Real Estate Law - ONCA

These consolidated appeals addressed the interpretation and application of the amended summary judgment regime under Rule 20 of the Rules of Civil Procedure.

The Court of Appeal held that summary judgment may be granted not only where claims or defences are without merit or the parties agree, but also where the motion judge can achieve a full appreciation of the evidence and issues required to make dispositive findings on the motion record, possibly supplemented by limited oral evidence.

The court articulated the “full appreciation” test, confirmed that the standard of review on whether there is a genuine issue requiring a trial is correctness, and explained the proper use of the new powers to weigh evidence, evaluate credibility, draw inferences, and hear oral evidence on discrete issues.

Applying those principles, the court dismissed the Combined Air, Misek, and Parker appeals, dismissed the Mauldin appeal, and allowed the Bruno appeal by setting aside summary judgment and dismissing the motion.

The appellant appealed an order declaring an agreement of purchase and sale valid and granting the purchasers specific performance and damages.

The Court of Appeal dismissed the appeal, finding that the essential terms of the contract were clear and binding.

The court upheld the application judge's findings that the property was unique, justifying specific performance, and that it was reasonable to calculate damages as of the date of judgment rather than the date of breach to account for the property's enhanced value pending planning approval.

The appellant, Gold Financial Corp., appealed two orders of the Superior Court of Justice and sought an order that one-half of the proceeds of the sale of the Puslinch land be paid into court.

The motion judge had concluded that neither the Notice nor the Share Pledge Agreement was entitled to any weight and that the appellant's General Security Agreement did not support any claim to an interest in the land.

The Court of Appeal found no error in the motion judge's conclusions and dismissed the appeal with costs on a partial indemnity basis.

The appellant appealed a judgment finding that the parties had not reached a binding agreement regarding the purchase and development of a commercial property.

The trial judge concluded that the parties only had an unenforceable agreement to agree, as they had agreed on the ownership ratio but not on other essential matters, which were to be dealt with in an unexecuted shareholders agreement.

The Court of Appeal agreed with the trial judge's analysis and dismissed the appeal.

The respondent sued the appellant lawyer and law firm for breach of trust, alleging they paid loan funds out of their trust account without her authorization.

The respondent had provided a collateral mortgage on her home as secondary security for a loan to a company owned by her children.

The trial judge found the appellants liable for breach of trust.

On appeal, the Court of Appeal reversed the decision, holding that because the respondent's mortgage was collateral and secondary, the loan funds were advanced to the primary borrower.

The law firm properly held the funds in trust for the primary borrower and paid them out on its instructions.

The appeal was allowed and the action dismissed.

The appellant tenant appealed a trial judgment awarding the respondent landlord damages for the cost of restoring commercial premises at the end of a tenancy.

The Court of Appeal upheld the trial judge's finding that a 1999 consolidation lease did not eliminate the tenant's repair obligations from earlier leases.

The court also upheld the assessment of damages for floor, electrical, and HVAC repairs as supported by the evidence.

However, the court allowed the appeal in part, finding that an administration fee for loss of rent was not supported by the wording of the lease.

The appellants appealed a decision denying them defence cost coverage under a Professional Liability Insurance Policy provided by LawPro.

The motion judge found that the appellant acted as an intermediary between the parties in arranging mortgage transactions, triggering the mortgage broker exclusion.

The Court of Appeal agreed, finding that the appellant's actions as a middleman in arranging the mortgages meant the claim fell within the exclusion.

The appeal was dismissed with costs.

The appellant appealed a trial decision dismissing its action and allowing the respondents' counterclaim for rescission of an agreement for the removal of sand and gravel from the respondents' property.

The trial judge rescinded the agreement on the basis of unconscionability, noting the unequal bargaining power, lack of independent legal advice, and the fact that the unilingual francophone respondents were presented with an English agreement containing overreaching terms.

The Court of Appeal found no error in the trial judge's credibility findings, his rejection of the laches defence, or his award of $4,000 for unjust enrichment.

The appeal was dismissed.

The appellants appealed a decision declaring their option to purchase a residential parcel of farmland void for contravening section 50 of the Planning Act.

The appellants had sold a 74-acre farm but entered into an option agreement to purchase back the residential portion.

The Court of Appeal held that the option agreement violated section 50(3) because the grantor retained abutting lands not within a registered plan of subdivision.

The Court further found that the agreement lacked an express condition requiring compliance with the Planning Act under section 50(21), and declined to rectify the contract due to a lack of evidence of a prior oral agreement to include such a condition.

The appeal was dismissed.

The appellants appealed a trial judgment regarding a commercial tenancy dispute.

The Court of Appeal upheld the trial judge's finding that the relationship was not a strict tenancy at will and that an accounting was appropriate due to premature termination.

However, the Court found the trial judge erred by affording the respondents double recovery—awarding full compensation for renovations while also granting a rent-free period.

The judgment was varied to require the respondents to pay reasonable rent and utilities for the initial period, reducing the amount payable by the appellants by $8,822.57.

The appeal was allowed in part.

The appellants, land developers, retained the respondent engineering firm to prepare a geotechnical report on soil conditions for a townhouse development.

The report estimated pile foundations would need to be driven to an average depth of 20 feet, but ultimately they had to be driven to 60 feet, resulting in additional construction costs.

The appellants sued for breach of contract and negligent misrepresentation.

The trial judge dismissed the action.

On appeal, the Court of Appeal upheld the trial judge's findings that the failure to drill a sixth borehole was due to inaccessibility and that there was no evidence the respondent inaccurately interpreted the borehole data.

The appeal was dismissed.

The appellant landlord appealed a decision finding that the respondent tenant, who operated a gas bar in a commercial plaza, was not required to share in the costs of maintaining common facilities.

The application judge had found the lease required payment but was amended by subsequent conduct.

The Court of Appeal dismissed the appeal and allowed the tenant's cross-appeal, holding that the lease was unambiguous and, properly interpreted, did not require the tenant to contribute to common facilities maintenance costs.

The appellants appealed a decision finding they did not have a substantial interest in a property.

The Court of Appeal held that even considering the appellants' $130,000 equity in the property, they could not show the requisite substantial interest.

Combined with the absence of persuasive evidence of alternative funding, the application judge correctly concluded there were no special circumstances.

The appeal was dismissed with costs fixed at $6,000.

The appellant appealed a confirmation order that credited the respondent mortgagee with $50,825.72 for utilities expenses.

The respondent cross-appealed the disallowance of credits for a $10,000 payment and $5,000 in legal fees.

The Court of Appeal allowed the appeal in part, reducing the utilities credit to $6,204.78 because the respondent failed to establish the reasonableness of the excess payments.

The cross-appeal was dismissed as there was no evidence to support the claimed credits for the bonus or legal fees.

Following the disposition of the merits of the appeal on September 25, 2006, the Court of Appeal issued a supplementary endorsement regarding the costs of the application in the court below.

The court set aside the costs order below and awarded the appellants costs of the application fixed at $10,000 all-inclusive.

The appellant appealed the dismissal of an application regarding property ownership.

The Court of Appeal upheld the application judge's finding that there was no evidence the respondent owned or paid for the property.

The court also upheld the costs order, noting the appellant pursued the application even after learning of the bankruptcy.

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

The appellants appealed an order of the Superior Court of Justice that allowed an appeal from an arbitrator's award regarding the interpretation of a condominium cost-sharing agreement.

The dispute centered on the allocation of bulk hydro bill costs for the parking and service garage.

The Court of Appeal dismissed the appeal, finding that the application judge correctly interpreted the agreement harmoniously to allocate the costs to the appellant, consistent with the building's single bulk hydro meter design.

The moving party requested a reconsideration of the Court of Appeal's judgment released on November 16, 2005.

The Court agreed to hear oral submissions on the request.

The Court ordered that the judgment be temporarily stayed pending the disposition of the reconsideration motion, allowing the endorsement to be registered on the title of the property in issue.