Real Estate Law - OCA

This is an appeal from a trial judgment that awarded the respondent $600,000 in damages and set aside the transfer of the appellants’ matrimonial home as a fraudulent conveyance.

The trial judge found that one appellant failed to return funds obtained from the respondent for a joint venture that never materialized and subsequently fraudulently conveyed the matrimonial home to his wife for nominal consideration to avoid a breach of trust claim.

The appellants challenged the trial judge's findings of fact regarding the amount owed, fraudulent intent, and the wife's payment of good consideration.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's findings, including the presence of multiple badges of fraud.

The self-represented moving parties sought an extension of time to file their notice of appeal from orders dated July 6, 2023, and September 7, 2023, concerning a dispute over property partition and sale.

The Court of Appeal dismissed the motion, finding no timely intention to appeal, inordinate and inadequately explained delay, and a lack of discernible merit, particularly regarding jurisdictional issues as appeals from Partition Act orders lie with the Divisional Court, and appeals from associate judges' orders lie with the Superior Court or Divisional Court, not the Court of Appeal.

The court also found no error in the lower court's partition and sale order or the associate judge's case management role, and noted significant prejudice to the responding party due to delay.

This appeal concerned the distribution of proceeds from a property sale, specifically regarding the priority of a third mortgage, an alleged equitable fourth mortgage, and a writ of execution.

The appellants, lenders, sought recognition of an equitable fourth mortgage and a specific interest calculation for their third mortgage.

The respondents, execution creditors, challenged the third mortgage's interest rate.

The Court of Appeal allowed the appeal, declaring the existence of an equitable fourth mortgage, but dismissed the appellants' claim for interest to run until full payout.

The respondents' cross-appeal regarding the third mortgage interest rate was dismissed.

This appeal addressed whether a Band Council Resolution (BCR) could be enforced as a by-law under the Indian Act.

Hiawatha First Nation sought a permanent injunction to stop three of its members from building a gas station on the reserve, relying on a BCR that imposed a moratorium on new businesses.

The application judge granted the injunction, treating the BCR as a by-law.

The Court of Appeal found that a BCR is distinct from a by-law and does not have the force of law to create rights and duties for band members or third parties under the Indian Act.

The court emphasized that law-making authority under the Indian Act, particularly when affecting proprietary rights, requires adherence to specific by-law formalities.

Consequently, the appeal was allowed, and the injunction based on the BCR was set aside.

The appellant, Donavan Locke, appealed orders from the Superior Court of Justice dismissing his second and third actions (alleging deceit and conspiracy against his former common-law partner and her lawyers regarding a property transfer) and dismissing his own motions (including a constitutional question and criminal contempt).

The Court of Appeal found no errors in the motion judge's decision, affirming that summary judgment was appropriate due to the appellant's lack of evidence and damages.

The court also upheld the dismissal of the appellant's motions, noting the constitutional question was "ill conceived" and there was no basis for criminal contempt.

The appeal was dismissed, and the appellant was ordered to pay costs to each respondent.

This appeal concerned the assessment of damages in a failed commercial real estate transaction.

The trial judge awarded the respondent (purchaser) damages for the increase in property value and 90% of all development expenses incurred since 2010.

The Court of Appeal allowed the appeal in part, affirming the award for increased property value and wasted expenses, but erred by including expenses incurred under a prior joint venture agreement that had been released.

The Court held that only expenses incurred after the 2013 Agreement of Purchase and Sale were recoverable.

The calculation of rental costs as development expenses was upheld, but the amount was to be limited to the period of the 2013 APS.

The 10% discount applied by the trial judge was upheld.

The appellant, Oslyn Lewis, appealed the dismissal of his action for a real estate commission, which was granted by a motion judge on summary judgment due to the expiry of the limitation period.

The appellant argued that the motion judge erred in finding no tolling agreement, in not allowing him to adduce evidence of psychological incapacity, and in applying the discovery rule.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's decision.

The court affirmed the strict test for tolling agreements, found the fresh evidence regarding incapacity insufficient and inconsistent with the appellant's prior actions, and distinguished the case from situations involving running accounts for limitation purposes.

The appellant's motion to adduce fresh evidence was also dismissed.

The appellants appealed a summary judgment dismissing their action and an order refusing to set it aside, arguing errors in the limitation period finding and their absence from the summary judgment hearing.

They also sought to introduce fresh evidence.

The Court of Appeal dismissed the motion for fresh evidence, finding it lacked due diligence and would not have affected the outcome.

The court upheld the motion judge's finding that the action was statute-barred, as a reasonable person would have discovered the claim shortly after closing, despite the appellants' claim of late discovery of the reporting letter.

This appeal addressed a pre-contractual negligent misrepresentation and the interpretation of a commercial lease.

The trial judge found that the tenant (respondent) reasonably relied on the landlord's (appellant's) negligent misrepresentation regarding free, accessible, and convenient customer parking, and that the entire agreement provision in the lease did not preclude the tenant's claim for damages.

On appeal, the landlord argued the trial judge erred by failing to consider the lease as a whole, specifically articles related to parking, which it contended formed part of the "subject matter" of the lease.

The Court of Appeal dismissed the appeal, affirming the trial judge's finding that customer parking was not the "subject matter" of the lease and that the entire agreement clause did not preclude the claim, applying a deferential standard of review for contractual interpretation.

The appellant, Lynn Larabie, as executrix of her parents' estate, appealed a Superior Court decision that dismissed her application to quash a zoning by-law passed by the Township of Moonbeam.

The by-law rezoned an adjacent property to permit expansion.

The appellant argued the Township failed to provide proper statutory notice under the Planning Act and regulations, and acted in bad faith.

The application judge found the by-law procedurally illegal due to notice failures but exercised discretion not to quash it, finding no bad faith and negligible broader consequences.

The Court of Appeal upheld the application judge's decision, finding no error in the bad faith analysis or the exercise of discretion not to quash the by-law, despite the procedural illegality.

The appellant landlord appealed a judgment that declared its lease termination invalid.

The Court of Appeal dismissed the appeal, affirming that the landlord's notice of termination was invalid because it failed to specify the precise amount of arrears and did not warn the tenant of the intention to terminate, which was required due to prior communications only mentioning interest accrual.

The court also upheld the costs award from the lower court and awarded costs for the appeal to the respondent.

The appellants, Sandeep Singh and 9660143 Canada Inc., appealed an order dismissing their third-party claim against The Nationwide Groups Ltd. The third-party claim alleged that Nationwide's appraisal undervalued a property, leading to a failed real estate transaction.

The Court of Appeal upheld the motion judge's decision, finding that Nationwide did not owe the appellants a duty of care.

The court reasoned that there was no special relationship of proximity between Nationwide and the appellants, as Nationwide was retained by the buyer's lender, and the appellants did not plead reliance on Nationwide's appraisal.

The appeal was dismissed.

This is a costs endorsement following the dismissal of an appeal by the Court of Appeal for Ontario.

The respondents sought full indemnity costs, citing contractual language in mortgage actions and the appellants' "reprehensible conduct" and "scurrilous accusations." The appellants argued the claim was excessive and duplicative.

The court, while acknowledging contractual full indemnity, exercised its overriding discretion due to the complex and overly litigious nature of the case, finding both parties contributed to procedural skirmishes.

The court fixed costs payable by the appellants to the respondents at $170,000, all-inclusive, a reduction from the $190,372 claimed.

The appellants, Melissa Hart and Patricia Hart, appealed the dismissal of their motion to set aside a default judgment obtained by Canada Mortgage and Housing Corporation (CMHC).

The motion, brought under Rule 59.06(2), alleged fraud or newly discovered facts.

The Court of Appeal upheld the motion judge's decision, finding that the appellants failed to act with diligence in seeking to set aside the judgment and did not provide cogent evidence to support their allegations of fraud or new facts.

Previous actions by the appellant Melissa Hart based on similar facts had been dismissed as frivolous and vexatious under Rule 2.1.01.

This appeal concerned a failed condominium purchase where the central issue was the vendor's compliance with the Tarion Warranty Corporation Addendum, specifically regarding the delivery of an occupancy permit or confirmation of occupancy conditions.

The application judge found that no occupancy permit was required and that a letter from the builder was sufficient.

The Court of Appeal found a palpable and overriding error in the application judge's finding that the letter was *delivered* as required by the Addendum.

The evidence showed the letter was merely available for pick-up, not delivered.

The Court allowed the appeal, declared the vendor in breach of the agreement of purchase and sale, and ordered a reference to determine damages, along with costs to the appellants.

This appeal concerned a failed residential real estate transaction where the appellant refused to close, alleging an undisclosed basement defect.

The motion judge granted summary judgment to the respondents (sellers), finding the defect was readily apparent and applying the principle of *caveat emptor*.

The Court of Appeal dismissed the appeal, upholding the motion judge's decision, finding no material error in the analysis, despite acknowledging a minor error in relying on hearsay evidence.

The court emphasized the appellant's delay in raising the issue and his financial difficulties as factors supporting the motion judge's findings.

The appellant, 2460907 Ontario Inc., appealed an order striking its claim for pure economic loss against the respondent, 1521476 Ontario Inc. The claim arose from the respondent's re-entry of premises leased to a third party, 2456787 Ontario Inc., where the appellant intended to operate a restaurant.

The appellant claimed a possessory or proprietary interest in the premises.

The Court of Appeal upheld the motion judge's finding that the appellant lacked such an interest because the respondent had not consented to an assignment of the lease.

Consequently, no duty of care could arise to support a claim for pure economic loss.

The court distinguished the case from relational economic loss precedents due to the absence of any direct relationship between the appellant and respondent.

The appeal was dismissed with costs.

The appellants, condominium owners, appealed a permanent injunction issued by the Superior Court of Justice.

The injunction restricted the male appellant's communication and conduct due to a long-standing pattern of harassment, rude behavior, and interference with the condominium corporation's board and employees, in violation of the Condominium Act.

The Court of Appeal dismissed the appeal, affirming the application judge's jurisdiction, the appropriateness of the injunction under s. 134(3) of the Condominium Act, and the fairness of the proceedings despite the denial of an adjournment and the appellant's failure to file a proper affidavit.

The appellant, Forest Meadows Developments Inc., appealed an order dismissing its application for a declaration that the respondent, Narges Shahrasebi, breached an Agreement for Purchase and Sale (APS).

The core issue was whether the respondent had represented that she would not be able to close on the extended closing date of October 29, 2019, which the appellant argued constituted anticipatory breach.

The Court of Appeal upheld the application judge's finding of fact that no such representation was made, and therefore, there was no anticipatory breach or reasonable reliance by the appellant.

The appeal was dismissed.

This decision addresses a motion to quash an appeal for want of jurisdiction, brought by Toronto Standard Condominium Corporation No. 1466 against Stuart Weinstein.

The Court of Appeal determined that section 49 of the Arbitration Act, 1991, applied, meaning leave was required for the appeal.

Stuart Weinstein, acting in person, then sought leave to appeal.

The court quashed the appeal and refused leave to appeal, finding that the criteria for granting leave were not met.

No costs were awarded.