Real Estate Law - ONCA

Appeal from a declaration that a strip of land remained a public highway because a municipality had not complied with statutory requirements when confirming a road closing and later selling the land.

The court held the earlier by-law had effectively stopped up the highway and the later by-law merely corrected the description and confirmed that result, so s. 470(1) did not invalidate the road closing.

Although the municipality failed to comply with s. 487 when selling the stopped-up highway to the predecessor in title, the court had discretion to refuse declaratory relief and should have done so because of extensive delay.

The court further held that subsequent purchasers could rely on defences under the Limitations Act and the Land Titles Act.

The appeal was allowed and the underlying application dismissed.

Commercial lease appeal concerning whether a successor landlord could re-measure leased premises and charge rent on a larger area than that fixed in a prior lease amending agreement.

The court held that the successor in title took subject to the existing lease and was bound by the stipulated square footage in the amending agreement.

The landlord failed to demonstrate any change permitting re-measurement under the original lease.

The appeal was allowed, declaratory relief was granted, and the tenant obtained a refund of excess rent paid with interest and costs.

An Indigenous band appealed from a summary judgment disposition concerning reserve lands sold in the 19th century without a lawful formal surrender.

The Court of Appeal held that there had been no surrender and that the claim was not barred by statutory limitation periods, but concluded that declaratory and possessory relief should nevertheless be refused.

The court applied public law discretion and equitable doctrines, emphasizing the band's historical acquiescence, the extraordinary delay in asserting the land claim, and the reliance of innocent third-party landowners who had held and developed the properties for generations.

The band was left to pursue its damages claims against the Crown.

The appellant landowner and the intervening tribunal appealed a Divisional Court decision that had set aside a review decision of the municipal tribunal concerning a ravine control by-law.

The Court of Appeal held that s. 43 of the Ontario Municipal Board Act confers broad review authority, including the power to reconsider and substitute a prior decision, and that the tribunal's internal “manifest error” guideline did not narrow the statute.

The court further held that the review panel acted within jurisdiction in applying longstanding planning policy against effectively sterilizing privately owned land without acquisition or compelling justification.

It also rejected the argument that an express finding of conformity with the official plan under s. 24 of the Planning Act was required.

The appellant mortgagee appealed an order dismissing its claim against two original mortgagors on the basis of novation.

The court held that, despite a fraudulent scheme by a third party and subsequent assumption and renewal of the mortgage, the agreed facts stipulated that the fraud did not affect the appellant's legal position.

Applying the novation framework, the majority concluded that the no prejudice clause preserved the mortgagee's rights and that the evidence did not establish a novation releasing the original mortgagors.

The appeal was allowed and judgment was substituted for the outstanding mortgage balance, with costs to the appellant here and below.

The appellant challenged a judgment in a real estate commission dispute, arguing it was entitled to commission on sales of property that never closed.

The Court of Appeal held that, on the wording of the relevant documents, commission was payable at four percent only on monies paid to the vendor by the purchaser.

Finding no basis to interfere with the trial judge's factual findings, legal conclusions, or costs disposition, the court dismissed the appeal subject only to correction of an agreed arithmetical error in the judgment.

Appeal concerning whether a purchaser of residential rental premises from a mortgagee exercising a power of sale takes title subject to an existing tenancy agreement.

The court held that ss. 46 and 47 of the Mortgages Act were enacted to protect tenants from disruption caused by mortgage default and apply to a purchaser who obtains title through a power of sale transaction.

As a deemed landlord, the purchaser was bound by the tenant's lease, and those protections prevailed over any conflicting effect of s. 44 of the Land Titles Act.

The appeal was allowed, the Divisional Court order was set aside, and the matter was remitted for determination of the remaining grounds of appeal.

Appeal from an application judgment reducing the voting rights attached to 18 commercial condominium basement units from 18 votes to three.

The court held that condominiums are creatures of statute and that the voting scheme mandated by the Condominium Act could not be altered by unilateral undertakings, by-laws inconsistent with the declaration, settlement arrangements, or equitable doctrines absent compliance with the statutory amendment process.

The court further held that proprietary estoppel was unavailable because there was no inducement, reliance, or detriment as between the relevant parties, and any prior representation was not made to the respondent owner nor binding on successors in title.

The appeal was allowed, the judgment below was set aside, and the application was dismissed with costs to the appellant here and below.

The appellants challenged an order transferring a statutory appeal under the Mining Act from the Mining and Lands Commissioner to the Superior Court.

The court held that a transfer under s. 107 does not enlarge the Superior Court's jurisdiction beyond the scope of the underlying s. 112 appeal, which remains confined to issues under the Mining Act.

Complaints directed at the validity of aggregate permits issued under separate legislation were matters for judicial review, if available, rather than determination in the transferred proceeding.

The appeal was allowed, the transfer order set aside, and the matter remitted to the Commissioner.

This appeal arose from a cottage purchase involving an alleged septic system defect and a warranty that the system had operated satisfactorily and, to the best of the vendors’ knowledge, was installed according to local health authority requirements.

The court upheld the trial judge’s finding that there was no breach of warranty and no negligence by the real estate brokerage in failing to obtain or draft a broader warranty.

The court allowed the solicitor’s appeal, holding that where counsel is retained after a binding agreement of purchase and sale has been signed, there was no duty on these facts to advise the purchaser to attempt to negotiate a price abatement for a concluded deal.

The claim against the solicitor was dismissed, and the purchaser’s appeal against the other respondents was dismissed.

Appeal in a mortgage priority dispute arising from the sale of a vacant lot where the purchaser granted a first construction mortgage and a second purchase money mortgage on closing.

The application judge had held that the unpaid vendor's lien took priority over the first mortgage because the first mortgagee had notice of the unpaid purchase price.

The Court of Appeal held that the equities rebutted enforcement of the vendor's lien as between the first and second mortgagees where both mortgages were placed on title on closing in a common transaction intended to finance construction and establish priority by registration.

The court further held that a vendor's lien is not an 'existing claim on the land' released by s. 5 of the Land Registration Reform Act, but limited the first mortgage's priority to the amount of the first advance.

The appellant challenged a trial judgment declaring that the respondent held a right of way over identified parts of a Kingston property.

The Court of Appeal held that the matter was largely fact-driven and that the trial judge's findings, including actual notice of the longer easements, were amply supported by the record.

The court further upheld the trial judge's interpretation of s. 15 of the Conveyancing and Law of Property Act, s. 26 of the Registry Act, and the doctrines of extinguishment and abandonment.

The appeal was dismissed with costs.

The appellants challenged trial findings arising from the registration of an altered deed and the respondent's instruction that another solicitor be retained before registration.

The Court of Appeal held the factual findings were supported by the evidence and disclosed no error of law.

The appeal was dismissed with costs.

The appellant sought a declaration of a prescriptive right-of-way over adjoining lands used for cottage access.

The appeal turned on whether the claimed easement accommodated the dominant tenement and whether some degree of necessity was required despite long, non-permissive use.

The court held that the trial judge erred in concluding the use did not accommodate the appellant's land and further erred in importing a necessity requirement into a prescriptive easement analysis.

The appeal was allowed, a declaration of easement was granted, ancillary relief concerning obstructing posts was ordered, and costs were awarded to the appellant.

The appellants challenged a trial judgment rejecting a claimed prescriptive easement over a commercially developed parcel of land.

The Court of Appeal held the use of the alleged easement was permissive, not adverse, because the relevant knowledge and consent resided in the same individual personally and as the directing mind of the corporate owner during the relevant period.

The court further held no easement could arise by permission because any such permission ended when ownership of one of the properties changed in 1983.

The appeal was dismissed with costs.

The appellants challenged a declaration concerning the expiry of a registered right of first refusal over real property.

The Court of Appeal held that a right of first refusal is initially a personal contractual right, but converts into an equitable option when the owner receives an acceptable offer.

Once the appellants learned of the 1988 sale made in breach of that right, they were required to pursue specific performance promptly if they wished to preserve their equitable interest.

Their ten-year inaction, coupled with evidence of waiver, extinguished any equitable interest before the later purchaser acquired rights under the 1998 agreement of purchase and sale.

The appeal was dismissed, with no costs.

The appellant brokerage appealed the dismissal of its commission claim arising from an authority to sell.

The court held that the authority did not apply to a sale to a purchaser who had already been dealing with the respondents before the authority was signed, and that merely showing financial statements did not amount to showing the property in the circumstances.

The court also upheld the trial judge’s conclusion that, although the broker provided some assistance, it was not the effective cause of the sale.

The appeal was dismissed with costs and the money paid into court was ordered paid out to two of the respondents.

The appellant mortgagee appealed an order staying its action against one corporate respondent after a foreclosure action had been converted to one for judicial sale.

The court held that the consent order arising from the negotiations was clear and unequivocal, and did not result from mistaken intentions or a failure to reflect the parties' agreement.

The appellant knew it had to choose which defendant would be the subject of judgment and that consequences flowed from that choice.

By signing judgment against another defendant, the appellant's right to recover against the respondent corporation was terminated by s. 20(3) of the Mortgages Act.

The appeal was dismissed with costs.

In a commercial franchise and sublease dispute, the appellant challenged an order granting the respondents possession of premises.

The court held the respondents failed to establish any claim to possession under an alleged new lease because they were not parties to it and adduced no admissible evidence that it was entered into on their behalf.

The court also held the respondents failed to prove the factual foundation for any continuing month-to-month tenancy under the original lease, namely the absence of notice from the landlord.

The appeal was allowed, the judgment below set aside, and the application dismissed with costs to the appellant.

The appellant challenged a power of sale transfer of farm property on the basis that the mortgagee had failed to comply with the notice regime and stay provisions under the Farm Debt Review Act.

The court held that even assuming a later notice of sale served during the statutory stay was a nullity, an earlier amended notice of sale was not void merely because the creditor had not first given compliant notice under s. 22.

Applying prior authority, the court found the defect was a continuing breach and not fatal where the farmer became aware of the statutory protections, obtained the full stays available, and suffered no prejudice.

The court further held that a valid basis for the exercise of the power of sale could sustain the transfer even though the registered documents referred to a defective notice.

The appeal was dismissed with costs.