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The Supreme Court of Canada held that Lundin’s pit wall instability and rockslide could amount to a material change, and leave to proceed should be granted.
The court found a material change based on the respondent’s move to Kimberley and ordered interim week-on/week-off parenting, with child support adjourned pending disclosure.
The motion judge's findings that a material change occurred, that the child lived primarily with the respondent in the relevant periods, that the respondent's income for support purposes should be varied to the specified amounts, and that the respondent was entitled to credit for payments toward the matrimonial home were open on the evidence and free of palpable and overriding error; fresh evidence was unnecessary and the appeal is dismissed with costs.
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The Court of Appeal upheld the motion judge: adopting an expansive definition of "change" but on the facts the September 4, 2018 call did not constitute a change in SNC's business, operations or capital (including change in risk) because the risk of prosecution and debarment was already public and communications with prosecutors continued; therefore there was no reasonable possibility of success under s.138.8 and leave was denied and the statutory claim was not certified; the motion judge's discretionary reduction of costs for novelty/public interest was not an obvious error and cross-appeal…
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The motion judge erred in law by adopting an unduly narrow and definitive definition of 'change in the business, operations or capital'; on a correct, broader interpretation and on the evidence available at the leave stage there was a reasonable possibility the pit wall instability and rockslide constituted a change in operations that could be material, therefore leave under s.138.8 should be granted and certification issues remitted to the Superior Court.
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Because s.74(2)(d) excludes uncompleted amenities from the statutory definition of "material change", the appellant's notice of rescission was invalid on its face; moreover, the appellant's prior communications demonstrating unwillingness or inability to close amounted to an anticipatory breach, entitling the respondent to terminate the agreement, retain the deposit and pursue damages; therefore the motion judge's summary judgment for the respondent was correct.
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On the facts the court found it was in the best interests of the three youngest children to remain with Ms. B during any of Mr. B's deployments longer than two days; ordered the three youngest to remain at École des Beau-Marais for certainty and stability; found family violence and poor communication justified assigning purchasing responsibility for specified child expenses to Ms. B with a fixed monthly contribution from Mr. B under s.9 of the Guidelines; ordered an exclusive communication channel between the parties; established limited, child-controlled monthly contact options for the oldes…
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Court found a material change in circumstances rooted in the risk posed by Ms. S's plan to resume cohabitation with her fiancé who was charged with possession and trafficking of drugs and possession of weapons; because the immediate risk was removed by the parties' current separation, the existing shared parenting order will resume but with an express prohibition on the fiancé's presence during Ms. S's parenting time and a mandatory review to be triggered if Ms. S resumes cohabitation, with interim restricted parenting time until the review; child support variation was adjourned pending evide…
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The court held that the non‑construction at closing of the parkette and entry/exit gates did not constitute a material change under s.74 of the Condominium Act; the gates were common elements/amenities and the APS made timing of common elements non‑essential; the purchaser breached the APS by failing to close; the vendor validly terminated, forfeited the deposit under s.21 and may pursue damages; the appeal was dismissed.
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Notices that are in writing, delivered to the declarant or its solicitor, identify the material change relied on, and request return of the deposit satisfy s.74(7) even without using the word 'rescission'; Talon's failure to challenge within ten days triggered the statutory obligation to refund deposits with interest; recovery of deposits is an action to recover 'money to be laid out in the purchase of land' under RPLA s.4 so a ten-year limitation applies; appeals dismissed.
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