Executive Summary: Key Legal and Evidentiary Issues

• Central issue concerned whether the builder complied with s. 72(1)(b) of the Condominium Act, 1998 by actually delivering the mandatory condominium buyers’ guide to the purchaser.
• Reliability of the purchaser’s signed electronic acknowledgment was in question, given documentary inconsistencies about when the disclosure statement and fully executed agreement were in fact provided.
• Legal effect of the builder’s failure to provide the guide required the court to interpret ss. 72 and 73 and prior case law on non-compliant or missing disclosure statements, including whether the agreement ever became binding.
• The builder’s arguments on estoppel and affirmation—based on the purchaser paying deposits, signing amendments, and proceeding toward closing—were weighed against the non-waivable statutory duties under consumer protection legislation.
• Allegations that the purchaser acted in bad faith or used technical non-compliance tactically were assessed in light of the consumer-protection purpose of the Act and the absence of any delivery of the guide.
• Quantum of loss and allocation of costs turned on which party’s application succeeded, given the parties’ agreement on the builder’s damages if successful and the deposit and costs payable if the purchaser succeeded.

Facts and background of the condominium purchase dispute

This case arises from a failed purchase of a new-build condominium unit at 54 Linden Park Lane in Hamilton, Ontario. The vendor, DiCenzo (Linden Park) Holdings Inc., was the builder/declarant and the purchaser was Ferdows Sadeghyar, an experienced real estate professional licensed since 2017 with prior involvement in multiple residential transactions and a previous pre-construction purchase. On March 5, 2022, the parties entered into an agreement of purchase and sale for the condominium unit at a price of $1,009,150, with the first tentative occupancy date set for February 23, 2024. The transaction, including signatures and delivery of documents, was conducted entirely electronically. The purchaser signed the closing documents on March 4, 2022, and the builder executed them the following day. The agreement included an acknowledgment (Schedule H) signed and initialled electronically by the purchaser on March 4, 2022, stating that he had received the Residential Condominium Buyers’ Guide in electronic form, together with an executed copy of the agreement and the disclosure document. The purchaser was also given an “Information for Buyers of Pre-Construction Condominium Homes” document from the Home Construction Regulatory Authority, which highlighted, among other things, the 10-day cooling-off period and advised purchasers to consult a lawyer familiar with condominium transactions. Although the purchaser was aware of the 10-day cancellation window, he did not read the agreement carefully and did not obtain legal advice during that period. The purchaser paid a total deposit of $121,098 in two instalments, the bulk of which ($116,098) was paid on March 14, 2022. Later amendments, signed by both parties in October 2022 and January 2023, raised the purchase price to $1,012,637.18 reflecting agreed changes and upgrades. Three days before the scheduled closing of February 23, 2024, the purchaser’s lawyers informed the builder that he would not be able to proceed with the purchase because he could not secure financing and therefore could not provide the closing funds. The transaction did not close on the scheduled date. The builder later resold the unit for $699,900, incurring resale and carrying costs of $27,162.28. The parties agreed that, if the builder were successful, its net damages would total $218,804.46 after applying the forfeited deposit. The purchaser did not ask for the return of his deposit until after the builder had commenced its application on June 16, 2025.

Statutory framework and policy terms in issue

At the heart of the dispute was the builder’s statutory obligation under the Condominium Act, 1998. Section 72(1)(b) requires a declarant to deliver both the disclosure statement and the applicable condominium guide to every purchaser of a unit. The condominium guide, introduced by 2015 legislative amendments and in force by January 1, 2021, is designed as an accessible, consumer-friendly explanation of condominium ownership to help purchasers understand the implications of their purchase and make informed decisions. The Act has consistently been treated by the courts as consumer-protection legislation, and the requirement to deliver the guide is part of that protective scheme. Section 72(2) provides that an agreement of purchase and sale “is not binding on the purchaser” until the declarant has delivered both the current disclosure statement and the condominium guide. Section 73 further sets out the purchaser’s rescission rights. Under s. 73(1), once a purchaser “receives a disclosure statement and the condominium guide under subsection 72(1)”, they may rescind the agreement at any point before accepting a registrable deed. Section 73(2) fixes the 10-day period for giving written notice of rescission based on the latest of three events: receipt of the disclosure statement, receipt of the condominium guide, and receipt of the fully executed agreement. The court had to determine how these provisions apply when the guide is never delivered at all. The agreement of purchase and sale itself contained standard provisions dealing with the consequences of purchaser default, including forfeiture of deposits and liability for all resulting costs, losses and damages if the purchaser failed to close. The builder relied heavily on these contractual remedies, arguing that the purchaser’s financing failure and failure to close triggered them. However, those contractual terms had to be reconciled with the non-waivable statutory requirements in the Condominium Act and its consumer-protection purpose.

Builder’s position and evidentiary reliance on the acknowledgment

The builder’s application sought a declaration that it was entitled to retain the purchaser’s deposit and recover the agreed damages for the shortfall on resale and carrying costs. It asserted that the purchaser had, in fact, received the condominium guide and pointed to the signed electronic acknowledgment as proof. In the alternative, the builder argued that even if the guide had not been delivered, the purchaser should be prevented from relying on that omission because he had affirmed the contract, was estopped from denying receipt, or was acting in bad faith by using a technical statutory requirement to escape a deal he could no longer finance. The builder emphasized that it had otherwise taken care to inform the purchaser of his rights: it sent an email on March 7, 2022, attaching the fully executed agreement, a disclosure statement, and a schedule on limited assignment rights, while reminding the purchaser of his right to terminate under the Act by March 17, 2022 and encouraging him to obtain legal advice. The builder characterized the purchaser as sophisticated and well-versed in real estate transactions, including pre-construction projects, suggesting that he had every opportunity to understand and exercise his rights during the cooling-off period. On evidentiary issues, the builder’s case hinged on the acknowledgment in Schedule H, which stated that the purchaser received the guide and other documents electronically. There was, however, no separate electronic record or file transfer log showing that the guide itself was ever sent, in contrast to the documentary trail for the disclosure statement and the executed agreement.

Purchaser’s position on non-delivery of the guide and rescission rights

The purchaser responded with a cross-application seeking a declaration that the agreement was void or not binding on him and that he was entitled to a return of his deposit with interest. He denied ever receiving the condominium buyers’ guide and argued that, under s. 72(2), the agreement never became binding since the statutory precondition of delivery was not met. The purchaser further asserted that, because he never received the guide, the 10-day rescission period under s. 73(2) never started to run. On this reading, he retained a continuing right, any time before accepting title, to rescind or treat the agreement as non-binding. He said he did not become aware of the legal implications of the builder’s failure to provide the guide until after the builder had commenced proceedings, at which point he retained counsel around July 2025. Legally, the purchaser relied on case law interpreting earlier versions of the Condominium Act that dealt with disclosure statements, particularly decisions such as Benner, Abdool, and Brunott. Those cases support the proposition that if a declarant fails to deliver a compliant disclosure statement, the agreement of purchase and sale may never become binding and the purchaser can avoid it any time prior to transfer of title. The purchaser contended that, by parity of reasoning, a complete failure to deliver the condominium guide should have the same effect under the current s. 72: no binding agreement and a continuing ability to walk away. As to estoppel and affirmation, the purchaser argued that continuing with upgrades, paying deposits, and signing amendments could not override or waive a statutory consumer-protection requirement designed to ensure that purchasers receive essential information before being bound.

Court’s analysis of whether the guide was delivered

The court first dealt with the factual question of whether the guide had ever been delivered. It accepted that the builder had a clear statutory duty to provide the guide under s. 72(1)(b) and noted that the mere existence of an acknowledgment was not conclusive proof of delivery. In weighing the evidence, the court highlighted a number of inconsistencies that undermined the reliability of the signed acknowledgment. The acknowledgment stated that, as of March 4, 2022, the purchaser had received three items: the condominium guide, the disclosure statement, and a fully executed agreement. The documentary record, however, showed that the agreement was not fully executed by the builder until March 5, 2022, and that the disclosure statement was not sent to the purchaser until March 7, 2022, when those documents were attached to the builder’s email. Those discrepancies cast serious doubt on the accuracy of the acknowledgment and on the builder’s documentary practices. The court also observed that, despite the transaction being entirely electronic and the guide being a statutorily mandated document, the builder had no separate record of ever sending the guide, unlike the records for the agreement and disclosure statement. In the court’s view, given the importance of the guide and the builder’s obligations under the Act, one would reasonably expect the builder to retain proof of delivery. In the absence of such proof and in light of the flawed acknowledgment, the court found that the builder had not come close to establishing on a balance of probabilities that the guide was provided. It therefore made a clear factual finding that the condominium buyers’ guide was not delivered to the purchaser.

Interpretation of ss. 72 and 73 and impact of non-delivery

Having found that the guide was never delivered, the court turned to the legal consequences of that omission. It undertook a modern statutory interpretation exercise, focusing on the text, context, and purpose of the relevant provisions. Textually, s. 72(2) states that the agreement is “not binding on the purchaser” until the declarant has delivered both the disclosure statement and the condominium guide. Sections 73(1) and (2) only give rise to a 10-day written rescission period once the purchaser has received all three items: disclosure statement, guide, and executed agreement. The court concluded that where the guide is not delivered at all, the 10-day rescission clock never starts, and the purchaser remains free to treat the agreement as non-binding and to rescind any time before accepting a deed. Contextually and purposively, the court emphasized that the Act is consumer-protection legislation, and that the guide is a tool designed to arm purchasers with accessible information about condominium ownership before they are bound. The level of sophistication of the purchaser does not dilute these protections, nor does the builder’s general good-faith conduct elsewhere in the process. The court drew on earlier case law under the former Act (notably Abdool, Brunott, and Budinsky) that dealt with failures to deliver or deficiencies in disclosure statements. Those decisions stand for the principle that where a declarant fails to provide a compliant disclosure statement, the agreement may be declared non-binding at any time before title passes, and an inadequate disclosure statement cannot trigger the running of a rescission period. The court saw no principled reason to distinguish the operative language of s. 72 of the current Act from s. 52 of the former Act and extended the same logic to the condominium guide requirement. As a result, the court held that, because the guide was never delivered, the agreement of purchase and sale in this case never became binding on the purchaser and that he was entitled, under s. 72, to rescind.

Rejection of estoppel, affirmation, and bad faith arguments

The builder’s fallback arguments centred on affirmation of contract, estoppel, and alleged bad faith. It pointed to the purchaser’s payment of substantial deposits, his selection of upgrades and extras, the signing of amendments, and his silence on the guide issue until after litigation as showing that he had affirmed the agreement and should be barred from invoking non-delivery. The court rejected this line of reasoning. It found that treating these steps as affirmation would effectively negate ss. 72 and 73, which make the agreement non-binding until statutory preconditions are met and contemplate affirmation only at the point the purchaser actually accepts transfer of the deed. That never happened in this case. On estoppel (both by convention and by representation), the court applied the tests set out by the Supreme Court of Canada. It held there was no true agreement between the parties to deem particular facts as true, especially when the guide in fact was never delivered and the acknowledgment document itself contained statements known not to be accurate. The builder, which had prepared the acknowledgment, could not rely on that flawed document to circumvent its statutory duties. More fundamentally, the court expressed serious doubt that estoppel or any private agreement could be used to displace or waive a statutory requirement imposed in the public interest. Citing earlier authority under the Condominium Act, it noted that there can be no waiver of such statutory protections and that estoppel cannot prevent or hinder performance of a statutory duty. Section 176 of the current Act reinforces that the Act prevails over any agreement to the contrary. Accordingly, neither estoppel by convention nor estoppel by representation was available to rescue the builder’s position. The court also addressed the suggestion that the purchaser was acting in bad faith by seizing on a “technical” omission once financing problems arose. It accepted that the builder had otherwise attempted to inform the purchaser of his rights and that the purchaser was sophisticated, but held that those factors did not absolve the builder of strict compliance with the mandatory statutory requirement to deliver the guide. Good faith in other respects could not cure an outright failure to meet a core consumer-protection obligation.

Outcome and monetary consequences

In the result, the court dismissed the builder’s application in its entirety and granted the purchaser’s cross-application. It declared that the agreement of purchase and sale was not binding on the purchaser because the condominium buyers’ guide had never been delivered as required by s. 72 of the Condominium Act. The purchaser was therefore entitled to rescind the agreement and to the return of his full deposit of $121,098, together with interest to the date of payment calculated in accordance with the Act, with the parties to attempt to agree on the precise interest figure or return to court if necessary. Consistent with the parties’ earlier agreement on costs, the court awarded the purchaser his costs of the proceeding fixed at $31,000 on a partial indemnity basis, all-inclusive. Taken together, the successful party, Ferdows Sadeghyar, obtained a total quantified monetary award of $152,098 (the $121,098 deposit plus $31,000 in costs), in addition to interest on the deposit, the exact amount of which could not yet be determined at the time of the decision.