Brooker v. Independence Way Inc. (Superior Court of Justice - Divisional Court - Ontario)

The plaintiff, Brooker, had agreed to purchase a condominium unit from the defendant, Independence Way Inc.  The defendant changed the location of the furnace as compared to plans which were shown to the plaintiff at the time of the purchase.  The Small Claims Court held that the change was not fundamental.  

On appeal, the Divisional Court overturned the decision of the Small Claims Court and held that the change was fundamental, thereby entitling the plaintiff to cancel the agreement. 

The Divisional Court’s decision included the following: 

• If the plaintiff had known of the change of the location of the furnace, he would not have entered into the agreement of purchase and sale.  The Court said:  “This evidence goes to the question of whether the change was a fundamental change.”
• According to the evidence, prospective purchasers (introduced to the unit by the plaintiff in the course of attempting to solve the problem) lost interest in purchasing the unit when they found that the furnace had been located in the front hall closet.  The Court said, “This objective evidence goes to the question of the nature of the change.”
• “Schedule ‘B’ to the agreement of purchase and sale, which contains an acknowledgement by the Brookers that the location of the furnace is to be determined by the architect, may not be located as shown on the brochure and they shall be deemed to accept any such change, cannot be construed as unlimited and does not apply to fundamental changes.”