Real Estate Law

The decision concerns Parkland Corporation’s motion for interlocutory relief to enforce negative covenants in a lease requiring Caledon Fuels Inc. to operate a gas station as an Ultramar station with fuel supplied by Parkland.

The court grants Parkland leave to register a certificate of pending litigation (CPL) and issues an injunction against Caledon and the purchaser, 16408117 Canada Inc., from breaching the lease.

The ruling addresses the legal tests for a CPL and interlocutory injunction, the effect of actual notice of a lease under the Land Titles Act, and the balance of convenience between the parties.

The Atkinson Housing Co-operative Inc. applied for a declaration that no member occupied a specific three-bedroom townhouse and for a writ of possession.

The respondent, Hector F. Osorio, claimed to be a member entitled to occupy the unit.

The court found no merit in Osorio's claim, determining he had not been a member since 2011 and had formally resigned in 2018.

The Landlord and Tenant Board had previously found Osorio was not a member and ordered his eviction, but that decision was overturned on appeal due to the Board's lack of jurisdiction to evict non-members.

The Superior Court, exercising its jurisdiction under the Co-operative Corporations Act, confirmed Osorio's non-member status and granted the co-op's application for a declaration and writ of possession, finding no exceptional circumstances to deny the writ.

This motion for summary judgment concerned an oppression claim brought by a condominium unit owner against the Condominium Corporation, its property manager, and superintendent.

The owner alleged oppressive conduct stemming primarily from the Corporation's decision to charge him for remediation costs after he left eggs cooking unattended, leading to smoke damage, and subsequently registering a lien on his unit for unpaid common expenses, which ultimately resulted in the power of sale of his home.

The owner also raised ancillary claims regarding cleaning product contracts, parking, and water leaks.

The court found that the Corporation acted reasonably and within its statutory powers in remediating the damage and registering the lien.

It was determined that the owner's own negligence and unreasonable refusal to mitigate his losses were the cause of his home's sale.

The court dismissed all of the owner's claims, granting summary judgment in favour of the Corporation.

The moving party, Pamela Pal, sought an order for partition or sale of a residential property jointly owned with her daughter, Faythe R. Pal (the responding party), under the Partition Act.

Pamela owns an 80% interest, and Faythe, who resides in the property and operates a business from it, owns 20%.

Pamela sought to sell the property to access her equity and purchase a condominium for independent living.

Faythe opposed the sale, citing financial hardship and alleging bad faith on Pamela's part.

The court granted the partition or sale, finding Pamela had a prima facie right to the sale and was not acting in bad faith.

The court determined that Faythe's personal hardship and inconvenience were not sufficient reasons to deny the order.

The decision also addressed the sale of other jointly held assets (an Aruba timeshare and Milton Lands) and the conditional issuance of a writ of possession.

The defendant moved to discharge a Certificate of Pending Litigation (CPL) and a mortgage registered against several properties.

The CPL was obtained ex parte by the plaintiff, who claimed fraud, breach of fiduciary duty, and sought constructive/resulting trust remedies for funds invested in the defendant's property ventures.

The court found a triable issue regarding the plaintiff's claim to an interest in the properties.

While the defendant delayed bringing the motion and the plaintiff failed to disclose a material $100,000 payment on the ex parte motion, the court exercised its equitable discretion.

It ordered the CPL to remain on two properties (King and Fort Rouille) and the mortgage to remain on additional properties, but discharged the CPL and mortgage from Lakeshore, balancing the parties' rights and ensuring sufficient security for the plaintiff's claim.

Horn Ventures International Inc. appealed the dismissal of its application to compel Xylem to sell it property, arguing that a binding agreement for sale was triggered by waiving a condition in an Offer to Lease.

The key issue was whether the "Obligation to Purchase" provision could be triggered before environmental remediation of the property was completed.

The Court of Appeal upheld the application judge's interpretation that the obligation to purchase arose only after Xylem advised that remediation was complete, and Horn Ventures could only waive the environmental consultant's certificate, not the completion of remediation itself.

The appeal was dismissed, as no reversible error was found in the application judge's contractual interpretation.

The appellant sought to set aside a Registrar's order dismissing her appeal for delay and to extend time to perfect the appeal.

The underlying appeal concerned a motion judge's decision to dismiss the appellant's action via reverse summary judgment, which sought to set aside a property transfer under power of sale due to alleged fraud and conspiracy.

The Court of Appeal granted the appellant's request, finding that despite some delay, she maintained an intention to appeal and had arguable grounds, particularly regarding the motion judge's assessment of "badges of fraud" in the context of a power of sale and the chargee's duties.

The court also clarified that a writ of possession requires a pre-existing order for possession, which the purchaser lacked.

This case addresses the enforceability of an "automatic renewal" clause in a mortgage that stipulated a substantially higher interest rate and a renewal fee if the loan was not repaid at maturity.

The court found the clause unenforceable, deeming it a penalty on arrears of principal in violation of section 8 of the Interest Act.

While the mortgagors' alleged lack of actual knowledge of the clause was not a basis for invalidation due to their independent legal advice, the court ruled that the mortgage was not renewed at the higher rate.

The mortgagee was, however, entitled to three months' simple interest under section 17 of the Mortgages Act, as the repayment was initiated by the mortgagors and not in response to enforcement proceedings, despite the mortgagee's prior unjustified demands frustrating refinancing efforts.

The court also allowed a reduced fee for mortgage discharge and disallowed legal fees for the mortgagee's pursuit of unjustified claims.

The applicant, NJS Midtown Portfolio Inc., sought a court order directing the respondent, CMLS Financial Ltd., to consent to the sale of a mortgaged property and provide a partial discharge of the mortgage, or alternatively, a full discharge upon payment of the principal and accrued interest.

NJS had entered into an agreement of purchase and sale for one of three properties secured by a closed, 10-year mortgage with CMLS, which was insured by CMHC and part of a Mortgage-Backed Securities program.

CMLS refused consent, citing contractual terms, CMHC policy obligations, and the non-prepayable nature of the mortgage.

The court dismissed NJS's application, finding no contractual, statutory, common law, or equitable basis for the requested discharge, and that CMLS's withholding of consent was reasonable given its commercial interests and obligations to CMHC and MBS investors.

The plaintiffs, mortgagees, brought a motion seeking an order to compel the defendants, mortgagors, to deliver a statement of defence despite a provincial emergency order suspending procedural timelines.

The mortgage was in default, and evidence indicated significant property deterioration and tax arrears.

The defendants did not respond to the motion.

The court exercised its discretion to override the suspension, finding no evidence from the defendants to justify further delay or contradict the plaintiffs' claims of wasting security.

The motion was granted, ordering the defendants to file a statement of defence within 20 days.

The plaintiff, Mohmmad Danesh, and the defendants by counterclaim, ReMax Crossroads Realty Inc. and Michael Bury, brought motions for summary judgment in a dispute arising from a failed condominium purchase.

The vendor, Elahe Vahed, argued that a second extension to the closing date was invalid due to fabrication and non-compliance with the Statute of Frauds.

The court found that Vahed breached the agreement of purchase and sale by failing to close on the extended date, rejecting her arguments regarding fabrication and the Statute of Frauds due to solicitor's authority and part performance.

Danesh was awarded damages for out-of-pocket expenses and the return of a deposit.

Vahed's counterclaims against Danesh, ReMax, and Bury for general and punitive damages were dismissed.

This endorsement addresses the quantum of costs following the Applicants' success in an application to reduce a mortgage from over $5,000,000 to $10,000.

The Applicants sought $139,642.93 on a partial indemnity basis, while the Respondent proposed a maximum of $70,000.

The court considered the high stakes, the urgency of the matter exacerbated by COVID-19, and the Respondent's delaying tactics.

Despite finding the Applicants' bill somewhat high due to senior counsel's involvement, the court awarded costs of $100,000.00 inclusive of disbursements and taxes to the Applicants, emphasizing their full success and the Respondent's conduct.

The appellant, a property developer, appealed the dismissal of its application to quash an Interim Control By-Law (ICBL) enacted by the Township of Muskoka Lakes.

The ICBL restricted permitted uses within a designated area to those lawfully existing on the date of enactment and required such uses to be conducted entirely within existing buildings.

The appellant had obtained 11 building permits for a 43-unit condominium development with recreational amenities, had commenced construction, and had undertaken extensive site servicing work, all with Township approval.

The application judge dismissed the appeal, finding the property was not exempt under the Planning Act.

The Court of Appeal allowed the appeal, holding that the development should be viewed as an integrated whole and that the issuance of 11 building permits for constituent elements of the development provided protection under section 34(9)(b) of the Planning Act.

The court found no genuine planning justification for the ICBL and noted it appeared designed to appease local opposition rather than serve legitimate planning purposes.

The plaintiff, a real estate brokerage, moved for summary judgment to recover unpaid commissions from the defendants under a Buyer Representation Agreement (BRA).

The defendants argued an oral collateral understanding that commissions would be paid by the seller and that the agent failed to assist.

The court found the written BRA valid and enforceable, rejecting the alleged oral understanding due to the entire agreement clause and the parole evidence rule.

The court also found that the defendants deliberately excluded the agent from final negotiations and failed to disclose property purchases through closely-held corporations to avoid commission payments.

Summary judgment was granted in favour of the plaintiff for commissions owed on two properties, plus interest.

The applicant sought equitable relief from forfeiture after being locked out of commercial leased premises due to multiple breaches of the lease, including non-payment of basic rent, unauthorized subletting, and failure to open the specified restaurant business for nearly three years.

The court, applying the principles of relief from forfeiture, found that while the applicant had cured rent arrears, the prolonged failure to open the restaurant and lack of sufficient evidence for delays were significant.

The court granted relief from forfeiture but imposed stringent conditions on the applicant, requiring timely rent payments, provision of post-dated cheques, and payment of a substantial sum for outstanding reality taxes, with a clear stipulation that non-compliance would allow the respondents to terminate the lease.

The applicants, John Charles Brown and Joanne Muggette Brown, sought a declaration of adverse possession or a prescriptive easement over a laneway on Karen Savage's property.

Karen Savage, in a cross-application, sought a closing order for the laneway.

The court dismissed the Browns' claims for adverse possession and prescriptive easement, finding they failed to establish exclusive use or use "as of right." The court found that Savage did not require a closing order under the Road Access Act because the Browns had viable alternative access to their property from a public road, albeit at a cost.

Savage was granted the right to exclude the Browns from using the laneway, with a one-year suspension of enforcement to allow the Browns to implement alternative access.

This endorsement addresses the costs of an action where the plaintiff, Saramia Crescent General Partner Ltd., was awarded $1,277,000 in damages for breach of lease.

The court determined that the plaintiff was entitled to costs on a partial indemnity scale up to November 8, 2016, and on a substantial indemnity scale thereafter, having beaten two offers to settle.

The defendants' arguments that the costs were excessive, that the issues were novel justifying a reduction, or that mediation costs should be excluded were largely rejected.

A minor reduction was made for communications costs.

The court also drew an adverse inference against the defendants for failing to disclose their own costs.

Loblaw Properties sought to declare the Town of Smiths Falls' right to repurchase a land parcel void or unconscionable, arguing it failed to develop the property within the prescribed four-year period.

The Town cross-applied to affirm and enforce its right and correct registration errors.

The court found the Town's right to be a valid equitable interest binding Loblaw, which had full notice of the condition.

The court dismissed Loblaw's arguments regarding uncertainty, penal nature, and unconscionability, noting Loblaw's sophistication and failure to provide proper valuation evidence.

Loblaw's application was dismissed, and the Town's cross-application was granted, including declarations and rectification of the title register.