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disclosure statement because the original disclosure statement provided
only “estimated” dates. The Court of Appeal affirmed that errors with
respect to dates, even estimated dates, were misrepresentations.14 The
Court of Appeal said that when the expected commencement date passed,
and the developer became aware that the estimated completion date was
wrong, the developer was obligated to file an amendment immediately.15
In another decision dealing with “estimated” dates, the court again held
the developer was obligated to file an amended disclosure statement.
Maguire v. Revelstoke Mountain Resort Ltd. Partnership16 applied Chameleon in
a similar situation where the developer’s disclosure statement gave “estimated”
dates for the commencement and completion of construction and
said these “dates are estimates only and may vary”.17 In Maguire, the B.C.
Supreme Court found that the developer realized the completion date
would be delayed by at least ten months, and failing to file an amended disclosure
statement to that effect was a breach of its REDMA obligations:
… It is one thing to tell a purchaser that a completion date may vary, but
quite another to tell them in a timely manner that those dates in fact have
varied significantly. The purpose of REDMA is to protect consumers.
That purpose is not furthered by excusing a developer from notifying
purchasers of a material change on the basis of indefinite language in its
disclosure statement.18
The court in Maguire said that both construction start dates and completion
dates are material, and must be “reasonably accurate”19 to conform to
REDMA requirements. In Maguire, the purchasers indicated that the dates
mattered to them, but the courts have treated the test for materiality under
REDMA as an objective one.20
Generally, construction delays are material facts.21 The only cases where
construction delays have not been material are cases where the project was
still on time or was ahead of schedule.22 As the B.C. Supreme Court said in
Bosa Properties (Edgemont) Inc. v. Ban:
The key concept, however, is materiality which, in the context of
REDMA, is a function of the value, price and use of the condominium.
Delay manifestly affects those criteria and would be in the mind of a reasonable
person as such; acceleration is qualitatively different than delay
and would not similarly influence the mind of a reasonable person.23
Amending the Disclosure
What should developers do, then, when construction start dates or completion
dates are delayed? Under s. 16(1) of REDMA, if a developer becomes
aware that a disclosure statement contains a misrepresentation, the developer
must “immediately” file an amendment with the superintendent, and
must “within a reasonable time after filing” provide that amended disclo-