Real Estate Law - ONCA

The appellant tenant sought to overturn a summary judgment, arguing that commercial landlords have a duty to mitigate damages even when they do not accept a tenant's repudiation of a lease, and that a lease clause capped damages.

The Court of Appeal affirmed the motion judge's decision, holding that it was bound by Supreme Court of Canada precedent (Highway Properties v. Kelly, Douglas & Co.) which states no such duty to mitigate exists when the landlord insists on performance of the lease.

The court also upheld the motion judge's interpretation of the lease clause, finding that the two-year rent cap on damages only applied if the landlord had terminated the lease, which it had not.

The appeal was dismissed.

The appellants sought to appeal an order from the Superior Court of Justice that directed the deletion of their third-party claim registered on title under the Land Titles Act.

The Court of Appeal, on its own initiative, raised the question of jurisdiction.

After hearing submissions, the court concluded that it lacked jurisdiction to hear the appeal, as section 27 of the Land Titles Act specifies that appeals from orders made by a judge under that Act lie to the Divisional Court.

Consequently, the appeal was quashed.

The appellants, a real estate agent and brokerage, appealed a trial judge's order requiring them to pay damages to their former clients, the respondents.

The trial judge found that the appellants negligently misrepresented the location of a proposed development, leading the respondents to enter an agreement of purchase and sale and forfeit a $120,000 deposit in a settlement with the developer.

The Court of Appeal dismissed the appeal, affirming the trial judge's findings that the misrepresentation was negligent (not requiring expert evidence for a non-technical matter) and that the respondents' damages were caused by the misrepresentation.

The court rejected the appellants' arguments that the respondents should have completed the purchase or failed to mitigate their losses.

This appeal concerned the interpretation of two easements: a 15-foot wide right-of-way for ingress and egress, and a right-of-access to a well.

The appellants (servient tenement owners) sought declarations that the right-of-way did not include vehicular turnaround activity and that the well access was null and void.

The respondents (dominant tenement owners) sought declarations affirming their rights, an injunction against obstructions, and damages.

The Court of Appeal dismissed the appeal, upholding the application judge's findings that the right-of-way included the turnaround area based on latent ambiguity and ancillary rights, and that the right-of-access to the well had not been extinguished.

The appellants, Metro 1 Development Corporation Ltd. and its sub-tenant Athens, appealed a lower court decision that found Metro 1 in breach of a commercial lease for failing to operate a Tim Hortons restaurant and denied relief from forfeiture.

The Court of Appeal upheld the motion judge's interpretation of the lease, finding no implied term that would permit an alternative food service if a Tim Hortons franchise could not be maintained.

The court also found no error in the refusal to grant relief from forfeiture, rejecting arguments of bad faith by the respondent hospital and clarifying the scope of the duty of good faith in contract law.

The appeal was dismissed, and costs were awarded to the respondent.

The appellant landlord appealed a judgment finding it in breach of a commercial lease, granting specific performance, and awarding damages to the respondent tenant.

The Court of Appeal found no error in the trial judge's findings, interpretation of the lease, grant of specific performance, or assessment of damages, noting the appellant failed to present expert evidence to challenge the damages methodology at trial.

The appeal was dismissed.

This appeal concerned the interpretation of a termination clause in an agreement of purchase and sale (APS).

The clause allowed the seller to terminate if the buyer did not complete a pre-consultation meeting with the municipality within four weeks of signing the APS.

The buyer argued a meeting held *before* the APS was signed satisfied the condition.

The application judge found the clause required a meeting *after* signing and refused to convert the application to an action.

The Court of Appeal dismissed the appeal, upholding the application judge's decision not to convert the application to an action and her interpretation of the contract, finding no palpable and overriding error.

A dissenting judge argued the application judge erred in fact by mischaracterizing the pre-signing meeting and in law by failing to give effect to the word "completed" in the clause.

The appellant, Rolling Meadows Land Development Corporation, appealed judgments dismissing its motion to convert applications to an action, finding a purchase and sale agreement binding, and finding no breach of contract by the respondent, Pine Glen Thorold Inc. The appeal raised arguments concerning the refusal to convert applications, a claim of unilateral mistake in signing the contract, and the quantification of renovation costs.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the application judge's decisions.

The court affirmed that the application judge was entitled to adjudicate the issues on the record, that no unilateral mistake was established given the appellant's sophistication and the contract's clarity, and that the renovation quantification was properly determined.

This appeal concerned a post-closing dispute over HST liability following the sale of a mixed-use property.

The purchasers' counterclaim, alleging HST liability, was dismissed at trial on the basis that they suffered no loss and arguably benefited from a windfall.

The Court of Appeal upheld the trial judge's finding that the purchasers suffered no loss, which justified the dismissal of the counterclaim.

Consequently, the appeal was dismissed, and it was deemed unnecessary to address other legal arguments regarding the Excise Tax Act or post-closing readjustment.

The appellant, ALYU Inc., appealed a lower court decision regarding the interpretation of an Agreement of Purchase and Sale (APS) for commercial units.

ALYU argued that the estimated measurements in the APS should not include a proportional amount of common elements.

The application judge had interpreted the APS to include common elements, dismissing ALYU's application.

The Court of Appeal upheld the application judge's decision, finding no palpable and overriding error in the contractual interpretation.

The court affirmed that the BOMA 1996 Standard, referenced in the APS, requires the unit area to be "grossed-up" to account for common areas, and that the interpretation aligned with the parties' mutual objective intentions.

The appeal was dismissed with costs.

This appeal and cross-appeal arose from a landlord's application for a writ of possession and related disputes over a security deposit and roof repair costs.

The Court of Appeal allowed both the landlord's appeal regarding the interpretation of a lease clause concerning the return of a security deposit and the tenant's cross-appeal concerning the amortization of roof replacement costs.

The court found the application judge erred in interpreting the deposit clause, as the deposit was only returnable if the tenant was not in default, which they were.

The court also found the application judge failed to address the tenant's argument that the roof replacement was a capital expense to be amortized over its useful life, not just two years.

The relevant paragraphs of the lower court's judgment were struck, and no costs were awarded due to mixed success.

The appellant's property was sold under power of sale.

She initiated an action alleging conspiracy to defraud and moved to set aside the sale, claiming fraud and improvidence.

The motion judge dismissed all claims except for an accounting by the mortgagee.

The Court of Appeal dismissed the appeal, finding no direct or circumstantial evidence of fraud, and that the sale was not improvident, especially considering the appellant's history of default and delay.

This is an appeal from a summary judgment granted by the motion judge in a mortgage default case.

The appellants (mortgagors and guarantor) argued that an agreement existed with the respondent mortgagees to forebear payment until the mortgaged properties were "construction ready." The Court of Appeal found no reversible error in the motion judge's determination that no such oral or written agreement existed, and that the parties' conduct and documentation were inconsistent with such an assertion.

The appeal was dismissed, and the respondents were awarded partial indemnity costs.

This appeal concerned a dispute between a real estate developer (appellant) and a home builder (respondent) arising from an agreement for the sale of land.

The appellant sought interest on the unpaid purchase price, alleging the respondent breached provisions related to commencing construction and failing to close the transaction by a stipulated outside date.

The Court of Appeal upheld the application judge's dismissal of both claims.

The court found no evidence to support the appellant's claim regarding permit availability for construction delays and determined that the appellant's own breach in installing sanitary sewers prevented it from relying on the respondent's alleged delay.

The claim for 12% interest for delayed closing was also rejected due to a lack of proof of damages and the appellant's prior breach.

The appellant, a subtenant, appealed a lower court decision that found no rent reduction agreement existed and dismissed its claim for damages after being locked out for non-payment of rent.

The appellant argued the lockout was unlawful and sought damages.

The Court of Appeal dismissed the appeal, upholding the application judge's factual finding that no rent reduction agreement was made, noting deference is owed to such findings in the absence of palpable and overriding error.

The court also found the landlord was not liable for damages under the Helping Tenants and Small Businesses Act, 2020, as the lockout occurred before the Act's non-enforcement period began, and the tenant regained possession shortly after the Act came into force.

Leave to appeal the costs award was also dismissed.

The appellant appealed a summary judgment that awarded the respondent damages for a failed agreement of purchase and sale.

The appellant argued that the respondent's sales representative made a misrepresentation regarding future property price increases, which induced him to enter the agreement.

The Court of Appeal dismissed the appeal, affirming the motion judge's finding that the alleged misrepresentation was a non-actionable prediction, not a statement of fact, and there was no evidence it was made dishonestly or negligently.

The appellant, Heritage Preservation Holdings, appealed a judgment requiring it to close the sale of a hotel property and allowing a holdback for deficiencies.

The appeal raised three issues: contract formation, an implied term regarding the first mortgage amount, and responsibility for certain property deficiencies.

The Court of Appeal dismissed the contract formation and implied term grounds, finding a binding agreement was formed and no such term could be implied.

However, the appeal was allowed in part regarding the deficiencies issue, specifically finding the appellant was not responsible for certain fire separation, kitchen exhaust, and fire suppression system deficiencies under the Agreement of Purchase and Sale's disclosure clause.

The holdback was maintained, but only for repairs for which the appellant was responsible.

The moving party, Ms. Sun, sought an extension of time to appeal a trial judgment concerning a failed residential real estate transaction.

The Court of Appeal dismissed the motion, finding that Ms. Sun failed to demonstrate a bona fide intention to appeal within the relevant period, provide a reasonable explanation for the delay, or show sufficient merit in the proposed appeal.

The court also addressed the proper procedure for swearing affidavits when the deponent does not understand English and clarified that the appeal period runs from the release of reasons, not the signing of the judgment.

The moving parties, who had commenced an action alleging fraudulent conveyance and seeking a certificate of pending litigation (CPL), appealed the dismissal of their CPL motion.

They brought two appeals (to Divisional Court and Court of Appeal) and two motions in the Court of Appeal: one to determine jurisdiction (final vs. interlocutory order) and another for an interim CPL under s. 134(2) of the Courts of Justice Act.

The single motion judge declined to rule on the interim CPL, citing reservations about jurisdiction given the pending determination by a panel.

The judge adjourned the interim CPL motion to be heard concurrently with the jurisdiction motion on an expedited basis and extended the appeal perfection date.

The judge also commented on the systemic confusion regarding appeal routes in Ontario.

The appellant, King Square Limited (KSL), appealed a trial judgment that found it liable to pay further commissions to the respondent mortgage broker, OMJ Mortgage Capital Inc. (OMJ), for additional loan advances obtained from Firm Capital Corporation (FCC).

KSL argued these were new loans made outside the commission agreement's term.

The Court of Appeal, applying a deferential standard of review to contract interpretation, upheld the trial judge's finding that the additional advances were not new loans but rather further advances under the original loan commitment, which was secured during the currency of the commission agreement.

The court found the trial judge's interpretation commercially reasonable and dismissed the appeal.