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B.C. couple scrambled to cover shortfall after real estate agent embezzled $30K in deposits –



Real Estate Sales In September

A pair of B.C. homebuyers whose real estate agent embezzled $30,000 in deposits will be compensated through a program for victims of fraud and misappropriation.

In a decision posted online last week, the Real Estate Council of B.C. approved William Schut and Marilyn MacCallum’s claim for reparation through the Real Estate Special Compensation Fund.

The council’s compensation committee found that former agent Katharine Virtanen pocketed multiple deposits that were supposed to be applied toward the purchase of a home in Chilliwack, B.C., in 2014.

Schut and MacCallum only discovered the shortfall as the deal was closing, forcing them to sell a stash of precious metals in order to make up the missing funds.

Committee chair Yasin Amlani wrote that “Virtanen had devised a scheme in order to misappropriate funds from Mr. William Schut and Ms. Marilyn MacCallum,” and that she had acquired this cash through fraud.

The committee ordered that a certificate be issued to Schut and MacCallum, compensating them for their losses.

The Real Estate Special Compensation Fund is a pool of money maintained by the real estate council through fees paid by licensees. It’s meant to compensate those who’ve lost money because of the actions of a real estate professional, up to a maximum of $100,000.

Lawsuit over unpaid loans

Virtanen is no longer listed as a licensed agent with the real estate council, but it appears Schut and MacCallum aren’t the only people who’ve lost money to her.

Four years ago, Virtanen was the subject of a lawsuit through small claims court over $22,500 in unpaid loans plus interest owed to Ron and Shelley Gordon of Langley, B.C.

Court records show that a judicial justice had to issue a warrant for Virtanen’s arrest before she appeared in court for a hearing on repaying the Gordons’ money.

Records also show that Virtanen filed for bankruptcy in 2016 and applied to have her debts discharged a year later.

That application was denied after a trustee said that, among other things, she had contributed to her bankruptcy by “rash and hazardous speculations, by unjustifiable extravagance in living, by gambling or by culpable neglect,” according to a 2017 order from B.C. Supreme Court.

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RioCan CEO says real estate industry's norms have turned upside-down – OrilliaMatters



TORONTO — Demand for space in prime office towers and shopping malls has plunged because the pandemic suddenly turned them into places that customers and tenants “don’t even want to go to,” RioCan Real Estate Investment Trust’s veteran chief executive said Tuesday.

“Unfortunately … everything that was accepted wisdom in the real estate business only eight months ago has been turned on its head, even in the face of record low interest rates and massive government spending,” Edward Sonshine told analysts on a conference call.

Another formerly “bulletproof” segment of the industry — multi-unit residential rental properties — is also being questioned due to government freezes on rents and evictions, Sonshine said.

An exception to the gloom, Sonshine said, has been strong demand for new condo developments and single-family residences.

Sonshine said RioCan fared better during the third quarter than he expected it would and credited the work of RioCan management, led by Jonathan Gitlin, who becomes chief executive April 1. Sonshine, who announced on Oct. 21 that he’ll retire as CEO in March after nearly three decades, will become chairman of the board.

Gitlin told analysts on RioCan’s third-quarter conference call that rent collected from tenants, plus government subsidies, represented 93.4 per cent of billed rent for July, August and September and 91.9 per cent for October.

That compared with just 73 per cent in the months of April, May and June, as reported in July with RioCan’s second-quarter results.

“While we’d clearly prefer to report 100 per cent collection, as we’ve been able to do during the first 26 years of our operation, we’re pleased with the steady upward collection trajectory since April,” Gitlin said.

RioCan had estimated early in the pandemic that its overall property occupancy rate could fall to as low as 94 per cent by the end of 2020, but it had improved to 96 per cent as of Sept. 30 and it’s expected to be stable through to the end of the year.

“Happily, we’re leasing space up almost as fast as the tenants disappear,” Sonshine said.

But he said forecasts about coming trends are difficult to make without knowing how long new COVID shutdowns will be in effect. especially in the Greater Toronto Area and the Ottawa region — the biggest markets for RioCan.

“You know, there’s only so long that tenants can go without revenue before they start wanting to talk to their landlord,” Sonshine said.

RioCan said that as of the end of the quarter on Sept. 30, essentially all of its tenants were open and operating — compared with only 85 per cent as of July 28.

The real estate trust said it had $117.6 million of net income or 37 cents per unit for the three months ended Sept. 30, down from $177.6 million or 58 cents in the 2019 third quarter.

It said $14.4 million of the $60-million decline was due to pandemic-related provisions related to rent abatement and bad debts, while $48 million was due to higher net fair value losses.

Funds from operations, a key metric in real estate, declined to $128.8 million or 41 cents per unit from $142.8 million or 47 cents per unit.

All the key financial measures were an improvement from RioCan’s second quarter ended June 30, when it posted a net loss of $350.8 million or $1.10 per unit and FFO dropped to 35 cents per unit.

In July, RioCan said it would divest from brick-and-mortar apparel retailers in favour of grocery stores, pharmacies and e-commerce.

But Sonshine said Thursday that RioCan has decided to hold onto its traditional retail properties, which include shopping malls and plazas, and look for better opportunities.

“It’s a really slow market, in any event, because (I think) there’s so much uncertainty about the future of retail,” he said.

Revenue fell to $302.3 million from $353.9 million a year earlier.

This report by The Canadian Press was first published Oct. 29, 2020.

Companies in this story: (TSX:REI.UN)

David Paddon, The Canadian Press

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Mall real estate company collected 5 million images of shoppers, say privacy watchdogs –



The real estate company behind some of Canada’s most popular shopping centres embedded cameras inside its digital information kiosks at 12 shopping malls across Canada to collect millions of images — and used facial recognition technology without customers’ knowledge or consent — according to a new investigation by the federal, Alberta and B.C. privacy commissioners.

“Shoppers had no reason to expect their image was being collected by an inconspicuous camera, or that it would be used, with facial recognition technology, for analysis,” said federal Privacy Commissioner Daniel Therrien in a statement.

“The lack of meaningful consent was particularly concerning given the sensitivity of biometric data, which is a unique and permanent characteristic of our body and a key to our identity.”

According to the report, the technology Cadillac Fairview used — known as “anonymous video analytics” or AVA— took temporary digital images of the faces of individuals within the field of view of the camera in the directory.

It then used facial recognition software to convert those images into biometric numerical representations of individual faces  about five million images in total.

That sensitive personal information could be used to identify individuals based on their unique facial features, said the commissioners.

The report said the company also kept about 16 hours of video recordings, including some audio, which it had captured during a testing phase at two malls.

Cadillac Fairview said it used AVA technology to assess foot traffic and track shoppers’ ages and genders — but not to identify individuals. The company also argued shoppers were made aware of the activity through decals it had placed on shopping mall entry doors that referred to Cadillac Fairview’s privacy policy.

But the commissioners said that wasn’t good enough and did not meet the standard for meaningful consent. 

“An individual would not, while using a mall directory, reasonably expect their image to be captured and used to create a biometric representation of their face, which is sensitive personal information, or for that biometric information to be used to guess their approximate age and gender,” they wrote.

The privacy watchdogs also took issue with the way the five million images were stored.

Cadillac Fairview said the images taken by camera were briefly analyzed then deleted — but investigators found that the sensitive biometric information generated from the images was being stored in a centralized database by a third party.

“Our investigation revealed that [Cadillac Fairview Corporation Limited’s] AVA service provider had collected and stored approximately five million numerical representations of faces on CFCL’s behalf, on a decommissioned server, for no apparent purpose and with no justification,” notes the investigation.

“Cadillac Fairview stated that it was unaware that the database of biometric information existed, which compounded the risk of potential use by unauthorized parties or, in the case of a data breach, by malicious actors.”

Company says technology couldn’t identify people

The company said the technology was used to detect the presence of a human face and assign it “within milliseconds” to an approximate age and gender category and maintains it did not store any images during the pilot program and was not capable of recognizing anyone. 

This directory in Chinook Centre mall in south Calgary uses facial recognition technology. (Sarah Rieger/CBC)

“The five million representations referenced in the [Office of the Privacy Commissioner] report are not faces.These are sequences of numbers the software uses to anonymously categorize the age range and gender of shoppers in the camera’s view,” Cadillac Fairview spokesperson Jess Savage said in a statement to CBC News.

“The OPC report concludes there is no evidence that CF was using any technology for the purpose of identifying individuals.”

CF suspended its use of cameras back in 2018 when provincial and federal privacy commissioners launched their probe following a CBC investigation.

In a statement to CBC News on Thursday, the company said it has no plans to reinstall the cameras.

“We subsequently deactivated directory cameras and the numerical representations and associated data have since been deleted,” said Savage.

“We take the concerns of our visitors seriously and wanted to ensure they were acknowledged and addressed.”

However, the three commissioners said they have concerns about the company’s plans going forward.

“The commissioners remain concerned that Cadillac Fairview refused their request that it commit to ensuring express, meaningful consent is obtained from shoppers should it choose to redeploy the technology in the future,” said the commissioners’ statement.

Savage said Cadillac Fairview accepted and implemented all the recommendations “with the exception of those that speculate about hypothetical future uses of similar technology.”

The investigation found the technology was used in five provinces at the following malls:

  • CF Market Mall (Calgary)
  • CF Chinook Centre (Calgary)
  • CF Richmond Centre (Richmond, B.C.)
  • CF Pacific Centre (Vancouver)
  • CF Polo Park (Winnipeg)
  • CF Toronto Eaton Centre (Toronto)
  • CF Sherway Gardens (Toronto)
  • CF Fairview Mall (Toronto)
  • CF Lime Ridge (Hamilton, Ont.)
  • CF Markville Mall (Markham, Ont.)
  • CF Galeries d’Anjou (Montreal)
  • CF Carrefour Laval (Laval, Que.)

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Damages For Lost Opportunity Cannot Be Awarded In A Failed Real Estate Transaction – Real Estate and Construction – Canada – Mondaq News Alerts




Damages For Lost Opportunity Cannot Be Awarded In A Failed Real Estate Transaction

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A recent decision from the Ontario Superior Court of Justice has
confirmed that damages for lost opportunity will not be awarded
when a real estate deal goes wrong.

In Akelius Canada Inc. v. 2436196 Ontario Inc., 2020
ONSC 6182, Justice Morgan held that when a real estate deal falls
apart due to a seller’s default, damages are to be determined
at the closing date and a claim for the future appreciation of the
property is therefore not available.

In Akelius, two sophisticated real estate investors
entered into an Agreement of Purchase and Sale
(“APS“) in 2015 for seven residential
apartment buildings in Toronto. The plaintiff buyer was a Canadian
subsidiary of a large international investment corporation with
holdings across Europe, the United States, and Canada. Over the
course of the transaction, the purchase price was negotiated to a
final price of $225,400,000.

After the APS was executed and prior to closing, the buyer
discovered that there were several mortgages encumbering the title
of some of the properties with total outstanding amounts of over
$48 million. The existence of the mortgages constituted a breach of
the APS and the buyer therefore objected after discovering

The defendant sellers failed to remove the mortgages. However,
in an attempt to salvage the transaction, the sellers proposed to
revise the APS to exclude the encumbered properties from the sale
or alternatively, they proposed that the buyer could assume the
mortgages with a price abatement.

The buyer refused the sellers propositions, sued for breach of
contract, and brought a motion for summary judgment. The sellers
eventually sold the properties in 2018 for about $50 million more
than the purchase price in the APS. In its damages claim, the buyer
sought $50 million, reflecting the appreciation reaped by the
sellers, as well as about $770,000 in sunk costs that it incurred
as a result of the failed transaction.

Justice Morgan had little difficulty finding that the sellers
breached the APS. The buyer was ready, willing, and able to close
the transaction and the sellers were unable to convey good title on
the closing date as a result of the mortgages.

As such, the primary issue for determination was the appropriate
measure of damages. Justice Morgan noted that the basic principle
is that damages should put the injured party back in the position
it would have been in if the contract had not been breached. There
is some flexibility to this approach; courts have stated that the
date of assessment should be determined by what is fair on the
facts of the case.

However, it has also been well established that damages for lost
speculation profits is not an available remedy in a real estate
transaction. The damages must make up what the purchaser lost in
value on the closing date, not what a property speculator standing
in the purchaser’s shoes would have lost.

It was also noted that it did not matter in this case that the
buyer was an “income investor” rather than a true
property speculator. Damages were therefore measured at the date of
closing, which precluded any claims for lost appreciation

While the case law provided a complete answer to the lost profit
claim, the court in Akelius went on to discuss mitigation,
because the parties had spent much of their time fighting over that
issue. The court held that the buyer had either failed to mitigate
its damages or, more likely, fully mitigated its damages. The buyer
refused to produce records of its transactions after January 2016,
and Justice Morgan accordingly drew an adverse inference that the
funds saved on this transaction were spent on other comparable

As a result, it was held that the buyer was only entitled to
damages for the amount of sunk costs thrown away on the
transaction. Damages for lost opportunity were not awarded. Because
both parties had mixed success, no costs were awarded to either

This decision affirms the courts’ reluctance to consider
claims for lost profits from capital appreciation, even where a
buyer is unfairly deprived of a lucrative opportunity. Real estate
investors should be mindful of this before they opt to sue for

The authors would like to thank Allan Tung, Articling Student,
for his assistance with this article.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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