This is our Quarterly Review, highlighting posts on our Canadian Real Property Law Blog: The Lay of the Land. Follow the links to any of these specific posts, or visit the blog, where you can sign up to get each new post as it is published. As always, your comments and suggestions are most welcome.

Saving America’s Malls
By Michael Nienhuis on December 22, 2014

Earlier this year CNN published photographer Seph Lawless’s sad montage of photos depicting the demise of America’s malls in the video “Are America’s malls dying?”.

Just in time to spread some holiday cheer, on December 17 CNN published a rebuttal in the form of a CNNMoney Report entitled “Saving America’s malls from the brink of death”, in which writer Kathryn Vasel maintains, à la Mark Twain, that reports of the death of the American mall may have been slightly exaggerated. (...)

Thinking about “Space-Sharing”? Here are Some Legal Considerations
By Joy Ren on December 16, 2014

As the busy holiday tourist season approaches in British Columbia, visitors looking for alternatives to expensive hotel accommodations are increasingly seeking out “space-sharing” services such as Airbnb, Homeaway and VRBO (Vacation Rentals by Owner). Airbnb’s online platform allows home or condo owners to advertise their homes for rent to travelers or tourists on a short term basis. Airbnb also offers an online payment system which collects payment from the traveller and releases the funds to the host 24 hours after check-in.

A quick search online shows that there is no shortage of Airbnb listings in British Columbia, particularly in the (...)

Mandatory Energy Reporting Requirements – Coming to Toronto?
By Isabel Henkelman on December 8, 2014

In recent years a number of major U.S. cities have followed in the footsteps of many European countries in implementing energy reporting requirements (ERRs) which require owners and managers of large commercial and/or multi-residential buildings to track and report energy and water consumption. Recently, Toronto City Council pledged its support for further design and implementation research on the feasibility of an ERR initiative for large buildings in Toronto following a staff report issued in July, 2014. The staff report proposed that by benchmarking energy usage and publicly disclosing results, ERRs can promote more efficient use of resources, unearth energy savings (...)

The following post on the Canadian Appeals Monitor blog written by Anthony Alexander on November 14, 2014, may be of interest to readers of this blog: The Second Opinion: “Use it or Lose it” — The BCCA Warns Parties to Act Quickly in Response to a Fundamental Breach (or Suffer the Consequences)

A recent ruling of the British Columbia Court of Appeal, A & G Investments Inc. v. 0915630 B.C. Ltd., 2014 BCCA 425, provides a useful primer on the available mechanisms for bringing a contract to an end. (...)

The following post on the Canadian Appeals Monitor blog written by Neil Finkelstein and Brandon Kain on November 14, 2014, may be of interest to readers of this blog: SCC Delivers Ground-Breaking Decision in Canadian Contract Law

The Supreme Court of Canada has released a precedent-setting judgment in which it recognized, for the first time, that there is a general organizing principle of good faith in the performance of contracts throughout Canada: Bhasin v. Hrynew, 2014 SCC 71. The Bhasin case, which was successfully argued by Neil Finkelstein and Brandon Kain of McCarthy Tétrault’s Toronto litigation group, will be (...)

A Bridge Over Deregulated Waters: The New Navigation Protection Act
By Jordanna Cytrynbaum, Miriam Isman and Patrick Beechinor on November 17, 2014

On April 1, 2014, the Federal Navigation Protection Act, R.S.C. 1985, c. N-22 (New Act) came into force, replacing the Navigable Waters Protection Act (Old Act) and making notable changes to Canada’s regulation of waterways. The legislative objective is to enable municipal authorities to manage local projects, like bridge construction, without the costs and delays often incurred in the course of the Federal approval process. These amendments are likely to have implications across various industries, including construction, oil and gas, transportation, and telecommunication. (...)

The Challenges of Putting Humpty Dumpty Back Together Again
By Charlene Schafer on November 11, 2014

A recent order of the Ontario Superior Court illustrates the complexities of the right of rescission in real estate transactions. The purpose of the remedy of rescission is to restore the parties to the position they were in prior to the entering into of the transaction in question. When there has been a conveyance of interests in real property and consequently, the transfer of legal ownership of those interests, which often triggers tax consequences, restoring the parties to their pre-contractual position and unwinding the transaction can be complicated and is akin to “putting Humpty Dumpty back together again.” (...)

Québec off-title searches – A Rumsfeldian adventure
By James Papadimitriou on October 24, 2014

There are many differences and misconceptions about Québec off-title searches that resemble Don Rumsfeld’s famous speech.

The first is that responses are typically available only after thirty days and beyond most due diligence periods, creating the “unkown unkowns” category.

If the transaction allows time for receipt before waiver and violations disclosed ( the “known knowns”) the reader must then further inquire as to whether the violations are outstanding (typically authorities do not necessarily follow up or note corrections). Violations are also often dated, possibly time barred or tenant matters. Regulators are also not required to note corrections (...)

Conditional Building Permits: A Very Useful Tool
By Michael Foderick on October 20, 2014

There are many situations in which a developer may need to begin construction before a certain date, but cannot get their building permit in time. In Ontario that is usually because they cannot yet meet some very minor “applicable law” requirement that, according the Building Code Act,they must comply with in order to obtain the permit.

A conditional building permit can often get around this problem, even though many municipalities in Ontario use them so infrequently that they seem barely aware that they have the authority to issue them. Conditional building permits are authorized pursuant to (...)

The following post on the Canadian Energy Perspectives blog written by Paul Cassidy, Kimberly Howard, Gordon Nettleton and Monika Sawicka on October 10, 2014, may be of interest to readers of this blog: The National Energy Board Saga between Trans Mountain and Burnaby Continues…

On October 9, 2014, the National Energy Board heard oral argument for a motion by Trans Mountain Pipeline ULC (Trans Mountain) seeking an order pursuant to sections 12, 13, and 73(a) of the National Energy Board Act. Submissions were made by Trans Mountain and (...)

Lien Out: Arbitrary Protection for Pre-Construction Consultants
By Aidan Cameron on October 6, 2014

Those who claim a builders lien must comply strictly with the requirements of the Builders Lien Act, and owners (or at least their counsel) are frequently on the lookout for liens that can be extinguished for a failure to satisfy such requirements. The recent BC Supreme Court decision in Stanley Paulus Architect Inc. v. Windmill Holdings Ltd., 2014 BCSC 1816 serves as a reminder of one fundamental requirement: in order to claim a lien there must be an “improvement” within the meaning of the Act. More particularly, there is no “improvement” where construction has not yet commenced (...)