Real Estate Law - OCA

The appellant appealed an order denying him costs and expenses incurred in realizing on a mortgage security.

The Court of Appeal upheld the motions judge's finding that there had been no default by the mortgagors and no waste committed, meaning the costs were not recoverable.

The court also dismissed the appellant's claims of procedural errors and bias, and upheld the denial of a certificate of pending litigation.

The respondents' cross-appeal was allowed, deleting a $5,000 payment previously awarded to the appellant for expenses, as there was no default to justify it.

The appellant's wife forged a power of attorney in his name to obtain mortgages from the respondents to pay off gambling debts.

The appellant, who was unaware of the fraud, argued the mortgages were void.

The motion judge granted summary judgment to the respondent mortgagees, finding the mortgages valid under the Land Titles Act.

The Court of Appeal dismissed the appeal, holding that under sections 78(4) and 155 of the Land Titles Act, the mortgages, having been given for valuable consideration and without notice of the fraud, were effective once registered.

The appellant blocked a channel between his property and the respondents', causing water to back up.

The trial judge found the channel was a natural watercourse, not merely surface water, and ordered the appellant to remove the barrier and pay damages.

On appeal, the appellant argued the trial judge erred in classifying the partially artificial channel as a natural watercourse and in finding it maintained its character downstream.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's conclusion that the channel was a well-defined natural watercourse where it was blocked.

The appellants appealed a trial judgment dismissing their claim for conveyance of lands and granting the respondent's counterclaim for occupation rent based on unjust enrichment, trespass, and registering a certificate of pending litigation without a reasonable claim.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's refusal to allow the appellants to discontinue their action on the first day of trial, her decision to allow post-trial pleading amendments, or her assessment of damages for trespass and the aborted sale.

The appellant, a former owner of a Toronto property, retained an interest in the property's surplus density through a Density Agreement registered on title.

The property was subsequently sold to a company that later sought creditor protection under the CCAA.

A court-approved Settlement Order vested the property in the respondent 'free and clear' of claims.

The respondent successfully applied to the Superior Court to discharge the Density Agreement from title.

On appeal, the Court of Appeal held that the Settlement Order only applied to assets the debtor company actually owned, which did not include the surplus density.

The appeal was allowed and the Density Agreement remained on title.

The respondent owner built four rental buildings that were approved and inspected by the appellant municipality.

It was later discovered the buildings lacked required firewalls, leading to the tenants vacating and a mortgage shortfall.

The municipality admitted liability for negligence at trial.

On appeal, the municipality argued the owner was contributorily negligent for the defective plans submitted by its contractor.

The Court of Appeal dismissed this ground, finding no evidence the contractor breached the standard of care and upholding the trial judge's finding that the owner and contractor were not joint venturers.

The judgment amount and set-off were corrected on consent.

The appellants appealed a summary judgment dismissing their claim for specific performance of an agreement of purchase and sale of land.

The appellants had failed to pay the deposit within the stipulated five days, and the vendors treated the agreement as at an end.

The Court of Appeal dismissed the appeal, finding the motion judge was entitled to conclude that the appellants knew an oral comment by the vendors' representative was not legally binding to amend the agreement or waive rights.

The appellant mortgaged several properties to Royal Trust.

Following default, Royal Trust sold the properties under power of sale and sued for the deficiency.

The appellant counterclaimed, alleging the sales were improvident and Royal Trust acted in bad faith.

The trial judge awarded judgment to Royal Trust for a portion of the deficiency and dismissed the counterclaim.

On appeal, the appellant argued the trial judge erred in his findings on improvident sale, bad faith, and costs.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's reliance on valuation evidence, his rejection of the bad faith claims, or his exercise of discretion regarding costs.

The appellant challenged the validity of a bank charge renewal agreement dated October 31, 2000.

However, she did not challenge the validity of the prior renewal agreement or the underlying bank charge.

The Court of Appeal held that even if the October 2000 renewal were set aside, the respondent bank was entitled to partial summary judgment for possession due to the failure to discharge the bank charge when it matured in October 2000.

The appeal was dismissed.

The appellant husband appealed an order approving an agreement of purchase and sale for a property and granting a vesting order to the purchaser.

The Court of Appeal denied the appellant's request for an adjournment to retain counsel.

The court dismissed the appeal, finding no palpable and overriding error in the motion judge's factual findings and concluding that the appeal was moot because the property had already vested in the purchaser.

The appellant town appealed a trial judge's decision declaring that a parcel of land was conveyed to it by mistake and was held in a resulting trust for the respondent developer.

The Court of Appeal upheld the trial judge's findings that the conveyance was an inadvertent error by the respondent's real estate solicitor.

The Court also agreed that res judicata and limitation periods did not bar the claim, and declined to interfere with the trial judge's discretion to grant equitable relief despite the respondent's failure to convey other lands under a subdivision agreement.

The appeal was dismissed.

The appellant and respondent owned adjacent bush lots.

A dispute arose over the boundary line, with the appellant relying on an old fence and the respondent relying on a recent survey.

The Director of Titles determined that the fence was the best evidence of the original boundary.

The Divisional Court reversed this decision.

On further appeal, the Court of Appeal restored the Director's decision, finding that the appropriate standard of review was reasonableness and that the Director reasonably applied the surveyors' hierarchy of evidence to conclude the fence marked the boundary.

Following the release of the appeal decision, the parties disagreed on the settlement of the formal order regarding whether it should specify the date of termination of the commercial lease.

The Court of Appeal held that the omission of the termination date could be rectified under Rule 59.06 and determined by the remaining justices under s. 123(3) of the Courts of Justice Act.

The Court declared the lease was effectively terminated on November 19, 2001, noting this does not inhibit the trial judge's discretion on relief from forfeiture.

In a supplementary endorsement, the Court of Appeal clarified its previous order regarding a commercial lease dispute.

The Court confirmed that the trial of the issue was ordered only on Part 4 of section 444.1(1) of the Municipal Act, as the offer to lease entered into before June 11, 1998, satisfied Part 1 of the section.

The appellants appealed a decision regarding their right to an electricity connection under s. 28 of the Electricity Act.

The Court of Appeal dismissed the appeal, finding that the appellants do not have an unqualified right to connection because their property can only be accessed over a third party's property and does not lie 'along any of the lines of the distribution system'.

The court held that Toronto Hydro's conditions of service requiring easements are reasonable and fall within its regulatory scheme.

The appellant appealed an order of the Superior Court of Justice directing the sale of a property.

The Court of Appeal found no error in the application judge's exercise of discretion in ordering the sale.

The appeal was dismissed with costs fixed at $7,500.

The appellants appealed a summary judgment dismissing their action against the municipality for abuse of public office and conspiracy to injure.

The appellants alleged that the municipality passed zoning by-laws prohibiting 'monster' homes with the true purpose of preventing student housing.

The motion judge found no genuine issue for trial, concluding there was no evidence the by-laws were directed solely at the appellants or that student housing was specifically targeted.

The Court of Appeal found no palpable and overriding error in the motion judge's assessment of the evidence and dismissed the appeal, requesting further written submissions on the issue of costs.

The appellant tenant sought to renew a cottage lease with the respondent municipality.

The municipality argued the renewal clause was void for uncertainty regarding the duration of the term, and that it lacked the power to enter the renewal without Ontario Municipal Board approval.

The application judge found the renewal clause void for uncertainty.

The Court of Appeal reversed, holding that the duration of the renewal term could be ascertained from the lease's express terms.

The Court also held that the municipality was exercising its proprietary powers, not divesting legislative powers, and that OMB approval was not required because no costs were to be raised in a subsequent year.

The appellants appealed a trial judgment dismissing their claims against the vendor regarding a real estate transaction.

The Court of Appeal upheld the trial judge's finding that the appellants had agreed to purchase the property subject to a lease, an option to purchase, and an encroachment noted on the sketch attached to the agreement of purchase and sale.

The appeal was dismissed with costs awarded to the respondent.

The appellant and respondent are neighbours involved in a property dispute over a three-foot right of way.

The application judge found that the respondent had obtained title by adverse possession to portions of the right of way based on the existence of a fence and a retaining wall.

On appeal, the Court of Appeal found that the application judge erred, as the evidence did not establish that the respondent's use was exclusive or excluded the appellant, nor did it overcome the presumption that possession referable to a lawful title is not adverse.

The appeal was allowed and the order below set aside.