Real Estate Law - ONCA

The appellants appealed a motion judge's decision dismissing their motion to set aside a default judgment and writ of possession.

The appellants failed to provide a plausible explanation for their delay in moving to set aside the judgment.

The Court of Appeal rejected an attempt to introduce fresh evidence regarding an alleged forbearance agreement, finding it would fail the Palmer test as the evidence was available at the time of the original motion.

The appeal was dismissed with costs awarded to the respondent.

The respondent, an architect, began constructing a new home with the intention of occupying it with his family.

When his existing home failed to sell, his intention changed, and he eventually sold the new home.

He was charged with acting as an unregistered builder and failing to enrol the home under the Ontario New Home Warranties Plan Act.

The Court of Appeal upheld his acquittals, finding that the statutory definition of 'builder' applies to those who undertake construction for the purpose of sale from the outset, not to those who begin building for personal use and later change their intention.

The Ministry of Transportation (MTO) appealed a decision validating a mining claim staked on Crown land where the MTO was planning a new highway route.

The MTO argued the land was in 'actual use' and thus exempt from staking under the Mining Act.

The Mining and Land Commissioner found the MTO's preliminary planning activities did not constitute 'actual use'.

The Court of Appeal applied a reasonableness standard of review and upheld the Commissioner's decision, finding that drawing the line between preliminary and substantive use was within the Commissioner's expertise and the outcome was reasonable.

The appellant appealed a judgment dismissing its request for rectification of a definition in an Agreement of Purchase and Sale based on mutual mistake.

The dispute centered on the definition of 'Gross Floor Area' (GFA) and whether it should be rectified to correspond with a site-specific by-law rather than the City of Toronto By-law specified in the agreement.

The Court of Appeal dismissed the appeal, finding no mutual mistake because the respondent clearly intended to use the City of Toronto By-law definition to determine any increase in GFA.

The purchaser bought a house and subsequently discovered serious latent structural and plumbing defects.

The vendors had completed a Seller Property Information Sheet (SPIS) indicating no ongoing problems, which the real estate agent, acting for both parties, passed on without verification.

The purchaser recovered under her title insurance policy but also sued the vendors and the agent.

The trial judge found the vendors liable for negligent misrepresentation but dismissed the claims against the agent.

On appeal, the Court of Appeal upheld the vendors' liability and the application of the private insurance exception to prevent deduction of the insurance proceeds.

The Court allowed the purchaser's cross-appeal, finding the real estate agent negligent for failing to verify the vendors' representations or recommend an independent inspection, and apportioned fault equally between the vendors and the agent.

The appellant appealed an order of the Superior Court of Justice.

On consent, the Court of Appeal allowed the appeal, set aside the lower court's order, and ordered no costs.

The appellants appealed a partial summary judgment granted on a $400,000 promissory note given to the respondent vendor on the closing of a real estate transaction.

The appellants sought to set-off claims against the note, but the motion judge only permitted two conceded claims to go to trial and granted summary judgment for the balance.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's conclusion that there were no genuine issues for trial regarding the other set-off claims, nor in his decision not to stay enforcement of the judgment pending the trial of the counterclaims.

The appellants appealed an order regarding rental arrears.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that any offset or deduction of rental arrears must be addressed in the related mortgage action, potentially requiring the addition of a party to that action.

The appellant tenant sought a declaration that it validly exercised its option to renew a commercial lease.

The respondent landlord refused the renewal, citing the tenant's failure to properly insure the premises in accordance with the lease.

Although the tenant eventually corrected the insurance defect, a slip-and-fall injury occurred on the property the day before the insurance was rectified, leading to a lawsuit against both parties.

The Court of Appeal upheld the application judge's finding that the breach was not "spent" but subsisting, as the landlord faced an ongoing cause of action rooted in the tenant's failure to insure.

The appeal was dismissed, and relief from forfeiture was denied.

The appellants appealed a decision interpreting a right-of-way over their cottage property in favour of the respondent's adjacent property.

The appellants argued the right-of-way only permitted maintaining a water pipeline, or alternatively, that the rights should be exercised on the same side of the property.

The Court of Appeal dismissed the appeal, upholding the application judge's finding that the instrument created two distinct rights: one for recreational lake access on the east side, and another to use a pump in the boathouse on the west side.

The court declined to rewrite the instrument to combine the rights-of-way.

The appellant appealed a trial judgment interpreting a commercial lease.

The trial judge found the initial term of the lease was 25 years, not 5 years, and ordered the appellant to pay $24,000 for a roof sign rental.

On appeal, the appellant argued judicial bias, misinterpretation of the lease, and unilateral mistake.

The Court of Appeal dismissed the appeal, finding no evidence of bias, supporting the trial judge's interpretation of the lease, and agreeing that the true intent of the parties was a 25-year initial term.

The appellant tenant operated a gas bar on premises leased from the respondent landlord.

After discovering a failed underground fuel line, the tenant capped it, terminated the lease, and vacated the premises, leaving the underground tanks and lines behind.

The landlord successfully applied for a declaration that the lease required the tenant to repair the tanks and lines.

On appeal, the Court of Appeal found that the underground tanks and lines were 'trade fixtures' rather than 'improvements' under the lease.

Because the lease's repair obligation applied only to improvements, the tenant had no duty to repair the trade fixtures.

The appeal was allowed and the landlord's application was dismissed.

The landlord terminated a commercial head lease and locked out the tenant, which prevented the subtenant from using the exterior wall for advertising.

The subtenant sued the landlord for the tort of intentional interference with contractual relations and economic interests.

The trial judge found the landlord liable.

On appeal, the Court of Appeal reversed the decision, holding that the trial judge erred in equating the foreseeability of harm to the subtenant with an intention to injure.

The evidence did not establish that the landlord knew of the subtenant or intended to harm it when the decision to terminate the head lease was made.

The appellants, who engaged in 'assessment farming' on lands zoned for employment and commercial uses, applied to the Normal Farm Practices Protection Board for an exemption from a municipal zoning by-law under the Farming and Food Production Protection Act, 1998.

The Board granted the exemption, but the Divisional Court set aside the decision.

On appeal, the Court of Appeal affirmed the Divisional Court's decision, holding that the Act protects normal farm practices on agricultural lands but does not grant the Board jurisdiction to override municipal zoning by-laws that prohibit farming as a land use.

The respondent condominium corporation suffered flooding due to a failed standpipe system and sought $600,000 for its replacement under an all-risk insurance policy issued by the appellant.

The application judge found the loss was covered, ruling that a water hammer event caused the damage and that section 99(3) of the Condominium Act nullified the policy's exclusion for faulty design.

The Court of Appeal allowed the insurer's appeal, holding that the standpipe system was improperly designed before the insurer came on risk, making the failure a non-fortuitous event.

The court further held that the loss fell squarely within the policy's exclusion clause and that section 99(3) did not apply because the damage was not resultant damage.

The appellant appealed a decision finding no de facto expropriation effected by an open space by-law.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that there was no de facto expropriation.

The Court declined to consider whether the respondent had the power to require dedication of the Woodlot as a condition to site plan approval, as the issue was not raised in the pleadings or below.

The Court also found no basis in the pleadings for an allegation of malfeasance of public office.

The appellant commercial tenant appealed an order granting relief from forfeiture on strict terms.

The tenant argued that the landlord's notice of default did not comply with s. 19(2) of the Commercial Tenancies Act and that the terms of the relief, which required extensive repairs and financial disclosure, were too strict.

The Court of Appeal dismissed the appeal, finding the notice of default sufficient and the terms of the discretionary relief appropriate and within the scope of the lease.

The appellants appealed a decision ordering the issuance of a building permit.

The application judge had found that a zoning by-law was passed on November 28, 2005.

The Court of Appeal held that the November 28 decision was merely a resolution, and the by-law was not actually passed until January 9, 2006, in accordance with s. 249(1) of the Municipal Act, 2001.

Furthermore, the City properly determined under s. 34(17) of the Planning Act that no further public notice was required for the by-law changes.

Because the respondents' building permit application was deficient until after the new zoning by-law was passed, there was no basis to order the permit's issuance.

The appeal was allowed.

The appellant appealed an order of the motion judge regarding a mortgage.

The Court of Appeal allowed the appeal conditionally, noting that critical information regarding a bank error was not before the motion judge.

The order was set aside on the condition that the appellant pays the second mortgage in full plus costs within 30 days.

The appellants appealed a decision dismissing their claim for fee simple title to a disputed property based on adverse possession.

The appellants had occupied the land and built a cottage under a 40-year written agreement with the respondent's father, paying an annual fee and property taxes.

The Court of Appeal upheld the trial judge's finding that the appellants' occupation was by permission, not adverse, open, and notorious possession with the intent to exclude the owner.

The appeal was dismissed.