Real Estate Law - ODC

The appellant appealed a Small Claims Court decision awarding the respondent real estate brokerage $10,750 in lost commission for breach of a buyer representation agreement.

On appeal, the appellant argued he should only be liable for half the commission because his wife also signed the agreement of purchase and sale for the new property.

The Divisional Court dismissed the appeal, finding that this argument was not raised at trial, there was no evidence the wife signed the agreement, and the trial judge made no palpable and overriding error in finding the appellant liable for the full amount.

The appellants appealed a Superior Court decision that rescinded a building permit issued by the Chief Building Official (CBO) for the construction of a riding arena on a property in the Oak Ridges Moraine.

The appeal judge had found that the arena was not a permitted agricultural use under the zoning by-law and that the CBO failed to consider the Official Plan's major development policies.

The Divisional Court allowed the appeal, holding that the appeal judge erred by applying a correctness standard instead of reasonableness to the CBO's interpretation of the home by-law.

The Court found the CBO's conclusion that the arena was a permitted principal agricultural building was reasonable and correct.

Furthermore, the Court held that conformity with the Official Plan is not 'other applicable law' under the Building Code Act that would justify refusing a permit.

The plaintiff buyer failed to close a $75 million commercial real estate transaction and subsequently registered a certificate of pending litigation (CPL) against the property.

A Master ordered the CPL discharged and the buyer's deposits forfeited.

The buyer appealed and brought a motion to stay the Master's order pending appeal, while the sellers brought a cross-motion for security for costs.

The Divisional Court dismissed the motion for a stay, finding the appeal devoid of merit as the buyer had failed to secure financing and the sellers had not waived the 'time is of the essence' clause.

The cross-motion for security for costs was granted.

The applicant sought leave to appeal an interlocutory decision of the Ontario Municipal Board (OMB) which allowed the respondent developer to amend conditions of a 1996 zoning approval for a trailer park.

The applicant argued the OMB failed to properly apply Rule 106 of its Rules of Practice and Procedure by not reopening the entire hearing after 20 years had passed.

The Divisional Court dismissed the motion for leave to appeal, finding that the OMB's interpretation of its own procedural rules was reasonable, the decision was based on evidence, and the matter did not raise a question of law of sufficient general or public importance.

The moving parties sought leave to appeal an order that allowed the respondent to amend its statement of defence, added a third party as a necessary party, and dissolved an injunction preventing the respondent from disposing of disputed lands.

The Divisional Court granted leave to appeal specifically on the issue of lifting the injunction, finding good reason to doubt the correctness of that part of the order because the moving party would suffer irreparable harm if the respondent sold the land before the court determined ownership rights.

Leave to appeal the joinder of the third party was denied.

The appellants appealed a Master's order requiring them to pay $49,767.47 into court as security for costs pursuant to Rule 56.01(1)(c).

The appellants argued the Master erred by effectively rescinding an agreement to pay the outstanding costs upon the closing of a real estate transaction and by failing to recognize that a $300,000 deposit held by the respondent was sufficient security.

The Divisional Court dismissed the appeal, finding no error of law or palpable and overriding error in the Master's exercise of discretion to order security for costs.

The appellants, trustees of Wychwood Park, appealed a Small Claims Court decision dismissing their claim for unpaid maintenance levies against the respondents.

The trial judge had ruled that the obligation to pay was a positive covenant that did not run with the land.

The Divisional Court allowed the appeal, finding that the trial judge erred by failing to apply the conditional grant and benefit and burden exceptions to the rule against positive covenants running with the land.

The court held that the respondents, who had actual notice of the Trust Deed and received the benefits of the private park, were bound by the positive obligation to pay the levies.

The Waterloo Region District School Board appealed an Ontario Municipal Board decision awarding interest to Erbsville Road Development Inc. on expropriated land from the date of draft subdivision approval, rather than the later date of actual expropriation.

The Divisional Court dismissed the appeal, holding that under s. 33(1) of the Expropriations Act, interest can accrue from a date preceding expropriation when the owner ceases to make productive use of the land due to the impending expropriation.

The court found the board member's determination that productive use ceased upon draft approval was reasonable.

The appellants appealed a Small Claims Court judgment finding them liable for failing to complete grading and drainage repairs in a good and workmanlike manner prior to the closing of a residential real estate transaction.

The Divisional Court upheld the trial judge's finding on liability, noting that the basement flooded after the repairs were purportedly completed, allowing for an inference of poor workmanship under the doctrine of res ipsa loquitur.

However, the court found that the trial judge erred in assessing damages without providing reasons for accepting a specific quote that included work beyond the scope of the required repairs.

The appeal was allowed in part, and a new trial was ordered solely on the issue of damages.

The appellants appealed a summary judgment granting the respondent monies due under a defaulted mortgage.

The appellants argued the judgment should not have been granted or should have been stayed because of an ongoing 2011 action alleging misappropriation of funds by a financial advisor who allegedly controlled the respondent.

The Divisional Court dismissed the appeal, finding no evidence linking the respondent to the defendants in the 2011 action and no triable issues regarding liability under the mortgage.

The court also denied leave to appeal the motion judge's costs award.

The appellants appealed a decision of the Deputy Mining and Lands Commissioner denying them permission to build a home on their land due to flood control concerns raised by the Nottawasaga Valley Conservation Authority.

The Divisional Court allowed the appeal, finding that the Tribunal erred in law by presuming a general legislative prohibition on development in floodplains and by elevating safety to a stand-alone head of jurisdiction.

The Court held that the proposed development would have no impact on flood control and directed the approval of the development without conditions.

The City of Toronto appealed a decision of the Ontario Municipal Board finding that it had jurisdiction to determine whether site plan control applied to the respondent's proposed interior alterations.

The Divisional Court allowed the appeal, holding that the Board's jurisdiction under s. 114(7) of the City of Toronto Act, 2006 is limited to resolving disputes about what types of features or design elements should be included in a site plan application, not the threshold question of whether site plan control applies at all.

The standard of review was determined to be reasonableness, and the Board's interpretation was found to be unreasonable as it undermined the overall legislative scheme.

The Town of Richmond Hill sought leave to appeal an Ontario Municipal Board decision imposing a cap on the alternative requirement for parkland dedication under s. 42(3) of the Planning Act.

Several other municipalities sought leave to intervene in the motion for leave to appeal and the appeal itself, arguing the Board's decision could impact their own parkland dedication policies.

The Divisional Court granted the motions to intervene, finding the issue transcended the immediate parties and the proposed interveners could offer distinct and useful perspectives on an issue of public importance.

The appellant sold a residential property to the respondent.

Prior to closing, the City of Toronto issued an order requiring the appellant to repair a defective retaining wall.

The appellant actively concealed this order from the respondent.

The trial judge awarded the respondent damages for the cost of repairs.

On appeal, the appellant sought to introduce fresh evidence, which the Divisional Court rejected as it did not meet the Palmer test.

The court applied the Housen standard of review, found no palpable and overriding error in the trial judge's findings of fact, and dismissed the appeal.

The applicant Ministry sought leave to appeal a decision of the Ontario Municipal Board regarding the expansion of the urban boundary of the Town of Fort Erie.

The Board had found that a transitional regulation under the Places to Grow Act 2005 applied because a valid 'request' was made prior to June 16, 2006, even though supporting documentation was submitted later.

The Divisional Court dismissed the motion for leave to appeal, finding no reason to doubt the correctness or reasonableness of the Board's interpretation of 'request' or its factual findings.

The Toronto District School Board appealed a decision dismissing its appeal from the City of Toronto's Chief Building Official.

The CBO had determined that a zoning by-law exemption for school board lands used 'only for teaching or instructional purposes' did not permit a private company to operate a commercial sports facility on school property.

The Divisional Court found that while the application judge erred in interpreting the by-law to restrict the 'user' rather than the 'use', the CBO's conclusion was reasonable.

The proposed private recreational use was not 'only' for teaching or instructional purposes, nor was it an 'accessory use' naturally and normally incidental to school use.

The appeal was dismissed.

The appellant lawyer appealed a decision of the Law Society Tribunal Appeal Division, which upheld a Hearing Panel's finding of professional misconduct and the revocation of his license.

The appellant had acted for investors in 14 real estate transactions involving a fraudulent scheme to mislead institutional lenders into financing the entire purchase price of homes.

The Divisional Court found the Hearing Panel's conclusion that the appellant knowingly assisted in the fraud to be reasonable, noting his reverse-engineering of Statements of Adjustments.

The court also upheld the penalty of revocation, affirming that absent exceptional circumstances, revocation is the presumptive penalty for knowing participation in mortgage fraud to maintain public confidence in the legal profession.

The applicants, cottage owners in Rondeau Provincial Park, sought a declaration that the Residential Tenancies Act, 2006 applied to their land leases with the Crown, thereby invalidating a regulation terminating their leases in 2017.

The Divisional Court first determined it had jurisdiction to hear the application as it involved the validity of a regulation.

On the merits, the court held that the Residential Tenancies Act does not expressly bind the Crown, nor does the benefit/burden exception apply.

Consequently, the regulation terminating the leases was valid and the application was dismissed.

The defendant brought a motion for leave to appeal a partial summary judgment of $985,634.54 granted in favour of the plaintiff mortgagee.

The partial judgment was based on alternative claims of unjust enrichment and equitable subrogation for funds used to discharge existing debts on the defendant's property.

The defendant argued that granting partial summary judgment constituted an election by the plaintiff to abandon its claim for the entire mortgage debt.

The Divisional Court dismissed the motion, finding no reason to doubt the correctness of the motions judge's decision that partial summary judgment is not an election.

Leave to appeal the costs award was also denied.

The defendants appealed a trial decision finding them liable for breach of contract regarding missing window screens in a real estate transaction.

The Divisional Court dismissed the appeal, holding that the defendants could not evade performance based on a unilateral mistake of which the plaintiffs were ignorant.

The court also upheld the dismissal of the claim against the real estate agent, finding the agent met the standard of care by reviewing the chattels list with the defendants.