Real Estate Law - ONCA

The appellant tenant appealed a summary judgment ordering it to pay over $1.1 million in alleged profits earned from a commercial sublease to the respondent landlord.

The motion judge had interpreted the lease to preclude the tenant from deducting the rent it paid for unusable open-air space on the sublet floor, and found the claim was governed by the 6-year limitation period under the Real Property Limitations Act.

The Court of Appeal allowed the appeal, holding that the motion judge's interpretation ignored the factual matrix and resulted in a commercial absurdity.

The tenant was entitled to deduct the full rent paid for the floor, meaning it incurred a $2.6 million loss, not a profit.

The Court also held that the obligation to remit profit was not 'rent', and therefore the 2-year limitation period under the Limitations Act, 2002 applied.

The appellant, Home Depot, appealed orders authorizing a receiver to sell a property free and clear of Home Depot's leasehold and equitable interests.

The motion judge had refused to draw inferences regarding whether the first mortgagee had impliedly consented to Home Depot's lease, stating he could only rely on undisputed facts.

The Court of Appeal allowed the appeal, holding that the motion judge erred in law by applying an incorrect standard of proof and failing to draw reasonable inferences from the evidence.

The matter was remitted for a new hearing.

The appellant appealed a finding that he breached a consent order prohibiting him from maintaining outside storage in his rear yard exceeding 75% lot coverage.

The appellant argued that 'lot coverage' included the area covered by a garage and sheds, meaning he could use 100% of the remaining open area for storage.

The Court of Appeal upheld the motions judge's interpretation that the order restricted the appellant to using 75% of the open areas of the lot as a whole for outside storage.

The appeal was dismissed.

The tenant obtained creditor protection under the CCAA and sent a letter to the landlord repudiating its commercial lease.

The landlord did not acknowledge or accept the repudiation.

The tenant subsequently went bankrupt, and the trustee in bankruptcy disclaimed the lease, disallowing the landlord's claim for unrecoverable expenses for the remainder of the lease term.

The landlord's successor appealed the dismissal of its motion to set aside the disallowance.

The Court of Appeal dismissed the appeal, holding that an unaccepted repudiation does not terminate a lease, and therefore the lease remained in effect at the date of bankruptcy and was subject to the trustee's statutory disclaimer.

The parties were joint venturers in property development who had a falling out, leading to the appointment of a Receiver to sell properties in Waterloo, London, and Oshawa.

The motion judge approved the Receiver's amended sales process, which included a stalking horse offer from the respondent, despite finding that the respondent had engaged in tactical conduct to derail the original sales process.

On appeal, the Court of Appeal held that the motion judge erred by disregarding the respondent's conduct when exercising her discretion, as the conduct undermined the integrity of the court-supervised sales process.

The appeal was allowed in part, and the Waterloo property was ordered sold to the appellant in accordance with his original bid.

The appellant appealed a judgment fixing the amounts owing under a commercial lease.

The Court of Appeal dismissed the appeal, finding no error in the application judge's interpretation of the offer to lease and renewal document.

The court also found no unfairness in the application judge fixing the actual amounts owing, as the appellant had a fair chance to present its position on quantification.

The appellant appealed a judgment enforcing a mortgage guarantee.

The appellant argued there was an implicit understanding that he would not be liable under the guarantee until the full mortgage amount was advanced, and that the respondent's failure to pursue $50,000 in a Crown forfeiture proceeding precluded the claim.

The Court of Appeal dismissed the appeal, finding no support for the implicit understanding in the mortgage or commitment letter, and holding that the failure to pursue the funds in the forfeiture proceeding did not preclude the claim against the guarantor.

The appeal was dismissed with costs.

The appellant real estate brokerage claimed a commission from the respondents based on an exclusive listing agreement.

The respondents had entered into a lease agreement and an agreement of purchase and sale with a third party during the extended term of the listing agreement.

The appellant argued this amounted to a completed transaction or an option to purchase.

The Court of Appeal upheld the application judge's dismissal of the claim, finding that the transaction was a lease pending a future sale, and any ambiguity in the broker-drafted agreement must be resolved in favour of the respondents.

The appellants appealed a trial judgment dismissing their action for a declaration of ownership or an easement over a small triangle of land on a shared driveway.

The Court of Appeal upheld the trial judge's finding that the respondents had established adverse possession, noting the finding was based on a reasonable assessment of witness testimony.

The Court also upheld the conclusion that no prescriptive easement was acquired, as there was no evidence the appellants were prevented from accessing their utility fixtures.

The appeal was dismissed with costs.

The appellant tenant appealed the dismissal of its action for a declaration that the termination of its commercial tenancy was invalid.

The Court of Appeal allowed the appeal and ordered a new trial, finding that the trial judge failed to determine the central issue of whether a termination clause had been consensually deleted from the lease.

Furthermore, the trial judge erred by relying on improperly admitted information regarding the corporate status of the landlord.

The appellant owned a cottage in a provincial park and historically accessed it by driving over beach property.

The Ministry terminated vehicular access, offering alternative parking.

The appellant sought a declaration of a legally enforceable right to drive over the beach, claiming it was a highway or she had an easement.

The trial judge dismissed the action, finding the Crown owned the beach, it was not a highway, and her prior use was by permission.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings on ownership, the application of the Public Lands Act, and the lack of an easement, as well as the trial costs award of $133,800.

The appellant appealed an order striking out his statement of claim, declaring him a vexatious litigant, and prohibiting further motions.

The Court of Appeal upheld the striking of the claim against one respondent for failing to articulate a valid cause of action.

However, the court set aside the vexatious litigant declaration because no notice was given, and set aside the prohibition on further motions as the appellant's conduct did not meet the threshold.

The court also granted the appellant leave to amend his statement of claim regarding alleged breaches of the Condominium Act and unjust enrichment, while upholding the striking of the remainder of the pleading.

The appellant purchased contaminated property at a reduced price.

The respondent, who caused the contamination, agreed to remediate the property to a specified standard and indemnify the purchaser for any loss arising from the contamination.

The appellant later sold the property at a profit but claimed damages under the indemnity for reduced profit due to 'contamination stigma'.

The Court of Appeal dismissed the appeal, finding the appellant suffered no loss as the reduced purchase price already accounted for the stigma, and the indemnity agreement did not cover this diminution in value.

The appellant closed an access road leading to the respondents' landlocked cottage properties after the respondents refused to pay an increased annual user fee.

The appellant argued it could close the road without a court order under the Road Access Act because the respondents had 'alternate road access' via an unopened municipal road allowance or by paying the requested fee for the existing road.

The Court of Appeal dismissed the appeal, holding that 'alternate road access' requires an existing, different road, and neither an unopened road allowance nor the same road subject to a fee qualifies.

The appellant tenant appealed a judgment dismissing its application under s. 23(2) of the Commercial Tenancies Act for an order finding that the respondent landlord unreasonably withheld consent to a lease assignment.

The Court of Appeal found that while the application judge set out the correct test, he erred by failing to consider whether the landlord's refusal was unreasonable in fact because it was designed to achieve a collateral purpose or benefit.

The appeal was allowed, the judgment set aside, and the matter remitted for a new hearing.

The mortgagee appealed the trial judge's decision to reduce the interest rate on the mortgage and deny costs.

The Court of Appeal allowed the cross-appeal, holding that the mortgagee was entitled in law to the interest rate called for in the mortgage, and that delay in bringing the action within the limitation period did not justify a reduction.

The court also awarded costs of the trial and the appeal to the mortgagee, noting that success was no longer divided and the judgment exceeded the offer to settle.

The appellant appealed a trial judge's finding that the transferors of property did not intend to create a trust.

The Court of Appeal held that the intention to create a trust is a finding of fact, reviewable only for palpable and overriding error.

The court found that the mere presence of the words 'in trust' in the transfer document was not determinative, and there was evidence supporting an absolute transfer, including nominal consideration and the transferee's labour and devotion to his parents.

The appeal was dismissed.

The appellant appealed a judgment ordering him to pay the respondent the shortfall from a mortgage default and subsequent power of sale.

The appellant argued he was not properly served with the Notice of Sale because it was sent to the abandoned mortgaged property rather than his known address in the United States.

The Court of Appeal dismissed the appeal, finding that service was in accordance with the Mortgages Act and that the appellant was well aware of the default.

The court also upheld the motion judge's finding that there was no triable issue regarding whether the sale was provident.

The appellant municipality purchased an abandoned railway line and developed it into a trailway.

When adjoining landowners demanded fencing under the Line Fences Act, the municipality passed a by-law designating the trailway as a public highway to exempt itself from the fencing obligation.

The application judge quashed the by-law, finding it was passed in bad faith to avoid the cost of fencing.

The Court of Appeal dismissed the municipality's appeal, holding that while courts owe deference to municipal decisions, good faith remains a central foundation for the validity of a by-law, and the record supported the finding of bad faith.

The appellant's home was fraudulently transferred to an impostor who then mortgaged the property to the respondent.

The respondent registered the mortgage without knowledge of the fraud.

The appellant sought to set aside the mortgage.

The Court of Appeal held that the Land Titles Act operates on the theory of deferred indefeasibility.

Because the respondent acquired its interest directly from the fraudster, it was an intermediate owner and its charge was invalid against the true owner.

The appeal was allowed and the mortgage was set aside.