Real Estate Law - ODC

The appellant appealed a decision restoring a restrictive covenant and Notice of Claim on her property.

The property was originally under the Registry Act, where a 1958 restrictive covenant was extended to 2038 by a 1998 Notice of Claim.

In 2003, the property was converted to the Land Titles system.

The appellant argued that under s. 119(9) of the Land Titles Act, the covenant was deemed to expire 40 years after its original 1958 registration.

The Divisional Court dismissed the appeal, holding that the conversion to Land Titles did not extinguish the rights preserved by the Notice of Claim under the Registry Act, and the covenant remains valid until 2038.

The appellant appealed a Small Claims Court decision that dismissed her motion to set aside a prior consent dismissal order.

The respondents moved to dismiss the appeal for delay.

The Divisional Court found that the appellant could not appeal a consent order without leave under s. 133(a) of the Courts of Justice Act.

Furthermore, the order dismissing the motion to set aside the consent order was interlocutory, not final, and therefore could not be appealed to the Divisional Court under s. 31 of the Courts of Justice Act.

The appeal was quashed without costs.

The appellant appealed an order granting title of a disputed strip of land to the respondent neighbour under s. 37 of the Conveyancing and Law of Property Act.

The application judge found the respondent had made lasting improvements to the land, including a retaining wall and parking pad, under the honest and reasonable belief that the land was his.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the application judge's findings of fact or exercise of discretion regarding the transfer of land and the denial of costs.

The appellant tenant appealed an order of the Condominium Authority Tribunal holding him jointly and severally liable with his landlord to pay $18,239.60 in compensation to the condominium corporation.

The Divisional Court allowed the appeal, finding a breach of procedural fairness because the corporation had not requested this relief against the tenant and the Tribunal's procedural order did not list it as an issue.

The Tribunal's order was varied to make the landlord solely liable for the compensation.

The appellant sought to appeal a Superior Court decision that dismissed his application as an abuse of process.

The Divisional Court directed the parties to provide submissions on whether the appeal should be dismissed under Rule 2.1 of the Rules of Civil Procedure.

The court found that it lacked jurisdiction to hear the appeal under the Courts of Justice Act, as the order appealed from was final and should have been directed to the Court of Appeal.

Alternatively, the court found the appeal to be frivolous and vexatious on its face, as it sought to relitigate matters already adjudicated in prior proceedings.

The appeal was dismissed.

The appellant condominium corporation appealed a Condominium Authority Tribunal decision that allowed the respondent unitholder to park in designated accessible parking spaces and awarded him $1,500 in damages.

The appellant argued the Tribunal lacked jurisdiction because the parking dispute was connected to broader harassment claims falling under the section 117 carveout of the Condominium Act.

The Divisional Court dismissed the appeal, finding the parking issue was severable and within the Tribunal's exclusive jurisdiction.

The court upheld the Tribunal's findings that the unitholder was entitled to use the accessible spaces, the condominium could not charge back its enforcement costs, and the damages award was reasonable.

The appeal was dismissed without costs due to the respondent's vexatious conduct during the hearing.

The appellant appealed a decision of the Ontario Land Tribunal regarding compensation for the expropriation of contaminated land.

The Tribunal had determined the property's market value to be $290,000 based on a speculative value, rejecting the appellant's higher valuation due to prohibitive environmental remediation costs.

The Tribunal also awarded $51,683 for wasted costs.

On appeal, the Divisional Court found no palpable and overriding error in the Tribunal's factual findings regarding market value and wasted costs.

The Court also rejected the appellant's argument that it was denied procedural fairness when the Tribunal refused an interlocutory motion for third-party document production.

The appeal was dismissed.

The appellant appealed a decision of the Condominium Authority Tribunal regarding four requests for condominium records under section 55 of the Condominium Act.

The Divisional Court dismissed the appeal, finding that the appellant failed to identify any error of law, as required by section 1.46(2) of the Act, and instead challenged findings of fact and mixed fact and law.

The court upheld the Tribunal's findings that there was no refusal to provide records without reasonable excuse and awarded partial indemnity costs of $8,500 to the respondent.

The appellant entered into an agreement of purchase and sale for a property and paid a $40,000 deposit.

The transaction failed to close because the appellant could not secure financing.

The appellant sought the return of the deposit, arguing there was an oral agreement that it would be refunded if the sale failed.

The application judge dismissed the application, applying the parol evidence rule to exclude the oral agreement and finding no grounds for relief from forfeiture.

The Divisional Court dismissed the appeal, upholding the application judge's findings that the written contract governed and that the deposit forfeiture was not unconscionable.

The appellant municipality appealed a Drainage Referee's order denying it costs and sought a declaration that a referee who conducts a pre-hearing cannot preside at the hearing.

The respondent landowners cross-appealed the Referee's finding that a proposed drainage project was an 'improvement' under the Drainage Act rather than a new drainage works requiring a petition.

The Divisional Court dismissed the appeal, finding no error in the costs award and holding that a declaration was unnecessary given existing rules.

The cross-appeal was also dismissed, as the Referee correctly distinguished prior case law and made no palpable and overriding error in concluding the project was an improvement despite an increase in capacity.

The appellant appealed the dismissal of his application under the Partition Act for the sale of a property registered solely in the respondent's name.

The application judge had dismissed the claim, finding on a paper record that the funds advanced by the appellant were a loan, not an investment giving rise to a trust interest.

The Divisional Court allowed the appeal, holding that the application judge erred in law by assessing credibility on material facts in dispute without directing a trial to hear viva voce evidence.

The judgment was set aside and a trial of the whole application was ordered.

The moving party sought leave to appeal three decisions of the Toronto Local Appeal Body (TLAB) regarding a lot severance and zoning variances.

The Divisional Court dismissed the motion, finding that most of the proposed issues were questions of mixed fact and law.

The one potential question of law regarding the interpretation of s. 51(24) of the Planning Act did not raise good reason to doubt the correctness of the TLAB's decision.

Costs of $8,000 were awarded to the respondent property owner, but no costs were awarded to the TLAB, which had unnecessarily participated in the motion contrary to a case management direction.

The appellant sought leave to appeal a decision of the Ontario Land Tribunal that upheld an Official Plan Amendment and Rezoning approved by the City of Ottawa.

The amendments permitted the development of a warehouse and e-commerce centre on lands adjacent to Highway 416.

The Divisional Court denied leave to appeal, finding no extricable error of law of sufficient importance to warrant appellate review.

The moving party sought leave to appeal a decision of the Ontario Land Tribunal that dismissed his appeal of a zoning by-law without a hearing.

The Tribunal had dismissed the appeal on the basis that it did not disclose any apparent land use planning ground and failed to explain how the by-law was inconsistent with provincial policy or the official plan.

The Divisional Court found that the Tribunal provided sufficient reasons and made no error of law in applying the test for dismissing an appeal without a hearing under the Planning Act.

The moving party had failed to provide responding affidavit evidence or expert planning opinions to support his appeal grounds before the Tribunal.

The motion for leave to appeal was dismissed with costs awarded to the respondents.

The appellants appealed a Small Claims Court decision dismissing their claim for breach of an oral agreement and unjust enrichment regarding a condominium assignment.

The trial judge had dismissed the claim on a motion for non-suit after the appellants closed their case.

The Divisional Court found that while the Small Claims Court has jurisdiction to hear non-suit motions, the trial judge erred in law by applying a balance of probabilities test instead of assessing whether a prima facie case was made.

However, the court declined to order a new trial, instead exercising its power under the Courts of Justice Act to substitute its own decision.

The court agreed with the trial judge's factual findings that the oral contract lacked certainty and the written assignment agreement provided a juristic reason for any enrichment, ultimately dismissing the appellants' claim.

The appellant appealed a Small Claims Court judgment regarding a boundary fence dispute.

The appellant argued the Small Claims Court lacked jurisdiction because the Line Fences Act governed such disputes.

The Divisional Court noted that while the City of Toronto purported to opt out of the Line Fences Act, its bylaw did not establish an alternative scheme for apportioning costs as required by the Act.

The court adjourned the matter and directed that notice be given to the City of Toronto to provide written submissions on the effectiveness of its opt-out bylaw.

The moving party, a self-represented lawyer, brought a motion under section 21(5) of the Courts of Justice Act to set aside an order of a single judge of the Divisional Court that denied extensions of time to appeal various orders arising from a mortgage enforcement proceeding.

At the hearing, the moving party raised preliminary issues including a venue transfer, constitutional claims, and a request for the panel to recuse itself.

The Divisional Court dismissed the preliminary requests, denied an adjournment, and dismissed the motion on the merits, finding no error in the single judge's decision and no basis to grant leave to appeal the costs order.

The appellants appealed a decision of the Local Planning Appeal Tribunal regarding compensation for properties expropriated by the City of Toronto.

The appellants challenged the Tribunal's valuation of the properties, the start and end dates for interest, and the denial of disturbance damages for lost business opportunities and replacement property costs.

The City cross-appealed the award of 12% interest for delay and disturbance damages for lost commissions.

The Divisional Court dismissed both the appeal and cross-appeal, finding no palpable and overriding errors in the Tribunal's factual findings or legal interpretations, except for a minor variation to the calculation of loan costs agreed upon by the parties.

The appellant appealed a decision of the Deputy Director of Titles regarding a boundary dispute between neighbouring lakefront properties.

The issue was whether the metes and bounds description in the registered deed and plan of subdivision, which contained a mathematical error, or an original wooden surveyor's stake should govern the boundary line.

The Divisional Court dismissed the appeal, holding that while a registered description generally governs, where it demonstrably fails to express the grantor's true intention, original surveyors' monuments take precedence.

The court affirmed the application of the hierarchy of boundary evidence and section 9 of the Surveys Act.

The appellants appealed an order finding that a trail across their land was an 'access road' under the Road Access Act and refusing to order it closed.

The Divisional Court dismissed the appeal, finding ample evidence that prior owners had permitted the respondent's use of the road to access his landlocked property.

The court also upheld the application judge's discretionary decision to refuse closure and impose conditions, noting the respondent's long-term use and lack of disruption to the appellants.