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NUISANCE disclosure battle : BUYERS sue vendor & Director-agent & others - ZUPPINGER v Slightham 2020/01/16 19:12  
Again NOT legal advice.

After two and a half years of case management outcomes which narrowed the lengthy list of arms-length defendants ( see * below ), a lawsuit will continue about alleged nuisance allegedly undisclosed / under-disclosed / improperly represented or whatsoever, arising from a sale of a condo unit.

And about what it might mean when part of the claim apparently has targetted some sort of detrimental reliance involving the defendant seller's agent who was ( ? is still ? ) a Director on the condo corporation's Board.

( Think : If so, potential pre-sale knowledge of vendor kvetching about the alleged nuisance ? Contents of Status Certificate ? etc . . . Special knowledge of the building's physical & maybe the unit's specific issues ? . . . )

The central Toronto unit's vendor & her realtor after completed sale are being sued by the principals of a corporate entity which for their personal use bought the $ 2.78 M unit in Toronto's central core.

Claims against a lengthy list of other defendants - now on the sidelines - were the subject of so-called Pierringer agreements. ( * what are they ? see below * )

Amongst the likely wider issues :


About civil nuisances not clearly a threat to life or health, what ( alleged ) nuisances should - if anything - ( should ) be a compulsory disclosure to a resale purchaser as to (alleged) nuisance noise & vibration ?

( Such issue may be distinct from whatever a Status Certificate is lawfully required to disclose of such, particularly if the unit vendor & condo corporation might have interacted substantially with prior kvetching - ? and more ? - about such alleged nuisances.)

Should city folks in highrises become entitled to treating a mere "nuisance" defect as if it was - for examples a latent major structural weakness or leaks & mould dangers - of which a vendor had actual or constructive knowledge ? So hidden but vexatious as to threaten physical, mental or spiritual safety ?

2 - Relevant other disclosuring and/or reliance / a vendor’s realtor theoretically wearing two hats

IF A CONDO VENDOR’S REALTOR IS A CONDO DIRECTOR arguably wearing twin hats of vendor’s realtor & corporation Director, a realtor bears what special insider knowledge if any ? How fulsome would disclosing such to the purchasers have to be ?

3 - Unhappy buyers generally may bring forward platforms like "concealment" or "misrepresentation" ( the latter of which the plaintiffs are clearly raising here ).

Factuals :

For $ 2 .78 M in central Toronto the Plaintiffs ( through their corporation ) purchased a luxury residential condo unit which they claim to have discovered is “beset by noise and vibration”.

They sued a massive swath of defendant parties eg the condo corp itself, certain named Directors, the PMC property management company, the Declarant, constructors ( ? ) etc , with all but 2 of whom they have reached "Pierringer agreements". ( see below * )

Unsettled by Jan 2020 are their claims against the unit vendor & her realtor.

The remaining claims allege fraudulent misrepresentation & negligent misrepresentation.

Those claims have not yet been proven by the incomplete adjudication process which is continuing.

One presumes that a pre-closing Status Certificate was obtained by the plaintiff buyers. What if anything did it disclose - and should have disclosed if at all - with reference to what is now claimed about the unit ?

It is possible that the corporation is recent enough that turnover from the Declarant may have been recent or less than complete. Would construction deficiencies have been gagged or under-disclosed here or been still in early resolution ? Remember elsewhere a co-Declarant's notorious buckshee attic in the earlier ordeal of resale unit buyer Ms Orr (Rainville) ?

Zuppinger et al v. Slightham et al 2020 ONSC 166 issued Jan 9/20 - hits number 12 in case management outcomes since Sep 2017 but with minimal factual detail about the dispute except at :

Zuppinger v. Slightham, 2019 ONSC 5117 issued Sep 9/19

( * What's a ? "Pierringer Agreement" * ?

Was discussed by Canada's Supreme Court in a televised 2013 Hearing as “proportionate share settlement agreements” pronounced like “PEAR & JURE” ( PEER & JEER ? )see Sable Offshore Energy Inc. v. Ameron International Corp., [2013] 2 SCR 623, 2013 SCC 37 issued June 21/13

In the Nova Scotia Ct of Appeal : " [10] Sable entered into three Pierringer Agreements. A Pierringer agreement takes its name from a 1963 Wisconsin case; it is an agreement which allows parties to a proceeding to settle claims and the settling defendants to withdraw from the litigation, leaving the remaining defendants responsible only for the loss they actually caused with no joint liability with the settling defendants. The non-settling defendants are responsible only for their proportionate share of the loss (Amoco Canada Petroleum Co. v. Propak Systems Ltd., 2001 ABCA 110 (CanLII), 2001 ABCA 110, ¶ 3).. . ." - unquote ).

This U.S. tactic ( to stop the clock / avoid joint & several liability with other defendants ) may have some downsides. That includes where state law allows them kept secret, and settlement makers get an incentive to "tailor" the 'already settled' defendants' testimonies dubiously against the non-settling defendants . . . )
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