxury hotel condominium units entailing exclusive occupancy rights, coupled with an opportunity to defray related ownership expenses in connection with periods of non-occupancy through voluntary participation in the Reservation Program.” Neither Talon nor the sales agents would “make any representation that any Hotel Unit will be able to be rented at any particular rate, or for any particular period of time”.
16Talon’s lawyers explained that:
In keeping with this marketing approach of emphasizing the predominance of the luxury transient hotel occupancy features of Hotel Units, prospective purchasers of Hotel Units will not be provided with rental or cash flow forecasts or guarantees or any other form of financial projection or commitment on the part of [Talon].
17In a ruling dated May 25, 2004 (the “OSC Ruling”), the OSC granted Talon the exemption it requested. The key passages state:
UPON the application of Talon International Inc. (the “Applicant”) to the Ontario Securities Commission (the “Commission”) for a ruling pursuant to s. 74(1) of the Act (the “Application”) that the sale by the Applicant of hotel condominium units within a certain building to be known as Trump International Hotel & Tower ... will not be subject to sections 25 and 53 of the Act;
AND UPON considering the Application and the recommendation of the staff of the Commission;
AND UPON the Applicant having represented to the Commission as follows:
Hotel Units will be marketed primarily as first-class luxury hotel condominium units to be used for short-term transient hotel occupancy or for longer term occupancy. The Reservation Program is merely a secondary feature which offers participating purchasers a means to defray related ownership expenses, as opposed to an investment vehicle for making a gain or profit.
Prospective purchasers of Hotel Units will not be provided with rental or cash flow forecasts or guarantees or any other form of financial projection or commitment on the part of the Applicant.
The economic value of a luxury hotel condominium of this type will be attributable primarily to its real estate component because Hotel Units will be marketed as luxury transient occupancy hotel condominium properties and will not be offered and sold with an emphasis on the expected economic benefits of the Reservation Program and the Reservation Program Agreement. [Emphasis added.]
18The ruling was clear: Talon was not to market the Hotel Units by emphasizing that prospective purchasers could profit through the Reservation Program. The Reservation Program was “merely secondary” to the primary marketing pitch that prospective purchasers could own a luxury Hotel Unit for their personal use. Any participation in the voluntary Reservation Program would simply allow purchasers to “defray” their expenses. And Talon was prohibited from providing prospective purchasers with “forecasts or guarantees or any other form of financial projection or commitment” related to the Reservation Program.
19The OSC Ruling also required that before entering into an agreement of purchase and sale with a prospective purchaser, Talon would deliver an offering memorandum in the form of a disclosure statement required under the Condominium Act, 1998, S.O. 1998, c. 19. This Disclosure Document would include information about “the risk factors that make the offering of Hotel Units a risk or speculation” and explain that prospective purchasers would have a statutory right of action for misrepresentation in the offering memorandum under s. 130.1 of the Securities Act. Prospective purchasers would also be informed of their right under the Condominium Act to rescind an agreement of purchase and sale within ten days of receiving the Disclosure Document or a material amendment to the Disclosure Document.
(3) Marketing of the Hotel Units and the Estimates
20Following the OSC Ruling, Talon began marketing the Hotel Units. It set up a sales centre on the building site and put ads in newspapers, magazines and other media. Visitors to the sales centre and to the Trump Tower website could watch a PowerPoint presentation that opened with a smiling Mr. Trump proclaiming: “It’s going to be the most elegant building there is. There won’t be a building to even compete with it. We’re going to do something very special in Toronto.”
21Adina Zak was one of Talon’s sales representatives who met with prospective purchasers at the sales centre. She deposed, and the motions judge accepted, that the Hotel Units were sold on the basis of the hotel’s location, the fact that it was a turn-key operation, and on the strength of the Trump brand. The pitch was successful: of the 261 available Hotel Units, contracts for sale were entered into for 206 units.
22Ms. Zak denied that the Hotel Units were marketed as investments but the motions judge rejected that evidence. He found as a fact that the Hotel Units “were sold as an investment with a potential for capital gain and with ongoing income gains that would more than cover expenses.” The motions judge explained, at para. 59:
I do not accept Ms. Zak's evidence that that she never spoke to prospective purchasers about the subject of revenues or mortgages, nor that she did not ever sell the Hotel Units based upon the room rates or occupancy rates. She said she did not discuss with the purchasers the income they might earn or the estimated return on investment, but I do not believe her. These matters were all discussed with potential purchasers. [Emphasis added.]
23The plaintiffs Mr. Singh and Mrs. Lee both visited the sales centre and met with Ms. Zak in December 2006 and April 2007, respectively. Mr. Singh had heard about the Trump project from a friend and Mrs. Lee’s husband Andrew had seen an ad for it in the newspaper.
24The cornerstone of the plaintiffs’ claims is a document that Ms. Zak presented to each of them when they met with her to discuss buying a unit in the Trump International Hotel: the “Estimated Return on Investment”. I will refer to this document as “the Estimates” in the balance of these reasons.
25As the motions judge explained, the Trump International Hotel marketing materials, including the PowerPoint presentation, showed four different versions of the Estimates reflecting various expenses and revenues scenarios from four different types of hotel suites. Ms. Zak also prepared customized versions of the Estimates for prospective purchasers who visited the sales centre based on the type of unit they were interested in purchasing.
26The Estimates contained in the PowerPoint presentation set out different sample units. The units were described in the PowerPoint presentation with the following information:
the purchase price of the unit, ranging from $784,000 to $843,000;
monthly common expense fees, ranging from $1,827 to $2,081;
property taxes, estimated to be at 2% of the purchase price;
mortgage interest, estimated to be at a 6% interest rate;
a daily occupancy (housekeeping) fee of $60;
the average occupancy rate of the hotel, ranging from 55% to 75%;
the estimated daily room rental rate, ranging from $550 to $600;
the yearly return earned by an investor in the hotel unit, which, depending on the unit and occupancy rate range from $18,144.41 to $63,627.70;
a bottom line, bolded annual “return on cash invested”, ranging from 6.46% to 21.57%; and
the percentage amount of the purchase price to be mortgaged.
27The Estimates had two disclaimers. At the top of the page in capital letters it read: “FOR DISCUSSION PURPOSES ONLY”. At the bottom of the page in bold, it read: “Please note: This is not a guaranteed investment program”.
28Mr. Singh’s Estimate looked like this:
29When Mr. Singh asked Ms. Zak if the $550 per night room rate was high, she said no because the hotel was a Trump property and would be a five-star hotel. When he asked about the occupancy rates of between 55% and 75%, she replied that since the Trump Hotel would be new and the “buzz” about it would be great, the hotel would be fully occupied.
30Mrs. Lee’s Estimate was similarly promising. Based on a unit which cost $857,000 and would rent out at $600, Mrs. Lee’s annual “return on cash invested” ranged from 7.75% at a 55% occupancy rate to 20.90% at a 75% occupancy rate. Her Estimate looked like this:
31Ms. Zak told the Lees that the unit would carry itself even at the 55% occupancy rate, but that in any event 55% occupancy was a worst-case scenario because of the Trump name.
32Both Mr. Singh and Mrs. Lee decided to buy.
33Mr. Singh had been discharged from bankruptcy three years earlier and was earning approximately $55,000 a year as a warehouse supervisor. He did not have enough money for the deposit. His father, a retired welder, agreed to help and took out a line of credit on his own home to finance the loan.
34Mrs. Lee was a homemaker and her husband worked as a mortgage underwriter. Mrs. Lee’s parents loaned her the money for the deposit. Although the Lees’ unit was put in Mrs. Lee’s name, her husband took the lead throughout the events leading to this litigation.
35Mr. Singh deposed that he relied “heavily” on the information Ms. Zak gave him. He agreed in cross-examination that there was no “guarantee” about the occupancy rates reflected in the Estimates, but explained:
[S]he was telling us that this is what they have estimated, and this is what the month…daily rent would be for the property through whatever channels that they got their information from. So to me, I relied heavily on this, because knowing that her words were, “This is like having an extra income to your home,” that you could actually do that…. The way I looked at this is I took the lowest amount, 55 percent. With that yearly return, I said even if it did a lot less than that, I would still even break even to that point.
36Mrs. Lee also deposed that she relied on the Estimates in deciding to buy a Hotel Unit. She said:
The Estimate was very important to me in my consideration of a purchase. We could not afford to purchase a unit without any income as we did not even [have] the money for the down payment let alone for the annual carrying costs. The Estimate gave me confidence that our purchase of a Hotel Unit would be a good investment for our children.
37As it turned out, the Estimates bore no relation to financial reality. The motions judge found as a fact that the Estimates were “deceptive documents” and “replete with misrepresentations of commission, of omission, and of half-truth”: at para. 212.
38Contrary to Mr. Singh’s belief that the Estimates were based on “whatever channels that they got their information from”, the motions judge found that the figures in the Estimates were merely hypotheticals dreamed up by Talon’s principal Mr. Levitan who, it will be recalled, had no previous experience in the hotel business. The motions judge found, at para. 213:
The Estimates’ specifications of hotel rates and occupancy rates, which emanated from Mr. Levitan’s mind, were, at best, just opinions or forecasts. However, they were uninformed and ill-informed opinions, and his figures were essentially just pick-a-number speculation about what might be charged and what might happen in the marketplace.
(4) The Disclosure Documents
39Both Mr. Singh and Mrs. Lee signed agreements of purchase and sale within days of visiting Ms. Zak at the sales office. (Mr. Singh deposed that Ms. Zak had told him that the units were selling very quickly and he had to decide in the next day or so whether to buy.) Talon sent back a fully executed agreement of purchase and sale along with the Disclosure Document required by the OSC Ruling. Both plaintiffs deposed that the Disclosure Document was very thick (it was approximately 300 pages in length) and hard to understand. Neither read the Document in any detail. Mr. Singh handed the Document over to his lawyer.
(5) The closing and the Statement of Adjustments
40In November 2008, Talon wrote to its purchasers advising that the closing had been extended from March 2009 to November 2010. In August 2010, Talon wrote again, requesting a further extension of the closing from November 2010 to as late as December 2011. Talon later requested three additional extensions of the closing.
41The motions judge described the choice Talon set out in these letters, at para. 152: “Talon framed the choice for purchasers as whether they wished to take interim occupancy earlier and pay fees but not have any offsetting hotel revenue (since the Trump Hotel was not to open until January 31st, 2012) or to sign the amendment and align interim occupancy with the opening of the hotel.”
42Both Mr. Singh and Mrs. Lee deposed that they agreed to the extensions because they didn’t think they had any choice. Both said that if they had known they could withdraw from their agreements of purchase and sale, they would have. They weren’t alone: all the purchasers agreed to the extensions.
43The Trump International Hotel opened on January 31, 2012. On February 17, 2012, Talon provided purchasers with the interim occupancy closing documents, for a February 24 closing.
44The closing documents included an Interim Statement of Adjustments setting out the fees purchasers would have to pay during interim occupancy. The figures were markedly different from those set out in the Estimates.
45Mr. Singh’s monthly fee statement totalled $8,306.13, broken down as follows:
Estimated Total Common Expenses: $2,931.98
Estimated Realty Taxes: $2,389.75
Interest on Deferred Purchase Monies: $2,028.83
HST on Occupancy Fee: $955.57
Total $8,306.13
46The combined common expense and realty tax numbers shown were $2,156.73—or 68%—higher than the common expense and realty tax numbers ($1,825 and $1,340, respectively) set out in his original Estimate. Fees of $955.57 for HST, reflected in the Interim Statement of Adjustments, were not even listed in the Estimate originally given to Mr. Singh. Mrs. Lee got a similarly unpleasant surprise: her combined monthly fees for common expenses and realty taxes were $5,291.77, which is $1,785.44—or 51%—higher than the monthly common expenses and realty taxes described in her original Estimate ($2,078 and $1,428.33, respectively).1 An amount of $947.89 for HST also appeared for the first time.
47Talon also sent purchasers a Maintenance Agreement containing expenses that had never been disclosed before: an annual management fee of between 3% to 3.25% of the Hotel Unit revenue; and a furniture, fixtures and equipment fund, which would be 2% of Hotel Unit revenue for 2013, 3% for 2014, and 4% for 2015. The Maintenance Agreement also listed a per use occupancy fee and, although it had been set out in the Estimates, the amount was now higher.
48Finally, Talon revealed for the first time that Hotel Unit purchasers would have to pay a $48 fee for every night their units were rented out. This information appears in a document called “Reservation Program Frequently Asked Questions” that Talon emailed to purchasers four days before the interim occupancy closing.
49Mr. Singh and Mrs. Lee signed all the required documents and took interim occupancy.
(6) The interim occupancy period
50The Reservation Program provided purchasers with quarterly operating statements approximately 30 days after the end of each quarter. During the interim occupancy period, purchasers received statements for the period of February 24 to September 30, 2012.
51As the motions judge found, all the purchasers lost substantial amounts of money in all three of the start-up quarters. As an illustration, Mr. Singh’s losses during the interim occupancy period totalled $29,113.62, an average loss of about $4,000 per month:
52As this table shows, the occupancy rates during this period ranged from just under 19% to just over 45% – well below the “worst-case scenario” of 55% that was in Mr. Singh’s Estimate. The room rental rates started at a promising $601.43 per night, but then dipped to below $400 per night before rising to $464.55 – again, far lower than the $550 rate listed in Mr. Singh’s Estimate. At the same time, the occupancy fees, which included common expenses, realty taxes, interest on deferred purchase monies and HST, were far higher than the amounts listed in the Estimate. The combination of much lower than expected revenue and much higher than expected expenses wiped out any possibility of profit.
53Mrs. Lee fared even worse. She lost $36,288.16, an average loss of about $5,000 per month:
(7) Final closing and the complaint to the OSC
54On October 22, 2012, the Trump Hotel Condominium was registered in the Land Registry Office for the Land Titles Division of Toronto. This created Toronto Standard Condominium Corporation No. 2267. At the end of October 2012, Talon advised the purchasers that final closing would be on November 29, 2012.
55By that time, the Toronto business press began reporting on the hotel’s poor performance. Messrs. Shnaider and Levitan issued a public statement reassuring purchasers and the public that the losses were growing pains and that investors had to expect it would take some time to “ramp up” and “stabilize”.
56In November 2012, a lawyer retained by the plaintiffs wrote to the OSC and asked that it investigate possible breaches of the OSC Ruling. The letter argued that Talon had provided prospective purchasers with prohibited “financial projections” in the form of the Estimates. It also argued that Talon and its agents “made oral representations to prospective purchasers which emphasized the Reservation Program as an investment vehicle. The Reservation Program became the principal feature of the hotel operation and investment.”
57The OSC asked Talon to delay final closing and asked for it to respond to several questions about how the Hotel Units were marketed and sold.
58In its response, Talon represented that it complied with the OSC Ruling. It stated that while it had not had time to undertake a “comprehensive assessment” of how the Estimates were presented to prospective purchasers, based on the “best recollection” of Talon’s management, the information in the Estimates “was presented to purchasers as nothing more than an illustration or example. The illustration was provided to prospective purchasers as simply one component of the materials made available to them.”
59In any event, Talon submitted that the Estimates did not constitute a rental or cash flow forecast, a guarantee, a financial projection or a commitment of the type prohibited by the OSC Ruling. Instead, the Estimates were “simply illustrative of certain scenarios in respect of a particular Hotel Unit to assist prospective purchasers in making an informed investment decision.”
60On December 4, 2012, the OSC advised that it would not be pursuing regulatory action against Talon. No reasons were provided.
61On December 14, 2012, the Hotel Units finally closed. Only 50 of the 206 purchasers opted to close on the sale.
62Mr. Singh was one of the 156 who backed out. His losses as of December 2014 (which included ongoing interest on the loan to his father) totaled $248,064.58. He commenced his action on November 30, 2012. Mrs. Lee was one of the 50 who closed.
63About ten months after closing, Talon convened a meeting of the owners and advised them that it would take approximately five years for the hotel to become profitable.
64Mrs. Lee stuck it out and suffered substantial losses in every quarter from December 2012 to March 2015. Her total losses as of December 2014 were $991,576.92. Mrs. Lee commenced her action in February 2015.
B. The Motions for Partial Summary Judgment
65The plaintiffs’ motions for partial summary judgment proceeded only against Talon, Shnaider, Levitan and Trump and were with respect to the alleged breach of the OSC Ruling and the misrepresentation by Talon. There were three lines of attack pursued before the motions judge, all of which focused on the Estimates.
(1) The claim against Shnaider, Levitan and Trump.
66At the outset of his reasons, the motions judge dismissed the plaintiffs’ motions as against Shnaider, Levitan and Trump. The plaintiffs were not attempting to pierce the corporate veil and, in the motions judge’s view, there was no conduct on the part of these defendants that was outside of their role in the corporations. Further, the simple fact that Trump’s name was associated with the project did not attract personal liability.
67Despite the absence of a cross-motion for summary judgment, the motions judge considered it appropriate to dismiss the actions in their entirety as against all three individual defendants.
(2) The claim against Talon
(a) First allegation: Talon violated the OSC Ruling
68The motions judge considered and rejected the defendant’s submission that issue estoppel applied against the plaintiffs as a result of the OSC’s public statement of December 4, 2012 that it would not be pursuing regulatory action against Talon. In his view, the OSC’s review and public statement was not a binding determination as to whether the OSC Ruling had not been breached. Moreover, he held that the plaintiffs should not be bound by a decision made in a proceeding in which they did not have an opportunity to participate. That ruling was not challenged on appeal.
69The plaintiffs argued that Talon violated the OSC Ruling in two ways. They claimed that the resulting agreements of purchase and sale were illegal contracts and that they were entitled to rescission as a private law remedy.
70First, the plaintiffs submitted, Talon marketed the Hotel Units as “investment contracts” by emphasizing the Reservation Program as a vehicle for regular profits. This was contrary to paras. 23 and 29 of the OSC Ruling, which mandated that the units would be marketed “primarily” for the purchasers’ own use, and that the Reservation Program was “merely secondary” and simply offered a way to “defray” ownership expenses.
71The motions judge rejected this argument. He held that “Talon marketed the Hotel Units precisely in the way that it undertook to do in its application”: at para. 98.
72He explained, at para. 100: “The Reservation Program was an integral part of the marketing of the Hotel Units, but it did make the selling of Hotel Units, the selling of an investment contract.” I pause here to note that the respondents say that this sentence contains a typo and should read: “The Reservation Program was an integral part of the marketing of the Hotel Units, but it did [not] make the selling of Hotel Units, the selling of an investment contract.”
73The motions judge continued, at paras. 100 and 104:
There is an excruciating subtle point here because the Hotel Units were likely investment contracts. The point, however, is not whether Talon had investment contracts to sell, which is a debatable point, the point being made by the OSC's ruling is that whatever Talon had to sell, it should not sell it as an investment contract.
[I]n the case at bar, it is not necessary to actually determine whether Talon had an investment contract to sell. The point is that whatever it had to sell, it could not and should not be sold as an investment contract. I find as a fact that Talon did not sell whatever it had to sell as an investment contract.
74The motions judge explained that when the OSC issued its ruling in 2004, it knew that a purchaser was buying a hotel condominium unit and that it was “very likely” the purchaser would participate in the Reservation Program. It also knew that a purchaser would receive financial information and budgets with respect to the operation of the condominium corporation and the hotel. “In other words,” the motions judge held, “the OSC knew and anticipated and even directed that purchasers would receive financial information about the operation of the Reservation Program and of the hotel…. [T]he OSC would not have intended to prohibit a manner of sale that was inevitable”: at paras. 105-107.
75Second, the plaintiffs argued that the Estimates breached para. 24 of the OSC Ruling, which prohibited Talon from providing “rental or cash flow forecasts or guarantees or any other form of financial projection or commitment”. The parties agreed that the Estimates were not rental guarantees, cash flow guarantees or a type of financial commitment. But the plaintiffs maintained that the Estimates were rental or cash flow forecasts or a form of financial projection. Although Talon agreed that the OSC Ruling prohibited providing prospective purchasers with either forecasts or projections, it argued that the Estimates were not forecasts or projections. They were simply illustrations of how the Reservation Program might function.
76The motions judge took a different approach. He did not agree that para. 24 of the ruling prevented Talon from providing forecasts or estimates. He interpreted para. 24 “just to exclude financial commitments or guarantees by Talon of the financial returns of the hotel through the Reservations Program.” He explained: “Another way to approach the interpretation of the OSC’s ruling is that the adjectives are to be read as modifying or describing one type of commitment”: at para. 114.
77The motions judge held, at para. 115: “[O]nce the Plaintiffs conceded that the Estimate was not a guarantee or financial commitment on the part of Talon, which it clearly was not, it lost the debate about whether the OSC’s ruling was breached”.
(b) Second allegation: misrepresentation in the offering memorandum under s. 130.1 of the Securities Act
78The plaintiffs argued that the Estimates constituted misrepresentations. As such, they had a statutory cause of action under s. 130.1 of the Securities Act, which provides a remedy for purchasers where there is a misrepresentation in an offering memorandum.
79The motions judge rejected this argument. He held that, because the Estimates “came before and [were] extraneous to” the offering memorandum or Disclosure Documents directed by the OSC, they were outside of the scope of the Act.
(c) Third allegation: misrepresentation in the Estimates
80Finally, the plaintiffs claimed that Talon, Shnaider, Levitan and Trump were liable for the misrepresentations contained in the Estimates. Although the plaintiffs argued the misrepresentations could be viewed as fraudulent in nature, the motions judge determined that the fraudulent misrepresentation claim had not been pleaded. As a result, he made no findings and said little in respect to that ground. He then turned to the claim for negligent misrepresentation and agreed that two misrepresentations had been made out:
Talon misrepresented that the Estimates were done based on the best available information to Talon to forecast potential revenue, expenses and net income, when in truth, the Estimates overstated revenue and understated expenses; and
Talon misrepresented that the Hotel Units would be profitable immediately when the Trump Hotel opened for business.
81The motions judge was satisfied the plaintiffs had established four out of the five elements required to prove a claim of negligent misrepresentation, as set out in Queen v. Cognos, 1993 CanLII 146 (SCC), [1993] 1 S.C.R. 87: (1) the defendants owed them a duty of care; (2) the defendants made an untrue, inaccurate or misleading representation; (3) the defendants did so negligently; and (4) the plaintiffs suffered damage as a result. It was in this context that the motions judge described the Estimates as “deceptive documents” that were “replete with misrepresentations of commission, of omission, and of half-truth”. He explained, at para. 215: “Mr. Levitan had no training, experience, or justification from actual research to make any projections about the revenue streams for the new hotel in Toronto. What actually happened shows how inaccurate Mr. Levitan’s guesswork was.”
82Despite these strong words, the motions judge held that the plaintiffs failed to establish the fifth required element: that they reasonably relied on the misrepresentation.
83The motions judge accepted the plaintiffs’ evidence that they had relied on the Estimates in making their decision to buy the Hotel Units. He went on to explain, however, that while the plaintiffs would not have known that the Estimates constituted misrepresentations:
… nevertheless, they would and should have known that it would be unreasonable for a prospective purchaser to rely on the Estimates or to be induced by the Estimates to enter into their Agreements of Purchase and Sale. Although Mr. Singh and Mrs. Lee may have subjectively relied on the Estimates in deciding to purchase the Hotel Units, their subjective reliance was objectively unreasonable.
84The motions judge noted that the Estimates were “for discussion purposes” and were not “a guaranteed investment program”. Mr. Singh and Mrs. Lee knew that all investments are risky and those risks were pointed out to them repeatedly in the Disclosure Documents. They knew they had a statutory cooling-off period under the Condominium Act, and they had an opportunity to conduct their own due diligence.
85Further, the motions judge explained that around the time of the interim closings, the plaintiffs came to learn that the Estimates contained “misrepresentations of commission, omission and half-truths” about the quantum of expenses they would be liable to pay. Although the plaintiffs would not have known at that point about the misrepresentations regarding rental and occupancy rates, the motions judge considered that their going ahead with the interim closings “suggests that they were never reasonably relying on the Estimates as the inducement to enter into the Agreements”: at para. 229. Rather, they were relying on “their rights and remedies associated with the documents required to be disclosed under the ruling of the OSC and pursuant to the provisions of the Condominium Act, 1998.”
86The motions judge went on to hold that, in any event, the plaintiffs’ negligent misrepresentation claim was defeated by the “entire agreement clause and the other exculpatory provisions of the Agreement of Purchase and Sale and the related contracts”: at para. 235.
87The entire agreement clause in the agreement of purchase and sale reads as follows:
- The Vendor and the Purchaser agree that there is no representation, warranty, collateral agreement or condition affecting this Agreement or the Property or supported hereby other than as expressed herein in writing.
88The Disclosure Document contained various exculpatory statements such as:
Purchasers are advised that no representations are made with respect to expected or projected rental income. There is no assurance that Hotel Units will be able to be rented at any particular rate or for any particular period of time and the rates and the total income from each Hotel Unit will be affected by, among other things, competitions from other luxury hotels, guest preferences, economic conditions…
89The Reservation Program agreement contained similar exculpatory statements as well as an entire agreement clause providing that the agreement “supersedes and replaces all prior negotiations and/or agreements made between the parties hereto, whether oral or written, and contains the entire understanding between the parties with respect to the subject matter hereof.”
90The motions judge held, without further analysis, that “there is no unconscionability or public policy reason to justify not enforcing” the clause: at para. 239.
91Finally, although it was not pleaded, the motions judge dismissed Mrs. Lee’s claim as time-barred. He held that she ought to have known about the misrepresentation claims around the time of interim closing in 2012, but she did not commence her action until 2015, which was beyond the statutory two-year limitation period: at para. 242.
C. DISCUSSION
(1) Overview
92The plaintiffs appeal the motions judge’s decision to dismiss the motions as against Talon on all three grounds they raised in the court below. They also appeal the dismissal of the claims against Shnaider, Levitan and Trump.
93In my view, the appeal as against Talon can be decided on the basis that the motions judge, having found that four of the five elements for a claim of negligent misrepresentation were made out, erred in holding that the plaintiffs failed to establish the fifth element, reasonable reliance.
94I would also hold that the motions judge erred in enforcing the entire agreement and other exculpatory clauses to bar the plaintiffs’ actions. In light of the circumstances and context in which the clauses were entered into, it would be unconscionable to enforce those clauses to bar the plaintiffs’ claims.
95In addition, I would set aside the motions judge’s dismissal of Mrs. Lee’s claim as time-barred. Although they raised limitation provisions in the Securities Act and the Condominium Act in their statement of defence, the defendants did not plead the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B., nor did they seek leave to amend to do so. Further, they failed to raise a Limitations Act defence in their written submissions on the motions for summary judgment. In these circumstances, it was not appropriate for the motions judge to invoke the Limitations Act to dismiss Mrs. Lee’s claim.
96I also disagree with the motions judge’s conclusion that fraudulent misrepresentation had not been pleaded. Although the statement of claim does not use the words “fraudulent misrepresentation”, all of the elements and materials facts for such a claim are pleaded and the claim was brought to the respondents’ attention in the factum filed on the summary judgment motions. Because the motions judge did not make the necessary factual findings, this claim should simply be remitted to be determined on a subsequent motion or at trial.
97With respect to the action against Shnaider, Levitan and Trump, I agree that the claims that were the subject of the motions for summary judgment were properly dismissed. In my view, however, the motions judge erred in dismissing the claims against the three individual defendants that were not properly before him.
98I will elaborate on each point below.
(2) Reasonable reliance
99As the motions judge indicated, the five elements of a claim for negligent misrepresentation are: (1) a duty of care based on a “special relationship”; (2) a misleading representation; (3) negligence in making the misrepresentation; (4) reasonable reliance on the representation; and (5) damage caused by the reliance: Queen v. Cognos, at p. 110. Only the “reasonable reliance” factor is at issue here.
100Whether a plaintiff reasonably relied on a defendant’s misrepresentations is a question of fact: NBD Bank, Canada v. Dofasco Inc. (1999), 1999 CanLII 3826 (ON CA), 46 O.R. (3d) 514 (C.A.), at para. 81, leave to appeal refused, [2000] S.C.C.A. No. 96.
101As I have just explained, the motions judge accepted that Mr. Singh and Mrs. Lee “subjectively relied” on the Estimates, but held that “their subjective reliance was objectively unreasonable” because:
The Estimates were “for discussion purposes only” and “not a guaranteed investment program”. The plaintiffs were given various warnings, protections and rights, and as a result, it would not have been objectively reasonable for them to rely on the Estimates for what they knew was a “risky financial investment”; and
Once the plaintiffs learned of higher than expected expenses at the time of interim closing, they did not try to back out of their agreements of purchase and sale.
102On the first point, the fact that the Estimates were “for discussion purposes only” and “not a guaranteed investment program” does not inevitably lead to the conclusion that it would be unreasonable for the plaintiffs to rely upon them. Earlier in his reasons, the motions judge rejected Ms. Zak’s evidence that she did not sell the Hotel Units based on room rates and occupancy rates—the very information set out in the Estimates. Instead, he found as a fact that “the Hotel Units were sold as an investment with a potential for capital gain and with ongoing income gains that would more than cover expenses”: at para. 59. This information came directly from the Estimates.
103The motions judge does not explain how his finding that Talon sold the Hotel Units as investments based on the information contained in the Estimates can be reconciled with his finding that the plaintiffs’ reliance on those Estimates was unreasonable. In other words, if the basis of the sale was the unit’s value as an investment as expressed in the Estimates, why was reliance on that information unreasonable?
104Further, although I agree with the motions judge’s finding that the plaintiffs were warned about the risks of their investment, it does not follow that it was unreasonable for the plaintiffs to rely on the Estimates. The risks acknowledged and accepted were the risks that market conditions could change, that rental rates and occupancy rates could fluctuate, and that their expenses might go up. Those are known, expected risks and the disclaimers in the documentation clearly disclose their existence. It would have been unreasonable for the plaintiffs to rely on representations that these risks did not exist.
105The actionable misrepresentations, however, were not that risks such as market conditions and fluctuations in rental and occupancy rates did not exist. The misrepresentations were: (1) that the figures in the Estimates were based on the best available information; and (2) that the hotel would be immediately profitable. On the motions judge’s own findings, both misrepresentations were established. He found that the figures in the Estimates were based not on hard numbers but on Mr. Levitan’s “uninformed and ill-informed opinions”. Many known expenses were not disclosed or were grossly understated. Moreover, he found that when both Mr. Singh and Mr. Lee pressed Ms. Zak about the high occupancy and rental rates in the Estimates, she assured them that the hotel would be fully booked because it was new and would attract “buzz”.
106I agree with the motions judge that it would have been unreasonable for the plaintiffs to rely on a representation that the Estimates were a guarantee that their investments would pan out exactly as they had hoped. They knew or ought to have known that the Estimates were not a guarantee that the investment would be profitable. They assumed the risk that room and occupancy rates would fluctuate and that they might earn less profit than they originally anticipated. It is unreasonable, however, to conclude that the plaintiffs assumed the risk that the Estimates upon which they decided to invest were simply made up in the first place and that known expenses were either not disclosed or were grossly understated.
107On the second point, the fact that the plaintiffs learned in 2012 that their expenses would be higher does nothing to undermine the reasonableness of their reliance on the Estimates in 2006 and 2007. Ms. Zak sold the units as an investment using estimates that understated expenses and overstated revenue. She told prospective purchasers that the 55% occupancy rate set out in the Estimates was a worst-case scenario, and that even at that rate the hotel would be profitable. Even after it was revealed to purchasers for the first time at interim closing that expenses had been understated, the plaintiffs had yet to discover that revenue was overstated. Specifically, the room rental rates and occupancy rates set out in the Estimates were unrealistically high and were based on uninformed and ill-informed opinions. As Mr. Singh testified, he was nervous after hearing of the high occupancy fees but he thought he had no choice. He took comfort from the Estimate that indicated that his annual revenue would be more than enough to offset the fees.
108The motions judge’s conclusion that the plaintiffs’ reliance on the Estimates was objectively unreasonable is clearly in error and cannot stand. The plaintiffs’ reliance on the Estimates was objectively reasonable.
(3) The entire agreement and other exclusionary clauses
109As noted earlier, the agreement of purchase and sale, the Disclosure Document and the Reservation Program agreement contained various entire agreement and exclusionary provisions. Those clauses, examples of which I have quoted earlier, advised purchasers that they should only rely on the agreements expressed in writing, that no representations were being made as to the projected income from the rental of the Hotel Units and that there were risks that income would not be as projected.
110Unless inapplicable, unenforceable, or otherwise invalid, contractual provisions such as entire agreement clauses may limit a party’s right to sue in tort: BG Checo International Ltd. v. British Colombia Hydro & Power Authority, 1993 CanLII 145 (SCC), [1993] 1 S.C.R. 12, at p. 30. That is because duties based in tort “must yield to the parties’ superior right to arrange their rights and duties in a different way”: BG Checo, at p. 27.
111In Tercon Contractors Ltd v. British Colombia (Transportation and Highways), 2010 SCC 4, [2010] 1 S.C.R. 69, Binnie J. (dissenting but supported by a unanimous court on this point) set out the following analytic approach to be used in deciding whether to enforce such clauses, at paras. 122-23:
The first issue, of course, is whether as a matter of interpretation the exclusion clause even applies to the circumstances established in evidence. This will depend on the Court’s assessment of the intention of the parties as expressed in the contract. If the exclusion clause does not apply, there is obviously no need to proceed further with this analysis. If the exclusion clause applies, the second issue is whether the exclusion clause was unconscionable at the time the contract was made, “as might arise from situations of unequal bargaining power between the parties” (Hunter, at p. 462). This second issue has to do with contract formation, not breach.
If the exclusion clause is held to be valid and applicable, the Court may undertake a third enquiry, namely whether the Court should nevertheless refuse to enforce the valid exclusion clause because of the existence of an overriding public policy, proof of which lies on the party seeking to avoid enforcement of the clause, that outweighs the very strong public interest in the enforcement of contracts.
112In his reasons the motions judge referenced Tercon and the analytical approach described therein. His analysis and application to the facts of this case, however, are contained in their entirety in para. 239 of his reasons:
[T]he entire agreement and other exculpatory provisions included in the Disclosure Documents or Statements apply and stands in the way of the success of the Plaintiffs’ misrepresentation claims. As a matter of interpretation the clauses apply, and there is no unconscionability or public policy reason to justify not enforcing the exculpatory provisions.
113In my view, the motions judge erred in concluding, without analysis, that it was not unconscionable to enforce the exculpatory provisions. Unconscionability provides that despite the general principle that parties should be held to the bargains that they have made, there are some parties that must be protected and some bargains that should not be enforced: see A. Swan and J. Adamski, Canadian Contract Law, 3d ed. (Markham, Ont.: Lexis Nexis, 2012) at para. 9.99.
114In ABB Inc. v. Domtar Inc., 2007 SCC 50, [2007] 3 S.C.R. 461, at para. 82, LeBel and Deschamps JJ. described the doctrine of unconscionability in the context of limitation clauses, a type of clause similar in nature to exclusion or entire agreement clauses:
Under the doctrine of unconscionability, a limitation of liability clause will be unenforceable where one party to the contract has abused its negotiating power to take undue advantage of the other. This doctrine is generally applied in the context of a consumer contract or contract of adhesion.
115In Zippy Print Enterprises Ltd. v. Pawliuk (1994), 100 B.C.L.R. (3d) 55, the British Columbia Court of Appeal declined to enforce an entire agreement clause to preclude a claim based on a misrepresentation made to a franchisee. The franchisor had made misleading statements about estimated gross sales, expenses, and profits to induce the franchisee to enter an agreement. In rejecting the enforcement of these clauses, Lambert J.A. expressed the following view, at para. 45:
A general exclusion clause will not override a specific representation on a point of substance which was intended to induce the making of the agreement unless the intended effect of the exclusion clause can be shown to have been brought home to the party to whom the representation was made by being specifically drawn to the attention of that party, or by being specifically acknowledged by that party, or in some other way.
116In the present case, the entire agreement clause functioned as a trap to these unsurprisingly unwary purchasers. Neither the Singhs nor the Lees had anything more than minimal investing experience. Their real estate experience was limited to the purchase of their family homes, although Mr. Lee worked as a mortgage agent (as did Ms. Singh beginning in 2008). They would have known little or nothing regarding luxury hotel rental rates and occupancy. And both the Singhs and the Lees signed the agreements of purchase and sale without consulting with a lawyer.
117The entire agreement clause was well hidden within the agreement of purchase and sale. The agreement of purchase and sale is almost 17 pages long including schedules, with 49 articles that often include sub-clauses of their own. The entire agreement clause is found on page seven, the third of twelve articles under the heading ‘General’. Nothing distinguishes this article from the other rectangles of dense black ink nearby. Ms. Zak, the sales representative for both the Singhs and the Lees, acknowledged in her evidence that she never reviewed the entire agreement clause with the plaintiffs.
118The relevant portion of the entire agreement clause simply states: “The Vendor and the Purchaser agree that there is no representation … affecting this Agreement or the Property or supported hereby other than as expressed herein in writing.” Such a clause would mean nothing to the Singhs or Lees. They gave evidence accordingly. They could not have reasonably been expected to have understood that this meant that the respondents were exempting themselves from any liability flowing from their misrepresentations that induced the Singhs and Lees to sign the contract in the first place.
119The Disclosure Document stands on even more unstable ground. Notably, it was not provided to either the Singhs or the Lees until after they had signed the agreements of purchase and sale.
120Even if the exculpatory provisions in the Disclosure Documents should be considered, many of the same factors supporting a finding of unconscionability apply. Although bolded in all-caps, the main exculpatory provision was found about ten pages into a roughly 300-page document. Other than the capitalization and bolding, nothing was done to draw the Singhs’ or Lees’ attention to the significance of such a clause.
121Moreover, such a disclaimer comes too late to be of any assistance to the purchaser who has already been induced to enter into an agreement. As Professor McCamus explains with respect to such subsequent disclaimers, “[t]he trap has already been set and triggered. If the contract contains a disclaimer clause, it is simply a better trap”: John D. McCamus, The Law of Contracts, 2nd ed. (Toronto: Irwin Law, 2012), at p. 365.
122It would be grossly unfair to enforce these clauses to deny Talon’s tort duty not to make negligent misrepresentations to the plaintiffs.
123Although the above considerations should be sufficient to found a decision declining enforcement of those clauses, further support can be found when the context of the contract formation is considered. As I will explain, I would find that Talon breached and evaded the protections of Securities Act by both the marketing of the Hotel Units as investment contracts with emphasis on the Reservation Program as a vehicle for regular profits and the providing of rental and cash flow forecasts or projections that were contrary to the OSC Ruling.
124In my view, the motions judge erred in concluding otherwise.
125With respect to the marketing of the Hotel Units, it is to be recalled that Talon’s lawyers represented that the Units would “not be marketed or structured as investments for profit or gain” but would rather be marketed “as luxury hotel condominium units entailing exclusive occupancy rights, coupled with an opportunity to defray related ownership expenses in connection with periods of non-occupancy through voluntary participation in the Reservation Program”. The motions judge found that Talon marketed the Hotel Units “precisely in the way that it undertook to do in its application” to the OSC (at para. 98) and that “Talon did not sell whatever it had to sell as an investment contract” (at para. 104). He does not explain how this is to be reconciled with his earlier findings. Those findings were that “the Hotel Units were sold as an investment with a potential for capital gain and with ongoing income that would more than cover expenses”, and that Ms. Zak “discuss[ed] with the purchasers the income they might earn or the estimated return on investment”: at para. 59.
126Similarly, the motions judge’s description of the Reservation Program as “an integral part of the marketing of the Hotel Units” appears on its face to acknowledge that Talon breached the OSC Ruling, which provided in para. 23 that the Reservation Program would be marketed as “merely a secondary feature” to defray ownership expenses, as opposed to an investment vehicle.
127With respect to the Estimates, the motions judge found that providing financial projections and rental or cash flow forecasts to prospective purchasers of Hotel Units did not contravene the OSC’s prohibition against providing “rental or cash flow forecasts or guarantees or any other form of financial projection or commitment”. In my view the motions judge’s interpretation is simply unreasonable and cannot stand (H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, at paras. 55-56, 110). The reasonable reading of this provision is that it prevents both the giving of guarantees and commitments and the giving of financial projections and rental or cash flow forecasts. The motions judge’s reading of the provision effectively reads out key terms and renders their inclusion meaningless.
128As to the motions judge’s suggestion that the Estimates do no more than give effect to the OSC’s implicit assumption that Talon would explain how the Reservation Program functioned, it is apparent from even a cursory review of the Estimates provided to the plaintiffs that they went well beyond such a purpose. The carrying costs of the units as set out in the Estimates have nothing to do with the operation of the Reservation Program. The title “estimated return on investment”, the layout of the document and the setting out of annualized rates of return on cash invested all show the document to be much more than what the motions judge characterized as “information about the operation of the Reservation Program and of the hotel”.
129In my view, it would be unconscionable and would shock the conscience to allow a party to use an entire agreement or other exculpatory clause to escape liability for misrepresentations made in breach of the OSC’s terms for granting an exemption from the Securities Act requirements. The entire agreement and other exculpatory clauses would operate to negate a negligent misrepresentation claim and the misrepresentation itself was only possible in this case because Talon evaded protective requirements under the Securities Act by obtaining the exemption and then breaching that exemption.
(4) The limitations issue
130The motions judge found that Mrs. Lee’s negligent misrepresentation claim was barred by the Limitations Act. He did so despite the fact that the defendants had not pled the Limitations Act and had not sought to amend their pleading to include such a plea. Although they raised the issue in oral submissions, the defendants had not raised it in the factum filed on the summary judgment motions.
131In his reasons the motions judge neither refers to the fact that it was not pleaded nor does he explain why, in the absence of such a plea, he should nonetheless invoke the Act.
132This court has consistently held that “[t]he expiry of a limitation period is a defence to an action that must be pleaded in a statement of defence”: Collins v. Cortez, 2014 ONCA 685, [2014] O.J. No. 4753, at para. 10, per van Rensburg J.A. (citing S. (W.E.) v. P. (M.M.) (2000), 2000 CanLII 16831 (ON CA), 50 O.R. (3d) 70 (C.A.), at paras. 37-38, leave to appeal to S.C.C. refused, [2001] 149 O.A.C. 397). This requirement is embodied in rule 25.07(4) of the Rules of Civil Procedure, which Ontario courts have consistently held “applies to pleadings relating to limitations that might bar an action”: S. (W.E.) v. P. (M.M.), at para. 37. Rule 25.07(4) provides as follows:
In a defence, a party shall plead any matter on which the party intends to rely to defeat the claim of the opposite party and which, if not specifically pleaded, might take the opposite party by surprise or raise an issue that has not been raised in the opposite party’s pleading.
133Justice Cronk explained the rationale behind the requirement that a party specifically plead a limitation period defence in Hav-A-Kar Leasing Ltd. v. Vekselshtein, 2012 ONCA 826, 225 A.C.W.S. (3d) 237, at para. 69:
The failure to raise substantive responses to a plaintiff's claims until trial or, worse, until the close of trial, is contrary to the spirit and requirements of the Rules of Civil Procedure and the goal of fair contest that underlies those Rules. Such a failure also undermines the important principle that the parties to a civil lawsuit are entitled to have their differences resolved on the basis of the issues joined in the pleadings.
134In S. (W.E.) v. P. (M.M.), MacPherson J.A. confirmed that Ontario courts “have consistently held that rule 25.07(4) applies to pleadings relating to limitations that might bar an action”: at para. 37. He went on to explain that even though in that case the trial judge had given counsel time to prepare submissions on the issue after he raised it during closing arguments, it did not remove the potential prejudice to P:
If S had raised the issue in his pleadings, P might have tried to settle, or even have abandoned, her counterclaim. Either decision might have had costs consequences. Another potential source of prejudice arises from the fact that counsel for P might have adopted different tactics at trial. In particular, counsel might have called different or additional evidence to support an argument that the discoverability principle applied (at para. 38).
135MacPherson J.A. also noted that at no time during trial, including during closing arguments when the trial judge raised the limitation issue, did S seek to amend his pleadings. Nor did he seek such an amendment during the appeal hearing.
136In my view, the defendants’ failure, in this case, to plead a Limitations Act defence or even to seek an amendment to their pleading to do so is, as it was in S. (W.E.) v. P. (M.M.), fatal.
(5) The fraudulent misrepresentation pleading
137The motions judge stated at para. 201 that “because the fraudulent misrepresentation claim was not pleaded I shall say little about it.” The reasons, however, contain no analysis of the statements of claim nor an explanation of how he reached this conclusion.
138While the factum filed by the plaintiffs on the summary judgment motions focused principally on negligent misrepresentation, it did refer to fraud. For example, the factum stated as follows at para. 351:
If this Court determines (particularly in the case of Levitan) that the misrepresentation can be characterized as fraudulent then the individual liability of the employee is easier to establish since his actions take on the character of an individual and separate tort. [Footnote omitted.]
139In response, the defendants’ summary judgment factum acknowledged that the plaintiffs claimed Levitan’s actions met the test for fraudulent misrepresentation, but then simply stated that the plaintiffs did not specifically plead fraudulent misrepresentation. No specific deficiency in the pleadings was identified, nor was any prejudice claimed.
140On appeal the respondents again maintain that the pleadings were deficient and, specifically, they argue that the appellants’ pleadings do not assert that the defendants knew that the statements were false or were indifferent to their truth or falsity. They further argue that there was no pleading that there was an intention that the appellants would act on the false representations.
141Although it is not clear from the case law that an intention that the false representation be acted on is a necessary element of a fraudulent misrepresentation claim (see Bruno Appliance and Furniture, Inc. v. Hryniak, 2014 SCC 8, [2014] 1 S.C.R. 126, at para. 21, and Bhasin v. Hrynew, 2014 SCC 71, [2014] 3 S.C.R. 494, at para. 88), the pleadings of both Mrs. Lee and Mr. Singh assert that the defendants knew the statements were false (Mrs. Lee’s statement of claim at para. 76; Mr. Singh’s at paras. 114-116) and that there was an intention that they would be acted upon (Mrs. Lee’s statement of claim paras. 97-98; Mr. Singh’s at para. 112).
142The pleadings could certainly have been clearer and the absence of a specific statement that a fraudulent misrepresentation claim was being advanced is of concern. This having been said, the respondents do not argue that they have been taken by surprise or prejudiced. Provided that the particulars and material facts relied upon for a fraudulent misrepresentation claim are pleaded it is not essential that the word “fraud” or “fraudulent” be used: see Shoppers Drug Mart Inc. v. 6470360 Canada Inc., 2014 ONCA 85, 372 D.L.R. (4th) 90, at para. 54.
143As a result, I would set aside the motions judge’s dismissal of the fraudulent misrepresentation claim. In setting aside the dismissal I should not be taken as finding that the claim has merit. I am simply not prepared to rule on the merits of the claim. Contrary to the appellants’ contention, I do not consider the motions judge’s findings, such as the finding at para. 213 that some of the information contained in the Estimates “emanated from Mr. Levitan’s mind”, to be dispositive. While the motions judge was clearly unimpressed with Mr. Levitan’s process for coming up with the projections, he never concluded that the misrepresentations were made with knowledge of their falsity or with recklessness as to whether they were true.
144As a result, because necessary factual findings regarding this claim were not made, I would remit the issue to be decided on a further motion for summary judgment or at trial. In light of the disposition of the appeal, the appellants may well decide not to proceed with the fraudulent misrepresentation claim. Should the appellants choose to proceed with that claim, however, and should they succeed in proving fraudulent misrepresentation, different or additional remedies may be available to them.
(6) The dismissal of the actions against Shnaider, Levitan and Trump
145The appellants argue that the motions judge erred in dismissing the actions against Shnaider, Levitan and Trump. They contend that, although it was open to the motions judge to dismiss those claims that were the subject of the summary judgment motions, it was unfair for him to have dismissed the causes of action pled but not encompassed in the motions before him.
146I agree.
147The motions judge correctly noted that on a motion for summary judgment the judge may grant judgment in favour of a responding party, even in the absence of a cross-motion for such relief: Baig v. Meridian Credit Union, 2016 ONCA 150, 394 D.L.R. (4th) 601, at para. 17; King Lofts Toronto I Ltd. v. Emmons, 2014 ONCA 215, 40 R.P.R. (5th) 26, at paras. 14-16; Kassburg v. Sun Life Assurance Co. of Canada, 2014 ONCA 922, 124 O.R. (3d) 171, at paras. 50-52.
148However, a motion judge may not grant or dismiss a claim on a motion for summary judgment that is not within the scope of the motion before him or her. Doing so would deny procedural fairness and natural justice.
149A fair hearing requires that a party have notice of the matters that will be at issue at the hearing and of how that party may be affected by the hearing’s outcome: see Québec (Commission des relations ouvrières) v. Alliance des professeurs catholiques de Montréal, 1953 CanLII 45 (SCC), [1953] 2 S.C.R. 140.
150In the present case, the grounds set out in the notices of motion are that the plaintiffs were seeking “damages from Talon and the other Defendants for breaches set out in [the] Statement of Claim and mov[ing] for summary judgment on the basis of the following claims” (emphasis added). The claims that follow in the notices of motion are those concerning the OSC Ruling and misrepresentations by Talon. They did not include any of the plaintiffs’ other claims, such as those based on oppression, collusion, or breach of fiduciary duties.
151The parties’ summary judgment factums were consistent with motions for partial summary judgment limited to the OSC Ruling claims and claims of misrepresentation. The plaintiffs’ factum stated that “[t]he legal issues to be determined are as follows: a) Did Talon breach the terms of the Ruling and, if so, what remedy is available to the Plaintiffs; and b) Did these Defendants make any actionable misrepresentations and, if so, what remedy is available to the Plaintiffs.”
152The defendants’ summary judgment factum suggested that they understood the limited scope of the motions for summary judgment. Their law and argument section addressed two categories of claims: those arising out of the OSC Ruling and the misrepresentation claims. The response of Trump, Levitan, and Shnaider was limited to arguing that no misrepresentations were made or that, in any event, they were not misrepresentations that would attract personal liability.
153In their factum the respondents submitted that, if they were successful on the OSC or misrepresentation claims, those causes of action should be dismissed. Their requested order was for “the Motion for Summary Judgment [to] be dismissed, and that the causes of action based upon the breach of the OSC Ruling and misrepresentation be dismissed, with costs” (emphasis added).
154For these reasons, I would set aside the motions judge’s dismissal of the causes of action against Shnaider, Levitan and Trump that fall outside the scope of the motions for partial summary judgment.
(7) Remedy
155The appellants argue that the appropriate remedy is to order rescission or, in the alternative, damages.
156I agree that Mr. Singh, as a party to an executory agreement that never closed, is entitled to rescission. This court has long held that “[r]escission is available in the case of an executory contract where a material misrepresentation that was an inducement to enter into the contract is established”: Panzer v. Zeifman (1978), 1978 CanLII 1658 (ON CA), 20 O.R. (2d) 502. Elaborating on this point, the motions judge correctly stated that rescission may be obtained on the basis of a non-fraudulent misrepresentation where the defendant has made a false statement that was material and that induced the plaintiff to enter the contract, and where the innocent party has sought rescission before the closing of the transaction. Having determined that the elements of negligent misrepresentation are made out, and that these misrepresentations were material and induced Mr. Singh to enter the agreement of purchase and sale that he refused to close in 2012, I find that Mr. Singh is entitled to rescission.
157The same, however, cannot be said for Mrs. Lee who completed the purchase of the unit. Absent a finding of fraud, in the context of real estate transactions induced by misrepresentation, execution of the agreement has typically been held to constitute a barrier to rescission: Redican v. Nesbitt, 1923 CanLII 10 (SCC), [1924] S.C.R. 135; Shortt v. MacLennan, 1958 CanLII 11 (SCC), [1959] S.C.R. 3; Kingu v. Walmar Ventures Ltd. (1986), 1986 CanLII 142 (BC CA), 10 B.C.L.R. (2d) 15 (C.A.). The appellants have referred the court to more recent judicial support for the view that execution is a relevant but not decisive factor in determining whether rescission is available, at least in some limited contexts: S-244 Holdings Ltd. v. Seymour Building Systems Ltd., [1994] B.C.J. No. 598 (C.A.); see also McCamus, at pp. 354-355, and S.M. Waddams, The Law of Contracts, 6th ed. (Toronto: Canada Law Book, 2010), at para. 424.
158Even assuming without deciding that rescission could be a remedy available to Mrs. Lee after having executed her transaction, I would nevertheless not grant rescission in the circumstances of this case. It is not apparent from the record what effect rescission would have on innocent third parties such as Mrs. Lee’s mortgagor, who was not made a party to these proceedings. Further, the claim was issued more than two years after she closed the transaction. In these circumstances I view the award of damages as constituting the appropriate remedy for Mrs. Lee.
D. DISPOSITION
159For these reasons I would set aside the motions judge’s order and substitute an order:
rescinding Mr. Singh’s agreement of purchase and sale;
awarding damages to Mrs. Lee as against Talon for negligent misrepresentation;
as against Shnaider, Levitan and Trump, dismissing only those of the appellant’s claims that were advanced for breach of the OSC Ruling and for misrepresentations;
remitting the claim for fraudulent misrepresentation to be decided on a further motion for summary judgment or at trial before the Superior Court;
awarding pre and post-judgment interest on the damage awards; and
for costs of the appeal on a partial indemnity basis to the appellants as against Talon fixed in the amount of $35,000, inclusive of disbursements and applicable taxes.
160As the matter is continuing in the Superior Court, I leave that court to decide how Mrs. Lee’s damages are to be calculated and fixed as well as to determine what is necessary to implement the order rescinding Mr. Singh’s agreement of purchase and sale.
161If the parties are unable to agree on the costs of the original motions, the appellants shall provide brief written submissions not to exceed three pages within 21 days of the release of these reasons and the respondents are to provide their response not to exceed three pages within 14 days thereafter.
Released: “P.R.” October 13, 2016
“Paul Rouleau J.A.”
“I agree K. van Rensburg J.A.”
“I agree M.L. Benotto J.A.”
