Real Estate Law - ONCA

The appellant municipality appealed a declaration that it was responsible for maintaining two roads leading to a First Nation reserve and an education centre following a municipal restructuring order.

The application judge had found the roads became municipal highways through statutory dedication under the Municipal Act and common law dedication by conduct.

The Court of Appeal allowed the appeal, holding that the Municipal Act provisions relied upon explicitly excluded provincial roads under Crown control.

Furthermore, the common law doctrine of dedication and acceptance could not apply because the public already enjoyed a statutory right of passage under the Public Lands Act, and the province had failed to use the available statutory mechanisms to transfer the roads.

The appellants appealed a decision granting priority to the respondent's equitable mortgage over their registered mortgage.

The Court of Appeal upheld the application judge's finding that the appellants had actual notice of the intended priority of the respondent's mortgage, meaning s. 93(3) of the Land Titles Act did not preclude the equitable mortgage from having priority.

The appeal was dismissed, with minor amendments to the formal order regarding subsequent encumbrancers and notice for power of sale.

The vendor of an apartment building appealed its property tax assessment and subsequently sold the property.

After closing, the assessment appeal succeeded, resulting in a tax refund that the City paid to the purchaser pursuant to s. 306(2) of the City of Toronto Act, 2006.

The vendor sought the refund, arguing unjust enrichment.

The Court of Appeal held that the right to the refund was a chose in action that did not run with the land and was not assigned to the purchaser.

The Court further held that s. 306(2) is merely an administrative provision and does not provide a juristic reason for the purchaser to retain the refund.

The appellant appealed the dismissal of her claims against her former solicitor and a charitable foundation regarding the transfer of her home with a retained life estate.

At trial, she argued non est factum and breach of fiduciary duty, both of which were dismissed based on credibility findings.

On appeal, she raised a new argument of solicitor negligence regarding ongoing property expenses, which the court declined to hear as it was not pleaded at trial.

The Court of Appeal upheld the trial judge's findings and the award of substantial indemnity costs, dismissing the appeal.

The appellant appealed a judgment determining title to certain former railway lands.

The application judge found the respondent had fee simple title to Part 1 and title to Part 15 subject to the appellant's possessory claim, directing a trial on whether the possessory claim was statute-barred.

The Court of Appeal dismissed the appeal, finding no error in the application judge's decision to require a trial for the limitation issue due to credibility concerns regarding discoverability, nor in her conclusion that the railway acquired title to Part 1 through legislated powers.

The appeal was dismissed with costs.

The appellant appealed a decision, arguing a trial was required for its claim that the respondent intentionally interfered with its economic relations with a tenant through the tort of nuisance.

The Court of Appeal dismissed the appeal, finding no evidence that the appellant suffered damages as a result of the respondent's conduct, particularly regarding lease renewals.

The appellants appealed an order requiring them to execute a specific release and indemnity in favour of the respondent bare trustees before the trustees would convey certain lands.

The Court of Appeal found that the release requested by the respondents was broader in scope than the release provided for in the underlying trust agreement.

The appeal was allowed, and the order was varied to require the appellants to execute a release only in the terms set out in the trust agreement.

The self-represented appellant appealed a summary judgment ordering him to pay a mortgage debt and give up possession of his property.

He argued that he had paid condominium fees, that the respondents wrongly discharged a lien against the property, and that he received no notice of non-renewal of the mortgage.

The Court of Appeal dismissed the appeal, finding no error by the motion judge, noting the mortgage had matured and the respondents properly paid the condominium corporation to satisfy the lien.

The appellant condominium corporation appealed a decision dismissing its application to force a unit owner to remove a hot tub from his exclusive use common element backyard patio.

The application judge found that the hot tub was not an 'addition, alteration or improvement' under s. 98(1) of the Condominium Act requiring board approval.

The Court of Appeal upheld this interpretation, agreeing that the hot tub did not change the structure of the property or increase its value, and was analogous to a barbecue or patio furniture.

The appeal was dismissed.

The appellant landlord appealed a decision finding that it had unreasonably withheld consent to the assignment of a commercial lease.

The application judge found as a fact that the landlord's sole interest in refusing consent was to secure a higher rent because the current rent was below market value.

The Court of Appeal dismissed the appeal, holding that this finding of fact was open to the application judge, though it noted that a demand for a rent increase is not always an unreasonable response to an assignment request.

The appellant appealed the dismissal of his application for an order compelling the City of Toronto to issue a building permit for a restaurant exceeding the size permitted by the applicable by-law.

The appellant argued he had a legal non-conforming use because his restaurant exceeded the size limit before it was destroyed by fire, and he challenged the validity of several by-laws for lack of notice.

The Court of Appeal upheld the application judge's findings that the appellant lost any legal non-conforming use when he previously reduced the restaurant's size to comply with the by-law to obtain a liquor license, and that the City had complied with the notice requirements for the by-laws.

The appeal was dismissed.

The appellants appealed an order closing an access road across the respondents' commercial lodge property, which the appellants had used to access their cottage since 1982 without a legal right.

The applications judge found the road was an 'access road' under the Road Access Act, the appellants had no legal right to use it, and exercised his residual discretion to grant a closing order.

The Court of Appeal dismissed the appeal, confirming that the conditions for granting a closing order under s. 3(1) of the Act are disjunctive, not conjunctive, and that the applications judge properly balanced the parties' competing interests and the public interest.

The appellant appealed a decision dismissing his application for an injunction to prevent the respondents from keeping a locked gate on a private road, and granting the respondents' cross-application to close the road under the Road Access Act.

The application judge found the appellant had alternate road access via a trail on Crown land using four-wheel-drive vehicles.

The Court of Appeal dismissed the appeal, holding that the application judge's finding of alternate access was supported by evidence.

The Court further held that once alternate access was established, the appellant had no standing to oppose the road-closing application.

The respondents' cross-appeal regarding a condition in the road-closing order was also dismissed.

The moving party sought to review an order of a single judge of the Court of Appeal that dismissed a motion to stay a writ of possession pending appeal.

The moving party's home had been sold for default of mortgage payments.

The Court of Appeal dismissed the motion to review, finding no grounds to set aside the order as the mortgage was undisputedly in default and the documents relied upon did not establish a renewal or compromise.

The appellants appealed the dismissal of their professional negligence action against the respondent lawyer on a summary judgment motion.

The appellants alleged the respondent negligently conducted a property transfer by naming improper vendors.

The motion judge found no genuine issue for trial because, even if the respondent was negligent, the appellants suffered no damages as no person with the right to sell the properties would have done so for the proposed price.

The Court of Appeal agreed that without damages, there is no sustainable action in negligence, and dismissed the appeal.

The appellant appealed a decision holding that the respondent acquired title to a 50-foot commercial sign located on the appellant's retained land when the respondent purchased an adjacent motel property.

The Court of Appeal found that the application judge did not err in concluding the sign was included in the sale as a chattel, given the broad definition in the Agreement of Purchase and Sale and the evidence of the transaction lawyers.

The Court further held that the easement for ingress and egress was intended to permit the placement and maintenance of the sign.

The appeal was dismissed, but the judgment was varied to declare that the easement permitted the sign's location.

The appellant landlord and its related corporate tenant appealed an order granting the respondent franchisor specific performance of an option to lease agreement.

The application judge found that the landlord and tenant acted in concert to frustrate the franchisor's attempt to enforce the option after the tenant terminated its franchise agreement.

The Court of Appeal dismissed the appeal, upholding the findings that the parties acted in concert, that the option agreement's true intent did not require the application of contra proferentem, and that the commercial premises possessed the requisite uniqueness to justify specific performance.

The appellants appealed a Superior Court judgment regarding a cottage property lease, arguing for the first time on appeal that the Superior Court lacked jurisdiction because the Residential Tenancies Act applied and gave exclusive jurisdiction to the Landlord and Tenant Board.

The Court of Appeal held that the Superior Court had jurisdiction over the equitable and monetary relief claimed, which exceeded the Board's jurisdiction.

The Court further declined to allow the appellants to raise the new statutory argument on appeal, citing the lack of a factual record, prejudice to the respondents, and the interests of finality.

The appeal was dismissed.

The appellant and respondent entered into an agreement to sublease commercial office space.

Due to construction delays, the anticipated occupancy date was pushed back by approximately six weeks.

The respondent treated this anticipated delay as a fundamental breach and repudiated the agreement, subsequently leasing cheaper space elsewhere.

The appellant accepted the repudiation, mitigated its damages by subleasing to third parties at a lower rate, and sued for the difference.

The trial judge dismissed the claim, finding the appellant in fundamental breach.

The Court of Appeal allowed the appeal, holding that a six-week delay in a three-year lease did not deprive the respondent of substantially the whole benefit of the contract and therefore did not constitute a fundamental breach.

Judgment was granted to the appellant for its losses.

The appellants appealed a decision regarding the validity of a Township fence bylaw, arguing it conflicted with the Region's zoning bylaw and therefore could not restrain the height of their fence.

The Court of Appeal found no conflict, noting the lands were zoned 'lakeshore' rather than 'residential', and the zoning bylaw's provisions on accessory uses explicitly excluded boundary fences.

The appeal was dismissed with costs awarded to the respondents.