Real Estate Law - ONCA

The appellants purchased a swine farm from the respondent but suffered a loss when they could not secure a supply of pigs due to adverse market conditions.

They appealed the trial judge's dismissal of their claim for damages, arguing breach of good faith, negligent misrepresentation, and breach of contract because the barn was empty on closing.

The Court of Appeal dismissed the appeal, finding that the appellants had waived a condition regarding the supply of pigs and thereby assumed the risk of market changes.

The court also found no negligent misrepresentation due to an entire agreement clause and the appellants' direct discussions with the supplier, and concluded the contract did not require pigs to be in the barn on closing.

The appellant appealed the dismissal of his application for a declaration that a laneway on his property was private and not a public highway.

The municipality asserted the laneway was built on an existing public road to which it held title.

The Court of Appeal found no palpable and overriding error in the application judge's assessment of the survey and historical evidence, which established that the road had been dedicated and accepted as a public highway.

The appeal was dismissed.

The appellant's property was sold in a municipal tax sale, resulting in a surplus of over $76,000 which was paid into court.

The appellant missed the one-year statutory deadline to apply for payment out of court by three weeks, resulting in a deemed forfeiture of the funds to the municipality under s. 380(6) of the Municipal Act, 2001.

The application judge held he lacked jurisdiction to grant relief from forfeiture.

The Court of Appeal allowed the appeal, holding that s. 98 of the Courts of Justice Act provides jurisdiction to grant relief from the deemed forfeiture, as the statutory scheme does not expressly or implicitly preclude it.

The court granted relief from forfeiture and ordered the surplus paid to the appellant.

The respondents transferred their home to the appellant at below market value as part of a scheme to defraud creditors, with an oral agreement for re-conveyance.

When the appellant refused to re-convey the property, the respondents sued for unjust enrichment and a constructive trust.

The trial judge found the agreement of purchase and sale was a sham and ordered a re-conveyance based on unjust enrichment.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's application of unjust enrichment or the 'clean hands' doctrine.

The appellants purchased luxury hotel condominium units in the Trump International Hotel based on financial estimates provided by the developer, Talon.

The estimates projected significant returns but were based on uninformed opinions and understated expenses.

The appellants sued for misrepresentation.

The motion judge dismissed their claims, finding their reliance on the estimates unreasonable and barred by entire agreement clauses.

The Court of Appeal reversed, holding that reliance was reasonable and it would be unconscionable to enforce the exculpatory clauses given Talon's evasion of Securities Act protections.

The Court ordered rescission for one appellant and damages for the other.

The appellants appealed an order granting a writ of possession to the respondent assignee of a defaulted mortgage.

The appellants argued the motion judge's reasons were inadequate, the Farm Debt Mediation Act applied, the increased interest rate violated s. 8 of the Interest Act, the assignment constituted a new mortgage, the terms were unconscionable, and the motion judge erred by tying two mortgages together.

The Court of Appeal dismissed all arguments, finding the reasons adequate for a simple record, no evidence of farming, no violation of the Interest Act, and that the assignment merely amended existing terms.

The appeal was dismissed with costs.

The appellant landlord appealed a decision allowing the respondent tenant to exercise an option to purchase a commercial property.

The landlord argued the tenant was in default of rent payments.

The Court of Appeal upheld the application judge's finding that the tenant's obligation to pay rent was conditional on the successful completion of an asset purchase agreement, which had been delayed pending regulatory approval.

The tenant's cross-appeal for damages for rent paid during the delayed closing period was also dismissed due to a lack of evidence quantifying the loss.

The appellant appealed the dismissal of her action on a summary judgment motion.

The respondent corporation had signed an agreement of purchase and sale with the appellant's brother, which failed to close.

The appellant, who was not a party to the agreement, sued for specific performance and compensation for improvements she made to the property.

The Court of Appeal upheld the motion judge's finding that the appellant had no cause of action, as she was not a party to the contract and any work done prior to closing was at her own risk.

The appeal was dismissed.

The appellant appealed a motion judge's order regarding the distribution of funds following the sale of a property by a court-appointed receiver.

The appellant argued that the entire first mortgage ranked in priority to the receiver's charge for fees and expenses.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that the receiver's charge was subordinate only to the specific financial interest of the assignee who held the mortgage as security for a loan, rather than the entire principal amount of the first mortgage.

The respondent unit owner sought to convert its monthly commercial parking spots into an hourly operation, requiring changes to the condominium's common elements.

The condominium board refused to approve the changes unless the respondent hired a full-time security guard due to safety concerns.

The application judge found the board's condition unfairly disregarded the respondent's interests under s. 135 of the Condominium Act, 1998.

The Court of Appeal allowed the appeal, holding that the application judge improperly relied on untested evidence and failed to accord deference to the board.

Applying the business judgment rule, the Court found the board acted honestly, in good faith, and its decision to prioritize security over the respondent's economic interests was within a range of reasonable choices.

The parties disputed the interpretation of a rent-reset clause in two 100-year ground leases.

The landlord appealed a Superior Court decision that set aside an arbitral award valuing the lands based on a hypothetical freehold condominium development.

The tenants cross-appealed, arguing the leasehold interest should be valued and seeking a new arbitral panel.

The Court of Appeal dismissed the appeal and cross-appeals, holding that issue estoppel applied from a 1993 decision between the parties, meaning the lands must be valued as a freehold interest but excluding the potential for freehold condominium development because the lands are subject to a lease.

The court also affirmed remitting the matter to the original arbitral panel.

The appellant bank held a mortgage on a condominium owned by the respondent, who defaulted.

After default, the respondent leased the property to another respondent on highly favourable terms.

The bank applied under s. 52 of the Mortgages Act to set aside the tenancy.

The application judge dismissed the application, finding a conflict between s. 52 of the Mortgages Act and the Residential Tenancies Act.

The Court of Appeal allowed the appeal, holding that there is no conflict because setting aside a tenancy agreement under the Mortgages Act means the tenancy never existed, whereas terminating a tenancy under the Residential Tenancies Act brings a valid tenancy to an end.

The Wises severed their lakefront property, gifting one lot with road access to the appellants and retaining a water-access only lot.

The respondent bank, holding a mortgage on the retained lot, applied for an easement of necessity over the appellants' lot.

The application judge granted the easement, finding water access impractical and relying on public policy.

The Court of Appeal allowed the appeal, holding that the test for an easement of necessity is strict necessity, not practical necessity.

Because water access existed at the time of the grant, the property was not inaccessible, defeating the claim for an easement regardless of inconvenience.

The parties, who were partners in a land development project, disputed the interpretation of their Limited Partnership Agreement (LPA) and a subsequent 2005 document regarding the allocation of building lots.

The application judge declared the 2005 document enforceable and held that actions against a defaulting partner under Article 8.2 of the LPA required unanimous consent.

On appeal, the Court of Appeal upheld the enforceability of the 2005 document, finding it clarified an unclear term and was supported by functional consideration.

However, the Court allowed the appeal regarding Article 8.2, concluding that interpreting it to require unanimous consent would render other provisions meaningless and lead to commercially absurd results.

The appellant appealed a summary judgment dismissing his negligence action against a surveying company regarding a boundary dispute.

The motion judge found the claim was statute-barred under the Limitations Act, 2002, as the appellant knew of the encroachment and had sufficient information to sue more than two years before commencing the action.

The Court of Appeal upheld the decision, confirming the action was out of time and rejecting the appellant's procedural arguments regarding the timing of the summary judgment motion.

The appellant purchaser sought the return of its deposit after aborting a commercial real estate transaction due to environmental issues and a Ministry of the Environment Certificate of Prohibition registered on title.

The motion judge granted summary judgment dismissing the claim, finding the purchaser had waived the environmental condition and failed to adduce evidence that it had not received the environmental order.

The Court of Appeal dismissed the appeal, affirming that the waiver of the environmental condition effectively waived the title objection, and that the purchaser bore the evidentiary burden on summary judgment to prove it had not received the order.

The appellants appealed an order enforcing compliance with condominium rules under s. 134(1) of the Condominium Act, 1998.

The appellant tenant argued she was subjected to oppressive conduct by the condominium corporations.

The motion judge granted the compliance order, noting that no cross-application for an oppression remedy had been brought and that alleged oppressive conduct did not excuse breaching the rules.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's exercise of discretion to grant the compliance order.

The appellant sought to set aside four property transfers made by the respondent to his wife and her company under the Fraudulent Conveyances Act.

The trial judge found the 1987 and 1988 transfers were not fraudulent, but set aside the 1992 and 1993 transfers of the matrimonial home and a Florida property.

Both parties appealed the trial judge's findings of fact.

The Court of Appeal dismissed the appeal and cross-appeal, finding no palpable and overriding error in the trial judge's assessment of the evidence, his refusal to pierce the corporate veil, or his rejection of the laches defence.

Motions to admit fresh evidence were also dismissed.

The appellant, who had defaulted on his mortgage, moved for a stay of enforcement of a writ of possession and for an extension of time to perfect his appeal.

The court found no merit to the appeal, noting the appellant had not paid regular mortgage payments since late 2011 and failed to explain his delay in perfecting the appeal.

Applying the RJR-Macdonald test, the court concluded the balance of convenience did not favour a stay.

The motion was dismissed.

The appellants appealed a motion judge's declaration that an option agreement was valid.

The appellants argued the agreement failed to comply with s. 50(21) of the Planning Act because it did not expressly refer to s. 50, but only to the Act in general.

The Court of Appeal dismissed the appeal, holding that making the agreement conditional upon compliance with the Act as a whole was sufficient to satisfy the statutory requirement, as it is impossible to comply with the Act without complying with s. 50.