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 applicant developer sought oppression relief under s. 135 of the Condominium Act, 1998 to compel a condominium corporation to sign a resort access licence agreement for shared amenities in a resort-style development.

The court held that the applicant was a successor declarant with standing and that the condominium corporation remained obliged under its declaration to enter into a licence agreement, notwithstanding its attempted declaration amendment and arguments based on s. 112.

However, the court found that the refusal to sign the specific agreement tendered was not oppressive because the proposed terms left fees, rules, closures, and future charges substantially within the developer's unilateral control.

The proper course, if terms cannot be agreed, is mediation and arbitration under s. 132.

The application was dismissed.

The applicant condominium corporation abandoned its application against the respondent unit owner after the respondent moved out of the building.

The respondent subsequently brought a motion seeking over $200,000 in costs, including moving expenses, foreign legal fees, and compensation for hundreds of hours spent 'thinking' about the case.

The court found the majority of the claimed costs unreasonable and unrecoverable, fixing the respondent's costs for the abandoned application and the costs motion at $1,411.00.

The applicant brought a motion for a certificate of pending litigation (CPL) against three properties, alleging that his brother and other family members fraudulently transferred a property held in trust and used the mortgage funds to purchase two other properties.

The court found a triable issue regarding the applicant's interest in two of the properties based on a written trust agreement and the respondents' failure to answer undertakings regarding the use of mortgage funds.

The court granted the CPL for those two properties but dismissed the motion regarding the third property because it was co-owned by non-parties who had not received notice.

The applicant sought final declarations of remaining indebtedness against the respondents following the liquidation of real estate project securities by a court-appointed receiver.

The respondents raised several defences, including the expiry of limitation periods, alleged obstruction of a retail unit sale, bad faith, and failure to exhaust recourse.

The court dismissed all defences, finding the claims were brought within the limitation period due to acknowledgments and waivers, and that the respondents failed to raise any genuine issue requiring a trial.

The application was granted, and judgment was ordered against the respondents for the shortfall amounts totaling approximately $36 million.

The applicant mortgagor challenged the respondent mortgagee's sale of her residential property under power of sale proceedings, alleging the sale was improvident and that the respondent breached her right of redemption.

The court found that the respondent took reasonable precautions to obtain the true market value in a declining market, actively marketing the property and reasonably accepting the final offer.

The court also held that the applicant's request to complete a conditional sale herself did not constitute a valid tender to exercise the right of redemption.

The application was dismissed.

The self-represented plaintiff sought to set aside an Agreement of Purchase and Sale for a farm property, arguing it was executed after the irrevocability date had expired or, alternatively, under duress.

The court found the plaintiff's testimony unreliable and concluded that the irrevocability date had been validly extended and initialled before she signed the counteroffer.

The court also dismissed the duress claim, finding that while the plaintiff faced economic and time pressure due to a court order to sell the property, the pressure was lawful and did not deprive her of her free will.

The action was dismissed.

The plaintiff bank brought a motion for summary judgment and possession of a mortgaged property following the defendant's default.

The defendant did not dispute the default or the amount owed but argued that summary judgment should not be granted because he had a speculative plan to cure the arrears using funds from a mortgage broker's other pending transactions.

The court found no genuine issue requiring a trial, noting the defendant's plan was speculative, did not address property tax arrears, and the defendant had not properly pursued relief under section 23 of the Mortgages Act.

The motion for summary judgment and possession was granted.

The plaintiff bank brought a motion for default judgment seeking possession of a property and payment of a mortgage debt.

The defendant failed to defend the action and was noted in default.

The court found that the deemed admissions established liability and that the contractual compound interest rate of 4.82% was enforceable.

The court granted default judgment for the outstanding balance plus interest, a writ of possession, and costs on a substantial indemnity basis.

The plaintiff moved to certify a class action against the defendants regarding their practice of automatically renewing residential mortgages at maturity into six-month closed terms at higher posted rates.

The plaintiff alleged this practice breached section 8 of the Interest Act, breached the standard form contracts, and constituted unjust enrichment.

The court found that the pleadings disclosed viable causes of action, including that the automatic renewal could trigger 'arrears' under the Interest Act.

The court certified the class action, finding an identifiable class, common issues predominating over individual ones, and that a class proceeding was the preferable procedure.

The moving party defendants sought summary judgment dismissing the responding party defendants' crossclaim for independent damages and equitable set-off relating to environmental contamination of a purchased property.

The moving parties argued the claims were brought more than two years after the responding parties knew or ought to have known of the contamination.

The court dismissed the motion, finding a genuine issue requiring a trial regarding when the responding parties, who were unsophisticated purchasers, ought to have discovered the claim given conflicting evidence about which environmental reports were provided prior to closing.

The court also held that the independent damages claim was not a new cause of action but an additional form of relief based on facts already pled.

Following a failed residential real estate transaction in which the purchasers did not pay the required deposit, the defendants pursued a third party claim against their real estate agent and brokerage for indemnity.

The central allegation was that the agent had advised the purchasers that the agreement was effectively conditional on delivery of the deposit and that non-payment would permit them to walk away without liability.

The court rejected that factual theory, finding the signed agreement and surrounding communications supported the conclusion that the purchasers had been committing to a firm deal and were later attempting to avoid completion after family advice.

The court accepted the general statement of the real estate agent’s duty of care but held no breach was established on the evidence.

The third party claim was dismissed.

The plaintiff moved to consolidate a 2024 civil action with a related 2016 action arising from the same land transaction and alleged sale of property without accounting to an asserted one-third beneficiary.

The opposing defendants cross-moved for summary judgment on a limitations defence and for security for costs.

The court held that the Real Property Limitations Act, rather than the Limitations Act, 2002, governed the trust and land-based claim, with the result that the action was not statute barred.

The court further held that both actions involved the same property, overlapping parties, and common issues regarding the sale proceeds, making a joint hearing in the interests of justice.

Summary judgment and security for costs were dismissed, and costs were awarded against the moving defendants on the cross-motion.

The plaintiff sought specific performance of a commercial real estate transaction that failed to close in April 2020, arguing that pandemic-related financing delays prevented closing and that the vendor acted unreasonably in refusing a further extension.

The court found the vendor tendered on closing and was ready, willing, and able to complete the transaction, while the purchaser lacked funds and had only conditional financing that was not available on the closing date.

The court held that COVID-19 did not create a free-standing legal excuse for contractual non-performance and distinguished authorities where pandemic conditions formed only part of the factual matrix or where the opposing party was not ready to close.

The action for specific performance was dismissed, and the vendor's counterclaim for a declaration of forfeiture of the $200,000 deposits was granted.

Relief from forfeiture was refused.

On a mortgage enforcement summary judgment motion, the court dismissed the borrower's action and granted the lender judgment on its counterclaim arising from default under a residential mortgage.

Applying the Hryniak framework, the court held there was no genuine issue requiring a trial on claims for refund of advance disbursements, reduction of a renewed interest rate under the Unconscionable Transactions Relief Act, invalidation of default-related legal fees, failure to advise about disability insurance, invalidity of a notice of sale after a partial payment, and alleged improper notice to the borrower's former spouse's counsel.

The court found the challenged fees had been disclosed and authorized, the renewed 9.24% rate was not unconscionable, the legal fees were actually incurred and contractually recoverable, the lender owed no duty to advise on disability insurance, and a partial payment did not invalidate an otherwise proper notice of sale.

Possession and money judgment were granted, while leave for issuance of a writ of possession was adjourned pending compliance with the Rules.

On a mortgage enforcement motion, the moving party sought leave to amend her defence and counterclaim to add multiple proposed defendants by counterclaim, validate service, convert the action from foreclosure to sale, and obtain consolidation with a separate related action.

The court held there was no non-compensable prejudice and that the proposed joinder satisfied the Rules of Civil Procedure because the pleaded facts alleged an interconnected series of transactions, common factual issues, uncertainty about liability, and a strong interest in avoiding inconsistent findings.

The court further held that the proposed unlawful act conspiracy pleading was legally sufficient at the pleadings stage and need not prove the merits on the motion.

Leave to amend, conversion to a sale action, and validation of service were granted; consolidation was left unnecessary in light of the expected discontinuance of the separate action.

This was a costs endorsement following the granting of a motion for leave to issue a certificate of pending litigation against real property and the abandonment of a cross-motion for security for costs.

The successful moving parties sought substantial indemnity costs and relied on pre-hearing and post-decision settlement offers, while the responding parties argued for a lower amount or costs in the cause.

The court held that the settlement offers did not trigger the formal consequences under r. 49.10, but remained relevant to the discretionary assessment under s. 131 of the Courts of Justice Act and r. 57.01.

Applying those factors and r. 37.09(3) concerning abandoned motions, the court fixed costs slightly above partial indemnity and ordered payment forthwith within 30 days.

The applicants sought discharge of a $100,000 charge registered against residential property as security for a commercial lease guarantee after the lease had been assigned to a new tenant with replacement guarantors and replacement security.

The respondent landlord counter-applied for $145,205 in alleged repair and renovation costs said to arise from the outgoing tenant's obligations under a lease renewal agreement.

The court held that the proceeding could be determined by application because the dispositive issues turned on contractual interpretation and limitations, not contested material facts requiring a trial.

The court found the guarantors were released when the landlord approved the assignment and accepted replacement guarantors and security.

The landlord's repair claim was characterized as a contractual claim governed by the basic two-year limitation period under s. 4 of the Limitations Act, 2002, not the ten-year period under the Real Property Limitations Act, and was therefore statute-barred.

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.