Real Estate Law - ONCA

The appellant condominium corporation appealed a decision finding that its declaration required the costs of waste disposal for the food court seating area to be paid as common expenses by all unit owners, rather than solely by the food court unit owners.

The Court of Appeal found no palpable and overriding error in the application judge's interpretation of the declaration.

However, the Court allowed the appeal in part, finding the application judge erred by effectively excusing the food court unit owners from paying for the disposal of their own individual unit wastes, contrary to an express provision in the declaration.

The issue of individual unit waste disposal costs was remitted to the application judge.

The respondents sought to bypass the Planning Act by claiming a creek running through their property was a navigable stream under the Beds of Navigable Waters Act, which would vest the creek bed in the Crown and naturally sever their lot.

The application judge agreed, finding the creek navigable based on historical dimensions and downstream use.

The Court of Appeal allowed the municipality's appeal, holding that navigability requires not just physical capacity but also potential practical public utility, including points of public access.

As there was no evidence of public access or practical public use of the creek on the respondents' property at the time of the 1831 Crown grant, the creek was not navigable.

The appellants appealed a trial judgment finding them liable for breach of contract and inducing breach of contract regarding a commercial restaurant lease.

The trial judge found the appellants unreasonably refused consent to a sublease and maliciously induced a tenant to breach her contract to punish the respondent for unrelated litigation.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's factual findings, credibility assessments, or the damages award.

The appellants appealed a trial decision enforcing a promissory note and dismissing their counterclaim and crossclaim arising from the sale of a convenience store.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's conclusions that no damages flowed from a breach of the Real Estate and Business Brokers Act, that the promissory note was supported by consideration, and that representations in the MLS listing were superseded by the entire agreement clause in the agreement of purchase and sale.

The appellant agreed to purchase a commercial property from the respondent for $9 million, subject to a vendor take-back mortgage.

The transaction failed to close after the parties could not agree on the terms of a secondary financing agreement.

The motion judge granted summary judgment to the respondent, allowing it to retain $1.2 million in deposits.

On appeal, the appellant argued the motion judge erred in interpreting the agreement's secondary financing and escrow deed provisions.

The Court of Appeal dismissed the appeal, finding the motion judge's interpretation of the strict terms for secondary financing was commercially reasonable and supported by the record.

The appellant, a unit owner and former director of the respondent condominium corporation, appealed a costs order made against him.

The application judge had ordered the appellant to pay $45,000 in costs but failed to clearly determine whether the appellant had acted in bad faith or was merely negligent, which was critical to determining his entitlement to indemnification under the condominium's by-laws.

The Court of Appeal allowed the appeal, set aside the costs order, and remitted the matter to the application judge to clarify the findings and reassess the costs.

The appellant appealed a trial judgment finding him liable on a guarantee for unpaid rent under a commercial lease.

The appellant argued that documents were tampered with, the trial judge was biased, and a breach of the lease's exclusivity provision relieved him of his obligation.

The Court of Appeal dismissed the appeal, finding no evidence of tampering or bias, and agreeing with the trial judge that any breach of the exclusivity provision was independent of the obligation to pay rent and the guarantee.

The appellant church operated a homeless shelter in its basement.

The respondent municipality sought an injunction to stop the shelter, arguing it violated the local zoning by-law which permitted 'church' uses but prohibited soup kitchens and food banks.

The application judge granted the injunction.

On appeal, the Court of Appeal held that the application judge erred in his interpretation of the by-law.

The Court found that the homeless shelter fell within the by-law's definition of 'church-sponsored community activities and projects'.

The appeal was allowed and the injunction was dismissed.

The appellants appealed the dismissal of their application to quash a municipal resolution and for an injunction restraining the municipality from erecting a barrier restricting access to the rear of their property.

The Court of Appeal dismissed the appeal, agreeing with the application judge that the doctrine of issue estoppel applied because the appellants had previously sought and been denied an injunction to remove the barrier in 2009.

The appeal was dismissed with costs awarded to the respondent.

The appellant applied for a declaration of a prescriptive easement over a private laneway behind its property.

The application judge dismissed the application, finding the 20-year use was by licence rather than as of right.

On appeal, the Court of Appeal found no evidence to support the finding of permission.

The court held that the continuous, open, and uninterrupted vehicular use of the laneway for over 20 years raised an inference of acquiescence by the servient owner, shifting the evidentiary burden to the respondent to prove permission.

As no such evidence was adduced, the appeal was allowed and the easement declared.

The appellants appealed the dismissal of their claim for damages arising from the expropriation of their lands by the respondent municipalities and the subsequent transfer of those lands to Toyota for an auto plant development.

The appellants argued the transfer to Toyota at the expropriation price constituted an illegal bonus under s. 106 of the Municipal Act, which should invalidate the expropriation and entitle them to damages reflecting the lands' increased value.

The Court of Appeal dismissed the appeal, holding that the expropriation and sale were separate transactions, and even if s. 106 was breached, it would not invalidate the expropriation or confer a right to damages beyond the fair value provided under the Expropriations Act.

The appellant purchased a second mortgage as an investment, but the mortgagor fraudulently misrepresented the balance of the first mortgage.

After the property was sold under power of sale, leaving no funds for the appellant, she sued the mortgage broker for negligence and breach of contract, and the title insurer for coverage.

The Court of Appeal upheld the summary judgment dismissing the action.

The court found the title insurance policy did not cover the loss, and the claim against the broker was statute-barred because it was discovered more than two years before the action was commenced.

The court clarified that the two-year limitation period under the Limitations Act, 2002 applied, rather than the ten-year period under the Real Property Limitations Act, because the claim was based in negligence and contract rather than an interest in land.

The appellant landlord appealed a decision finding that a requirement to maintain eight doctors as tenants and a corresponding rent abatement provision in a 1990 commercial lease were not eliminated by a subsequent renewal agreement.

The Court of Appeal dismissed the appeal, finding no error in the application judge's interpretation of the commercial context and language of the agreements.

Applying Sattva, the Court held that deference was owed to the application judge's interpretation.

The parties entered into a joint venture to purchase and convert a property into a self-storage facility, which included a put/call agreement.

The respondent exercised the put, forcing the appellant to purchase the property at a price determined by an appraiser.

The appellant refused to close, alleging the appraiser made a manifest error by not using the income approach.

The trial judge granted specific performance to the respondent and awarded substantial indemnity costs based on an unserved offer to settle.

The Court of Appeal dismissed the appeal, finding no manifest error in the appraisal, upholding the award of specific performance for the vendor, and confirming the costs award.

The appellants appealed a summary judgment dismissing their claim for adverse possession.

The Court of Appeal upheld the motion judge's finding that the third requirement for adverse possession—effective exclusion of the true owner—applies even in cases of mutual mistake and was not met on the facts.

The appeal was dismissed, but the trial costs award was reduced from full indemnity to substantial indemnity.

The appellant purchased a condominium townhouse advertised as three storeys, but later discovered the third floor was illegally built into the common element attic space.

She sued the condominium corporation, the property manager, her real estate lawyers, and the vendor.

The Court of Appeal held that the condominium corporation was liable for negligent misstatement for issuing a clean estoppel certificate despite the illegal third floor.

The court upheld the finding of solicitor negligence against the appellant's real estate lawyers for failing to review the vertical survey plans.

Damages were reassessed to compensate the appellant for the lost opportunity of owning a three-storey unit, and punitive damages against the vendor were upheld.

The appellants appealed a trial decision granting the respondents title to a disputed strip of land between their adjoining properties by adverse possession.

On appeal, the appellants argued for the first time that the finding of adverse possession did not justify granting title to the full width of the 2.03 metres vested by the trial judge.

The Court of Appeal dismissed the appeal, noting that the issue of width was not raised at trial, the survey was presented on consent, and there was ample support in the record for the trial judge's finding.

The appellant landlord appealed a decision dismissing its application for a declaration that the respondent tenant's installation of an ATM violated the permitted use clause of their commercial lease.

The lease restricted the premises to use as a fast-food restaurant.

The application judge found the ATM was a business tool to keep costs low and did not change the purpose of the premises.

The Court of Appeal applied the deferential standard of review for contractual interpretation established in Sattva, finding no error of law or mixed fact and law, and dismissed the appeal.

Following a successful appeal, the parties were unable to resolve the costs of the motion below.

The Court of Appeal fixed the costs of the motion below at $4,500 in favour of the appellants, payable out of the proceeds of the sale of the property, noting that much of the time claimed related to necessary housekeeping matters regarding the sale.

The appellants appealed a decision finding that a retaining wall encroaching on a right of way did not create a substantial obstruction to their rights under a 1916 grant.

The Court of Appeal dismissed the appeal, holding that the application judge's findings were well-supported by the evidence and owed deference.

The respondents' cross-appeal seeking leave to appeal the denial of costs at the application stage was also dismissed, as there was no error in principle.