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Real Property - Land Titles - Appeals. Hussein v. Qazi
In Hussein v. Qazi (Ont CA, 2026) the Ontario Court of Appeal considers a moot appeal from a vesting order, here made in a family law-Partitition Act context:[1] The appellant, Madiha Hussain, and the respondent, Salik Javed Qazi, jointly purchased a residential property in Mississauga as tenants in common. The respondent contributed the initial capital outlay and received a 99 percent interest. The appellant undertook to make “contributions” to the housing costs through “sweat equity” and by making payments to a share of the carrying costs, including a share of the monthly mortgage payments. In return he received a one percent interest in the property as well as the right to 50 percent of the increase in the property’s value after contributing for five years. The relationship soon failed, and the appellant moved out and stopped paying, but not before contributing a meaningful amount to housing costs.
[2] The respondent brought an application seeking an order under the Partition Act, R.S.O. 1990, c. P.4, that would direct the appellant to sell his one percent interest to the respondent at a value determined by the court. Among other relief that is not material to this appeal, she also sought payment of amounts the appellant failed to pay pursuant to their agreement.
[3] The application judge determined that the Partition Act did not authorize a buy-out order, only an order of partition and sale. After respondent’s counsel produced the authority of Newton v. Newton, 2014 ONSC 2757 at the hearing, the application judge made an equitable vesting order pursuant to s. 100 of the Courts of Justice Act, R.S.O. 1990, c. C.43, as had been done in Newton. Although this relief had not been pleaded and the suggestion of an equitable vesting order had not been raised before the hearing, the application judge engaged in two exchanges with the appellant prior to making that order in which the appellant communicated that he did not disagree with transferring his one percent interest if he was to be compensated fairly. The appellant claimed to be owed $65,976.19. The application judge determined his compensation to be $16,357.61 by quantifying his share of the home’s equity ($2,500) and his contributions ($33,816.91 plus $5,122.53) and then subtracting funds the respondent had to contribute after the appellant ceased making payments ($25,081.83). She therefore made the vesting order and ordered that the appellant be paid $16,357.61.
[4] The appellant now appeals the decision. He has raised multiple grounds of appeal relating to the fairness and legality of the vesting order, arguing in substance that it was based on an inapplicable precedent and a misapprehension of his position after an unfair hearing in which he was not given a meaningful opportunity to respond. He also argues that the application judge lacked the evidentiary record to declare the value of the property. Should his appeal of the vesting order not succeed, the appellant also seeks leave to appeal the application judge’s costs award, arguing generally that it was made without proper regard for the relevant principles and in a procedurally unfair manner.
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[6] The respondent also argues that the appeal is moot. In support of this submission, she offers fresh evidence confirming that in the absence of an application for a stay of proceedings pending appeal by the appellant, she registered the vesting order with the Land Registry Office on October 22, 2025, making her the sole owner of the property.[1] It is acknowledged before us that the respondent took this action knowing that an appeal was pending and that the appellant was taking steps to perfect a motion for a stay pending appeal.
[7] The respondent is correct that once a vesting order is registered on title, the change in title has been effected and the appeal rights are spent, such that disputes respecting the registered title must be resolved under the rubric and within the scheme of the Land Titles Act, R.S.O. 1990, c. L.5: Regal Constellation Hotel Ltd. (Re) (2004), 2004 CanLII 206 (ON CA), 71 O.R. (3d) 355 (C.A.), at paras. 39-40. The appellant did not seek relief before us under the Land Titles Act as the appellant appeared to do, in the alternative, in Third Eye Capital Corporation v. Ressources Dianor Inc./Dianor Resources Inc., 2018 ONCA 253, 141 O.R. (3d) 192. Since this court cannot grant the relief requested relating to the vesting order, on its face the appeal of the vesting order is moot: Regal Constellation, at paras. 33, 39. The appellant nonetheless asks us, in substance, to exercise our discretion, recognized in Borowski v. Canada (Attorney-General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342, at p. 353, to rule on the issues he raises.
[8] It is exceptional for the court to hear moot issues in an appeal. The onus lies with the party seeking a determination on the merits to show “why the court should depart from its usual practice of refusing to hear moot appeals”: Tamil Co-Operative Homes Inc. v. Arulappah (2000), 2000 CanLII 5726 (ON CA), 49 O.R. (3d) 566 (C.A.), at para. 17. In deciding whether to exercise this discretion, the court will be guided by such factors as the presence of an ongoing adversarial context, concerns for judicial economy, and the need for the court to be sensitive to its proper adjudicative role: Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, at para. 18. These factors are neither rigid nor exhaustive, and discretion must be exercised with a view to the circumstances of each case: Tamil Co-Operative Homes, at para. 17. With respect to judicial economy, it may be necessary to devote scarce judicial resources to a moot question, for example, where there is a sufficiently high “social cost in leaving the matter undecided”: Borowski, at p. 362. This may occur where the issues in dispute are of significant public importance, or where they are “recurring in nature, but of brief duration” and therefore evade review: Taylor v. Newfoundland and Labrador, 2026 SCC 5, 510 D.L.R. (4th) 195, at paras. 55-56.
[9] The appellant bases his request on the fact that the mootness problem has arisen because of a tactic used by the respondent to make it so; because a ruling by this court relating to the vesting order may be of assistance in an application by him for rectification of the Land Titles Act registration; and on his submissions about the strength of the appeal.
[10] Without in any way suggesting that the conduct of respondent’s counsel was unethical, we do agree with the appellant that there is unfairness in registering a judicial vesting order knowing that the appellant was not only seeking to exercise their right of appeal but was also taking steps to stay the vesting order pending appeal. After Blair J.A. recognized in Regal Constellation, at para. 45, that given the sanctity of title, remedies after registration are limited to the remedies provided under the Land Titles Act, he commented at para. 49:I do not mean to suggest by this analysis that a litigant’s legitimate rights of appeal from a vesting order should be prejudiced simply because the successful party is able to run to the land titles office and register faster than the losing party can run to the appeal court, file a notice of appeal and a stay motion and obtain a stay. These matters ought not to be determined on the basis that “the race is to the swiftest”.
Notably, Blair J.A. did not suggest that this court should purport to resolve a moot vesting issue where this has occurred but called instead for consideration of legislative reform: Regal Constellation, at para. 49. In our view, the unfairness that occurred does not provide us with a basis for adjudicating an issue that must now be resolved using the Land Titles Act. It is, however, a matter that can affect the costs award on this appeal. [11] We are not prepared to address the merits of the grounds of appeal relating to the granting of the vesting order based on the remaining considerations raised before us. In the circumstances of this case, it is not in the interests of justice or judicial economy to rule with a view to facilitating a possible Land Titles Act application, or to even adjourn the appeal to accommodate such an application. There can be no realistic suggestion that substantive injustice would occur if rectification of title is not ultimately made. The material grounds of appeal raised focused on the procedural fairness of the hearing and the technical foundation for the order. On its face, the outcome is eminently fair. The respondent, who now has title to the entire property, previously owned a 99 percent interest in that title. She is the one who alone provided the entire initial, substantial sum needed to fund its acquisition. She is also the one who has assumed responsibility for the ongoing carrying costs. Joint ownership was agreed upon to provide a joint residence, but that relationship is over. Meanwhile, the appellant expressed his agreement with the application judge during the hearing to the very order he now impugns. So long as the appellant is fairly compensated for his interest and the contributions he made, the appellant is in no position to challenge the fairness of a vesting order. Further, we can consider his appeal relating to the fairness of the compensation without hearing a moot appeal of the vesting order. In short, this is not the kind of moot issue where expending scarce judicial resources to consider its merits is justified. Finally, we note that the issues relating to the vesting order are not matters of public interest. Indeed, the public interest is often best served by finality in matters arising from domestic relationships, as is the case here. We do not serve anyone’s interest by facilitating the perpetuation of litigation between the parties.
[12] We therefore decline to hear the moot appeal relating to the vesting order. We do note, however, that we should not be understood by doing so as endorsing the application judge’s decision relating to the use of s. 100 of the Courts of Justice Act to make a vesting order. The appeal of the vesting order is denied, as moot. . World Financial Solutions Inc. v. 2573138 Ontario Ltd.
In World Financial Solutions Inc. v. 2573138 Ontario Ltd. (Ont CA, 2024) the Ontario Court of Appeal considered an appeal route jurisdiction issue under the Land Titles Act [s.27], here where the court raised it themselves:[1] The motion judge granted the respondent 2868395 Ontario Limited’s motion and made an order directing the Registrar of the Land Registry Office to delete a specific instrument. That instrument registered the appellants’ third-party claim on title to specific properties located in Harcourt, Ontario.
[2] Prior to this hearing, the court raised with the parties whether this court has jurisdiction to hear this appeal. Having heard submissions from the parties, we have concluded that we do not have jurisdiction.
[3] The motion was brought under the Land Titles Act, R.S.O. 1990, c. L.5. Section 27 of that Act reads:Any person affected by an order made under this Act by a judge of the court may appeal to the Divisional Court within 30 days of the date of the decision and, subject to the rules, in like manner as in the case of other appeals to that court. [4] This section was considered by this court in CIBC Mortgages Inc. (c.o.b. Firstline Mortgages) v. Computershare Trust Co. of Canada, 2015 ONCA 846, 342 O.A.C. 49. In particular, the court considered the argument that s. 27 only applied to orders made by the Director of Land Registration or the Director of Titles under s. 26, after a hearing. This court rejected that argument. The court said, at para. 8:Section 24 and the other provisions referred to above specifically contemplate applications coming directly to a Superior Court judge. The heading "Further appeal" fails to reflect that aspect of the statutory scheme and cannot deprive s. 27 of its ordinary meaning that "any person affected by an order made under this Act" (emphasis added) has an appeal to the Divisional Court. [5] It is our view that the decision in CIBC Mortgages is dispositive of the jurisdiction issue. Any appeal from the order of the motion judge lies to the Divisional Court, not to this court.
[6] The appeal is quashed. Since the jurisdiction issue was raised by the court, not by the parties, we make no order as to costs.
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