P.M. Conway

The appellant appealed a motion judge's decision to strike out several paragraphs of its pleading.

The motion judge held that a ruling of the Ontario Securities Commission is not a contract as required by s. 23(1)(b) of the Condominium Act.

The Court of Appeal agreed, finding that granting leave to amend would not cure the deficiency, and dismissed the appeal with costs.

The developer of a multi-phased condominium project marketed the development as having an outdoor recreational area.

The disclosure statement and related documents provided that the recreational area might not be built.

The developer later decided to build townhouses on the recreational lands instead.

The condominium corporation opposed this and obtained a permanent injunction at trial.

On appeal, the Court of Appeal allowed the appeal, finding that the developer did not owe a fiduciary duty or a duty of good faith to prospective purchasers during the pre-contractual phase.

The developer's obligations were circumscribed by the statutory disclosure requirements, which clearly stated the developer was under no obligation to build the recreational facilities.