Francy Beth Kussner

The applicant, BRL Realty Limited, sought a declaration that its agreement to sell an office building, characterized as a chattel, to Equinix Canada Ltd. did not contravene the subdivision control provisions of the Planning Act.

The court dismissed the application, holding that despite the parties' contractual characterization, the building remained a fixture and thus "land" for the purposes of the Act.

Consequently, the proposed transfer and resulting severance from the remainder of the subject lands would contravene s. 50(5) of the Planning Act.

The applicant sought to rescind a real estate Agreement of Purchase and Sale for vacant land due to an undisclosed easement registered on title, which restricted building height to 1.5 metres for a "view corridor." The respondents argued the applicant was aware of the easement or should have been due to MLS listing disclosure.

The court held that an encumbrance on title must be specifically disclosed in the Agreement of Purchase and Sale to ensure certainty.

It found that the applicant's solicitor's letter, sent prior to the requisition date, constituted a valid objection to title as contemplated by the agreement.

Consequently, the court declared the agreement at an end and ordered the return of the applicant's deposit.

The appellant, a vendor of undeveloped land, appealed a Superior Court judgment requiring it to pay $407,582 in development-related costs as a condition of obtaining a severance consent from the municipality.

The Agreement of Purchase and Sale contained a clause permitting the vendor to refuse onerous or unreasonable severance conditions.

The application judge decided the case on the basis of a zoning clause not raised by the parties, constituting a denial of procedural fairness.

The Court of Appeal allowed the appeal, finding that requiring a non-developing vendor to pay development costs was unreasonable under the contract, and that the respondent purchaser bore the obligation to satisfy such conditions or terminate the agreement.