Michael W. Carlson

The applicant appealed the City of Toronto's refusal of a Zoning By-law Amendment application to permit a 49-storey mixed-use building.

At a Case Management Conference, the Ontario Land Tribunal scheduled a 15-day hearing and directed the parties to submit a final Procedural Order and Issues List.

The Tribunal also advised the parties to consider mediation.

At a Case Management Conference regarding an appeal of the City of Toronto's refusal of a zoning by-law amendment for a 49-storey mixed-use development, the Ontario Land Tribunal considered requests for Party status.

The Tribunal granted Party status to three adjacent property owners—The Badminton and Racquet Club of Toronto, Allenby Gardens Home Corp., and Gerenby Investments Limited—finding they had direct interests in the appeal and their involvement would assist the Tribunal.

A second Case Management Conference was scheduled.

The appellant appealed the dismissal of his claims for adverse possession or a prescriptive easement over parts of the respondents' neighbouring cottage property, which he had historically used to access Lake Erie.

The Court of Appeal upheld the trial judge's findings that the appellant's use of the lands was with tacit permission as an act of good neighbourliness, rather than acquiescence, and that the easement was not reasonably necessary given alternative access routes.

The court also affirmed the dismissal of the adverse possession claim, as the appellant failed to establish an intention to exclude the true owners.

The appeal was dismissed with costs.

The applicants sought a declaration of a legal non-conforming use for outdoor storage and business operations on their property, arguing the use was lawful under a 1984 zoning by-law.

The court dismissed the application, finding the use was not lawful under the by-law as it was not a home-based business occupying less than 25% of the floor area and involved the prohibited storage of goods.

The respondent municipality brought a motion for civil contempt against the applicants for breaching a 1994 order prohibiting the dumping of fill on the property.

The court dismissed the contempt motion, exercising its discretion not to make a finding of contempt because the applicants genuinely believed the fill was being offered by the municipality for a road project.

The moving party (Murphy Trust) sought disclosure of documents from the plaintiff and its affiliated corporation regarding water haulage to a construction site.

The moving party alleged the plaintiff was seeking an easement for improper purposes and thus came to the court with 'dirty hands'.

The court dismissed the motion, finding the moving party's claim that water was taken from the subject properties for a construction project was mere speculation and did not warrant the requested production.

The plaintiffs claimed trespass and unjust enrichment over an historic laneway due to the defendants' encroachments (loading ramp, sign box, HVAC system).

The defendants challenged the plaintiffs' title, arguing it was flawed or the laneway was public.

The court found the plaintiffs had sufficient possessory title, rejecting the defendants' arguments based on *jus tertii*, defective transfers, and public lane status.

The court found the defendants liable for trespass and unjustly enriched, awarding damages based on a reconstructed encroachment fee.

A mandatory order for removal of encroachments was deemed premature, leaving open options for modification or renewed agreement.

The defendant David Ryan brought a motion for a status hearing seeking dismissal of the action due to delay.

The court allowed the action to continue but noted the plaintiffs' significant indulgence and lack of diligence in advancing the claim.

Despite the plaintiffs meeting the onus to explain the delay, the court found the defendant's opposition to an extension of time was not unreasonable.

Consequently, the court ordered no costs for the motion.

The defendant brought a motion for a status hearing under Rule 48.14(5) of the Rules of Civil Procedure, seeking to dismiss the plaintiffs' lawyer negligence action for delay.

The plaintiffs opposed, arguing a prior order scheduling a summary judgment motion precluded dismissal.

The Master found the prior order did not prevent the status hearing but concluded the plaintiffs provided an acceptable explanation for the delay and rebutted the presumption of prejudice.

The motion to dismiss was denied, and the action was permitted to continue.

The applicants purchased a home in 1988, unaware that a 1984 mortgage registered by the previous owners had not been discharged.

In 2017, the applicants discovered the undischarged mortgage and requested its removal, but the respondent mortgagee demanded nearly $1 million for its discharge.

The applicants brought an application to declare the mortgage void.

The Superior Court of Justice granted the application, finding that the respondent's right to enforce the mortgage had been extinguished by the ten-year limitation period under the Real Property Limitations Act, as no payments or acknowledgments had been made since 1985.

The court directed the removal of the mortgage from title and awarded costs to the applicants.

The applicants challenged the authority of the respondent corporation's de facto Chief Operating Officer to retain legal counsel to represent the corporation in an oppression and receivership application.

The court found that although the COO was not formally appointed in accordance with the shareholders agreement, she was informally appointed by the late controlling director in good faith.

The court held that as the de facto COO, she had the authority to appoint counsel to represent the corporation's interests.

The applicants sought orders regarding an easement for pedestrian passage over the respondents' property, including the permanent removal or opening of a gate, prevention of blocking the easement, prevention of moving personal property from a public beach, and clarification of guest rights.

The court largely dismissed the application, finding that the gate did not substantially interfere with the easement and that the applicants had no legal right to store chattels on the public beach.

However, the court granted a varied order preventing the respondents from blocking the easement for the applicants and specific categories of guests, and clarified the scope of the easement accordingly.

Costs were presumed in favour of the respondents.

The applicant applied for an order requiring the respondents to remove encroachments from a three-foot strip of land owned by the applicant but subject to a right-of-way and restrictive covenants in favour of the respondents.

The applicant had successfully applied to the land registrar to delete the restrictive covenants pursuant to s. 119(9) of the Land Titles Act, which deems covenants without a fixed expiry date to expire after 40 years.

The respondents argued the original deed's use of the word 'forever' constituted a fixed period.

The Superior Court held that 'forever' indicated the covenants were perpetual and lacked a fixed expiry date, meaning they were caught by s. 119(9) and deemed expired 40 years after registration.

The application was allowed, and the respondents were ordered to remove the encroachments.

The applicant brought a motion for contempt against the respondent for alleged non-compliance with consent orders regarding the sale of condominium units and the deposit of revenues.

The court dismissed the contempt motion, finding the test for contempt was not met beyond a reasonable doubt, particularly as the underlying orders were moot due to the sale of units.

However, the court awarded the applicant costs for the overall application, distinguishing between periods of litigation and finding the respondent's delays after the initial orders unjustified.

The defendants (vendors) moved for summary judgment to dismiss the plaintiff's (purchaser's) claim for the return of a $150,000 deposit and to grant their counterclaim for damages of $900,000 following an abortive real estate transaction.

The court dismissed the motion, finding that the evidentiary record was inadequate and that there were numerous genuine issues requiring a trial, including alleged physical defects in the property and whether an oral agreement to reduce the purchase price was reached.

However, the court exercised its jurisdiction under Rule 20.05 to specify certain material facts not in dispute, such as the original purchase price being $2,250,000.

The applicant sought a declaration of ownership by adverse possession over a narrow strip of backyard land enclosed by a long-standing fence between neighbouring residential properties.

The court held that the applicant and his predecessors had established actual possession, intention to exclude, and discontinuance of possession by the true owner for the statutory period before conversion to land titles.

The court treated the case as one of mutual mistake rather than knowing trespass, lowering the threshold for intention to exclude.

The application was granted and the land registrar was ordered to amend the parcel register accordingly.

Hercules Moulded Products Inc. appealed a summary judgment dismissing its claims against Stewart Title Guaranty Company for indemnification under a Commercial Lender Endorsement title insurance policy.

The claims arose from problems with two adjacent properties in Windsor, Ontario that Hercules held as security for a mortgage.

The issues included: (1) the cost of filling an excavation ordered by the City of Windsor, added to the tax bill; (2) development agreements registered on title; and (3) an alleged encroachment.

The Court of Appeal affirmed the dismissal on two primary grounds: first, the excavation matter was excluded from coverage under the policy's non-disclosure provision as it was known to Hercules but not disclosed to Stewart before the policy date; and second, the development agreements and encroachment caused no actual loss or damage as required by the policy.

Two purchasers of condominium units in Trump Tower sought to rescind their agreements of purchase and sale and recover their deposits based on material changes to a hotel unit maintenance agreement disclosed years after the initial purchase agreements.

The respondent developer argued that the purchasers' notices of rescission did not comply with statutory requirements because they used the word "terminate" rather than "rescind" and did not explicitly reference the relevant statutory provision.

The Court of Appeal upheld the application judge's decision, holding that the Condominium Act, as consumer protection legislation, must be interpreted generously in favour of consumers.

The court found that the notices sufficiently conveyed the purchasers' intention to undo the transactions based on material changes, and that the ten-year limitation period under the Real Property Limitations Act applied to claims for return of deposits.

The plaintiff, Hercules Moulded Products Inc., and the defendant, Stewart Title Guaranty Company, brought cross-motions for summary judgment regarding coverage under a commercial title insurance policy.

Hercules sought to recover losses related to a municipal by-law violation (dirty yard), development agreements, and an alleged building encroachment on two properties.

Stewart Title sought summary dismissal, arguing no coverage or applicable exclusions.

The court found no coverage for the by-law violation due to the work order being issued post-policy and the plaintiff's failure to disclose known issues.

It also found no actual loss demonstrated from the development agreements or the alleged encroachment, and that exclusions applied due to the plaintiff's knowledge and failure to provide timely notice.

The plaintiff's motion was dismissed, and Stewart Title's motion for summary dismissal was granted.

Following a successful application by the respondents for a declaration that a private driveway was not an access road under the Road Access Act, the respondents sought substantial indemnity costs.

The applicants argued that costs should be on a partial indemnity scale and reduced by the amount the respondents received from their title insurer.

The court awarded partial indemnity costs and held that the private insurance exception did not apply because the applicants were not tortfeasors.

The costs award was reduced by the title insurance payout to prevent double recovery, as costs are for indemnity only.

The appellants blocked a laneway on their property that the respondents used to access their homes.

The right-of-way had been registered on the appellants' title until 1960 but was not renewed within the 40-year expiry period under Part III of the Registry Act.

The application judge granted an injunction protecting the respondents' use of the laneway, relying on s. 113(5)(a)(iv) of the Registry Act, which exempts unregistered rights-of-way that are openly enjoyed and used.

The Court of Appeal dismissed the appeal, holding that s. 113(5)(a)(iv) is not restricted to prescriptive easements and protects once-registered rights-of-way that are no longer validly registered, provided the dominant tenement owners continuously and openly enjoy and use the right-of-way from the expiration of the 40-year period.