Key Facts:

• Agreement and Disclosure: The applicants, Chirag and Priyankaben Trivedi, agreed to purchase a condominium unit on March 16, 2022, from the respondent, 2607305 Ontario Inc. (Urbane). The original disclosure indicated the unit was on the top (third) floor.
• Change in Development: On February 22, 2024, Urbane issued a Revised Disclosure Statement (RDS), informing the applicants of an added fourth floor. Urbane assured the unit’s location would remain unchanged on the third floor.
• Application Filed: The applicants sought a declaration that the change constituted a material change under the Condominium Act, 1998, and requested rescission of the purchase agreement or a return of their deposit based on fundamental breach of contract.

Court Findings:

1. Material Change:

   • The court found the addition of the fourth floor was a material change. The change objectively affected the applicants’ perception of the purchase, as being on the top floor was significant to a reasonable purchaser.

2. Rescission Under the Condominium Act:

   • The applicants did not exercise their right to rescind within the 10-day statutory window or preserve it by filing for a determination within this period. Thus, the right to rescind under the Act was forfeited.

3. Fundamental Breach:

   • At common law, the change did not deprive the applicants of “substantially the whole benefit” of the contract. The unit’s specifications and location on the third floor remained as agreed. The addition of a floor did not constitute a fundamental breach.

Outcome:

• The application was dismissed.
• The applicants were ordered to pay the respondent's costs of $25,000.