Real Estate Law - ODC

The appellant creditor appealed a decision dismissing its motion for summary judgment against the respondent guarantors for a mortgage shortfall.

The motion judge had excluded the appellant's affidavit evidence as hearsay and found genuine issues for trial regarding alleged oral representations by the appellant's employee that the guarantee would not be enforced.

The Divisional Court allowed the appeal, holding that the motion judge erred in law by excluding the affidavits and failing to apply the parole evidence rule.

Given the 'entire agreement' clause in the guarantee, the alleged oral representations raised no genuine issue for trial.

Summary judgment was granted against the borrowers and guarantors for the deficiency.

The appellants appealed a decision of the Licence Appeal Tribunal which dismissed their claims against Tarion Warranty Corporation for alleged defects in their new home, including foundation issues, basement moisture, and squeaky floors.

The Divisional Court applied a reasonableness standard of review to the Tribunal's findings of fact.

The Court found that the Tribunal reasonably concluded, based on the evidence of civil engineers and construction managers, that the home was built in accordance with the design and not too close to the water table.

The appeal was dismissed with costs awarded to the respondent.

The appellant appealed an Ontario Municipal Board decision determining compensation for the City of Toronto's expropriation of subsurface easements for existing pipelines.

The appellant argued the Board erred by denying damages for business losses caused by delay and by failing to award interest and costs.

The appellant also sought to adduce fresh evidence to increase its claim for injurious affection.

The Divisional Court dismissed the appeal, finding the Board's conclusion that there was no causal nexus between the expropriation and the business losses was reasonable.

The Court also refused to admit the fresh evidence, as it could have been adduced earlier and would not have affected the result.

The defendant sought leave to appeal a decision refusing to set aside a certificate of pending litigation (CPL) in favour of the plaintiff.

The motion judge had found it arguable that the plaintiff, a limited partner, had a reasonable claim to an interest in the property through a constructive trust.

The Divisional Court found that while there was good reason to doubt the correctness of the motion judge's decision, the proposed appeal did not involve matters of such importance to warrant granting leave, as the motion judge had merely found the legal propositions to be arguable rather than making new law.

Leave to appeal was refused.

The applicant municipality sought leave to appeal an interlocutory decision of the Ontario Municipal Board.

The Board had determined that the respondent's proposed large retail store development in a designated Employment Area did not constitute a 'conversion' under the Growth Plan, and thus did not require a municipal comprehensive review.

The court granted leave to appeal, finding that the application was not premature given the fundamental nature of the question, there was good reason to doubt the correctness of the Board's interpretation of the Official Plan and Growth Plan, and the issue was of sufficient general importance to land use planning in Ontario.

The appellants, a family with seven children living in subsidized co-operative housing, appealed an order terminating their membership and issuing a writ of possession due to late housing charge payments.

The application judge had declined to exercise his discretion to grant relief from eviction under s. 171.21 of the Co-operative Corporations Act, finding no 'change in circumstances' since the co-operative board's decision.

The Divisional Court allowed the appeal, holding that the application judge erred in principle by requiring a change in circumstances rather than considering all circumstances, including the devastating impact of eviction on the children.

The court granted relief from eviction subject to strict conditions for future payments.

The appellant builder appealed a License Appeal Tribunal decision awarding the respondent homeowners $11,234 to replace ceramic tiles that did not comply with the Ontario Building Code.

The parties consented to an order setting aside the Tribunal's decision and substituting an award of $4,000 plus costs.

The Divisional Court approved the settlement, noting that the Tribunal erred in effectively ordering specific performance rather than assessing damages based on the floor's useful life or the cost of stiffening it, as required by prior jurisprudence.

The Town of Oakville appealed a decision of the Normal Farm Practices Protection Board that stayed a zoning by-law against the respondents, who were growing crops on contaminated former refinery lands zoned industrial.

The Divisional Court allowed the appeal, finding that the Board failed to provide adequate reasons for its decision, thereby denying natural justice.

Furthermore, the Court held as a matter of law that 'farming' is a land use, not a 'normal farm practice', and the Farming and Food Production Protection Act cannot be used to introduce a new agricultural use on land where farming is prohibited by a valid zoning by-law.

The appellants appealed a Small Claims Court judgment awarding the respondent $6,300 for the cost of building a retaining wall due to the appellants undermining the lateral support of her property.

The appellants also appealed the dismissal of their counterclaim for malicious prosecution.

The Divisional Court dismissed the appeal, finding that the trial judge applied the correct subjective-objective test for malicious prosecution and that there was sufficient evidence to support the finding that the respondent's land was in its natural state, making the loss of lateral support actionable in nuisance.

The City of Toronto appealed a decision of the Ontario Municipal Board that granted four minor variances to permit the construction of a three-storey retirement home in a Highway Commercial zone.

The Divisional Court allowed the appeal, finding the Board's decision unreasonable.

The Board failed to properly apply the four-part test under section 45(1) of the Planning Act, misinterpreted the Official Plan and zoning by-law, and failed to justify how significant departures from density limits and lot coverage requirements could be considered minor.

The appellants appealed a Small Claims Court judgment that denied them a $10,000 fee for preparing a Professional Marketing Package to obtain mortgage financing.

The trial judge found the appellants were acting as unregistered mortgage brokers.

The Divisional Court dismissed the appeal, holding that the appellants were 'carrying on business' as mortgage brokers and that it would be contrary to public policy to allow an unregistered broker to enforce payment of a fee under the Mortgage Brokers Act.

The appellants appealed the dismissal of their application under the Road Access Act to close an access road on their land, which provided the sole motor vehicle access to the respondents' cottage.

The parties had been litigating over the road for 20 years.

The Divisional Court dismissed the appeal, finding that the appellants' application was an attempt to relitigate an issue that was res judicata due to a 2005 consent order.

The court also found that the respondents had a legal right to use the road based on previous agreements and court orders.

The moving party sought leave to appeal a decision of the Ontario Municipal Board that permitted the responding party to demolish an existing dwelling and construct a new one in a heritage conservation district.

The court dismissed the motion, finding that the issues raised were factual rather than questions of law, lacked general legal importance, and that there was no reason to doubt the correctness of the Board's decision.

Costs of $10,000 were awarded to the responding party.

The appellants appealed a judgment that awarded the respondents a declaration of trespass, general damages, punitive damages, and costs following a property line dispute over a fence.

The application judge had decided the matter under Rule 14.05(3) of the Rules of Civil Procedure despite conflicting affidavit evidence.

The Divisional Court allowed the appeal in part, holding that Rule 14.05(3) is not available for the resolution of general and punitive damage claims where material facts are in dispute.

The court set aside the damages and costs awards and directed a trial of an issue regarding the respondents' entitlement to damages.

The appellant developer appealed two Ontario Municipal Board decisions that upheld a development charge of $287,904.22 paid to the respondent municipality.

The appellant argued the municipality's Commissioner erred by relying on standard design flow guidelines rather than actual water usage and conservation measures to determine water demand under the applicable by-law.

The Divisional Court dismissed the appeal, finding the by-law's language was clear and the Commissioner's exercise of discretion was reasonable.

A motion to adduce fresh evidence of actual water usage was also dismissed as it did not relate to a question of law.

The appellants appealed a decision of the Ontario Municipal Board denying their request to review an earlier decision that allowed a development of three detached houses.

The appellants argued the Board acted outside its jurisdiction by approving access via an existing right of way, which they claimed would create an overburden and interfere with neighbouring property rights.

The Divisional Court dismissed the appeal, holding that the Board had jurisdiction to determine legal issues, such as easements, that were incidental to its administrative function of approving variances and granting consents to sever under the Planning Act.

The moving party sought leave to appeal a decision of the Ontario Municipal Board.

The Board had ruled it lacked jurisdiction to impose conditions on a private developer's subdivision approval for the benefit of an adjacent private landowner's future development.

The Divisional Court dismissed the application for leave, finding no reason to doubt the correctness of the Board's decision on jurisdiction and rejecting the argument that procedural defects could bestow jurisdiction.

Beechridge Farms Inc. sought leave to appeal a decision of an Ontario Municipal Board Review Panel that ordered a new hearing.

The Review Panel had found that the original hearing member breached procedural fairness by refusing to grant the respondents a short adjournment to consider the implications of the newly enacted Places to Grow Act and its Growth Plan.

The Divisional Court dismissed the application for leave to appeal, finding no reason to doubt the correctness of the Review Panel's conclusion that the refusal of the adjournment was unreasonable and a denial of natural justice.

The appellants appealed a decision dismissing their appeal of the Chief Building Official's refusal to issue a building permit for a single-family home.

The property had been inadvertently rezoned to permit such a home due to a clerical error, which the Town subsequently corrected with an amending by-law.

The Divisional Court dismissed the appeal, holding that the Chief Building Official correctly considered the pending, more restrictive amending by-law as 'applicable law' under the Building Code Act when making her decision, as it would have retroactive effect once appeals were exhausted.

The appellants appealed a Small Claims Court decision dismissing their claim for breach of contract against the vendor and real estate agents regarding a defective hot-tub and 'newer windows' in a purchased home.

The Divisional Court upheld the dismissal regarding the windows, finding caveat emptor applied.

However, the court allowed the appeal regarding the hot-tub, finding that the vendor's warranty that the hot-tub was in good mechanical working order was a collateral stipulation intended to survive closing and did not merge upon the transfer of title.

Damages of $4,500 were awarded, apportioned equally between the vendor and the real estate agents.