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Board vs owner
Vasilescu Tarko et al.
Superior Court of Justice—Divisional Court
Divisional Court File No: 322/14
Before: Frank N. Marrocco
Associate Chief Justice of the Superior Court of Justice
Date: 13 February 2015
The condo owners commenced a Small Claims Court action against their
condo on 28 June 2013. The appellants’ statement of claim discloses
their complaints about the Board’s behavior.
A Deputy Judge of the Small Claims Court, relying on the Limitations
Act, stayed the appellants’ claim because it was issued 25 months after
the appellants knew about the board's actions. Their claim was too late.
They appealed that decision and lost.
What is interesting is why a group of owners sued their condo
The Renaissance Plaza is a mixed-use building that sits at the corners
of Bloor Street, Avenue Road and Cumberland Avenue. The residential
condos (MTCC 626) consists of 127 residential condo units that sit on
top of a commercial building. Its address is 175 Cumberland.
The ten-story office and retail part of the building is a separate
entity and is known as 150 Bloor Street West. That corporation owns the
120 underground parking spots.
So this 32 year-old building has ten stories of commercial space plus
127 condos and only 120 parking spots. Some condo owners had parking
arrangements which by written agreement automatically renewed each
year; other owners had monthly parking which could be terminated by
either side upon notice.
parked on sidewalk at 175 Cumberland
The owner of the parking spaces terminated the parking arrangements for
the monthly parking condominium owners. MTCC # 626 sued the owner of
the indoor parking garage and lost. The board was hit with expensive
legal fees which it decided to pay through a $7.00 per square foot
The Board passed the special assessment by a resolution on 12 April
2011 and the owners received notice of the assessment on 15 April 2011.
The appellants disagreed with the Special Assessment. They circulated
an open letter to all the condo owners on 18 May 2011. In this
open letter they questioned the Board’s diligence and skill in handling
the parking dispute and the ensuing litigation. The appellants wanted
the Board, among other things, to create a legal committee to review
and oversee legal matters and their costs and to suspend the Special
This is important
the Annual General Meeting on 30 May 2011, the unit owners ratified,
over the appellants’ objection, all of the actions taken by the Board
of Directors for and on behalf of MTCC # 626 for the year ending 31
December 31 2010.
On 28 June 2013 the appellants commenced a Small Claims Court
action against the condo corporation. The appellants’ statement of
claim maintained that the dispute over parking was a private matter
between the monthly parking condominium owners whose parking privileges
were terminated and the owner of the parking garage.
The appellants objected to the board using the corporation’s money to
finance what the appellants claim was a private parking dispute.
The appeal was dismissed. The parties agreed on costs in the amount of
$5,000. On top of this, the appellants also had to pay their legal
Wexler v. C.C.C. No. 28
Ontario Small Claims Court
Court File No: SC-12-121278
Before: Deputy Judge R. H. Gouin
Decision Released: 18 December 2015
Norma Wexler took her condo corporation to Small Claims Court claiming
harassment and wanting payment of just over $500. Worse, she was self-represented. You can read a very good
account on this case at
Lash Condo blog.
The owner had pigeons nesting on her balcony. The birds were making a
mess which was falling down on the units below. The condo corporation
demanded that she clean up the mess and install pigeon netting to
prevent the birds from returning. This she did not do.
The condo hired a contractor who cleaned the balconies and installed the netting. The condo billed the owner for these expenses.
That is when the owner commenced her Small Claims Case claiming that the manager/board harrassed her.
The Judge identified four essential elements of the tort of harassment:
|outrageous conduct by the defendant;
|the defendant’s intention to cause emotional distress;
|the plaintiff suffering severe emotional distress; and
|the plaintiff’s emotional distress being caused by the defendant’s outrageous conduct.
The owner failed to convince the judge that she was harassed.
The owner lost and the judge ordered her to pay $20,000 of the
approximately $35,000 in legal costs that the condo corporation
(How can a small claims case for just over $500 result in the corporation paying $35,000 in legal costs?)
Wexler v. C.C.C. No. 28
Superior Court of Justice—Ontario
Court File No: 16-2191
Before: Justice P. Roger
22 June 2016
Norma Wexler had more luck this time. She asked for a
motion for leave to appeal the costs award to the Divisional Court from
the costs order of Deputy Judge Raymond H. Gouin, of the Small Claims
Court at Ottawa.
Rule 62.02(4) of the Rules of Civil Procedure provides that leave to appeal shall not be granted unless:
|there is a conflicting decision by another judge or court in Ontario or
elsewhere on the matter involved in the proposed appeal and it is, in
the opinion of the judge hearing the motion, desirable that leave to
appeal be granted; or
|there appears to the judge hearing the motion good reason to doubt the
correctness of the Order in question and the proposed appeal involves
matters of such importance that, in his or her opinion, leave to appeal
should be granted.
The owner seeks leave to appeal alleging that Deputy Judge Gouin
erroneously relied on Article X of the Condominium Corporation's
Declaration, despite the findings of this Court in Pearson (Litigation
Guardian of) v. CCC No. 178, contrary to s. 29 of the CJA.
For the reasons set out below, the motion for leave to appeal was granted.
A conflicting decision
Deputy Judge Gouin costs award depended largely on Article X of the
condo's Declaration reasoning that it would be unfair that other unit
owners should bear the costs of this litigation.
Article X makes no mention of legal costs. Here, the Deputy Judge was
dealing with legal costs that seem to have no connection to the common
elements such that his decision conflicts with the decision on this
point in Pearson."
Matters of importance
"I find that the second branch of the test is also made out as it is
desirable to grant leave to appeal as disputes of this nature,
involving condominium corporations are frequently before the Small
Claims Court and the proper interpretation of such provisions and their
potential impact on costs awards, considering s. 29 of the CJA, reaches
Further, I find that there is good reason to doubt the correctness of
the Deputy Judge’s decision and that the appeal raises matters of
general importance, considering s. 29 of the CJA.
The phrase “good reason to doubt the correctness of a decision” does
not require a conclusion that the decision in question was wrong or
even probably wrong. Nor does it require that the judge hearing the
leave motion would have decided it differently had he or she been
presiding as the motion judge. The test is whether the decision is open
to serious debate.
I find that the decision of the Deputy Judge is open to serious debate.
In exercising his discretion over costs, the Deputy Judge seems to have
placed significant emphasis on irrelevant considerations. As indicated
above, he indicates at paragraph 18 that he relies “essentially” on his
finding that it would be unfair considering the condominium
declaration. Section 29 of the CJA provides for an exception which does
not incorporate such considerations. Consequently, there are good
reasons to doubt correctness as the Deputy Judge appears to have
exceeded his jurisdiction.
No submissions have been made on the issue of costs of the leave to
appeal and these are reserved to the Court hearing this appeal."
Wexler v. CCC No. 28
Superior Court of Justice—Divisional Court
Court File No: 16-2223
Before: Justice M. O'Bonsawin
25 September 2017
Did Deputy Judge Gouin err when he issued his costs award against Ms. Wexler?
Section 29 of the Courts of Justice Act, R.S.O. 1990, C. C.43(“CJA”)
provides a limit of an award of costs in Small Claims Court. Section 29
states as follows:
An award of costs in the Small Claims
Court, other than disbursements, shall not exceed 15 per cent of the
amount claimed or the value of the property sought to be recovered
unless the court considers it necessary in the interests of justice to
penalize a party or a party’s representative for unreasonable behaviour
in the proceeding.
After having reviewed the legal framework, we must first review the Condominium Corporation’s Declaration X in this matter.
The Indemnification provision states:
Each owner shall indemnify and save
harmless the corporation from and against any loss, costs, damages,
injury or liability whatsoever which the corporation may suffer or
incur resulting from or cause by an act or omission of such owner, his
family or any member thereof, any other resident of his unit or any
guests, invitees or licencees of such owner or resident to or with
respect to the common elements and/or all other units, except for any
loss, costs, damages, injury or liability caused by an insured (as
defined in any policy or policies of insurance) and insured against by
Declaration X is not applicable as there has been no loss, costs,
damage, injury or liability suffered or incurred with respect to the
common elements and/or all other units caused by an act or omission by
Lastly, Deputy Judge Gouin also comments that he considered the
principle of proportionality. This is an important principle to keep in
mind when dealing with the costs of a Small Claims Court matter.
However, it is not determinative of the issue since Deputy Judge Gouin
did not provide any further reasoning as to his considerations. In
fact, his decision to award such a large amount in an award of costs is
not proportional to the amount claimed by Ms. Wexler.
Based on my analysis above, I conclude that Deputy Judge Gouin erred in
awarding costs in the amount of $20,000 inclusive of HST and
The appeal is therefore allowed and the award of costs is reduced to
15% of Ms. Wexler’s claim for $2,525.14 as per s. 29 of the CJA.
Consequently, I order as follows:
|this appeal is allowed; and
|Deputy Judge Gouin’s award of costs is set aside and replaced with an
award of costs in the amount of 15% of Ms. Wexler’s claim for $2,525.14.
CCC # 28 was awarded $378.77. I estimate that the corporation's total legal costs could be between $40,000 and $50,000.
Dyke v. Metropolitan Toronto
Condo. Corp. No. 972
Ontario Superior Court of Justice—Toronto
18 January 2013
Tenants moved into the unit above the applicant and ran a dance studio.
The applicant complained about the noise many times to the property
manager and to security.
The board and the manager did nothing to stop the noise. Finally, the
applicant stated that she would take legal action. Then, instead of
enforcing the declaration, the manager and the board
started jerking the applicant around.
In response, since she could no longer stand the noise, the applicant
moved into a rental unit and sued the condo corporation.
She won the costs of renting an apartment and her court costs.
MTCC No. 972
Ontario Superior Court of Justice
Court File No: CV-11-443081
Before: Justice E.M. Morgan
Heard: 30 January 2015
Ms. Dyke won a judgment against MTCC # 972 in
January 2013 when the corporation did not stop a renter from running a
commercial dance studio in the residential unit that was situated right
The dancing tenants moved out of the building in November 2013.
At this hearing, Ms. Dyke complained that there continue to be noises
that disturb her coming from the upstairs apartment from a new tenant.
Her complaints now have to do with the annoying but sporadic sounds
made when a chair is pulled up to the dining room table, or the
upstairs tenant vacuums the floors or walks with shoes on the part of
the floor that is uncovered by area rugs.
Justice Morgan wrote:
“The record before me contains photographs of the apartment above Ms.
Dyke’s apartment. The impression is of a very attractive residence,
with dark hardwood flooring and some rather elegant oriental-style area
rugs. While the rugs cover only part of the hardwood floor, the overall
impression is not of an apartment that is inhabited by tenants that
stomp in their work boots or make any other unusual noises. Indeed, Ms.
Dyke herself has indicated that she does not blame the post-November
2013 tenants above her for the disturbances that she continues to
experience. As she put it, referring to the post-November 2013 tenant
above her, ‘This poor guy thinks he’s being quiet, but I’m writing
letters saying ‘no, it’s tortuous to us.’
Ms. Dyke appears to object to the occasional noises that result from
ordinary residential usage. Although I do not doubt that she feels some
discomfort from these sounds, what she seems to be seeking is a level
of quiet to which an apartment dweller is not legally entitled.
There is no evidence of ongoing noise in the apartment above Ms. Dyke
beyond that ordinarily associated with residential living. Ms. Dyke has
a number of suggestions for further insulating the flooring of the
condominium above her, but installing extra soundproofing under the
hardwood floors is above and beyond the obligations that are on condo
(Please see Dyke
vs MTCC No. 972 in Courts- Excessive legal fees to read the
findings on this case's legal costs.)
MTCC No. 972
Ontario Superior Court of Justice
Court File No: CV-13-486555
Heard before: Master Lou Ann Pope
Motion Heard: 05 February 2015
Endorsement on costs
This application was in response to the application above. The action
was dismissed with
costs to the defendants. In fixing costs, the judge considered the
principles of fairness and reasonableness.
With respect, the judge rejected
the plaintiff’s submission that she was successful on the motion. The
plaintiff wanted this action
dismissed without costs. The result was a discontinuance but with costs
Costs of the
MTCC # 972
MTCC # 972, Marilyn Green,
Norman Hall, Bruce Darlington, Wilhelmina Dumas also known as Willow
Dumas, and Andrea Belanger were entitled to partial
indemnity costs of this action in the amount of $15,000 inclusive of
disbursements and HST.
In arriving at that
amount, the judge took into consideration the fact that MTCC #972
cross claim was
allowed to continue.
Samir Gupta and Renu Gupta
These defendants were
entitled to partial indemnity costs of this action in the amount of
$17,500 inclusive of disbursements and HST.
Feizal Satchu and Parul Gupta
These defendants were entitled to partial
indemnity costs of this action in the amount of $12,500 inclusive of
disbursements and HST.
Costs of the
The judge rejected the plaintiff’s submission that she was
entitled to costs of the motion. Therefore, the defendants were
entitled to their
costs on a partial indemnity scale as follows:
|To MTCC the sum of $4,500
inclusive of disbursements and HST;
|To Samir Gupta and Renu Gupta
the sum of $3,000 inclusive of disbursements and HST;
|To Feizal Satchu and Parul Gupta
the sum of $750.
The plaintiff was ordered to pay the defendants for their costs of the
motion and the action the following amounts:
|To MTCC #972, the amounts of
$15,000 plus $4,500, for a total sum of $19,500;
|To Samir Gupta and Renu Gupta,
the amounts of $17,500 and $3,000, for a total sum of $20,500;
|To Feizal Satchu and Parul
Gupta, the amounts of $12,500 and $750, for a total sum of $13,250.
These costs were made payable within 120 days.
Ms. Dyke was successful with her first court application but she paid a
very heavy financial penalty for losing this second court application.
v. PCC No. 245
Ontario Superior Court of Justice
Court File No: CV-14-146-00
Before : Justice Lemon
Date: 06 May 2015
Ms. Wu spent two years battling her board to get them to stop the
excessive elevator noise and vibration that was preventing her from
enjoying the use of her top floor unit.
To be continued
A Bad Case of Mould: Goodwin v. DCC No. 54
CondoVoice Summer 2007
By Lou Natale Fogler Rubinoff LLP
This article will review the implications of a reported decision of the
Ontario Superior Court of Justice made on November 12, 2004 and the
subsequent resolution of a case on behalf of the owners of a unit
situated in Durham Condominium Corporation No. 54 (Goodwin v. Durham
Condo Corp. No. 54). The Goodwin Decision is an illustration of the
potential liabilities facing condominium corporations and Board members
who fail to comply with their legal obligations to repair and maintain
the common elements.
After months of failing to correct a serious mould problem, the
Honourable Justice Scott of the Ontario Superior Court of Justice,
found that DCC 54 was “in contempt” of a previous Court Order which
required DCC 54 to rectify all mould problems in a townhouse unit and
to produce an independent expert’s report confirming that the mould was
removed. In his 2004 unreported decision, Justice Scott also ordered
each Board member to personally pay the owners’ costs in the amount of
Although Justice Scott’s contempt order was ultimately set aside by
another Judge for technical reasons, the case highlights the potential
consequences on directors who fail to comply with their legal
obligations. In order to fully appreciate and understand the basis for
the Court making a contempt order against DCC 54 (albeit, subsequently
set aside), it is important to review some of the background facts and
legal steps which the unit owners were required to take.
In January, 2002, the unit owners experienced a fairly minor water
leakage into the basement of the townhouse unit as a result of a
defective vent pipe. During the course of repairing the basement area,
the owners became aware of a much more serious problem in the common
element attic and roof area which resulted in high humidity levels
throughout the unit and the growth of toxic moulds. Despite repeated
requests by the owners, DCC 54 refused to provide to the owners copies
of reports which were prepared by the contractors and engineers who
inspected the unit and investigated the mould problem.
For six months, the owners were given excuses and the “run around” by
the Corporation and its representatives. Finally, out of complete
desperation and frustration, the owners contacted the writer and
explained their situation.
The owners immediately initiated mediation and retained their own
independent engineer who confirmed that there was a serious mould
problem in the unit. As a result of the Corporation’s failure to
adequately deal with the problem, the parties held a mediation in May,
2003, (almost 16 months after the owners first reported the mould
problem to the Corporation). The Corporation agreed at the mediation to
“forthwith” repair and rectify all of the common element deficiencies
and, within a reasonable time thereafter, to provide the owners with an
expert report confirming that the mould problem was adequately
resolved. The Corporation also agreed to pay for some of the owners’
legal costs and out of-pocket expenses.
The case should have ended at that point. However, as a result of the
Corporation doing very little over ten months to address the mould
problem, our office initiated a Court Application against DCC 54,
seeking an Order that the Corporation had failed to fulfill the terms
of the Mediation Settlement and that it had breached its obligations to
maintain and repair the common elements pursuant to sections 89 and 90
of the Condominium Act.
On August 23, 2004 (almost 2 1/2 years after the mould problem was
first reported to the Corporation), the owners were successful in
obtaining a Court Order requiring DCC 54 to forthwith and in no event
later than September 23, 2004, fulfill its obligations under the
Mediation Settlement and to provide the owners with a report from an
independent expert confirming that the mould problem was resolved in a
manner satisfactory to the owners. Justice Magda also ordered the
parties to reattend Court on October 4, 2004, to determine the issue of
damages and costs.
Notwithstanding Justice Magda’s Order, the Corporation failed to do any
repairs to the unit or to provide copies of any reports to the owners
by September 23, 2004, as ordered by the Court. No valid reason was
provided by DCC 54 as to why the Corporation did not comply with
Justice Magda’s Order. When the parties re-attended at Court on October
4, 2004, to review and assess damages and cost, Justice Scott was very
sympathetic to the owners’ dilemma. Even though the owners did not
formally make a motion for contempt, Justice Scott not only found DCC
54 in contempt of Justice Magda’s Order, he also ordered the individual
directors to personally pay $1,500 in costs to the unit owners.
As indicated above, Justice Scott’s contempt and cost order was later
set aside by Justice Ferguson for procedural reasons, specifically,
that the directors had no notice of the Court hearing. Justice Ferguson
stated that “while I am sympathetic to the Goodwins’ position, the
procedure to be followed on a contempt motion was not met”. The Judge,
however, did state that DCC 54 was not in compliance with the original
Order made by Justice Magda and that “it may in fact be appropriate to
have the costs paid personally by the officers and directors”.
The Judge went on to state that: “I do note that the quantum of the
costs award was reasonable and appropriate, however, the officers and
directors ought to have been served and the procedure followed to
obtain a formal contempt order.
What is also important about the Goodwin Decision is that the Judge
rejected DCC 54’s position that the owners were not entitled to
initiate the Court Application and obtain the original Court Order
because the parties had already commenced the mediation and arbitration
Justice Ferguson’s decision makes it clear that even though the
mediation and arbitration process was initiated, a party may be
entitled to commence a Court Application under section 134 of the Act
where there is an alleged breach of the Act or if a party fails to
comply with a mediated settlement agreement.
Sadly, this saga did not end until many months after the owners
obtained the original Court Order. The owners initiated another claim
in 2006 against DCC 54 and nine individual directors seeking damages in
excess of $450,000. The Corporation’s insurers refused to cover the
directors against the owners’ claim which alleged bad faith. The
parties ultimately settled with the Corporation paying a substantial
sum to the owners.
There are many lessons to be learned by this case. One thing is for
sure: if DCC 54, its directors and representatives had properly
fulfilled their obligations, the Goodwins would not have had to live in
a toxic environment and many thousands of dollars would have been saved.
Williams Estate v CCC No. 66
Superior Court of Justice of Ontario
Court File No: 11-53224
Before: Justice Maranger
03 September 2015
Lise Mayrand in her capacity as executrix of the Estate of George
Williams sued The CCC No. 66 for water damage caused to the estate’s
condo unit. The claim alleges that the water infiltration was as a
result of defects in the construction of the buildings common elements.
The issue first arose on 26 Dec 2009 when a significant amount of water
infiltrated the condominium unit. A notice of action was issued on 22
Dec 2012. The original statement of claim was issued and filed on 20
Jan 2012. The statement of defence was filed on 25 July 2012.
The original claim addressed just the one claim of water infiltration
the unit. However, there were ongoing water leaks into the unit.
Evidence presented by expert reports confirmed that there were a series
of leaks because of different reasons over a few years.
The plaintiff applied to have these other leaks added to the original application. The condo corporation resisted.
After a lot of evidence was heard, the judge allowed the application to
include the additional water leaks because, in addition to other
reasons, the condo corporation knew about them. However he recognized
that the plaintiff was late in adding these new claims to the
application so that would affect their being awarded costs.
On 26 November 2015, Justice Maranger ruled that there would be no costs awarded to the plaintiff.
Williams Estate v CCC No. 66 (Part 2)
Superior Court of Justice of Ontario
Court File No: 11-53224
Before: Justice Beaudoin
04 December 2015
Motion For Leave to Appeal
PCC #66 seeks to appeal the earlier decision to allow the additional leaks be be included in the initial application.
The condo corporation main arguments were:
• A conflicting decision
• Good reason to doubt the correctness of the decision
• The owner should have used mediation and arbitration
After giving an explaination and his decsions on these arguments,
Justice Beaudoin ruled that: "it was open to Justice Maranger to
conclude, as he did, that all matters should be dealt within the action
already commenced by the Plaintiff and he exercised his discretion
appropriately. I conclude that there is no reason to doubt the
correctness of his decision."
So the condo lost a second time.
Williams Estate v CCC No. 66 (Part 2—Costs)
Superior Court of Justice of Ontario
Court File No: 11-53224
Before: Justice Beaudoin
02 February 2016
This hearing was to determine costs due to CCC #66's failed attempt to be granted an appeal.
The owner asked for fees of $8,175 on a substantial indemnity basis,
since the date of her offer, plus disbursements and taxes for a total
amount of $9,385.
"She relies on section 131 of the Courts of Justice Act and the factors
enumerated under Rule 57. Specifically, she invites me to consider her
offer to settle dated October 5, 2015 which provided for the dismissal
of the motion for leave to appeal with costs on a partial indemnity
basis until the date of the offer, and on a substantial indemnity basis
thereafter. Mayrand submits that she successfully beat her offer to
settle and that she should have the benefit from that offer."
She also argued that she should not be denied the costs of this motion
as she has now has had to argue twice with respect to the merits of her
request to amend her pleadings.
financial inequities between the parties
"She also claims she should be indemnified especially in light of the
financial inequities between the parties; a condominium owner should
not have to fight her condominium corporation to get it to stop water
infiltrations into her unit.
The matter was of utmost importance to her as the ongoing problems
affected her home and her ability to occupy it. Had she not been
successful on the motion, her claims would have been limited to
substantially lower damages."
CCC # 66 argues that the amount of costs sought by Mayrand does not
fall within the range of costs that they should reasonably have
expected to pay.
The corporation submits that the offer to settle was not so substantial
as to be awarded substantial indemnity costs. A total cost award in
favour of Mayrand in the amount of $4500 would be appropriate.
Analysis and Conclusion
CCC # 66 recognizes that Mayrand is entitled to costs, they just wanted them to be lower that what she was asking for.
The judge ruled that Mayrand made a reasonable offer. She had to
respond to a motion for leave to appeal and she was successful. The
judge concluded that not all claims are subject to mandatory
arbitration under the Condominium Act.
The judge ruled:
"The hourly rates and time spent by her counsel were reasonable, and
while CCC #66 argues that costs claimed are too high, it has not
disclosed its own counsels’ dockets which are the best indication of a
While the financial disparity between the parties is not an enumerated
factor under Rule 57.01, it may nevertheless be a consideration under
Rule 57.01(1)(i) “as any other matter relevant to the question of
Justice Beaudoin awarded her costs in the global amount of $7000, payable forthwith.
Most likely, the owner and the condo corporation will be going back to
court to seek a judgment over her claim for damages and oppression.
Hadani v TSCC No. 2095
Small Claims Court
Court File No: SC-14-00000644-0000
Before: Deputy Judge Samuel S. Marr
Released: 30 June 2016
TSCC 2095 328 Fleet Street West
Rahim Hadani rented out his out his penthouse condo. The washing
machine in the unit overflowed three times and damaged the unit below.
The condo billed him the costs of the repairs and he refused to pay so
the condo corporation put a lien on his unit. His bank, who had the
mortgage paid to remove the lien and put the costs on the owner's line
The owner sued the condo corporation to recover the $16,599.68. The owner lost. Now he will have additional legal costs to pay.
Jagat Rao vs TSCC No. 1764
Small Claims Court
Court File No: SC-12-15327-00
Before: Deputy Judge J Prattas
Released: 07 April 2016
Unlike the above case, the owner won this Small Claims case. The owner
owns Unit # 602 and there was water damage right under his unit in Unit
The condo corporation had their plumber investigate the water leak on
several occasions and determined that it originated from the owner's
TSCC No. 1764 placed a lien on Unit # 602 in the amount of $2,464.65.
TD Canada Trust, the plaintiff’s mortgagee, paid the total amount of
Jagat Rao sued to recover this expense. He disputed the condo corporation's facts on several grounds:
| He did not use the ensuite shower at the time of and during the leak and only sporadically in the previous four years;
|The property was about four and one-half years old at the time of the
leak and there was no reason for such leakage to occur from his unit;
|Because of his extensive travels he had very limited use of his entire
unit, including the showers generally and only for the months of June
|When in Toronto, for about four years prior to the leak, he used the
main shower of the unit and a couple of times the bathtub shower in the
ensuite bathroom after he obtained permission from the property manager;
|He instructed any house sitter not to use the ensuite shower;
|Several other units, the garage,
the gym and other facilities on the property had experienced similar
water leaks which would indicate
faulty workmanship of the condominium common elements.
The judge states was incumbent upon the defendant to prove in an
unambiguous and straightforward fashion the source of the leak and how
it was stopped, something which the defendant failed to do.
The owner's contractor found that the grout, the silicone and the tiles
in the stall were all fine, there were no cracks or gaps in the
caulking and the tiles or any other indications that would suggest that
the water could leak from the ensuite shower stall. As far as he was
concerned the stall did not need any repairs or replacing of the tiles
or the silicone or the caulking and in his view the water leak could
not have emanated from that stall.
The judge preferred his evidence over that of condo's plumber on that point.
There was also telling evidence, which the judge accepted on a balance
of probabilities, that several other units on the property experienced
similar leaks, as did the garage which remained closed for at least two
months. According to Rao it is a well known fact that water leaking has
been an issue in the property. Even in the summer of 2014 there was
water leaking into the gym.
In the result there was a judgment for the plaintiff against the defendant as follows:
|$5,958.16 for the Claim;
|$175 for court disbursements;
|Prejudgment interest at the court rate on and from April 16, 2012.
|Postjudgment interest at the current court rate.
The judge found that it was appropriate to award costs and disbursements to the
plaintiff in the amount of $1,800 all inclusive.
Washington v YCC No. 441
Toronto Small Claims Court
Court File No. SC-14-8500-00
Deputy Justice J Prattas
Released: 18 July 2016
Reasons for Judgment
Mr. Washington originally claimed the amount of $23,142.96 from the
condo corporation for the recovery of money paid by him to discharge a
lien. This amount included $5,808.09 for common expenses which may or
may not have been in arrears and the balance for costs associated with
the clearing of the blockage of the plumbing system and lien costs. The
amount claimed was reduced at trial to $17,336.87.
There was a plumbing blockage which occurred on March 15, 2013 affected units 47, 48, 49 and 51.
Narval Washington submits that he did not cause the blockage and he is
therefore not responsible for any of the plumbing or lien costs in this
regard and that the condo corporation should return the amount of
$17,336.87 improperly paid by him to the condo corporation pursuant to
Narval Washington uses Unit # 48 to prepare food for Caribbean foods
for a number of restaurants. This preparation includes the trimming of
fat, bone and excess skin from cuts of meat and the marinating of meats.
Mr. Washington has a grease trap in his unit which he cleans and has
maintained by a grease trap company. He claims that no food is cooked
in his unit. According to the condo the plaintiff deposits on average
three litres of used cooking oil a day into a container at the property
for pick-up by a bio-fuel company.
After a two day trial, the judge ruled that the commercial condo
corporation did not have sufficent evidence to prove that Narval
Washington's Unit #48 was the cause of the drain blockage.
The judge wrote:
"Since the defendant took the position
that the source of the blockage was from 48, it was incumbent upon the
defendant to prove in an unambiguous and straightforward fashion the
source of the blockage. It failed to do so."
The judge was also unimpressed by the testimony of the condo's directors:
"Most important of all I find from the
testimony of the board members that the board was irresponsible and
rather flippant in “determining” that the plaintiff should pay for the
clearing of the blockage. The board members testified that the decision
to have the plaintiff pay these costs took no more than a few seconds
or at most no more than “three minutes”, and any discussion in this
regard was laden with expletives – leaving no room or time for any
sober discussion -- that the plaintiff should pay for the clearing of
the blockage. In my view this is not a professional and serious way to
determine such important issues as the allocation of costs to a
particular unit owner."
therefore conclude that the plaintiff is not liable for the costs and
expenses that he was obligated to pay to the defendant in relation to
the clearing of the blockage (including the lien amounts and charges)
and all amounts that he paid and expenses that he incurred in this
regard should be paid back to him by the defendant."
The judge failed to understand why the cheques for the monthly common expenses
were not deposited by the defendant.
He assessed the damages the plaintiff is entitled to recover from the defendant at $17,336.84, consisting of the following:
a) The plumbing repairs $11,485.22;
b) Pre-lien late payment interest $481.65;
c) Pre-lien collection admin charge $287.20;
d) Legal costs for lien registration and discharge $1,050;
e) Legal costs for collection after registration of lien $3,282.77;
f) Legal costs to July 18, 2014 for collection $750.
There shall be judgment for the plaintiff against the defendant
a) $17,336.84 for the Claim;
b) $175 for court disbursements;
c) Prejudgment interest at the court rate on and from October 28, 2014.
d) Postjudgment interest at the current court rate.
are discretionary to the trial judge. The plaintiff was completely
successful. This was a two-day trial. In considering all the
circumstances of this case, including proportionality, and in
exercising my discretion I find that it is appropriate to award costs
to the plaintiff in the amount of $2,500 all inclusive and I so order.
Washington v YCC No. 441
Divisional Court File No: 409/16
Heard at Toronto: 16 August 2017
The onus of proof
On this point, I repeat the observation of Rothstein J. from F.H. v.
McDougall, 2008 SCC 53 (CanLII),  3 S.C.R. 41 where he said, at
In all civil cases, the trial judge
must scrutinize the relevant evidence with care to determine whether it
is more likely than not that an alleged event occurred.
The central problem with the trial judge’s reasons is that he appears
to find that, in order for the defendant to resist the plaintiff’s
claim, the defendant had to prove absolutely that the plaintiff caused
the plumbing blockage. In so finding, the trial judge appears to
have reversed the onus of proof and also to have applied the wrong
burden of proof.
the defendant was not obliged, in defending the plaintiff’s claim, to
“definitively” prove that the source of the plumbing blockage was the
plaintiff’s unit nor was the defendant obliged to prove “in an
unambiguous and straightforward fashion” that the plaintiff’s unit was
the source. Rather, as in any civil proceeding, the onus rested
on the plaintiff.
In order to succeed on his claim, it was the plaintiff’s obligation to
establish that it was more likely than not that he was not the source
of the plumbing blockage. It is, of course, open to the defendant to
lead evidence that will result in the plaintiff failing to prove his
case, as the defendant attempted to do in this case, but the defendant
does not bear the onus of proof.
this might be seen to be a simple quarrel over semantics, it is not in
this case when one considers all of the evidence, especially the
evidence revealed by the videotape of the actual cleaning of the pipes
and the comments made by the plumber thereon. The two videotapes
of the cleaning of the pipes show the plumber “snaking” the pipes to
clear the blockage. He is heard, on at least three occasions,
referring to grease including one specific reference to “chicken”
grease. The only unit producing “chicken” grease was the
Justice Nordheimer ruled: "In the end result, given the concerns that I
have with the onus of proof that the trial judge appears to have
employed, with the standard of proof he appears to have applied, and
with his failure to refer to key evidence, I am not satisfied that the
decision reached is a safe and reliable one. Consequently, the decision
cannot stand. At the same time, given the nature of the evidence, I am
not in a position to say that the plaintiff could not succeed in his
claim if the proper analysis of the evidence is undertaken. As a
result, a new trial must be ordered."
The appeal is allowed, the judgement below is set aside and a new trial is ordered before a different trial judge."
The defendant is entitled to its costs of the appeal fixed in the
amount of $5,000 inclusive of disbursements and HST payable by the
plaintiff within thirty days.
if an owner challenges a lien, it is the owner’s obligation – and not
the condominium’s obligation – to establish that he or she was more
likely than not, not the source of the alleged damage.
Cho v Middleton
Divisional Court File No: 189/16
Justice L.A. Pattillo (Orally)
Heard at Toronto: November 21, 2016
This was an appeal of a Small Claims case.
The Appellant claimed $25,000 in damages arising from water damage that
resulted from a leak or leaks in the units above the Appellant’s
condominium. The claim was to recover expenses of finding alternative
accommodation while the remediation and restoration was completed.
The Appellant’s condominium suffered a water leak on December 27-28,
2014. MTCC 1099 immediately responded to the Appellant’s unit and
commenced emergency drying services. The Appellant was advised by
letter dated January 20, 2015 that arrangements were being made to
carry out the necessary repairs to his unit.
A dispute arose between the Appellant and MTCC 1099 concerning the
repair and damages to his personal belongings. The Appellant moved out
of the unit on May 12, 2015 to a house he owned in Kingston, Ont.
December 22, 2015, the Appellant advised the Respondents that they
could not enter his unit unless he was present. He then changed the
MTCC 1099 retained the services of a locksmith and on January 29, 2016,
entered the unit in the absence of the Appellant’s permission and
The Corporation retained a professional restoration company to carry
out the repairs. It also retained an environmental
testing laboratory to test for mould both before and after the repairs.
The Respondents’ expert testified that based on tests they did, there
were safe levels of mould in the unit and confirmed that the unit was
The Small Claims trial took place on February and March 2016 and for a
half day on March 21, 2016. On the last day, the Trial Judge
refused to hear new evidence and the judge ruled in favour of the
condominium and awarded costs.
The owner also lost this Appeal.
It is not hard to understand why he lost. From the evidence stated in
the judgment, the owner appears to have been extremely uncooperative
Given the issue and the fact that this was an appeal from Small Claims
Court, proportionality is an important consideration. The judge awarded the condo corporation's
costs of the appeal at $7,500 inclusive of disbursements
Limited (Venice Fitness) v. MTCC No. 1392
Court of Appeal for Ontario
Weiler, Lauwers and Pardu JJ.A.
Date: 17 April 2014
On appeal from the order of Justice Anne Mullins of the Superior Court
of Justice, dated 15 September 2011.
Venice Fitness and the four registered unit owners appealed the summary
dismissal of its claims that MTCC 1392 wrongfully registered liens
against condominium units which it occupied to operate its business.
Venice Fitness leased those premises from the owners of the units,
being the four numbered corporations which are the other appellants.
The common expenses for the units were in arrears. While the owners of
the units were legally responsible to make the payments, in practice
Venice Fitness did so. Venice argued that the condominium corporation
led it to believe, by adopting a long practice of tolerating late
payments, that it would not rigidly enforce timely payment of the fees
and would not charge interest; it was accordingly wrong to abruptly
register liens without warning, especially after Venice Fitness
tendered payment in full in the exact amount demanded by the
condominium corporation, which was refused.
The condo fees in arrears have now been paid. The dispute remaining is
the claim by the condo corporation for legal fees for filing and
discharging the liens amounting to $30,597.58.
The motion judge dismissed Venice’s claim for “a declaration that MTCC
No. 1392 wrongfully registered the liens…” on this basis:
“I find that the defendant’s conduct did not constitute such so as to
raise a promissory estoppal nor was the defendant unjustly enriched.”
She dismissed the condo’s motion for summary judgment: “insofar as the
claim for the legal expenses paid in relation to the lien
registration,” and added: “There shall be a trial of that issue.”
The order dismissed the claim in para. 1(b) of the Statement of Claim,
which sought a declaration that the condo “wrongfully registered the
liens”. In the face of that language, Venice’s concern is that this
dismissal forecloses the argument that the condo should not be able to
recover any legal fees arising out of its conduct in registering the
In oral argument the condo agreed that Venice could make this argument.
The order made by the motion judge did not make this clear.
The appeal was therefore allowed to the extent of adding to the order a
proviso that, at the trial of the issue of condo’s entitlement to
reimbursement for the legal fees for registration and discharge of the
liens, Venice and the unit owners shall be able to argue both
entitlement and amount, and to raise the argument that because of the
condo’s conduct the unit owners should not be obliged to pay the fees
or that their obligations should be reduced.
The costs order of the motion judge awarding costs to the condo is set
aside, and those costs are reserved to the discretion of the judge
ultimately hearing the trial. The only issue in dispute before the
motion judge was the issue of reimbursement of the costs of
registration and discharge of the liens, and the outcome of the trial
of that issue will have a bearing on determination of the costs of the
Venice and the unit owners were successful on this appeal in obtaining
clarification of the order appealed from and received costs fixed at
The lessons here are that a condo
corporation needs to act promptly when unit owners are in arrears. It
also needs to inform the unit owners whenever it plans to change its
normal business practices. So far this lesson has cost them $5,000 and
potentially far more.
Patriarcki v CCC No.
Ontario Superior Court of Justice
Court File No: 08-CV-41500/08-CV-41500A1
Heard: 26-28 February 2014
This case demonstrates two important points that condo owners need to
|Do not sue your condo if you
have not received a legal opinion on the
merits of your case. Better still, don’t go to court if you are not
represented by a lawyer who has experience in condominium law.
|Have hard evidence that proves
This case also contained a warning
for the condo corporation and the contractor. Reading this warmed my
warning on costs
“I will accept one page of written argument on the issue of costs from
each of the party defendants within 15 days of this release of this
decision. Counsel representing the defendants should be alerted to the
fact that the court is sympathetic to the various health difficulties
suffered by the plaintiff.”
Plan No. 9910225 vs
Allen Davis and
Honourable Justice R. G. Stevens
Medicine Hat Alberta
Docket: 1208 00285
Date: 23 Jan 2013
This court case, which
involved an elderly and very ill couple having a
full-time care taker live with them in their condominium unit.
The condo took then to court to have the caretaker kicked out because
the bylaws said that the units were only for single-family use. The
condo also wanted to collect a $10,000 fine.
Justice Stevens made several very interesting points including:
condominium bylaws are in the nature of a contract between the owners
of the units of the condominium, and because the Canadian Charter of Rights and
not extend to “activities by non-governmental entities created by
government for legally facilitating private individuals do things of
their own choosing without engaging governmental responsibility”, the
by-laws of the condominium corporation are not bound by the Charter.
is a disappointment.
Justice Stevens also pointed out that the defendants could not find
relief in Alberta’s Human Rights legislation.
Most likely they would have in Ontario.
The corporation’s by-laws are a contract among the owners specifying a
manner in which they wish to coexist. They are entitled to make such a
contract, particularly when made in good faith for a reasonable
purpose, which was to protect what they undoubtedly believe is their
enjoyment of their property and their quality of life.
Article 62(a)(iv) of the
bylaws provides: An owner shall not:
Family Dwelling” is defined in the by-laws as “a unit occupied or
intended to be occupied as a residence by one family alone and
containing no more than one kitchen and in which no roomers or boarders
are allowed”. The terms “roomer” and “boarder” are defined identically
in the by-laws, to mean “a person to whom room and board is regularly
supplied for consideration”.
or permit the use of his residential unit other than as a single family
dwelling or for a purpose other than for residential purposes
Are the defendants
Article 65 of
the by-laws is entitled “Declaration of Purpose”, and provides:
The restrictions in use in these bylaws have the following purposes:
| To provide for the health and
safety of condominium occupants;
|To maintain the residential
Units, parking units and common property
units in such a manner as to preserve property values;
| To provide for the peace,
comfort and convenience of the owners and occupants;
| To develop a sense of community
judge went on to say: “The parties did not provide me with any
authorities that would illuminate whether, as a general proposition,
live-in caregivers, maids or nannies fall within the category of
roomers or boarders. I am not aware of any decisions in this province
or indeed in Canada wherein the issue has been decided. In the absence
of binding or persuasive authority, I am left with the general
principles of interpretation.”
there is only one principle or approach, namely, the words of the Act
are to be read in their entire context, in their grammatical and
ordinary sense harmoniously with the scheme of the Act, the object of
the Act, and the intention of Parliament.
65 of the bylaws is what is known as a “Purpose Statement”, and though
the assistance purpose statements provide in interpretation is limited,
the modern approach to interpretation, with its focus on the entire
scheme of the legislation or contract, requires that the purpose
statement be considered as a part of the context for the more specific
provisions contained in Article 62(a)(iv) and the definitions of
roomers and boarders.”
is after considering the Condominium by-laws as a whole that I conclude
that the presence in a unit of a live-in caregiver, who is required to
provide necessary assistance to infirm residents, does not mean the
unit is “being used other than as a single family dwelling or for a
purpose other than for residential purposes. …such a prohibition could
be devastating to the unit holder in need of medical care. I simply
cannot reconcile a prohibition against live-in caregivers with the
stated purposes of the bylaws.”
wise and wonderful judgment. It makes me proud of Canada’s justice
TSCC # 1510 vs McCauley
File No. 07-CV-341144PD3
Darla A. Wilson
July 2008 (Costs)
This application was issued 03 October 2007 against the
respondents, J.W. McCauley and Anne McCauley, who are owners of a condo
unit in the corporation.
The application seeks a variety of relief: an order requiring the
respondents to comply with the Condominium Act, 1998 (“the Act”) and
the Declaration, By-laws and Rules of the condominium; a declaration
that Ms. McCauley violated sections 27(1) and 116 of the Act and must
reimburse the applicant $1,155.60; a declaration that Mr. McCauley
violated sections 226 and 117 of the Act and must reimburse the
applicant the sum of $6,300.00 in damages; and costs.
The McCauleys vociferously opposed the
The applicant asserts that Ms. McCauley violated s 27.1 of the Act
which states that a Board of Directors shall manage the affairs of the
The basis for this argument is the allegation that in April of 2006,
Ms. McCauley instructed the landscaper at the condominium concerning
some plants and she did not have the authority of the Board to do so.
Further, repayment of the sum of $1,155.60 is sought from this
respondent for an invoice rendered by the landscaper in June of 2006
for six summer planters.
McCauley denies giving instructions to the landscaper of the
condominium in April of 2006 with respect to plantings and states that
while on the House Committee in 2005 she was involved in the winter
plantings at the condominium and provided instructions to the
landscapers at that time.
In support of her denial, Ms. McCauley deposes that she contacted the
landscaper to have her attend at a Board meeting to confirm that Ms.
McCauley did not instruct her in April of 2006 concerning plants for
the condominium but the Board did not accede to this offer.
Ms. McCauley testified that she spoke with the landscaper in the spring
of 2006 about obtaining some plants for her own unit.
There is no evidence upon which a court could find that Ms. McCauley
instructed the landscaper about the planters in April of 2006. If that
is the evidence from the landscaper, Ms. Yang, it is curious that there
is no sworn evidence from that individual given the denial by Ms.
It is further alleged that Ms. McCauley violated the Act by making
unauthorized use of the common elements in various ways: hanging a
Christmas wreath on her door; leaving her shoes outside of the door to
her unit; allowing a worker to leave his equipment outside the door to
her unit; and entering the concierge area without first obtaining
Ms. McCauley deposes that she left her shoes outside her unit for a
short period of time once or twice in 2005; that a contractor she hired
once left some equipment in the hallway for a very brief period of time
and that when she became aware of it, she immediately instructed him to
move it; that she hung a wreath from her door in 2004 and 2005 as other
residents did, and there were no complaints at the time; that she stood
in the door of the concierge area to check the positioning of the
With respect to the claims made against Ms. McCauley, the condo has
failed to garner the necessary evidence to support the allegations and
the application must fail.
Even if the judge accepted the thin evidence offered by the applicant
against Ms. McCauley, which she did not, she would not find that the
alleged conduct amounts to violations of the section 116 of the Act or
constitutes unreasonable use of the common elements as contemplated by
The case against
The allegation against Mr. McCauley is that he breached sections 116
and 117 of the Act by carrying out an activity which caused damage to
This allegation is rooted in the suspicion that Mr. McCauley attended
in the change room on the second floor on 28 January 2007 and dyed his
hair, which caused damage to the tiles, floor, sink, walls and toilet
Counsel for the condo conceded that at most, the evidence linking the
respondent to this activity was circumstantial. There was no eyewitness
to it and Mr. McCauley in his sworn affidavit denies dying his hair in
the change room on that date or at any other time. He acknowledges that
he used the exercise room, showered and left.
The allegations against Mr. McCauley are serious and yet, the evidence
put forth to support them by the corporation is, at best, characterized
as a suspicion.
The facts giving rise to the relief being sought are hotly
disputed. It should have been clear to counsel for the condo
after delivery of the responding affidavits, or at the very latest
after conducting the cross-examinations, that the application had
virtually no chance of success.
Taking the evidence as a whole, the judge was not satisfied that the
applicant has discharged the burden of proof on a balance of
probabilities and consequently, this application failed.
The application is dismissed with costs to the McCauleys.
Counsel for the McCauleys argued that costs ought to be on a
substantial indemnity basis because the application was launched as a
retaliatory measure against them. Further, the condo corporation ought
to have concluded the chances of success on the application were
Finally, it is submitted that the condo corporation ought to have
accepted the McCauleys’ offer to settle of 08 May 2008, wherein if the
application were dismissed without costs and releases exchanged, the
McCauleys would not demand costs.
In response, counsel for the condo argues that there is an obligation
on the corporation to manage the affairs of the condominium and to
enforce compliance with the Act which is why the application was
Further, the condo corporation submits that they made an offer to
settle. If the McCauleys would give the condo
$5,215.20 and had that been accepted, they would not have incurred the
additional legal fees necessitated by the arguing of the application.
The condo should have accepted the offer to settle made by the
McCauleys on 08 May 2008. To persist with the application was
ill-advised. Further, the condo’s offer to settle for payment by the
McCauleys the sum of $5,215.20 was completely unrealistic.
The judge awarded costs of $16,058.77 to be paid by the condo to the
McCauleys within 30 days. This figure is comprised of partial indemnity
costs up to the time of the offer to settle of 08 May 2008 ($4,129.59)
plus costs on a substantial indemnity basis thereafter ($10,225.95) as,
in his view, once materials were delivered and certainly after the
cross-examinations were complete, the condo corporation should have
abandoned the application.
The applicant chose to persist with the application and must bear the
costs this decision. With respect to disbursements, the judge fixed them at $1,703.23.
Ontario Inc. v. MSCC No. 54
Ontario Superior Court of Justice
Barrie Court File No: CV-13-0816
Justice C.A. Gilmore
Date: 24 March 2014
The numbered company purchased a condo unit on 21 February 2012, known
as 130 Steamship Bay Road, Gravenhurst, Ontario. The property included
two parking units.
The status certificate said that the monthly common element fees were
$804.04. That was the correct figure for the condo unit but the condo
corporation forgot to add in the common element fees for the two
included parking spots. So the true figure should have been $1,012.83 a
As the status certificate was issued on 10 November 2011, it bound the
corporation for the fiscal year ending 31 March 2012.
The purchaser, the numbered company took the position that since the
status certificate said it had to only pay common element fees for the
actual unit and not the two parking spots, that is all they were going
to pay indefinitely.
On 18 January 2013, the condo corporation issued a notice of lien in
accordance with the Act, which indicated that the amount owed to it was
$6,944.99 and that if the amounts due and owing were not paid within
ten days it would register a condominium lien. On 31 January 2013, the
corporation registered the lien.
So to court they went.
The judge ruled that the purchaser had to pay only $804.04 a month for
the remainder of the fiscal year in which the status certificate was
issued and that the purchaser would have to pay the correct common
elements for both the unit and the two parking spots after that.
The judgment states: So long as the numbered company pays this amount
within sixty days of the date of this judgment the lien shall be
discharged without interest.
In the judge’s view neither party had significant success. The numbered
company is required to pay the additional common expenses, both arrears
and ongoing, for the two parking spaces and the condo corporation was
unsuccessful in obtaining the full amount of the lien which they sought
to enforce. (They wanted the full $1,012.83 a month from
the very beginning.)
He left it to the two sides to determine costs. The costs were no joke
as the condo corporation spent over $30,000 by the time it got to
court. If the two sides could not agree, the judge would decide costs.
YCC No. 41 v. Schneider et al.
Ontario Superior Court of Justice
Court File No: CV-14-514647
Before: Justice Carole J. Brown
Heard: 17 June 2015
The applicant brings this motion for a finding that the respondents,
Neil and Linda Schneider, have failed to comply with the judgment of
Justice Faieta dated February 2, 2015, and for an order that the
respondents vacate and sell their unit as they have failed to comply
with that judgment.
Mr. Schneider denied that his unit was unclean, or that it was infested
with cockroaches. He submitted that the photographs of the unit adduced
by the applicant were "staged". When I asked if he was asserting that
they were not true, he confirmed this. I do not accept this submission.
The evidence indicates that the respondents are in non-compliance of
Justice Faieta's judgment. They continue to refuse to permit the
applicant entry to clean and de-infest the unit; they continue to fail
to clean their unit in order to eradicate the severe infestation of
cockroaches and prevent further infestations to continue; and they
continue to prevent the transmission of offensive odours into the
common elements and surrounding units. The respondents are in breach of
the judgment of Justice Faieta, as well as the provisions of the
Condominium Act, sections 90 and 117.
The respondents' continued refusal to permit the applicant entry to the
unit to address the maintenance and infestation issues is not only in
breach of the court Order of Justice Faieta but is also contrary to the
provisions of the Condominium Act, 1998, sections 19 and 92, as well as
the Condominium's Declarations, Articles IV, section 1 (b), Article
VII, section 1, Article XI, section 1 and Article XIV, and the
Condominium's Rule 27.
The infestation and odours continue and the applicant continues to receive complaints from surrounding neighbours.
A compliance order pursuant to sections 134 and 135 of the Act is
justified in the circumstances of this case. The applicant is entitled
to enter the unit within seven days of this order, after giving
reasonable notice, to perform the necessary cleaning and the "flush and
vac" extermination treatments recommended by Orkin, and is entitled to
enter thereafter as necessary, with proper notice, to conduct all
necessary follow-up treatments, until the infestation is eradicated.
The respondents are to permit the applicant and their agents to enter
as many times as are necessary to fully eradicate the infestation and
thereafter, periodically, to ensure that the unit remains clean and
pest-free. The cleanup costs are all to be covered by the respondents
pursuant to the Act, section 92(4).
Vacate and sell
In the event that the respondents' non-compliance with the Order of
Justice Faieta continues, that the respondents continue to prevent the
ordered treatments by barring entry to their unit, and persist in
living in unhealthy, unclean, cockroach-infested surroundings, the
applicant will be entitled to return to court to obtain an Order
pursuant to section 134 of the Act requiring the owners to vacate and
sell their unit.
The applicant is entitled, pursuant to the Act, section 134(3)(b) to
the costs incurred by the applicant in obtaining this Order, to be
added to the common expenses of the unit. In all the circumstances of
this case, it is appropriate to order costs on a full indemnity basis.
The other unit owners in the building should not have to bear the legal
costs of securing compliance due to the intransigence of the
The respondents have continued to breach the conditions of the Act,
Declaration and Rules of the condominium and are in non-compliance with
the judgment of Justice Faieta. Their conduct has negatively affected
their fellow unit holders, as well as the condominium corporation. I
find their conduct to be oppressive and unfairly prejudicial toward the
applicant and its unit holders.
The applicant is granted its motion. The applicant is to provide proof of its legal costs.
Why this case is important
This case is important for four reasons. First, a resident in a condo
cannot refuse entry to their unit when the corporation needs to treat a
vermin infestation. A resident cannot allow offensive odours to escape
from their unit. If the residents ignore court orders, they may pay the
corporation’s full legal costs.
Finally, it is important to notice that the corporation failed to get
an order forcing the owners to sell and vacate their home. However, if
they refuse to cooperate with the corporation’s attempts to exterminate
cockroaches in their unit and eliminate the offensive odours then the
corporation is free to return to court to apply for an order forcing
them to sell and vacate their unit.
YCC No. 41 v. Schneider, 2017 ONSC 3709
Ontario Superior Court of Justice
Court File No: CV-14-514647
Before: Justice Diamond
Heard: 12 June 2017
YCC #41 v. Schneider is a dispute between the condo corporation and the
owners of a unit that had/has a very serious roach infestation. In Feb
2015, YCC #41 got a court order to allow them enter the unit in order
to get rid of unsanitary objects, clean the unit and exterminate the
The owners did not comply so in June 2015, YCC #41 went back to
Superior Court and obtained a compliance order allowing the condo
corporation to enter the unit to clean the unit and discard unsanitary
items”. The condo corporation were awarded its full costs along with
the compliance order.
So far so good.
On 28 October 2015, after receiving the second judgment, the condo
corporation sent a letter to the owners stating that Orkin would arrive
on November 13, 2015 to clean the unit and discard unsanitary items.
The letter informed the respondents that they should sort through the
contents of the unit to set aside and mark any belongings which they
wished to keep.
The letter further stated that Orkin would prepare the unit for
insecticide treatment to be carried out on November 16, 2015, in
accordance with an enclosed “Orkin Preparation Sheet”. The letter
advised that Orkin would empty top and bottom cupboards in the kitchen
and bathroom, and clear counter tops, top shelves and floor closets. As
well, the letter warned that “furniture may be rearranged to ensure all
areas are assessable”.
The enclosed Orkin Preparation Sheet was different than the letter.
According to the sheet, the occupants were required to empty top and
bottom cupboards in the kitchen and bathroom and remove old shelving
and floors of the closets. The letter from YCC #41 stated that Orkin
would do it.
On 13 November 2015, the management administrator, the superintendent,
a board member and Ms. Kristy Ford, an Orkin preparation technician,
arrived at the unit. The owners would only allow Ms. Ford, the Orkin
preparation technician, to enter their unit.
According to Ms. Ford's Orkin Incident Report, the respondents refused
her service because they had prepared the unit themselves. The Incident
Report stated that the unit was not up to standards to be properly
treated. The Incident Report further noted dirty dishes in the kitchen,
one hundred dead cockroaches on the floor throughout the apartment, and
an infested couch in the second bedroom.
The owners claimed that Ms. Ford said the unit was ready for treatment.
On 16 November 2015, Mr. French, an Orkin exterminator, come to the
unit to carry out the flush and vac treatment. Mr. French's testimony
said that only part of the unit was properly cleaned and prepared so
the unit was not treated.
In January 2016, YCC #41 took the owners back to court seeking an Order
finding that the owners breached the court Order and requiring the
respondents to vacate and sell their condominium unit.
The judge ordered a trial of an issue, namely what exactly occurred on Nov 13 and 16, 2015 when
the condo and its agents went to the owners’ unit to enforce the Court
Order. This is where YCC #41 ran into difficulties.
First there was the conflicting instructions contained in YCC #41's letter and Orkin's instruction sheet.
The judge noted that although the Incident Report said that the unit
was not ready to be properly treated, there was no evidence that the
respondents were instructed to take any further steps between 13 Nov
and 16 Nov 2015 in order to further and better prepare the unit for the
YCC #41 submitted an affidavit from Ms. Ford but since she did not attend cross-examination, her evidence was not allowed.
The question is whether the owners’ actions on 13 Nov 2015 constituted a failure to comply with the Court Order.
After several adjournments, the trial of the issue finally
proceeded on 12 June 2017. At the hearing, the applicant sought only
the declaratory relief that the respondents breached the Court Order,
abandoning their request for an order mandating the sale of the
The judge ruled that the owners took some steps to try and have the
unit prepared for the scheduled flush and vac treatment and there was
obviously some confusion which could have been avoided with clearer
instructions from the condo and/or Orkin.
Accordingly, the condo’s request for declaratory relief was dismissed.
Each party beared their own costs.
Carleton Condominium Corp. No. 25 v Patrick Eagan
Court File No: 14-61667
Before: Madam Justice Sylvia Corthorn
Date: 03 July 2015
This is a case of a condo corporation dealing with an owner who is a
hoarder and has a bed bug infestation. The owner refused entry to the
|July 2, 2013
||An attempt is made to conduct the annual fire inspection of the
Unit. The inspection cannot be completed because access to much of the
Unit is blocked by excessive amounts of debris and clutter in the Unit.
|July 9, 2013
||A second attempt is made to conduct the annual fire inspection of
the Unit. Again, an inspection cannot be completed because access to
much of the Unit remains blocked by debris and clutter.
|Aug 20, 2013
||The Fire Marshall attends at the Unit and informs the respondent that he has two weeks to clean up his unit.
|Oct 21, 2013
||The Fire Marshall informs counsel for the applicant that the
condition of the Unit has been addressed by the respondent; the Unit is
in compliance with the Fire Code; and additional work is required to
address the bed bug infestation in the Unit.
|Oct 29, 2013
||An inspection of the Unit by Envirocontrol scheduled for this
date does not proceed, as the respondent fails to provide access to the
|Nov 1, 2013
||The applicant provides the respondent with a single-sheet, Bed
Bug Treatment Prep Instructions (“the Prep Instructions”) from
Envirocontrol IPM Services Inc. (“Envirocontrol”). The Prep
Instructions are provided to the respondent in anticipation of
treatment scheduled for November 5, 2013.
|Nov 5, 2013
||An inspection of the Unit by Envirocontrol scheduled for this
date is cancelled by the respondent (directly with the pest control
|Dec 3, 2013
||An inspection of the Unit is carried out by Envirocontrol. It is
determined that the Unit is infested with bed bugs. The infestation
cannot be treated because none of the Prep Instructions have been
|Mar 18, 2014
||Treatment of the Unit scheduled for this date does not proceed
because the applicant is made aware that the respondent is in the
process of removing belongings from his unit.
|April 15, 2014
|An employee of Envirocontrol and one of the applicant’s
Superintendents attend at the Unit for a scheduled inspection. It is
determined that the Unit has not been prepared for treatment.
|April 28, 2014
||A member of the Board of Directors of the applicant and one of
the applicant’s Superintendents attend at the Unit to inspect and take
photographs of it. It is once again determined that the Unit has not
been prepared for treatment. The Unit remains full of clutter and
|June 24, 2014
||Unit 1416B of 2020 Jasmine Crescent, located immediately adjacent
to the Unit, is treated by Envirocontrol for general pest control. The
pest control contractor is unable to confirm the presence of bed bugs
in this unit.
|July 15, 2014
||Unit 1415B, located across the hall from the Unit, and unit 404B
of 2020 Jasmine Crescent are treated by Envirocontrol for bed bugs.
The pest control contractor notes that 30 days are required for the
treatment to take effect and that a second application of the treatment
may be required.
|June 3, 2015
||A member of the Board of Directors of C.C.C. No. 25 and the
property manager for the building are permitted by the respondent to
enter and make observations as to the condition of the Unit. The
general condition of the Unit appears to be as bad as, if not worse
than, when it was originally inspected in 2013.
In summary and for the reasons set out above, the judge ordered:
Patrick Eagan, shall immediately prepare his unit, known municipally as
1417-2020 Jasmine Crescent (“the Unit”) for treatment of bed bugs in
accordance with directions provided to him by the applicant’s pest
control contractor, Envirocontrol IPM Services Inc.
|If, after thirty
(30) days, the Unit has not been prepared for treatment in accordance
with the directions provided by Envirocontrol IPM Services Inc., the
applicant is granted immediate and ongoing access to the Unit for the
purpose of: a) preparing the Unit for pest control treatment; and
b) carrying out the required pest control treatment.
|If the applicant is
required to take the steps described in paragraphs 2(a) and/or (b)
above, it is granted authority specifically to remove and/or discard
and/or store items as the applicant deems necessary to reasonably
prepare the Unit for pest control treatment.
|The respondent is
responsible to pay all costs associated with: a) the preparation
of the Unit for pest control treatment; and/or b) carrying out the
required pest control treatment.
|The costs associated
with the preparation of the Unit for pest control treatment and/or
carrying out the required pest control treatment shall be added to the
common expenses payable by the respondent to the applicant and
recoverable as such by the applicant.
Costs of the Application
The applicant seeks costs on a full indemnity basis as follows:
The judge awarded the condo its costs of this application on a substantial
indemnity basis in the amount of $9,703.80. Her decision with
respect to costs was based on the following reasons.
a) Scale of Costs
"I agree with the submissions of
counsel for the applicant that the applicant was under a duty, pursuant
to section 17(3) of the Act, to bring this compliance proceeding to
ensure that the respondent complies with the provisions of the Act, the
Declaration, etc. The breaches by the respondent of his
obligations pursuant to the Act and the Declaration are such that he is
placing others at risk from a health and safety perspective. The
conduct of the respondent from 2013 forward left the applicant with no
choice but to bring this application.
I have also considered the factors
set out in rule 57.01(1) in exercising my discretion with respect to
costs. The importance of the issues (rule 57.01(1)(d)) is clear
given the health and safety concerns. The respondent`s conduct
with respect to this proceeding (rule 57.01(1)(e)) resulted in a delay
from November 20, 2014 to June 30, 2015 for the application to be
heard. The applicant relied upon the respondent’s representations
in late 2014 and the first half of 2015 that he was prepared to take
the necessary steps to deal with the condition of the Unit. In
the end, the respondent did nothing, did not deliver a notice of
appearance in the proceeding, and did not attend at the return of the
Counsel for the applicant referred
to Article X of the Declaration as supporting an award of costs on a
full indemnity basis. In my opinion Article X does not support
the applicant’s position in that regard. Article X addresses the
conduct of a unit-owner as it may relate to “the common elements and/or
all other units”. The application deals exclusively with
preparation for treatment and actual treatment of the Unit. The
application does not address costs incurred by the applicant with
respect to any other unit at 2020 Jasmine Crescent."
The judge declined to order two elements of the relief requested.
Amount of costs
"I have reviewed the bill of costs
filed by counsel for the applicant at the conclusion of the
application. I am satisfied that the hourly rates claimed for
each of the timekeepers identified in the bill are reasonable. With respect to the time spent, I note the following:
|The bill of costs
includes approximately $1,245.00 for time spent in communication with
the respondent and the client prior to the commencement of the
proceeding. That time is not reasonably included as costs for the
|For preparation of
the notice of application and application record there are four
timekeepers, including senior counsel and a clerk. The total time
for this portion of the work is approximately $5,800.00. To
address duplication of effort as between the three counsel involved I
reduce that time to $4,800.00.
|The time spent in
preparation for the return of the matter in December 2014 includes
client communication and at least one client meeting. I reduce
the fees for this aspect of counsel’s work from $2,652.00 to $2,000.00.
In summary, I reduce the full
indemnity fees identified from a total of $13,498.75 by $2,897.00 to
$10,600.00 (rounded from $10,601.75). In arriving at a figure for
fees on a substantial indemnity basis, I do not rely on the 90 per cent
calculation suggested by the applicant in its bill of costs. I
award fees on a substantial indemnity basis in the amount of $8,000.00,
with HST over and above that amount.
I have reviewed the list of
disbursements included in the bill of costs and award the applicant the
full amount claimed for disbursements ($663.80, including applicable
In summary, I fix the applicant’s
costs in this matter on a substantial indemnity basis as follows:
|HST on fees
I also order that the costs in the
amount of $9,703.00 be added to the common expenses payable by the
respondent to the applicant and be recoverable as such by the applicant."
MTCC No. 897 v. Bhanji
Court of Appeal for Ontario
On appeal from the judgment of Justice Myers of the Superior Court of Justice, dated 11 December 2014
Date: 12 Nov 2015
MTCC 897, MTCC 880 & MTCC 934 made an application in Superior Court
for an order enforcing compliance by the appellants with certain rules
of the condominium complex. What rules they broke was not stated but it
seems that the pair violated rules involving the shared facilities.
In response, Noreen Bhanji, argued that she had been singled out and subjected to oppressive conduct by the condo corporations.
Nasim Bhanji did not bring a cross-application for an oppression remedy
under Section 135(1) of the Act. The motion judge found the alleged
oppressive conduct did not give Noreen Bhanji a licence to flout the
rules of the condominium complex.
The Appeals Court upheld Justice Myers ruling and the appeal was dismissed.
The condos recieved the costs of the appeal, fixed in the amount of $7,500 including disbursements and HST.
This ruling confirms that even if an
owner believes that their condo corporation, or the shared facilities
corporation, has treated them unfairly, that does not give the owner or
a resident the right to ignore the rules.
As an example, if other
residents are allowed to park in the visitor parking without penalty,
that does not allow you to do the same.
A better bet would be to apply to the courts for relief, vote in a different board of directors or sell and move elsewhere.
MTCC No. 659 v Truman
Court File No.: SC-14-00002468-0000
Before: Deputy Judge J.C.F. Hunt
Date: 28 August 2015
This commercial condominium corporation has a single bulk water meter
for all twenty units and the water costs was part of the common element
An owner bought a commercial unit to grow marijuana pursuant to a
licence from Health Canada, the property manager noticed that water
An average water bill of $1,642.37 went up to $5,709.11 per utility bill.
The manager hired a plumber who verified that there were no leaks in
the system so in August 2013, the corporation installed a separate
water meter for unit #7.
Between 19 June 2015 and 05 February 2014, a total of 231 days, a total of 269,683 gallons of water were consumed in unit seven.
The condo corporation billed the owner for the higher than normal water
usage before the individual meter was installed. The owner of unit # 7
refused to pay for the increase in water consumption prior to the
separate meter being installed.
The owner's offered three arguments, the best being that the
corporation’s claim was barred by the Statute of Limitations as more
than two years had passed since the corporation discovered the
excessive water usage.
The Court rejected all of the defences submitted by the owner including
his argument that the corporation’s claim was barred by the
Statute of Limitations failed on a strictly technical basis, as the
expiry of the limitation period was not pleaded in the owner’s
statement of defence, it was only included in the owner’s submissions
to the Court.
The judge ruled:
“I accept, without hesitation, that Mr. Truman’s use of water was
disproportionate to the allotted 5.13% share of common expenses and in
the result, inequitable and unfair, not only to the plaintiff, but to
the other nineteen unit owners. In effect, his cultivation of medical
marijuana was being subsidized.”
Couture v TSCC No. 2187
Ontario Superior Court
Court File No: CV-15-527224
Justice F.L. Myers
Date: 04 December 2015
The residential building at 2 Ridelle Avenue in Toronto is owned by
TSCC # 2187. The
condominium consists of 44 residential
condominium units plus common areas. The common areas include a
parking garage that contains only 32 parking spaces.
"the power of the collective is not absolute"
"In condominium living, the needs of the many outweigh the needs of the
few. However, the power of the collective is not absolute.
Power must be exercised within the bounds of the condominium’s
established jurisdiction and with due respect to the legal rights and
reasonable expectations of the few or the one."
“people sometimes see exactly what they wish to see”
"As with most efforts to balance competing rights, the fact that people
are involved complicates matters. It is well understood that in
complicated moments people sometimes see exactly what they wish to see.
Moreover, some find other’s illogic and foolish emotions an irritant."
"In this case, like so many others involving neighbours, a discrete
issue was allowed to escalate out of hand causing needless distress and
expense. Like excellent tacticians, the parties let their counsel
attack while they sat and watched for weakness. What they did not do
was to act like good neighbours. They were not of the body."
“having is not so pleasing a thing after all as wanting.”
"It now falls to the court to unwind the tangled web that the parties
wove. I expect that neither side will be particularly pleased with the
outcome. Rather, I expect that they may find that having is not so
pleasing a thing after all as wanting."
"So this is basically a battle that originated because the condo does
not have enough parking spaces and the board wanted the owner to remove
her clunker and allow the board to rent the parking space to a
Ms. Couture resisted.
What happens next is a battle between a board who went too far against an owner who fought back, and who also went too far.
This case is fascinating as Justice Myers lists all the naughty things the board did and how the owner hurt her case.
|The Board returning her April
and May postdated maintenance fee cheques in the amount of $780.51,
which include the $50 parking fee.
|The board sent the owner a letter.
Justice Myers stated: "There is much notable about this letter.
First, its tone is disrespectful and dismissive. It is not
consistent with an amicable, businesslike, or neighbourly tone among a
community member and her elected representatives. Second, the board
does not explain how it purported to confirm the termination of the
applicant’s rights prior to the expiration of its own deadline of March
31, 2012 set in the February, 29, 2012 letter. The board recites its
exclusive entitlement to assign parking spaces, but it ignores that
under the declaration it carries out that power by entering into leases
with unit owners. A lease is an agreement that provides for exclusive
possession of a defined piece of property on defined terms. The board’s
authority to assign parking spaces is carried out by agreeing to enter
into leases with owners. Once it has done so, the board does not have a
unilateral right to ignore the owner’s leasehold interest. Rather, if
it wishes to terminate an owner’s right to use a parking spot under a
lease, it must proceed in accordance with the terms of the lease."
|"Rather than addressing the
issues that arose the parties’ respective (mis)understandings of their
rights and obligations, they determined to take tactical positions with
each other that basically involved: name-calling, hyperbole, failure to
listen, taking extreme positions, wasting time, money and effort, and
causing themselves and each other distress."
|"The applicant knew full well
that the Board did not wish to receive a cheque from her that included
a $50 component for her parking space rent after it purported to
terminate her rights at the end of March. The applicant’s
continued insistence upon providing cheques that included rent for the
parking space was nothing more than a bare tactic designed to enable
the applicant to argue later that if the Board cashed one of the
cheques, it would have confirmed her lease by accepting rent.
Moreover, by sending cheques that she knew included rent that the Board
had returned already, the applicant was falling behind on her common
expense payments that represented more than 90% of the value of the
|"Somehow, it dawned on neither
side that it might be a good idea to provide for a mechanism for the
applicant to pay her common expense fees on a without prejudice basis,
either with or without the extra rent component. Instead,
correspondence turned to the issue of collection of arrears of common
expenses and legal fees."
|"Moreover, in separate
correspondence the Board threatened to levy an “administration fee” of
$250 as compensation for the inconvenience of corresponding with the
|In September 2012, the owner, in accordance with Bylaw No. 2 of the condominium requested mediation.
By letter dated October 9, 2012, the condo corporation, "acting without
legal counsel, declined to meet as they purported to determine that the
applicant did not have a claim. Moreover, it expressed its, “considered
opinion that the Court’s [sic] may view, Ms. Couture as a vexatious
litigant.” I respectfully beg to differ. In a fit of arrogance,
the board concluded its letter as follows:
As such the Corporation respectfully declines the invitation to meet
with Ms. Couture and will not subject itself to any arbitration or
mediation as clearly all matters have been determined.
We trust this information settles these meritless matters."
|"Life would be much neater if all disputes could be terminated unilaterally."
|"Life would be much neater if
all disputes could be terminated unilaterally. The board somehow
satisfied itself that it did not need to comply with the condominium’s
mediation and arbitration bylaw or the provisions of section 132 of the
Condominium Act, 1998 concerning mediation and arbitration. Rather than
following the statutory prescription to attempt to resolve matters
without resort to formal litigation and within the body of the
condominium, the board was inviting a lawsuit against the condominium
|"The board’s witness confirmed
that the board knew that it was required to participate in mediation
when it refused to do so. No excuse was put forward before me for its
initial refusal to comply with its legal obligation. After being
contacted by one of the potential mediators named by the applicant, the
board responded by choosing a different mediator and requiring that the
applicant pay 100% of the mediation costs in advance. Under the
terms of its Bylaw No. 2 however, the costs of mediation are to be
|The First Lien
"On October 9, 2012, counsel for the condo corporation advised the
applicant that it had filed a lien against title to her unit in the
amount of $5,405.47 consisting of arrears of common expense payments
for October, 2012 of $664.10, outstanding legal costs of $3,241.37, and
$1,500 for legal fees in relation to drafting and eventual removal of
the lien itself. Counsel indicated that payment was due by the
end of the month, failing which the corporation may immediately
commence power of sale proceedings."
The applicant made the payment under protest.
"But, as noted above, the condominium corporation refused to accept
common expense cheques that included an extra $50 for rent for the
parking spot. Had it truly been concerned with collecting its common
expenses, it could have readily deposited the cheques and either
refunded the parking overpayment or negotiated a without prejudice
provision as discussed above. Moves and counter-moves. Tactics
and counter-tactics." ...
However, in my view, the filing of this lien against the applicant’s
unit by the condominium corporation was neither a reasonable step nor a
|administration fees (ﬁnes)
|"By letter dated December 13,
2012, the board purported to levy a $250 administration fee against the
applicant, “for its need to take time away from other matters to
continuously notify you of your failing to heed past warnings”
concerning her husband’s behaviour Not surprisingly, the
applicant denies the allegations concerning her husband.
Moreover, she denied the board’s entitlement to levy fines. Continued
nasty exchanges ensued leading the board to levy another $250
“administration fee” in relation to an allegation that Mr. Couture
tampered with security cameras. ... There is no evidence before me of
anyone observing Mr. Couture touching a security camera despite the
board’s allegation that he was observed doing so."
|"Article 10 of Bylaw No. 1 of the condominium corporation provides in part as follows
The contravention of any
provisions of the Act, declaration, by-laws and/or rules of the
Corporation, shall give the Board, subject to its duty to act
reasonably in addition to any other rights set forth in the Act and the
declaration, the right to:
(d) impose an
administrative fee of up to $250 per incident against the owner of a
Unit responsible for breach of the Declaration, By-laws and/or Rules of
the Corporation by the owner… as a reasonable cost incurred by the
Corporation for the extra administrative work involved in enforcing the
Declaration, By-laws and/or Rules of the Corporation."
|“such bylaws are
ultra vires or invalid”|
|"I agree with Mr. Justice Maloney in Basmadjian v. York Condominium
Corporation No. 52, where his Lordship suggested that such bylaws are
ultra vires or invalid for being beyond the powers of the corporation
to enact. Counsel for the condominium corporation did not point to any
provision of the statute empowering the condominium corporation to
enact bylaws allowing the Board to levy administrative fines. ... an
administrative fee also has the potential to operate as an arbitrary
weapon. Given the nature of condominium disputes—involving
significant emotional components brought on by the parties’ ongoing
physical proximity—and the policy favouring consensual dispute
resolution mandated by the statute, I do not view the power to levy
administrative fees or fines as being commensurate with the statutory
scheme or purpose. Accordingly, I view the administration fees as
improper and the provision that purports to authorize them as ultra
vires the corporation."
|The applicant served a notice of
arbitration on May 7, 2013. The Corporation was required to respond
within five days in accordance with its bylaw. It did not do so.
|The Second Lien
In July 2013, the condominium corporation gave notice of a second lien
to the applicant. "It made reference to an invoice dated March
25, 2013 for $3,441.60 for costs incurred by the corporation as a
result of the applicant’s continued pursuit of her “baseless issues”
and in relation to her husband’s alleged misconduct. It is clear on the
face of the letter that the defaults upon which the lien was being
claimed occurred more than three months previously and hence the notice
was invalid. Moreover, in the letter, the board returned to the
applicant her cheque in the correct amount for common expense fees for
March, April and May, 2013. It did so because the cheque did not also
include payment for the further legal costs sought in the March 25,
2013 invoice. The letter also gave notice of a further claim for fees
of $12,003.56. The invoices provided as back up for this further charge
show that only approximately 10% of the amount claimed was incurred in
the prior three months and the bulk that amount consisted of the common
expense payments that the board had refused to receive unless all of
its other claims were paid without dispute. The back-up claimed as well
for fees incurred back to 2009 including thousands of dollars for which
the limitation period would have already expired even if they were
More correspondence; more name calling; more threats of proceedings; more threats of costs; and more administrative fees ensued.
On August 30, 2013, the condominium corporation registered its second
lien against title to the applicant’s unit in the amount of
$14,511.16. Counsel added another healthy $1,500 for its costs in
preparing and ultimately discharging the lien. One pauses to wonder if
counsel ought to be entitled to charge for preparing and registering a
lien for amounts that were too old to be lienable on their face.
|Finally, by notice of
application dated September 13, 2015, the applicant sued the
condominium corporation and each of its directors
|"Moreover, the ancient legal
expression “it takes two to tango” applies to this case. Rather
than fixing her car, the applicant sicked her lawyer on the board to
immediately allege bad faith and to make repeated threats with lengthy,
self-serving, repetitive recitations that brazenly evading the key
issue of whether the applicant’s car had been repaired. Her
actions did not demonstrate good faith, reasonable, or neighbourly
|"In my view, neither lien was
registered appropriately. The bulk of the amounts claimed were no
longer subject to a lien by the time the liens were filed. To the
extent that the liens included amounts for recent common expenses, the
applicant had tendered those payments. In the first lien, the payments
were refused because they included an extra $50 for parking. In
the second lien, the payments were refused because they were not
accompanied by payments of other alleged outstanding legal fees.
In both cases, the liens were used to punish the applicant in legal
fees rather than as bona fide methods to collect amounts actually
fairly subject to lien rights. The applicant is entitled to the return
of funds that she paid on the liens under protest net of the common
expense component of those amounts. The applicant is therefore entitled
to judgment for $4,741.37 on the first lien and $9,881.66 on the second
lien with prejudgment interest under the Courts of Justice Act."
|"I have already found the fees
levied by the condominium corporation to have been beyond the scope of
its authority. As I have already adjudged the condominium corporation
liable to refund amounts paid on account of the liens, any amounts
actually paid by the applicant for administrative fees are already
being refunded to her."
|"The condominium corporation
offers no good faith explanation for its refusal to engage in mediation
and arbitration as required by its bylaws and the statute. This matter
could have been resolved before the end of 2012 had the parties sat
down in good faith to work out their issues."
|The oppression remedy does not protect a party’s wish list.
|"... While the applicant may
have been over-stating her rights to her parking space, she did not
deserve the harsh, vindictive, burdensome treatment that she received.
As noted above, had the parties gone to mediation and arbitration right
away, the merits could have been addressed. Instead, the board of
directors acted with arrogance and declined to follow its own internal
law and the law of the province in responding as it did."
"While the applicant was plainly engaged in perpetuating an agenda of
her own, the respondents were bound to behave better. The condominium
corporation is governed by legal duties designed to protect and enhance
the communal body. The registration of facially invalid liens, levying
of subjective and arbitrary fines, and the refusal to mediate/arbitrate
as required, were not reasonable responses by a board seeking to manage
the affairs of the corporation reasonably and in good faith. They were
punitive responses meted out by managers who would brook no dissent
from the likes of the applicant. Resistance was futile. The board of
directors disregarded the applicant’s interests from the outset. Its
responses were indeed harsh, burdensome, and oppressive."
"In light of the breaches and oppression found, the applicant is
entitled to compensation under subsections 134(3)(b) and 135(3)(b) of
"In all, there is no basis in the evidence to find that the wrongful
acts to which I have referred above caused the applicant to move out of
her condominium unit. I do not accept the applicant’s
self-serving bald statements in this regard."
"Nor would I award the applicant any damages for the physical and
distress that she says she has endured. There is no expert medical
evidence before the court linking the applicant’s symptoms to the
wrongful acts of the respondents."
"In the absence of proof of further damages, in my view, the applicant is entitled to $1,000 as nominal damages for oppression."
|Director's named on the application
"I do not need to deal with the issue of personal liability of the
other respondents. The applicant confirms that since she has sold
her condominium unit, she no longer has an interest in whether her
damages are paid by the condominium corporation or the individuals."
"The applicant is entitled to judgment requiring TSCC No. 2187 to pay
her the sum of $15,623.05 plus prejudgment interest as discussed above.
The other relief sought by the applicant has become moot by reason of
her sale of the unit."
(Plus she will get legal costs.)
“This section unfortunately incentivizes recalcitrant, litigious
behaviour by condominium boards of directors and their advisors whom
may be so inclined.”
Perhaps the board had an eye toward subsection 134 (5) of the statute
that entitles a condominium corporation to full indemnity costs in
litigation against a unit owner in which the condominium corporation
obtains any award of damages or costs. This subsection performs
an important role to protect innocent unit owners from paying the price
of unmeritorious litigation. However, it also provides a skewed
incentive to boards of directors and their advisors who can wield a
heavy sword over the heads of unit owners. In this case, for
example, by rejecting the applicant’s common area expense cheques, the
board could have a high degree of certainty that it would be entitled
to obtain a judgment at least in the amount of outstanding common
expenses. Were that the case, it would then attach a lien to the
applicant’s unit for its full indemnity costs. This section
unfortunately incentivizes recalcitrant, litigious behaviour by
condominium boards of directors and their advisors whom may be so
It is interesting to see how condo disputes can spin so far out of
control and how outrageous condo boards can act. There is something
about using someone else's money that seems to fuel a lot of condo law
Justice Myers remarks are both informative and witty. His judgments
are a joy to read. Here is an amusing National Post article on this