Category: Real Estate


Ontario Court of Appeal Finds Trial Judge Biased: Hazelton Lanes Inc v 1707590 Ontario Limited

The Ontario Court of Appeal ordered a new trial under a different trial judge after finding a reasonable apprehension of bias on the part of Ontario Superior Justice Ted Matlow in Hazelton Lanes Inc v 1707590 Ontario Limited, 2014 ONCA 793 [Hazelton Lanes]. Justice Matlow’s objectivity has been questioned by the Canadian Judicial Council in the past, when an inquiry panel made a finding against him before being overturned in the Council’s recommendations to the Federal Minister of Justice. The matter at trial arose from a client bringing an action against his former solicitor when their relationship turned sour following an elaborate series of...


A Very Long Limitation Period for Unjust Enrichment Claims: McConnell v Huxtable

Statutes of limitations are intended to add clarity to the litigation process but, ironically, sometimes have the opposite effect. Ontario’s Limitations Act, 2002, SO 2002, c 24, Sch B [Limitations Act], was meant to reduce the multitude of different limitation periods with the aim of having a two-year limitation on most types of actions. However, the Limitations Act remains riddled with exceptions — most notably, the limitation periods set out in a long list of other statutes are allowed to prevail over those in the Limitations Act. The case of McConnell v Huxtable, 2014 ONCA 86 [McConnell], reveals one more unexpected gap...


Defaulting Purchasers Lose their Deposits, Even in Rising Real Estate Markets

One of the fundamental principles of contract law is that damages are based on the actual loss suffered by the innocent party when there is a breach of contract.  Damages restore the innocent party to the position she would have been in if the contract had been fulfilled.   However, she is required to seek alternatives to mitigate her loss.  If there is no actual loss, because the innocent party can re-contract at the same or a better price, no damages are awarded.  The traditional exception to this rule has been in real estate deals, where a purchaser who backs out...


The Supreme Court Redefines Resulting Trusts and the Legal Meaning of “Gift” in Nishi v. Rascal Trucking Ltd.

The tangled case of Nishi v. Rascal Trucking Ltd., 2013 SCC 33, is a classic example of the complicated conflicts that can occur when people mix business dealings with personal friendships.   The unanimous decision of the court appears to reaffirm the doctrine of purchase money resulting trust.   However, Justice Rothstein managed to do it in a manner that achieved an apparently equitable compromise.  The principle of resulting trust was superficially affirmed, but there was no resulting trust found on the facts.   There may in fact be an effective weakening of the doctrine of resulting trust implicit in this decision.


Finding the City Negligent in Williams v Toronto (City)

In Williams v Toronto, 2012 ONCA 915, the Ontario Court of Appeal explores the relationship between the City and a tenant, Mr. Williams, over loss of rent paid by tenants owed reduced rent under a statutory rent-reduction scheme. This case determined that there could be sufficient relationship between the tenants and the City to ground a cause of action in negligence in the initial stage of a class proceeding against the City.


R. v. Craig and the Equitable Underpinnings of Forfeiture

Recently issuing judgment in R. v. Craig, 2009 SCC 23 and companion cases R. v. Ouellette, 2009 SCC 24 and R. v. Nguyen, 2009 SCC 25, the Supreme Court of Canada has circumscribed the applicability of the forfeiture provisions for real property related to a designated substance offence under sections 16(1) and 19.1(3) of the Controlled Drugs and Substances Act. That result stems from contrarious rulings by various appellate courts about whether these provisions, which enable the Attorney General to request forfeiture of “offence-related” property upon securing a conviction, operate independently or interdependently from other aspects of sentencing, as well...


Memories of Haida: Two BCCA Decisions on the Crown’s Duty to Consult

Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73 [Haida], established the Crown’s duty to consult and accommodate First Nations peoples during the pre-proof period where an aboriginal or treaty right is being pursued. Haida is an acknowledgement that it can take a long time to prove an Aboriginal right. In the interim, Chief Justice McLachlin held: “[T]he Crown, acting honourably, cannot cavalierly run roughshod over Aboriginal interests where claims affecting these interests are being seriously pursued in the process of treaty negotiation and proof.” Haida is a milestone in the Supreme Court of Canada’s (“SCC”) journey towards the...


Failure to Consider Mikisew Cree First Nation v Canada Trips Up Ontario Court of Appeal

Dennis Jacob and two other members of the Aroland First Nation were driving along a road used by Kimberly Clark for its forestry operations. It was nighttime when they shot at what they thought was a moose. It turned out to be a decoy and provincial officers charged them for night hunting and for discharging a firearm across a road. They were convicted of both charges. The lawyers for Jacob argued that the Crown was obligated to lead evidence that the land had been “taken up” through some legal process. The Ontario Court of Appeal (“ONCA”) (per O’Connor A.C.J.O.; MacPherson...


The Forfeiture of Offence-Related Property: Craig v Her Majesty the Queen

On November 13, 2008, the Supreme Court of Canada (“SCC”) heard Judy Ann Craig’s appeal of a judgment rendered against her by the British Columbia Court of Appeal (“BCCA”). Ms. Craig’s appeal was heard alongside R c Ouellette, 2004 CanLII 26616 (QCCQ) and R v KT Nguyen; R v NT Nguyen, 2007 BCCA 474, but this post will only summarize the circumstances of Ms. Craig’s appeal. The three appeals were heard together because they all dealt with the forfeiture of offence-related property under the Controlled Drugs and Substances Act, SC 1996, c 19 [CDSA]. With respect to Ms. Craig’s appeal,...