Real Estate Law

Following a summary judgment in favour of the plaintiff developer regarding a defaulted agreement of purchase and sale, the plaintiff sought costs.

The court noted the defendants pursued a defence and counterclaim identical to one recently dismissed by the Court of Appeal in a related case.

Despite this, the plaintiff only sought partial indemnity costs.

The court awarded the plaintiff costs fixed at $49,500 inclusive of fees, disbursements, and HST.

In additional reasons following a summary judgment motion regarding a commercial lease dispute, the court determined the quantum of damages owed to the plaintiff landlord.

The court denied the plaintiff's motion to amend its pleadings to claim a higher pre-judgment interest rate, finding it would cause non-compensable prejudice as the request came after the summary judgment decision.

The court also reduced the plaintiff's claim for future rent after discovering the plaintiff had failed to disclose that the property was sold and demolished, terminating the rent obligation on the date a letter of intent for the sale was signed.

The plaintiff was awarded $199,136.01 in total damages for future rent and additional rent.

The plaintiffs brought an urgent motion for leave to issue a certificate of pending litigation (CPL) regarding a condominium unit they had agreed to purchase from the defendants.

The plaintiffs failed to close on the scheduled closing date due to delays in obtaining title insurance and financing caused by a zoning restriction on the property.

The defendants refused to extend the closing date and treated the agreement as at an end.

The court dismissed the motion, finding no triable issue for specific performance because the plaintiffs had waived the relevant conditions and the defendants were entitled to rely on the 'time is of the essence' clause.

The court also found that the equities did not favour granting a CPL.

The applicant mortgagor paid the principal and all interest payable under a commercial mortgage two weeks before the maturity date.

The respondent mortgagee demanded a prepayment charge of one month's interest, which the mortgagor paid under protest to obtain a discharge.

The mortgagor applied for a declaration that the charge was improper and for repayment.

The mortgagee cross-applied, arguing it was entitled to three months' interest and that the parties had reached a settlement.

The court found no settlement was reached and held that the prepayment clause was not triggered because the mortgagor paid all interest due up to the maturity date.

The court ordered the mortgagee to repay the improperly charged fees.

The plaintiff brought a motion to compel answers to questions refused during the cross-examination of the defendant and his father on affidavits filed in support of the defendant's pending motion to discharge a certificate of pending litigation.

The court ordered the defendant to produce his current driver's license as it was relevant to an issue of residence raised by the defendant.

However, the court upheld the refusals regarding the defendant's banking and tax records, finding them irrelevant to the discharge motion and overbroad.

The court also upheld a refusal regarding the defendant's reasons for previously acting in person.

The defendant was awarded partial indemnity costs of $8,500.

The Trustee in Bankruptcy brought a motion for the partition and sale of a property in which the bankrupt allegedly held a 20% interest as a tenant in common with his mother.

The bankrupt and his mother claimed the 20% interest was a gift intended to pass only upon her death and was not an asset of the estate.

The court rejected this argument, finding the bankrupt held a 20% interest that vested in the Trustee.

Finding no malice or oppression by the Trustee, the court ordered the sale of the property, stayed for three months to allow the parties to resolve the matter.

The defendants appealed a master's decision dismissing their motion to discharge a certificate of pending litigation (CPL) obtained ex parte by the plaintiff purchaser.

The defendants argued the plaintiff failed to disclose a 'no registration' clause in the agreement of purchase and sale and that the master misapplied the test for a CPL.

The Superior Court dismissed the appeal, finding no error of law regarding material non-disclosure, as the clause did not unambiguously prohibit a CPL after the vendor terminated the agreement.

The court also found no palpable and overriding error in the master's assessment of the property's uniqueness and the balance of convenience.

The plaintiffs purchased a cottage and later discovered significant structural issues and Building Code violations during renovations.

They sued the Township for negligent building inspections and failure to enforce the Building Code Act.

The court found that the Township owed a duty of care to the plaintiffs and breached that duty by granting a building permit without proper plans and failing to identify structural deficiencies during inspections.

The Township was held liable for the costs to remedy the Code violations and for the plaintiffs' mental distress, resulting in a total damages award of $361,875.33.

The defendant vendor brought a motion to discharge a certificate of pending litigation (CPL) obtained ex parte by the plaintiff purchaser after a failed $55 million commercial real estate transaction.

The court found that the plaintiff made a false statement in its affidavit regarding a contractual obligation to resell the property, constituting material non-disclosure.

Applying the Dhunna factors, the court also determined that the property was purchased for investment purposes, damages could be readily calculated, and the CPL prejudiced the vendor's ability to refinance or sell.

The CPL was discharged.

The plaintiff's cross-motions for consolidation and document production were dismissed, though the actions were ordered to be heard together.

The applicant condominium corporations brought an application to regulate requisitioned owners' meetings called to vote on the removal of the current boards of directors.

The applicants sought to prohibit the use of proxies and limit communications among owners, alleging the respondent circulated misleading information regarding a special assessment.

The court dismissed the requests to prohibit proxies and limit communications, finding such orders inconsistent with the democratic governance model under the Condominium Act, 1998.

The court ordered the meetings to proceed with an independent chair and awarded partial indemnity costs to the respondent.

The defendant brought a motion for summary judgment to dismiss the plaintiff's claim.

The plaintiff alleged that she and her late husband gave the proceeds from the sale of two properties to the defendants in trust, and that these funds were used to purchase a condominium to be held in trust for the plaintiff.

The defendant argued the funds were legitimate payouts for discharged mortgages.

The court found no genuine issue requiring a trial, concluding the documentary evidence supported the defendant's position that the funds were mortgage payouts, not trust funds.

The court rejected the plaintiff's assertion that the mortgages were shams designed to avoid creditors.

The motion for summary judgment was granted and the action dismissed.

Two unpaid construction lien claimants sought priority over a first mortgagee holding a $6.5 million vendor take-back (VTB) mortgage on a contaminated commercial property.

The court had to determine the actual value of the property on the date the first lien arose and whether the VTB constituted an 'advance' under section 78(3) of the Construction Lien Act.

The court found that the actual value of the property was at least $6.5 million, relying on arm's length offers rather than the lien claimants' expert opinion, and held that a VTB mortgage is an advance equivalent to an institutional mortgage.

Consequently, the mortgagee's interest took priority over the lien claimants.

Following a successful summary judgment motion by the plaintiff, the parties submitted written costs submissions.

The defendants argued that each party should bear its own costs because the plaintiff's success did not exceed a settlement offer.

The court rejected this argument, noting the outcome was substantially in the plaintiff's favour and the relief was only modified to minimize prejudice to the defendants.

The court awarded the plaintiff costs of $12,000 plus HST on a substantial indemnity basis due to delays caused by the defendants.

The plaintiffs brought a motion for summary judgment seeking a declaration that Trussler Road, located in an unorganized township, is a public road under the Municipal Act, thereby allowing them access to their rural property.

The court found that while the Municipal Act definition of a public highway applies to unorganized townships, the evidence did not establish that Trussler Road was a colonization road, that statute labour was usually performed on it, or that it had been dedicated and accepted for public use.

The court dismissed the plaintiffs' motion for summary judgment and, finding no genuine issue requiring a trial, dismissed the plaintiffs' action in its entirety.

The applicant tenant sought an order permitting the assignment of a commercial sublease, arguing the respondent landlord unreasonably withheld consent by demanding a security deposit.

The landlord required the deposit because the assignment would release the current subtenant, who acted as an indemnifier.

The court dismissed the application, finding the landlord's request for a three-month rent security deposit was objectively reasonable to protect its business interests and mitigate risks associated with the loss of the indemnifier.

The plaintiffs were entirely successful at trial in an action regarding the ownership of a valuable piece of real estate.

They sought costs on a partial indemnity basis in the amount of $46,895.40, plus an additional $1,500 for attendances to settle the judgment.

The defendant argued that no costs should be awarded because the litigation was caused by the plaintiffs' failure to document their intentions clearly, or alternatively, that the costs sought were excessive.

The court rejected the defendant's argument for no costs and awarded the plaintiffs $37,500, finding this amount fair and reasonable given the scope of the engagement, the length of the trial, and the complexity of the issues.

The plaintiff purchased an industrial property that was later discovered to be contaminated with PCBs.

The plaintiff sued the vendor and related companies for fraud, alleging they concealed the contamination.

After several years of litigation, the plaintiff moved to discontinue its fraud action and counterclaim.

The defendants opposed, seeking dismissal and costs on a full indemnity scale.

The court granted the plaintiff leave to discontinue the action on terms that prevent future litigation on the same causes of action.

The court also ordered the plaintiff to pay the defendants' costs fixed at $516,395.23 on a substantial indemnity scale, finding that the fraud allegations were unsubstantiated but not intentionally misleading.

The defendants brought a motion for leave to discontinue their counterclaim and a related fraud action, and to redeem a mortgage.

The plaintiff brought a cross-motion for leave to discontinue its claim for foreclosure.

The court granted the defendants leave to redeem the mortgage upon payment of the principal, interest, and costs totaling over $1.2 million, and granted leave to discontinue their actions upon payment of costs of $516,395.23.

The plaintiff's cross-motion to discontinue the foreclosure claim was dismissed.