Real Estate Law

The appellant landlord appealed a Small Claims Court decision regarding rent arrears under a commercial lease.

The Divisional Court allowed the appeal in part, finding the trial judge made palpable and overriding errors by failing to recognize personal indemnity clauses in the lease, improperly crediting the tenant for rent deposits despite the lease continuing with a new landlord, and mischaracterizing a claim for damages (interest on borrowed funds) as prejudgment interest.

The court increased the judgment to $13,791 and held the personal respondents jointly liable as indemnifiers.

The plaintiff sought leave to appeal an order that dismissed her appeal from a Master's order denying leave to issue a certificate of pending litigation.

The Divisional Court found that there were no conflicting decisions and no good reason to doubt the correctness of the motion judge's order, which involved the exercise of judicial discretion.

Furthermore, the issues raised were specific to the facts of the case and not of general importance.

The motion for leave to appeal was dismissed with costs.

The applicants sought leave to appeal a decision of the Ontario Municipal Board, which had dismissed their appeal from a city council decision denying their proposed 91-lot residential development in a coastal wetland area.

The applicants alleged numerous errors of law, including the Board's application of the 2014 Provincial Policy Statement instead of the 2005 version, its interpretation of 'negative impacts' and 'limited residential development', and procedural fairness issues regarding the admission of expert evidence.

The Divisional Court dismissed the application for leave to appeal, finding that the Board correctly applied the 2014 PPS, reasonably interpreted the planning policies, and that any procedural errors regarding expert evidence did not meet the test for granting leave.

The registered owners of a property fraudulently discharged a first mortgage held by Computershare and subsequently granted new mortgages to CIBC and Secure Capital.

The application judge found the CIBC mortgage was a 'fraudulent instrument' under the Land Titles Act and restored Computershare's priority.

The Divisional Court allowed CIBC's appeal, holding that because the owners were the registered owners of the fee simple when they granted the CIBC mortgage, they did not falsely hold themselves out as owners in the instrument.

Therefore, the CIBC mortgage was not a fraudulent instrument and was entitled to priority under the deferred indefeasibility scheme of the Land Titles Act.

The appellant appealed a Small Claims Court decision dismissing his $25,000 claim for damages arising from a condominium water leak.

At trial, the appellant attempted to introduce a new expert report on mould on the final day of trial, which the trial judge refused to admit due to late notice and unfairness to the respondents.

The Divisional Court dismissed the appeal, finding that the trial judge's discretionary decision to exclude the late evidence under Rule 18.02(1) was not clearly wrong and did not amount to an injustice.

Furthermore, the trial judge correctly found that the appellant had sued the wrong parties.

The moving parties sought an extension of time to file a notice of appeal from a judgment ordering the removal of construction completed without building permits.

The court found that while the moving parties met the first three parts of the test for an extension, the proposed appeal lacked merit.

The application judge had jurisdiction to hear the application, and the new grounds of appeal were not raised before the application judge.

The motion to extend time was dismissed with costs awarded to the respondent.

The appellants appealed an order dismissing their appeal of a Chief Building Official's order to demolish a house and shed located on a high-risk slope.

The appellants argued the judge below was biased and sought to introduce new oral expert evidence.

The Divisional Court denied the request to call oral evidence, finding it did not meet the test for fresh evidence and that the appeal was not a hearing de novo.

The court dismissed the appeal, concluding there was no evidence of bias and the appellants failed to raise any question of law or mixed fact and law as required by section 26(3) of the Building Code Act.

The Town of Richmond Hill appealed an Ontario Municipal Board (OMB) decision that approved the Town's official plan policies regarding parkland dedication but imposed a 25% cap on the alternative requirement under s. 42 of the Planning Act.

The Divisional Court allowed the appeal, finding that the OMB's interpretation of the Planning Act was unreasonable.

The Court held that the legislation expressly grants municipalities the authority to set the alternative parkland dedication rate by by-law, and the OMB does not have the jurisdiction to impose a cap or fix a specific rate through its power to approve official plan policies.

The appellant and respondent jointly purchased a property and executed a Trust Agreement.

The appellant later moved out and stopped paying carrying costs.

The application judge dismissed the appellant's application for partition and sale, relying on equitable doctrines of laches, acquiescence, and waiver, and awarded him only his initial down payment.

On appeal, the Divisional Court held that equitable defences cannot defeat a legal claim based on a registered Trust Agreement.

The court set aside the lower court's decision, ordered the property to be sold, and directed an accounting before a Master to determine appropriate adjustments for contributions and benefits.

The appellants appealed a decision regarding the calculation of a lender's administrative fee payable to the respondent under a loan agreement.

They argued the application judge erred by not considering the mortgage itself to determine the fee amount.

The Divisional Court dismissed the appeal, finding that while the mortgage provided for the fee, the mortgage commitment letter correctly governed its quantum.

The application judge's reasoning was adopted, and the appeal was dismissed with costs awarded to the respondent on a substantial indemnity basis.

The appellant appealed a decision of the Deputy Director of Titles under the Boundaries Act regarding the eastern boundary of her property.

The Deputy Director found that the boundary was the western shore of Three Mile Lake, rejecting the appellant's claim that her property included land on the eastern shore.

The Divisional Court applied a reasonableness standard of review and found that the Deputy Director's reliance on the original plan and patent, rather than other extrinsic evidence, was reasonable.

The appeal was dismissed with costs awarded to the respondent.

The appellants appealed a decision of the Surveyor General of Ontario confirming the location of a road allowance under the Surveys Act.

The dispute arose because the confirmed location placed the road allowance on the portion of the appellants' property bordering water, thereby removing their riparian status.

The Divisional Court dismissed the appeal, finding that the Surveyor General had jurisdiction, the fact-finding hearing process was procedurally fair, and her substantive conclusions regarding historical survey evidence and natural boundaries were reasonable and entitled to deference.

The appellant lawyer appealed a decision of the Law Society Appeal Panel, which had set aside a Hearing Panel's dismissal of professional misconduct complaints related to mortgage transactions.

The Appeal Panel found the Hearing Panel erred in law by incorrectly defining fraud and by concluding a lawyer need not disclose material facts if they reasonably believe the lender already knows them.

The Divisional Court dismissed the appeal, agreeing that a lawyer has a strict duty to disclose all material facts to a lender client, and that the Appeal Panel reasonably concluded the Hearing Panel's legal errors rendered its factual findings unsafe.

The appellants, condominium unit owners, appealed the dismissal of their Small Claims Court action against the respondent condominium corporation.

The action challenged a special assessment levied to pay legal fees from an unsuccessful parking dispute.

The deputy judge dismissed the action as statute-barred under the Limitations Act, 2002, finding the appellants discovered their claim more than two years before commencing the action.

The Divisional Court upheld the dismissal, confirming the cause of action accrued when the board's decision was ratified and the special assessment took immediate legal effect, not when the first installment was due.

The defendants moved for leave to appeal an order refusing to dismiss the plaintiffs' action for failing to disclose a reasonable cause of action.

The plaintiffs (two sisters) sued the defendant (a third sister) and others regarding the transfer of a family farm.

The defendants argued the plaintiffs had no legal interest in the property as mere beneficiaries under their living mother's will.

The court noted the plaintiffs each received $250,000 from the defendant sister for their interests in the farm, suggesting they did have an interest or were improperly denied one.

The court found no reason to doubt the correctness of the motion judge's decision and dismissed the motion for leave to appeal.

The applicant sought judicial review of the respondent municipality's requirement to obtain residential rental licences for its buildings.

The applicant argued its buildings were exempt as 'Apartment Buildings' under the by-law and objected to a statutory declaration requiring confirmation of compliance with provincial statutes, arguing they did not apply retroactively.

The Divisional Court dismissed the application, finding the buildings did not meet the conjunctive definition of an apartment building, and that the statutory declaration only required compliance with provincial laws to the extent they actually applied to the grandfathered buildings.

The moving parties sought leave to appeal a motion judge's decision granting certificates of pending litigation against their properties.

The respondent, who held an unpaid judgment of over $5 million, alleged the properties were fraudulently conveyed to avoid creditors.

The Divisional Court dismissed the motion for leave to appeal, finding that the motion judge applied the correct legal test for granting a certificate of pending litigation in a fraudulent conveyance action and made no error in weighing the equities.

The appellants appealed a Small Claims Court decision ordering the return of a $16,000 deposit to the respondent purchaser in an aborted condominium real estate transaction.

The purchaser had refused to close after reviewing the status certificate, which revealed a special assessment and higher common expenses than warranted in the agreement of purchase and sale.

The Divisional Court dismissed the appeal, finding that the purchaser was legally justified in refusing to close due to the non-satisfaction of a condition precedent regarding the status certificate, as well as the vendor's misrepresentation regarding the absence of special assessments.

The appellants purchased a home from the respondents in 2004 and subsequently discovered numerous defects, including issues with the heating system, balcony, and flooring.

They commenced Small Claims Court actions against the vendors, the real estate agent, and the home inspector.

The Deputy Judge dismissed the claims on summary judgment, finding they were statute-barred under the Limitations Act, 2002.

On appeal, the Divisional Court upheld the dismissal, finding no palpable and overriding error in the Deputy Judge's factual conclusions regarding when the appellants ought to have discovered the defects.

The defendants appealed a Small Claims Court judgment awarding the plaintiff $6,855.68 for water damage to her condominium's hardwood floor caused by a leak from the defendants' unit above.

The appellants argued the trial judge erred in interpreting condominium renovation rules and by relying on previously undisclosed evidence to order a full floor replacement.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's factual conclusions and noting that the Small Claims Court has broad discretion to admit relevant evidence under section 27 of the Courts of Justice Act.