The people of Canada, through their elected representatives, have enacted property laws designed to provide confidence and certainty in matters of real estate ownership. Nevertheless, some court decisions inject " abracadabra" surprises such that the Land Titles Register now includes and disguises broken chains of title (bad titles) and other frauds that only a complete and proper title search can detect- see- Can the Title Register be relied upon?
James Morton, a past president of the Ontario Bar Association, writes that in some cases, the law, properly approached, is clear and all competent judges will come to the same conclusion. However, in many cases there is room for discretion and a judge's background and worldview will make a significant difference in the result. This observation likely holds true for the court law clerks who do the actual work of preparing case summaries on which many judges rely. see-'Why Judges' Politics Matters and see Court Decisions based on Fallacies
On June 23, 2012, writing for the Toronto Sun, lawyer Alan Shanoff posed an interesting question: Who pays when judges screw up? In his words, litigation is unpredictable because, "A witness may fail to appear, or lie, or forget key evidence. The judge may choose not to believe a witness. It's also possible one lawyer may be out-gunned by the other side's lawyer." His follow up question: "But who should be bearing the risks where judges make inexcusable errors?". Well, since there is presently no judicial accountablity, you bear the risk,
The following decisions may illustrate this concern. In some cases judges respect and uphold the statutes (such ast the Land Titles Act, Statute of Frauds, Statute of Limitations, etc), and in some cases the judge's personal views and bias prevail...sometimes to be overturned much later.
These are real life stories that may serve as a cautionary note.
400 cottage owners who own property surrounding Round Lake allege that their shoreline has been eroded. Between 1911 and 1917, Ontario Hydro (“the predecessor to RPG”) built a dam at the outlet of Round Lake and acquired licences of occupation to raise the level of Round Lake to 107.5 feet above sea level, for parts of the shoreline of Round Lake. This is referred to as the “107.5 Contour Line.”The Plaintiffs argued at the original certification motion that the 107.5 Contour Line was created in 1917 and established a fixed dividing line between public and private lands. They argued that any encroachment of water past this theoretical 107.5 Contour Line constituted trespass by RPG.
A sells land to B. At the same time, A and B enter into an agreement that A can repurchase the land if a condition under B’s control is met. Does the agreement give A an interest in the land, or only a personal contractual right? This appeal turns on the answer to that question. This appeal raises one issue: when the Agreement was made, did it give an interest in the land or only a right of first refusal to repurchase the land which did not create any immediate interest in the land. If the Agreement did give an immediate interest in the land, then the Agreement is void and unenforceable because it offends the rule against perpetuities. If the Agreement merely gave a personal contractual right and not an interest in the land, then the Estate may still enforce its rights under the Agreement.
These appeals mark the culmination of a 20-year dispute between neighbours of adjacent properties on Nottawasaga Bay in Tiny Township, Ontario. At the heart of this dispute is the right of ownership and possession of a piece of property known as Part 2 of Parcel 10, on the registered plan of survey Plan BA-2608. The appellant, Gerald Barbour, holds paper title to Part 2. The respondent, Angelina Bailey, claims possessory title to it. On appeal from the judgment of Justice Susan Healey of the Superior Court of Justice dated November 29, 2013, with reasons reported at 2013 ONSC 7397, 39 R.P.R. (5th) 36, and from the costs orders dated April 14 and June 18, 2014, with reasons reported at 2014 ONSC 2343 and 2014 ONSC 3698. The appeal is allowed in part: judge Healey erred.
An important factor for a court to consider when contemplating granting declaratory relief is the distinction between present and future rights. Declarations must serve a purpose beyond repeating existing law
This is an appeal under the Surveys Act, R.S.O. 1990, c. S.30 (the “Act”) from a decision of the Surveyor General of Ontario in which she confirmed the location on the ground of a road allowance. The dispute giving rise to this appeal arises from the fact that the Appellants own property that they and their predecessors on title regarded as being waterfront property. The effect of the Surveyor General’s decision is that the road allowance is located on the portion of the Appellants’ property that borders on water....the Appellant’s surveyor, Mr. Stewart, was not questioning the original location of the road allowance. Rather, he theorized that the shoreline had changed over time, through accumulation/accretion ... subsequent evidence showed that Mr. Stewart’s initial theory was wrong .
In this case I am required to decide between two parties, neither of whom has demonstrated particularly high moral fibre. I have accordingly chosen the least unjust remedy that I believe the authorities enable me to fashion...to borrow the phrase of Mercutio from Romeo and Juliette.... “A plague on both o’ your houses”, I remain bound to dispense justice and to do so impartially. I must decide between two parties to a decidedly dishonourable transaction in order to settle the equities as between them. The task is a distasteful one. Finally, the plaintiff called Mr. Harry Goldstein – the lawyer who represented them on the subject transaction as well as his law clerk Mr. Rampersad. The former maintained a rather Nixonian lack of memory. I decline to comment further on whether his lack of memory was genuine or convenient. .
In 1986, the City passed its first by-law addressing rental housing. That by-law (“Lodging House By-law”) was passed in response to a recommendation by a Coroner’s Inquest following the fire-related death of a University of Waterloo student. However, the Lodging House By-law was very modest in scope, and it applied only to lodging houses. As a result, it was of only limited effectiveness in dealing with health and safety in rental housing in Waterloo. This application raises the following issues: (a) What is the court’s jurisdiction to hear the Application? (b) What is the standard of review of municipal legislative enactments? (c) Are the impugned provisions of By-law 047 ultra vires the licencing powers of the City under s.151 of the Municipal Act, 2001? (d) Is By-law 047 discriminatory as to occupancy of accommodation in its application and effect based on family status, contrary to the Human Rights Code, and therefore ultra vires the authority of the City?
IN THE MATTER OF an application for confirmation of the true location on the ground of the boundaries of the lands designated as PIN 33113-0293 (LT), being all of Lots 22 and 23, Registered Plan 509 in the Municipality of Northern Bruce Peninsula,
The Tribunal denied the appellants permission to build on their land because the proposed development would affect flood control. The Tribunal misconstrued the law. For the reasons that follow, I have decided to allow this appeal and to direct the approval of the proposed development without conditions or a rehearing of the application.
Notwithstanding the great lengths gone to by both sides involved in this litigation to discredit the other’s expert, neither the opinion of Mr. Wilband nor the opinion of Mr. 0de Rijcke is particularly helpful in resolving this issue. Instead, I find the evidence of Mr. MacMillan gleaned from his research of the historical records and the measurements and observations of Mr. Burwell contained in his field notes compelling. The totality of this evidence is sufficient to find that it is more probable than not that the watercourse was not only “capable of public use” in 1831 but was actually used by the public. NOT SO, says the Ontario Court of Appeal. The evidence at its highest shows that a person could travel by boat over some part of the Creek as it passes along the respondents’ property. There is no evidence of any practical purpose for doing so in 1831. The evidence is incapable of supporting a finding that as of the Crown grant, the part of the Creek that travelled along the respondents’ property provided “real or potential practical value to the public as a means of travel or transport from one point of public access to another point of public access”: see Canoe Ontario, at p. 502.
Divisional Court (Justices James C. Kent, Thea P. Herman and Alison Harvison Young) erred. The issue at the centre of this appeal is the legal effect of an entire agreement clause in an agreement of purchase and sale. Specifically, does the clause preclude a purchaser’s action in negligent misrepresentation against a vendor for non-contractual representations made subsequent to entering into the agreement but before closing? The appellants and respondents entered into the agreement of purchase and sale (the “APS”) on November 21, 2007. An example of poor legal advice or bad lawyer representation
The appellant sought to construct a sewer line across land subject to an easement. The grant was executed in 1978 by predecessors in title. The grant affords the owner of the dominant tenement a free and uninterrupted right to use, enter, pass and repass over and upon the land. The respondent, owner of the servient tenement sought a declaration that the easement does not permit the construction of a sewer line and an injunction to restrain its construction. The judge erred in determining that the registered easement did not include the right to lay a sewer line through the easement.
Private nuisance may be defined as an unreasonable interference with the use and enjoyment of land. This may come about by physical damage to the land, interference with the exercise of an easement, or with mineral rights profit ? prendre or other similar right, or injury to the health, comfort or convenience of the occupier. In short, it is an environmental tort. The use of the term “unreasonable” indicates that the interference must be such as would not be tolerated by the ordinary occupier. The court need not, therefore, be concerned with the effect of the defendant’s conduct on any other members of the community, other than the occupier
This nightmare saga was commenced in 2002. A boundary tribunal rejected Ms. Bailey's boundary claim. Circa 2004 Ms. Bailey initiated a claim in adverse possession. In 2010 DDL Rosenstein allowed Bailey'c claim to title by adverse possession. On September 6, 2011 Justice McIssac overturned the decision of Rosenstein and dismissed Bailiey's claim to adverse possession. The Ontario Court of Appeal then questioned Justice McIssac's impartiality and ordered a new trial.. The new trial heard by Justice Keeley reversed the decision of Justice McIsaac and on November 29, 2013 went in favour of Ms. Bailey. On June 18, 2014 Justice Keeley endorsed an order in cost plus interest to the tune of $500,000 00 covering the 18-day trial heard by Justice McIsaac and the 10-day trial heard by Justice Keeley (among other things) : costs likely far exceeding the value of the land in dispute .
Title Insurance only covers the risk that the appellant’s title was unmarketable, allowing another person to “refuse to perform a contract to purchase, to lease or to make a mortgage loan”. The motion judge found the previous use of the property as a marijuana “grow op” was not a title defect.
Auto insurance-The basic facts surrounding the accident are straightforward. Not so straightforward are the facts surrounding the issue of ownership. At the time of the accident, the defendant was the registered owner of the truck
The Hearing Panel established that the appellant acted for investors on fourteen real estate transactions by which these investors purchased allegedly undervalued houses and then resold them to purchasers who could afford to purchase a house but who could not afford to come up with the requisite down payment. The transactions were orchestrated in a manner whereby the individuals who purchased these houses from the investors made no financial contribution to the purchase price of the houses. Rather, the entire purchase price was financed by the unsuspecting institutional lenders including the costs of the transactions along with a profit for the investors.
"Where the terms of a written instrument do not accord with the true agreement between the parties, equity has the power to reform, or rectify, that instrument so as to make it accord with the true agreement. Section 160 of the Land Titles Act, R.S.O. 1990, c. L.5 . Justice Christopher Bondy erred says Court of Appeal
The applicants claim that their right of way over the respondents’ land has been substantially diminished by the respondents’ encroachment on it. The applicants seek an order for removal of the encroachment, allied declaratory relief and other consequential orders.
"This appeal concerns the ownership of the southern part of a stretch of beach property"...Superior court judge Justice Anne Mullins erred says Ontario Court of Appeal
The municipality agreed to perpetually maintain and repair that part of a storm sewer drainage system that it had constructed on and near the farmer’s lands. The City appeals to this court in respect of three issues. Contrary to the motion judge’s rulings, the City argues that: (1) the Browns’ claims concerning the agreement are statute-barred; (2) the Browns have no standing to enforce the agreement since they have no privity of contract with the City; and (3) the agreement is contrary to public policy and, hence, unenforceable. For the reasons that follow, I would dismiss the appeal.
Limitation of actions — Declaration — Appellants seeking declaration: A declaration alone does not confer any rights or remedies but may open the door to future negotiations. Claims for personal remedies or relief are time barred but the limitations acts allow for declarations.
Mutually acknowledged mistake, Justice Dan Cornell erred says Court of Appeal
Non-conforming uses: The appellant owns a rural, 100-acre property located in the respondent Township. He inherited the property from his father...In the light of the overall success achieved by the appellant with respect to the illegality of the Township’s actions, the trial judge R.M. Thompson erred in principle by denying him costs
A 'logical fallacy of anachronism':.the conveyances of the cottage properties have consistently made reference to the lot numbers on the Plan, in which the beach is clearly not included. This is visually apparent both on the Plan, and on the ground where the westerly boundary is shown by the straight monumented line. The reasonable expectations of those who brought properties through the years, including the Applicants, was that the western boundary line to their lots is as depicted on the Plan and found on the ground.
Land Possession/ easement/ waterfront: "For all of these reasons the Applicants’ claim to adverse possession to the disputed lands must fail...There will therefore be an order dismissing the Application
This is an application for a declaration that a mistake was made in the description of a right-of-way and for rectification of a reference plan. To now permit rectification of a mistake which did not even involve the parties to this action would seriously undermine the very foundation upon which the Ontario land titles system is based and be contrary to the governing legislation and established legal principles
The Roussels contend that regardless of what may have been stated or understood by the respective parties, it is not disputed that the Roussels conveyed all of the land that was described in the Gossling survey. Since this parcel of land is registered under the Land Titles Act, R.S.O. 1990, c. L.5, the Newtons are now precluded from contesting the size of the parcel. Accordingly, the declaratory relief and the vesting order requested by the Newtons cannot be granted and thus, summary judgement ought to follow. The Newtons on the other hand, submit that the real issue is where the boundary line is situated and that because of the misrepresentations made by the Roussels, the Newtons were enticed into purchasing a property that did not turn out to be what they had bargained for.
THIS COURT ORDERS AND ADJUDGES that Parts 1, 2, 3 and 4 of Plan 4R-24005, together with the lands described in paragraph 2 above are not "common lands" pursuant to the Surveys Act, R.S.O. 1990 C, S30; and
The property owner testifies that the subject property is incorrectly classified as a waterfront property and submits as evidence a map, letters, a photo-copy of part of a survey report, photocopies of newspaper articles. Photocopies of local newspaper articles show the Municipal Council's intent to purchase the riverbank strip of land...
This is an appeal dismissing the action with costs. "While the trial judge dismissed the Bell/Schwark claims for prescriptive easement. None of the elements necessary to establish a proprietary estoppel are made out in this case.
Oceanfront/ Subdivisions: This title dispute involves one of sixty-three lots in a seventy-acre oceanfront property that was subdivided in 1920. The Plaintiffs contend that under this description the eastern boundary of their lot extends to the mean high water mark of the Atlantic Ocean
Description in the land titles deeds must prevail. " This litigation is as a result of Mr. McGowan, after purchasing Ms. Kaake’s property, deciding that he wishes to lay claim to certain lands to the east of the east bank of Mill Creek. The title to these lands is in the name of Rainmaker Estates Inc." "Neither the Gibson deed nor the Hewgill deed state that the boundary between their properties will be six feet east of the east bank of Mill Creek". The plaintiff’s action is dismissed.
All of the parties named in this litigation, with the exception of the Crown in Right of Alberta (Crown), are registered owners of land in Grandview Bay on Cooking Lake in Alberta. Like many shallow prairie lakes, the waters of Cooking Lake have receded considerably over the past century.
An application for compensation for loss arising out of costs associated with an alleged forged mortgage transaction involving the property.
A plan registered under the Boundaries Act does not supersede a registered plan of subdivision or confer a title beyond what is shown in the subdivision plan. Appropriate steps under the Land Titles Act, are required. In such case, presumably the previous plan would be de-registered in some form and a new plan register. Here no such steps have been taken. There will be an order to go that the objection to title set out in the application has been satisfactorily answered by the answer quoted above. Judgment accordingly.
Real property -- Easements -- Company registering plan of subdivision for cottage development -- Certain lots on plan of subdivision not fronting on lake -- Block A on registered plan stated to be "Area of User Common to each Property Owner in the Subdivision" -- After sale of lots to cottage owners company conveying Block A to municipality -- Deeds to cottage owners and municipality containing no covenants with respect to Block A -- Whether cottage owners entitled to use Block A for swimming and boating.