Real Estate Law - OCA

The appellants appealed a trial judge's finding that the respondent's carport overhung their property.

The Court of Appeal dismissed the appeal, finding there was sufficient evidence on the record to support the trial judge's conclusion, which the appellants failed to answer with their own evidence.

The appellants appealed a judgment regarding a mortgage dispute involving s. 22 and s. 36 of the Mortgages Act and a tax issue.

The Court of Appeal dismissed the appeal, finding that the trial judge's comprehensive reasons and findings of fact were open to him and there was no basis to interfere.

Costs were awarded to the respondents.

The appellant sued the Crown and the Conservation Authority for breach of contract and negligent misrepresentation arising from an aborted land exchange.

The trial judge dismissed the contract claim but found the Conservation Authority liable for negligent misrepresentation, awarding reduced damages due to a failure to mitigate.

On appeal, the Court of Appeal dismissed the appellant's appeal on damages and allowed the Conservation Authority's cross-appeal, finding that the appellant had not detrimentally relied on the misrepresentation and that the failure of a related sale transaction was not caused by the misrepresentation.

Developers appealed decisions of the Divisional Court regarding the interpretation of 'conflict' under O. Reg. 82/98 between pre-existing subdivision agreements and municipal development charge by-laws.

The Court of Appeal held that the Divisional Court correctly applied a standard of correctness to the Ontario Municipal Board's decisions.

The Court affirmed that a conflict exists only if the subdivision agreement, properly interpreted, precludes the infrastructure charges imposed by the development charge by-law.

The appeals and cross-appeal were dismissed.

The appellants appealed the dismissal of their application for rescission of an Agreement of Purchase and Sale and brought a motion to stay the appeal pending a subsequent action.

The Court of Appeal dismissed the motion to stay, finding the subsequent action was based on facts known at the time of the original application.

The Court also dismissed the appeal, upholding the application judge's interpretation of the Agreement of Purchase and Sale regarding the appellants' right of access.

The moving party, a self-represented mortgagor, sought leave to appeal an order quashing his appeal to the Divisional Court regarding the amount required to redeem a mortgage.

The Court of Appeal agreed the appeal to the Divisional Court was properly quashed because the original order was final, meaning the appeal lay to the Court of Appeal as of right.

Recognizing the moving party's consistent intention to appeal the substance of the original order, the Court treated the motion as one for an extension of time to appeal and granted it.

The Court directed written submissions on the merits of the appeal concerning a disputed prepayment fee.

The appellant appealed a trial judgment dismissing its claim for damages.

The Court of Appeal dismissed the appeal, finding it unnecessary to determine if the trial judge applied the correct test for liability because the trial judge reasonably concluded the appellant failed to prove its damages due to a volatile market.

The Court also upheld the trial judge's discretionary costs order against the guiding mind and principal shareholder of the appellant.

The Crown appealed a trial judgment finding it liable for withheld rent and extensive asbestos re-cleaning costs at a leased property.

Old Colony appealed the finding that it was liable to pay its cleaning contractor, Power Vac.

The Court of Appeal dismissed both liability appeals, finding the Crown's failure to follow safety regulations caused the contamination and labour dispute, and that Power Vac had substantially performed its contract.

However, the Court allowed the Crown's appeal regarding costs, setting aside the trial judge's order that the Crown pay the costs of the separate action between Old Colony and Power Vac.

The appellant commercial landlord appealed a decision allowing the respondent tenant to deduct hydro payments from its gross rent.

The lease contained a general clause stating gross rent included utilities, but a specific clause required the tenant to pay hydro directly to the utility company.

The Court of Appeal allowed the appeal, applying the principle that specific provisions qualify general ones.

The court found the specific requirement to pay hydro directly meant it was not an expense to be paid by the landlord and passed on as part of gross rent, and the tenant was not entitled to deduct these payments.

The appellant appealed an order dismissing their claim that the respondent's mortgage amounted to a fraudulent conveyance.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that there was no evidentiary foundation capable of supporting an inference of fraud.

The tenant appealed a judgment interpreting a commercial lease.

A purchaser agreed to buy all of the tenant's shares, constituting a change in control and a 'transfer' requiring the landlord's consent.

The landlord consented while reserving its rights, and argued that under clause 11.03(b) it was entitled to an amended lease with increased rent.

The tenant argued the landlord's only option was to terminate the lease.

The Court of Appeal upheld the applications judge's finding that the change in control triggered clause 11, obliging the tenant to sign a new lease with increased rental payments, as the tenant's interpretation would render much of the clause ineffective.

The appellant insurer appealed a summary judgment granting the respondent mortgagees coverage under a fire insurance policy after the mortgaged property was destroyed by fire.

The mortgagors had vacated the property, and the mortgagees took control of it but failed to notify the insurer of the vacancy.

The Court of Appeal held that while the vacancy exclusion did not apply to the mortgagees due to the mortgage clause, Statutory Condition 4 did apply.

The mortgagees' actions in taking control of the vacant property constituted a material change in risk within their control and knowledge.

Their failure to notify the insurer voided the policy.

The appeal was allowed and the actions dismissed.

The appellant tenant breached a commercial lease by abandoning the premises.

The respondent landlord subsequently leased the property to a new tenant, with a 10-month overlap of the original lease term.

The tenant appealed the trial judge's calculation of damages, arguing the landlord received a benefit from avoiding a lengthy vacancy period.

The landlord cross-appealed regarding the deduction of tax consultant fees and the apportionment of rent-free periods and improvements.

The Court of Appeal dismissed the main appeal, finding the tenant's mitigation argument was not pleaded and relied on speculation.

The cross-appeal was allowed in part, permitting the landlord to deduct the 50% contingency fee paid to a tax consultant to obtain a property tax rebate.

The appellant tenant appealed a motions judge's decision which found that his lease did not include the basement premises of the property.

The Court of Appeal held that the motions judge ignored relevant evidence, including a note on a schedule attached to the lease and an affidavit from the original landlord confirming the basement's inclusion.

The Court of Appeal allowed the appeal, set aside the motions judge's decision, and dismissed the respondent landlord's application, concluding that the basement was part of the demised premises.

The appellant appealed a trial judgment that limited its damages for lost parking spaces to the value of 20 spaces ($40,650) and dismissed its claim for injurious affection.

The Court of Appeal dismissed the appeal, finding that the trial judge relied on acceptable expert evidence and made no palpable and overriding error in his assessment of damages.

The appellant appealed a decision regarding the interpretation of an agreement of purchase and sale.

The appellant had inserted an earlier date as the acceptance date, which would have shortened the 60-day due diligence period.

The Court of Appeal upheld the motion judge's finding that the contract was created on the date the written acceptance was delivered to the purchaser.

Consequently, the purchaser's withdrawal was within the due diligence period, and it was entitled to the return of its deposit.

The appeal was dismissed.

The appellant landlord appealed a decision interpreting a commercial lease.

The motion judge held the tenant was entitled to a rent reduction for increases in real estate taxes and ordered a reference to determine the apportionment of snow removal costs.

The Court of Appeal allowed the appeal in part, finding the lease only protected the tenant from tax increases resulting from a specific 1998 assessment appeal, not from general rate increases.

However, the Court upheld the order for a reference regarding snow removal costs, finding the lease's audit clause did not preclude it.

The appellant appealed a trial judgment dismissing its claim for loss of opportunity to develop property.

The Court of Appeal endorsed the trial judge's reasons, finding no basis to consider the loss of opportunity a reality, and dismissed the appeal with costs.

The appellant appealed a motion judge's decision dismissing its claim for intentional interference with contractual relations against a condominium corporation.

The condominium corporation had enforced rules prohibiting the rental of units for transient or hotel purposes.

The Court of Appeal dismissed the appeal, finding overwhelming evidence that the units were used for such purposes and that the corporation was statutorily obliged to enforce its rules.

The court also agreed that the appellant failed to raise a triable issue regarding economic loss, as its evidence was merely second and third hand.

The bankrupts and the appellant co-owned two condominium units.

The bankrupts' Statements of Affairs misrepresented the value of the units and the encumbrances, leading the trustee in bankruptcy to discharge without realizing on the assets.

After the trustee's discharge, the appellant obtained discharges of the mortgages, which were effectively unenforceable due to prior litigation.

The trustee learned of the true value, sought reappointment under s. 41(11) of the Bankruptcy and Insolvency Act, and applied for partition and sale.

The appellant opposed, claiming entitlement to the properties.

The Court of Appeal upheld the application judge's decision, finding the trustee was entitled to realize on the assets that existed during the bankruptcy but were not disclosed, and that the trustee was not estopped from doing so.