Amberwood

Peter A. Simm was co-counsel in the Ontario Court of Appeal for the successful Respondents in Amberwood  (2002).

Canadian law schools from coast to coast teach Amberwood  in mandatory Property Law courses. In 2016, the Supreme Court of Canada confirmed that this remains the leading Canadian case on positive covenants.

Amberwood  is cited in 44 Canadian legal textbooks and 35 judicial decisions, including 10 appellate rulings made as recently as 2019. It is the subject of 3 published case comments and a feature article in the Law Times  (June 3, 2002). This case is extensively discussed in two LSUC Special Lectures, as well as being cited in 26 accredited CPD papers and 11 law journal articles.

Amberwood  has also been cited internationally, including by the Victoria (Australia) Law Reform Commission, the Irish High Court, and 3 leading British textbooks (which rarely cite Canadian cases).

Simm was retained when the appeal was launched. His research unearthed important jurisprudence and statutory provisions overlooked by all trial counsel, enabling him to formulate the winning arguments. In light of how Simm’s Factum compellingly reframed the issues, Catzman J.A. ordered the Appellant to file a responsive, supplementary Factum. Simm then co-presented the oral argument at the hearing of the appeal, convincing the majority to reject a half-century of English jurisprudence that the trial judge had been inclined to adopt.

The Court of Appeal expressly noted “the complexity and novelty of the issues,” which included privity of contract, an extraordinarily byzantine area of real property law, and the limits of judicial reform of the common law. Professor Bruce Ziff subsequently swore that Amberwood  is “the most important decision on the subject of positive covenants running with the land in the history of Canadian jurisprudence.”

Full cite: Amberwood Investments Ltd. v. Durham Condominium Corp. No. 123 , 2002 CanLII 44913, 211 D.L.R. (4th) 1, 58 O.R. (3d) 481, 50 R.P.R. (3d) 1, 157 O.A.C. 135, 2002 CarswellOnt 850, [2002] O.J. No. 1023 (Ont. C.A); additional reasons re costs, 2002 CanLII 26298, 2002 CarswellOnt 1201, [2002] O.J. No. 1532 (Ont. C.A.); application for leave to appeal discontinued, S.C.C. Bulletin 2002, p. 1053, [2002] S.C.C.A. No. 208. (Co-counsel with A. Price.)