08-02-2024, 12:46 AM
Further detail from the court filing:
The Strike Unavoidable Delay
It is Tarion's assessment that the Vendor's August 15, 2022 written notice ending the Strike UD Event did not meet the requirements outlined in Section 5 for the following reasons:
• The notice failed to identify the date of its conclusion;
• The notice failed to set new critical dates by adding to the existing critical date; and
• The end of Unavoidable Delay notice was not sent within 20 days of when the vendor knew or ought reasonably to have known that the Unavoidable Delay had concluded.
However, as the Vendor did not attribute any delay to the Strike UD Event, the insufficiency of the second notice does not impact the analysis, and the critical dates remain unchanged.
The Flood Unavoidable Delay
Without opining on whether or not the Flood UD event would meet the definition of unavoidable delay under the Addendum, it is Tarion's assessment that the Vendor's August 15, 2022 written notice ending the Flood UD Event did not meet the requirements outlined in Section 5© for the following reason:
• The Vendor specified that the Flood UD Event occurred between March 26, 2022, and March 28, 2022, with an additional remobilization period of 80 days, resulting in a total Unavoidable Delay Period of 82 days, which can be calculated to have ended on June 16, 2022. The Vendor's notice was sent 60 days after the date the Vendor identified as the end of the Flood UD Event. It was not sent "as soon as reasonably possible, and no later than 20 days after the Vendor knows or ought reasonably to know that an Unavoidable Delay has concluded." The notice did not meet the requirements of section 5© of the Addendum and was, therefore, ineffective and the existing Firm Occupancy Date of May 12, 2022, remained unchanged.
• The revised Statement of Critical Dates set a Provisional Firm Occupancy Date of August 1, 2022. The Vendor's notice was sent on August 15, 2022. Section 5© of the Addendum requires that the new Firm Occupancy Date be "at least 10 days after the day of giving notice" (emphasis added). Furthermore, the Firm Occupancy Date is the date on which the Vendor will provide occupancy to the Purchaser. The Firm Occupancy Date cannot be set in the past. The Provisional Firm Occupancy Date of August 1, 2022 provided by the Vendor was set in the past. The notice did not meet the requirements of section 5© of the Addendum and was, therefore, ineffective and the existing Firm Occupancy Date of May 12, 2022, remained unchanged.
The Covid-19 Unavoidable Delay
It is Tarion's assessment that the Vendor's April 8, 2022 written notice of the Covid-19 UD Event and the Vendor's August 15, 2022 written notice ending the Covid-19 UD Event did not meet the requirements outlined in Section 5 of the Addendum for the reasons that follow.
The Vendor has failed to demonstrate that they experienced unavoidable delay as a result of Covid-19 as described in their notices. The April 8, 2022 notice stated that the Covid-19 UD Event related to delays in the supply of material and labour "required in order to remediate the damage from the significant flooding in the building." On August 15, 2022 the Vendor provided the Purchaser with written notice identifying the end of the Flood UD Event as August 1, 2022. On August 15, 2022, the Vendor also provided the Purchaser with written notice that the Covid-19 UD did not commence until August 1, 2022. Covid-19 cannot be said to cause delays in the remediation of the water damage in the building if the Covid-19 UD Event did not commence until after that remediation had been completed.
The Vendor did not send its first notice of the Covid-19 UD Event in compliance with section 5(b) of the Addendum. The first Covid-19 UD Event notice was sent on April 8, 2022. In the August 15, 2022 notice, the Vendor identified the start of the Covid-19 UD Event as August 1, 2022. Section 5(b) of the Addendum requires that the Vendor provide written notice of the start of the unavoidable delay to the Purchaser by the earlier of 20 days thereafter or the next critical date. The April 8, 2022 notice was sent 115 days before the date the Vendor identified as the start of the Covid-19 UD Event. It does not comply with the timing requirements of section 5(b) of the Addendum and, so, is ineffective.
The Vendor failed to identify the end of the Covid-19 UD Event. The August 15, 2022 notice failed to clearly identify the date of the Covid-19 UD Event's conclusion as required by section 5©. The Vendor indicated that the Unavoidable Delay related to the Covid-19 UD Event commenced on August 1, 2022. The notice included a "total setback" of 35 days from August 1, 2022 to a future date of September 6, 2022, identified as the Firm Occupancy Date. The notice does not identify the date when the Covid-19 UD Event ended, but rather provides a future date when the Vendor intended to provide occupancy to the home. A Purchaser could not determine the end of the Covid-19 UD Event based on the information provided by the Vendor.
Therefore, the April 8, 2022 and August 15, 2022 Covid-19 UD Event notices did not meet the requirements of section 5 of the Addendum and were, therefore, ineffective and the existing Firm Occupancy Date of May 12, 2022, remained unchanged.
The Strike Unavoidable Delay
It is Tarion's assessment that the Vendor's August 15, 2022 written notice ending the Strike UD Event did not meet the requirements outlined in Section 5 for the following reasons:
• The notice failed to identify the date of its conclusion;
• The notice failed to set new critical dates by adding to the existing critical date; and
• The end of Unavoidable Delay notice was not sent within 20 days of when the vendor knew or ought reasonably to have known that the Unavoidable Delay had concluded.
However, as the Vendor did not attribute any delay to the Strike UD Event, the insufficiency of the second notice does not impact the analysis, and the critical dates remain unchanged.
The Flood Unavoidable Delay
Without opining on whether or not the Flood UD event would meet the definition of unavoidable delay under the Addendum, it is Tarion's assessment that the Vendor's August 15, 2022 written notice ending the Flood UD Event did not meet the requirements outlined in Section 5© for the following reason:
• The Vendor specified that the Flood UD Event occurred between March 26, 2022, and March 28, 2022, with an additional remobilization period of 80 days, resulting in a total Unavoidable Delay Period of 82 days, which can be calculated to have ended on June 16, 2022. The Vendor's notice was sent 60 days after the date the Vendor identified as the end of the Flood UD Event. It was not sent "as soon as reasonably possible, and no later than 20 days after the Vendor knows or ought reasonably to know that an Unavoidable Delay has concluded." The notice did not meet the requirements of section 5© of the Addendum and was, therefore, ineffective and the existing Firm Occupancy Date of May 12, 2022, remained unchanged.
• The revised Statement of Critical Dates set a Provisional Firm Occupancy Date of August 1, 2022. The Vendor's notice was sent on August 15, 2022. Section 5© of the Addendum requires that the new Firm Occupancy Date be "at least 10 days after the day of giving notice" (emphasis added). Furthermore, the Firm Occupancy Date is the date on which the Vendor will provide occupancy to the Purchaser. The Firm Occupancy Date cannot be set in the past. The Provisional Firm Occupancy Date of August 1, 2022 provided by the Vendor was set in the past. The notice did not meet the requirements of section 5© of the Addendum and was, therefore, ineffective and the existing Firm Occupancy Date of May 12, 2022, remained unchanged.
The Covid-19 Unavoidable Delay
It is Tarion's assessment that the Vendor's April 8, 2022 written notice of the Covid-19 UD Event and the Vendor's August 15, 2022 written notice ending the Covid-19 UD Event did not meet the requirements outlined in Section 5 of the Addendum for the reasons that follow.
The Vendor has failed to demonstrate that they experienced unavoidable delay as a result of Covid-19 as described in their notices. The April 8, 2022 notice stated that the Covid-19 UD Event related to delays in the supply of material and labour "required in order to remediate the damage from the significant flooding in the building." On August 15, 2022 the Vendor provided the Purchaser with written notice identifying the end of the Flood UD Event as August 1, 2022. On August 15, 2022, the Vendor also provided the Purchaser with written notice that the Covid-19 UD did not commence until August 1, 2022. Covid-19 cannot be said to cause delays in the remediation of the water damage in the building if the Covid-19 UD Event did not commence until after that remediation had been completed.
The Vendor did not send its first notice of the Covid-19 UD Event in compliance with section 5(b) of the Addendum. The first Covid-19 UD Event notice was sent on April 8, 2022. In the August 15, 2022 notice, the Vendor identified the start of the Covid-19 UD Event as August 1, 2022. Section 5(b) of the Addendum requires that the Vendor provide written notice of the start of the unavoidable delay to the Purchaser by the earlier of 20 days thereafter or the next critical date. The April 8, 2022 notice was sent 115 days before the date the Vendor identified as the start of the Covid-19 UD Event. It does not comply with the timing requirements of section 5(b) of the Addendum and, so, is ineffective.
The Vendor failed to identify the end of the Covid-19 UD Event. The August 15, 2022 notice failed to clearly identify the date of the Covid-19 UD Event's conclusion as required by section 5©. The Vendor indicated that the Unavoidable Delay related to the Covid-19 UD Event commenced on August 1, 2022. The notice included a "total setback" of 35 days from August 1, 2022 to a future date of September 6, 2022, identified as the Firm Occupancy Date. The notice does not identify the date when the Covid-19 UD Event ended, but rather provides a future date when the Vendor intended to provide occupancy to the home. A Purchaser could not determine the end of the Covid-19 UD Event based on the information provided by the Vendor.
Therefore, the April 8, 2022 and August 15, 2022 Covid-19 UD Event notices did not meet the requirements of section 5 of the Addendum and were, therefore, ineffective and the existing Firm Occupancy Date of May 12, 2022, remained unchanged.