Real Estate Law - ONCA

The appellants appealed a summary judgment regarding monies owing on a second mortgage, arguing the motion judge erred in her treatment of the burden of proof, the interests of justice under Rule 20.04(2.1), and the finding of no genuine issue requiring a trial.

The Court of Appeal dismissed these grounds, finding the evidence insufficient to establish an agreement terminating liability upon giving up possession of the house.

The court also dismissed an application to introduce fresh evidence under the Palmer test.

However, the court allowed the appeal in part, reducing the judgment by $6,705.58 due to a lack of evidence supporting awards for service of notices of sale and additional legal fees.

The appellant appealed a decision determining he had no ownership interest in a disputed parcel of land.

The appellant argued the application judge lacked jurisdiction to decide ownership, but the Court of Appeal noted the appellant's own Notice of Application sought a declaration of ownership.

The Court found ample evidence supporting the application judge's decision, as the appellant's title only conveyed part of Lot 4, and the survey he relied upon erroneously included part of Lot 1.

The appeal was dismissed with costs awarded to the respondent.

The appellant appealed a decision finding that the respondent estate enjoyed a prescriptive easement over a disputed driveway.

The Court of Appeal upheld the application judge's finding that the continuous, frequent, uninterrupted, open, and peaceful use of the driveway without express permission since 1978 by the deceased and her family members established a prescriptive easement.

The appeal was dismissed with costs.

The appellant appealed a summary judgment granting possession of his property to the first mortgagee and dismissing his counterclaim against the first and second mortgagees, as well as an order striking his claim against the mortgagees' lawyer.

The appellant argued that the two mortgages were intrinsically linked and the second mortgagee's failure to advance funds caused his default on the first mortgage.

The Court of Appeal dismissed the appeals, finding that the mortgages were separate, the failure to advance funds was due to the appellant's own failure to remove an execution and provide an appraisal, and the lawyer owed no duty of care to the appellant.

The appellant property owner appealed a summary judgment declaring that the respondent cottagers had acquired a prescriptive easement over a laneway owned by the appellant.

The appellant argued the motion judge erred by failing to apply the principle of illegality regarding a municipal by-law and by finding sufficient evidence of winter use.

The Court of Appeal dismissed the appeal, finding no connection between the alleged by-law breach and the easement issue, and no palpable and overriding error in the motion judge's treatment of the evidence of continuous year-round use.

The appellant condominium corporation appealed a judgment finding that an easement had been created by proprietary estoppel.

The Court of Appeal dismissed the appeal, finding an evidentiary basis that all conditions for proprietary estoppel, including unconscionability, were met based on the course of dealings with the respondent's predecessor in title.

The Court also held that s. 50(14) of the Planning Act provided a complete answer to the appellant's arguments regarding subdivision control.

The appeal was dismissed with costs fixed at $10,000.

The appellants appealed a judgment granting the respondent bank the right to enforce a defaulted mortgage.

The appellants argued that the discovery of asbestos substantially increased their costs and sought more time to pay.

The Court of Appeal dismissed the appeal, noting that the appellants had missed about a year and a half of payments and failed to refinance despite a previous adjournment.

The court affirmed that the appellants have no defence to the action but retain the right to redeem the mortgage at any time before the property is sold.

The appellants appealed an interlocutory order that struck their claim against a corporate representative personally and imposed conditions on an injunction restraining mortgage enforcement.

The Court of Appeal dismissed the appeal, finding that the pleadings disclosed no personal cause of action against the representative and that the motion judge properly exercised his discretion in requiring the appellants to pay renewal fees and monthly mortgage payments as a condition of equitable relief.

The appellant judgment creditor attempted to enforce a judgment through a sheriff's sale of the debtor's home.

The sheriff required mortgage discharge statements, which the respondent mortgagees refused to provide citing privacy concerns.

The Court of Appeal upheld the application judge's finding that the Personal Information Protection and Electronic Documents Act (PIPEDA) prohibited the disclosure of the mortgage statements without the debtor's consent, as they constituted personal information and no statutory exemption applied.

The Minister of Transportation appealed a Divisional Court decision upholding an Ontario Municipal Board compensation award for expropriated land.

The dispute centered on the 'before and after' valuation method, specifically whether development and delay costs were double-counted when calculating the 'after' value of the remaining parcel.

The Court of Appeal found that deducting the full development costs while also factoring in the betterment of the remaining lands amounted to double-counting.

The appeal was allowed, and the compensation payable to the respondent was reduced from $1,110,344 to $623,121.

The appellant appealed a trial judgment finding him personally liable for a pre-incorporation lease he signed.

The Court of Appeal upheld the trial judge's finding that the corporation did not signify its intention to be bound by the lease within a reasonable time after coming into existence, as required by s. 21(2) of the Business Corporations Act.

The appeal was dismissed with costs.

The appellants appealed a trial judgment granting a mandatory injunction requiring them to remove a retaining wall that encroached on the respondent's adjacent commercial property.

The original encroachment was permitted under a 1973 settlement agreement, which stipulated that consent would be rescinded if further encroachment occurred.

The trial judge found that the wall had moved significantly, rescinding the consent and rendering the encroachment a trespass.

The Court of Appeal upheld the trial judge's findings that the encroachment constituted a trespass, that the appellants had not acquired title by adverse possession because their possession was consensual, and that a mandatory injunction was the appropriate remedy given the significant and ongoing interference with the respondent's property rights.

The appeal was dismissed.

The purchasers entered into an agreement to buy land, but it was later discovered the vendor owned 12% less land than described.

The purchasers sought specific performance with an abatement of the purchase price.

The trial judge dismissed the claim for an abatement and allowed the vendor's counterclaim for delay damages.

On appeal, the Court of Appeal reversed the decision, holding that a purchaser is generally entitled to specific performance with an abatement where the vendor cannot convey the whole property, and the trial judge erred in his application of equitable principles.

The appeal was allowed, the abatement granted, and the counterclaim dismissed.

The respondents sought a declaration that a route across the appellant's land was an access road under the Road Access Act.

The trial judge found an access road existed and granted an injunction allowing the respondents access.

The trial judge also found the appellant in contempt for breaching interim orders.

On appeal, the Court of Appeal set aside the injunction because it was not properly before the trial judge, and set aside the finding that an access road existed because the trial judge failed to properly consider evidence of overgrowth and the respondents' actions in clearing the route.

The matter was remitted for re-determination.

The finding of contempt was upheld.

The appellants appealed a motion judge's decision granting partial summary judgment to the respondent municipalities.

The motion judge had dismissed the appellants' claim that the expropriation of their mall lands for a new Toyota plant was illegal per se.

The Court of Appeal allowed the appeal, finding that genuine issues for trial existed regarding whether the expropriation price was below fair market value (constituting an illegal bonus under the Municipal Act), whether the expropriation conformed to the official plan under the Planning Act, and whether the municipality acted in bad faith.

The appellant appealed a motion judge's interpretation of a consent order regarding the sale of a jointly owned property.

The motion judge interpreted the order as giving the respondent the election to either sell the property to a third party or acquire the appellant's interest directly, rather than requiring an open market sale where the respondent would have to bid.

The Court of Appeal dismissed the appeal, finding that the motion judge's interpretation of the consent order was reasonable, made sound commercial sense given the breakdown of the parties' relationship, and was entitled to deference.

The appellant appealed a judgment extinguishing its title to a triangular parcel of land based on adverse possession.

The appellant argued the trial judge failed to consider the nature of the use of the surplus land and whether the respondent's actions were sufficiently inconsistent with that use.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's conclusion that the respondent's predecessor in title had paved the parcel, placed curb stones, and used it constantly for parking, effectively excluding the true owner.

The appellant condominium corporation brought an application to remove the respondent's cats from her unit, after a previous identical application by the unit owner was dismissed and not appealed.

The application judge dismissed the second application as an abuse of process.

The Court of Appeal upheld the dismissal, finding that the appellant was an active participant in the first application and that permitting the second application would be manifestly unfair to the respondent by forcing her to relitigate the same issue.

The appellants appealed a decision regarding the voting rights of owners of parking and storage units.

The Court of Appeal dismissed the appeal, agreeing with the lower court that under section 49(3), owners of such units are not entitled to vote, subject to the statutory exception.

The appellant appealed an order denying his application to amend his counterclaim to add a claim for specific performance.

The motion judge had refused the amendment without explanation, stating the claim was untenable, and failed to reference Rule 26.01 of the Rules of Civil Procedure.

The Court of Appeal found that the respondents' arguments regarding prejudice and election of remedies were matters for trial, not grounds to deny the amendment.

The appeal was allowed, and leave to amend was granted.