Real Estate Law

The plaintiff sought summary judgment on a mortgage shortfall claim against the defendant following the defendant's default on mortgage payments beginning in November 2023.

The defendant owned a four-unit apartment building that was subject to a first mortgage of approximately $1.5 million and a second mortgage of $180,000 held by the plaintiff.

After the defendant failed to make payments, the plaintiff made payments to the first mortgagee, obtained possession, and sold the property under power of sale for $1.935 million.

The sale proceeds, after deducting the first mortgage, expenses, and other costs, resulted in a shortfall of $118,325.92.

The defendant opposed the summary judgment motion, challenging the quantum and raising unsubstantiated allegations of intentional value depression.

The court granted summary judgment in favor of the plaintiff.

The defendants, a lawyer and his law firm, brought an interpleader motion seeking to pay disputed funds held in their trust account into court.

The funds arose from the sale of a property by the plaintiff corporation, 2823373 Ontario Inc., whose director, Diane Salman, was also a plaintiff.

A dispute arose among the corporation's shareholders regarding the release of these funds.

The plaintiffs opposed the interpleader motion, arguing the funds should be released to the corporation.

The court found that Ms. Salman, on behalf of the corporation, had initially instructed the defendants to hold the funds in trust, but later instructed their release.

The court denied the interpleader motion, concluding that the defendants were not neutral stakeholders and had a beneficial interest in the funds due to the lawyer's involvement as a director of the majority shareholder and the source of investment funds.

The court also declined to invoke its inherent jurisdiction to order the funds into court.

Consequently, the defendants were ordered to release the disputed funds to 2823373 Ontario Inc.

The plaintiff, Theodore Jiujias, brought an urgent, ex parte motion for leave to issue a Certificate of Pending Litigation (CPL) against a property owned by defendants Michael Chun Ho Lau and Aaron Storr.

Jiujias, a creditor of Lau, alleged that Lau fraudulently conveyed his interest in the property to his spouse, Storr, and a company controlled by Storr (ASML Holdings Inc.), for nominal consideration, shortly after being served with a statement of claim in a prior mortgage action where Lau was in default of over $1.1 million.

The property was subsequently mortgaged for its market value and listed for sale.

The court applied the three-part Grefford test, finding a high probability of success in the underlying action, sufficient evidence of intent to defeat or delay creditors (noting numerous badges of fraud), and that the balance of convenience favored granting the CPL to prevent dissipation of equity.

The motion was granted.

The plaintiffs brought a motion under Rule 32.01 of the Rules of Civil Procedure seeking an order to permit their consultant to conduct a Phase Two Environmental Site Assessment of a property.

The plaintiffs argued the assessment was necessary to determine if the property was contaminated, which was relevant to their claims of misrepresentation by the defendants regarding the property's environmental status and to the remedies sought (specific performance with abatement or return of deposit).

The defendants opposed, arguing the plaintiffs had waived an environmental condition in the agreement of purchase and sale and that the motion was delayed and an abuse of process.

The court granted the plaintiffs' motion, finding the inspection necessary and probative for the trier of fact, noting no prejudice to the defendants, and deeming the delay not unreasonable.

The court also provided directions for the parties to agree on a timetable for the inspection, mediation, and trial, and on the terms of the inspection.

This case involved two consolidated applications concerning a dispute over the allocation of Harmonized Sales Tax (HST) on the sale of a mixed-use property.

The Vendor (Miculinic Investment Corporation) sought the release of escrow funds withheld by the Purchaser (1000029174 Ontario Inc. and 2303515 Ontario Inc.), who had objected to the Vendor's HST allocation and sought a judicial declaration on the residential portion's value.

The court found that it was not its role to determine the HST amount, as the Canada Revenue Agency (CRA) had already made an assessment.

The court granted the Vendor's application for the release of escrow funds, finding the Purchaser's allocation not unreasonable but upholding the Vendor's right to the funds based on the CRA's assessment and the terms of the Agreement of Purchase and Sale.

The Purchaser's cross-application was dismissed.

The applicant sought partition and sale of a jointly owned home, which she co-owned with the respondent, her former romantic partner.

The respondent, who continued to reside in the home, opposed the sale, arguing that the applicant had relinquished her interest years prior and that a forced sale would cause him significant hardship.

The court affirmed the applicant's prima facie right to partition and sale under the Partition Act, finding no evidence of malicious, vexatious, or oppressive conduct on her part.

The court ordered the partition and sale of the property, allowing the respondent a period of time to secure alternate accommodation and seek legal advice regarding potential claims, with the sale proceeds to be held in trust.

Lynne Foulidis appealed a Superior Court order granting a charging order against her Toronto residence to Jodi L. Feldman Professional Corporation for $664,323.38 in legal fees.

The charging order was granted to secure outstanding legal fees from family litigation.

Lynne argued the property was no longer in existence for the purpose of the charging order due to a prior transfer to George Foulidis, that the lawyer's contribution was not substantial, and that there was no risk of non-payment.

Jodi L. Feldman Professional Corporation cross-appealed on costs.

The Court of Appeal dismissed Lynne's appeal, upholding the charging order, finding that the property was in existence (subject to a triable issue of fraudulent conveyance), the lawyer's contribution was instrumental, and there was a clear refusal to pay fees.

The cross-appeal on costs was also dismissed, but costs of the appeal were awarded to Jodi L. Feldman Professional Corporation.

The defendant brought a motion to discharge a Certificate of Pending Litigation (CPL) that the plaintiff had obtained ex parte on a property.

The CPL was based on a 2010 Rent-to-Own Agreement, which required the plaintiff to make payments beyond rent and arrange financing within three to five years.

The plaintiff failed to comply with these terms and did not pursue the purchase option for many years.

The court found no reasonable claim to an interest in land and no triable issue, noting that any alleged improvements could be addressed by way of damages.

The motion to discharge the CPL was granted, and the court invited costs submissions from the defendant.

The applicant, 384130 Ontario Limited, sought declarations that an 18-year-old agreement for the purchase of a property, which included an environmental remediation clause, was valid and enforceable, and an order for specific performance.

The respondent, 520611 Ontario Limited, argued the agreement was unenforceable due to a true condition precedent not being met, frustration of contract due to escalating remediation costs, and that the applicant's claim was time-barred by the Limitations Act or barred by laches.

The court found that Ministry approval for remediation was not a true condition precedent, as it depended on the respondent's actions.

It also held that increased remediation costs did not frustrate the contract, as the obligation was not radically different.

The court further determined the claim was not time-barred, as the applicant's email was a complaint about delay, not an acknowledgment of repudiation, and the doctrine of laches did not apply due to the respondent's failure to unequivocally repudiate.

The court granted specific performance, finding the property unique due to its suitability for the applicant's auto repair business and the goodwill established over 18 years.

The plaintiff, Katalin Malatinszky, brought a summary judgment motion seeking damages for the defendant, Ahmad Miri's, failure to close a real estate transaction.

The defendant counterclaimed for the return of his $50,000 deposit and damages, alleging the plaintiff repudiated the agreement and failed to mitigate her losses.

The court found that the plaintiff did not breach the Agreement of Purchase and Sale and acted reasonably in mitigating her damages.

Consequently, the court granted summary judgment to the plaintiff for $144,814.70 plus prejudgment interest and dismissed the defendant's counterclaim.

The appellant, principal of a hotel corporation that defaulted on mortgage financing, appealed a motion judge's decision regarding interpretation of a forbearance agreement.

The appellant argued that under the forbearance agreement with the respondent lender, the debt was limited to $8.5 million (the amount paid to discharge the original mortgage), rather than the full $17 million outstanding.

The appellant also sought relief from forfeiture under section 98 of the Courts of Justice Act.

The Court of Appeal upheld the motion judge's decision, holding that the forbearance agreement clearly assigned the full $17 million debt and that relief from forfeiture was not warranted as the transaction was not unconscionable and the result was not disproportionate.

The appellants sought to develop land pursuant to an amended development agreement with the Town of Ajax.

The agreement contained repurchase terms that could be invoked if the developer failed to take reasonable steps to proceed with construction by a specified deadline, provided it was not awaiting comments or confirmation of approval on any application from the Town.

The Town terminated the agreement and exercised its repurchase rights, claiming the developer's revised site plan application was incomplete and the construction deadline had passed.

The trial judge found in favour of the Town.

On appeal, the appellants argued the trial judge erred in failing to apply the Planning Act's definition of a complete site plan and in conflating completeness with readiness for approval.

The Court of Appeal upheld the trial judgment, finding the site plan application was incomplete as a matter of contract interpretation because the developer had not submitted all requested materials and was not awaiting Town approval but rather the Town was awaiting responses from the developer.

Your Neighbourhood Credit Union (YNCU), a non-party and first mortgagee, moved to set aside a prior judgment (Hainey J.) that granted an easement over its mortgaged lands, alleging lack of notice.

The motion was held in abeyance pending an appeal of a similar judgment (Conway J.), which was subsequently overturned by the Court of Appeal, finding no legal entitlement to an easement.

The court found YNCU's motion, continued by its assignee Silsym Inc., met the "forthwith" requirement of Rule 38.11 despite delays.

Given the Court of Appeal's ruling on similar facts, the court concluded there was no entitlement to the easements granted by the Hainey Judgment and allowed the motion, setting aside the judgment.

Costs were fixed at $20,000 for the moving party.

The defendant, Mary Fatima DeMelo, brought a motion seeking disbursement of $488,348.75 from the proceeds of her former matrimonial home's sale and a seven-day suspension of a writ of possession held by CIBC Mortgages Inc. She argued that CIBC acted in bad faith by holding proceeds from one property (Binns) while also having security on another (Greenvalley), and by not paying funds into court as per a freezing order.

CIBC contended it was entitled to execute its writ against any of the defendant's assets and was not obligated to withdraw its writ or take a chance on future repayment from the Greenvalley property sale, which had deficiencies.

The court dismissed the defendant's motion, finding that CIBC was entitled to file and execute its writ and that holding the sale proceeds did not constitute bad faith, as CIBC was a secured creditor not required to take a chance on future repayment.

The defendants, Sharon Gooden-Allen and Desmond Allen, defaulted on a second charge on their property, which was subsequently transferred from Surrinder Jass to Sean Wilson.

Wilson then entered an Agreement of Purchase and Sale (APS) with Sean Brown.

The Allens challenged the validity of the assignment and the propriety of the sale, bringing a motion to stay the APS.

Wilson brought a cross-motion to have an order to continue the action made *nunc pro tunc*.

The court found the assignment of the charge to Wilson to be valid and the APS bona fide, dismissing the Allens' motion to stay the sale.

Wilson's motion for a *nunc pro tunc* order to continue was granted, allowing him to enforce the judgment and exercise his rights as chargee in possession.

The moving defendants, subtenants of a medical facility, sought summary judgment to dismiss claims by the landlord for breach of contract and unlawful act conspiracy after they vacated the premises.

The landlord alleged the subtenants breached continuous operation covenants and conspired to harm the landlord by moving to new premises.

The court granted the landlord's motion to amend its claim to add two corporate subtenants.

However, the court found no privity of contract between the landlord and subtenants, and no applicable exception to the privity doctrine.

Furthermore, the court determined there was no evidence of unlawful conduct or intent directed towards the landlord to support the conspiracy claim.

Consequently, the subtenants' motion for summary judgment was granted, and the landlord's claims against them were dismissed.

This case involved two applications concerning the renewal of a twenty-year ground lease between a landlord, North Elgin Centre Inc., and its tenant, McDonald’s Restaurants of Canada Limited.

McDonald's had given notice to renew but failed to either revoke its intention or elect arbitration within the stipulated nine-month period when rent negotiations stalled.

The landlord sought a declaration that the lease was terminated due to McDonald's non-compliance with the renewal provision.

McDonald's sought a declaration that the lease was renewed and an order for arbitration.

The court found that McDonald's did not strictly comply with the renewal provision.

While the landlord's conduct initially constituted a waiver of strict compliance, this waiver was effectively revoked by clear communication.

McDonald's subsequently failed to elect arbitration within a reasonable time and was not entitled to relief from forfeiture.

The court granted the landlord's application, declaring the lease terminated, and dismissed McDonald's application.

A 90-day stay of judgment was granted.

Easyfinancial Services Incorporated (Easyfinancial) sought leave to appeal an injunction granted by Andre, J., which required 7724934 Canada Inc. to comply with a restrictive covenant in its lease with EZMoney Tario Inc., preventing Easyfinancial from operating its business in Kingspoint Plaza.

Easyfinancial argued the motions judge erred in interpreting the restrictive covenant, assessing irreparable harm, applying assumption of risk over balance of convenience, and failing to consider EZMoney's delay.

The court found reason to doubt the correctness of the original order on these grounds and granted leave to appeal, noting the importance of restrictive covenants in commercial leases beyond the immediate parties.

The City of Toronto brought a motion for summary judgment in a slip and fall case.

The plaintiff alleged the City created a hazard (protruding bolts) on land it owned but leased to Humber College.

The court found that the plaintiff failed to prove the City created the hazard while it had control of the premises (prior to 2004).

Furthermore, the City was not an "occupier" under the Occupiers' Liability Act at the time of the accident in 2010, as the lease transferred maintenance responsibility to Humber College.

The court also found no common law duty of care owed by the City given the passage of time, the tenant's explicit duties, and the obvious nature of the hazard.

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

The plaintiff, Scotia Mortgage Corporation, brought a motion for summary judgment seeking payment of amounts owing under a mortgage and possession of the property due to the defendant's default.

The defendant, Boris Broz, opposed the motion, raising issues regarding a late reply affidavit, the plaintiff's mortgage arrears policy, and mortgage insurance.

The court found no genuine issues requiring a trial, noting the defendant's undisputed default and the mortgage's maturity.

The motion was granted, ordering the defendant to pay the outstanding mortgage amount and granting a writ of possession to the plaintiff, along with costs.