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 appellant municipality appealed a decision quashing a by-law that authorized a licence agreement for a jet boat tour operator to use a municipal dock.

The application judge had found the by-law contravened the Planning Act because the use did not conform to the Official Plan's 'Conservation' designation and was not a legal non-conforming use.

The Court of Appeal allowed the appeal, finding that the jet boat operation was a legal non-complying use under the Official Plan, as it was lawfully established by a prior by-law before the Plan was adopted.

The Court also found the licence agreement was not an unlawful disposition of land and did not create an illegal monopoly.

The appellant appealed the dismissal of his claim for possessory title over a family cottage property and sought an increase in an $18,000 unjust enrichment award for improvements made to the land.

The respondents cross-appealed the unjust enrichment award.

The Court of Appeal held that the appellant's parents occupied the property as licensees under a family arrangement, not as tenants at will, meaning the limitation period under s. 5(7) of the Real Property Limitations Act was never triggered.

The Court upheld the unjust enrichment award, finding the application judge reasonably assessed the value of the improvements.

Both the appeal and cross-appeal were dismissed.

The appellant condominium developer appealed a trial judgment finding it liable for failing to disclose sufficient information regarding an HVAC equipment lease in a disclosure statement provided to prospective purchasers.

The trial judge held that the failure to include the lease term, total cost, interest rate, and purchase option price violated s. 52(5) of the Condominium Act.

The Court of Appeal allowed the appeal, finding that the disclosure statement accurately disclosed the existence and first-year cost of the lease, which was sufficient to meet the statutory requirements.

The failure to provide further details was not a material omission, and the condominium corporations did not suffer a loss in reliance on the statement.

The appellants appealed a summary judgment dismissing their action to discharge a 1979 debenture registered against their lands, which they claimed was unenforceable due to expired limitation periods.

The motion judge had found the debenture was not statute-barred because a receiver had been appointed and its validity was determined in a prior fraudulent conveyance action.

The Court of Appeal allowed the appeal, finding the motion judge erred in her legal conclusions and that the record did not support summary judgment for either party.

The cross-motion for summary judgment was dismissed, and the matter was ordered to proceed to trial.

The appellant purchased a new condominium townhouse and subsequently discovered serious water leaks and mold.

She sued the developer, municipality, and various engineers involved in the project for negligence and breach of contract.

The motion judge granted summary judgment dismissing the action against three sets of engineers, finding they owed no duty of care to the appellant under the Anns/Cooper test and that the Professional Engineers Act does not create a private law duty of care.

The Court of Appeal upheld the dismissal, noting the engineers had no contractual relationship with the appellant, their design was not shown to be negligent, and their limited on-site inspection duties did not require physical testing.

The appellant appealed an order finding that its solicitor, retained to discharge a mortgage, fraudulently diverted the respondent's repayment funds to himself.

The Court of Appeal dismissed the appeal, holding that the application judge's findings were well supported by the record.

The appellant appealed a decision regarding the usage of a full laneway to access the back of her property.

The Court of Appeal dismissed the appeal, finding that even if usage could be established, it would merely provide an alternative second way to access the property and did not rise to the level of reasonable necessity for the better enjoyment of the property.

The respondent lawyer, acting for a purchaser, sought to enforce an agreement of purchase and sale for the appellant's property.

The appellant had signed back an offer with a three-year rent-free occupancy clause.

The respondent delivered an accepted offer along with a letter and an amending agreement proposing a one-year occupancy.

The trial judge found a binding agreement for the three-year occupancy.

The Court of Appeal reversed, holding that the delivery of the accepted offer alongside the amending agreement and letter did not constitute a clear and unequivocal acceptance of the counter-offer.

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 respondent landlord leased commercial premises to a corporate tenant within the Brick enterprise.

The lease was subsequently assigned and sublet to other entities within the enterprise.

When the sub-tenant vacated the premises early and stopped paying rent, the landlord sued the parent corporation, arguing it was liable under a Consent and Acknowledgement agreement and the oppression remedy.

The trial judge found liability under the oppression remedy.

The Court of Appeal dismissed the appeal, finding that the parent corporation was directly liable to the landlord for the unpaid rent under the terms of the Consent and Acknowledgement agreement, making it unnecessary to rely on the oppression remedy.

The appellant appealed a trial judgment ordering it to pay a real estate commission to the respondent broker for the sale of a municipal property.

The trial judge found the parties had an oral agreement that a commission was payable, but disagreed on the rate, and applied section 34(2) of the Real Estate and Business Brokers Act to set the rate at the generally prevailing community rate of 3.75 percent.

The Court of Appeal dismissed the appeal, finding ample evidence to support the trial judge's conclusion of an oral agreement and agreeing that section 34(2) was correctly applied to resolve the dispute over the rate.

The appellant appealed a summary judgment granted against her regarding a mortgage she executed.

She argued the motion judge improperly determined credibility issues and shifted the burden of proof when rejecting her defences of misrepresentation, non est factum, lack of independent legal advice, and improvident sale.

The Court of Appeal dismissed the appeal, finding the motion judge correctly applied the test for summary judgment and properly concluded the appellant's bald assertions and lack of evidence failed to raise a genuine issue for trial.

The appellant appealed the dismissal of his action for damages for breach of an agreement of purchase and sale for a custom home.

The trial judge found the respondent was entitled to terminate the contract because a building permit could not be obtained for the appellant's non-conforming plans.

The Court of Appeal upheld the dismissal of the breach of contract claim, finding no palpable or overriding error in the trial judge's conclusion that the appellant's insistence on non-conforming features caused the failure.

However, the Court allowed the appeal in part to order the return of the appellant's $20,000 deposit, as the agreement had been terminated.

The appellants, a corporation and its undisclosed principal, breached an agreement to purchase land after the real estate market collapsed.

The trial judge assessed damages at the date of closing and held a third-party corporation and its principals liable on an undertaking as to damages given during an interlocutory injunction.

On appeal, the Court of Appeal upheld the damages assessment against the appellants, finding the sealed contract rule inapplicable.

However, the Court allowed the third parties' appeal, concluding that the injunction did not cause the appellants' damages, which resulted instead from the market collapse and their deliberate refusal to close.

The franchisor of a shoe repair business went bankrupt, and its assets were purchased by the appellant.

The respondent franchisees sought to assume direct tenancies with their respective landlords under s. 39(2) of the Commercial Tenancies Act.

The appellant argued that the landlords had not consented to the subleases 'in writing' as required by the Act.

The Court of Appeal held that the landlord's approval need not be in writing and can be implied by conduct.

The Court also dismissed the franchisees' cross-appeal, finding no fundamental breach of the franchise agreements by the franchisor.

The appeal concerned whether a municipality widening a road and installing a continuous centre median was required under s. 298(1) of the Municipal Act to provide another means of access to a commercial property whose direct left-turn access was restricted but not entirely eliminated.

The court held that s. 298(1) applies only where the effect of the by-law is to deprive the landowner of the only means of ingress and egress to the highway.

A mere limitation on access, even if commercially significant, does not trigger the statutory right to alternate access.

The respondents' remedy was confined to compensation for injurious affection under the Expropriations Act.

The appeal was allowed and the declaratory relief was set aside.

The appellant appealed a judgment regarding the prepayment of a mortgage.

The Court of Appeal found that the respondent was entitled to prepay the mortgage without notice or bonus as it was not in default.

However, the respondent was not relieved of the obligation to make proper tender of the principal and interest.

The appeal was allowed in part to award the appellant additional interest from the date of attempted prepayment to the date of proper tender.