Real Estate Law - ONCA

The Court of Appeal heard motions in an appeal concerning the receivership of a debtor's property.

The appellant, a successful bidder, appealed two lower court orders that terminated its Stalking Horse Agreement and approved the debtor's refinancing transaction.

The motion judge referred several issues to a panel, including the appellant's standing and right to appeal, and whether the lower court erred in terminating the agreement and granting provisional enforcement.

The Court of Appeal continued the stay of provisional execution of the lower court orders, emphasizing the importance of maintaining the integrity of court-approved sale processes, especially given the absence of reasons from the motion judge for his initial decision.

This appeal concerned a failed real estate transaction where the appellant sought the return of a $70,000 deposit after failing to close due to financing issues, despite the respondent subsequently selling the property at a profit.

The appellant argued that retaining the deposit was unconscionable, citing the respondent's lack of loss and the appellant's alleged lack of capacity due to mental health struggles and bereavement.

The Court of Appeal dismissed the appeal, upholding the motion judge's finding that it was not unconscionable for the respondent to retain the deposit, as there was no inequality of bargaining power or improvident bargain, and the appellant had intended to close the transaction.

The appellant, Grandfield Homes (Kenton) Ltd., appealed a lower court decision that denied its request for a trial on damages beyond forfeited deposits in a failed residential real estate transaction.

The Court of Appeal upheld the application judge's decision, finding that the claim for additional damages was not sufficiently pleaded in the notice of application or supporting evidence.

The court emphasized that relief sought must be precisely stated in pleadings and that counsel's confirmation during cross-examination that additional damages were not sought in the application was binding.

The court also agreed that ordering a separate trial on damages would result in an unnecessary bifurcation and multiplicity of proceedings, causing potential prejudice to the respondent.

The Court of Appeal considered whether a beach easement was expressly extinguished by an application to the Registrar of Land Titles.

The lower court had found the deletion was an error and ordered rectification.

The appellate court determined that the application judge erred in law by misinterpreting the application as lacking an express release, despite the dominant owner's clear intent and request to delete the easement.

The appeal was allowed, the rectification order set aside, and the original application dismissed, confirming the easement's extinguishment.

The appellants appealed an approval and vesting order that authorized a receiver to sell a property in receivership.

One of the appellants, a second mortgagee, sought to redeem the first mortgage or be recognized as a successful creditor bidder, arguing an absolute right to redeem under the Mortgages Act.

The Court of Appeal dismissed the appeal, affirming the motions judge's decision that the right to redeem is qualified once a court-approved sales process has been undertaken in a receivership.

The court emphasized balancing the right to redeem against the integrity of the court-supervised sales process, finding no error in the motions judge's conclusion that the sales process was fair and the balance favoured its integrity.

Horn Ventures International Inc. appealed the dismissal of its application to compel Xylem to sell it property, arguing that a binding agreement for sale was triggered by waiving a condition in an Offer to Lease.

The key issue was whether the "Obligation to Purchase" provision could be triggered before environmental remediation of the property was completed.

The Court of Appeal upheld the application judge's interpretation that the obligation to purchase arose only after Xylem advised that remediation was complete, and Horn Ventures could only waive the environmental consultant's certificate, not the completion of remediation itself.

The appeal was dismissed, as no reversible error was found in the application judge's contractual interpretation.

The appellant, Skyline Real Estate Acquisitions (III) Inc., appealed a lower court decision that dismissed its application for the return of a $3.25 million deposit.

Skyline had refused to close on an agreement to purchase two shopping plazas, alleging the vendor (Peterborough Retail Portfolio LP) failed to satisfy conditions related to key tenant tenancies (Walmart and Dollarama).

The Court of Appeal upheld the application judge's finding that the vendor had made commercially reasonable efforts and provided substantial assurances, while the purchaser failed to act reasonably and in good faith by insisting on strict technical compliance to exit a contract it no longer desired.

The appeal was dismissed, and the respondent was awarded costs.

The appellants, purchasers of a new home, appealed an order declaring they repudiated an agreement of purchase and sale by failing to close and dismissing their counter-application for specific performance.

The Court of Appeal dismissed the appeal, finding no error in the application judge's conclusions.

The lower court correctly found that the vendor satisfied the requirements to extend the closing date due to "Unavoidable Delay" (COVID-19 related), was not obligated to deliver the occupancy permit before closing, and did not act in bad faith by refusing a further extension.

The appellate court affirmed the application judge's interpretation of the agreement and factual findings, noting they were entitled to deference.

This appeal addressed whether an innocent purchaser for value obtains good title to property sold under a power of sale, despite the mortgagee's breach of section 22 of the Mortgages Act (failure to provide a default statement, suspending enforcement rights).

The lower court had set aside the transfer.

The Court of Appeal allowed the purchaser's appeal, holding that the "Safe Harbour Protections" under sections 35 and 36 of the Mortgages Act and section 99(1.1) of the Land Titles Act protect an innocent purchaser, providing good title upon registration.

The mortgagor's remedy for the mortgagee's non-compliance lies against the mortgagee, not the innocent third-party purchaser.

The Court of Appeal for Ontario dismissed an appeal concerning the valid exercise of a lease renewal option.

The appellant argued the tenant's notice was not clear and unequivocal because it included proposals for new terms.

The court affirmed the motion judge's finding that the tenant's explicit statement of intent to renew was sufficient, as the lease anticipated ongoing negotiations for rent, and the additional proposals did not render the notice conditional.

This appeal concerned the validity of an email notice of waiver of a development condition in an Agreement of Purchase and Sale.

The appellants argued that the notice had to be hand-delivered, while the respondent contended that email delivery was sufficient given the contract's terms and the parties' communication practices.

The Court of Appeal upheld the trial judge's decision, finding that the email notice was valid.

The court emphasized a holistic interpretation of the agreement, giving precedence to negotiated terms in Schedule A over standard form provisions, and considering the parties' established practice of email communication.

The appeal was dismissed.

The appellant, Lydian Smith, appealed a Divisional Court decision affirming the Landlord and Tenant Board's finding that YouthLink Youth Services' transitional housing program was exempt from the Residential Tenancies Act, 2006 under s. 5(k).

The Court of Appeal affirmed that s. 5(k) and the newer s. 5.1 can co-exist, and that "rehabilitative or therapeutic services" in s. 5(k) include broader support services beyond medical care.

The court dismissed the appeal, finding that the Board and Divisional Court correctly interpreted the statutory exemptions and that the YouthLink program fell within the s. 5(k) exemption.

Winterland Airfield Holdings Ltd. appealed a Superior Court judgment that granted Collingwood Aviation Partners Ltd. (CAPL) declarations of unimpeded access to airport lands and exemption from user fees.

The Court of Appeal dismissed the appeal, affirming the application judge's interpretation of an Operating Agreement and finding of an implied easement for unimpeded access.

The court also upheld the finding that Winterland could not charge user fees for this access and that Winterland failed to prove CAPL was underinsured.

The appellants appealed a summary judgment that found Trevor Bond personally guaranteed a mortgage debt and challenged the calculation of the amount due, including a "bonus" interest, and the adequacy of notice for power of sale.

The Court of Appeal dismissed the appeal, upholding the motion judge's findings.

The court affirmed that objective contract interpretation applied to the personal guarantee, that the bonus interest was properly included based on the agreement, and that adequate notice for power of sale was provided.

This case involves a motion to quash an appeal in a mortgage priorities dispute.

The appellant, a second mortgagee, sought to appeal an application judge's determination regarding the enforceability and priority of charges under the first mortgage.

The respondent, the first mortgagee, moved to quash the appeal, arguing the order was interlocutory.

The Court of Appeal agreed that the order was interlocutory because the "very subject matter" of the litigation, specifically the enforceability and priority of the mortgage, had not been finally determined, as a trial of an issue regarding fraud was still pending.

Consequently, the appeal was quashed.

This appeal concerned an actionable encroachment on an easement.

The appellants built a swimming pool and amenities over a ten-foot strip of land subject to an easement held by the respondents, which prohibited the erection of any building or structure.

The application judge found an actionable encroachment and ordered removal.

The appellants appealed, arguing the easement was not intended to prohibit such structures, that the 'substantial interference' test was misapplied, and that the easement was abandoned or proprietary estoppel applied.

The Court of Appeal dismissed the appeal, affirming that the express prohibition in the easement constituted an actionable encroachment, and rejected arguments of abandonment or proprietary estoppel.

The appellant, 2484234 Ontario Inc., appealed the dismissal of its application for rectification and specific performance of a transfer agreement with the respondent, Hanley Park Developments Inc. The agreement concerned an easement over parts of the respondent's adjacent property for an access road to a proposed subdivision.

The appellant sought to rectify the agreement to include a fifth part of the property, which was essential for the access road and which the respondent knew was necessary but did not include in the formal agreement.

The application judge had dismissed the claim, finding no prior agreement on the fifth part and that the appellant had "unclean hands." The Court of Appeal allowed the appeal, finding that the application judge erred in interpreting the prior agreement, which, based on business efficacy and the duty of honest performance, implied an an obligation to include the necessary fifth part.

The Court also found the "unclean hands" finding was based on a misreading of the agreement.

Rectification was granted, and specific performance was ordered due to the uniqueness of the property.

The appellant, Newton Wong, appealed a summary judgment that ordered him to pay common expense arrears to the respondent, Carleton Condominium Corporation No. 476, and dismissed his counterclaim.

The appeal raised issues concerning the interpretation of statutory notice periods for condominium liens, the application of limitation periods to counterclaims, and vicarious liability.

The Court of Appeal dismissed all grounds of appeal, affirming the motion judge's decision that the lien notice was validly given, the counterclaim was statute-barred, and there was no basis for vicarious liability.

The appellant, David Aiello, appealed the dismissal of his motion to set aside a default judgment and noting in default.

The Court of Appeal found that the motion judge erred in principle and made palpable and overriding errors of fact in applying the factors for setting aside default judgment from Mountain View Farms Ltd. v. McQueen.

Specifically, the motion judge misapplied the first and second factors by considering the entire litigation history, ignored relevant facts regarding the appellant's default, and applied too high a standard for an arguable defence, failing to consider the quantum of damages as a viable defence.

The Court concluded that it would be unjust to prevent the appellant from having his day in court, given the significant prejudice of a multi-million dollar judgment and the overarching principle of determining proceedings on their merits.

The appellants appealed a summary judgment dismissing their action against the respondents as statute-barred under the Limitations Act, 2002.

The motion judge found the appellants discovered their potential cause of action in May 2006, but did not commence the action until April 2018, well beyond the applicable limitation periods.

The Court of Appeal found no palpable and overriding error in the motion judge's conclusion regarding the discovery date and dismissed the appeal, affirming the application of the Limitations Act.