Real Estate Law

A motion for summary judgment brought by a home developer to recover damages arising from an abandoned agreement of purchase and sale.

The defendant admitted non-completion but argued the plaintiff failed to mitigate damages.

The court found the plaintiff did not reasonably mitigate because it failed to disclose or identify specific marketing steps taken to resell the property, chose not to list on MLS, and delayed resale efforts.

The court assessed damages as of the breach date rather than the resale date, resulting in no damages owed after crediting the defendant's deposits.

The court granted summary judgment in favour of World Financial Solutions Inc. for possession and sale of a Toronto property under a collateral mortgage, dismissing the defences, counterclaim, and third party claims of 2573138 Ontario Ltd. and Marguerite Alfred.

The court found the mortgage was in default, rejected arguments of co-venturer status, conspiracy, and improper sale, and ordered a reference for accounting of sale proceeds.

The decision clarifies the application of summary judgment principles in mortgage enforcement and the limits of technical and equitable defences.

The court addresses the issue of forum shopping in mortgage proceedings, specifically the practice of commencing actions in judicial regions with no connection to the underlying dispute.

The decision reviews the relevant Practice Direction, the Rules of Civil Procedure, and the court’s inherent jurisdiction to control its process.

The court finds that the action should have been brought in Owen Sound, not Halton, and criticizes the plaintiff’s venue choice as unfair and burdensome to the defendant and the court.

While granting the plaintiff leave to issue a writ of possession in this instance, the court warns that such conduct will not be tolerated in the future.

The court found that the new landlord, Anisa Holdings Ltd., fundamentally breached, repudiated, and/or constructively evicted the tenant, Convocation Flowers Incorporated, by eliminating access to loading docks and the north driveway, which were essential for the tenant’s business.

The court also found a breach of the duty of good faith.

The issue of damages was bifurcated and ordered to proceed to trial.

The plaintiff, a franchisee, brought an urgent motion seeking a stay of a prior decision denying injunctive relief and a mandatory injunction to restore possession of the franchise premises, pending leave to appeal to the Divisional Court.

The franchisor had locked out the plaintiff after the initial injunction motion was dismissed.

The court found it lacked jurisdiction to grant the requested relief, determining that the Divisional Court, as the court to which leave to appeal was being sought, was the proper forum for such interim orders under section 134(2) of the Courts of Justice Act.

The motion was transferred to the Divisional Court.

The Royal Bank of Canada (RBC) brought a motion to pay the net proceeds from a power of sale of a property into court.

The defendant, Guy Lafond, and his former partner, Sherri Van de Hoef, along with the Family Responsibility Office (FRO), claimed entitlement to these funds, primarily for child support arrears.

The court determined the amounts owed to each party and established the priority of claims, with FRO and Ms. Van de Hoef's claims (including costs) taking precedence over RBC's remaining claim.

Due to Mr. Lafond's conduct in disputing the claims and causing adjournments without taking suggested steps, he was ordered to pay the costs of the other parties.

The funds in court were insufficient to fully satisfy all claims, leaving Mr. Lafond personally liable for the deficiency owed to RBC.

The plaintiff, Rose-Terra Investments Inc., moved for summary judgment against the defendant, Anna Marlena Butryn, seeking damages for her default on minutes of settlement related to a mortgage.

The defendant raised several defenses, including duress, undue influence, lack of independent legal advice, bare trustee status, and want of consideration.

The court dismissed all of Ms. Butryn's defenses, finding no genuine issue for trial, and granted summary judgment in favour of the plaintiff, awarding damages for the shortfall on the property sale and associated costs.

The appellant, Lydian Smith, appealed a Divisional Court decision affirming the Landlord and Tenant Board's finding that YouthLink Youth Services' transitional housing program was exempt from the Residential Tenancies Act, 2006 under s. 5(k).

The Court of Appeal affirmed that s. 5(k) and the newer s. 5.1 can co-exist, and that "rehabilitative or therapeutic services" in s. 5(k) include broader support services beyond medical care.

The court dismissed the appeal, finding that the Board and Divisional Court correctly interpreted the statutory exemptions and that the YouthLink program fell within the s. 5(k) exemption.

The applicants sought a Certificate of Pending Litigation (CPL) against a residential property after their Agreement of Purchase and Sale failed to close.

They claimed specific performance or, alternatively, damages.

The respondents denied breaching the agreement and opposed the CPL, having entered into a second agreement to sell the property.

The court granted the CPL, finding that the applicants had a triable claim to an interest in land and that the property was unique, making damages an unsatisfactory remedy, especially given the rising real estate market and the applicants' inability to use their deposit for another purchase.

The court also balanced the prejudice, noting the respondents' decision to enter a second agreement while the applicants' claim was active.

McDonald's sought to declare North Elgin Centre Inc. (NEC) in contempt of a prior court order requiring NEC to provide "all reasonable cooperation" to obtain Planning Act consent for a renewed lease.

NEC filed a report with the Town's Committee of Adjustment proposing conditions for consent approval, which McDonald's argued was a breach.

NEC also brought a cross-motion for declaratory relief and directions.

The court dismissed McDonald's contempt motion, finding that NEC's report, including its proposed conditions, reflected legitimate concerns as the property owner and did not constitute a failure to provide "all reasonable cooperation." NEC's cross-motion was also dismissed as unnecessary given the contempt motion's dismissal, and because a single judge could not vary a panel order.

The applicant sought relief from forfeiture arising from an agreement of purchase and sale after breaching a term requiring the vendor's prior written consent to list or sell the townhouse.

The applicant had listed and sold the property without consent, leading the respondent vendor to terminate the agreement and forfeit deposits and occupancy fees.

The court dismissed the application, finding the applicant's conduct, the gravity of the breach, and the disparity between the forfeited property value and damages did not warrant relief from forfeiture.

Furthermore, the retention of the deposit and occupancy fees was not found to be unconscionable, considering the commercial context and the applicant's sophistication.

The applicant, a commercial tenant, sought the return of possession and quiet enjoyment of leased premises after being wrongfully locked out by the respondent landlord.

The landlord claimed the lease terminated based on a purported amending agreement, which the court found invalid due to lack of authenticity and consideration.

The court granted the applicant equitable relief from forfeiture, declared the original lease valid until February 28, 2022, and ordered the landlord to take all lawful steps to deliver vacant possession, despite a new tenant being in possession.

A trial was ordered to determine damages for the wrongful termination and dispossession.

The tenant, 6791971 Canada Inc., applied for a court order determining that the landlord, Eli Messica, unreasonably withheld consent to assign a commercial lease to Moksha Enterprise Ltd. The landlord initially expressed satisfaction with the proposed assignee but later rescinded consent, citing concerns that the assignee might seek to renegotiate rent and that the tenant was in default of lease renewal agreement improvements.

The court found that the landlord's primary stated reason for refusal (assignee seeking rent renegotiation) dissipated after the assignee confirmed its intent to abide by the lease terms.

The court also determined that the landlord's subsequent reliance on the tenant's alleged defaults was an after-the-fact justification and not the genuine reason for refusal at the time.

The application was granted, concluding that the landlord's refusal was unreasonable.

The defendant, John Harold White, brought a motion for leave to issue a writ of possession or, alternatively, an interim order for the preservation and custody of a property.

White was the registered owner, but the plaintiff, Yvan Gauthier, was in possession following an oral agreement to purchase the property, having paid $40,000.

A dispute arose regarding the total purchase price, with Gauthier claiming it was $40,000 (already paid) and White claiming it was $80,000.

The court dismissed both requests.

It held that a writ of possession requires an underlying order for possession, which was absent, and that an interlocutory order for possession was not warranted given the serious issue to be tried, the irreparable harm Gauthier would suffer if forced to vacate, and the balance of convenience favouring Gauthier.

The request for a preservation order was also denied, as it was sought to obtain possession for White's personal use, not for the actual preservation of the property.

The respondent, as assignee of a debt owed for legal services provided in real property litigation, registered a mortgage on the property to secure the debt.

The appellants, claiming beneficial ownership interests in the property, appealed the motion judge's decision, arguing that no valid debt existed and that the respondent was not entitled to the secured funds based on unjust enrichment and misrepresentation on title.

The Court of Appeal upheld the motion judge's finding that a debt was owed, noting the respondent's husband's testimony and the property owner's consent to the mortgage registration.

The court held that the respondent, as a bona fide purchaser for value with a registered interest, had priority over any unregistered beneficial interests of the appellants, and that there was no unjust enrichment as the assignment of the debt provided a juristic reason for the benefit received.

The plaintiff commercial tenant sought a mandatory interlocutory injunction to regain possession of commercial premises and recover seized equipment after being evicted by the defendant landlord.

The court dismissed the motion, finding that the plaintiff failed to provide a meaningful undertaking as to damages, did not demonstrate a serious issue to be tried as the landlord had lawfully terminated the tenancy for non-payment of rent and non-compliance with insurance requirements, and did not establish irreparable harm.

The balance of convenience favored the landlord.

The appellants agreed to purchase the respondents' property but failed to complete the purchase after the market declined and they were unable to sell their own home.

The respondents sued for damages and were awarded summary judgment for $135,841.24 and $8,000 in costs.

The appellants appealed on three grounds: denial of procedural fairness, misinterpretation of the purchase agreement, and improper mitigation of damages.

The Court of Appeal dismissed all three arguments and upheld the lower court judgment, fixing costs at $7,500 inclusive of HST and disbursements.

The Plaintiffs brought a summary judgment motion seeking damages and costs arising from the Defendants' failure to close an agreement of purchase and sale for a property.

The Defendants argued the Plaintiffs breached the contract and sought their own damages, but had not filed a counterclaim.

The court found the Defendants were in breach of contract due to their unwillingness to close the transaction, primarily due to an outstanding writ of execution.

The Plaintiffs were awarded specific damages for the deposit, property taxes, and moving expenses to rental accommodation.

The court also awarded litigation costs, but significantly reduced the amount claimed by the Plaintiffs, emphasizing proportionality and the Plaintiffs' failure to respond to a settlement offer.

A portion of damages for additional living expenses was deferred for further assessment.

The Court of Appeal reversed the trial judge's finding that the purchaser (241 Ontario) had actual notice of a defect in the power of sale process.

The trial judge had conflated actual knowledge with constructive knowledge, finding that receipt of information suggesting the need for inquiry constituted actual notice.

The appellate court clarified that actual notice requires actual knowledge of the defect itself, not merely knowledge of facts that might prompt inquiry.

The court held that 241 Ontario was a bona fide purchaser for value without notice and could rely on the protections of the Land Titles Act.

The court also found that sections 35 and 36 of the Mortgages Act do not limit the right to rely on registration under the Land Titles Act, and that these provisions provide complementary methods of protecting bona fide purchasers.

The post-sale mortgagees' interests were upheld, and Ginkgo's mortgage was found to be valid.

The Applicant, FIP Munroe Inc., assigned its rights and obligations under an Agreement of Purchase and Sale (APS) to the Respondent, CC Capital Inc. A few days before closing, the Vendor claimed $100,000.00, which the Respondent subsequently withheld from the Assignment price payable to the Applicant.

The application sought a determination on whether the Respondent was entitled to deduct this $100,000.00 allowance.

The court, applying principles of contractual interpretation, found that the allowance was not an "adjustment" as defined in the APS and that the Assignment Agreement did not provide for such an adjustment based on Lease obligations.

The court concluded that withholding the amount would result in a windfall for the Respondent, as the allowance was an advance to be repaid by the Tenant through increased rent.

The application was granted, ruling that the Respondent was not entitled to withhold the $100,000.00.