Real Estate Law - ONCA

The claimant owned a truck stop on Highway 17.

The Province constructed a new section of Highway 417 for public safety reasons, which rerouted traffic and altered access to the claimant's property.

The claimant sought compensation for injurious affection under the Expropriations Act.

The Ontario Municipal Board awarded damages, finding the interference constituted an actionable nuisance and resulted from the construction, not the use, of the highway.

The Divisional Court upheld this decision.

On further appeal, the Court of Appeal held that while the interference was substantial, the Board erred in its reasonableness analysis by failing to properly balance the competing interests, particularly the significant public utility of the new highway.

The Court of Appeal concluded the interference was not unreasonable, allowed the appeal, and dismissed the claimant's claim for injurious affection.

The appellant appealed a trial judgment regarding the eastern boundary of a traversing easement.

The Court of Appeal found that the trial judge erred by drawing the boundary adjacent to the appellant's house and over part of her front lawn, rather than reflecting the historical use of the property.

The appeal was allowed, and the judgment was varied to limit the easterly boundary of the traversing easement and adjust the possessory title accordingly.

The appellant appealed an order regarding her interest in a property located on Roncesvalles Avenue.

The Court of Appeal dismissed the appeal, finding that any interest the appellant had was compromised in minutes of settlement in July 2002, which resulted in a court order transferring the property to the respondents.

As no appeal was taken from that prior order, the appellant had no claim to an accounting of the proceeds of the sale.

The appellants appealed a trial judgment regarding a 1995 trust agreement and a purported 1998 property transfer.

The appellants argued the trial judge misapprehended evidence regarding the mother's capacity to transfer the property.

The Court of Appeal dismissed the appeal, finding no basis to interfere with the trial judge's findings of fact, which were supported by powerful evidence from a solicitor and a doctor.

The appellant appealed a decision regarding the distribution of proceeds from a mortgage sale.

The appellant sought to include future litigation costs related to claims of improvident sale or slander of title as 'expenses incident to the sale' under s. 27 of the Mortgages Act.

The Court of Appeal dismissed the appeal, holding that future costs are not 'then due' and therefore do not fall within s. 27.

The court also found no declaration in the mortgage permitting the parties to contract out of the Act under s. 30.

The appellants appealed an order of the motion judge regarding a real estate offer.

The Court of Appeal found no palpable or overriding error, agreeing that the offer presented did not meet the requirements of a prior court order because it was conditional and not at arm's length.

The appeal on the merits and the appeal as to costs were both dismissed.

The appellant landlord appealed a trial judgment ordering it to pay damages to the respondent tenant based on promissory estoppel.

The trial judge found the tenant undertook renovations based on the landlord's representation that the premises could be used for film and photography, but the landlord later interfered with this business.

The Court of Appeal upheld the liability finding but reduced the damages award from $55,120 to $34,120, finding the trial judge failed to adequately consider evidence of a slow market when calculating lost revenue.

The appellant's husband gave a mortgage to the respondent to secure a loan, which the appellant guaranteed.

When the mortgage matured, the husband forged the appellant's signature on a renewal agreement without the respondent's knowledge.

After the husband defaulted, the respondent sold the property under power of sale and sued the appellant for the deficiency.

The Court of Appeal dismissed the appellant's appeal, holding that the clear and unambiguous language of the original guarantee bound her until the moneys originally advanced were fully paid, regardless of the forged renewal.

The appellant appealed an order of a motion judge who proceeded while an appeal on a related matter was outstanding.

The Court of Appeal found that the motion judge should not have proceeded, but upheld the substantive result because the related appeal had since been dismissed.

The court varied the order to allow the appellant a two-month period to redeem the mortgage and set aside the costs order from the motion.

The appellants appealed a summary judgment dismissing their action against the respondent.

The Court of Appeal held that even if a soil engineering report had been admitted, it did not support the appellants' contamination claims, as there was no evidence regarding when the contaminants were placed, their effect on property value, or the property's potential use.

The Court found no genuine issue for trial on any of the causes of action and dismissed the appeal, awarding the respondent $5,000 in costs.

The respondents failed to pay property taxes on their family farm, leading the appellant township to initiate a tax sale under the Municipal Tax Sales Act.

After tenders were opened but before the tax deed was registered, the respondents offered to pay the full cancellation price.

The municipal treasurer refused, believing she had no discretion to cancel the sale once tenders were opened.

The application judge cancelled the tax sale, finding the treasurer failed to exercise her discretion under s. 12(6) of the Act.

The Court of Appeal dismissed the appeal, confirming that a municipal treasurer retains the discretion to cancel a tax sale at any time up to the registration of the tax deed.

The appellant defaulted on a mortgage, leading the respondents to issue a notice of sale.

The appellant challenged the redemption amount, specifically a three-month interest prepayment penalty, and appealed the motion judge's order.

The appellant also sought to set aside a registrar's order dismissing a related appeal, arguing the registrar was not bilingual as required by the Courts of Justice Act.

The Court of Appeal dismissed the appeal regarding the prepayment penalty, found the bilingual rights issue moot because the mortgage had already been redeemed, and declined to determine the final redemption amount, leaving it to the master.

The appellant, a mortgagee in possession, sought to terminate a fixed-term residential lease on 60 days' notice pursuant to section 53(4) of the Mortgages Act.

The Court of Appeal dismissed the appeal, upholding the Divisional Court's finding that section 51(2) of the Tenant Protection Act, which requires termination at the end of the fixed term, is paramount due to the primacy clause in section 2(4) of the Tenant Protection Act.

The appellants appealed a trial judgment finding they breached a fiduciary duty to a joint venture corporation.

The appellants managed a real estate development for the joint venture and allowed the property to go into power of sale, subsequently purchasing it for themselves.

The Court of Appeal upheld the trial judge's finding that a fiduciary relationship existed and that the appellants breached their duty to avoid conflicts of interest.

The appeal was dismissed and the imposition of a constructive trust was affirmed.

The appellants appealed a trial judgment finding that the 1996 exercise of a power of appointment was a fraudulent conveyance.

The Court of Appeal dismissed the appeal, holding that the trial judge's findings of fact regarding the appellant's complete interest in the property and the fraudulent nature of the conveyance were not open to challenge.

Costs were awarded to the respondents on a substantial indemnity basis.

The appellant landlord appealed a trial judgment that applied a 35 per cent 'betterment' discount to damages awarded for the respondent tenant's breach of repair and restoration covenants in a commercial lease.

The Court of Appeal held that while the lease's 'reasonable wear and tear' exception applied, the tenant bore the burden of proving the extent to which the damages fell within this exception.

Because the tenant failed to adduce evidence supporting the 35 per cent discount, the Court removed the discount, increasing the landlord's damages.

The Court also allowed the tenant's cross-appeal in part, reducing the interest rate to the Courts of Justice Act rate and reducing the costs award to reflect the actual rates billed to the landlord.

The appellant tenant terminated a commercial lease, arguing the landlord failed to complete the building in accordance with the schedule.

The trial judge found the tenant acted unreasonably and not in good faith by failing to consider other contractual options, such as completing the work itself and deducting the cost from rent.

The Court of Appeal upheld the liability finding but allowed the appeal on damages in part, reducing the damages award by the $50,000 it would have cost to complete the building.

The cross-appeal on damages was dismissed due to the landlord's failure to mitigate.

The appellants, including the builder and contractors, appealed a trial judgment awarding damages to the respondent condominium corporation for structural deficiencies in a block back-up wall.

The appellants argued the action was barred by res judicata, issue estoppel, and the six-year limitation period, and challenged the findings of breach of warranty and negligence.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that the structural defects could not have been discovered earlier with reasonable diligence, and that the warranty clause, interpreted contra proferentem, did not limit claims to one year.

The damages assessment was also upheld.

The tenants appealed a trial judgment finding their commercial lease invalid and terminating their month-to-month tenancy.

They argued the trial judge erred by excluding the female tenant from the courtroom while her husband testified.

The Court of Appeal held that while excluding a party violates rule 52.06(2) of the Rules of Civil Procedure, it did not cause a substantial wrong or miscarriage of justice in this case.

The landlord's estate cross-appealed the dismissal of its claim for arrears of rent and taxes.

The Court allowed the cross-appeal in part, finding that while the landlord's course of conduct waived the rent arrears, the tenants' uncorroborated evidence regarding property and business taxes could not defeat the estate's claim under s. 13 of the Evidence Act.

The respondent applied for an official plan amendment, zoning change, and subdivision approval, providing the prescribed information but refusing to provide additional information requested by the appellant municipality.

The municipality refused to forward the appeal record to the Ontario Municipal Board, arguing the 90-day period for a decision had not commenced.

The Court of Appeal held that under the Planning Act, the 90-day period begins once the prescribed information and fees are provided, regardless of whether additional requested information is supplied.

The appeal was dismissed, allowing the respondent to proceed directly to the OMB.