Many lawyers, real estate agents and others believe that delivery of notices by one party to another under an Agreement can be made by fax or email. In High Tower Homes Corp. v. Stevens, (2014) 123 O.R.(3d) 81, the Ontario Court of Appeal determined that delivery of a notice of the waiver of a condition was not properly delivered as it was not given in accordance with the terms set out in the Agreement of Purchase and Sale.
Delivery of notice is governed by the terms of the Agreement between the parties. In this case, the Agreement had provided for personal delivery of notices, unless an address for service or fax number or email was provided in the Agreement. The Agreement provided no such address for service, fax or email information. Accordingly, notice by the Purchaser of the waiver of a condition was required to be given personally to the Vendor.
The solicitor for the Purchaser delivered notice by fax to the Vendor's solicitor within the appropriate time. In this case, however, the judge determined that the provision governing delivery of notice required personal service on the Vendor and that delivery by fax was not effective delivery in accordance with the Agreement of Purchase and Sale.
The Vendor had entered into a bad deal and was fortunate that the Purchaser had not properly delivered notice of waiver of conditions. The Vendor was able to avoid having to complete the Agreement.
This case reinforces the requirement that notices be given strictly in accordance with the terms of the Agreement between the parties.