Real Estate Law - ONCA

The appellants appealed an order granting a permanent injunction that restrained them from dumping fill or altering the grade of their property.

They argued the application judge erred in finding their activity was not a 'normal farm practice' and in not deferring to the Normal Farm Practices Protection Board.

The Court of Appeal dismissed the appeal, holding that the application judge's factual findings were supported by ample evidence and that he had jurisdiction to grant the injunction since neither party had applied to the Board.

The appellants, landlords of a multi-unit commercial property, appealed a decision finding that the respondent tenant was not responsible for the costs of repaving the parking lot.

The appellants argued that repaving fell under the lease terms for 'maintaining and repairing the property'.

The Court of Appeal dismissed the appeal, agreeing with the application judge that repaving was a capital expense rather than maintenance or repair, based on the wording of the lease and the reasonable expectations of the parties.

The appellant law firm acted for the purchaser in a commercial real estate transaction.

After closing, the purchaser discovered a 0.3 metre reserve on the property that required a significant cost recovery payment to the municipality for road access.

The purchaser successfully sued the law firm for negligence.

On appeal, the law firm challenged the negligence finding and the dismissal of its cross-claim against the vendor for contribution and indemnity.

The Court of Appeal dismissed the appeal, finding that the law firm failed to properly investigate the access issues raised by the reserve, and that the vendor had no legal or equitable obligation to disclose the unregistered cost recovery agreement.

The purchaser of a dry cleaning business sought to rescind the purchase agreement, claiming a common mistake regarding the property's zoning.

The motion judge granted rescission, finding the parties shared a mistaken assumption that the business was a 'permitted use' under the zoning by-law.

The Court of Appeal allowed the vendor's appeal, holding that the motion judge made a palpable and overriding error.

The Court found no evidence of a shared assumption about the technical 'permitted use' status, noting the business operated as a legal non-conforming use.

The Court also held that the purchaser bore the risk of zoning issues under the principle of caveat emptor, as the agreement contained no zoning conditions.

The purchaser appealed a trial decision finding that open web steel joists were not part of the structural steel included in an agreement of purchase and sale for a commercial property.

The Court of Appeal allowed the appeal, finding that the trial judge erred by relying on extraneous documents to interpret the agreement.

The Amending Agreement and the documents specifically referenced within it, including the purchase order and structural drawings, clearly included open web steel joists.

As the vendor failed to provide the joists, they breached the agreement, and the funds held in trust were ordered returned to the purchaser.

The appellants brought a fresh evidence motion as part of their appeal, seeking to introduce affidavits from two rabbis regarding the exact time the Sabbath began on February 19, 1999.

The evidence was intended to undermine the credibility of a respondent who testified that he could not have finalized a lease arrangement on that Friday afternoon due to the approaching Sabbath.

The Court of Appeal dismissed the motion, applying the Palmer test and concluding that even if the evidence were admitted, the minor discrepancy in the estimated time of the Sabbath would not reasonably be expected to have affected the trial judge's findings on credibility or the ultimate result.

The appellant tenants suffered $7,000,000 in water damage after a vandal opened a fire hose in an area used by the respondent independent contractor.

The tenants sued the contractor for negligence.

The contractor moved for summary judgment, arguing it was protected by a waiver of subrogation clause in the commercial lease between the tenants and the landlord, which extended to those for whom the landlord was 'in law responsible'.

The Court of Appeal upheld the summary judgment, finding that the landlord was in law responsible for the contractor due to an indemnity provision in the lease, and that the contractor met the Fraser River test to benefit from the clause as a third party.

The appellant landlord appealed a trial judgment awarding the respondent tenants $1,212,000 in damages for loss of business due to the wrongful demolition of the leased premises.

The appellant argued the trial judge erred in finding that demolition began while the lease was still valid, and raised issues of waiver and issue estoppel.

The Court of Appeal dismissed the appeal, finding the trial judge's factual conclusions were supported by the evidence and did not amount to a palpable and overriding error.

The court also found no merit to the waiver and issue estoppel arguments, noting the parties had agreed on the quantum of damages prior to trial.

The appellant appealed a summary judgment order dismissing its claim.

The Court of Appeal allowed the appeal, finding that the discoverability of the claim was a genuine issue requiring a trial.

The Court noted there was no evidence the appellant suffered loss or damage before selling the property in March 2010.

The appellant purchased a property at a tax sale and claimed a prescriptive right or easement to use a well located on the respondent's neighbouring property.

The trial judge dismissed the claim, finding that the appellant's use of the well was governed by a time-limited well-sharing agreement registered on the respondent's title, which expired in 2010.

The Court of Appeal upheld the trial judge's decision, confirming that the non-registration of the agreement on the appellant's title did not render it ineffective and that the express permission in the agreement precluded any prescriptive rights.

The appellants appealed a trial judgment regarding a collateral mortgage.

The Court of Appeal dismissed the appeal, agreeing with the trial judge that the limitation period did not begin to run until a demand was made.

Costs were awarded to the respondent in the amount of $7,500.

The first mortgagee, BDC, successfully applied for the appointment of a receiver over the debtor's assets.

The debtor and the second mortgagee sought to appeal the order, arguing the second mortgagee was entitled to exercise its rights under s. 22 of the Mortgages Act to put the first mortgage in good standing without paying HST arrears.

The Court of Appeal held that there is no automatic right to appeal a receivership order under s. 193 of the Bankruptcy and Insolvency Act.

The Court clarified the test for granting leave to appeal under s. 193(e) and denied leave, finding the proposed appeal was not prima facie meritorious and would unduly hinder the timely sale of the property.

The appellant appealed the dismissal of her claim for water damage to her property allegedly caused by the respondents, arguing the trial judge erred in credibility findings, was biased, and misapprehended evidence.

The Court of Appeal dismissed the appeal, finding the trial judge's factual and credibility findings were well supported and there was no reasonable apprehension of bias.

The respondents' cross-appeal for substantial indemnity costs was also dismissed, as the trial judge's costs decision was entitled to deference.

The appellants appealed a decision finding that the respondent's proposal to increase the occupancy of townhouse units to seven students, each with individual leases, did not constitute a boarding, lodging or rooming house under the Building Code.

The Court of Appeal allowed the appeal, finding that the proposed use provided lodging for more than four persons in return for remuneration, thereby meeting the definition under the Building Code.

The units as constructed could not accommodate the increase without violating fire exit requirements.

The appellant condominium corporation appealed the dismissal of its motion for summary judgment regarding a lien registered against the respondent's unit for unpaid common expenses.

The Court of Appeal held that under section 85 of the Condominium Act, a separate lien arises upon each default, meaning late registration only invalidates liens arising more than three months prior to registration.

However, the appeal was dismissed because the appellant failed to provide adequate written notice for the subsequent liens, as notice of an expired lien cannot cover subsequent defaults.

The appellants and respondents were involved in a long-standing boundary dispute concerning islands in Lake Huron.

The appellants reached a settlement with one of the defendants and sought to enforce it through consent orders.

The motion judge refused to grant the declarations contemplated by the settlement, finding they could affect the rights of the other defendants in the broader litigation.

The Court of Appeal upheld this decision, confirming that while the settling parties could resolve issues between themselves, they could not do so in a way that affected the other parties.

The appeal was dismissed, though some costs awards from the application were reduced.

The appellant appealed an order granting summary judgment which declared the parties to be 50% beneficial owners of a property based on a trust agreement.

The appellant argued that money owing under a prior agreement allowed him to walk away from the agreements, that the motion judge erred in refusing an adjournment, and that the notice of motion was deficient.

The Court of Appeal dismissed the appeal, finding no error by the motion judge, noting the appellant agreed to proceed, and finding no prejudice from any deficiency in the notice of motion.

The appellants appealed a trial judgment dismissing their claim against the respondent.

The trial judge found that the respondent had discussed his concerns with the appellant regarding a third party taking title to a property without being bound by a joint venture agreement.

The trial judge also found that the appellant instructed the respondent to proceed with the transfer regardless.

The Court of Appeal held that these findings of fact were supported by the evidence and did not constitute palpable and overriding errors.

The appeal was dismissed.

The appellant tenant appealed a summary judgment decision that found it had not validly exercised its lease renewal option.

The motion judge concluded that the parties' conduct did not amount to a waiver of the notice requirement and that post-deadline negotiations were for a new lease, not a renewal.

The Court of Appeal upheld the decision, finding the record supported the motion judge's conclusions and that the landlord did not act in bad faith by considering other tenant options.

The appeal was dismissed with costs.

The appellants appealed a summary judgment dismissing their action against the respondent vendors for breach of a real estate contract.

The appellants alleged the vendors misrepresented that certain repairs were completed prior to closing and failed to perform the work in a good and workmanlike manner.

The Court of Appeal upheld the motion judge's finding that the plain language of the agreement only required re-grading the soil.

The court also found no error in the motion judge's rejection of the appellant's credibility, noting the appellants failed to lead evidence that the repairs were improperly done.

The appeal was dismissed.