Real Estate Law

The appellant appealed a final order directing the partition and sale of a jointly owned property under the Partition Act.

The appellant argued the motion judge erred by ordering the sale despite a triable issue regarding a trust claim and by failing to find the respondent's conduct was malicious, vexatious, or oppressive.

The Divisional Court dismissed the appeal, noting the appellant conceded the conduct issue during oral argument.

The court found no error in the motion judge's application of the relevant legal principles, as the appellant failed to establish prejudice arising from the sale.

The applicant condominium corporation sought judicial review of a Condominium Authority Tribunal (CAT) decision regarding an accessible parking dispute.

The Divisional Court dismissed the application, finding that the applicant failed to exhaust its statutory right of appeal under the Condominium Act.

The court held that absent exceptional circumstances, judicial review is not available where an adequate alternative remedy, such as a statutory appeal on questions of law, exists.

The appellants (mortgagees) appealed a motions judge's decision that granted priority to construction lien claimants over the arrears in interest and enforcement costs of a prior registered vendor take-back (VTB) mortgage.

The Divisional Court allowed the appeal, holding that under s. 78(3) of the Construction Lien Act, a prior registered mortgage that goes into default retains priority over subsequent liens for the entire amount secured, including arrears of interest and reasonable enforcement expenses.

The Master's report confirming the mortgagees' priority to the funds paid into court was restored.

The appellant appealed an application judge's order requiring it to vacate a gas bar premises.

The application judge had found a month-to-month commercial tenancy existed and ordered vacant possession.

On appeal, the Divisional Court found the application judge erred by resolving disputed material facts regarding whether the appellant had an ownership interest in the property rather than a tenancy.

The appeal was allowed and the application was converted to an action to proceed to trial.

The moving parties sought leave to appeal a decision of the Local Planning Appeal Tribunal.

The Divisional Court dismissed the motions for leave to appeal, finding that the proposed appeals did not meet the three-part test for granting leave.

In accordance with standard practice, no reasons were provided.

The parties reached an agreement on costs.

The applicant, a commercial tenant, sought judicial review of the respondent City's actions during the expropriation of restrictive covenants in its lease.

The applicant alleged a denial of procedural fairness regarding the timing of disclosure and the City's refusal to consent to an adjournment of the Hearing of Necessity.

The Divisional Court dismissed the application, finding that the City met its statutory obligations and owed no broader common law duty of procedural fairness at that stage.

The Court also declined to rule on the validity of the expropriation, finding the application premature as the applicant had withdrawn from the statutory hearing process and no final expropriation decision had been made.

The plaintiffs brought a motion for an extension of time to appeal a Master's decision that stayed their action in favour of arbitration.

The underlying dispute involved an agreement of purchase and sale for a pre-construction home containing a mandatory arbitration clause.

The Divisional Court dismissed the motion, finding the proposed appeal had no merit because section 7(6) of the Arbitration Act precludes appeals from decisions granting a stay.

The court also found no errors of law or palpable and overriding errors of fact in the Master's decision.

The vendors appealed a Small Claims Court judgment awarding the purchaser $17,488.27 for breach of warranty in a residential real estate transaction.

The trial judge found the vendors failed to disclose an HVAC rental lien and removed fixtures prior to closing.

The Divisional Court applied the palpable and overriding error standard of review and found no basis to interfere with the trial judge's findings of fact.

The appeal was dismissed with costs.

The applicant sought a stay of an Ontario Municipal Board (OMB) hearing regarding minor variances granted to her neighbour, pending the determination of her application for judicial review.

The court applied the RJR-MacDonald test and found that while there was a serious issue to be tried, the applicant would not suffer irreparable harm because the OMB hearing is a hearing de novo where the onus remains on the respondent.

The balance of convenience favoured proceeding with the OMB hearing.

The application for a stay was dismissed.

The applicants sought judicial review of the Town of Aurora's decision to refuse their request to erect a fence on their properties, which were subject to an easement in favour of the Town.

The Divisional Court dismissed the application, finding that the Town's decision was an exercise of its contractual property rights under the easement, not a statutory power of decision.

The court also held that while the Town owed a common law duty of procedural fairness, it had met this duty by providing a fair process and considering relevant submissions from all affected landowners.

The applicant municipality sought leave to appeal a decision of the Ontario Municipal Board that allowed the respondent to convert a 161-unit affordable rental apartment building into a condominium.

The municipality argued the Board erred in its application of the Planning Act and disregarded provincial and municipal policies protecting rental housing.

The Divisional Court granted leave to appeal, finding reason to doubt the reasonableness of the Board's decision for failing to consider the specific city-wide housing policies and condominium conversion policies in the Provincial Policy Statement 2005 and the municipality's Official Plan.

The appellants appealed a decision of the Ontario Municipal Board denying their request to review an earlier decision that allowed a development of three detached houses.

The appellants argued the Board acted outside its jurisdiction by approving access via an existing right of way, which they claimed would create an overburden and interfere with neighbouring property rights.

The Divisional Court dismissed the appeal, holding that the Board had jurisdiction to determine legal issues, such as easements, that were incidental to its administrative function of approving variances and granting consents to sever under the Planning Act.

The appellant appealed a decision of the Deputy Director of Titles under the Boundaries Act confirming the location of a boundary between her property and the respondents' property.

The Deputy Director had rejected the boundary lines proposed by both parties' expert surveyors, instead relying on a 1970 survey and the historical location of a snake rail fence.

The Divisional Court determined the standard of review was reasonableness and found that the Deputy Director's decision was supported by the evidence.

The appeal was dismissed.

The appellants appealed an order requiring them to pay $5,500 for the removal of illegally placed barrels and $4,000 in costs, arguing the applications judge breached natural justice by denying an adjournment.

The Divisional Court found no error in principle or failure to act judicially in the denial of the adjournment, noting no evidence of prejudice to the appellants.

The appeal was dismissed with costs fixed at $3,500.

The appellant appealed a decision of the Licence Appeal Tribunal upholding the revocation of his real estate license.

The appellant was an undischarged bankrupt who had previously pleaded guilty to misappropriating trust funds in connection with his real estate business.

The Divisional Court applied the reasonableness standard of review to the Tribunal's findings of fact and exercise of discretion.

The Court found no palpable and overriding error, concluding that the penalty of revocation was reasonable and necessary to protect the public.

The appeal was dismissed with costs.

The moving party sought leave to appeal a decision of the Ontario Municipal Board.

The Board had ruled it lacked jurisdiction to impose conditions on a private developer's subdivision approval for the benefit of an adjacent private landowner's future development.

The Divisional Court dismissed the application for leave, finding no reason to doubt the correctness of the Board's decision on jurisdiction and rejecting the argument that procedural defects could bestow jurisdiction.

Beechridge Farms Inc. sought leave to appeal a decision of an Ontario Municipal Board Review Panel that ordered a new hearing.

The Review Panel had found that the original hearing member breached procedural fairness by refusing to grant the respondents a short adjournment to consider the implications of the newly enacted Places to Grow Act and its Growth Plan.

The Divisional Court dismissed the application for leave to appeal, finding no reason to doubt the correctness of the Review Panel's conclusion that the refusal of the adjournment was unreasonable and a denial of natural justice.

In an addendum to a majority judgment, the Divisional Court clarified that the applicants were entitled to interest on damages payable out of the guarantee fund under the Ontario New Home Warranties Plan Act.

The court held that pursuant to the regulations, interest is payable at the Condominium Act rate and may increase the total payment beyond the standard $20,000 maximum limit.

Interest was ordered payable from the date the Warranty Program initially denied the claims.

The purchaser of a new home claimed compensation from the Ontario New Home Warranty Program, alleging she should have received legal title to a side yard rather than an easement.

The Program denied the claim, but the Commercial Registration Appeal Tribunal ordered compensation under s. 14(1)(a) of the Ontario New Home Warranties Plan Act.

The Program appealed.

The Divisional Court allowed the appeal, holding that s. 14(1)(a) protects purchasers from financial loss when a vendor fails to complete a contract, and does not apply to alleged title deficiencies after a transaction has closed.

The appellant vendor appealed a trial judge's decision permitting the respondent purchasers to terminate an Agreement of Purchase and Sale for a condominium unit.

The vendor had delayed the occupancy date beyond 120 days due to a strike.

The purchasers terminated the agreement pursuant to Schedule G, which the vendor had mistakenly included in the contract.

The Divisional Court dismissed the appeal, upholding the trial judge's finding that Schedule G was ambiguous and must be interpreted as applying to the interim occupancy date, thereby giving the purchasers the right to terminate.