Real Estate Law - SCJ

The plaintiff builder brought a summary judgment motion against the defendant purchasers for breach of an Agreement of Purchase and Sale (APS) after the defendants failed to close on a pre-built home.

The defendants argued the APS was frustrated by a decline in the real estate market which prevented them from obtaining financing.

The court found the defendants breached the APS, holding that a market decline does not constitute frustration of contract.

The court awarded damages for the loss in property value, carrying costs, and increased real estate commission fees, but declined to enforce a 15% interest provision in the APS, finding it surprisingly onerous and unenforceable.

In a receivership proceeding, the Receiver brought a motion for declaratory relief regarding amounts owed under a loan and mortgage by the respondents.

The respondents brought a cross-motion arguing the Receiver's claim was barred by the two-year limitation period under the British Columbia Limitation Act.

The court found that while the respondents had not acknowledged liability to extend the limitation period, a prior petition commenced by the respondents in British Columbia within the limitation period preserved the claim.

The court held the Receiver's motion was not statute-barred and could proceed to be determined on its merits.

The applicant condominium owner sought an oppression remedy against the respondent condominium corporation for unreasonably restricting his ability to renovate his unit.

The corporation had imposed arbitrary timelines and limited service elevator access to two 20-minute windows, ignoring the applicant's explanations that more time was needed.

The court found the corporation's conduct unfairly disregarded the applicant's interests, ordered a reasonable construction schedule, and awarded special damages for the applicant's temporary accommodation and storage costs.

General damages were denied.

The defendant brought a motion to stay the plaintiff's action for breach of an agreement of purchase and sale, relying on an arbitration clause in the Tarion Addendum.

The court found that while the dispute fell within the scope of the arbitration agreement, the defendant had waived its right to arbitrate by attorning to the court's jurisdiction and actively participating in the litigation for over 16 months before bringing the motion.

The motion to stay was dismissed, and the defendant was ordered to pay costs.

The applicant landlord sought a declaration that the respondent tenant breached a commercial lease and that the lease was validly terminated, seeking vacant possession.

The tenant sought a declaration that the lease was not validly terminated or, alternatively, relief from forfeiture.

The court found that the tenant committed numerous and ongoing breaches, including making significant structural alterations without prior approval or building permits, and installing heavy equipment without consent.

The court held that the landlord properly terminated the lease and that the tenant's deliberate and flagrant conduct disentitled it to the equitable remedy of relief from forfeiture.

The landlord's application was granted and the tenant's application was dismissed.

The applicant brought a motion for the immediate partition and sale of a home jointly owned by the unmarried parties, and requested that the proceeds be held in trust pending trial.

The respondent opposed an immediate sale, seeking to delay closing until the end of the school year and requesting an immediate 50% disbursement of the proceeds.

The court found that the respondent failed to establish sufficient reason to refuse the sale, noting the applicant's unsustainable carrying costs.

The court ordered the property to be listed for sale with a closing date no sooner than January 31, 2023, and directed that $150,000 be disbursed to each party from the net proceeds, with the remainder paid into court.

The plaintiffs brought a motion for summary judgment to claim a $100,000 deposit after the defendant purchasers failed to close a residential real estate transaction.

The defendants had submitted an unconditional offer but failed to close due to financing issues, and subsequently attempted to cloud the title to prevent resale.

The court found no genuine issue requiring a trial, holding that the deposit was a true deposit subject to forfeiture.

The court rejected the defendants' claim for relief from forfeiture, finding the deposit amount proportionate and no unconscionability in the plaintiffs retaining it.

Summary judgment was granted in favour of the plaintiffs.

The applicant landlord sought a declaration that the lease agreement with the respondent tenant was a commercial lease subject to the Commercial Tenancies Act, despite being executed on a standard residential lease form.

The court applied the predominant purpose test, finding that the tenant used the property primarily for its telecommunications construction business, maintained heavy equipment on site, and used the house as a corporate office.

The court held that the lease was commercial in nature and granted the declaratory relief.

The applicants sought an urgent hearing under the Vendors and Purchasers Act to determine the validity of title requisitions submitted by the purchaser two weeks before the closing date of a real estate transaction.

The requisitions concerned a potential heritage designation, knob and tube wiring, and an underground oil tank.

The court denied the request for an urgent hearing, finding that the urgency was self-induced by the parties agreeing to a late requisition date.

The court held that the matter was not truly urgent and did not justify jumping the queue of backlogged civil cases.

The defendant moving party brought a motion to discharge a Certificate of Pending Litigation (CPL) registered against a 700-acre property.

The property was sold to the moving party under a power of sale while concurrently being sold by the owner to the plaintiffs.

The court found that there were triable issues regarding the validity of the power of sale and whether the moving party was a bona fide purchaser for value without notice.

The court concluded that the equities favoured maintaining the CPL to prevent the property from being encumbered or sold before trial, and found no material non-disclosure by the plaintiffs when they initially obtained the CPL ex parte.

The motion to discharge the CPL was dismissed.

The applicant sought to enforce a right of first refusal to purchase a jointly owned property at its 2019 fair market value.

The respondent argued the right was never validly exercised and sought an immediate sale under the Partition Act.

The court reserved its decision on the merits of the right of first refusal but ordered the immediate sale of the property at current fair market value, noting that damages would be an adequate remedy if a breach of contract occurred.

The applicants, developers in the City of Kingston, challenged the validity of the City's Impost By-law, which imposed fees for the capital costs of water and sewer infrastructure.

The applicants argued that the City was required to impose such fees under the Development Charges Act, 1997, and that the Impost By-law conflicted with that Act, was ultra vires the Municipal Act, 2001, and was discriminatory.

The court dismissed the application, finding that the legislative framework allowed the City to enact the Impost By-law under the Municipal Act, 2001, that there was no conflict with the Development Charges Act, 1997, and that the by-law was neither ultra vires nor discriminatory.

The applicant condominium corporation appealed an arbitrator's preliminary ruling that he had jurisdiction to determine whether the respondents' conduct was oppressive under s. 135 of the Condominium Act.

The applicant argued that oppression claims must be brought before the Superior Court of Justice and cannot be arbitrated.

The court dismissed the appeal, finding that the arbitrator was correct in concluding that s. 135 does not oust an arbitrator's jurisdiction to consider oppressive conduct if the dispute falls within the scope of a valid arbitration agreement.

Following the dismissal of the plaintiff's action regarding a commercial lease dispute, the defendant sought costs on a partial and substantial indemnity scale based on a Rule 49 offer to settle.

The plaintiff argued for no costs, noting the defendant's conduct was not vindicated at trial as it had sought an improper collateral benefit when withholding consent to a lease transfer.

The court awarded the defendant fixed costs of $15,000 all-inclusive, balancing the defendant's success with its conduct and the plaintiff's failure to serve an offer to settle.

The plaintiffs brought a motion to enforce a prior order prohibiting the defendants from dealing with a property, arguing that the defendants' default on Minutes of Settlement allowed them to continue the action under Rule 49.09(b).

The plaintiffs also sought a contempt order.

The third-party purchasers of the property sought to intervene.

The court dismissed the motion to intervene, finding it would not make a useful contribution.

The court also dismissed the plaintiffs' motion, holding that Rule 49.09(b) does not apply to negotiated Minutes of Settlement, and that the prior prohibition order had been set aside and was no longer in effect.

The plaintiffs' remedy was to move for judgment on the settlement.

The applicant sought partial indemnity costs of approximately $42,000 following her successful application to recognize an easement and defence of a counterapplication.

The respondents argued for a costs award of $10,000, relying on a prior settlement offer.

The court rejected the respondents' reliance on the settlement offer, noting it would have left the applicant responsible for her own costs and restricted in her use of the right of way.

The court awarded the applicant $31,500 in all-inclusive costs.

The plaintiff brought an action for damages for breach of contract arising from a failed real estate transaction.

A summary judgment motion was originally scheduled for April 2020 but was delayed due to the Covid-19 pandemic.

The parties attended a case conference to set a new date and establish a timetable.

The court scheduled the motion for a full day on April 27, 2021, and set out a consent timetable for documentary discovery, expert reports, mediation, cross-examinations, and factums.

The applicants sold a development property to the respondent.

The agreement of purchase and sale included a $2 million holdback in escrow to cover potential increases in parkland dedication requirements by the City of Toronto.

The applicants brought an application for a declaration that the conditions for the release of the holdback had been met, arguing that the City's new Official Plan Amendment did not specifically prescribe increased parkland requirements.

The court dismissed the application, finding that the Official Plan Amendment adopted by the City was sufficient to trigger the holdback provisions under the plain meaning of the contract.

The plaintiff landlord sued the defendant tenants for unpaid rent and property taxes under a commercial lease for a golf driving range.

The defendants counterclaimed, alleging the landlord breached an oral agreement to finance and build a year-round deck structure, and breached the duty of good faith by orchestrating their default.

The court found that the parol evidence rule did not bar consideration of unsigned collateral agreements, but concluded the evidence did not support the defendants' claim that the landlord promised to pay for the deck.

The counterclaim was dismissed, and the plaintiff was awarded $63,000 for unpaid rent and taxes.

The plaintiff brought a motion for summary judgment in a mortgage enforcement action seeking payment on the covenant and a writ of possession.

The defendant, despite numerous extensions, failed to file any responding materials.

The court found that the plaintiff had proven its claim that the loan was advanced, not repaid, and accounted for the amount owing.

The court granted the plaintiff a writ of possession and judgment in the amount of $130,976.23.