Real Estate Law - ONCA

The appellant condominium corporation appealed a decision refusing to enforce its 'no pets' policy against the respondent.

The respondent had lived in her unit with her cat for over 10 years, during which time maintenance personnel had been in her unit.

The appellant only decided to step up enforcement in 2004.

The Court of Appeal dismissed the appeal, finding it would be inequitable to grant a compliance order given the long period of non-enforcement.

The appellant lender appealed the dismissal of its claim against a law firm that acted for both sides in a loan transaction, alleging conflict of interest and failure to advise on risks.

The respondent mortgagors cross-appealed, arguing the mortgage was invalid because the law firm failed to insist the wife obtain independent legal advice.

The Court of Appeal dismissed both appeals, upholding the trial judge's findings that no disqualifying conflict existed, the lender would have proceeded regardless of further advice, and the wife would have signed the mortgage even with independent legal advice because the loan benefited her family.

The appellant appealed a trial judgment finding the respondents were entitled to a final payment under a Customer Agreement.

The Court of Appeal dismissed the appeal, agreeing with the trial judge that the building was 'complete and ready for occupancy' within the required 24-month period.

The Court rejected the appellant's argument that an occupancy permit was required, noting the Building Code Act does not mandate one as a condition of occupancy and the unilaterally imposed agreement terms did not explicitly require it.

The appeal regarding prejudgment interest and costs was also dismissed.

The appellants appealed an application judge's interpretation of a profit-sharing clause in agreements concerning commercial real estate properties.

The application judge had held that 'net profit' included revenue earned and that mortgage and loan interest were 'non-recovered costs'.

The Court of Appeal allowed the appeal in part, finding that the application judge erred by imposing an interpretation of 'net sale proceeds' that was not argued and was inconsistent with the unambiguous language of the clause.

The Court also held that mortgage and loan interest were not 'non-recovered costs' within the meaning of the agreements.

The appellant purchased property to construct a fourplex and submitted applications for site plan approval and building permits.

The respondent municipality subsequently passed an interim control by-law freezing development in the area, having discussed the by-law in closed committee meetings.

The appellant moved to quash the by-law, arguing the closed meetings violated the open meeting requirements of the Municipal Act.

The motion judge dismissed the application, finding the meetings fell under the 'potential litigation' exception.

The Court of Appeal allowed the appeal and quashed the by-law, holding that the subject matter of the meetings was the by-law itself, not potential litigation, and that the statutory requirement for open meetings had been breached.

The appellant's wife forged a power of attorney in his name to obtain mortgages from the respondents to pay off gambling debts.

The appellant, who was unaware of the fraud, argued the mortgages were void.

The motion judge granted summary judgment to the respondent mortgagees, finding the mortgages valid under the Land Titles Act.

The Court of Appeal dismissed the appeal, holding that under sections 78(4) and 155 of the Land Titles Act, the mortgages, having been given for valuable consideration and without notice of the fraud, were effective once registered.

The appellant appealed an order denying him costs and expenses incurred in realizing on a mortgage security.

The Court of Appeal upheld the motions judge's finding that there had been no default by the mortgagors and no waste committed, meaning the costs were not recoverable.

The court also dismissed the appellant's claims of procedural errors and bias, and upheld the denial of a certificate of pending litigation.

The respondents' cross-appeal was allowed, deleting a $5,000 payment previously awarded to the appellant for expenses, as there was no default to justify it.

The appellants appealed the dismissal of their actions against a solicitor for breach of undertaking and against a corporate defendant for fraudulent conveyance.

The solicitor had released holdback funds after confirming with the architect that deficiencies were rectified, fulfilling the terms of the undertaking despite an initial breach.

The trial judge also found that the corporate defendant held the transferred property as a bare trustee, defeating the fraudulent conveyance claim.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error as the issues were primarily based on credibility assessments.

The appellants appealed a trial judgment, arguing that the trial judge's remarks during closing submissions created a reasonable apprehension of bias and that the respondent failed to mitigate damages.

The Court of Appeal dismissed the appeal, finding that the trial judge's comments were merely instructive cautions to junior counsel and did not indicate pre-determination.

Furthermore, the court upheld the trial judge's finding that the respondent's decision not to proceed with the property purchase was driven by uncertain septic system repair costs, meaning the duty to mitigate was not engaged.

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

The appellants appealed a trial judgment finding that Amicone Design Build Inc. assumed the obligations of Island Cove Development Ltd. and 1078385 Ontario Limited, making it liable for the return of a $66,000 deposit.

The Court of Appeal dismissed the appeal, holding that the trial judge's conclusion was supported by evidence, including Amicone taking over the project, communicating with the respondents, and receiving the proceeds of sale.

The appellants called no evidence to rebut these reasonable inferences.

The appellants operated a senior citizens residence and borrowed funds through successive mortgages arranged by Morguard.

The trial judge found that Morguard and its officers committed fraud, deceit, and breach of fiduciary duty by overstating discharge amounts, charging excessive undisclosed fees, and hiding a corporate officer's personal involvement in the loans.

The trial judge awarded compensatory damages but declined to award punitive damages.

On appeal, the appellants sought punitive damages and increased compensation, while the respondents cross-appealed liability and damages, relying on a release executed by the parties.

The Court of Appeal dismissed both the appeal and cross-appeals, upholding the trial judge's findings and concluding that the release was properly set aside due to fraudulent misrepresentation.

The appellant appealed an order regarding notice under the Building Code Act.

The Court of Appeal dismissed the appeal, finding that the appellant failed to notify the municipality of his change of address as required by the Assessment Act, and that the municipality had complied with the notice provision under s. 27(2) of the Building Code Act.

The appellants appealed a trial judgment under the Partition Act, arguing the trial judge erred in several factual findings.

The Court of Appeal dismissed the appeal, finding that the trial judge gave cogent reasons for her factual findings based on the written agreement, approved financial statements, and accountants' evidence.

The court found no basis to interfere with the trial judge's findings.

The appellant appealed a trial judgment awarding damages to the respondent for wrongful termination of a commercial lease and the aborted sale of the respondent's business.

The Court of Appeal upheld the trial judge's findings on liability, agreeing that the appellant wrongfully terminated the lease and unreasonably withheld consent to assign it.

However, the Court varied the damages award, reducing it by $10,000 to account for legal fees the respondent had not actually paid.

The respondent's cross-appeal for punitive and aggravated damages was dismissed.

The landlord appealed a trial judgment declaring the tenant's rights under a commercial lease.

The trial judge had found in favour of the tenant regarding the validity of an option to purchase, the basic rent, the landlord's obligation to deliver the premises in good working order, and the tenant's right to rent abatement and set-off due to building code deficiencies.

The Court of Appeal dismissed the appeal, finding that the trial judge's conclusions were supported by the evidence and his interpretation of the lease was reasonable.

The respondents sought to develop land subdivided via testamentary devise, a method that bypassed Planning Act controls.

When they applied for building permits, the appellant Town delayed processing and passed an interim control by-law, followed by a zoning amendment increasing minimum lot sizes, effectively halting the development.

The trial judge found the Town acted in bad faith, quashed the zoning amendment, and ordered the issuance of building permits and damages.

The Court of Appeal upheld the trial judge's findings of bad faith and the order for building permits, finding no palpable and overriding error, but allowed the appeal in part to adjust the interest rate on damages and the scale of costs.

The appellants appealed the trial judge's finding of conversion and award of damages regarding the sale of appliances.

The Court of Appeal allowed the appeal in part, setting aside the finding of personal liability against Sugarman as he was not a party to the conveyance, but upheld the judgment against Minicorp.

The respondents' cross-appeal regarding mortgage holdbacks, section 42 of the Mortgages Act, and the requirement for a new notice of sale was dismissed, as the trial judge's conclusions were supported by the evidence.

The appellant appealed a trial decision finding he breached a contract by tricking the respondent into signing a Trust Deed and Power of Attorney after promising her one-half ownership of a home.

The appellant argued the agreement was unenforceable under the Statute of Frauds as it was not in writing.

The Court of Appeal dismissed the appeal, holding that the Statute of Frauds did not apply because the Deed was in writing and there was part performance when the respondent took possession and spent money improving the home.

The appellant appealed a trial judgment regarding the division of real estate commissions.

The trial judge had found that the principal of the broker corporation had agreed not to take any part of the appellant's earnings, but held that this waiver did not bind a new shareholder.

The Court of Appeal allowed the appeal, finding that the trial judge erred by failing to distinguish between the corporation and its shareholders.

The corporation remained bound by the agreement regardless of the change in shareholders, and the Real Estate and Business Brokers Act did not entitle the broker to a percentage of commissions it had agreed to waive.

The appellant appealed a decision interpreting a commercial lease.

The Court of Appeal upheld the motion judge's finding that the word 'net' in section 2.03(a) of the lease applied to 'Taxes', and that the lease did not require the tenant to pay more than its share of the taxes actually paid under a 'Gross up' argument.

The appeal was dismissed with costs.