Real Estate Law - OCA

These consolidated appeals addressed the interpretation and application of the amended summary judgment regime under Rule 20 of the Rules of Civil Procedure.

The Court of Appeal held that summary judgment may be granted not only where claims or defences are without merit or the parties agree, but also where the motion judge can achieve a full appreciation of the evidence and issues required to make dispositive findings on the motion record, possibly supplemented by limited oral evidence.

The court articulated the “full appreciation” test, confirmed that the standard of review on whether there is a genuine issue requiring a trial is correctness, and explained the proper use of the new powers to weigh evidence, evaluate credibility, draw inferences, and hear oral evidence on discrete issues.

Applying those principles, the court dismissed the Combined Air, Misek, and Parker appeals, dismissed the Mauldin appeal, and allowed the Bruno appeal by setting aside summary judgment and dismissing the motion.

The appellant appealed an order declaring an agreement of purchase and sale valid and granting the purchasers specific performance and damages.

The Court of Appeal dismissed the appeal, finding that the essential terms of the contract were clear and binding.

The court upheld the application judge's findings that the property was unique, justifying specific performance, and that it was reasonable to calculate damages as of the date of judgment rather than the date of breach to account for the property's enhanced value pending planning approval.

The appellant, Gold Financial Corp., appealed two orders of the Superior Court of Justice and sought an order that one-half of the proceeds of the sale of the Puslinch land be paid into court.

The motion judge had concluded that neither the Notice nor the Share Pledge Agreement was entitled to any weight and that the appellant's General Security Agreement did not support any claim to an interest in the land.

The Court of Appeal found no error in the motion judge's conclusions and dismissed the appeal with costs on a partial indemnity basis.

The appellant appealed a decision finding that disputed lands had been dedicated and accepted for public uses as a park.

The Court of Appeal found no palpable and overriding error in the application judge's factual findings regarding public use.

Furthermore, the Court held that the respondent Township had established title to the lands through adverse possession, as it had erected a fence in 1990 with the intention of excluding the appellant and had maintained actual possession since that time.

The appeal was dismissed.

The appellant condominium corporation appealed a trial judge's decision disallowing its claims for security services and realty taxes against the respondent, who owned a commercial underground parking garage below the condominium.

The Court of Appeal upheld the trial judge's interpretation of the Parking Garage Agreement, finding no obligation for the respondent to pay for security services and affirming a subsequent agreement regarding realty taxes.

The respondent's cross-appeal was allowed in part to correct the formal judgment and to declare claims prior to July 4, 1995, statute-barred.

The appellant appealed a judgment fixing a rent increase.

The appellant conceded that the application judge was entitled to reject the evidence of its appraiser.

The Court of Appeal found that a substantial increase in rent was justified based on the respondent's appraiser's evidence, noting that fixing the exact amount is more art than science.

The appeal was dismissed with costs.

The appellants appealed a summary judgment granting possession and judgment on the covenant to the respondent bank.

The appellant wife argued she should have had independent legal advice as the mortgage was a 'business loan' for her husband.

The Court of Appeal dismissed the appeal, finding that the wife benefited from the transaction, was a sophisticated party, and the motion judge did not err in rejecting her non est factum defence.

The appellant appealed a judgment declaring that an offer to lease between the parties was no longer valid.

The offer contained conditions with specific completion dates and stipulated that time was of the essence.

The conditions were not met or extended by the specified dates.

Seven months later, the appellant attempted to unilaterally extend the time to complete the conditions.

The Court of Appeal dismissed the appeal, agreeing with the application judge that it was commercially unreasonable to interpret the offer as giving the appellant an unlimited right to extend time requirements, and held the appellant was not entitled to unilaterally extend the time.

The respondent brought a motion requesting the Court of Appeal reconsider its decision not to order a trial on whether a right of first refusal was extended by oral agreement.

The court dismissed the request for reconsideration, finding no evidence of an oral agreement specifically addressing the extension of the right of first refusal.

However, the court clarified its previous order to specify that paragraph 4 of the application judge's judgment was not set aside, as it had not been appealed.

The court also granted a temporary stay of its judgment pending the disposition of the respondent's leave application to the Supreme Court of Canada and granted leave to register a certificate of pending litigation against the property.

The appellants appealed a decision finding the respondents acted reasonably under a Dock License Agreement and were entitled to reimbursement for municipal taxes.

The Court of Appeal upheld the finding that the respondents acted reasonably.

However, the Court allowed the appeal in part, declaring that the respondents were not entitled to a lien under the Repair and Storage Liens Act because they never received possession of the vessel for storage, as the appellants continued to occupy it as their home.

The appellants failed to appear for their appeal.

The Court of Appeal dismissed the appeal with costs fixed at $4,000, without prejudice to the respondent's right to seek a writ of possession before the lower court judge.

The appellants appealed a trial judgment finding them liable on a mortgage and rectifying the principal amount.

The Court of Appeal upheld the trial judge's findings that a promissory note evidenced a debt secured by the mortgage assumed by the appellant, and that the appellant had actual or imputed knowledge of the correct amount owing, justifying rectification.

The respondent's cross-appeal on trial costs was dismissed.

The appeal was dismissed with costs awarded to the respondent.

The appellant purchaser appealed a summary judgment finding no genuine issue for trial in a real estate dispute.

The purchaser argued the respondent vendor was obligated to disclose the failure to conduct a final inspection of a porch and was therefore guilty of misrepresentation.

The Court of Appeal dismissed the appeal, finding no legal basis for such an obligation, and concluded the purchaser had no right to refuse to close or demand an abatement in the purchase price.

The appellant appealed the dismissal of an application regarding property ownership.

The Court of Appeal upheld the application judge's finding that there was no evidence the respondent owned or paid for the property.

The court also upheld the costs order, noting the appellant pursued the application even after learning of the bankruptcy.

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

The appellant landlord appealed a decision finding that an implied term of a commercial lease granted the respondent bank access to parking spaces via the landlord's laneway.

The Court of Appeal dismissed the appeal, holding that the application judge's finding was supported by ample evidence and was not a palpable and overriding error.

The court also rejected the appellant's res judicata argument, noting that prior litigation did not concern the interpretation of the lease.

Leave to appeal the substantial indemnity costs award was refused, as the application judge's finding of malevolent conduct justified the scale.

The third party real estate agent appealed a trial judgment awarding the purchasers damages and costs arising from an aborted real estate transaction.

The purchasers had settled the main action with the vendor and proceeded against the agent for negligence and breach of fiduciary duty.

The Court of Appeal upheld the trial judge's findings on liability and mitigation, noting the purchasers were not obliged to close the transaction given the uncertainty of repair costs and their specific need for a move-in ready home.

However, the Court varied the costs award, recharacterizing the costs of defending the main action as damages and reducing the trial costs of the third party action.

The appellant appealed an order finding that purported Minutes of Settlement were unenforceable.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that the settlement lacked material and fundamental terms, such as provisions regarding second mortgages and rights of first refusal.

Furthermore, the Court found that even if an agreement existed, the appellant repudiated it through his conduct, including failing to communicate, execute documents, or maintain the property.

Costs were awarded to the respondents on a full indemnity basis.

The appellants appealed a trial judgment dismissing their claim regarding an alleged misrepresentation by the respondent's employees.

The trial judge found that there was no real intention on the part of the prospective purchasers and the appellants to enter into an agreement to purchase the properties.

The Court of Appeal upheld this finding, noting it was consistent with the parties' conduct and not unreasonable.

The Court also rejected the argument that missing portions of the trial transcript prejudiced the appellants' ability to challenge the factual finding, as the missing evidence did not relate to the issue.

The appeal was dismissed with costs.