Real Estate Law - ONCA

The appellants appealed a trial judge's finding that an offer to lease commercial premises did not constitute a binding lease agreement.

The trial judge admitted parol evidence showing the parties intended the offer to be preparatory to a formal lease and that the respondent never gained possession of the premises.

The Court of Appeal upheld the trial judge's findings, concluding that the parol evidence was admissible to determine the factual matrix and that the doctrine of part performance did not apply because possession was never granted.

The appeal was dismissed with costs.

The appellant appealed a decision declaring that its Oil and Gas Lease and Gas Storage Lease with the respondent had terminated.

The Court of Appeal upheld the termination of the Gas Storage Lease, finding the requirement to apply to the Ontario Energy Board within 10 years was a true condition precedent.

However, the Court reversed the decision regarding the Oil and Gas Lease, holding that a 'deemed production' clause in the Unit Operating Agreement kept the lease in full force and effect as long as the appellant continued to make annual rental payments, which it had done.

The appeal was allowed in part.

The appellants, a non-profit housing co-operative and a co-operative housing federation, appealed an order approving a receivership sale of the co-operative's assets to a municipality-controlled entity.

The appellants argued that the motion judge failed to properly consider the special nature of co-operative housing and the rights of its members.

The Court of Appeal dismissed the appeal, holding that the standard Soundair principles for approving a receiver's sale apply, and that the motion judge correctly balanced the special factors of social housing against the financial realities and statutory framework.

The plaintiff landlord appealed the dismissal of its action for damages for breach of a commercial lease.

The subtenant vacated the premises before the end of the sublease term, but rent was fully paid at the time.

The landlord immediately changed the locks and issued a notice of repudiation before the next rent payment was due.

The Court of Appeal upheld the motion judge's finding that the landlord fundamentally breached the lease by acting before any default occurred, entitling the tenant to treat the lease as at an end.

The appeal was dismissed.

The appellants appealed a trial judgment finding that a Memorandum of Understanding regarding a joint property purchase was a binding contract that they had repudiated.

The appellants argued the respondent breached fiduciary duties by attempting to obtain a secret commission.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's conclusion that the unsuccessful attempt to gain a secret commission did not amount to a breach of fiduciary duty, especially since the issue was raised late in the trial.

The court also upheld the remedy of rescission.

The appellant, a condominium unit owner, appealed an order restricting his statutory right to examine condominium records and prohibiting him from coming within 25 feet of the management office.

The application judge had found his unrelenting requests amounted to harassment.

The Court of Appeal allowed the appeal in part, finding the complete elimination of his statutory right of access and the broad injunctive relief too extreme, especially since the conduct did not amount to actionable harassment.

The court set aside the injunctive components but upheld the requirements that requests be made in writing and photocopying charges be paid in advance.

The appellants appealed a declaration that an agreement of purchase and sale became null and void due to their failure to properly deliver a notice of waiver of a due diligence condition.

The appellants argued that delivering the notice to the respondents' home and to a real estate representative satisfied the general notice provision in the agreement.

The Court of Appeal dismissed the appeal, finding that the specific language of Schedule A required the waiver notice to be brought to the personal attention of the sellers, which did not occur in a timely fashion.

The appellants, landlords in Oshawa, appealed a judgment ordering them to cease using their properties as lodging houses.

They argued their properties operated as single dwelling establishments for groups of tenants, primarily students.

The Court of Appeal upheld the application judge's finding that the properties were rented on a room-by-room, short-term basis, functioning as lodging houses rather than single housekeeping establishments.

The court also rejected the argument that s. 35(2) of the Planning Act precluded considering the relationship among renters.

The appeal was dismissed.

The appellant applied for a declaration that the City of Toronto was deemed to have consented to the demolition of three heritage buildings because it failed to decide the application within the 90-day period under s. 34(2) of the Ontario Heritage Act.

The application judge dismissed the application, finding the parties had agreed to extend the time period.

The Court of Appeal dismissed the appeal, holding that the application judge's conclusion was reasonable and entitled to deference, as the appellant's communications indicated a willingness to wait for the City's decision.

The appellant appealed a motion judge's decision finding that a proposed purchase agreement complied with the transfer provisions of a joint venture agreement.

The joint venture agreement required a co-owner to sell 'all' of its interest if selling without consent.

The Court of Appeal allowed the appeal, finding that the motion judge erred in concluding the interest was restricted to the plaza portion of the property.

The plain wording of the agreement and commercial reality dictated that the interest also included a vendor take-back mortgage and shareholder loans.

A declaration was issued that the purchase agreement did not comply with the joint venture agreement.

The appellant appealed a trial judgment regarding liability under a commercial lease and the dismissal of its counterclaim.

The Court of Appeal allowed the appeal, finding that the appellant had no liability for matters predating the 1999 lease under the assignment of lease.

The court also found no evidence of the cost to remove partitions erected by the appellant.

The main action was dismissed.

The court also allowed the appeal regarding the counterclaim, ordering a new trial because the trial judge provided no analysis on liability or damages.

An addendum was later released confirming the result despite counsel's correction regarding evidence of partition removal costs.

The appellant appealed from a summary judgment dismissing her counterclaim against the Bank of Montreal.

The motion judge had found no genuine issue for trial regarding allegations of uncredited principal payments and costs related to a power of sale.

The Court of Appeal found no error in the motion judge's conclusion and dismissed the appeal.

The appellants appealed a summary judgment dismissing their action regarding a land transaction.

The Court of Appeal upheld the motion judge's finding that the action was statute-barred.

The court held that the appellants' real estate lawyer had knowledge of a zoning problem in August 2000, and this knowledge was imputed to the appellants, triggering the limitation period.

The appeal was dismissed with costs.

The appellant purchased commercial land from the respondent and granted a Vendor Take Back Mortgage.

The mortgage contained a provision making it due and payable five days after the appellant obtained a shoring and excavation permit, and another provision allowing for prepayment on specific dates.

The permit was issued on January 10, making the mortgage due on January 15.

The appellant attempted to exercise the prepayment option on January 15.

The Court of Appeal upheld the application judge's finding that because the mortgage had matured and become due and payable on January 15, it could not be prepaid on that date.

The appellants appealed the dismissal of their application for a declaration that they had obtained an easement or covenant entitling them to domestic water from a well on the respondents' property.

The Court of Appeal upheld the trial judge's finding that the obligation to supply water was a positive covenant requiring the expenditure of money and the doing of acts, which does not run with the land.

The court also rejected the argument that a binding perpetual contract existed between the parties.

The appeal was dismissed with costs.

The appellants appealed a judgment regarding the interpretation of an amended agreement and the definition of an encumbrance.

The Court of Appeal dismissed the appeal, finding that the clear intention of the parties was for the respondent to receive $61,000 out of the net proceeds of sale.

Costs were awarded to the respondent.

The appellants appealed a trial judgment regarding liability and damages for property damage, including flower gardens, an excavated area, and a basement wall.

The respondents cross-appealed on costs.

The Court of Appeal dismissed both the appeal and the cross-appeal, finding ample evidence to support the trial judge's findings of fact, liability conclusions, and damages assessment, and no error in principle in the costs award.

Costs of the appeal were fixed at $25,000 payable to the respondents.

The appellant appealed a trial judgment that reduced its damages for a breached commercial sublease due to a failure to mitigate, and dismissed its claims against the individual respondent for inducing breach of contract.

The Court of Appeal held that the appellant had no obligation to renegotiate the sublease to mitigate damages, increasing the judgment against the corporate respondent.

However, the Court upheld the dismissal of the personal claims against the individual respondent, finding he acted in good faith as the directing mind of the corporation, which breached the lease simply due to a loss of revenue.

The award of solicitor-and-client costs to the individual respondent was also upheld due to unsubstantiated allegations of fraud.

The appellant, DeGasperis Muzzo Corporation, appealed a judgment declaring that the mortgage security interests of Montreal Trust and Stadco in the SkyDome ranked in priority to its leasehold interest in a SkyBox suite.

The Court of Appeal dismissed the appeal, agreeing with the trial judge that the mortgage instruments were registered prior to the leasehold interest under the Land Titles Act, and that the appellant had agreed to subordinate its interest in the lease.

The cross-appeal was also dismissed.

The appellant appealed a trial judgment granting specific performance with an abatement of the purchase price for an income property.

The Court of Appeal dismissed the appeal, finding that the appellant had not accepted the respondent's request for an abatement as a repudiation of the contract.

The Court upheld the trial judge's findings that the property was unique, the abatement was properly valued at $281,000, and the error in expenses, which reduced the purchase price by 10%, constituted a breach of a condition.