Real Estate Law - OCA

The appellant appealed a trial judgment awarding the respondent over $4 million in damages for the lost opportunity to develop a shopping plaza after the appellant repudiated an oral agreement to be the anchor tenant.

The appellant argued the trial judge erred in finding an independent oral agreement, assessing damages, and failing to consider post-agreement conduct.

The respondent cross-appealed the trial judge's 50% reduction of its disbursements.

The Court of Appeal dismissed both the appeal and cross-appeal, finding no palpable or overriding errors in the trial judge's factual findings or exercise of discretion.

The appellant, who was self-represented at trial, appealed a judgment regarding a commercial lease dispute.

He argued the trial judge failed to give him a fair opportunity to present his defence by not allowing him to call a specific witness.

The Court of Appeal dismissed this ground, finding the trial judge afforded a reasonable opportunity and properly exercised discretion, as the appellant provided no summary of the proposed relevant evidence.

However, the Court allowed the appeal in part regarding damages awarded for the appellant's failure to abide by the lease's closing hours.

The Court found the fine provision oppressive and not a genuine pre-estimate of damages, reducing the judgment by $4,040.50.

The appellants appealed a trial judgment awarding the respondent damages for the costs of correcting a stone embankment that was not erected in accordance with a site plan agreement, as well as costs of the action.

The Court of Appeal upheld the trial judge's findings on liability and damages, noting the embankment was unstable and unsafe.

However, the Court allowed the appeal regarding costs, finding the trial judge erred in her discretion, and reduced the trial costs award from $102,981.64 to $60,000.

The appellants appealed a summary judgment finding them liable on a mortgage.

They argued they were not liable because they did not sign the agreement of purchase and sale, although their son directed title to be taken in all three names and they signed the mortgage.

The Court of Appeal dismissed the appeal, agreeing with the motions judge that the defence of non est factum was answered by Marvco Colour Research Ltd. v. Harris, and that bald allegations of fraud did not raise a triable issue.

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 appellants appealed an order rectifying a mortgage to include interest and costs.

The Court of Appeal dismissed the appeal, finding convincing evidence that rectification was required to reflect the parties' prior agreement, specifically a guarantee where the appellant agreed to secure the principal amount along with interest and costs.

The notation 'nil' on the mortgage was contrary to this prior agreement.

The appellants appealed a summary judgment enforcing a mortgage guarantee, arguing the cause of action was barred by the 10-year limitation period under the Limitations Act because the mortgage fell into default in 1991.

The Court of Appeal dismissed the appeal, finding that a 1994 mortgage renewal brought the mortgage into good standing and that subsequent payments by the debtor restarted the limitation period.

Although the motion judge erred in her treatment of the appellant's signature evidence, this did not affect the correctness of the disposition.

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.

The appellants appealed a trial judgment, arguing that the trial judge's remarks during closing submissions created a reasonable apprehension of bias and that the respondent failed to mitigate damages.

The Court of Appeal dismissed the appeal, finding that the trial judge's comments were merely instructive cautions to junior counsel and did not indicate pre-determination.

Furthermore, the court upheld the trial judge's finding that the respondent's decision not to proceed with the property purchase was driven by uncertain septic system repair costs, meaning the duty to mitigate was not engaged.

The appeal was dismissed with costs fixed at $10,000.

The appellant appealed a summary judgment decision finding that the services it provided were real estate services under the Real Estate and Business Brokers Act.

The Court of Appeal allowed the appeal, holding that the scope of services to be provided was a matter of factual dispute requiring a trial to determine the precise services and assess them against the legislative language.

The appellant limited partnership appealed the dismissal of its application for declaratory and mandatory relief regarding a Sale and Dissolution Agreement.

The dispute centered on whether a conditional offer to purchase real estate satisfied the agreement's requirement that the property be 'sold' before the listing period expired.

The Court of Appeal held that in the commercial context of the agreement, which aimed to provide a clear end to the listing period and trigger a standstill obligation, the word 'sold' meant an unconditional sale.

The appeal was dismissed.

The appellants appealed a trial judgment regarding a real estate transaction involving misrepresentations.

The Court of Appeal allowed the appeal in part, finding no evidentiary basis to hold Mona Dreiser liable for the misrepresentations and dismissing the action against her.

The Court also found the trial judge's damages award amounted to double recovery, as the respondent had already received clear title through the discharge of a vendor-take-back mortgage.

Damages were varied to $3,500, representing the difference between the amount paid and the actual market value.

The appellant appealed a trial judgment finding that no binding agreement was reached between the parties.

The Court of Appeal dismissed the appeal, holding that it was open to the trial judge to find that the tenant's identity was a material issue and that the parties did not reach a consensus ad idem on that essential issue.

Costs were awarded to the respondents in the amount of $5,000.

The appellants appealed a trial judgment regarding the use of property.

The Court of Appeal upheld the trial judge's finding that the continuous use of the property was permissive, noting the trial judge was entitled to consider the nature of the use, the understanding of participants, and the effect on the property.

The appeal was dismissed with costs awarded to the respondents.

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 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 landlord appealed the dismissal of its application for a declaration that a commercial lease was terminated because the tenant sublet the premises without consent.

The Court of Appeal allowed the appeal, finding that the landlord's prior consents to subleases did not authorize the new sublease.

The Court held that section 20(7) of the Commercial Tenancies Act does not preclude resort to the court's equitable jurisdiction to grant relief from forfeiture under section 98 of the Courts of Justice Act.

The issue of whether the tenant was entitled to relief from forfeiture was referred for trial.

The appellants appealed an order denying an injunction to prevent the sale of a property.

The parties had agreed on the form of the order, which included a paragraph that appeared to be a final determination on the authority of the majority to sell the property.

The Court of Appeal noted that the motion judge's reasons did not amount to a final determination of this issue, and counsel agreed it remained a live issue for trial.

The Court allowed the appeal to the extent of striking out the paragraph that appeared to be a final order, while maintaining the denial of the injunction.

Costs of $3,000 were awarded to the respondents.

The appellant vendor agreed to sell commercial land to the respondent purchaser, conditional on obtaining severance approval under the Planning Act.

The Committee of Adjustment granted severance but required the vendor to construct and dedicate a road extension.

The vendor attempted to terminate the agreement, arguing the condition was unreasonable and frustrated the contract.

The purchaser sued for specific performance.

The Court of Appeal upheld the trial judge's decision granting specific performance, finding that the contract clearly obligated the vendor to obtain necessary consents at its expense, the doctrine of frustration did not apply as the condition was foreseeable, and the property was unique.