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Developer required to answer discovery questions about misleading other buyers
Thursday, March 23, 2023James R.G. CookLitigationAgreement of Purchase and Sale, Real Estate
During the course of litigation, plaintiffs may seek evidence that a defendant has engaged in a similar pattern of impugned conduct with other people who...
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The Underused Housing Tax and Reporting Requirements for “Effected Owners”
Wednesday, March 22, 2023Ian SpiegelBusiness Law, Corporate LawReal Estate, Tax and Estate Planning
The Underused Housing Tax (the “Act”), which came into effect on January 1, 2022, introduces an annual 1% tax on the value of vacant or....
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Real estate agent sued for misrepresenting identity of buyer
Monday, February 27, 2023James R.G. CookLitigationRules of Civil Procedure, Real Estate
In Ker v. Deol, 2023 ONSC 1167 (CanLII), a motion judge of the Ontario Superior Court of Justice considered whether the buyer’s real estate agent could be added as a defendant in a lawsuit brought...
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Court of Appeal affirms that entire agreement clause is not bullet-proof
Friday, February 24, 2023Stephen A. ThieleLitigationReal Estate, Contracts, Commercial Tenancies, Entire Agreement Clauses
Drafting clear, concise and bullet-proof provisions in a contract is an art. It takes time and a complete understanding of a client’s agreement with...
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Sellers not required to produce real estate lawyer’s file after terminating transaction due to lawyer’s approval condition
Tuesday, February 21, 2023James R.G. CookLitigationAgreement of Purchase and Sale, Real Estate
An Agreement of Purchase and Sale (APS) for a real estate transaction may sometimes have a condition that allows for review of the APS by...
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Plaintiff fails to prove notary public’s error was the cause of losses from real estate transaction
Friday, February 17, 2023James R.G. CookLitigationBritish Columbia, Real Estate, Negligence, Professional Negligence
In a professional negligence claim, a plaintiff must establish not only that a defendant breached the applicable standard of care but that the breach was the factual cause of the losses being claimed. Depending on the...
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Buyer not to entitled purchaser’s lien to recover deposit following builder’s default
Tuesday, February 14, 2023James R.G. CookLitigationLand Title Act, Real Estate, Ontario Planning Act
Buyers of new homes sometimes enter into an Agreement of Purchase and Sale (APS) with the builder/developer of the proposed dwelling who doesn’t own the underlying land at the time the agreement is made. In such cases, it...
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Everest Finance Corporation v. Jonker, 2023 ONCA 87
Thursday, February 9, 2023Zev ZlotnickBusiness Law, Corporate LawReal Estate, Mortgage
Jonker had a mortgage over their home with Everest. They defaulted in making the required payments on the mortgage, and Everest commenced power of sale proceedings. Everest brought its motion for summary judgment, which was...
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Seller ordered to obtain severance of residential properties to complete transaction
Friday, February 3, 2023James R.G. CookLitigationReal Estate, Ontario Planning Act
In a real estate transaction, the seller must be in a position to ensure that good title is conveyed to a buyer at closing. In the time leading up to...
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Seller allowed to re-schedule Tarion closing date following “unavoidable delay”
Friday, January 27, 2023James R.G. CookLitigationOntario, Agreement of Purchase and Sale, Real Estate
New homes in Ontario may include a warranty from the builder for certain construction deficiencies and other...
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Lender can’t evict bona fide tenants from property notwithstanding mortgagor’s fraud
Monday, December 19, 2022James R.G. CookLitigationResidential Tenancies, Mortgage Fraud, Real Estate, Ontario Mortgages Act, Bankruptcy and Insolvency Act, Mortgage
Courts must occasionally balance property interests between innocent parties who have been victimized by the dishonest or fraudulent conduct of another person. This may involve a conflict between...
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Neighbour ordered to remove obstructions on mutual driveway
Thursday, December 1, 2022James R.G. CookLitigationReal Estate
As we discussed in a previous blog, an easement may become abandoned as a legal right as a result of prolonged lack of use. However, there is...
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Home owner obtains certificate of pending litigation to stop power of sale
Friday, November 18, 2022James R.G. CookLitigationReal Estate, Courts of Justice Act
Parties who are seeking an interest in a property may seek to register a certificate of pending litigation (CPL) on title for the...
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Limitation Period bars claim for breach of Assignment of Agreement of Purchase and Sale
Wednesday, November 9, 2022James R.G. CookLitigationAgreement of Purchase and Sale, Real Estate, Limitation Periods, Limitations Act, 2002
In Ontario, there is a general two-year limitation period for claims relating to a breach of contract which starts on the day when a plaintiff discovers that damage from a breach occurred and knows that a legal proceeding would be an...
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Is Your Demand Loan Demandable?
Tuesday, November 8, 2022Zev ZlotnickCorporate LawLoans, Real Estate
A demand loan is a loan that a lender can require to be repaid by the borrower in full at any time. A demand loan has no term, but is simply repayable on...
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Nephew not entitled to verbal life interest in aunt’s property
Friday, November 4, 2022James R.G. CookLitigationReal Estate
Living arrangements between adult family members are often informal and based upon the nature of their close relationship rather...
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Anonymization and sealing requests in Ontario civil proceedings
Tuesday, November 1, 2022James R.G. CookLitigationRules of Civil Procedure, Real Estate, Courts of Justice Act
Closed proceedings, sealing orders and publication bans are rare in civil actions in Ontario. When a court decision in a civil proceeding is published it normally bears the names of the parties in the title of...
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Commission not owing to agent under conditional agreement of purchase and sale
Monday, October 31, 2022James R.G. CookLitigationReal Estate, GTA Real Estate
Often, an agreement to purchase real estate will have a conditional period to allow for various steps to be completed by either the buyer or...
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Lawyer not liable for client’s payment of foreign buyer’s tax on North Vancouver property
Tuesday, August 2, 2022James R.G. CookLitigationReal Estate, Property Transfer Tax Act, Foreign Buyer’s Tax
In Tellini v. Bell Alliance, 2022 BCCA 106 (CanLII), the British Columbia Court of Appeal reversed a trial judge’s decision that found the defendant lawyer and law firm liable for the plaintiff’s obligation to pay...
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Power of sale restored by Court of Appeal under “safe harbour protections”
Wednesday, July 20, 2022James R.G. CookLitigationReal Estate, Mortgage Fees, Ontario Mortgages Act
In 2544176 Ontario Inc. v. 2394762 Ontario Inc., 2022 ONCA 529 (CanLII), the Ontario Court of Appeal restored a power of sale transaction that...
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Gift or loan? Father failed to ensure his intentions were made known
Tuesday, July 19, 2022James R.G. CookLitigationReal Estate
How is an adult child able to prove whether funds or property transferred to them by a parent were intended to be a gift rather than a...
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Title insurance dispute over appraisal of “actual loss” for defects relating to municipal work order
Tuesday, June 28, 2022James R.G. CookLitigationReal Estate, Insurance Law, Ontario Insurance Act, Title Insurance
Residential title insurance policies are typically purchased to address potentially issues regarding title to a property. Title insurance policies may also cover...
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Interim injunction ordered to prevent neighbour from blocking private access road
Monday, June 27, 2022James R.G. CookLitigationRight-of-way Access , Real Estate, Road Access Act
Many rural properties in Ontario are accessed through private roads that traverse lands owned by one or more neighbours. The use of a private road may...
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Relief from forfeiture not granted where buyer claimed lack of capacity to enter into real estate purchase agreement
Friday, June 24, 2022James R.G. CookLitigationAgreement of Purchase and Sale, Real Estate, Courts of Justice Act
As real estate markets fall, buyers are sometimes left scrambling to find alternate sources of financing when the available mortgage funds turn out...
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Lawyer not vicariously liable to opposite party in failed real estate transaction
Thursday, June 23, 2022Stephen A. Thiele, James R.G. Cook, Daria RisteskaLitigationRules of Civil Procedure, Agreement of Purchase and Sale, Real Estate
There appears to be a growing propensity on the part of litigants to sue the opposite party’s lawyer when a transaction fails or something else...
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Sale of commercial units by nearly-insolvent debtor not a fraudulent conveyance
Wednesday, June 22, 2022James R.G. CookLitigationInsolvency, Real Estate
Creditors of an insolvent or nearly insolvent debtor may be understandably frustrated if the debtor sells its few remaining assets, leaving the...
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Mortgage provided by corporate borrower not a “fraudulent instrument”
Monday, June 20, 2022James R.G. CookLitigationLand Title Act, Real Estate
The Ontario Land Titles Act (“LTA”) provides that a registered mortgage that is determined to be a fraudulent instrument is void and may...
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No “waiver by conduct” of financing condition in agreement of purchase and sale
Monday, June 6, 2022James R.G. CookLitigationCondominium, Agreement of Purchase and Sale, Real Estate
With the cooling of the real estate markets, buyers may be in a position to negotiate a limited time period to have a home inspection, arrange financing, or complete other due diligence before...
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Vesting order granted for retroactive joint tenancy after death of spouse
Monday, April 4, 2022James R.G. CookLitigationLand Title Act, Real Estate
Spouses often take title to a property as joint tenants rather than tenants in common due to the “right of survivorship,” by which the surviving spouse assumes sole title to the...
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Date of breach of contract affirmed for assessment of buyer’s damages
Thursday, March 31, 2022James R.G. CookLitigationReal Estate, Breach of Contract
In Akelius Canada Ltd. v. 2436196 Ontario Inc., 2022 ONCA 259, the Ontario Court of Appeal upheld a summary judgment decision that dismissed a real estate investor’s...
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Property developer awarded $11 million in lost profits against seller who refused to complete transaction
Thursday, March 17, 2022James R.G. CookLitigationAgreement of Purchase and Sale, Real Estate
When a seller breaches an Agreement of Purchase and Sale (APS) by refusing to complete the sale of a property to a buyer, the buyer is generally entitled to the return of...
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Real estate co-ownership dispute leads to sale under Partition Act
Wednesday, March 9, 2022James R.G. CookLitigationReal Estate, GTA Real Estate
Given the high price of real estate in Ontario, co-ownership of properties between friends and family members is increasingly common. Title may be...
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Court refuses to impose 5 pm deadline for delivery of real estate closing proceeds
Tuesday, March 8, 2022James R.G. CookLitigationAgreement of Purchase and Sale, Real Estate, GTA Real Estate
Real estate transactions may be scheduled to be completed by a certain time of day, depending on the wording of the Agreement of Purchase and Sale (APS). In some cases,...
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Requisition deadline for present legal use of property clarified by Court of Appeal
Monday, March 7, 2022James R.G. CookLitigationReal Estate, GTA Real Estate
The Ontario Real Estate Association’s standard form of residential Agreement of Purchase and Sale (APS) contains a paragraph that sets a deadline for a
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No duty of care owed by seller to confirm buyers had financing in place
Monday, February 28, 2022James R.G. CookLitigationReal Estate, GTA Real Estate
Cases arising out of the 2017 market correction in the Greater Toronto Area continue to result in decisions favouring innocent sellers and substantial damages awarded against defaulting...
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B.C. Court awards damages arising from liability for foreign buyers’ tax
Thursday, February 17, 2022James R.G. CookLitigationReal Estate, Negligence
Some Canadian provinces have introduced a “foreign buyers’ tax” in recent years to curb what is perceived as the impact of foreign speculators on over-heated...
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Realtor’s full and final release extended to cover brokerage
Wednesday, November 3, 2021James R.G. CookLitigationReal Estate, Commercial Real Estate
Litigation claims or the threat thereof are often settled by way of payment by one party to the other in exchange for a full and...
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Lawyer not added as a defendant to counterclaim in real estate dispute
Tuesday, November 2, 2021Stephen A. Thiele, James R.G. CookLitigationRules of Civil Procedure, Real Estate
In general, rules governing the amendment of pleadings in a civil action are generous. Courts are mandated to allow amendments. However in circumstances where an...
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Stepfather’s mortgage to stepdaughter determined to be a gift rather than a loan
Monday, November 1, 2021James R.G. CookLitigationLoans, Real Estate, GTA Real Estate, Monetary Gift, Brampton
Family members who provide financial assistance to each other for the purpose of purchasing real estate may intend that such funds be a gift without any expectation of...
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Ontario Court of Appeal upholds setting aside of a notice of discontinuance
Monday, November 1, 2021Stephen A. Thiele, Anna Husa, Gavin J. TigheLitigationRules of Civil Procedure, Real Estate
On August 3, 2020, lawyers at Gardiner Roberts LLP were successful in getting a notice of discontinuance set aside for their real estate brokerage...
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Court refuses to enforce mortgage prepayment penalty
Friday, September 24, 2021James R.G. CookLitigationReal Estate, Mortgage Fees
Many Canadian mortgages have a prepayment term that imposes a penalty if the mortgage advance is repaid by the borrower before the maturity date. The general purpose of...
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Commission owed to real estate agent despite lack of written agreement
Friday, July 9, 2021James R.G. CookLitigationSmall Claims Court, Real Estate, Buyer’s Representation Agreement, GTA Real Estate, Caledon
In the real estate industry, relationships between buyers and their real estate agent are often governed by a written Buyers Representation Agreement (“BRA”). A BRA usually...
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Court issues injunction to stop online harassment and intimidation pending trial
Thursday, July 8, 2021James R.G. CookLitigationLandlord, Real Estate, Civil Litigation, Harassment, Ontario Landlord and Tenant Board, YouTube, Internet Harassment
Online harassment has become a major issue in Canadian society and has resulted in the burgeoning tort of “internet harassment” specifically designed to...
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Seller entitled to repossess townhouse after buyer fails to complete purchase
Friday, July 2, 2021James R.G. CookLitigationAgreement of Purchase and Sale, Real Estate, GTA Real Estate
Sales of new condominiums and townhouses may sometimes allow a buyer to move into a unit on an “interim occupancy date” which may be several months before the purchase is scheduled to be finally...
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“Business common sense” determines winner of commission dispute
Wednesday, June 16, 2021James R.G. CookLitigationReal Estate, Buyer’s Representation Agreement, Commercial Real Estate
When courts have to decide whose version of a conversation is more likely to have occurred, recourse must often be had to the surrounding circumstances and any available...
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Buyer loses $100,000 deposit after refusing to purchase condominium
Tuesday, May 25, 2021James R.G. CookLitigationAgreement of Purchase and Sale, Ontario Court of Appeal , Real Estate
It is settled law in Ontario that when a buyer fails to complete an agreement of purchase and sale, the seller is entitled to retain the deposit without having to prove any loss. This means that...
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Family Cottage Squabbles: Court orders family members to stop interfering with each other’s enjoyment of cottage property
Tuesday, April 13, 2021James R.G. CookLitigationCottage Country, Real Estate, Trusts
Cottage properties may be used by extended families over the years without regard to who has legal title or whether there are legally binding rules for ownership and use. When senior members of family age, disputes may...
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Buyers not allowed to terminate purchase due to size misdescription or building permit concerns
Monday, April 5, 2021James R.G. CookLitigationReal Estate, Mississauga, Renovations
While the discovery of misdescriptions as to the size of a property or unpermitted renovations may allow a buyer to terminate a purchase transaction,...
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Parent’s Claim to Recover Home Transferred to Daughter Dismissed
Friday, December 11, 2020James R.G. CookLitigationWills, Real Estate, Smith Falls, Trusts
Property is often transferred between family members without money exchanging hands. There are many reasons for doing so, including estate planning, assisting children with buying a home, removing property from...
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Abandoned Use of Easement Leads to Loss of Backyard Parking Pad
Monday, November 30, 2020James R.G. CookLitigationToronto, Land Title Act, Easement, Conveyancing Law and Property Act , Real Estate
In a densely populated city like Toronto, many older neighbourhoods contain tightly-packed homes separated by narrow easements which provide access to...
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