Real Estate Law

The applicant purchased commercial condominium units and subsequently acquired a communication unit without conducting due diligence, such as obtaining a status certificate or performing a title search.

The communication unit was subject to a registered lien for unpaid common expenses.

The applicant sought an oppression remedy, alleging the condominium corporation misled it into purchasing the unit and seeking an order compelling the corporation to take back title without the applicant paying the lien.

The court dismissed the application, finding the applicant was responsible for its failure to verify title and that the corporation was entitled to enforce its lien before accepting a transfer of the unit.

The appellants appealed an Associate Judge's order dismissing their motion for a Certificate of Pending Litigation (CPL) against the respondents' matrimonial home.

The appellants alleged the transfer of the home from the respondent husband to his wife was a fraudulent conveyance to defeat creditors in an underlying action regarding a condominium development.

The Superior Court dismissed the appeal, finding the Associate Judge correctly applied the Grefford test, properly excluded an affidavit from a separate proceeding, and reasonably concluded the appellants failed to establish a high probability of success in the main action or that the balance of convenience favoured a CPL.

Following a motion where the respondents were substantially successful and the applicant condominium corporation was denied relief, the court determined the issue of costs.

The court found that the applicant had acted unreasonably and in bad faith by failing to address a breach of the Condominium Act for decades and refusing to enter into a section 98 agreement.

Consequently, the respondents were awarded costs on a substantial indemnity scale.

However, the respondents were ordered to bear the costs of preparing and registering the section 98 agreement, as it was for their exclusive benefit.

Two condominium corporations brought a motion to stay an action commenced by another condominium corporation concerning disputes under a shared facilities agreement governing a multi-building condominium development.

The plaintiff sought oppression relief under s. 135 of the Condominium Act, 1998 and argued that such claims were not arbitrable and must be determined by the court.

The moving parties relied on a broad arbitration clause and the mediation-arbitration framework under s. 132 of the Act.

Applying the competence-competence principle under the Arbitration Act, 1991, the court held that it was at least arguable that the dispute fell within the scope of the arbitration agreement and that the arbitrator should determine jurisdiction in the first instance.

The proceeding was stayed and the dispute directed to mediation and, failing settlement, arbitration.

The defendants moved to discharge a Certificate of Pending Litigation registered by the plaintiff over land in Mississauga, arguing that the plaintiff had no interest in the land, that there was material non‑disclosure in the ex parte application for the CPL, and that the plaintiff delayed unreasonably in seeking the certificate.

The plaintiff asserted that the parties had long contemplated the transfer of land for the construction of a Greek Orthodox church pursuant to agreements dating back to 1980.

The court held that the totality of the evidence demonstrated a reasonable claim to an interest in the land and a triable issue supporting the CPL.

The court further found that the plaintiff had provided sufficient disclosure on the ex parte motion and that the delay in seeking the CPL was reasonably explained.

Balancing the equities and the absence of demonstrated hardship to the defendants, the court concluded that maintaining the CPL was just.

The plaintiff moved for summary judgment to enforce a second mortgage and obtain payment of funds paid into court following a power of sale.

The defendants alleged the mortgage had been fully paid through a combination of cheque and cash payments, relying primarily on internal payment spreadsheets and hearsay evidence from a bookkeeper.

The court held that the defendants failed to provide reliable proof of payment and that their evidence consisted largely of unsupported assertions.

Applying the summary judgment framework following Hryniak v. Mauldin, the court concluded there was no genuine issue requiring a trial.

Judgment was granted for the outstanding mortgage balance with interest and the plaintiff was declared entitled to surplus sale proceeds subject to set-offs.

Following a summary judgment ruling arising from a failed real estate transaction, the court addressed the issue of costs.

The plaintiffs had succeeded in obtaining damages for losses arising from the defendant’s failure to complete an agreement of purchase and sale, including damages for the resale loss and partial recovery of special damages.

The court considered the parties’ settlement offers, the degree of success, and the factors under Rule 57.01 of the Rules of Civil Procedure.

While the plaintiffs achieved overall success, the defendant’s litigation conduct was not unreasonable and included meaningful settlement offers and appropriate admissions.

The court awarded partial indemnity costs to the plaintiffs in a fixed amount.

An interpleader motion sought a declaration that a property transferred into the son’s name was held in trust for the mother and therefore not exigible by the son’s judgment creditors.

The responding bank argued the declaration of trust lacked evidentiary support and questioned its authenticity.

The court found the record contained deficiencies but also some evidence suggesting a possible trust, raising credibility issues unsuitable for determination on the motion record.

As a result, the motion for declaratory relief was dismissed and a trial of an issue was directed to determine beneficial ownership and the priority of competing writs of execution.

A vendor sought a declaration that purchasers breached an agreement of purchase and sale and that the deposit held in trust be released to the vendor.

The purchasers alleged fraudulent misrepresentation, arguing they were misled about the legality of their intended commercial use of the property.

The court held that the vendor made no fraudulent misrepresentation and that the purchasers failed to conduct due diligence despite contractual provisions allowing investigation and requisitions.

The illegal use of the property did not constitute a defect going to the root of title.

Applying the doctrine of caveat emptor, the court concluded the purchasers were in breach and the vendor was entitled to the deposit.

The applicant brought a motion for directions regarding whether a prior court order required the commencement of a fresh action with new pleadings, productions, and examinations for discovery in a dispute concerning the calculation of gross rentable area under a commercial lease.

The respondent opposed the need for a new action and sought to proceed directly to trial on an expedited basis.

The court found that the dispute centered on expert methodology rather than the parties’ intentions or lease validity, and that the lease contained a mechanism for determining gross rentable area.

The court also noted prejudice to the property owner caused by ongoing litigation preventing the sale of the building.

Directions were issued converting the matter into an action proceeding to expedited trial and treating prior application evidence as partial discovery.

A costs endorsement following applications to vary a criminal restraint order under s. 462.34 of the Criminal Code to permit enforcement of a condominium lien and a mortgage power of sale.

The opposing party argued the applicants’ legal fees were excessive and should be limited by the court.

The court held that a variation application under s. 462.34 was not an appropriate forum to adjudicate disputes over legal fees and that such disputes should instead be addressed through civil proceedings or assessment mechanisms under applicable legislation.

In any event, the court found no basis to limit the applicants’ legal fees given the procedural history and the conduct of the parties.

No order regarding costs was made.

The plaintiff moved for judgment against a defendant who had been noted in default after his statement of defence was struck and he failed to participate in the litigation process.

The action arose from a failed agreement of purchase and sale for a ski resort property valued at $16 million, where the purchasing corporation and its shareholders failed to complete the transaction.

The court granted leave under Rule 48.04(1) of the Rules of Civil Procedure to bring the motion despite the matter having been set down for trial, finding a substantial and unexpected change in circumstances due to the defendant’s post‑trial-setting default and non-participation.

Because the defendant was noted in default, the allegations in the statement of claim were deemed admitted.

The court accepted the plaintiff’s appraisal evidence and awarded damages for breach of contract and misrepresentation.

A condominium corporation brought a motion seeking a finding of contempt and enforcement of a prior judgment requiring a unit owner to remove two dogs from his unit.

The respondent admitted he had not complied with the earlier order and sought an adjournment pending his motion to set aside that judgment.

The court held that a court order remains binding and enforceable unless and until it is set aside or overturned on appeal.

The respondent’s request for an adjournment was denied, and the court granted enforcement relief allowing entry to remove the dogs if necessary.

Costs were awarded to the condominium corporation.

The applicant sought a determination regarding $172,500 held in trust from the proceeds of sale of a residential property.

The respondent asserted that monies previously provided to the applicant for tuition and living expenses gave rise to a purchase money resulting trust entitling him to those proceeds.

The court reviewed the principles governing resulting trusts and the presumption of advancement, including the requirement that the claimant provide purchase money at the time of acquisition and demonstrate an intention to retain a beneficial interest.

The evidence did not establish that the respondent contributed to the purchase price or that the funds provided earlier were loans or intended to create a beneficial interest in the property.

The court concluded that no resulting trust arose and ordered that the trust funds be released to the applicant.

A bankruptcy trustee sought a declaration that a property interest held in the name of the bankrupt’s brother was held in trust for the bankrupt and therefore formed part of the bankrupt estate.

The trustee argued the brother was added to title solely to facilitate mortgage refinancing and had no beneficial ownership.

The respondents asserted the brother contributed significant funds toward the purchase and mortgage payments and held a beneficial interest proportionate to those contributions.

The court rejected the credibility of the respondents’ evidence and preferred contemporaneous documentary records showing the transfer was made for financing purposes only.

The court set aside the transfer of joint tenancy, held the brother had no legal interest in the property, but recognized a trust interest for his $15,000 contribution.

The plaintiff brought a motion for summary judgment under the Partition Act seeking partition and sale of jointly owned residential property following the parties’ separation.

The defendant, who remained in occupation of the property, requested an adjournment and had not filed responding materials.

The court refused the adjournment but declined to determine monetary adjustments on the motion, directing that such issues be addressed through a reference.

The court ordered a court-supervised sale of the property under s. 3(1) of the Partition Act, required the defendant to vacate by a specified date, and provided directions governing listing, sale procedures, and interim responsibilities for the mortgage and maintenance of the property.

Costs decision following a property dispute in which both parties claimed title to a cottage.

The plaintiff advanced claims based on proprietary estoppel and unjust enrichment, while the defendant estate sought clear title.

The trial judgment granted the plaintiff a 15‑year licence to use the property, producing a mixed outcome.

In determining costs, the court considered proportionality and the factors under s.131(1) of the Courts of Justice Act and Rule 57 of the Rules of Civil Procedure, as well as settlement offers that did not engage Rule 49.

Finding the plaintiff was more successful overall, the court ordered the defendant estate to pay the plaintiff fixed costs of $50,000 all‑inclusive.

Borrowers brought an application seeking a declaration that a lender’s $19,000 administrative fee charged under a mortgage commitment letter contravened the contract because only one draw of $150,000 had been advanced rather than the full $475,000 facility.

The applicants argued the fee should have been limited to 4% of the funds actually advanced.

The court held that the mortgage commitment letter unambiguously established a fixed administrative fee payable for the loan facility, not a percentage tied to individual advances.

Interpreting the contract according to its plain wording, the court rejected reliance on subjective understanding or subsequent documents.

The application was dismissed and the lender was awarded substantial indemnity costs.

A secured creditor brought an action as assignee of a court‑appointed receiver alleging fraudulent misrepresentation arising from the sale of a commercial property during receivership.

The defendant purchaser had secretly arranged to resell the property for a substantially higher price and directed title to the ultimate buyer while providing transaction documents that falsely described that buyer as the purchaser under the receiver’s agreement of purchase and sale.

The defendant moved for summary judgment dismissing the claim.

The court held that although the defendant had no initial duty to disclose the flip transaction, the closing documents contained express misrepresentations and misleading statements that constituted fraudulent misrepresentation.

The motion was dismissed and liability was determined, with causation and damages to be addressed in subsequent proceedings.

The appellant corporation appealed a decision of the Ministry of Revenue refusing to cancel deferred land transfer tax under s. 3(11) of the Land Transfer Tax Act.

The Ministry argued that registration of a development agreement constituted a conveyance or instrument evidencing the disposition of a beneficial interest in land, thereby triggering the tax.

The court held that the registered development agreement merely referenced the appellant as owner and did not identify the specific transfer of beneficial interest from the affiliated corporation.

As a result, it did not constitute an instrument evidencing the disposition under the statute.

The appeal was allowed and the Minister was directed to vacate the disallowance and return the funds.