Real Estate Law

The plaintiff property owner sought declarations that her building was originally constructed as two semi-detached units or, alternatively, that she was entitled to four residential units based on a legal non-conforming use.

The municipality had placed a stop-work order on her renovations.

Relying on expert architectural and engineering evidence, the court found the building was originally constructed in 1906 as a single-family dwelling with internal access between areas.

The court also found no evidence that the building ever contained four residential units prior to the 1977 zoning by-laws.

The requested declarations were dismissed.

The plaintiffs, limited partners in three real estate development limited partnerships, sought declarations validating their special resolutions to remove and replace the original general partners.

The dispute arose after the original general partners issued capital calls to pay management fees to an affiliated company, which the plaintiffs argued were unauthorized.

The court found the capital calls were invalid as the management agreements were not approved by special resolution and the general partners failed to seek external financing first.

The court upheld the plaintiffs' special resolutions removing the original general partners due to multiple unremedied defaults, including failure to provide access to financial records, co-mingling of funds, and unauthorized related-party transactions.

The defendants' counterclaims were dismissed.

The plaintiff mortgagee moved for default judgment against the defendant mortgagor for the balance due under a mortgage, including renewal and administrative fees.

The defendant had been noted in default after failing to deliver a statement of defence.

The registrar had previously declined to sign default judgment because of the inclusion of renewal and administrative fees.

The court found that the fees were referenced in the mortgage terms and allowed them, granting default judgment for possession, the mortgage balance, and costs.

The applicants sought a declaration that a residential property transferred by their late mother/grandmother to three of her children was held in trust for the benefit of other family members.

The respondents claimed the transfer was a gift.

The court found that the applicants' claim for an oral inter vivos trust failed because it violated the writing requirements of the Statute of Frauds.

However, the court held that the respondents failed to rebut the presumption of resulting trust arising from the gratuitous transfer.

Consequently, the property was declared to be held in resulting trust for the deceased's estate.

Claims for partition and sale and for passing of accounts were dismissed.

The defendant brought a motion to set aside a noting in default after failing to file a statement of defence in time.

The plaintiff opposed the motion, arguing the defendant had not explained the delay or shown extraordinary circumstances.

The court applied the factors from Franchetti v. Huggins and found that the delay was short, the defendant had been seeking counsel, and the preference is for cases to be decided on their merits.

The motion to set aside the noting in default was granted.

The plaintiff brought an urgent, ex parte motion for leave to issue a certificate of pending litigation against a property solely owned by the spouse of the alleged fraudster.

The plaintiff claimed she was defrauded of $425,000 in a diamond investment scheme and sought to secure the property for enforcement purposes.

The court dismissed the motion, finding no triable issue regarding an interest in land, as the plaintiff was not a creditor of the property owner and a CPL cannot be used merely as pre-judgment execution for a damages claim.

The plaintiff lender brought a motion for summary judgment seeking over $1.3 million in liquidated damages for the defendants' alleged breach of a commercial mortgage commitment letter.

The defendants failed to close the loan after being unable to acquire one of the properties intended as security.

The court dismissed the motion for summary judgment, finding genuine issues requiring a trial.

Specifically, the court found insufficient evidence to determine whether the plaintiff was actually ready, willing, and able to fund the loan on the closing date, and whether the substantial commitment fees and accelerated interest claimed constituted an unenforceable penalty under section 8 of the Interest Act.

Following a successful motion for a compliance order against a unit owner and his tenant son, the applicant condominium corporation sought costs on a full indemnity scale.

The court found the applicant was presumptively entitled to costs and that the condominium's governing documents and the Condominium Act supported a full indemnity award to prevent other owners from subsidizing the enforcement.

The court reviewed the fees and disbursements, made minor reductions for duplication and unrelated work, and fixed costs at $15,916.49, to be added to the common expenses for the subject unit.

The applicant brought a motion to compel arbitration of a dispute arising from a real estate development project governed by a Co-Ownership Agreement.

The parties agreed the dispute should be arbitrated but disagreed on whether the corporate mortgagees and individual guarantors were bound by the arbitration clause.

The court applied the competence-competence principle, holding that the arbitrator must determine their own jurisdiction and decide which parties are subject to the arbitration, as the issue involved mixed fact and law requiring contractual interpretation.

The plaintiff mortgagee brought a motion for summary judgment seeking over $400,000 and possession of the defendant's property following a mortgage default.

The defendant disputed the quantum owed, arguing the plaintiff failed to provide payout statements and that the interest calculations were incorrect.

The court dismissed the motion, finding that the exact amount owed and the credibility of the parties constituted a genuine issue requiring a trial.

The court also declined to rule on the defendant's oral request to set aside deemed admissions from an unanswered Request to Admit, directing that a formal motion be brought.

The defendant lawyer moved for summary judgment to dismiss the plaintiff's claims of professional negligence and breach of trust arising from an unregistered mortgage.

The plaintiff alleged that it delivered a bank draft to the defendant in trust and that the defendant undertook to register a second mortgage on its behalf.

The defendant denied being retained by the plaintiff or making such an undertaking.

The court dismissed the motion, finding that there were genuine issues requiring a trial due to conflicting evidence, credibility issues, and the risk of inconsistent findings with two other related actions.

The applicant corporation sought an order to sell the self-represented respondent's co-ownership interest in a residential building due to unpaid damage awards and costs orders totaling over $85,000.

The respondent provided a letter from his treating physician indicating serious psychiatric conditions affecting his ability to function and advocate for himself.

The court adjourned the application and ordered a capacity assessment, finding significant concerns that the respondent is a party under disability requiring a litigation guardian.

The plaintiff seller brought a motion for default judgment against the defendant purchaser after the defendant failed to close a real estate transaction.

The defendant was noted in default, and the court found that the deemed admissions established liability for breach of the agreement of purchase and sale.

The court awarded the plaintiff $182,852.33 in damages, representing the loss of bargain (the difference between the original purchase price and the resale price, less the deposit), carrying costs, and the commission paid to resell the property.

Costs and prejudgment interest were also awarded.

The plaintiffs brought a motion for summary judgment in a simplified procedure action for damages arising from the defendants' failure to close on a residential real estate transaction.

The plaintiffs alleged the failure to close was due to a lack of financing, while the defendants claimed it was due to deficiencies identified during the pre-delivery inspection.

The court dismissed the motion, finding that the conflicting evidence on the reason for the breach of contract, combined with the prohibition on cross-examinations under Rule 76, created a genuine issue requiring a trial.

The plaintiff brought a motion to validate de facto service of its statement of claim by email.

The defendant had confirmed receipt and reading of the statement of claim via a responding email, but her physical location was unknown due to an apparent breach of a covenant to remain in occupation of the mortgaged property.

The court granted the motion, deeming service effective as of the date of the defendant's responding email.

The applicant condominium corporation brought an unopposed application for a compliance order against a unit owner whose unit contained excessive combustible materials and unauthorized renovations, resulting in a fire inspection order.

The court found the respondent in breach of section 117 of the Condominium Act for permitting a dangerous condition to exist.

The court granted the corporation temporary vacant possession to remediate the unit and awarded full indemnity costs to be added to the unit's common expenses.

The applicants purchased a property and sought to enforce a prior court order granting them use of a private road over the respondents' property.

The respondents brought a counterapplication seeking a declaration that the road was not an 'access road' under the Road Access Act and an order closing it to the applicants due to an alleged alternate route.

The court held that the respondents were estopped from arguing the road was not an access road due to their concession in the prior proceeding.

The court also found that the respondents failed to prove a change in circumstances, as the alternate route was not a reliable year-round access.

The applicants were permitted to continue using the road subject to the conditions of the prior order.

The applicant tenant, operating a supermarket, sought a declaration and permanent injunction to prevent the respondent landlord from constructing a new LCBO building on the shopping center's parking lot.

The applicant argued the construction would eliminate parking spots and alter access, breaching its proprietary rights under a 1971 lease as amended.

The court found the lease granted the applicant a proprietary interest in the parking area and minimum parking spots.

The court rejected the landlord's arguments based on estoppel and delay.

Concluding that damages would be an inadequate remedy for the prospective breach of a proprietary right, the court granted the declaration and a permanent injunction prohibiting the construction.