Real Estate Law - OCA

The tenant (TDL) leased property from a landlord and later signed a postponement and non-disturbance agreement (PNDA) with the landlord's mortgagee.

TDL obtained a judgment against the landlord for damages and costs, with a right to set off the amount against rent.

When the landlord defaulted on the mortgage, the mortgagee went into possession and demanded rent without the set-off.

The Court of Appeal held that under the PNDA, the mortgagee stepped into the landlord's shoes and assumed the existing state of accounts, including TDL's right of set-off.

The appeal was allowed.

The appellant municipality entered into an agreement to sell surplus land to the respondent developer but failed to give public notice of the proposed sale as required by s. 268(3)(c) of the Municipal Act, 2001.

When the municipality refused to close the transaction due to a zoning dispute, the developer sued for breach of contract.

The municipality argued the agreement was void because of its own failure to provide the statutory notice.

The Court of Appeal held that while the statute requires notice to be given before a binding agreement is signed, the failure to do so did not render the contract void or unenforceable, as the statute does not expressly invalidate such contracts and public policy does not favour voiding contracts for technical deficiencies.

The appellant developer appealed a decision dismissing its application to declare a municipality's conveyance of access lands to a respondent developer void.

The municipality had transferred a one-foot reserve and four lots dedicated as a public highway to the respondent to provide road access to landlocked development lands.

The Court of Appeal found that the conveyance constituted a 'sale' of 'surplus' land under s. 193 of the Municipal Act.

The municipality failed to comply with the mandatory procedural requirements of s. 193, including passing a procedure by-law and providing public notice.

Furthermore, the by-law passed under s. 297 to stop up the highway lots did not exempt the municipality from public notice requirements.

The appeal was allowed and the conveyance was declared void.

The appellants defaulted on a commercial mortgage, prompting the respondent mortgagee to issue a Notice of Sale and accept an offer to purchase the property.

The appellants subsequently obtained a higher offer and sought to enjoin the sale, arguing the Notice of Sale was defective and the accepted offer was improvident.

The application judge declined to enjoin the sale, and the sale closed before the appeal was heard.

The Court of Appeal dismissed the appeal, finding the Notice of Sale was reasonable and the mortgagee could not be restrained from exercising its power of sale after entering into a binding agreement in good faith.

The appellants appealed the dismissal of their action for specific performance of a handwritten agreement of purchase and sale for a property.

The trial judge had found that the parties were not ad idem and declined to enforce the agreement, despite finding it contained all essential terms and was not unconscionable.

The Court of Appeal allowed the appeal, holding that the executed written agreement was a clear manifestation of mutual assent and that the vendor's uncommunicated reservations did not support a defence of mistake.

Specific performance was ordered.

The appellant developer sought judicial review of the Minister's process in establishing a development planning area under the Ontario Planning and Development Act, 1994.

The Minister had instructed consultants that the preservation of an agricultural reserve, which included the appellant's lands, was a 'given'.

The appellant argued this breached the statutory requirements for an investigation and public participation.

The Court of Appeal dismissed the appeal, holding that the Minister has broad policy discretion to set parameters for the investigation and survey, and that public consultation outside those defined contours was not required.

The appellants appealed a Divisional Court decision upholding the Ontario Municipal Board's dismissal of their objections to a sand pit licence granted to the respondent.

The appellants argued the OMB erred in its interpretation of the local zoning by-law, its conformity with the upper-tier municipality's official plan, and its regard for the Provincial Policy Statement.

The Court of Appeal dismissed the appeal, finding that under the Planning Act, the unamended by-law remained in force and permitted the sand pit operation, and that the OMB properly considered all required planning issues and evidence.

The appellant condominium corporation appealed the dismissal of its application for an order permitting it to enter the respondents' units to carry out mould remediation.

The corporation argued that the respondents' chosen method of remediation was insufficient and created a dangerous condition under s. 117 of the Condominium Act, 1998.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the application judge's factual findings that the corporation failed to prove a risk of mould spreading to other units.

The Court also held that the deference standard from Dvorchik did not apply because the corporation's remediation requirement was not a formal rule and involved competing statutory rights.

The appellant appealed a trial judge's order regarding his right to occupy a stone house and an award of occupation rent.

The Court of Appeal agreed with the trial judge that the appellant's license to occupy the property was conditional on his continuing as caretaker/manager, and his resignation terminated that right.

However, the Court found no basis for the trial judge's award of occupation rent.

The appeal was allowed in part to set aside the occupation rent award.

The appellants appealed an order regarding their right to renew a mortgage.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that not being in default was a condition precedent to the privilege to renew.

As the mortgage was and remained in default, the appellants could not renew it.

The appellant condominium corporation obtained a compliance order against the respondent unit owner for operating a short-term rental business.

The appellant then added its actual legal and administrative costs to the respondent's common expenses and registered a lien under s. 85(1) of the Condominium Act.

The motion judge discharged the lien, finding that 'additional actual costs' under s. 134(5) did not include legal costs beyond those awarded by the court.

The Court of Appeal allowed the appeal, holding that s. 134(5) permits a condominium corporation to recover its actual legal costs incurred in obtaining the order, including appeal costs, but not enforcement or unrelated administrative costs.

A reference was ordered to determine the proper amount of the lien.

The appellant tenant appealed a decision interpreting a commercial lease provision regarding the reimbursement of realty taxes.

Following 1997 amendments to the Assessment Act, separate tax assessments for individual businesses in the shopping plaza were abolished, resulting in an 'en bloc' assessment for the entire property.

The landlord applied a formula in the lease designed for such an eventuality to allocate taxes.

The Court of Appeal upheld the application judge's finding that the clear language of the lease anticipated this scenario, and the formula was correctly applied since the tenant had not obtained a separate assessment.

The appellant developer appealed a summary judgment dismissing its claim for specific performance of an alleged agreement to purchase development lands for over $45 million.

The appellant argued that the respondents' negotiators had actual or ostensible authority to conclude the agreement.

The Court of Appeal dismissed the appeal, finding no evidence of actual authority and no representations by the principals to support a finding of ostensible authority.

The appellant condominium corporation and the original developer entered into a reciprocal agreement to share expenses for a recreational facility.

The developer's successor in title, the respondent, refused to pay the interim expenses.

The appellant argued that the positive covenant to pay expenses ran with the land or was enforceable under the English benefit and burden or conditional grant exceptions.

The Court of Appeal held that positive covenants do not run with freehold land and declined to adopt the English exceptions, stating that any reform to this area of property law must be undertaken by the legislature.

The appeal was dismissed.

The appellants appealed a summary judgment dismissing their claims against the respondents and a real estate agent.

The appellants argued that a release signed in blank was only to be used if a first real estate transaction did not close, alleging the two transactions were linked.

The majority of the Court of Appeal dismissed the appeal, agreeing with the motion judge that the parol evidence rule precluded evidence of the alleged linkage, as the documentation contained no such linkage and was reviewed by the appellants' lawyers.

The claim against the real estate agent, also based on the alleged linkage, was similarly dismissed.

Borins J.A. dissented, finding a genuine issue for trial regarding the release's provenance and the agent's alleged breach of fiduciary duty.

The appellant landlords leased commercial space to the respondent, who subsequently assigned the leases.

The assignee became insolvent and repudiated the leases pursuant to s. 65.2 of the Bankruptcy and Insolvency Act.

The landlords sued the original tenant for rent arrears.

The motion judge dismissed the actions, finding the repudiation terminated the leases for all purposes.

The Court of Appeal allowed the appeal, holding that a repudiation under s. 65.2 only affects the obligations of the insolvent assignee and does not terminate the lease or release the original tenant from its primary liability to the landlord.

The respondent successfully sued the appellants for negligence after a real estate venture failed due to soil contamination.

On appeal, the Court of Appeal reversed the trial judge's decision.

The Court found no duty of care existed, as the appellants never undertook to provide legal advice and advised investors to seek their own.

Furthermore, there was no evidence that the failure to obtain legal advice caused the respondent's loss, and the claim was barred by the six-year limitation period.

The appeal was allowed and the action dismissed.

The appellant appealed an order finding that a licence granted by the respondent agricultural society was terminable at will.

The Court of Appeal held that a licence is not revocable at will, but remains in effect in equity in accordance with the terms of the original contract, and was revocable by the society only if necessary to carry out its reasonable purposes, including for cause.

The appeal was allowed and the matter remitted to the Superior Court to determine whether the licence was properly terminated for cause.

The appellant brought an action for foreclosure on a mortgage given by the respondents as security for a guarantee of their son's company's debts.

The trial judge granted judgment for the mortgage amount but allowed the respondents' counterclaim for breach of fiduciary duty based on alleged collateral assurances, awarding a set-off.

The Court of Appeal allowed the appeal, holding that while the trial judge correctly found the guarantee valid and collateral assurances inadmissible to contradict it, he erred in finding those same assurances created a fiduciary relationship.

The counterclaim was dismissed and costs awarded to the appellant.

The appellants agreed to purchase a property, but the transaction failed to close after the respondent registered a certificate of pending litigation (CPL) against title, claiming a right of first refusal.

A motion to discharge the CPL was dismissed on the basis that there was a triable issue.

The appellants subsequently sued the respondent for damages under s. 103(4) of the Courts of Justice Act for registering the CPL without a reasonable claim.

The trial judge dismissed the action, holding that the previous order refusing to discharge the CPL was a decision in rem and rendered the issue res judicata.

The Court of Appeal allowed the appeal, finding that a motion to discharge a CPL only determines whether there is a triable issue, not the ultimate merits of the claim, and therefore cannot support a plea of res judicata.