Real Estate Law - SCJ

The moving parties sought an order discharging a collateral mortgage registered against a residential property, arguing the mortgage secured only an excess condominium deposit insurance facility that had been satisfied and that sufficient funds were held in trust to cover any remaining liability.

The court held that the collateral mortgage secured the entire amended financing facility, which combined Tarion warranty bonding obligations and deposit insurance obligations.

The documentation clearly indicated the security applied to all liabilities arising under the amended facility and its amendments.

The court further found that funds held in trust were not guaranteed to satisfy the insurer’s potential claims and that a court-ordered expungement of a mortgage from title through vesting orders was not equivalent to a registered discharge.

Accordingly, the moving parties were not entitled to have the collateral mortgage discharged.

The plaintiff sought an order setting aside two certificates of pending litigation registered against title to residential property in Vaughan to allow completion of a pending sale.

The court found that the certificates had been obtained on the basis of affidavit evidence that was misleading and false in material respects, including failure to disclose that the registered owner had died.

The court held that the plaintiff should not benefit from such misrepresentations but permitted the certificates to be vacated only on strict conditions.

The plaintiff was required to pay into court an amount representing the difference between the sale proceeds and the court‑determined fair market value of the property, less specified deductions.

If the payment was not made, the certificates would remain and the court would consider appointing a receiver.

The plaintiff sought enforcement of a written agreement entitling her to 50% of the net proceeds from the sale of a residential property in exchange for assisting with the sale.

The court held that the agreement was unenforceable because it constituted remuneration for services connected with a trade in real estate while the plaintiff was not registered under the Real Estate and Business Brokers Act, 2002.

In the alternative, the court found the agreement unconscionable due to the defendant’s vulnerability and the grossly improvident bargain.

The plaintiff had taken advantage of the defendant’s severe depression and unequal bargaining position to obtain half the equity of the property for relatively minor work.

The plaintiff’s claim was dismissed and she was ordered to repay funds previously garnished under a default judgment, subject to limited offsets.

Following dismissal of the plaintiff’s summary judgment motion in a real estate misrepresentation action arising from the purchase of a house, the court addressed the defendants’ request for costs.

The defendants sought more than $7,000 for the motion.

The court held that the amount claimed was disproportionate to the modest damages sought and the simplicity of the proceeding, and noted that the plaintiff had reasonably commenced the claim against both vendors and had resorted to summary judgment after waiting years for a trial date.

Costs were reduced and fixed at a lower amount.

The court also ordered that the costs be payable only at the conclusion of the trial due to fairness considerations arising from the plaintiff’s circumstances.

The purchaser brought a motion for summary judgment seeking return of a $100,000 deposit paid under an agreement of purchase and sale for residential property after the transaction failed to close.

The vendor refused to close unless the purchaser agreed to additional conditions concerning demolition or renovation that were not contained in the agreement.

The court found the vendor’s conduct constituted anticipatory breach and repudiation of the agreement.

The purchaser was therefore entitled to recover the deposit.

In any event, even if the purchaser had repudiated the agreement, the court would grant equitable relief from forfeiture because the vendor resold the property at a significantly higher price and suffered no financial loss.

A municipality brought an application seeking to restrain landowners and a contractor from removing fill and other materials from agricultural-zoned land and to compel restoration of the grading.

The municipality argued the activity constituted an impermissible extractive use and raised safety concerns related to truck access onto a nearby roadway.

The respondents asserted the work was intended to level the property following the removal of a former railway trestle embankment and disputed the existence of safety risks.

The court found several key factual issues—including zoning implications, the legality of the access, and alleged road safety hazards—could not be resolved on the application record and would require a trial.

As an interim measure, the court restrained excavation activity until a specified date and directed the respondents to apply for a municipal access permit while encouraging negotiations to resolve the dispute.

The plaintiff mortgagee brought proceedings arising from a default under a mortgage registered against a commercial property.

The mortgage secured a principal amount of $1.2 million and had matured without any payments being made.

The defendant mortgagor and related parties challenged enforcement steps following the issuance of a notice of sale under the Mortgages Act.

The court found there was no viable defence to the enforcement proceedings and granted possession and ancillary relief, including orders directing tenants and government agencies to pay rents directly to the mortgagee.

The realtor defendants brought a motion to dismiss or stay the action as an abuse of process, arguing that all parties had operated under the mistaken belief that the claim against them had been struck following a consent order requiring delivery of an affidavit of documents.

In fact, no formal order dismissing the action had ever been obtained.

The moving parties argued that principles of finality and fairness required that the action be treated as if it had been dismissed and that the delay in pursuing the claim against them justified termination of the proceeding.

The court held that the finality principle applies only where a final order exists and that prejudice cannot be presumed where the action remains valid and subsisting.

Balancing fairness and the absence of demonstrated prejudice, the court permitted the action to continue against the realtor defendants.

Multiple motions arose from a long-running property drainage dispute following earlier orders requiring implementation of a drainage design.

The defendant initially brought a motion to set aside or vary prior orders but abandoned it at the hearing, while the plaintiffs sought dismissal of that motion, payment out of funds held in court to implement engineering work, and restrictions on further motions by the defendant.

The court confirmed that its role was limited to implementing the previously ordered design or a variation agreed upon by the parties and ordered that the drainage work proceed under the agreed Pearson design.

Funds already paid into court were ordered paid out to the plaintiffs for construction costs, and the defendant was directed to pay an additional amount into court subject to documentation of implementation expenses.

The court also required the defendant to obtain leave before bringing any further motions.

Following a trial involving a dispute over a claimed leasehold interest and alleged obligations to improve leased premises, the plaintiffs’ claim was dismissed and the defendants succeeded on a counterclaim for rent arrears in the amount of $120,000 plus prejudgment interest.

The successful defendants sought recovery of legal costs on a partial indemnity basis.

Applying the factors under Rule 57.01(1) of the Rules of Civil Procedure, the court assessed the reasonableness of the claimed fees and disbursements.

The court reduced amounts relating to certain research, an unsuccessful motion for possession, and certain disbursements.

Costs were fixed at $33,900 in fees plus $2,681.43 in disbursements inclusive of tax.

Following the dismissal of an application seeking interpretation of a commercial lease concerning the calculation of property taxes, the successful respondent sought partial indemnity costs exceeding $75,000.

The applicant argued the amount was disproportionate to the approximately $160,000 in dispute and the relatively limited complexity of the proceeding.

The court applied the principles governing reasonable expectations of the losing party under the Boucher line of authorities and assessed the reasonableness of the time spent by counsel and the claimed disbursements.

Finding the claimed hours and overall expenditures excessive for an application hearing lasting less than a day, the court reduced the recoverable costs.

A dispute arose between two brothers regarding reserve land that their father had initially devised to one son in a will but later transferred into joint tenancy with the other son.

The applicant sought a declaration that the later transfer was invalid on the basis that the testator lacked understanding of joint tenancy and that the transfer failed to comply with requirements under the Indian Act.

The court found that despite limited formal education, the testator was experienced in land transactions and fully understood the effect of joint tenancy.

The transfer had been properly processed and registered by federal authorities and the band council.

The court held that the joint tenancy was valid and that the property passed to the respondent by right of survivorship upon the testator’s death.

The defendants brought a motion for summary judgment seeking dismissal of the plaintiff’s commercial tenancy action on the basis that it was statute‑barred under the Limitations Act, 2002.

The plaintiff alleged that construction, signage interference, and other landlord conduct caused a severe decline in its restaurant business at a shopping mall.

The court held that the limitation period began when the plaintiff knew the defendants’ conduct had caused damage to the business, not when the business ultimately vacated the premises.

Evidence from the plaintiff’s principal indicated that he knew the business was “sinking” by July 2006.

As the action was not commenced until February 25, 2009, the claim was brought outside the two‑year limitation period and was dismissed on summary judgment.

The plaintiff bank brought a motion for summary judgment seeking recovery of a mortgage deficiency following a power of sale and dismissal of the defendant’s counterclaim.

The defendant alleged she had been subjected to undue influence by a third party and that both the bank’s representative and the lawyer acting jointly for the lender and borrower knew of the arrangement and of a prior impersonation fraud involving her identity.

The court found that the record raised serious credibility issues and factual disputes regarding undue influence, potential misrepresentation, and the conduct of the joint solicitor.

Applying the summary judgment principles from Combined Air Mechanical Services Inc. v. Flesch, the court held that a full appreciation of the evidence required a trial.

The motion for summary judgment was therefore dismissed.

Purchasers of a residential property brought a Small Claims Court action alleging misrepresentation after discovering water seepage and moisture problems in the basement shortly after closing.

The vendors had provided oral assurances and a Property Condition Disclosure Statement indicating that no such issues existed.

The court held that the vendors were liable for negligent misrepresentation because a prior basement seepage issue had not been disclosed and the assurances reasonably induced the purchasers to complete the transaction despite concerns raised in a home inspection report.

Applying the principle that damages should fund corrective measures rather than betterment, the court limited recovery to the cost of repairing the weeping tile system and associated grading.

Judgment was awarded for the cost of these corrective measures.

A secured creditor applied for the appointment of a receiver over a debtor real estate holding company under s. 243(1) of the Bankruptcy and Insolvency Act and s. 101 of the Courts of Justice Act.

The respondent argued that the appointment of a receiver should not proceed by application and that ordinary remedies were available.

The court held that the governing legislation expressly contemplates appointment by application and that such an order constitutes a final order determining the issues raised.

Given the debtor’s continuing default, the enforceability of the creditor’s security, and the lack of an operating business, the court found it just and convenient to appoint a receiver.

The plaintiffs brought a motion to set aside a transfer of real property that severed a joint tenancy, which would otherwise determine whether the deceased’s interest passed through survivorship or through his estate.

The parties urged the court to treat the matter as suitable for summary judgment based solely on the written record.

The court held that the motion record revealed significant factual disputes, including conflicting evidence from witnesses and potential credibility issues.

Relying on appellate guidance regarding the limits of summary judgment where a full appreciation of evidence is required, the court concluded that viva voce evidence was necessary.

The court ordered that specified witnesses provide oral evidence with limited cross-examination to facilitate a fair determination.

The plaintiff brought a motion for summary judgment relating to a mortgage debt that had been in default since 2001.

The defendants conceded judgment but sought a temporary stay of enforcement pending the determination of a separate action against their former lawyer for alleged breach of fiduciary duty and contribution or indemnity.

The court considered Rule 20.08 of the Rules of Civil Procedure and the broad discretionary authority under s. 106 of the Courts of Justice Act to stay proceedings where the interests of justice require.

Given the circumstances surrounding the initiation of the action and the alleged involvement of the former lawyer, the court concluded that the equities favoured granting a temporary stay of execution.

Judgment was granted to the plaintiff but enforcement was stayed on terms pending progress of the related litigation.

The plaintiffs sought a certificate of pending litigation and an interlocutory injunction concerning property purchased by their daughter after funds had earlier been loaned to assist in purchasing a different property.

The defendant brought a cross‑motion for summary judgment, arguing the claim for repayment of the loan was barred by the two‑year limitation period under the Limitations Act, 2002.

The court held the alleged acknowledgment of debt contained in family litigation financial disclosure did not revive the limitation period because it was made after expiry and was not directed to the creditors.

Claims framed in unjust enrichment and constructive trust could not circumvent the limitation period, and the plaintiffs had no equitable mortgage or proprietary interest in the property.

Summary judgment was granted dismissing the action and the plaintiffs’ motions for a certificate of pending litigation and injunctive relief were dismissed.

The applicants sought an interlocutory injunction compelling a hotel operator to continue managing and branding a hotel under a particular brand pending determination of a permanent injunction application.

They argued the lease required continued operation of the hotel using the brand and associated operational infrastructure despite expiry of the hotel management agreement.

The court applied the RJR‑MacDonald test and held that the lease provisions did not clearly impose an obligation requiring the operator to continue providing the full operational benefits of the brand.

The alleged harm, primarily reduced participation rent and potential reputational impacts, was found to be quantifiable and compensable in damages.

The balance of convenience favoured the operator, which would otherwise be compelled to operate a business relationship it no longer wished to maintain.