Real Estate Law - OCA

The appellant appealed a finding that he breached a consent order prohibiting him from maintaining outside storage in his rear yard exceeding 75% lot coverage.

The appellant argued that 'lot coverage' included the area covered by a garage and sheds, meaning he could use 100% of the remaining open area for storage.

The Court of Appeal upheld the motions judge's interpretation that the order restricted the appellant to using 75% of the open areas of the lot as a whole for outside storage.

The appeal was dismissed.

The tenant obtained creditor protection under the CCAA and sent a letter to the landlord repudiating its commercial lease.

The landlord did not acknowledge or accept the repudiation.

The tenant subsequently went bankrupt, and the trustee in bankruptcy disclaimed the lease, disallowing the landlord's claim for unrecoverable expenses for the remainder of the lease term.

The landlord's successor appealed the dismissal of its motion to set aside the disallowance.

The Court of Appeal dismissed the appeal, holding that an unaccepted repudiation does not terminate a lease, and therefore the lease remained in effect at the date of bankruptcy and was subject to the trustee's statutory disclaimer.

The parties were joint venturers in property development who had a falling out, leading to the appointment of a Receiver to sell properties in Waterloo, London, and Oshawa.

The motion judge approved the Receiver's amended sales process, which included a stalking horse offer from the respondent, despite finding that the respondent had engaged in tactical conduct to derail the original sales process.

On appeal, the Court of Appeal held that the motion judge erred by disregarding the respondent's conduct when exercising her discretion, as the conduct undermined the integrity of the court-supervised sales process.

The appeal was allowed in part, and the Waterloo property was ordered sold to the appellant in accordance with his original bid.

The appellant appealed a judgment fixing the amounts owing under a commercial lease.

The Court of Appeal dismissed the appeal, finding no error in the application judge's interpretation of the offer to lease and renewal document.

The court also found no unfairness in the application judge fixing the actual amounts owing, as the appellant had a fair chance to present its position on quantification.

The appellant appealed a judgment enforcing a mortgage guarantee.

The appellant argued there was an implicit understanding that he would not be liable under the guarantee until the full mortgage amount was advanced, and that the respondent's failure to pursue $50,000 in a Crown forfeiture proceeding precluded the claim.

The Court of Appeal dismissed the appeal, finding no support for the implicit understanding in the mortgage or commitment letter, and holding that the failure to pursue the funds in the forfeiture proceeding did not preclude the claim against the guarantor.

The appeal was dismissed with costs.

The appellants appealed a trial judgment finding them liable for solicitor negligence in failing to seek instructions on whether a mortgage should be registered on all three parcels of land.

The Court of Appeal dismissed the appeal, finding that any error regarding issue estoppel had no effect on the outcome, as the measure of damages would be the same.

The Court also upheld the trial judge's award of compound interest at the mortgage rate of 8.4 percent, confirming that compound interest can be awarded as compensation in a solicitor's negligence case rooted in a mortgage transaction.

The appellant real estate brokerage claimed a commission from the respondents based on an exclusive listing agreement.

The respondents had entered into a lease agreement and an agreement of purchase and sale with a third party during the extended term of the listing agreement.

The appellant argued this amounted to a completed transaction or an option to purchase.

The Court of Appeal upheld the application judge's dismissal of the claim, finding that the transaction was a lease pending a future sale, and any ambiguity in the broker-drafted agreement must be resolved in favour of the respondents.

The appellant judgment creditor attempted to enforce a judgment through a sheriff's sale of the debtor's home.

The sheriff required mortgage discharge statements, which the respondent mortgagees refused to provide citing privacy concerns.

The Court of Appeal upheld the application judge's finding that the Personal Information Protection and Electronic Documents Act (PIPEDA) prohibited the disclosure of the mortgage statements without the debtor's consent, as they constituted personal information and no statutory exemption applied.

The appellant appealed an order striking out his statement of claim, declaring him a vexatious litigant, and prohibiting further motions.

The Court of Appeal upheld the striking of the claim against one respondent for failing to articulate a valid cause of action.

However, the court set aside the vexatious litigant declaration because no notice was given, and set aside the prohibition on further motions as the appellant's conduct did not meet the threshold.

The court also granted the appellant leave to amend his statement of claim regarding alleged breaches of the Condominium Act and unjust enrichment, while upholding the striking of the remainder of the pleading.

The appellant appealed a trial judgment concerning a property boundary and adverse possession dispute.

The Court of Appeal dismissed the appeal, finding that the trial judge adequately addressed the boundary issue, properly accepted the respondents' expert evidence, and made no reversible error regarding adverse possession.

Costs were awarded to the respondents.

The appellant builder appealed a motion judge's decision refusing to stay a negligence claim in favour of arbitration.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that the arbitration clause did not encompass claims in negligence.

Furthermore, because the homeowner's claim involved other parties not bound by the arbitration agreement, the motion judge properly exercised his discretion under s. 7(5) of the Arbitration Act, 1991 to refuse a partial stay to avoid a multiplicity of proceedings.

Under s. 7(6) of the Act, this discretionary decision was unappealable.

The appellant tenant appealed a judgment dismissing its application under s. 23(2) of the Commercial Tenancies Act for an order finding that the respondent landlord unreasonably withheld consent to a lease assignment.

The Court of Appeal found that while the application judge set out the correct test, he erred by failing to consider whether the landlord's refusal was unreasonable in fact because it was designed to achieve a collateral purpose or benefit.

The appeal was allowed, the judgment set aside, and the matter remitted for a new hearing.

The mortgagee appealed the trial judge's decision to reduce the interest rate on the mortgage and deny costs.

The Court of Appeal allowed the cross-appeal, holding that the mortgagee was entitled in law to the interest rate called for in the mortgage, and that delay in bringing the action within the limitation period did not justify a reduction.

The court also awarded costs of the trial and the appeal to the mortgagee, noting that success was no longer divided and the judgment exceeded the offer to settle.

The appellant appealed a trial judge's finding that the transferors of property did not intend to create a trust.

The Court of Appeal held that the intention to create a trust is a finding of fact, reviewable only for palpable and overriding error.

The court found that the mere presence of the words 'in trust' in the transfer document was not determinative, and there was evidence supporting an absolute transfer, including nominal consideration and the transferee's labour and devotion to his parents.

The appeal was dismissed.

The appellant appealed a judgment ordering him to pay the respondent the shortfall from a mortgage default and subsequent power of sale.

The appellant argued he was not properly served with the Notice of Sale because it was sent to the abandoned mortgaged property rather than his known address in the United States.

The Court of Appeal dismissed the appeal, finding that service was in accordance with the Mortgages Act and that the appellant was well aware of the default.

The court also upheld the motion judge's finding that there was no triable issue regarding whether the sale was provident.

The appellant appealed a motion judge's decision regarding the amounts required to redeem a mortgage.

The Court of Appeal dismissed the appeal, finding that the appellant could not raise the respondent's entitlement to redeem for the first time on appeal.

The Court upheld the motion judge's findings that the parties had settled outstanding costs for $20,000 and that the appellant was not entitled to claim unpaid management fees for time spent by its principal, as these were not expenses actually incurred under the Standard Charge terms.

The purchasers entered into an agreement to buy land, but it was later discovered the vendor owned 12% less land than described.

The purchasers sought specific performance with an abatement of the purchase price.

The trial judge dismissed the claim for an abatement and allowed the vendor's counterclaim for delay damages.

On appeal, the Court of Appeal reversed the decision, holding that a purchaser is generally entitled to specific performance with an abatement where the vendor cannot convey the whole property, and the trial judge erred in his application of equitable principles.

The appeal was allowed, the abatement granted, and the counterclaim dismissed.

The respondents sought a declaration that a route across the appellant's land was an access road under the Road Access Act.

The trial judge found an access road existed and granted an injunction allowing the respondents access.

The trial judge also found the appellant in contempt for breaching interim orders.

On appeal, the Court of Appeal set aside the injunction because it was not properly before the trial judge, and set aside the finding that an access road existed because the trial judge failed to properly consider evidence of overgrowth and the respondents' actions in clearing the route.

The matter was remitted for re-determination.

The finding of contempt was upheld.

The appellant municipality purchased an abandoned railway line and developed it into a trailway.

When adjoining landowners demanded fencing under the Line Fences Act, the municipality passed a by-law designating the trailway as a public highway to exempt itself from the fencing obligation.

The application judge quashed the by-law, finding it was passed in bad faith to avoid the cost of fencing.

The Court of Appeal dismissed the municipality's appeal, holding that while courts owe deference to municipal decisions, good faith remains a central foundation for the validity of a by-law, and the record supported the finding of bad faith.

The appellant's home was fraudulently transferred to an impostor who then mortgaged the property to the respondent.

The respondent registered the mortgage without knowledge of the fraud.

The appellant sought to set aside the mortgage.

The Court of Appeal held that the Land Titles Act operates on the theory of deferred indefeasibility.

Because the respondent acquired its interest directly from the fraudster, it was an intermediate owner and its charge was invalid against the true owner.

The appeal was allowed and the mortgage was set aside.