Real Estate Law - OCA

Following the disposition of the merits of the appeal on September 25, 2006, the Court of Appeal issued a supplementary endorsement regarding the costs of the application in the court below.

The court set aside the costs order below and awarded the appellants costs of the application fixed at $10,000 all-inclusive.

The appellants appealed a judgment of the Superior Court of Justice.

The Court of Appeal dismissed the appeal, agreeing with the motion judge's reasons.

The court found there was nothing in writing to support the appellants' defence, and their affidavit material did not raise a viable issue concerning the bank's knowledge.

The appeal was dismissed with costs fixed at $3,000.

The appellant appealed a trial judge's finding that there was no oral agreement displacing the effect of title documents and no resulting trust.

The Court of Appeal dismissed the appeal, holding that the trial judge's findings were supported by the evidence.

The appellants appealed a decision finding that their conduct in registering a condominium declaration with a bifurcated common expense formula was oppressive.

The formula exempted undeveloped parcels from contributing to the maintenance of a ring road.

The Court of Appeal allowed the appeal, holding that the declaration did not conflict with the Condominium Act, as the Act requires owners to contribute in the proportions specified in the declaration.

Furthermore, the developer's conduct was not oppressive because the formula was fully disclosed to purchasers before they bought their units, and it served a legitimate business purpose related to the staged nature of the development.

The appellant, Bank of Montreal, appealed an order granting the respondent, Royal Bank of Canada, priority over the proceeds of the sale of a property and collected rents.

The respondent's registered mortgage was void due to a violation of the Planning Act.

However, the Court of Appeal upheld the motion judge's decision that the respondent was entitled to priority based on the equitable doctrine of subrogation, as it had advanced funds to pay off prior valid encumbrances and municipal taxes.

The Court also upheld the respondent's priority regarding the assignment of rents, which was validly registered under the Personal Property Security Act.

The respondent's cross-appeal seeking an equitable mortgage was dismissed.

The appellant pig farm applied to expand its operations but was denied minor variances from a municipal zoning by-law that enforced minimum distance separation (MDS II) guidelines.

The appellant applied to the Normal Farm Practices Protection Board, which held it had jurisdiction and exempted the appellant from the doubling factor of the MDS II guidelines.

The Divisional Court overturned this, finding the Board lacked jurisdiction over zoning by-laws.

On appeal, the Court of Appeal held that the Board does have jurisdiction to consider zoning by-laws under the Farming and Food Production Protection Act.

However, applying a reasonableness standard of review, the Court found the Board's decision unreasonable because it directly contradicted the mandatory provincial MDS II guidelines, violating section 9 of the Act.

The appeal was dismissed.

The appellant held a mortgage on a property and claimed an interest in insurance proceeds as collateral security.

The property was subsequently transferred to the appellant.

The Court of Appeal upheld the application judge's finding that the transfer satisfied the outstanding mortgage debt, thereby extinguishing the appellant's interest in the remaining insurance funds.

The appeal was dismissed with costs.

The appellants appealed a summary judgment order granting possession of their property to the respondent.

The Court of Appeal dismissed the appeal, finding no merit in the appellants' arguments regarding corroborating evidence and equitable estoppel, and upheld the motion judge's reasons.

The appellant appealed an order regarding her interest in a property located on Roncesvalles Avenue.

The Court of Appeal dismissed the appeal, finding that any interest the appellant had was compromised in minutes of settlement in July 2002, which resulted in a court order transferring the property to the respondents.

As no appeal was taken from that prior order, the appellant had no claim to an accounting of the proceeds of the sale.

The appellant landlord appealed a trial judgment that applied a 35 per cent 'betterment' discount to damages awarded for the respondent tenant's breach of repair and restoration covenants in a commercial lease.

The Court of Appeal held that while the lease's 'reasonable wear and tear' exception applied, the tenant bore the burden of proving the extent to which the damages fell within this exception.

Because the tenant failed to adduce evidence supporting the 35 per cent discount, the Court removed the discount, increasing the landlord's damages.

The Court also allowed the tenant's cross-appeal in part, reducing the interest rate to the Courts of Justice Act rate and reducing the costs award to reflect the actual rates billed to the landlord.

The appellants appealed an order declaring that the interest in a partnership agreement was owned as joint tenants rather than tenants in common.

The Court of Appeal dismissed the appeal, finding that the language of the partnership agreement inevitably led to the conclusion of joint tenancy.

The dismissal was made without prejudice to other broader legal claims regarding the distribution of the property.

The appellant guaranteed her husband's business loans and provided a collateral mortgage on her home.

The bank later agreed to replace the guarantee with a new conventional mortgage, but subsequently sued on the original guarantee, which the appellant settled.

When the bank sued to enforce the new mortgage, the appellant raised defences of negligence, unconscionability, misrepresentation, and undue influence.

The Court of Appeal dismissed the defences against enforcement, finding the appellant had independent legal advice and entered the transaction freely, rebutting any presumption of undue influence.

However, the Court allowed an equitable set-off against the mortgage debt for the damages the appellant suffered when the bank breached its agreement by suing on the original guarantee.

The appellant appealed a motions judge's decision refusing to grant an adjournment, appoint an inspector, or invoke compliance and oppression remedies under the Condominium Act, 1998.

The Court of Appeal upheld the motions judge's exercise of discretion, noting that while the direct election of the president and prohibition of proxies were non-compliant, they were approved by the Board to address long-standing complaints.

The court also confirmed that an increase in common expenses in the annual budget does not require a by-law or compliance with s. 97(4) of the Act.

The appeal was dismissed.

The respondents purchased condominium units as tax-sheltered investments, with the purchase price allocated between land/construction and services.

When the vendor failed to deliver title, the respondents sought compensation from the Ontario New Home Warranty Program.

The Program argued the contract was severable and refused to compensate for the services portion.

The Court of Appeal held that the agreements constituted a single contract for the provision of a home at fair market value, entitling the respondents to compensation for the full purchase price.

The Court also clarified that prejudgment interest is payable out of the guarantee fund at the rate prescribed by the Condominium Act, not the Courts of Justice Act.

The appellants invested in a limited partnership tax shelter, borrowing funds and providing promissory notes and guarantees secured by collateral mortgages.

Upon default, the lender obtained default judgments, transferred the mortgaged properties to its insurer under power of sale, and assigned the judgments to the insurer.

The appellants sought to declare the judgments void, alleging improvident sale, merger, de facto foreclosure, and release of guarantees.

The Court of Appeal upheld the application judge's dismissal, finding the guarantees were independent obligations and the insurer's actions did not constitute a de facto foreclosure.

The appellant appealed a trial judge's decision finding no agreement existed for the respondent to pay a real estate commission or finder's fee.

The Court of Appeal upheld the trial judge's conclusion that the three property 'flips' were part of one transaction for which the appellant had already earned a commission, and that the respondent had refused to sign an agreement for any further fee.

The appeal was dismissed.

The appellant appealed a motions court decision answering questions on a special case under Rule 22.

The Court of Appeal upheld the motions judge's finding that s. 13 of Reg. 892 is intra vires the governing Act, as the Act's subrogation provisions are broad enough to cover payments made out of the guarantee fund.

The Court also found that the Corporation's expenses to rectify construction deficiencies in a condominium project qualified as payments triggering a right of subrogation.

The Corporation's right to subrogation was not defeated by the fact that the payments were made before the condominium corporation came into existence.

The appeal was dismissed.

The appellant appealed the dismissal of its claim for real estate commission on the sale of an apartment building.

The trial judge found that the respondents did not deliberately delay the transaction to avoid paying commission and that the final offer was a separate and discrete transaction.

The Court of Appeal held that these findings of fact were well supported by the evidence and dismissed the appeal.

The appellant appealed a trial judgment finding that the vendor had given written consent to the lease of the premises.

The Court of Appeal dismissed the appeal, holding that there was ample evidence to support the trial judge's finding and that the vendor's purported withdrawal of consent was ineffective.

The appellant sought specific performance of an agreement with an abatement equivalent to damages caused by the respondents' alleged breach of a promise of confidentiality.

The Court of Appeal upheld the motions judge's conclusion that the promise was collateral to the agreement and that specific performance with an abatement is not available in these circumstances.

The appeal was dismissed.