



COURT OF APPEAL FOR ONTARIO

CITATION: Talon
    International Inc. v. Jung, 2014 ONCA 137

DATE: 20140224

DOCKET: C57084

Rosenberg, Hourigan and Benotto JJ.A.

BETWEEN

Talon International Inc.

Applicant

(Respondent in appeal)

and

Henry Jung and Long Ocean Holding Ltd.

Respondents

(Appellants in appeal)

Terry Corsianos, for the appellants

Mark A. Klaiman, for the respondent

Heard: February 5, 2014

On appeal from the judgment of Justice J. Robert MacKinnon
    of the Superior Court of Justice, dated April 25, 2013.

ENDORSEMENT

[1]

The appellant appeals from the judgment of J.R. MacKinnon J. granting an
    application by the developer Talon International for declarations that the
    respondent is bound by the agreements of purchase and sale in relation to two
    units and dismissing the application by the appellant for refund of all
    deposits they have paid and return of paid net common expenses for interim
    occupancy changes and accrued statutory interest. For the following reasons the
    appeal is dismissed.

[2]

We agree with the application judge that the May 2012 disclosure
    statement was a revised disclosure statement for the purpose of s. 74(3) of the
Condominium Act
.

The 2012 statement must be read as a whole,
    including the summary that was delivered at the same time. The two documents
    clearly identify all changes that in the reasonable belief of the declarant
    may be material changes and summarize particulars of them within the meaning
    of s. 74(3).

[3]

We also agree with the application judge that there were no material
    changes as that term in now defined in the Act. The term material change has
    a statutory definition in s. 74(2) which is purely objective. Obviously, the
    objective standard must take into account the context, but a purely subjective
    view, such as the difference to the purchaser, in this case, between a 70 story
    and a 60 story building does not meet this standard.

[4]

The essential context in this case in which to consider the issue of the
    alleged material changes is that these units were for investment purposes in a
    hotel. Thus, the primary issue, and the one addressed in the expert report, was
    whether any of the changes reasonably affected the value for investment
    purposes. These were not units that the purchaser was expected to occupy as if
    they were residential units. There was no evidence that access to the PATH met
    the test for material change. The application judge gave close consideration to
    this issue and we have not been persuaded that he made any error in finding
    that the access to the PATH for this building in these particular circumstances
    was a material change.

[5]

We also agree with the application judge that the alleged costs shifting
    did not represent a material change.  We also agree with the application judge
    that the alleged cost shifting represented a material change. There are
    different ways to compare the changes, some of them as a result of the change
    in the number of stories. It was for the application judge to choose that
    comparison and absent a palpable and overriding error, this court cannot
    interfere. In addition we note the evidence that on one way of calculating the
    differences, which is reasonable given the investment nature of the units, the
    changes represent only very small differences in the common expenses that the
    purchaser must pay.

[6]

Given our conclusion that this was a revised disclosure statement and
    that there were no material changes, it is unnecessary to decide the issue of
    whether the notices of rescission were brought in a timely way.

[7]

The respondent is entitled to its costs fixed at $10,767.49 inclusive of
    HST and disbursements.

M. Rosenberg J.A.

C.W. Hourigan J.A.

M.L. Benotto J.A.


