Real Estate Law

The plaintiff sought indemnity from a builder corporation and several individual investors for payments made to homeowners under the Ontario New Home Warranties Plan Act.

The claim relied on a Tarion standard-form indemnity agreement allegedly signed by the individual defendants.

The court found the individual defendants had only signed a single signature page that had been fraudulently inserted among unrelated financing documents by another defendant, and that earlier versions of the agreement submitted to the plaintiff were forgeries.

Although the defendants were careless in signing the document, the plaintiff’s own lack of diligence in accepting altered net worth statements and failing to verify the indemnitors contributed materially to the circumstances.

Balancing the competing principles from fraud and non est factum jurisprudence, the court held the defendants were not liable under the purported indemnity agreement.

A condominium unit owner applied under ss. 134 and 135 of the Condominium Act, 1998 to annul the results of a requisitioned owners’ meeting that removed the board of directors.

The applicant alleged the meeting chair improperly permitted proxies from owners allegedly in arrears contrary to s. 49(1) of the Act and argued the process was oppressive and unfairly prejudicial.

The court held that the chair of the meeting was the proper authority to determine the eligibility of disputed proxies and found no bad faith in her rulings.

After reviewing the evidence regarding disputed proxies, the court concluded that at most three votes were improperly counted, insufficient to affect the outcome of the removal vote.

The meeting was properly conducted and the applicant failed to establish non‑compliance with the Act or oppression.

The moving defendants sought an injunction restraining the plaintiff mortgagee from completing a power of sale closing scheduled for the following day.

The dispute arose in a mortgage enforcement action where the defendants had filed a statement of defence and a request to redeem after a default judgment had been set aside.

The court held that the defendants retained an equitable right to redeem under the Rules of Civil Procedure and that the plaintiff could not render that right nugatory by proceeding with a power of sale after commencing a foreclosure or sale action.

Applying the test for an interlocutory injunction, the court found a prima facie case, irreparable harm through the loss of the defendants’ equitable interest in the mortgaged property, and a balance of convenience favouring the defendants.

The court therefore restrained the proposed sale until the redemption period expired and the mortgage accounts were taken and judgment rendered.

The estate trustee of a deceased co‑owner sought an order under the Partition Act for the sale of jointly held property.

The respondent, the deceased’s brother and co‑owner, opposed the sale and asserted that the deceased and his spouse had separated and settled their claims, allegedly releasing any entitlement to the property.

The respondent relied primarily on affidavit evidence recounting statements by the deceased and references to missing documents allegedly confirming the settlement.

The court held that while the applicant’s case appeared strong, there were material factual disputes concerning whether the surviving spouse had relinquished her interest.

Given the evidentiary conflicts and the hearsay nature of the record, the matter required viva voce evidence and a trial of the issues.

The application for sale under the Partition Act was therefore refused and the matter directed to trial.

A dispute arose between owners of adjacent apartment buildings concerning access to a shared outdoor swimming pool and a garbage disposal facility located on the defendants’ property.

The plaintiff asserted that it held easement rights permitting continued use of the facilities based on the original design and joint development of the properties in the late 1960s.

The defendants argued the plaintiff had only a revocable licence and counterclaimed for trespass arising from construction activities on their land.

The court held that the evidence established an implied easement arising from the common intention of the original developers when the lands were severed and developed as a single complex.

The plaintiff therefore retained enforceable easement rights over the defendants’ land for both facilities, and the defendants’ trespass claim failed because the impugned acts were committed by independent contractors without the plaintiff’s control.

A condominium developer sought declarations that purchasers of two commercial hotel condominium units were bound by their agreements of purchase and sale and that their notices of rescission were invalid.

The purchasers argued that a revised disclosure statement contained several undisclosed material changes, including cost allocation shifts, lack of PATH access, kitchen configuration changes, ownership changes in certain units, and a reduction in the building’s overall height.

Applying the objective test for material change under the Condominium Act, the court found that none of the alleged changes—individually or cumulatively—would have caused a reasonable purchaser to rescind the transaction.

The developer established that the changes did not materially affect the investment value or income potential of the units.

The court therefore held that the purchasers’ rescission notices were ineffective and that the agreements remained binding.

The defendant sought costs following a motion that resulted in a consent order requiring the plaintiff to vacate a property, cooperate in its sale, and discharge a certificate of pending litigation.

The court considered the principles governing costs under Rule 57.01 of the Rules of Civil Procedure, including indemnification of successful litigants, encouragement of settlement, and discouragement of inappropriate conduct.

The court found that the defendant was compelled to bring the motion due to the plaintiff’s failure to communicate her willingness to vacate the property and cooperate with the sale, which caused delay and required an extension payment to the purchaser.

The defendant was therefore entitled to partial indemnity costs.

Costs were fixed at $7,350 plus HST and disbursements, payable from the plaintiff’s share of the net proceeds of sale.

A housing co‑operative applied under s.171.13 of the Co‑operative Corporations Act for a declaration that the respondents’ membership and occupancy rights were terminated and for a writ of possession.

The termination followed a confrontation between one respondent and another co‑op member, which the board and general membership concluded justified eviction.

The court held that the co‑op failed to comply with principles of natural justice and procedural fairness, including inadequate notice, expansion of allegations beyond the notice, denial of the respondents’ opportunity to respond to prejudicial allegations, and restricting voting options during the membership appeal contrary to the statute.

The court further found no reasonable basis to terminate the second respondent’s membership and occupancy rights.

Because the termination decisions were procedurally unfair and unsupported as to one respondent, the requested declaration and writ of possession were refused.

The plaintiffs sought declaratory relief confirming that they retained a valid and subsisting mortgage after a loan secured by assignment of that mortgage had been sold to a third party.

The court found that the requested declaration would affect the rights of a mortgagor that was not a party to the proceeding, making such relief inappropriate.

The court also concluded that no viable cause of action existed between the plaintiffs and the remaining defendant.

The defendant’s counterclaim seeking repayment of the loan more than a decade after default was barred by the Limitations Act due to the long delay and absence of any demand.

Both the main action and the counterclaim were dismissed.

The plaintiff brought a motion seeking an order compelling the responding defendants to provide particulars to allegations contained in their statement of defence and counterclaim.

The litigation concerned the validity of a transfer of the plaintiff’s interest in real property allegedly executed under a power of attorney, with the defendants asserting entitlement based on labour and financial contributions and alleging that the plaintiff had exhibited signs of dementia and diminished capacity.

The court held that the pleaded allegations were sufficiently vague that the plaintiff could not respond with anything more than a broad denial without further detail.

Applying established principles governing the function of particulars in pleadings, the court concluded that the requested particulars were necessary to define the issues and allow the plaintiff to plead intelligently.

The motion was granted and the responding defendants were ordered to deliver the demanded particulars.

The defendant landlord moved for summary judgment dismissing a claim seeking rectification of a lease amendment.

The tenants alleged that an early termination clause permitting the landlord to terminate the lease on 270 days’ notice had been inserted without their knowledge or agreement.

The court held that rectification requires convincing proof of a definite and ascertainable prior oral agreement, knowledge of the mistake amounting to fraud or its equivalent, and proof of the precise form of the corrected instrument.

The evidentiary record consisted largely of self‑serving assertions unsupported by documentary evidence and failed to demonstrate any prior agreement excluding the termination clause.

Summary judgment was granted, the claim for rectification dismissed, and the certificate of pending litigation vacated.

The defendants brought a motion to set aside a default judgment granting the plaintiff possession of mortgaged property.

The court applied the test from Bayview Financial, L.P. v. Spartan Collision Corporation, requiring promptness in bringing the motion, a plausible explanation for the default, and an arguable defence on the merits.

Although the defendants provided a plausible explanation for the delay and moved relatively promptly after learning of the judgment, they failed to demonstrate a genuine or arguable defence to the mortgage default claim.

The motion to set aside the default judgment was therefore dismissed.

However, the court temporarily restrained enforcement of the judgment for 20 days to allow the defendants time to finalize financing to satisfy the debt and made no order as to costs.

Prospective purchasers and current tenants brought a motion to discharge a certificate of pending litigation registered by a former tenant who claimed an interest in the property based on an alleged agreement of purchase and sale.

The court held that the moving parties had standing to seek discharge despite the withdrawal of the counterclaim against them, as they were innocent third‑party purchasers in possession who had paid deposits toward the purchase.

The respondent failed to demonstrate a reasonable claim to an interest in land, relying only on an unexecuted agreement with a non‑owner and unsupported assertions of readiness to close.

Applying the principles under s. 103(6) of the Courts of Justice Act and the factors governing CPL discharge, the court found that damages would be an adequate remedy and that the prejudice to the purchasers outweighed any prejudice to the respondent.

The certificate of pending litigation was therefore discharged.

The mortgagor plaintiffs sought interlocutory injunctive relief to prevent enforcement of a default judgment and mortgage remedies relating to a third mortgage on their residential property.

Rather than bringing a motion within the original mortgage enforcement action to set aside or stay the judgment, the plaintiffs commenced a separate proceeding seeking to enjoin execution.

The court held that the relief sought constituted an impermissible collateral attack on an existing judgment and raised issues of res judicata, cause of action estoppel, and issue estoppel.

The court further found that none of the plaintiffs’ alleged triable issues—including alleged improper tender, deficiencies in the notice of sale, licensing concerns under mortgage broker legislation, and disputes over legal fees—established a serious issue to be tried under the interlocutory injunction test.

The motion for injunctive relief was therefore dismissed.

Following a prior ruling ordering the discharge of a condominium common expense lien under s. 85 of the Condominium Act, the court determined the appropriate costs award.

The court emphasized that costs are discretionary under s. 131(1) of the Courts of Justice Act and guided by the principles in Rule 57.01 of the Rules of Civil Procedure, including complexity, importance of the issues, and litigation efficiency.

The court found that the responding party’s former counsel had taken an unnecessarily complex and evasive approach to what should have been a straightforward statutory process, generating unnecessary expenses.

While the conduct did not warrant substantial indemnity costs, it justified a level of costs between partial and substantial indemnity.

The applicant was awarded $10,000 in legal fees plus HST and $1,098.75 in disbursements.

The applicant sought an interlocutory injunction preventing a neighbouring condominium developer from installing translucent panels on the west wall of a nearly completed building.

The applicant alleged the design breached a negative covenant allegedly agreed upon during planning approval discussions that the wall would contain no windows.

Applying the test from RJR-MacDonald Inc. v. Canada (Attorney General), the court held the applicant failed to establish a serious issue to be tried and provided no evidence of irreparable harm, particularly in the absence of expert evidence regarding impacts on future redevelopment or privacy.

The court also found the balance of convenience strongly favoured the developer because construction was substantially complete and the applicant had delayed unreasonably in bringing the motion.

The delay and resulting prejudice supported the equitable defence of laches.

Following dismissal of an application seeking issuance of a building permit for a lot created through a scheme found to constitute a “fraud upon the Planning Act,” the successful municipal respondent sought costs on a full indemnity basis.

The applicant resisted both the scale and quantum of costs.

The court held that while the applicant’s conduct constituted a deliberate attempt to circumvent the Planning Act, it did not amount to criminal fraud warranting full indemnity costs.

Considering the complexity of the planning and real property issues, the long procedural history, and the conduct of the parties, the court awarded costs on a substantial indemnity basis.

The respondent municipality was awarded $40,000 plus HST and disbursements.

Following a successful foreclosure claim on a mortgage in default, the plaintiff sought costs on a substantial indemnity basis pursuant to the mortgage terms.

The plaintiff claimed $47,075 in legal fees, while the defendant argued for approximately $21,000 on a partial indemnity basis and challenged several bill of costs entries.

The court considered the complexity of the litigation, including limitation issues and the time gap between the debt, mortgage, and enforcement proceedings.

Although the court accepted that substantial indemnity costs were appropriate, it found portions of counsel’s preparation time for discovery and trial excessive.

The court fixed costs at $35,000 on a substantial indemnity basis plus disbursements and HST.