Real Estate Law - SCJ

The applicant, an elderly woman in long-term care, sought a writ of possession to evict her nephew from her home so it could be sold to fund her care.

The nephew argued he had an oral agreement granting him a life interest in the property in exchange for helping his aunt and paying her $50,000, which he claimed was part consideration.

The court found the $50,000 was repayment of a prior debt and that the nephew's actions did not constitute part performance unequivocally referable to an agreement for an interest in land.

The court rejected the nephew's claims of proprietary estoppel and granted the writ of possession, staying the eviction for three months to allow him to relocate.

The applicants were previously successful in obtaining an order for the sale of a jointly owned property.

In this costs decision, the court declined to award costs to the successful applicants.

The court found that the case involved an unusual set of facts—unrelated property owners with separate dwellings on jointly owned land—and that both parties, particularly the applicants, missed opportunities to resolve the matter short of litigation.

Each party was ordered to bear their own costs.

The plaintiffs, limited partners and their newly appointed general partners, moved for an interlocutory injunction to restrain the former general partners and non-party project companies from dealing with real estate development properties pending a governance trial.

They also sought leave to issue a certificate of pending litigation and to amend their statement of claim.

The court dismissed the motion, finding that an interlocutory injunction could not be granted against the non-party project companies because the plaintiffs had not claimed a permanent injunction against them, nor had they provided an undertaking in damages.

The request for a certificate of pending litigation was also denied as the plaintiffs, being shareholders of the project companies, did not have a triable issue for a direct interest in the properties.

The applicants and respondents own neighbouring properties subdivided from a single parcel.

The respondents hold an easement over a strip of the applicants' land for pedestrian access to 'use and enjoy the shores of Lake Ontario'.

The applicants sought a declaration limiting the respondents' use to mere ingress and egress to the water.

The court dismissed the application, finding that the surrounding circumstances at the time the easement was created, including the zoning of the strip as an open space private park, indicated an intention to allow recreational use such as sitting and enjoying the view, rather than just passing through.

The defendants moved for summary judgment to dismiss the plaintiffs' action arising from a $200,000 real estate investment.

The plaintiffs alleged fraudulent misrepresentation, breach of fiduciary duty, and unjust enrichment regarding the calculation of profits and holdbacks from the sale of two properties.

The court dismissed the motion, finding genuine issues requiring a trial regarding the enforceability of the settlement releases, alleged misrepresentations of costs, and whether the claims were statute-barred.

The plaintiff Receiver sued the defendant purchaser for damages after the purchaser failed to close a $12.2 million agreement of purchase and sale for a luxury residential property.

The purchaser argued he was entitled to terminate the agreement and receive his deposit back because the property suffered substantial water and mould damage prior to closing, and that the Receiver anticipatorily breached the agreement by refusing to extend the closing date.

The court found that the damage was not substantial, the Receiver did not repudiate the agreement, and the purchaser breached the contract by failing to close.

The Receiver was awarded over $5.3 million in damages, including the deficiency in the resale price, auction fees, and holding costs.

Costs decision following mirror-image applications concerning a dispute over the use and maintenance of a commercial condominium unit.

The court found divided success, as the applicant prevailed on the principal issue regarding a waterproofing membrane, but the respondent prevailed on several subsidiary issues.

The court also considered the applicant's refusal to participate in mediation.

The court ordered each party to bear its own costs and declined to relieve the applicant of its obligation to contribute to the respondent's legal fees through its share of common element expenses, noting this would breach s. 84 of the Condominium Act.

The plaintiffs brought a motion for a Certificate of Pending Litigation (CPL) over a Scarborough property owned by the defendants, alleging that funds advanced as unsecured debt for a different development were diverted to the Scarborough property, creating a constructive trust.

The court dismissed the motion, finding the plaintiffs failed to establish a triable issue regarding an interest in land.

The court also found that damages would be an adequate remedy and that the balance of convenience favoured maintaining the status quo to avoid disrupting the defendants' ongoing redevelopment efforts.

Following a successful application maintaining the forfeiture of a $100,000 deposit, the applicant sought costs.

The applicant had made a Rule 49 offer to settle for $95,000 plus partial indemnity costs.

Because the applicant obtained a more favourable judgment, the court applied Rule 49.10(1) and awarded partial indemnity costs to the date of the offer and substantial indemnity costs thereafter.

Costs were fixed at $19,500 all-inclusive.

The plaintiffs brought a motion for summary judgment seeking specific performance of an Agreement of Purchase and Sale for a residential property.

The defendant vendor attempted to unilaterally terminate the agreement and failed to close the transaction, arguing that the closing date fell on a holiday and no agreement was reached for a new date.

The court found that the defendant committed an anticipatory breach and that the plaintiffs were ready, willing, and able to close on the next business day.

The court granted summary judgment and ordered specific performance, finding the property was uniquely suited to the plaintiffs and damages would be inadequate.

The applicant bank sold a property under a power of sale following the mortgagor's default and death.

After satisfying its mortgage and a second mortgage, the bank held surplus funds.

As the deceased's estate had not yet been constituted and multiple parties had potential interests, the bank brought an unopposed application to pay the surplus funds into court.

The court granted the application pursuant to the Trustee Act and the Rules of Civil Procedure, allowing the bank to pay the funds into court, less its costs, and extinguishing its liability.

The respondents were successful in defending an application for a declaration of a public highway.

The Township and the individual respondents, who were separately represented, sought costs.

The Township claimed partial indemnity costs, while the individual respondents sought full indemnity costs.

The court found that separate representation was justified but declined to award substantial indemnity costs as there was no Rule 49 offer or discreditable conduct.

Costs were fixed at $19,000 for the Township and $17,000 for the individual respondents, payable by the applicant.

The plaintiff tenant sought damages against the defendant landlord for allegedly unreasonably refusing to consent to an assignment of a commercial lease to a prospective purchaser of the plaintiff's restaurant.

The landlord refused to consider the assignment until the tenant removed an unauthorized patio and dismissed an ongoing lawsuit against the landlord.

The court found that while demanding the dismissal of the lawsuit was an improper collateral purpose, the requirement to remove the unauthorized patio was a reasonable ground to withhold consent.

Because a reasonable basis existed, the refusal was justified, and the plaintiff's action was dismissed.

The defendants brought a motion to discharge a Certificate of Pending Litigation (CPL) obtained ex parte by the plaintiffs in a dispute over an alleged real estate joint venture.

The court found that the plaintiffs failed to make full and frank disclosure on the ex parte motion, specifically regarding guarantees and paid architectural services.

The court also determined that damages were an adequate remedy and the balance of convenience favoured discharging the CPL.

The CPL was discharged, subject to a condition requiring the defendants to provide 45 days' advance notice before transferring or encumbering the subject properties.

The plaintiffs brought a motion for summary judgment seeking $1,580,000 owed under a Promissory Note and secured by a mortgage.

The defendants argued that the debt was subject to various set-offs, including unpaid rent, and that the Promissory Note was part of a broader context of dealings.

The court found that the Promissory Note was not a bill of exchange but a valid loan agreement containing an entire agreement clause, which precluded the defendants' claims for legal and equitable set-off.

Summary judgment was granted for the principal amount, but the defendants were granted leave to proceed with their counterclaim regarding a specific contractual set-off for rents against accrued interest.

The defendants moved for security for costs under Rule 56.01(1)(d) in an action brought by the plaintiff alleging an improvident sale of a commercial property under power of sale.

The plaintiff corporation had no assets in Ontario, but its sole shareholder was not impecunious.

The court found that the plaintiff failed to demonstrate a 'good chance of success' on the merits to avoid posting security.

The court ordered the plaintiff to post $60,000 in security for costs in installments.

The appellants appealed three orders (Unsafe Building Order, Property Standards Order, and Occupancy Order) issued by a municipal building inspector regarding a residential property with severe structural deficiencies.

The court found the appeals of the Unsafe Building Order and Property Standards Order were out of time and declined to grant an extension, applying the Mauldin test.

The appeal of the Occupancy Order was deemed moot because the building was already vacant and subject to demolition under the other final orders.

The appellants' argument that the orders should be nullified due to an alleged warrantless inspection was rejected on both factual and legal grounds.

The appeal was dismissed with costs awarded to the respondent municipality.

The applicant and respondents are neighbours with adjoining properties on Lake Erie.

The applicant sought a declaration that she had an implied or prescriptive appurtenant easement over a portion of the respondents' property to access the beach, after the respondents built fences blocking her path.

The court found that the applicant had established an easement by prescription through continuous, open, and peaceful use for over 20 years.

The court rejected the respondents' arguments that the easement had been extinguished by operation of law due to a change in purpose or abuse by the applicant.

The respondents were ordered to remove the obstructing fences.

The plaintiff mortgagee obtained summary judgment and a writ of possession after the defendant mortgagor defaulted on her mortgage.

The self-represented defendant subsequently obtained an ex parte order staying the execution of the writ of possession.

The plaintiff brought a motion to set aside the stay.

The court granted the plaintiff's motion, finding that the defendant failed to meet the test under Rule 37.14 to set aside the summary judgment, as she had no defence on the merits to the mortgage default and had not moved forthwith.

The plaintiff sought costs of $89,304.86 on a partial indemnity basis following a successful motion for declaratory relief regarding an easement over the defendant's property.

The defendant argued for each party to bear its own costs due to divided success, or alternatively, a reduced amount.

The court rejected the divided success argument, finding the plaintiff was the successful party, but reduced the costs award to $45,000 all inclusive, finding the plaintiff's claim excessive and noting the abandoned claim against the municipality.