Real Estate Law - ODC

At a settlement conference regarding a mortgage action, the parties were unable to reach a consensus.

The plaintiff's pending motion for leave to appeal an order setting aside default judgment will direct future proceedings.

The court directed the parties to schedule the leave motion for either November 26 or December 3, 2007.

The moving parties sought leave to appeal a decision of the Ontario Municipal Board regarding a secondary plan.

The proposed appeal challenged the OMB's findings that active parkland and developer-dedicated parklands are not permitted in 'protected countryside' areas under the Greenbelt Plan, and its approval of a municipal policy to acquire such lands at minimal or no cost.

The Divisional Court dismissed the motion, finding that the OMB's determinations involved the interpretation of policy statements rather than questions of law, and were therefore not subject to appeal.

The appellant appealed an order dismissing its motion for judgment on an alleged settlement.

The respondent's counsel had made a settlement offer based on instructions from an individual who managed the recreation centre but lacked authority to settle the litigation.

The appellant accepted the offer.

The motion judge found that the settlement was concluded by mistake, as the respondent never authorized the offer, and exercised his discretion not to enforce it.

The Divisional Court upheld the decision, finding no error in the motion judge's appreciation of the evidence or application of the legal principles regarding mistake and agency.

The applicant sought judicial review of an Inquiry Officer's decision upholding the proposed expropriation of its property for highway construction.

The applicant argued the hearing should have been adjourned pending the completion of a municipal traffic study.

The court dismissed the application, finding that the Inquiry Officer's refusal to adjourn was not demonstrably unfair and did not constitute a denial of natural justice or procedural fairness.

Following a successful appeal by the condominium corporation that dismissed the respondent's Small Claims Court action regarding a special assessment, the court determined the costs of the proceedings.

The appellant sought over $52,000 in costs on a claim worth $5,350.29.

The court rejected the application of the condominium declaration for substantial indemnity costs because the respondent had sold her unit before suing.

The court also held that Rule 49.10 does not apply to offers made pending an appeal.

Emphasizing proportionality, the court limited the Small Claims Court costs to the statutory 15% maximum plus disbursements, and fixed the appeal costs at $3,000 plus disbursements, for a total award of $7,452.73.

The defendants sought leave to appeal an interlocutory injunction that prevented them from forcibly entering the plaintiff's unit and selling her shares prior to trial.

The dispute arose after the plaintiff installed a washer and dryer without the board's approval.

The Divisional Court dismissed the motion for leave to appeal, finding no reason to doubt the correctness of the motion judge's application of the RJR-MacDonald test for injunctive relief.

The court also held that the matter was not of general public importance, but rather specific to the litigants.

The appellants appealed a trial judge's decision regarding a real estate transaction involving a septic system.

The appellants argued that the vendors actively concealed a latent defect.

The Divisional Court dismissed the appeal, finding no palpable or overriding error by the trial judge.

The property was sold 'as is', the purchasers were experienced realtors who insisted on the warranty clause, and there was no evidence of existing problems with the septic system at the time of closing.

The appeal was dismissed without costs.

The appellants, owners of a condominium project, appealed an order requiring them to hold five units as security pending the determination of an action brought by the respondent purchaser.

The Divisional Court allowed the appeal, finding that the motions judge had effectively granted a Mareva injunction without applying the proper legal test.

There was insufficient evidence of a strong prima facie case or a real risk of asset dissipation.

The paragraphs of the order requiring the units to be held as security were deleted.

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.

The appellant appealed an Ontario Municipal Board decision dismissing its claims for compensation for injurious affection, business loss, and disturbance damages following the expropriation of lands for a highway overpass.

The Divisional Court held that the standard of review for findings of fact by the OMB is palpable and overriding error, and correctness for questions of law.

The court found no palpable and overriding error in the OMB's conclusion that the appellant's loss of profits was not attributable to the expropriation, but rather to other factors including the appellant's own strategic marketing decisions.

The appeal was dismissed.

The appellants appealed a Deputy Judge's decision finding them liable for negligent misrepresentation in the sale of a mobile home.

The vendors had stated there was a 'new roof in 2002,' but only part of the roof had been replaced.

The Divisional Court applied the standard of palpable and overriding error to the Deputy Judge's findings of mixed fact and law.

The court upheld the finding that a special relationship existed, the statement was inaccurate, and the purchaser relied on it.

The appeal was dismissed.

The appellant property owner appealed a Small Claims Court judgment ordering it to pay a real estate commission to the respondent realtor.

The owner had leased a unit to an existing tenant in the plaza shortly after the listing agreement expired, without notifying the realtor of the tenant's interest during the currency of the agreement.

The Divisional Court dismissed the appeal, upholding the trial judge's findings that the owner breached the listing agreement by failing to refer the tenant's inquiry to the realtor, and that the owner could not rely on its own breach to avoid paying the commission.

The City of London appealed a decision granting the respondents' application to overturn the Chief Building Official's (CBO) refusal to issue unconditional building permits.

The CBO had issued permits conditional on the repair of a defective gabion wall on the property, which was subject to a site plan agreement.

The Divisional Court allowed the appeal, finding that the trial judge erred in concluding the CBO acted outside his statutory authority.

The Court held that site plan approval constitutes 'applicable law' under the Building Code Act, and the CBO lawfully imposed conditions bearing a logical nexus to the property's use and the ongoing maintenance obligations in the site plan agreement.

The applicants sought judicial review of planning applications filed by a land developer for a residential subdivision near proposed airport lands.

The applicants argued the applications were nullities under the Greenbelt Protection Act, 2004, which imposed a development freeze on lands outside urban settlement areas.

The Divisional Court agreed, finding the lands were not designated as an urban settlement area when the Act came into effect.

The court declared the applications and subsequent municipal decisions nullities, and prohibited the Ontario Municipal Board from hearing appeals related to the applications, as it lacked jurisdiction.

The appellants appealed a decision of the Ontario Municipal Board which found that a bed and breakfast establishment was not a permitted principal use of their land under the Oak Ridges Moraine Conservation Plan.

The appellants' land, located in a Natural Core Area and accessible only by private road, did not permit the construction of a single dwelling under the applicable zoning by-law.

The Divisional Court dismissed the appeal, agreeing with the Board that the definition of a bed and breakfast establishment limits such use to a single dwelling that is the principal residence, which could not be built on the appellants' property.

The Crown appealed decisions of the Ontario Municipal Board awarding compensation for injurious affection to two groups of landowners following the expropriation of land for Highway 407.

The Crown argued the lands' value was already limited by the Parkway Belt West Plan and had no urban development potential.

The Divisional Court dismissed the appeals, upholding the Board's findings that, but for the physical construction of the highway, the lands would likely have been released from the Plan and developed.

The loss of this opportunity was directly caused by the highway's construction, constituting compensable injurious affection.

The appellant Township appealed an Ontario Municipal Board decision that approved a zoning by-law amendment for a specialty stone quarry without requiring the respondent to rebuild an access road to current municipal standards.

The Township argued that its Official Plan mandated a road maintenance agreement prior to rezoning.

The Divisional Court dismissed the appeal, finding the Board's decision reasonable.

The Court held that the Official Plan provision was discretionary and specifically applied to gravel trucks, which was inapplicable as the site would not extract gravel.

The Board properly considered the Planning Act requirements regarding transportation needs and municipal finances.

The plaintiff applied for leave to appeal a decision setting aside a default judgment and a vesting order.

The plaintiff argued there was a denial of procedural fairness because the motion judge did not hear oral argument on setting aside the default judgment, and that the decision conflicted with established case law regarding vesting orders under the Land Titles Act.

The Divisional Court denied leave, finding no breach of fundamental fairness given the full written arguments submitted, no good reason to doubt the correctness of the decision, and no conflicting decision as the plaintiff was not an innocent third party.

The appellant real estate agency appealed the dismissal of its claim for commissions against the respondents.

The trial judge found the listing agreement invalid because the agent failed to leave a copy with the vendor, as required by section 35 of the Business Brokers Act.

The Divisional Court dismissed the appeal, finding no palpable or overriding error in the trial judge's factual findings.

However, the Court noted the trial judge erred in concluding that failure to post the listing on MLS within two days invalidated the agreement, and that agents are required to verify a vendor's authority or sole ownership before signing a listing agreement.