Real Estate Law - ONSCDC

The appellant mortgagee appealed a motion judge's decision finding that a mortgage commitment's interest rate provision breached section 8 of the Interest Act.

The provision increased the interest rate from 8.25% to 18% in the final month of the term unless the mortgage was renewed or discharged.

The Divisional Court allowed the appeal, holding that the interest rate increase was triggered by the passage of time rather than default, and therefore did not violate the Interest Act.

The appellant was awarded judgment reflecting the 18% interest rate for the final month and thereafter, along with costs.

The moving party brought a motion for leave to appeal a decision of the Local Planning Appeal Tribunal.

The Divisional Court dismissed the motion for leave to appeal.

Costs were awarded to the responding party in the fixed amount of $25,000.

The appellant appealed a decision regarding the calculation of interest on a mortgage.

The Divisional Court granted the appeal, ordering judgment in an amount that accounts for interest at 8.25% for the first six months of the mortgage term and 18.00% for the seventh month and thereafter.

Written reasons were to follow.

The appellant appealed a Small Claims Court judgment awarding $20,350.60 to the respondent real estate brokerage for an unpaid commission.

The appellant argued the Deputy Judge erred in applying the discoverability test under the Limitations Act, 2002, and that the reasons were insufficient.

The Divisional Court dismissed the appeal, finding the Deputy Judge made no errors in applying the modified objective test for discoverability, especially given the appellant's own misrepresentations about not looking for a property.

The reasons were also found sufficient for appellate review.

The appellants, four individuals who purchased a property, appealed a Small Claims Court decision ordering them to pay $24,478.63 in real estate commissions to the respondent real estate agent and brokerage.

The appellants argued the Deputy Judge erred in finding an enforceable oral agreement and in applying the principles of unjust enrichment, as no Buyer Representation Agreement was signed.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the Deputy Judge's factual inferences that the appellants deliberately cut the respondents out of the transaction to save on commission, thereby unjustly enriching themselves.

The moving party sought leave to appeal an order of the Local Planning Appeal Tribunal concerning the designation of certain properties under the Ontario Heritage Act and the interpretation of provincial and municipal heritage planning provisions.

The Divisional Court granted leave to appeal on two specific questions of law relating to the Tribunal's consideration of the Ontario Heritage Act, the Provincial Policy Statement, the Growth Plan, and the municipal Official Plan.

Costs of the motion were fixed and reserved to the panel hearing the appeal.

The self-represented appellants, claiming to be tenants, sought to appeal an order made between a second mortgagee and the property owners.

The Divisional Court issued a notice under Rule 2.1, noting the appellants were not parties to the underlying proceeding and had no standing to appeal.

The court held that any recourse the appellants might have should be pursued via a motion in the Superior Court of Justice at first instance.

The appeal was dismissed as frivolous, vexatious, and an abuse of process pursuant to Rule 2.1.01.

The moving party sought leave to appeal an order under the Partition Act.

The Divisional Court denied the motion for leave to appeal on the basis that the impugned order was a final order under the Partition Act, meaning an appeal lies to the court as of right and leave is not required.

The court deemed the appeal to have been commenced and provided directions for a potential stay motion.

The moving party brought a motion for leave to appeal an order of the Local Planning Appeal Tribunal.

The Divisional Court granted leave to appeal on the question of whether the Tribunal erred by requiring a condition in its grant of a Public Safety Maintenance Easement that permitted physical encumbrances or encroachments authorized by an approval authority.

The appellant developer appealed a Local Planning Appeal Tribunal decision that repealed a site-specific zoning by-law amendment, preventing the construction of a 16-storey mixed-use building in downtown Kingston.

The Tribunal had found the development incompatible with the area's heritage character and Official Plan policies.

On appeal to the Divisional Court, the appellant argued the Tribunal erred in law by prioritizing heritage over intensification, misapplying zoning by-laws, and improperly imposing height restrictions.

The Divisional Court dismissed the appeal, finding that the Tribunal's balancing of competing policies and assessment of the public interest involved questions of mixed fact and law, not extricable errors of law.

The moving party sought leave to appeal from an order dismissing its appeal of an interlocutory order that discharged a certificate of pending litigation.

The Divisional Court dismissed the motion for leave to appeal and awarded costs of $5,000 to the responding party.

The appellant condominium corporation appealed a decision of the Condominium Authority Tribunal ordering it to produce redacted legal invoices to a unit owner.

The corporation had sent a letter to all owners blaming a small group of owners for increased legal costs, which the Tribunal found constituted a waiver of solicitor-client and litigation privilege over the invoices.

The Divisional Court dismissed the appeal, finding no error of law in the Tribunal's application of the common law principles of waiver or its interpretation of the disclosure exceptions under the Condominium Act.

The applicant municipality sought leave to appeal a Local Planning Appeal Tribunal (LPAT) decision that ordered the application of a discounted industrial rate for development charges on a new building constructed by the respondent developer.

The municipality argued the LPAT erred by applying a balance of probabilities standard rather than requiring certainty of future industrial use, and sought to introduce fresh evidence of non-industrial tenants.

The Divisional Court dismissed the motion for leave to appeal, finding no reason to doubt the correctness of the LPAT's application of the civil standard of proof to predict future use, rejecting the fresh evidence as irrelevant to the time of building permit issuance, and concluding the issues were not of sufficient general or public importance.

The appellant sought to appeal a decision of the Director of Titles dismissing her application to transfer her property from the land titles system to the registry system.

The Divisional Court found it lacked jurisdiction to hear the appeal under the Land Titles Act and converted the matter to an application for judicial review.

Applying a reasonableness standard, the Court upheld the Director's decision, finding the appellant failed to identify special circumstances specific to her property that would justify withdrawal from the land titles system.

The application was dismissed with costs.

The applicant residents' associations sought leave to appeal a Local Planning Appeal Tribunal decision that approved a revised development proposal to demolish three houses and build a low-rise apartment in a Heritage Conservation District.

The applicants argued the tribunal made errors of law by deferring to the City's demolition approval under the Ontario Heritage Act, treating demolition as conservation, and failing to assign a higher heritage rating to one of the houses.

The Divisional Court dismissed the application, finding that the tribunal applied the correct legal tests and that the applicants' challenges were directed at findings of fact and mixed fact and law, which are not subject to appeal.

The appellant purchaser appealed a Small Claims Court judgment finding she breached an agreement of purchase and sale for a condominium unit and awarding the respondent vendors $25,000 in damages plus costs.

The appellant argued she was justified in refusing to close due to concealed Kitec plumbing and stained carpets.

The Divisional Court dismissed the appeal on liability, finding the appellant knew of the plumbing and there was no evidence the carpet stains were concealed.

However, the court allowed the appeal in part on damages, holding the trial judge erred by failing to credit the $15,000 deposit against the damages, thereby reducing the award to $15,000.

The court also reduced the costs award to comply with the 15% statutory limit under the Courts of Justice Act.

The appellant real estate agent appealed a Small Claims Court decision ordering him to pay $4,920 for breaching an agreement to rebate 1% of his commission to the respondent purchaser.

The appellant argued he signed the agreement under duress and undue influence.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's credibility findings, which supported the conclusion that the appellant had choices and was not under duress.

The appellant appealed an order requiring the demolition or removal of a shed built without a permit and other property cleanup orders.

The Divisional Court upheld the demolition order under the Building Code Act, noting the appellant admitted to building without a permit.

The court declined to transfer the appeal of the remaining orders under the Municipal Act to the Court of Appeal, finding the issues were largely moot as the municipality had already demolished the shed and removed derelict items.

The appeal was dismissed.

The appellant appealed a decision dismissing its application to declare invalid and set aside two building permits issued for a nine-storey transitional housing and shelter building.

The appellant argued the Chief Building Official erred in classifying the proposed use as a 'hostel' rather than a 'crisis care facility' under the zoning by-law, and that the pending Municipal Shelter By-law appeal should have prevented the permits' issuance.

The Divisional Court dismissed the appeal, finding no error in the application judge's acceptance of the CBO's zoning compliance determination or the finding that the pending by-law appeal did not constitute 'applicable law' preventing the permits' issuance.

The applicants sought leave to appeal a decision of the Ontario Municipal Board (OMB) granting minor variances to the respondents to construct a new two-storey building.

The applicants argued the OMB erred in law by subsuming the four tests under s. 45(1) of the Planning Act into a single test of impact, failing to require a demonstrated need for the variances, misapprehending evidence regarding building length and height, and imposing an unenforceable condition on a rear balcony.

The Divisional Court found reason to doubt the correctness of the OMB's decision on these questions of law and granted leave to appeal.