Real Estate Law - SCJ

A common-law spouse moved for a certificate of pending litigation and preservation relief over a home solely owned by the respondent, alleging sweat equity, expense contributions, and trust-based claims arising from cohabitation.

The court held that s. 12 of the Family Law Act was unavailable because the parties were never married, and declined relief under s. 40 because there was no support order, insufficient evidence of entitlement to support, and no concrete evidence of intended asset depletion.

The court also refused a certificate of pending litigation, finding no triable issue as to a proprietary interest in the home, no demonstrated uniqueness of the property, and an adequate likelihood that any remedy would be monetary rather than proprietary.

The motion was dismissed, with liberty in effect to renew if the factual circumstances change.

The defendant condominium corporation moved for partial summary judgment dismissing claims seeking declarations that unpaid common expenses and a registered lien were satisfied because the plaintiff owner alleged overcharged water expenses and unreimbursed repair costs.

The court held that s. 84(3)(b) of the Condominium Act, 1998 unambiguously prohibits an owner from withholding common expenses even when making a claim against the corporation.

Applying the summary judgment framework, the court found the issue was a discrete question of law with no genuine issue requiring a trial and that the concerns associated with partial summary judgment did not arise.

The motion was granted, the impugned claims were dismissed, leave was granted for additional counsel to appear, and costs were awarded to the moving party.

The plaintiff lender advanced construction financing secured by a mortgage over the borrower's residence and three vacant lots, and sought recovery of the deficiency after power of sale proceedings.

The defendant alleged forged authorization documents, fraudulent mortgage registrations, improper funding, bad-faith refusal of partial discharges, unlawful sales, non-compliant discharge statements, and an overstated balance.

The court rejected each defence, finding the signatures genuine, the fraud allegations unproven, the funding challenge unsupported, and the discharge statements compliant with s. 22(2) of the Mortgages Act.

Accepting the lender's spreadsheet calculations, the court ordered payment of $455,426 as of September 6, 2023, plus applicable interest.

This decision determined the costs of a successful application concerning a right to construct and use a dock at the end of a right-of-way over the respondents' property.

The court rejected the respondents' submission that the applicants were the authors of their own misfortune and found the dispute, while not document-heavy, was uniquely complex and factually intricate.

Applying Rule 57.01(1) and the presumptive consequences under Rule 49.10(1), the court held that the applicants' offers to settle were genuine compromise offers and were as favourable as or more favourable than the ultimate remedy obtained.

The court declined to enhance costs based on alleged delay or litigation conduct by respondents' counsel, but awarded substantial costs in a reduced amount.

A tenant in common sought partition of a long-held family cottage property on an island, relying on decades of separate use of a second cottage she had built and maintained.

The respondent opposed partition based on a family agreement restricting dealings with the property, alleged oppression, and the subdivision-control provisions of the Planning Act.

The court held that the agreement remained a relevant factor but did not clearly contract out of the Partition Act, that no malice, vexatiousness, oppression, or unclean hands were established, and that the Planning Act did not bar a partition order although municipal consent would be required for legal effect.

The application was granted subject to municipal approval.

The plaintiffs moved for summary judgment to enforce findings made in an earlier partition proceeding that the defendant owed repayment of excess property contributions and occupation rent.

The defendant argued the action was barred by res judicata, but the court held the claim sought enforcement of prior final findings rather than impermissible relitigation.

The court also rejected the defendant's late argument that a trial was needed on the existence of any loan agreement, noting the absence of responding evidence and the prior adjudication of the parties' intentions.

Finding no genuine issue requiring a trial, the court granted summary judgment for $85,743.80 and directed that the trust funds be distributed in conformity with the earlier reasons and this endorsement.

The plaintiff condominium corporation obtained summary judgment for possession and arrears of common expenses against the defendants.

The parties disputed whether the legal costs, which had escalated to over $35,000 on an original default of $500, should be assessed and on what scale.

The court ordered the costs to be referred for assessment.

Despite the condominium declaration providing for solicitor-client costs, the court exercised its discretion to order that the costs be assessed on a partial indemnity scale, citing the disproportionate nature of the fees, the high interest rate charged, and the plaintiff's failure to accept a reasonable settlement offer early in the dispute.

The applicants moved for an order regarding post-closing issues following a court-approved sale of properties.

The respondents sought payout on two mortgages, including compensation for future interest loss, as the mortgages were vested off title prior to maturity.

The applicants objected, arguing the mortgages were self-dealing and should not include an unbargained pre-payment penalty.

The court found that the mortgages did not contain a pre-payment privilege and that the respondents did not breach any fiduciary duty in the refinancing.

The court ruled in favour of the respondents, ordering that they be compensated for future interest loss.

The plaintiff mortgagee sought summary judgment against the defendant mortgagors following multiple defaults on a mortgage and fire insurance policy.

The defendants argued that the plaintiff's acceptance of a partial payment 'without prejudice' remade the agreement, requiring the plaintiff to restart the collection process, and counterclaimed that the plaintiff dissuaded a donor from paying off the mortgage.

The court granted summary judgment, finding no direct evidence to support the counterclaim and concluding that the partial payment was merely on account, not a remaking of the agreement.

The court also rejected the argument that the action was barred by section 42(1) of the Mortgages Act.

The plaintiff brought a motion for various relief in two related actions involving an alleged improvident sale under a power of sale and a subsequent alleged fraudulent conveyance of another property.

The court granted leave to amend the statement of claim, consolidated the actions, granted relief from the deemed undertaking rule, and awarded partial summary judgment for reinvestment costs improperly retained by the defendant.

However, the court declined to issue a certificate of pending litigation because the property had recently been transferred to an apparent arm's-length purchaser, though it did so without prejudice to future motions.

The plaintiff bank moved for summary judgment against the defendant guarantor for the balance owing on commercial loans.

The defendant argued that the bank's receiver sold the mortgaged property improvidently, thereby raising a genuine issue for trial.

The court found that the receiver took reasonable precautions to obtain the true market value of the property, including obtaining an appraisal and listing it on the MLS for a reasonable period.

The court concluded there was no genuine issue requiring a trial and granted summary judgment to the bank.

The applicant subtenant sought a permanent or interlocutory injunction to enforce an exclusivity clause in its commercial sublease, which granted it the exclusive right to operate a karaoke club.

The respondent sublandlord had leased another unit to a co-respondent for a restaurant with karaoke.

Finding material facts in dispute, the court ordered the application to proceed to trial.

Applying the RJR-MacDonald test, the court granted an interlocutory injunction restraining the co-respondent from providing karaoke services pending trial, finding a serious issue to be tried, irreparable harm to the applicant's business, and the balance of convenience favouring the applicant.

The plaintiffs purchased a commercial plaza that was contaminated with PCE from a former dry cleaning business.

They sued the vendor for fraudulent misrepresentation, alleging the vendor concealed environmental reports showing the contamination.

They also sued their real estate lawyer for professional negligence, alleging she failed to obtain the reports or properly advise them regarding the environmental condition.

The court dismissed the action against all defendants.

The court found as a fact that the vendor had provided the environmental reports to the purchaser before the environmental condition was waived.

The court also found that the lawyer met the standard of care, as the purchaser had taken responsibility for satisfying the environmental condition and had instructed her to waive it after receiving the reports.

The plaintiff bank moved for summary judgment on two mortgage loans, a line of credit, an overdraft loan, and a credit card.

The defendant, representing himself, raised several defences, including that he had repaid the loan with an EFT requisition, that the contract lacked consideration, and various pseudolegal arguments regarding promissory notes and bills of exchange.

The court found that the EFT requisition was dishonoured and rejected all of the defendant's legal arguments as meritless.

Summary judgment was granted to the plaintiff with substantial indemnity costs.

In a reference to determine the distribution of proceeds from a mortgage sale, the first mortgagee sought to claim increased fees and expenses arising from amending agreements entered into with the mortgagor after the second mortgagee registered its charge.

The court held that the second mortgagee was not bound by the amending agreements, as it had no notice of them at the time of registration.

The first mortgagee was only entitled to claim fees specifically set out in the registered mortgage and standard charge terms.

The increased fees were disallowed and legal fees were reduced.

The plaintiffs brought a motion for default judgment against the defendant mortgagee, seeking a refund of overpayments and punitive damages.

The defendant had previously obtained a default judgment for $46,950.19 but later demanded $82,238.28 to discharge the mortgage when the plaintiffs sold their home.

The court found that the registrar had unlawfully signed the initial default judgment for unliquidated claims.

Furthermore, the court held that the defendant's demand for accelerated interest and excessive fees violated section 8 of the Interest Act and the Unconscionable Transactions Relief Act.

The court ordered the defendant to refund $40,223.85 and awarded $30,000 in punitive damages for its high-handed and unconscionable conduct.

The plaintiff vendor brought a motion for summary judgment against the defendant purchasers for failing to close a real estate transaction.

The defendants argued there was an oral collateral agreement making the purchase conditional on financing.

The court found no genuine issue requiring a trial, noting the written agreement explicitly excluded collateral agreements and the defendants failed to provide sufficient evidence of the alleged oral condition.

Summary judgment was granted, and the defendants were ordered to pay damages for the difference in the subsequent sale price and carrying costs, plus costs.

The applicant tenant sought damages for wrongful distress after the respondent landlord changed the locks and seized property for rent arrears.

The landlord counter-applied for rent arrears and property damage.

The court found that while the landlord had a right to distrain due to chronic rent arrears, it failed to prove the distress was executed during daylight hours, rendering it unlawful.

The tenant was awarded $10,000 for wrongful distress.

The landlord was awarded $89,060 for rent arrears, lost rent due to lack of notice, and property remediation costs, resulting in a net award to the landlord.

The plaintiff invested in a property with the defendant Esmail, creating a trust relationship.

Esmail failed to keep proper accounts, transferred the property to his wife Yasmin to defeat creditors, and eventually sold the property without properly accounting to the plaintiff.

The solicitor acting on the sale, Jiwa, ignored the trust declaration and failed to protect the plaintiff's interests.

The court found Esmail and Yasmin liable for breach of trust and fiduciary duty, and Jiwa liable for negligence and breach of fiduciary duty, awarding damages to the plaintiff.

The applicants sought to strike an agreement from the land registry that had been registered on the title of their residential property for nearly 25 years.

The agreement, made between siblings, contained a right of first refusal and provided for equal distribution of net proceeds upon the sale of the property.

The court found that the agreement was intended to survive the death of the parties and bind their heirs.

The court also held that the addendum binding the applicant's spouse was supported by valid consideration in the form of forbearance.

Finally, the court confirmed the agreement was properly registered on title under both the Registry Act and the Land Titles Act.

The application was dismissed.