Real Estate Law - SCJ

The third parties, Steven Sheppard and SKS Law LLP, brought a motion to strike the defendant Lansdowne Office Inc.'s third party claim against them for disclosing no reasonable cause of action.

The third party claim sought contribution and indemnity under the Negligence Act, alleging that the third parties (the plaintiff's solicitors) provided negligent advice to the plaintiff regarding a commercial lease.

The court dismissed the motion, finding that the alleged negligent advice was not attributable to the plaintiff and therefore could ground a third party claim for contribution and indemnity.

The court determined the priority dispute between KingSett Mortgage Corporation's 2022 mortgage and various construction liens against the Debtors' property, which was in receivership.

The Receiver brought the motion to clarify "Priority Payables" under a court-approved sale agreement.

The court found that the 2022 KingSett Mortgage had priority over the construction liens, except to the extent of any deficiency in the statutory holdbacks, applying sections 78(2) and 78(6) of the Construction Act.

The court rejected the lien claimants' arguments that the mortgage did not qualify for priority under these sections and that the Receiver acted inappropriately.

The defendant, Randy Gliddon, brought a motion to set aside an ex parte order that permitted the plaintiffs to register a Certificate of Pending Litigation (CPL) against a property.

The defendant argued that the CPL was obtained without full and fair disclosure and that there was no triable issue.

The court found no material non-disclosure, noting that the plaintiffs' reliance on an alleged oral trust agreement between the deceased and the defendant, as evidenced by a lawyer's email, was sufficient to raise a triable issue regarding the severance of joint tenancy.

The motion to set aside the CPL order was dismissed, and costs were awarded to the plaintiffs.

In matrimonial proceedings, the court held a focused hearing to determine the beneficial ownership of a property gratuitously transferred by the respondent to himself and his adult son as joint tenants.

The applicant argued for a resulting trust, while the respondent contended it was a gift.

The court found that the respondent failed to provide clear, convincing, and cogent evidence to rebut the presumption of resulting trust, concluding that the respondent remained the beneficial owner of his son's one-half interest in the property.

The applicant, John Walker, sought an order under the Partition Act for the sale of a jointly owned property.

The respondents, Bethany Walker and Matthew Colling, opposed the sale, arguing it would cause them hardship amounting to oppression and requested a stay until an estate trustee was appointed and a Henson trust established.

The court found the respondents failed to demonstrate oppression, noting their inconsistent financial disclosures, the property's deteriorating condition, and the applicant's need for the sale proceeds for his care.

The court granted the order for sale, requiring the respondents to vacate and setting terms for the sale process.

This decision addresses the impact of a Court of Appeal ruling that declared certain contingent property interests in a 1981 development agreement void for perpetuities.

The Superior Court was remitted to determine which other provisions of the 1981 Agreement and related contracts were affected and rendered inoperative.

The court found that the voided sections fundamentally altered the original bargain, which included a path for the evolution and potential redevelopment of the golf course lands, not a perpetual obligation to operate a golf course.

Consequently, several provisions related to the golf course's perpetual operation, sale, right of first refusal, and redevelopment path were declared inoperative.

The 40% open space principle was largely maintained but its application to golf course redevelopment was clarified.

The applicant, Brown’s Clearwater West Lodge Inc., brought two motions: one to consolidate two related actions (a share purchase action and a mortgage action) and another to set aside default judgments obtained by the respondent, Caroline Manon Labonte, in the mortgage action.

The court granted both motions, finding that the default judgments were irregularly obtained and should be set aside as of right without imposing terms.

The court also found that consolidation was appropriate given the interwoven issues and common questions of fact and law stemming from the same share purchase agreement, promoting judicial efficiency and avoiding multiplicity of proceedings.

The plaintiffs sought summary judgment for damages arising from the defendants' breach of an agreement of purchase and sale for a residential property.

The defendants failed to close the transaction, and the plaintiffs subsequently re-sold the property at a lower price.

The court found that the arm's length re-sale price was prima facie evidence of the property's fair market value and that the defendants failed to provide sufficient evidence to challenge the plaintiffs' mitigation efforts.

Summary judgment was granted in favour of the plaintiffs for the difference in sale prices plus related expenses.

The applicant, J. Lang Management Inc., brought a motion for a certificate of pending litigation (CPL) over the "Jordon Lands" based on a contractual term in an asset management agreement.

This term stipulated that the respondents would grant a mortgage over the Jordon Lands to secure asset management fees if the applicant had a reasonable apprehension of non-payment.

The respondents argued the fees were not owed and that the applicant had provided no valuable services.

The court found that the applicant had raised a triable issue regarding its interest in the land and that granting the CPL was just and equitable.

The court rejected the respondents' proposed alternative security, emphasizing the importance of upholding the specific security terms negotiated in the commercial agreement.

The Toronto Dominion Bank (TD Bank) brought a motion seeking a Certificate of Pending Litigation (CPL) against a property transferred by a debtor to his wife.

TD Bank had an outstanding credit card debt against the debtor, who subsequently transferred his property to his wife for no consideration, discharged an existing mortgage, and placed a new, larger mortgage on the property without making payments to TD Bank.

The court determined that a fraudulent conveyance action constitutes a sufficient interest in land for a CPL.

Applying a modified test for fraudulent conveyance claims, the court found a high probability of TD Bank recovering judgment, sufficient evidence of intent to defeat creditors, and that the balance of convenience favored issuing the CPL.

The motion for a CPL was granted.

The plaintiff, Canada Mortgage and Housing Corporation (CMHC), brought a motion under Rule 2.1.01 to dismiss the defendants' motion to set aside a default judgment.

The defendants had repeatedly attempted to relitigate issues related to the 2010 default judgment, with previous actions and motions dismissed as frivolous, vexatious, and an abuse of process by multiple courts, including the Court of Appeal.

The court found that the defendants' current motion was a fourth attempt to relitigate the same issues without new or cogent evidence, confirming it was frivolous, vexatious, and an abuse of process.

The court dismissed the defendants' motion.

The plaintiff brought an urgent motion for a Certificate of Pending Litigation (CPL) on a property she had an Agreement of Purchase and Sale (APS) for, which the defendant was attempting to sell to a third party.

The transaction had failed to close due to disputes over extension requests.

The court considered the equitable factors for granting a CPL, including the uniqueness of the land, the plaintiff's intentions, the adequacy of damages as a remedy, and the plaintiff's diligence in prosecuting the claim.

The court found the plaintiff's evidence on uniqueness and intent vague and concluded that the plaintiff had not prosecuted the claim with reasonable diligence.

The motion for a CPL was dismissed, and the plaintiff's alternative request for payment of sale proceeds into court was also denied.

The plaintiff brought a motion for summary judgment seeking the return of a $20,000 deposit and damages related to an aborted real estate transaction.

The defendant, the vendor, failed to provide full access for an inspection, which prevented the plaintiff from securing financing.

Although the defendant later offered to cure the breach, the plaintiff had already purchased another property.

The court granted relief from forfeiture, ordering the return of the deposit, but dismissed claims for damages based on the difference in property prices, land transfer tax, and interest rates, finding them not recoverable or too remote.

The plaintiff was awarded costs for the aborted transaction and the motion.

The applicants sought an order under the Conveyancing and Law of Property Act to retain land on which their garage encroached, believing it was their own.

The respondents sought summary judgment dismissing the application, arguing adverse possession was not established and the Act did not apply.

The court found no genuine issue for trial, confirmed no adverse possession, and applied s. 37(1) of the CLPA, granting the applicants the right to retain the encroached land upon payment of fair compensation to the respondents.

The defendants, former solicitors for the plaintiff, brought a motion for summary judgment to dismiss the plaintiff's negligence action on the basis that it was commenced beyond the two-year limitation period.

The plaintiff alleged negligence in drafting condominium documents, leading to a substantial reduction in a prior award.

The court found that the plaintiff discovered or ought to have discovered its claim against the defendants no later than July 7, 2017, when a prior court endorsement specifically addressed the inadequacy of disclosure, which was attributable to the defendants' drafting.

As the action was commenced on November 19, 2019, it was barred by the Limitations Act.

The motion for summary judgment was granted, and the action was dismissed.

The applicant, Donald Bodkin, moved for an order to convert his application into an action under Rule 38.10(1)(b) of the Rules of Civil Procedure, arguing that the case involved highly contested facts, credibility issues, and required processes inherent to an action like pleadings and examinations for discovery.

The respondents opposed the motion, citing the applicant's legal experience, potential limitation period issues, and alleged delay tactics.

The court found that the test for conversion was met due to significant material facts in dispute, complex issues requiring credibility assessment, and the necessity of a full discovery process.

The court exercised its discretion to grant the conversion, finding no uncompensable prejudice to the respondents.

This endorsement addresses the costs arising from an application where the applicants sought a declaration of adverse possession over disputed lands.

The court previously granted the applicants ownership of a portion of the lands (Common Grounds) but not the entirety.

The respondent, deemed the successful party for costs, sought substantial indemnity costs for both the current and a prior related application.

The applicants sought partial indemnity costs.

The court awarded the respondent partial indemnity costs, finding that the respondent's offers to settle did not meet the requirements of Rule 49.10 and that the applicants' conduct did not warrant substantial indemnity costs.

The parties were ordered to equally share the costs of implementing the judgment.

This decision concerns costs arising from a motion where the plaintiffs sought a certificate of pending litigation on an investment property.

The motion was dismissed, but the court ordered 22.5% of the net sale proceeds to be paid into court to secure the plaintiffs' interest.

In the costs submissions, it was revealed that the property had been sold ten days before the motion hearing, a fact not disclosed to the court or the plaintiffs.

The court found this non-disclosure by some defendants to be "gamesmanship" and a deception that undermined the integrity of the legal process.

Despite the defendant Yousef's Rule 49 offer to settle, the court ruled that the deception disentitled any defendant from receiving costs directly from the plaintiffs.

Instead, both the plaintiffs' costs ($10,236.97) and the defendant Yousef's costs ($14,511.78) were ordered to be paid from the net proceeds of the property sale held in court, and any shortfall to be paid jointly and severally by the beneficial owners involved in the deception.

The defendants brought a motion seeking leave to amend their statement of defence to include a counterclaim and to obtain a Certificate of Pending Litigation (CPL) against a property.

The plaintiff opposed both requests, arguing the counterclaim lacked merit and the CPL was unwarranted.

The court granted leave to amend the pleading, finding no uncompensable prejudice to the plaintiff.

However, the court dismissed the request for a CPL, concluding that the balance of convenience did not favor its issuance, particularly given that prior cost awards against the plaintiff had been paid and other procedural tools were available to the defendants.

The applicants sought ownership by adverse possession of a triangular parcel of land ("Disputed Lands") on their property's eastern border.

The respondent, the registered owner of the adjoining property, conceded a portion of these lands ("Common Grounds") but disputed the remainder.

The court found that the applicants established adverse possession of the "Common Grounds" due to their continuous, open, and exclusive use, and the mutual mistake regarding ownership.

However, the court found insufficient evidence to establish adverse possession of the balance of the "Disputed Lands." The judgment declared the applicants as lawful owners of the "Common Grounds" and ordered the necessary land registry amendments.