Real Estate Law - ODC

The appellant bank appealed a Small Claims Court decision awarding the respondent $25,000 in damages for an allegedly improper power of sale.

The trial judge found the bank failed to provide proper notice under the Mortgages Act because it sent the notice of sale to the mortgaged property, knowing the mortgagors were out of the country.

The Divisional Court allowed the appeal, holding that under s. 33(1) of the Mortgages Act, a mortgagee is entitled to serve the notice of sale at the specific address provided for service in the mortgage document, regardless of whether the mortgagee knows the mortgagor is living elsewhere.

The trial judgment was set aside.

The appellant developer appealed a Small Claims Court decision ordering it to pay the respondent purchaser $15,000 for breach of contract.

The dispute arose after the purchaser sought to terminate a condominium purchase agreement.

The parties signed an incentive letter promising the purchaser $15,000 upon the project's closing, and later signed a mutual release.

On appeal, the developer argued the release terminated its obligations under the incentive letter.

The Divisional Court dismissed the appeal, finding the trial judge did not err in interpreting the incentive letter, noting the release did not cover the incentive letter, and upholding the trial judge's refusal to allow the developer to raise the unpleaded release defence at trial.

The appellant appealed a summary judgment order requiring it to pay unpaid legal fees to the respondent bank.

The bank had made an arithmetic error in a mortgage discharge statement, omitting the legal fees from the final total, though they were listed in the body of the statement.

The Divisional Court dismissed the appeal, finding that the discharge of the mortgage did not extinguish the underlying contractual debt and that the appellant had not detrimentally relied on the error.

The applicant municipality sought leave to appeal an Ontario Municipal Board decision approving a zoning by-law passed by a neighbouring municipality to permit a major tourist destination, including a casino.

The applicant raised eight questions of law, arguing the OMB misinterpreted the Planning Act, regulations, and official plans regarding municipal council decisions, complete applications, holding provisions, and public works.

The Divisional Court dismissed the application, finding the OMB's interpretations were reasonable and within its specialized planning expertise.

The moving party brought a motion seeking leave to appeal an order of the Ontario Municipal Board (OMB) that adjourned the hearing of an appeal from an Official Plan Amendment.

The OMB had adjourned the hearing until the municipality enacted a development permit by-law, despite acknowledging it could not order the municipality to pass such a by-law.

The court granted leave to appeal, finding that the OMB's order raised a question of law of sufficient general or public importance regarding whether the municipality is entitled under s. 17(44) of the Planning Act to have its appeal adjudicated before enacting a development permit by-law.

The appellants, owners of waterfront properties on Nottawasaga Bay, appealed a decision of the Coordinator in the Office of the Surveyor General confirming a municipal resurvey under the Surveys Act.

The resurvey extended two road allowances straight across accreted lands to the water's edge, effectively cutting off the appellants' water access.

The Divisional Court allowed the appeals, finding that the Coordinator's decision was unreasonable.

The Court held that the Surveys Act does not displace the common law principles of accretion, which dictate that accreted lands attach to riparian properties and should be equitably allocated.

The matter was remitted for a trial of an issue regarding whether the survey should be confirmed with or without amendments.

The respondent purchased a cottage from the appellants and subsequently discovered fire damage in the roof structure that was not identified during a home inspection.

The respondent successfully sued in Small Claims Court for $25,000 on the basis of a latent defect.

On appeal, the Divisional Court upheld the trial judge's finding of liability, agreeing the defect was latent and rendered the property uninhabitable.

However, the court found the trial judge erred in assessing damages by including costs for betterment and unrelated repairs.

The damages award was reduced to $11,500.

The sellers appealed an order directing the release of a $50,000 deposit to the purchaser after a failed commercial real estate transaction.

The sellers argued the purchaser committed an anticipatory breach, relieving them of the obligation to tender.

The Divisional Court dismissed the appeal, upholding the application judge's finding that ongoing negotiations to extend the closing date negated any repudiation.

Because there was no accepted repudiation, the sellers were required to tender to enforce the agreement, which they failed to do.

The purchaser was therefore entitled to the return of its deposit.

The appellant lawyer was found guilty of professional misconduct by a Law Society Hearing Panel for failing to advise lender clients of material facts in real estate transactions, but was cleared of mortgage fraud.

The Law Society appealed to the Appeal Panel, which found the Hearing Panel erred in law in its definition of mortgage fraud and ordered a new hearing.

The lawyer appealed to the Divisional Court.

The majority of the Divisional Court dismissed the appeal, finding the Appeal Panel reasonably concluded that the Hearing Panel erred by focusing on the lawyer's subjective belief about the honesty of his conduct rather than objectively assessing whether his failure to disclose constituted dishonest conduct under the Théroux test for fraud.

A dissenting judge would have allowed the appeal.

The appellant appealed an order requiring him to sell his interest in a jointly owned property to the respondent.

The parties had previously been ordered to list the property for sale, but the appellant repeatedly frustrated the sale process, including refusing to close after making the highest bid.

The Divisional Court dismissed the appeal, finding that the motion judge's order was not a forced sale under the Partition Act, but rather a necessary step to implement and enforce a previous unappealed order for sale.

The appellant condominium corporation appealed a Small Claims Court decision ordering it to reimburse the respondent unit owner for costs related to a plumbing blockage.

The trial judge had found the condominium failed to definitively prove the respondent's unit caused the blockage.

The Divisional Court allowed the appeal and ordered a new trial, finding the trial judge erred by reversing the burden of proof, applying a standard of absolute proof rather than a balance of probabilities, and failing to consider key video evidence and accord deference to the condominium board.

The appellant buyer appealed a Small Claims Court judgment dismissing his claim for the return of a $10,000 deposit and awarding the deposit to the respondent sellers as damages for anticipatory breach.

The buyer had repudiated the agreement of purchase and sale after a pre-closing visit, alleging undisclosed prior water damage to the basement.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's factual conclusion that the buyer failed to prove the existence of prior water damage or misrepresentation by the sellers.

The appellant, a lawyer who acted for a mortgagee in enforcement proceedings, appealed a Small Claims Court judgment that found him jointly and severally liable for $9,000 in punitive damages and $5,750 in costs.

The Divisional Court allowed the appeal, finding that the Deputy Judge erred in law by awarding punitive damages against the lawyer without finding any primary liability, independent actionable wrong, or duty of care owed to the mortgagor.

The judgment against the lawyer was set aside.

The appellant appealed a decision of the Acting Drainage Referee denying him standing under the Drainage Act to appeal a drainage works report.

The appellant argued he had standing as the spouse of the registered owner of the affected property and as a resident who paid bills.

The Divisional Court upheld the Referee's decision, finding it reasonable that the Family Law Act did not confer an ownership interest for the purposes of the Drainage Act, and that residing in the home did not make the appellant an 'owner'.

The court also dismissed arguments related to the Protection of Public Participation Act and a request for a stay, ultimately dismissing the appeal and awarding costs to the respondents.

The lien claimants appealed a decision declaring that the respondent's mortgage had priority over their construction liens.

The respondent challenged the Divisional Court's jurisdiction, arguing the priority decision was not a 'judgment' under the Construction Lien Act.

The court held it had jurisdiction because the priority decision was a final order.

On the merits, the court upheld the motions judge's factual finding that the mortgage funds were advanced to the owner as a joint borrower, rather than merely serving as collateral security, thereby giving the mortgage priority under section 78(6) of the Act.

The appeal was dismissed.

The appellants appealed a Superior Court decision that quashed a building permit issued by the Chief Building Officer (CBO) for an accessory building on a lakeside residential property.

The property was a non-complying lot because it did not border a street, making the determination of lot lines and setbacks under the zoning by-law ambiguous.

The CBO reasonably interpreted the by-law to conclude that all lot lines were side lot lines, and issued the permit.

The Divisional Court allowed the appeal, finding that the appeals judge erred by applying a correctness standard of review and improperly considering land use planning principles from the Official Plan.

The CBO's decision was restored as it was reasonable and entitled to deference.

The appellant vendor appealed a Small Claims Court judgment limiting her damages for a failed condominium assignment transaction based on a mutual release.

The Divisional Court found the trial judge erred in concluding the release was binding, as it lacked the required signature of the realtor, and erred in finding the appellant was estopped from challenging its validity.

The court set aside the trial judgment, recalculated the appellant's damages for the respondents' breach of contract, and awarded her a net sum of $10,911.90 from the deposit.

The moving party, Canada Capital Corporation Inc., sought leave to appeal an order dismissing its motion to vary the terms of a power of sale.

The moving party sought to remove a term requiring proceeds of sale to be paid into court and replace it with a term allowing for a vendor take back mortgage.

The court dismissed the motion for leave to appeal, finding no conflicting decisions, no good reason to doubt the correctness of the order, and that the issue was not of sufficient importance to the public or administration of justice.

The appellant municipality appealed a Small Claims Court decision finding it responsible for the cost of thawing a frozen waterline on its side of the property line.

The municipality had historically thawed such blockages without charge but attempted to discontinue the practice via an un-enacted policy.

The Divisional Court dismissed the appeal, holding that the municipality's due diligence obligation included bearing this cost and that it was subject to an estoppel preventing it from discontinuing the service without enacting specific provisions to the contrary.

The appellant appealed a Small Claims Court decision dismissing his action for nuisance, negligence, and trespass against his neighbour.

The dispute arose when the respondent cut down boundary cedars to build a fence for the safety of a special needs child, after the appellant unreasonably refused consent.

The Divisional Court upheld the trial judge's finding that the overgrown cedars constituted a nuisance, substantially and unreasonably interfering with the respondent's use of his property.

The court confirmed that where a boundary tree is a nuisance, the Forestry Act does not prevent a co-owner from abating the nuisance through self-help if the other owner unreasonably withholds consent.

The appeal was dismissed.