Real Estate Law - SCJ

This was a post-trial costs decision following lengthy, highly contested mortgage litigation and an 11-day trial.

The successful defendants sought either full indemnity costs or a blended award, relying on their unaccepted offer to settle, fraud-like allegations advanced by the plaintiffs, and mortgage standard charge terms.

The court held that the offer to settle engaged Rule 49.10 and justified substantial indemnity costs from the offer date onward, while also recognizing limited enhancement arising from the unsuccessful fraud-like allegations.

After considering Rules 57.01 and 49 and the overall fairness of the award, the court fixed costs at $229,121.76.

In a slip-and-fall action arising from an icy residential driveway at the plaintiff's workplace, the court granted summary judgment dismissing the claim against the tenant as statute-barred under ss. 4 and 5 of the Limitations Act, 2002 because the plaintiff knew or ought to have known from the outset that the premises were rented and that the occupier-tenant should have been sued.

The court also dismissed the landlord's third party claim for contribution and indemnity against the actual occupiers and the real estate parties as barred by s. 18, holding that s. 18 creates an absolute two-year limitation period not subject to discoverability.

On the merits, the absentee landlord was held not to be an occupier under s. 1 of the Occupiers’ Liability Act and not liable under s. 8 because the lease placed snow and ice removal on the tenant and no actionable landlord default was established.

The main action and third party proceeding were both dismissed.

In a mini-trial of an agreed issue arising from judgment-enforcement litigation, the court held that after the debtor's bankruptcy and discharge, any claim under the Fraudulent Conveyances Act belonged to the bankruptcy estate and could only be pursued by the trustee or a creditor acting under s. 38 of the Bankruptcy and Insolvency Act.

The plaintiff's motion to continue personally against the bankrupt debtor on the theory that the claim survived discharge under s. 178(1)(d) was dismissed.

On the factual issue tried, the court found that a series of real estate transfers and mortgage transactions involving family members and related parties were undertaken with intent to defeat, hinder or delay the plaintiff's collection efforts.

The court made no liability ruling on remaining non-FCA causes of action and reserved costs.

The applicants sought permanent injunctive relief arising from extensive dumping of fill on rural property without the required permits and contrary to municipal by-laws, the Building Code Act, planning controls, and Oak Ridges Moraine legislation.

The responding parties argued the material was only topsoil intended for a future tree nursery and said the activity was protected as an agricultural use.

The court held the evidence established massive unauthorized fill placement, substantial alteration of grade and drainage, and conduct far more akin to a commercial fill operation than a normal farming practice.

The asserted future farming use and business licence did not excuse non-compliance, and no application had been made to the Normal Farm Practice Protection Board.

Permanent injunctive and related relief were granted.

The applicant sought to compel the respondent school board to comply with s. 41(1) of the Expropriations Act after expropriated lands intended for a school were proposed to be conveyed to a municipality for a recreation facility and seniors’ centre use integrated with the school project.

The applicant argued that once the land was no longer needed for the original expropriation purpose, the respondent was required to provide notice and an election to reacquire the property.

The court held that the board had not abandoned the lands and that the proposed recreational and related facilities fell within the stated purpose of operating a school and related amenities, particularly given the broad provisions of the Education Act.

The application, including the request for temporary injunctive relief, was dismissed, and the respondent was awarded costs.

The applicants sought judicial review of a chief building official's decision to issue a building permit for a one storey accessory garage on an undersized beachfront lot lacking street frontage.

The court held the zoning bylaw was ambiguous because the lot did not face a street, making it impossible to determine the front and rear lot lines and applicable setbacks with certainty.

Applying a reasonableness standard and considering the official plan's waterfront aesthetics provisions, the court found the proposed structure was incompatible with the existing character of the area and should not have been permitted.

The decision issuing the permit was rescinded, with no order as to costs.

In a trial of a cross-claim arising from a residential real estate sale, the cross-claimant alleged that the realtor and brokerage misrepresented future market conditions and induced a sale below value during the 2008-2009 financial downturn.

The court rejected the cross-claimant's credibility, accepted the realtor's evidence on key factual disputes, and held that statements about the future direction of the market were not actionable misrepresentations on the facts found.

The court further held that the alleged statements did not amount to contractual warranties and that the property sold at market value.

In any event, the claimed loss based on later appreciation was not proven.

The plaintiffs moved for summary judgment in an action arising from a residential real estate transaction, alleging breach of an agreement of purchase and sale after the defendants failed to close.

The court reviewed the post-Hryniak summary judgment framework and held that the record disclosed possible triable issues, including waiver, whether the agreement had been voided, whether damages were suffered, and mitigation.

In the absence of exchanged affidavits of documents and questioning, the enhanced fact-finding powers under Rule 20.04 did not permit a fair and just determination on the merits.

The motion was dismissed as premature, with no costs to either side.

The applicant sought an order permitting removal of a boundary tree damaged in the 2013 ice storm after arborists reported it was unsafe and a branch had already damaged a neighbouring property.

The respondent opposed removal and relied on a statutory consent requirement under the Forestry Act.

The court held that s. 10(3) of the Forestry Act did not apply as between co-owners of a boundary tree and that the dispute was governed by the common law of nuisance.

Because the tree presented a patent and continuing danger, the respondent was obliged to abate the nuisance and was ordered not to interfere with removal and to pay half the removal costs.

This action and amalgamated application arose from a series of informal secured and unsecured loans, mortgages, promissory notes, and related investment dealings between the plaintiff and the responding parties.

The court found that $200,000 in fire insurance proceeds received by the mortgagees as loss payees had to be treated as satisfying the secured mortgage debt to that extent, and could not be redirected to unsecured debts while the mortgagees still asserted the full secured claims.

The court held that the accounting provided by the responding parties was materially inaccurate, declared both power of sale proceedings invalid, and discharged the NUTOK mortgage.

Most unsecured promissory note claims were statute barred, but the KUL mortgage balance, the Xtra Gold debt and share proceeds, and two 2009 promissory notes remained owing.

The applicants sought a declaration that residential property registered in their adult son's name was beneficially theirs, relying primarily on resulting trust and alternatively on express trust, unjust enrichment, and adverse possession.

The court held that the presumption of resulting trust arising from the gratuitous 1990 transfer was rebutted on the evidence, finding that a gift to the son was more plausible than a bare trustee arrangement and rejecting the current denials of gifting intention as unreliable.

However, the court found that the son's 2014 affidavits and consent created an express trust in favour of the applicants from August 20, 2014 onward.

Title was vested in the applicants subject to enforcement of the former spouse's registered family law judgment to the extent outstanding as of that date, with no costs awarded.

The plaintiffs sought damages for alleged breach of an agreement of purchase and sale requiring the vendor to remove all existing structures, including foundations and the concrete slab on grade, from a commercial property.

After a trial focused largely on credibility and proof of loss, the court found the vendor had completed the demolition work, including removal of the slab and footings, and rejected the plaintiffs' factual allegations to the contrary.

The court also found that any alleged delay tied to a vendor's lien resulted from the plaintiffs' own inaction and that no actual out-of-pocket losses were proven.

The action was dismissed, and judgment on the defendant's crossclaim directed payment out of the $65,000 holdback plus accrued interest.

The plaintiff brought an urgent motion arising from allegations that the defendant defrauded him of $186,000 through an altered bank draft provided in a condominium purchase transaction.

The court granted substituted service by e-mail, leave to issue a certificate of pending litigation, and interim relief restraining the defendant from encumbering, damaging, or dealing with the condominium unit pending a further hearing.

The court also ordered plaintiff's counsel to have sole keyed access to the unoccupied unit, subject to the plaintiff's undertaking to pay damages.

Costs were reserved.

On a summary judgment motion arising from a mixed-use condominium shared services dispute, the court enforced a registered Shared Services Agreement requiring payment of shared project expenses.

The responding parties argued the claim was statute-barred under the two-year period in the Limitations Act, 2002 and alternatively relied on estoppel and alleged breach by the moving party.

The court held that the claim was governed by the ten-year limitation period in s. 23(1) of the Real Property Limitations Act because the amounts were secured by a lien and charged upon land.

After applying the Hryniak summary judgment framework and using Rule 20 fact-finding powers, the court found the amounts owing were proven, no estoppel was established, and summary judgment should issue for the full amount claimed.

The plaintiff condominium corporation brought an action against the defendant unit owners (the 'Majority') for unpaid condominium fees, special assessments, and a declaration of the validity of registered liens and notices of sale.

The defendants denied owing fees, claiming credits for water consumption and a right of setoff for promissory notes allegedly owed by the corporation.

The court rejected the defendants' claims for setoff and water credits, finding that the obligation to pay common expenses under section 84 of the Condominium Act is absolute and cannot be avoided due to claims against the corporation or other unit owners.

The court granted judgment for the plaintiff for the unpaid principal and compound interest, upheld the validity of the liens, but found some notices of sale invalid due to overstated arrears.

On a summary judgment motion arising from a failed real estate transaction, the court held that the purchaser breached an unconditional agreement of purchase and sale by failing to close.

Alleged misrepresentations concerning the feasibility of underground parking did not raise a genuine issue requiring a trial because the evidence showed any assurances came from the purchaser's own agent, not the vendor.

The court held the $100,000 payment was a true deposit, not merely part payment of the purchase price, and was therefore forfeitable upon the purchaser's default.

Relief from forfeiture was denied because the deposit, amounting to 6.67% of the purchase price, was not unconscionable.

Summary judgment was granted and the brokerage was ordered to release the deposit to the vendor.

In a contaminated land action arising from a real estate purchase, certain real estate defendants settled with the plaintiffs under a Pierringer Agreement and sought to be removed from the proceeding.

The remaining vendor defendant refused to abandon a cross-claim against the listing agent and brokerage that pleaded both negligence and breach of contract under the listing agreement.

The court held that Pierringer principles applicable to contributory negligence claims did not plainly foreclose a distinct contractual indemnity claim by a non-settling defendant who was not party to the settlement agreement.

The motion to strike that cross-claim was dismissed, although a separate contributory-negligence-only cross-claim was struck on consent.

The plaintiff, a 97-year-old parishioner, brought an ex parte motion for certificates of pending litigation against two properties allegedly acquired or maintained using funds advanced or taken through a fiduciary relationship with a priest holding her power of attorney.

The court held the ex parte procedure was justified because there was evidence of a recent encumbrance and a risk the equity would be dissipated.

Applying the triable issue standard under s. 103 of the Courts of Justice Act, the court found a serious issue that the plaintiff had an equitable interest in both properties through breach of fiduciary duty, constructive trust, equitable lien, or tracing.

Certificates of pending litigation were ordered over both properties.

In a condominium dispute concerning cigar smoke migration, repairs, humidifiers, and status certificates, the moving party sought to strike portions of an affidavit filed in related applications.

The court reviewed the challenged passages individually and distinguished between admissible statements of perspective or belief, inadmissible argument, improper hearsay, and evidence derived from counsel-to-counsel communications.

The court held that expert opinion evidence should be introduced in proper evidentiary form by the expert and struck the paragraph exhibiting the proposed expert report without prejudice to refiling.

The result was mixed, with some words and paragraphs struck and others left for the application judge to assess for weight and relevance.

The mortgagees of one property subject to a court-appointed manager sought to vary a without-notice management order so that the manager’s charges would rank behind their mortgage and no fees would be allocated to that property.

The court held the motion was not brought forthwith as required by Rule 37.14(1), given the mortgagees had notice of the order for months before serving and scheduling their variation motion.

The court further held the mortgagees had acquiesced in the manager’s continued administration of the property while knowing the manager was incurring fees in reliance on court-ordered priority.

Applying the receiver-priority principles in Kowal, the court found the manager’s charges were properly granted and refused to disturb the priority scheme.