The appellant purchased a pre-construction condominium detached house unit under an Agreement of Purchase and Sale.
On the closing date, the appellant's solicitor advised that certain common elements (a parkette and entrance/exit gates) had not been constructed, contrary to the disclosure statement, and reserved the right to rescind.
The respondent terminated the agreement and forfeited the deposit.
The appellant subsequently rescinded and sought return of the deposit.
The application judge found the appellant breached the agreement and dismissed the application for return of the deposit.
The Court of Appeal upheld this decision, finding no material change in circumstances under the Condominium Act and that time was not of the essence for construction of the common elements.